Milwaukee Police Association v. Board of Fire and Police Commissioners for the City of Milwaukee

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 31, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1770 Cir. Ct. No. 2018CV10493

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

MILWAUKEE POLICE ASSOCIATION AND BRIAN J. YOUNG,

PLAINTIFFS-APPELLANTS,

V.

BOARD OF FIRE AND POLICE COMMISSIONERS FOR THE CITY OF

MILWAUKEE AND CITY OF MILWAUKEE,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
JEFFREY A. CONEN, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

¶1 WHITE, J. The Milwaukee Police Association and Brian J. Young
(collectively MPA) appeal the circuit court order affirming the decision by the
Board of Fire and Police Commissioners for the City of Milwaukee (the Board) to
No. 2020AP1770

deny Young a promotion to detective in the Milwaukee Police Department (MPD).
We conclude that the Board acted within its authority over the appointment and
promotion process for MPD members and exercised that authority when it denied
Young the promotion despite his position on the eligible list. Accordingly, we
affirm.

BACKGROUND

¶2 The following facts of this case are undisputed. Young is a police
officer with MPD. In December 2015, Young passed a promotional exam and was
placed on a list of officers eligible for promotion to detective. The list contained
fifty-eight officers, and Young was placed thirty-seventh on the list. The list was
adopted and approved by the Board in December 2015. Young then attended
detective training school, which he completed in March 2017. In December 2017,
then MPD Chief, Edward Flynn, imposed a fifteen day unpaid suspension on
Young for a disciplinary issue; the suspension was upheld by the Board.1

¶3 On February 21, 2018, MPD Chief, Alfonso Morales (hereinafter,
the Chief), submitted nominations “on a waiver basis and subject to [the Board’s]
approval” for two officers to the rank of detective; one of the officers was Young.
The Board’s minutes from the March 1, 2018 meeting noted that the Chief
subsequently filed a written objection, dated February 28, 2018, to Young’s
promotion based on Young’s disciplinary record.

Young appealed the Board’s decision to uphold the suspension. This court affirmed the
1

Board’s decision. See Young v. City of Milwaukee Bd. Of Fire & Police Comm’rs.,
No. 2019AP1095, unpublished slip op. (WI App July 7, 2020).

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¶4 The minutes for the regular and executive Board meetings on March
15, 2018, both showed that the Chief’s objection to Young’s promotion was listed
and struck through on the agenda. On March 29, 2018, the Chief submitted a
letter to the Board again nominating Young to the rank of detective. The minutes
of the Board meeting on April 5, 2018, reflect that the matter of Young’s
promotion was considered in executive session. The Board unanimously voted to
deny Young’s promotion. The minutes from the Board meeting on May 17, 2018,
reflect that the issue of the Chief’s objection to Young’s motion, by letter on
February 28, 2018, was considered under unfinished business; however, the
minutes indicate that “the matter was addressed in closed session, and no further
action was necessary on this agenda item.”

¶5 In December 2018, MPA sought review of the Board’s decision to
deny Young’s promotion and filed the underlying action against the Board and the
City of Milwaukee.2 MPA’s complaint requested both declaratory judgment and
certiorari review of the Board’s decision.3 The parties ultimately filed cross-
motions for summary judgment, and the court concluded that MPA did not meet

2
For ease of reading, we will continue to refer to the defendant parties as the Board.
3
The circuit court construed MPA’s action as a statutory appeal of the Board’s decision
under WIS. STAT. § 62.50(21) (2019-20). As such, the court reviewed the action under the
statutory certiorari standard, putting the burden on MPA to show that the Board did not keep
within its jurisdiction; that the Board did not proceed on a correct theory of law; and that the
evidence in the record did not reasonably support the decision of the Board. See Grycowski v.
Milwaukee Emps.’ Ret. Sys./Annuity & Pension Bd., 2021 WI App 7, ¶30, 395 Wis. 2d 722,
953 N.W.2d 904.

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

MPA also included a wage claim in its complaint before the circuit court, but the wage
claim is not at issue in this appeal. Therefore, we do not address it further.

