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622.01 Generally
Respondent did not abuse its discretion by considering restoration rights when deciding which of two positions an employe, who was returning from a stint in the unclassified service, should be assigned on a permanent basis, even though the returning employe had, at least arguably, already exercised his restoration rights, where that initial placement had always been intended as a nominal and temporary transaction. Kelley v. DILHR, 93-0208-PC, 3/16/95
Respondent did not abuse its discretion by considering seniority when deciding which of two positions an employe, who was returning from a stint in the unclassified service, should be assigned on a permanent basis, even though consideration of seniority as a factor was premised on an incorrect interpretation of that employe's restoration rights and the correct interpretation would have led directly to the same result but through a more circuitous route. Kelley v. DILHR, 93-0208-PC, 3/16/95
While it was unfortunate that candidates for a bureau director's position were not advised regarding the former incumbent's restoration rights under §230.33(1), respondent's failure to consider this factor when it decided to return the former incumbent to the bureau director's position and transfer the appellant to the deputy director's position did not constitute a basis for concluding that the appellant's transfer was an abuse of discretion. An appointing authority has no general obligation to inform an employe of his or her status under the civil service code. Kelley v. DILHR, 93-0208-PC, 3/16/95
Respondent's failure to have consulted with appellant before deciding to return the former incumbent, who had been serving in an unclassified position, to a bureau director's position and to transfer the appellant from the position of bureau director to deputy did not provide a basis for concluding the transfer decision was an abuse of discretion where there was no due process requirement for such a consultation and the appellant failed to identify any particular information which respondent did not have available as a result of its failure to consult with him. The deputy position was in the same classification and pay range as the bureau director position. Kelley v. DILHR, 93-0208-PC, 3/16/95
Appellant failed to show that respondent's actions in transferring appellant to a position in another location violated civil service rule or statute. Stasny v. DOT & DP, 79-192-PC, etc., 1/12/81
Where there was no explicit evidence of the administrator's approval pursuant to §230.29, Stats., of the transfer, but the record contained a copy of a memo to the administrator requesting his approval, and a notation that the administrator verbally had approved the transfer, it will be inferred, in part in keeping with the presumption of administrative regularity, that the required approval had been given. Harley v. DOT & DP, 80-77-PC, 11/7/80
622.02 What constitutes
Appellant was not "transferred" within the meaning of §ER-Pers 1.02(33), Wis. Adm. Code, when her position at one agency became part of a second agency when the second agency was created by statute. DuPuis v. DHSS, 90-0219-PC, 9/3/92
Appellant's appointment to a position in pay range 12-03 was properly deemed a transfer rather than a promotion where the classification of the appellant's former position was upgraded to pay range 02-11 as part of the Comparable Worth Plan shortly before the appellant changed positions and where pay ranges 02-11 and 12-03 are counterpart pay ranges. Meschefske v. DHSS & DMRS, 88-0057-PC, 7/14/89
The transactions resulting in the move of the appellant to a different location and to a different group of duties and responsibilities constituted a transfer, although there is nothing in the definition of the term "position" which requires that a move must be between two positions having different kinds of duties and responsibilities before it could be categorized as a transfer, nor does the definition of transfer hinge on a geographic move. Stasny v. DOT, 78-158-PC, 10/12/79 (Note: This case was affirmed by the Dane County Circuit Court in all respects except for restoration of sick leave. DOT v. Pers. Comm. (Stasny), 79-CV-6102, 6130, 2/27/81
There is no legal requirement under the Wisconsin civil service code that a pre-employment interview of an applicant for transfer by the appointing authority meet the legal requirements for an examination. Holmblad v. DP & LAB, 78-169-PC, 3/9/79
622.04 Scope of Commission's review
In reviewing a transfer decision, the decision had to be examined to determine, 1) whether the decision had a rational basis, 2) whether respondent failed to consider any factors which it can be concluded it should have considered, or considered any improper factor, and 3) whether respondent based its decision on any erroneous views of the law. Kelley v. DILHR, 93-0208-PC, 3/16/95
On an appeal of a non-contractual grievance relating to a transfer, the Commission's review is limited to the question of whether there was compliance with the relevant statutes and administrative rules with respect to the transfer. Harley v. DOT & DP, 80-77-PC, 11/7/80
The Commission will not scrutinize an agency's analysis of its operational needs nor its determination how to allocate its positions to meet those needs. Stasny v. DOT, 78-158-PC, 10/12/79; affirmed by the Dane County Circuit Court, DOT v. Pers. Comm. (Stasny), 79-CV-7102, 6130, 2/27/81
625.01 Generally
Respondent's hiring decision did not constitute an abuse of discretion where there was conflicting testimony about whether animosity existed between appellant and his supervisor, but in any event the record reflected that the supervisor neither participated in nor influenced the interview panel which ranked appellant third among four candidates, and that the selected candidate had superior qualifications for the position. Ransom v. UW, 92-0234-PC, 2/9/94
The appointment to a PA 2 position of a person who had previously attained permanent status in a PA 1 position and then left state service, would not be considered a promotion but an original appointment since this person was not an "employe" (§ER-Pers 1.02(6), Wis. Admin. Code) and did not hold a state position (§ER-Pers 1.02(27)(a)) at the time of the appointment, and the appointment satisfied the exclusions section of §ER-Pers 14.02. Davison v. DPI, 92-0191-PC, 1/27/93
625.02 Particular issues