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its burden and upheld the Board decision denying Young’s promotion. MPA
appeals.4

DISCUSSION

¶6 On appeal, MPA argues that Young was entitled to the promotion to
the rank of detective based on the Rules of the Board of the Fire and Police
Commissioners for the City of Milwaukee (the Rules) and the Board had no
discretion to deny the promotion. The Board argues it acted within its authority
and discretion to deny Young’s promotion. To resolve this case, we consider first
the proper standard of review, which is raised under both statutory certiorari
review under WIS. STAT. § 62.50 and declaratory judgment under WIS. STAT.
§ 806.04. Then we interpret and analyze the relevant statutes and Rules. Finally,
we apply the facts of Young’s action to the legal standard.

¶7 Ultimately, we conclude that under either standard, the Board has
the exclusive authority over appointments for police and fire departments under
the statutes and Rules, which inherently means it has the power to deny a
promotion to any person, even one on the eligible list. The Board is tasked with
adopting Rules “designed to secure the best service for the public in each
department.” Sec. 62.50(3)(b). We conclude it has acted within its authority in
this matter and we affirm its decision.

4
During the pendency of this appeal, this court requested additional briefing from the
parties on the issue of the Board’s authority under the application procedures in Rule VII or any
other part of the Rules. Both parties responded by letter brief.

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Standard of Review

¶8 The Board argues first that our review is limited to the certiorari
action because “[d]eclaratory judgment provides prospective rather than remedial
relief.” PRN Assocs. LLC v. DOA, 2009 WI 53, ¶52, 317 Wis. 2d 656, 766
N.W.2d 559. The Board contends that Young raises no issues that were not
present at the time of the Board decision; therefore, his recourse is certiorari.
MPA contends that our review is not limited to certiorari. It contends that while
the prospective use of declaratory judgment may be “preferred … declaratory
relief is appropriate wherever it will serve a useful purpose.” Lister v. Board of
Regents of Univ. Wis. Sys., 72 Wis. 2d 282, 307, 240 N.W.2d 610 (1976).
Further, MPA asserts that a declaration of the proper interpretation of the
promotion and appointment process would be helpful for all MPA members who
may end up in the same situation as Young.

¶9 MPA contends that the circuit court erred when it decided the action
was governed by the certiorari review under WIS. STAT. § 62.50(21). MPA asserts
that review process only applies to appeals from discipline—which could not
include claims arising from a complaint that the Board failed to comply with its
own rules governing the promotion and appointment process. We conclude that
the certiorari process was an appropriate method to address Young’s complaint,
but that declaratory judgment was not inappropriate. We accept MPA’s request to
declare the proper interpretation of the Rules, as well as address the certiorari
standard.

¶10 “On certiorari, we review the decision of the Board, not the decision
of the circuit court.” Schoen v. Board of Fire & Police Comm’rs of City of
Milwaukee, 2015 WI App 95, ¶14, 366 Wis. 2d 279, 873 N.W.2d 232. Further,

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our review of a statutory certiorari appeal “is limited to whether the Board
‘(1) acted within its jurisdiction; (2) proceeded on a correct theory of law; (3) was
arbitrary, oppressive, or unreasonable; or (4) might have reasonably made the
order or finding that it made based on the evidence.’” Sliwinski v. Board of Fire
& Police Comm’rs of City of Milwaukee, 2006 WI App 27, ¶12, 289 Wis. 2d 422,
711 N.W.2d 271 (citation omitted). This court independently reviews questions of
law and the extent of the Board’s authority under the statutory scheme. Schoen,
366 Wis. 2d 279, ¶14.

¶11 A declaratory judgment is governed by Wisconsin’s Uniform
Declaratory Judgments Act, WIS. STAT. § 806.04, which allows a court to “declare
rights, status, and other legal relations whether or not further relief is or could be
claimed.” “A court must be presented with a justiciable controversy before it may
exercise its jurisdiction over a claim for declaratory judgment.” Olson v. Town of
Cottage Grove, 2008 WI 51, ¶28, 309 Wis. 2d 365, 749 N.W.2d 211.5

The Board’s authority

¶12 To determine whether the Board acted within its jurisdiction and
proceeded on a correct theory of law, we must resolve the question of the Board’s
authority over the appointment and promotion process. Therefore, we must
interpret WIS. STAT. § 62.50 and the administrative rules of the Board of the Fire

5
There are four factors that determine whether a conflict is justiciable. Olson v. Town
of Cottage Grove, 2008 WI 51, ¶29, 309 Wis. 2d 365, 749 N.W.2d 211. First, it must be a
“controversy in which a claim of right is asserted against one who has an interest in contesting it.”
Id. Second, it must be a controversy “between persons whose interests are adverse.” Id. Third,
“[t]he party seeking declaratory relief must have a legal interest in the controversy—that is to say,
a legally protectible interest.” Id. Fourth, [t]he issue involved in the controversy must be ripe for
judicial determination.” Id. We note that the Board does not argue that MPA has not brought a
justiciable controversy.

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and Police Commissioners City of Milwaukee (the Rules). “[S]tatutory
interpretation ‘begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation
omitted). The nature and scope of an administrative agency’s authority is a matter
of statutory interpretation or construction. See GTE N. Inc. v. Public Serv.
Comm’n of Wisconsin, 176 Wis. 2d 559, 564, 500 N.W.2d 284 (1993). This
court independently reviews “the application of a statute and an administrative
rule to undisputed facts[.]” American Fam. Mut. Ins. Co. v. Haas, 2017 WI App
83, ¶4, 379 Wis. 2d 336, 904 N.W.2d 830.

¶13 Pursuant to WIS. STAT. § 62.50(2), “[n]o person may be appointed to
any position either on the police force or in the fire department of the city, except
with the approval of the [B]oard.” The Board is provided the authority to
promulgate rules “to govern the selection and appointment of persons employed in
the police and fire departments of the city” by § 62.50(3)(b). The appointment and
promotion process is covered by Rule XI. Within that Rule, section one states that
appointments to sworn, non-exempt positions “will be made from eligible lists
established by the Board.”6 Rule XI § 1. Section three states that “[w]henever
there is a vacancy in a sworn position in either department which is to be filled
from an eligible list, the Board shall make the appointment in numerical order
from the appropriate list.” Rule XI § 3. Section four states that “[t]he Chief may
object to a candidate on an eligible list for a sworn position by notifying the Board

6
There is no dispute that this case involves a sworn, non-exempt position. See
Rule V § 3. Furthermore, there are additional rules that govern other types of positions, such as
non-sworn positions, that are not at issue here. See, e.g., Rule XI § 3(b) (providing the process
for appointments of non-sworn positions).

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in writing of the reasons for such objection. The Board shall then interview the
candidate and determine whether the name of the candidate will remain on the
eligible list.” Rule XI § 4. Section five states that “[a]ppointments or promotions
to positions in either department require Board approval and are not effective until
approved by a majority of the Board at a meeting of the Board.” Rule XI § 5.

¶14 Under the plain meaning of both the statute and the Rules, the
“approval” of the Board is required for a person to be appointed to a position. See
WIS. STAT. § 62.50(2) (providing that appointments occur “with the approval of
the [B]oard”); Rule XI § 5 (providing that appointments “require Board approval”
and must be “approved by a majority of the Board at a meeting of the Board” in
order to be effective). The definition of the word “approval” reinforces that the
Board has to make a choice in order to comply with the statutory mandate.
Approval means “the act of approving” or “certification as to acceptability.”
Approval, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993). In its
verb form, approve means “to judge and find commendable or acceptable” or “to
vote into effect.” Approve, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(1993). At its essence, the logical interpretation of the statute and Rule is that the
Board must have discretion in deciding whether a candidate is or is not acceptable,
that the authority of approval is also the authority not to approve. Therefore, we
conclude and declare that under the law, the Board had authority to deny an
appointment at this stage.

Application of the law to Young’s promotion

¶15 We now turn to MPA’s arguments. MPA asserts that the Board had
no discretion to deny Young the promotion to detective because he complied with
the Rules: he satisfied the qualifications to compete for a position within the

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department, he participated in the required examinations, he was successfully
named to the eligible list, and the Board did not have a pending objection from the
Chief at the time of appointment. MPA contends that because the Board failed to
address Young’s promotion while the Chief’s objection was pending and failed to
follow the interview procedure for that objection, the Board had a statutory
mandate to promote Young when his position on the eligibility list arose.