Respondent did not abuse its discretion when it withdrew a promotion which had been offered and accepted earlier in the day. The withdrawal was based upon information volunteered to a representative of the appointing authority by the personnel manager for the appellant's work unit. The personnel manager described conduct admitted to by the appellant and stated that potential discipline was still pending. There was no showing that the personnel manager was improperly motivated when he volunteered the information. LaSota v. DOC, 94-1062-PC, 1/23/96
Appellant's appointment to a position in pay range 12-03 was properly deemed a transfer rather than a promotion where the classification of the appellant's former position was upgraded to pay range 02-11 as part of the Comparable Worth Plan shortly before the appellant changed positions and where pay ranges 02-11 and 12-03 are counterpart pay ranges. Meschefske v. DHSS & DMRS, 88-0057-PC, 7/14/89
Personnel transaction was held to be a promotion (so that a 12 month probationary period was appropriate) rather than reinstatement, where the appellant clearly had not been reappointed to a position in "the same class" as previously employed as is required by the definition of reinstatement. Reis v. DOT, 83-0002, 0003-PC, 9/20/83
Where the position in question was announced on a service-wide promotional basis, the appointment was illegal under §230.19(2), Stats., where it was determined that the appointee had been serving at the time of her appointment as a project employe pursuant to §230.27, Stats. Jacobson v. DILHR, 79-28-PC, 4/10/81
630.02 Permissive probationary period
Establishment of Section 1.02(l), Wis. Adm. Code, provided an adequate basis for the appointing authority to delegate his authority under §Pers 13.05(2), Wis. Adm. Code, to require and effectuate a permissive probationary period. Schmid v. UW, 78-19, 9/5/79
630.03 Written performance evaluations
The provision in §230.28(2), Stats., for written performance evaluations of probationary employes is directory and not mandatory in light of the language in §230.37(l), Stats., ("... may not infringe upon the authority of the appointing authority to retain or dismiss employes during the probationary period") and while failure to prepare such a written evaluation is not condoned, it does not void the probationary termination. Delaney v. Investment Board, 79-21-PC, 11/8/79
Although §230.28(2), Stats., states that the supervisor of a probationary employe shall complete a performance evaluation and a copy shall be given to the employe a reasonable time before the completion of probation, language contained in §230.37(l), Stats., leads to the conclusion that this provision is directory and not mandatory and that a failure of compliance will not void a probationary termination. Wegner v. UW, 79-14-PC, 9/14/79
630.06 Extension of probationary period
As against an argument that the appellant's probation was illegally extended, and that therefore she had attained permanent status by default, the Commission held that the extension was not illegal where the appellant had received two unsatisfactory evaluations during her initial probationary period but the last evaluation indicated that a newly-appointed supervisor would be assigned to work closely with her and to assure adequate training, in an effort to bring her work to a satisfactory level, and the administrator approved a three month extension of her probationary period. Adams v. HEAB, 80-54-PC, 4/29/82
630.08 Termination
Appellant, who was terminated while on probation after transferring within the agency, had mandatory restoration rights to his former position in which she had attained permanent status in class. Transfer was held to be between positions in same agency even though DHSS subsequently split into DHSS and DOC during course of appellant's probationary period. DuPuis v. DHSS, 90-0219-PC, 9/3/92
The appointing authority complied with §Pers 13.09(2), Wis. Adm. Code, where the employe was informed 18 days before his probationary termination that his two month probationary evaluation rated his performance as unacceptable, he was given a copy of a written evaluation, and he further was notified by letter that his probationary employment would be terminated because of overall unsatisfactory performance, and it can be inferred that he received a copy of his probationary service report which listed areas of unsatisfactory performance and stated that his probationary employment would be terminated. Dziadosz v. DHSS, 78-32-PC, 2/15/80; as amended on 5/15/80
Where the appellant's supervisor and the appointing authority discussed the appellant's performance about four months before the completion of probation, and the appointing authority advised the supervisor that if the appellant's performance did not improve then, her employment should be terminated prior to the end of the probationary period, this conference did not constitute the participation of the appointing authority in the probationary termination which occurred about four months later, but there nonetheless was an effective termination where the supervisor notified the appellant of her termination effective February 3, 1978, in a letter dated January 23, 1978, and in a separate letter dated January 31, 1978, the appointing authority stated his concurrence in that action. Schmid v. UW, 78-19, 9/5/79
Where the appellant argued that she had not properly been terminated during her probationary period and therefore had attained permanent status by "default," the Commission rejected her contention, holding that where there is no evidence whether the person signing her termination was an appointing authority, it will be inferred that he was, in keeping with the presumption of administrative regularity. Kenitz v. Weaver, 76-29, 2/28/79
Where the appellant argued that she had not properly been terminated during her probationary period and therefore had attained permanent status by "default," the Commission rejected her contention, holding that she was not employed for more than 6 months on account of having been employed 183 days (+17 hours of overtime) between August 11, 1975, and February 10, 1976, since §990.01(21), Stats., provides that months means calendar months. Kenitz v. Weaver, 76-29, 2/28/79
Where the appellant argued that she had not properly been terminated during her probationary period and therefore had attained permanent status by "default," the Commission rejected her contention, holding that she was provided with the reasons for her termination through receipt of a copy of her final probationary service report. Kenitz v. Weaver, 79-29, 2/28/79
630.09 Restoration after probationary termination