¶16 MPA’s argument fails for two reasons. First, the Board has the
exclusive authority over appointments, not the Chief. Therefore, the Chief’s
objection is not dispositive to an appointment. This court has previously
recognized that the “exclusive authority over the hiring, removal and disciplining
of police and fire department personnel is vested in the Board of Fire and Police
Commissioners (the Board) by sec. 62.50, Stats.” State ex rel. Becker v. Common
Council of City of Milwaukee, 101 Wis. 2d 680, 688, 305 N.W.2d 178 (Ct. App.
1981). “The Board is also vested with exclusive control over appointments[,] …
suspension and removal.” Id. (footnotes removed). Rule XI § 4 provides that a
department chief may object to an appointment, but it does not give the
department chief the power to remove that person—instead the Rules requires the
Board to interview that person and decide whether the person should remain on

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the eligible list. The department chief’s authority is limited by the Board, not the
other way around.7

¶17 Second, the Board is tasked with “secur[ing] the best service for the
public in each department.” WIS. STAT. § 62.50(3)(b). A recurring principle in
the Rules is that the Board only appoints (or promotes) persons it considers to be
qualified. The Rules devote an entire chapter to qualifications of candidates,
including that “every applicant … shall be of good moral character[.]” Rule VI
§ 2. In the Application Procedures chapter, the Rule sets forth that “[t]he Board
shall refuse to accept an application from, shall exclude from the selection process,
or shall remove from the eligible list: … (a) any person who does not meet the
qualifications for the position, either at time of application or appointment[.]”
Rule VII § 5(a). This rule requires the Board to “remove from the eligible list”
any unqualified candidates at the time of “appointment.” Therefore, we see that
the Board’s authority to approve appointments is reiterated throughout the Rules.
We may interpret the Board’s action to use its authority from Rule VII to exclude

7
That a department chief’s authority is subordinate to the Board is illustrated in Rule II
on the scope of the authority of the Board, which provides that “[t]he Board may prescribe rules
for the governance of each department. A Chief may not suspend any rule prescribed by the
Board.” Rule II § 3(b). “The Chief of each department may propose rules for the governance of
the department. Any rule proposed by a Chief shall be subject to review and approval by the
Board. Any rule proposed by a Chief shall not take effect until the rule is reviewed and approved
by the Board.” Rule II § 3(c). “The Chief of each department shall provide the Board with
current standard operating procedures or other directives. Nothing in a standard operating
procedure or other directive shall be used to circumvent a Board or department rule.” Rule II § 4.
It would be illogical for a department chief to have more authority than the Board in this singular
function of the appointment process.

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Young at the time of his proposed appointment for his disciplinary records that
occurred after he was placed on the eligible list.8

¶18 MPA contends that the Board acted unlawfully because it could have
adopted rules to govern a separate process for it to review and approve or deny
appointments, but it did not. This argument fails as well. The Board did not need
to create a special procedure in the Rules to allow it to deny an appointment
because the power to deny an appointment is part of the power to grant an
appointment. Under the Rules, the Board must take two actions before an
appointment is effective. First, the Board must approve the applicant; and second,
a majority of the Board must agree to the approval at a meeting. Rule XI § 5. It
would add surplusage into the Rules and render the Board’s authority a nullity if
the Board could not exercise a meaningful choice in this stage of the process. See
State ex rel. Kalal, 271 Wis. 2d 633, ¶46.

¶19 MPA’s arguments misconstrue the appointment process in the Rules
and, if applied, would diminish the Board’s authority. When the Board acts to
approve an appointment, it must comply with the procedures it adopted within its
own rules; nevertheless, that procedure does not compel the Board to rubber stamp
the appointment of any applicant who makes it to the eligible list. Inherent in the
term “eligible list” is that a person on that list is eligible for an appointment, not
guaranteed. To be eligible is to be “fitted or qualified to be chosen or used” or
“worthy to be chosen or selected.” Eligible, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (1993). To be found “eligible” does not make the

8
As the Dissent points out, the Board does not ask this court to rely upon Rule VII to
decide this case. See Dissent ¶49. However, we conclude that Rule VII provides another
example of the Board’s ultimate authority over which persons are appointed to positions in MPD.