The appellant was not restored to a "similar" position when his probationary period was terminated after a promotion. Prior to promotion, appellant had been employed as a Ranger 2 and spent 40% of his time performing law enforcement duties and 50% performing maintenance and development duties. Upon restoration, appellant had been assigned to a Facility Repair Worker 3 position with 60% of his time spent on maintenance and development of grounds and trails but without any law enforcement responsibilities. The two positions were not similar within the meaning of §ER-Pers 14.03(1), Wis. Adm. Code. Stevens v. DNR, 92-0691-PC, 5/27/94
635 Medical leave of absence
Appellant failed to show that respondent's actions denying the extension of his medical leave of absence violated a civil service rule or statute where appellant did not cite any violations nor any substantive criteria relating to the granting of such leaves, and where there appears to be no such criteria. Stasny v. DOT & DP, 79-192-PC, etc., 1/12/81
637 Merit increase decisions
The agency employer was required to grant appellant's non-contract grievance request that it review and compare his work with work of others in state doing same type of work where appellant showed that evaluation system utilized was not "uniform" within meaning of §230.37(l), Stats. (Note: This decision preceded change in statutes making merit increase decisions unreviewable.) Romanski v. DOR, 78-155-PC, 4/19/79
640 Flex-time
The Commission rejected the employes' claim that the respondent was in violation of §230.215(2), Stats., by providing the parameters for flexible working hours and only permitting first-line supervisors to implement employe work hours within those parameters including temporary changes for the personal convenience of the employe. Johnson & Heiser, v. DOR, 78-35, 44-PC, 8/29/80
645 Work Assignment
Respondent's decision limiting to 9 days the amount of work time to be used by the appellant on a research assignment in Norway was upheld where a private donor paid for appellant's travel and living expenses, where the trip took 24 days and where respondent would have preferred that appellant work on existing projects in Madison. An employer has the right to determine, change, schedule and prioritize work assignments, including the right to determine the length of time an employe may spend on a work assignment. Holzhueter v. State Historical Society, 83-0166-PC, 4/4/84
650 Hazardous duty (§230.36, Stats.)
The primary purpose of §230.36, Stats., is to provide an extra level of protection to employes performing hazardous duties. Finn v. Wis. Pers. Comm., Dane County Circuit Court, 89-CV-5343, 3/22/90; affirmed by Court of Appeals, 90-1126, 6/13/91
"The process of … investigating," as that phrase is used in §230.36, Stats., is an ambiguous phrase which does not necessarily include travel to and from the site of an investigation because there is no particular danger related to the investigatory process inherent in such travel. Finn v. Wis. Pers. Comm., Dane County Circuit Court, 89-CV-5343, 3/22/90; affirmed by Court of Appeals, 90-1126, 6/13/91
The appellant, a resident care supervisor at a center for the developmentally disabled, was entitled to hazardous duty pay where he was injured when he broke the fall of a sedated resident who accidentally lost his balance as he was transferred from a wheelchair to a vehicle. By referring to "accident" in the definition of "injury" in §230.36(2), Stats., the legislature indicated a statutory intent to cover unintentional injuries and use of the word "act" in §230.36(3)(c)3., Stats., is not inconsistent with this construction. Shew v. DHSS, 92-0506-PC, 11/29/93
Under appropriate circumstances an employe can be covered under the hazardous employment law when he suffers an off-duty injury that is sufficiently related to an injury or disease suffered by the employe while on duty. If an employe suffers a covered injury, he or she should be covered notwithstanding that the full results of that injury are not manifested until there is a subsequent precipitating injury that may occur while the employe is not in the course of employment. Palmeri v. DOC, 90-0007-PC, 10/4/90
An employe cannot be denied benefits for a second period of inability to work merely because the employe had been able to work for one or more days before then. Palmeri v. DOC, 90-0007-PC, 10/4/90
Appellant, a special agent, was not injured while he was performing duties within the scope of §230.36, Stats., where his back injury occurred while removing some materials in the back seat of his car to provide room for two other special agents so all three agents could proceed to an undercover assignment. Finn v. DOJ, 88-0125-PC, 8/24/89; affirmed by Dane County Circuit Court, Finn v. Wis. Pers. Comm., 89-CV-5343, 3/22/90; affirmed by Court of Appeals, 90-1126, 6/13/91
The rationale used by the Commission in Loeffler v. DHSS, 81-376-PC, 12/17/81, in concluding that the prior version of §Pers 28.04(5), Wis. Adm. Code, conflicted with §230.35, Stats., was erroneous. The new rule was entitled to retroactive application, thereby entitling the appellant to accrual of vacation time while on hazardous duty leave prior to March 1, 1981. Paul v. DHSS, 81-323-PC, 10/19/83
A warden receiving hazardous employment injury benefits is entitled to continue to receive 4 hours per week extra pay which had been denominated compensatory time for supervisory/management wardens in recognition of hours worked on unassigned days (days off). Hill v. DNR, 82-111-PC, 12/9/82
One intent of §230.36(l), Stats., is to bar the employer from using accrued sick leave, compensatory time, or sick leave credits to cover time off due to a covered (hazardous duty) injury. Loeffler v. DHSS, 81-376-PC, 12/17/81
Pursuant to the statutory language in existence at the time of the appellant's injury (October, 1980) an employe suffering a hazardous employment injury must be credited with vacation time accruing for the period he was in non-work status, notwithstanding §Pers. 28.04(5), WAC (1975), but it was up to the administrator to determine by rule whether sick leave credits would accrue during an absence due to a hazardous duty injury. Loeffler v. DHSS, 81-376-PC, 12/17/81
Respondent erred in denying appellant's application for hazardous employment benefits where appellant, though an Administrative Assistant 3-Supervisor, had been delegated police powers, including the power to arrest, was issued a badge and was accepted for enrollment in training program for law enforcement officers during which program he was injured. The Commission cannot accept the notion that an employe whose regularly assigned police officer duties constitute less than 50% of his overall duties is not a "police officer" for purposes of §230.36, if injured while performing a police function. Loeffler v. DHSS, 80-367-PC, 7/27/81