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promotion or appointment automatic. The plain meaning of the language of the
Rules does not indicate that the Board relinquishes its authority to decide to grant
or deny approval for appointments.

¶20 We conclude that the Rules, as written and adopted, are sufficiently
clear that the majority of the Board must approve a candidate in order for the
candidate to advance. Our interpretation of the Rules relies on their plain meaning
and further, it harmonizes with the Board providing meaningful oversight of the
police and fire departments. The Board, through its Rules, has promulgated a
procedure for the appointment of an eligible person; however, the final decision on
whether an appointment occurs rests with the Board at its discretion to approve or
deny.

¶21 Having determined the question of law with regard to the Board’s
authority, we turn to the remaining certiorari appeal standard. The Board argues
that MPA has not overcome the presumption of correctness afforded to an agency
decision. See State ex rel. Ruthenberg v. Annuity & Pension Bd. of City of
Milwaukee, 89 Wis. 2d 463, 473, 278 N.W.2d 835 (1979) (“In a review of a
decision on a writ of certiorari there is a presumption that the Board acted
according to law and the official decision is correct and the weight and credibility
of the evidence cannot be assessed.”).

¶22 The Board argues that MPA’s arguments fail to show that the Board
violated its duties under the four factors considered when reviewing a certiorari
petition. First, the Board acted within its jurisdiction because by the plain
meaning of the WIS. STAT. § 62.50, the Board has exclusive authority over
appointment of MPD members. We agree. Second, the Board asserts the Board
acted according to the law because although the Rules created a process for

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eligibility for appointment, the Rules did not require a person on the eligible list to
be promoted. We agree with the Board’s position that it acted within its
jurisdiction and proceeded under a correct standard of law because it had authority
to approve or deny promotions. See Schoen, 366 Wis. 2d 279, ¶14.

¶23 Turning to the third factor, the Board contends its decision was not
“arbitrary, oppressive, or unreasonable” because there was no evidence in the
record that the Board’s decision was an unfair expansion on the previously
imposed discipline. See Sliwinski, 289 Wis. 2d 422, ¶12. MPA argues that the
Board acted arbitrarily and capriciously when it imposed its will and did not
comply with its own rules. MPA contends that the process of appointment does
not allow for the Board to reject an appointment unless it is addressing the Chief’s
objection. MPA also argues that consideration of the prior suspension unfairly
applies more punishment on a closed matter.

¶24 We note here that MPA’s primary emphasis in pursuing the
declaratory judgment on appeal is the expanded record that was developed in
discovery before the circuit court. It asserts that the Board did not object to this
discovery at that time and may not restrict the record on appeal. At issue is
whether to consider MPA’s depositions of Board staff and several of the Board
commissioners. The record reflects that depositions from two of the
commissioners who voted against Young’s promotion showed that they both
“mistakenly believed that the Board’s rules prevented an officer from being
promoted if the officer had been disciplined in the past.” However, a deposition
from a third commissioner stated that he took Young’s disciplinary record into
consideration as part of the total review of his possible promotion. Further, the
deposition of the executive director of the Board stated that the commissioners
generally considered the entire record of a person eligible for a promotion, but

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confirmed there was no rule precluding a disciplined officer from attaining a
promotion. MPA argues that by “using the mere existence of the prior discipline
to prevent Young’s promotion, the Board necessarily expanded the scope and
application of the discipline imposed beyond the terms of the written decision”
imposing the suspension in 2017.

¶25 Although the Board contends that matters outside of the certiorari
record may not be considered, it argues that if this court considers the additional
factual record, the denial of a promotion is not a form of discipline.9 Therefore,
the Board contends that it is not unreasonable if the commissioners considered
Young’s prior suspension. The Board asserts it would create an absurd reading of
the statutes and Rules to bar the Board from considering the entirety of the record
of a person eligible for appointment or promotion. To the extent that we interpret
MPA to posit that the Board could not consider an applicant or potential
appointee’s entire record, we conclude MPA’s reading of the Rules is
unreasonable. MPA has not shown that the Board’s consideration of Young’s
disciplinary record was arbitrary or capricious. We conclude that the Board acted
within its discretion, not in an arbitrary and capricious way, but arising from a
reasonable, rational basis. See State ex rel. Ruthenberg, 89 Wis. 2d at 473.

¶26 Finally, the fourth factor is that the Board “might have reasonably
made the order … based on the evidence[.]” See Sliwinski, 289 Wis. 2d 422, ¶12

9
The Board’s argument is premised on the language in WIS. STAT. § 62.50(17)(b) which
holds that an officer may appeal to the Board if the officer is disciplined by being “suspended,
reduced in rank, suspended and reduced in rank, or discharged[.]” We note that MPA appears to
have endorsed that the denial of a promotion is not a disciplinary action when it asserted that the
disciplinary statutory certiorari process under § 62.50(21) does not govern this appeal, because
the denial of a promotion is not a form of discipline.

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(citation omitted). The Board agues this point is undisputed; nevertheless, we
address the standard. This fourth factor “inquiry is limited to whether there is
substantial evidence to support the [agency’s] decision.” Van Ermen v. DHSS, 84
Wis. 2d 57, 64, 267 N.W.2d 17 (1978).10 “Substantial evidence is evidence that is
relevant, credible, probative, and of a quantum upon which a reasonable fact
finder could base a conclusion.” Cornwell Pers. Assocs., Ltd. v. LIRC, 175 Wis.
2d 537, 544, 499 N.W.2d 705 (Ct. App. 1993). “We may not substitute our
judgment for that” for that of the administrative board. Von Arx v. Schwarz, 185
Wis. 2d 645, 656, 517 N.W.2d 540 (Ct. App. 1994). “If substantial evidence
supports the [Board’s] determination, it must be affirmed even though the
evidence may support a contrary determination.” Id.

¶27 The evidentiary record is limited in this matter. The minutes from
the regular session on April 5, 2018, show that Young’s promotion and denial was
discussed during an executive, closed meeting of the Board. Such employment-
related decision-making in closed session is allowed by WIS. STAT. § 19.85(1)(c);
however, the Rules do not permit anyone “to record that meeting through the
utilization of audiotape, videotape, stenographic reporter or by any other means.”
Rule III § 1(c). The record reflects, from the commissioner and staff deposition
testimony, that the Board’s decision-making was premised on concerns about
Young’s disciplinary record. This satisfies the standard for substantial evidence.
Ultimately, we conclude that MPA has not overcome the presumption of
correctness afforded to an agency decision. See State ex rel. Ruthenberg, 89
Wis. 2d at 473.

10
We note that we rely on generalized certiorari review standards for definitions.

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¶28 Although we accept MPA’s request to declare the Board’s authority
over appointments, we decline to address its “employment double jeopardy”
argument.11 MPA fails to provide Wisconsin legal authority in support of this
argument. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992) (“Arguments unsupported by references to legal authority will not be
considered.”).

CONCLUSION

¶29 For the reasons stated above, we conclude that the Board had the
authority to deny Young’s promotion. It acted within its jurisdiction and the law,
its decision was not arbitrary or capricious, and its decision was reasonable based
upon the record. See Schoen, 366 Wis. 2d 279, ¶14. Further, we declare that
under the Rules and by statute, the Board maintains power to deny an appointment
at any stage. See WIS. STAT. § 806.04. Accordingly, we affirm the circuit court
order upholding the Board’s decision.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

11
MPA concedes that there are no published Wisconsin cases on employment double
jeopardy. Instead, MPA offers that a treatise discussing this topic has been cited in other contexts
in Wisconsin appellate court decisions. However, our examination suggests this treatise covers a
multitude of topics, and MPA failed to quote a relevant excerpt. In Young’s prior case before this
court, this legal theory was raised and we also rejected the argument for failing to provide
Wisconsin authority. See Young, No. 2019AP1095, unpublished slip op. ¶36. Further, in this
case, the Board asserts that the treatise does not support MPA’s position in any case. MPA
ignores the topic in its reply brief, which we take as a concession about the relevance of the
treatise. See United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578.