The Commission found that the appellant was disabled and should be granted hazardous pay benefits where two undisputably competent, experienced, orthopedic surgeons differed as to the ability of the appellant to perform his job as a special investigator and the Commission gave greater weight to the conclusion of the appellant's treating physician. Krusche v. DOJ, 80-152-PC, 4/10/81
655 Code of ethics
A code of ethics constituting an administrative rule but not having been developed and promulgated pursuant to the rule-making procedures of ch. 227, Stats., is invalid and void. Kraus v. DHSS, 78-268-PC, 79-63-PC, 12/4/79
660 §230.37: Employe infirmities
Respondent satisfied the requirements of §230.37(2), Stats., when it transferred complainant, placed him on part-time service, and granted him several medical leaves. The record evidence showed complainant was unable to work at all during the relevant time period and, as a result, it was held that just cause for his termination existed. There was no duty of accommodation because no possible accommodation existed. Chavera v. DILHR, 90-0404-PC, 90-0181-PC-ER, 5/21/93; affirmed by Dane County Circuit Court, Chavera v. Wis. Pers. Comm., 93-CV-2441, 8/25/94; affirmed by Court of Appeals, 94-2674, 6/1/95
An employe, diagnosed as having a personality which overall was well within the normal range, but which had certain characteristics (such as being easily irritable and argumentative) that contributed to difficulties the employe experienced at work was not "mentally incapable of or unfit" to perform his job, within the meaning of s. 230.37(2), Stats. Therefore, the employe was not subject to removal or discharge under the statute. Jacobsen v. DHSS, 91-0220-PC, 12/9/92 (Ruling on petition for rehearing); affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
While §230.37(2), Stats., gives the appointing authority the right to require an employe to submit to a medical examination to determine fitness to continue in service, an employe does not violate this requirement by failing to agree to the particular course of treatment demanded by the appointing authority. Jacobsen v. DHSS, 91-0220-PC, 12/9/92 (Ruling on petition for rehearing); affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
Where petitioner was removed from normal pay status, was no longer allowed to work and to earn a salary, but was not terminated, he in effect was suspended from employment. While respondent's action of suspending the petitioner was less onerous and more favorable to petitioner than outright dismissal, it was not an option permitted by §230.37(2), Stats. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; rehearing denied, 91-0220-PC, 12/9/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
The employer's action under §230.37(2), Stats., must satisfy three elements. The employe must have infirmities due to age, disabilities, or otherwise; the employe must be physically or mentally incapable of or unfit for the efficient and effective performance of the duties of his or her position; and this incapability or unfitness must be by reason of, i.e. caused by, the infirmities. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; rehearing denied, 91-0220-PC, 12/9/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
While the language in §230.37(2), Stats., "due to age, disability, or otherwise," limits the word "infirmities" to conditions internal to the individual rather than those resulting from environmental or situational factors, it does not follow that any condition internal to the individual which causes an inability to adequately perform satisfies the requirement that the inability be "by reason of infirmities due to age, disabilities, or otherwise." Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; rehearing denied, 91-0220-PC, 12/9/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
Petitioner's "ingrained personality characteristics" did not fall within the meanings of infirmity or disability. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; rehearing denied, 91-0220-PC, 12/9/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
If an employe's work problems are attributable to infirmities due to age, disabilities or otherwise which render the employe physically or mentally incapable of or unfit for the efficient and effective performance of the duties of his or her position, he or she is still subject to a type of discipline, but, in some respects, is afforded more protection than is provided under §230.34(1)(a), Stats. Such employe may be dismissed from the civil service pursuant to §230.37(2) only as a "last resort" if the less onerous options are not feasible. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; rehearing denied, 91-0220-PC, 12/9/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
Respondent failed to establish just cause for indefinitely suspending the petitioner without pay under §230.37(2), Stats., where it did not establish that he had a condition covered by §230.37(2) or that the condition caused his work place difficulties. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; rehearing denied, 91-0220-PC, 12/9/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
Respondent failed to show that its action of treating the appellant as having abandoned her position was authorized by applicable law and was not arbitrary and capricious where the respondent failed to comply with the requirements of §230.37(2), Stats., when it did not consider the option of placing the appellant in another position despite correspondence from the appellant's physician which raised the issue of providing a less arduous position and which could have provided a starting point for a dialogue between the appellant, the respondent and the physician regarding the availability of a less arduous position. Smith v. DHSS, 88-0063-PC, 2/9/89
Unlawful discrimination was found where the employe's immediate supervisor failed to carry out instructions from upper-level management to structure employe's duties and responsibilities so as to comply with agency’s obligations under §230.37(2). Stats. Kleiner v. DOT, 80-PC-ER-46, 1/28/82
Just cause existed for the discharge of an employe on extended medical leave of absence where he was unable to perform the duties of his position, and where transfer and demotion options were ruled out. Stasny v. DOT & DP, 79-192-PC, etc., 1/12/81
As used in §230.37(2), Stats., "last resort" means that the agency must exhaust all other reasonable alternatives prior to dismissal. Stasny v. DOT & DP, 79-192-PC, etc., 1/12/81
A probationary employe is not an "employe" within the meaning of §230.37(2). Stats., which requires the appointing authority to transfer, demote, or place on a part-time service basis, before discharging, an employe who becomes disabled. Fuller v. UW, 78-47-PC, 2/14/79
667 Reinstatement/restoration
The three year eligibility for reinstatement established in §230.31(l)(a), Stats., (1985) was interpreted to refer to the time period for filing a request for reinstatement rather than to mean that reinstatement is to be accommplished within the three year period. Frank v. Pers. Comm., Court of Appeals, 141 Wis. 2d 431 (1987); affirming decision of Dane County Circuit Court, 85-CV-5490, 3/11/86
The failure of the respondent to consider the appellant for reinstatement following her request for reinstatement filed April 14, 1985, two working days prior to the expiration of her three year reinstatement eligibility, based not only on the conclusion that there was insufficient time to have pursued the normal procedure for processing a request for reinstatement before the three year period expired, but also on concerns about appellant's prior attendance and temper problems while previously employed at the same facility, violated the language of §230.31(l)(a), Stats. (1985). Frank v. Pers. Comm., Court of Appeals, 141 Wis. 2d 431 (1987); affirming decision of Dane County Circuit Court, 85-CV-5490, 3/11/86
Individuals who voluntarily terminate their state employment are entitled to permissive reappointment, i.e. "reinstatement," without the need to take a civil service exam. Wedekind v. DOC, 98-0091-PC, 2/24/99
Appellant, who voluntarily terminated his employment with respondent, did not have a right to mandatory reappointment without competition, i.e. "restoration." Restoration is available to certain employes who lose their jobs via layoff. Wedekind v. DOC, 98-0091-PC, 2/24/99
Even though a deputy bureau director position was in the same classification and salary range as an employe's former bureau director position, it was not "equivalent" for purposes of restoration, where the director maintained ultimate authority over bureau operations and directly supervised the deputy. Therefore, "restoration" of the employe to the deputy position arguably was in legal effect a reinstatement, with the employe retaining mandatory restoration right to the director's position. Kelley v. DILHR, 93-0208-PC, 3/16/95
Where no equivalent position was available, an employe's restoration rights ran to his previous position. Kelley v. DILHR, 93-0208-PC, 3/16/95
Respondent abused its discretion when it failed to interview the appellant for a vacant MIS 2 position, where the appellant had reinstatement eligibility, he had specifically requested reinstatement to a MIT 3 position "or a position of equal or lesser pay range but in the same field," respondent's standard procedure was to inform the employe of the vacancy if one arose, appellant understood that he would be contacted when a vacancy occurred, respondent never advised appellant that he was to monitor vacancies to which his reinstatement rights could apply, and respondent would have informed the appellant about the vacancy and would have provided him an interview opportunity had they remembered his reinstatement request. Johnson v. DHSS, 94-0009-PC, 3/3/95
In determining whether respondent had made a valid offer of restoration to appellant after having terminated her permissive probation following her transfer, the Commission had to utilize §ER-Pers 15.055, Wis. Adm. Code. DuPuis v. DHSS, 90-0219-PC, 10/4/94
Where respondent offered to reinstate appellant, after having terminated her permissive probation following her transfer, into a position at the same class level, pay range and pay rate at her former place of employment, respondent's action complied with §ER-Pers 15.055, Wis. Adm. Code. However, until respondent provided notice of the starting salary and of appellant's assigned shift, respondent had not complied with §ER-Pers 12.08, which requires the letter of appointment to "include conditions of employment such as starting date, rate of pay and probationary period." DuPuis v. DHSS, 90-0219-PC, 10/4/94
Appellant, who was terminated while on probation after transferring with the agency, had mandatory restoration rights to his former position in which she had attained permanent status in class. Transfer was held to be between positions in same agency even though DHSS subsequently split into DHSS and DOC during course of appellant's probationary period. DuPuis v. DHSS, 90-0219-PC, 9/3/92
Respondent's decision not to reinstate the appellant to a 50% position in a hospital's Emergency Department was upheld where the appellant had very limited medical experience and knowledge and the interviewer had concerns about appellant's ability to maintain confidentiality. The appellant was not sent a written notification of nonselection because the position remained open. Thomas v. UW, 89-0126-PC, 8/22/90
Respondent's decision not to reinstate the appellant to an Institution Aide position was affirmed where, in keeping with policy, respondent reviewed appellant's work record, compared her record with other reinstated employes, obtained recommendations from unit supervisors and considered prior attitude and initiative. Appellant's prior resignation had been without the requisite two week's notice. Rasmuson v. DHSS, 85-0124-PC, 10/1/86
Respondent's decision denying reinstatement to the appellant was affirmed where there was a personality conflict between the supervisor and the appellant, there was a difference of opinion between the supervisor and the appellant in terms of processing work, the appellant admitted he lacked respect for the supervisor, the respondent was concerned about possible adverse effects on another employe's ability to function independently and the supervisor believed that appellant intimidated, dominated or agitated other employes. The Commission concluded that the respondent had a rational basis for its decision and that the decision did not constitute an abuse of discretion. Varriale v. DOJ, 85-0056-PC, 4/11/86; affirmed by Waukesha County Circuit Court, Varriale v. State Pers. Comm., 86-CV-1324, 6/18/87
Respondent abused its discretion in not reinstating the appellant where appellant was the only person denied reinstatement solely because of sick leave abuse and where there were a number of former employes with poor sick leave records who were reinstated both immediately before and immediately after the appellant was denied reinstatement. Seep v. DHSS, 83-0032-PC & 83-0017-PC-ER, 10/10/84; affirmed in part, reversed in part by Racine Circuit Court, Seep v. State Pers. Comm., 84-CV-1705, 84-CV-1920, 6/20/85; supplemental findings were issued by the Commission on 2/2/87; affirmed in part, reversed in part by Court of Appeals District 11, 140 Wis. 2d 32, 5/6/87 [Note: the effect of the Court of Appeals decision was to affirm the Commission's decision in all respects].
Personnel transaction was held to be a promotion (so that a 12 month probationary period was appropriate) rather than resinstatement where the appellant clearly had not been reappointed to a position in "the same class" as previously employed as is required by the definition of reinstatement. Reis v. DOT, 83-0002, 0003-PC, 9/20/83
Respondent's action of not considering the appellant for a Planning Analyst 4 - Supervisor position even though the appellant had permissive reinstatement eligibility was a violation of the civil service code inasmuch as DILHR failed to exercise its discretion and therefore abused its discretion. DILHR's assistant personnel manager in charge of staffing had concluded that appellant was eligible for reinstatement to the position and had directed that appellant's application be sent to the appointing authority for consideration along with the certified list of eligibles but the memo was either never received or never reviewed by the appointing authority. Respondent was directed to cease and desist. Wing v. DILHR & DP, 80-65-PC, 4/5/83; explained further, 8/4/83
Respondent's decision not to reinstate the appellant was not an abuse of discretion where former supervisor stated that he did not wish to supervise the appellant because of his poor human relations skills and where another supervisor admitted to having made negative comments about the appellant's disposition and interpersonal relations skills. Lundeen v. DOA, 79-208-PC, 6/3/81
670 Voluntary demotion
Appellant's voluntary demotion was never effective where respondent failed to comply with §Pers 17.03, Wis. Admin. Code and where the administrator of the Division of Personnel never received anything in writing from the appellant either requesting or accepting the voluntary demotion. The appellant was ordered reinstated to her former pay range and appointed to the next available position in her former classification. Craft v. DHSS, 80-159-PC, 6/11/81; affirmed by Dane County Circuit Court, DHSS (Percy) v. Pers. Comm. (Craft), 81-CV-3310, 6/28/83
675 Relief Awarded (see also 130)
Where the Commission found the certification of the successful candidate was illegal (although the selection decision was not an abuse of discretion) and found that, had the successful candidate not been eligible, the appellant would have been appointed, the Commission ordered the respondent to appoint the appellant, if still qualified, to the disputed position or a comparable promotional position upon the next vacancy. Paul v. DHSS & DMRS, 82-156-PC & 82-PC-ER-69, 6/19/86
As a remedy in a successful appeal of a decision not to select the appellant, the respondent was ordered to appoint the appellant, if still qualified, to the disputed position (or comparable promotional position) upon its next vacancy. However, the Commission rejected the appellant's request for back pay. Pearson v. UW-Madison, 84-0219-PC, 9/16/85; affirmed by Dane County Circuit Court, Pearson v. UW & Pers. Comm., 85-CV-5312, 6/25/86; affirmed by Court of Appeals District IV, 86-1449, 3/5/87
Where the Commission concluded that respondent's decision to deny the appellant's request for reinstatement was an abuse of discretion, it rejected respondent's action and remanded the matter "for action in accordance with the decision." The Commission held that reinstating the appellant would be an appropriate action under the order, despite the contrary conclusion reached in DHSS v. Wis. Pers. Comm.(Paul). However, the Commission rejected the appellant's request for back pay. Seep v. DHSS, 83-0032-PC & 83-0017-PC-ER, 10/10/84; affirmed in part, reversed in part by Racine Circuit Court, Seep v. State Pers. Comm., 84-CV-1705, 84-CV-1920, 6/20/85; supplemental findings were issued by the Commission on 2/2/87; affirmed in part, reversed in part by Court of Appeals District 11, 140 Wis. 2d 32, 5/6/87 [Note: the effect of the Court of Appeals decision was to affirm the Commission's decision in all respects].
675.5 Non-appointment appeals
Back pay is not available under the civil service code for the failure to appoint appellant to a position, citing Seep v. Personnel Commission, 140 Wis. 2d 32, 409 N.W. 2d 142(Ct. App., 1987). Pearson v. UW, 84-0219-PC, 2/12/97 A
Where, in a decision issued 10 years prior to the parties’ petitions for declaratory ruling, the Commission concluded that respondent’s decision not to have promoted appellant constituted an abuse of discretion, and that appellant was entitled as a remedy to appointment to the position in question when it next became vacant, appellant was entitled to an immediate promotion upon the retirement of the incumbent. Respondent had taken no action with respect to the position prior to the retirement of the incumbent. Respondent’s assertion that there was no vacancy until it decided to fill the position after the incumbent had retired, was rejected. Pearson v. UW, 84-0219-PC, 8/5/96; explained further, 2/12/97 A
As the remedy to a finding that respondent abused its discretion in failing to interview appellant for a vacant position, the Commission ordered respondent to interview him for the next vacancy, the duties of which the appellant would be qualified to perform after the customary probationary period, at the same class level in the same geographic region as the vacancy which generated the appeal. Johnson v. DHSS, 94-0009-PC, 3/3/95
Where appellant established that respondent abused its discretion by not giving all certified candidates the same opportunity to augment their resumes with details of their training and experience, but did not establish that she would have been hired if this had not occurred, the appropriate remedy is limited to a cease and desist order. Rosenbauer v. UW-Milwaukee, 91-0086-PC, 91-0071-PC-ER, 9/24/93
Where the respondent manipulated the hiring process to avoid hiring the appellant and, absent this manipulation, appellant would have been the successful candidate, the Commission ordered the respondent to appoint the appellant, if still qualified, to the disputed position or a comparable promotional position upon its next vacancy but rejected the appellant's request for back pay and rejected appellant's request that a reprimand be issued to the interviewers. Zebell v. DILHR, 90-0017-PC, 10/4/90
Where there was insufficient evidence on which to conclude that the appellant would have been selected for a vacancy had the respondent not abused its discretion, the only appropriate remedy was to order the respondent to cease and desist from continuing those practices in the selection process which were found to constitute an abuse of discretion. Thornton v.DNR, 88-0089-PC, 11/15/89
Where in an appeal of a selection decision, the Commission found that the respondent had violated the civil service law in improperly awarding veterans points and improperly using a trainee designation, the Commission was barred by the decision of the Circuit Court from awarding back pay and from requiring respondent to appoint the appellant to the position in question, and was also prevented from ordering the appellant reclassified because the issue of reclassification had not been addressed at the hearing. The only remaining remedy was to order respondent to cease and desist from similar violations. Martin v. DILHR, Case No. 74-132, 12/16/81
675.8 Other types of appeals
Where respondent had failed to consider appellant's reinstatement request in violation of §230.31(l)(a), Stats. (1985), the respondent was directed to consider appellant's request. Respondent was not ordered to reinstate the appellant. Frank v. Pers. Comm., Court of Appeals, 141 Wis. 2d 431 (1987); affirming decision of Dane County Circuit Court, 85-CV-5490, 3/11/86
In determining whether respondent had made a valid offer of restoration to appellant after having terminated her permissive probation following her transfer, the Commission had to utilize §ER-Pers 15.055, Wis. Adm. Code. DuPuis v. DHSS, 90-0219-PC, 10/4/94
Where respondent offered to reinstate appellant, after having terminated her permissive probation following her transfer, into a position at the same class level, pay range and pay rate at her former place of employment, respondent's action complied with §ER-Pers 15.055, Wis. Adm. Code. However, until the respondent provided notice of the starting salary and of appellant's assigned shift, respondent had not complied with §ER-Pers 12.08, which requires the letter of appointment to "include conditions of employment such as starting date, rate of pay and probationary period." DuPuis v. DHSS, 90-0219-PC, 10/4/94
Where respondent acted unlawfully in denying restoration to appellant, appellant was entitled to restoration upon remand as well as back pay pursuant to §230.43(4), Stats. DuPuis v. DHSS, 90-0219-PC, 9/3/92
As a remedy to a successful appeal from a reassignment decision for a career executive, respondent was ordered to reinstate the appellant to his former position within 30 days. Respondent could then attempt to remedy the defect in notice (which caused the original decision to be illegal) and re-effectuate the reassignment, but not on a retroactive basis. Basinas v. DHSS, 77-121 (Personnel Board), 6/16/78
680 Processing of non-contractual grievances
While there was some expression of differing opinions and criticisms, and some harsh language, there was nothing said at a 3rd step grievance hearing which would be construed as denying or having the effect of denying appellant an opportunity to be heard, pursuant to § ER 46.01(2), Wis. Adm. Code. Wing v. UW, 85-0065-PC, 2/12/86
Where the description of the grievance essentially consisted of a reference to attached documents, and none were attached, this was not an illegal or insufficient basis for management not to accept the grievance. Wing v. UW, 81-328-PC, 2/7/83
The grievant's insistence on tape-recording the meeting with his immediate supervisor was not a sufficient basis for management to have denied that meeting. Wing v. UW, 81-328-PC, 2/7/83
Management did not err in its determination that the time for answering the first step was extended by the filing of an amended grievance by the grievant. Wing v. UW, 81-328-PC, 2/7/83
The grievance procedure provision that the third step decision be rendered in 10 days is of a directory rather than a mandatory nature. Therefore, respondent's denial of appellant's grievance based on appellant's resignation which occurred after the 10 day period for rendering a 3rd step decision had run was upheld. Miller v. DHSS, 78-114-PC, 2/5/79
683 Rate of pay
There is no authority under the civil service code for the commencement of the salary in a new position prior to the date of restoration or other form of appointment to the position. Dusso v. DER & DRL, 94-0490-PC, 7/23/96
The Commission lacks authority to order any back pay award in a restoration appeal, because "restoration" is not listed in §230.44(4), Stats., as a transaction entitled to back pay. Dusso v. DER & DRL, 94-0490-PC, 7/23/96
Where the Commission had previously resolved, in appellant’s favor, the question of appellant’s correct rate of pay upon restoration to the classified service, the higher rate of pay properly began on the date appellant first worked in the classified position to which he was restored, rather than when appellant first requested restoration. Appellant would have been restored to the classified position very soon after appellant requested restoration, but for his concerns over pay and respondents’ attempts to address those concerns. The Commission rejected appellants’ argument that respondent DER caused the delay in the restoration. DER had responded promptly to appellant’s contacts and appellant’s dissatisfaction with the wage figure recited in the response did not prevent him from accepting the position at that time as indicated by his subsequent acceptance of the position despite continued dissatisfaction with the wage figure. Dusso v. DER & DRL, 94-0490-PC, 5/28/96; petition for rehearing denied, 7/23/96
Compensation plans are more authoritative than bulletins which provide DER's interpretation of the compensation plan provisions. Dusso v. DER & DRL, 94-0490-PC, 3/7/96
A compensation plan should control in the event of a conflict with a rule that cannot be harmonized. Dusso v. DRL & DER, 94-0490-PC, 3/7/96
An attorney who moved from a classified position to an unclassified position was, upon restoration to the classified service, entitled to receive pay increases arising from an Attorney 13 regrade to point D that he would have received had he remained in his classified position. The attorney was considered as being on an approved leave of absence while he worked in the unclassified position. The movement of an attorney from one regrade point to another within a pay schedule is not the original "assignment of an attorney to a regrade point" identified by §ER 29.04(4), Wis. Adm. Code. It is a within pay range adjustment "other than [an adjustment] made under subs. (1) through (12) and (15)," as provided in §ER 29.04(13). Dusso v. DER & DRL, 94-0490-PC, 11/1/95; explained further, 3/7/96
An employe who served in the unclassified service for seven years retained permanent status in class from his previous classified position during this period. The definition of "permanent status in class" does not require the employe to be actually serving in a position to have the rights and privileges associated with holding permanent status in class. When the employe reinstated upon the end of his unclassified appointment, the employing agency was required to calculate his starting pay based on having held permanent status in class in the interim. Junceau v. DILHR, 92-0768-PC, 9/30/93
Respondent did not abuse its discretion in declining to grant add-on compensation to the appellant for 16 credits awarded to the appellant, where the credits were advanced standing credits, i.e. they were awarded by examination of skills acquired through work experience rather than by way of completing academic work at or under the auspices of an educational institution. Coulter v. DOC, 90-0355-PC, 1/24/92
Raised minimum rate of $11.072 per hour which was established in October of 1984 for the appellant's position classification (Police Detective) assigned to pay range 13 did not entitle the appellant to a raised minimum rate after the pay range was changed in 1988 from range 13 to 14 with a retroactive effective date to October of 1984, where there was nothing in the record to support a conclusion that pay range 14 was below the market rate for detective in October of 1984. The Commission deferred reaching respondent's jurisdictional objection because it had not been specifically addressed by the parties. Schmidt v. DER, 89-0058-PC, 11/1/90
Respondent did not act illegally or abuse its discretion in its offer of a starting rate of pay where the transaction could not be regarded as a promotion under §14.02(5), Wis. Adm. Code, because the appellant had not attained permanent status in class in her immediately previous position and the offered rate of pay was consistent with the rate required by §29.03(6), Wis. Adm. Code for a reinstatement. Abing v. UW, 89-0142-PC, 6/15/90
Where respondent's determination of appellant's starting salary upon promotion was exactly in accordance with the prevailing administrative code rule, the decision, in and of itself, could not have been illegal or an abuse of discretion. Equitable estoppel also did not apply. Te Beest v. DHSS, 88-0086-PC, 5/16/90
The removal of a physician's supplemental supervisory pay was arbitrary and capricious where the appointing authority had taken a function that had been performed on an ongoing basis by a position, identified it as a basis for supplemental pay for the sole purpose of being able to bring the starting salary of the position to a level that would meet the salary requirements of the appellant, and subsequently removed the supplemental pay for no convincing reason other than to augment the salary of another employe. Mirandilla v. DVA, 82-189-PC, 7/21/83
686 Career executive actions
The term "transfer" found in the statutory provision relating to the career executive program authorizes reassignments of career executives to positions in lower pay ranges. Southwick v. DHSS, 85-0151-PC, 8/6/86
The Personnel Board ordered the appellant reinstated to his former position in the career executive program where he had been reassigned to another position without being provided notice of the reasons for that reassignment, in violation of §Pers 30.07(2), Wis. Adm. Code. Basinas v. DHSS, 77-121 (Personnel Board), 6/16/78
690 Overtime
Respondent abused its discretion when it applied the policy on the administration of overtime and awarded appellant compensatory time off for the period he worked during a prison lockdown, where the policy referred to employes who worked overtime "in order to supervise employes" and appellant contended that he worked outside his usual assigned duties and supervised no one and where all three steps of decisions to appellant's grievance failed to address the appellant's potentially valid argument. Based on the record before it, the Commission could not determine whether the appellant was entitled to have been in nonexempt status, thereby entitling him to cash compensation for the period in question and the matter was remanded for further proceedings on the grievance. Corcoran v. DHSS, 86-0175-PC, 4/29/87
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.