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No. 2021AP1770(D)

¶30 DUGAN, J (dissenting). Because I conclude that pursuant to the
rules adopted by the Board1 regarding promotions, the Board was bound to
promote Young, and I respectfully dissent.

BACKGROUND

¶31 Young was a police officer with the Milwaukee Police Department
(MPD). In December 2015, pursuant to the rules adopted by the Board for
promotions, Young took and passed a promotional exam and was placed on a list
of officers eligible for promotion to Detective. The list contained fifty-eight
officers, and Young was placed thirty-seventh on the list. The Board approved
this list according to its rules.2

¶32 The Chief of Police, Alfonso Morales, recommended Young for
promotion on February 21, 2018. However, on February 28, 2018, the Chief filed
an objection to Young’s promotion based on Young’s disciplinary record from
December 2017.3

1
Like the Majority, I refer to the Board of Fire and Police Commissioners for the city of
Milwaukee as the Board.
2
Rule X § 1(a) on eligible lists states, “After an examination, an eligible list shall be
prepared containing the names of the candidates in the order of their relative ranking.” Once the
list is prepared, Rule X § 1(b) provides that “[a]ll eligible lists, consisting of name and ranking of
each candidate, shall be presented for adoption.”
3
Young was disciplined with a fifteen-day suspension in December 2017.

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¶33 At the Board’s meeting on March 1, 2018, Young’s promotion and
the Chief’s corresponding objection were on the agenda, but never discussed. The
Board met again on March 15, 2018, and the same agenda items regarding
Young’s promotion and the Chief’s objection were on the agenda. However,
Young’s promotion and the Chief’s objection were not discussed at this meeting.

¶34 The Chief subsequently withdrew his objection and filed a second
recommendation to promote Young to Detective, dated March 29, 2018. The
recommendation stated:

This member was put through a timely internal vetting
process where in the member’s entire record was reviewed,
including disciplines, open and closed investigations,
administrative matters (e.g. use of force reports, squad car
accidents, criminal investigations, citizen complaints),
fitness, and history with the FPC. I certify that this
member is in good standing with the Department and
suitable for promotion consistent with my statutory
duties….

¶35 At a meeting held on April 5, 2018, the Board denied Young’s
promotion.4 The agenda for the Board’s April meeting contained the Chief’s
recommendation to promote Young from March 29, 2018—it did not contain any
reference to the Chief’s objection from February 28, 2018.

¶36 The Board met again in May 2018. Its agenda listed “Objection to
Detective Promotion” under the category of unfinished business, and the meeting

4
The parties’ briefs include reasons why the Board denied Young’s promotion at this
meeting. As a result of my conclusion today, I need not discuss why the Board denied Young’s
promotion, and the simple fact that the Board denied Young’s promotion at the April meeting is
sufficient.

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No. 2021AP1770(D)

minutes reflect that this agenda item was “addressed in closed session, and no
further action was necessary.”

¶37 In December 2018, the MPA5 sought review of the Board’s decision
to deny Young’s promotion and filed this action, which was styled as both one for
declaratory judgment and certiorari review.6 The parties ultimately filed cross-
motions for summary judgment, and the circuit court affirmed the Board’s
decision to deny Young’s promotion. The MPA appeals.

DISCUSSION

¶38 On appeal, the MPA argues that Young was entitled to the
promotion to Detective based on the Board’s own rules under which the Board had
no discretion to deny his promotion. It argues that by denying Young’s promotion
the Board exceeded its authority and acted arbitrarily and capriciously.

¶39 In making its argument, the MPA acknowledges that candidates for
promotion must be approved by the Board, but the MPA argues that, based on the
Board’s own rules, in the case of a sworn non-exempt position such as Detective,
pursuant to the rules it adopted, the Board does not have discretion to deny
Young’s promotion without an objection from the Chief. Rather, the MPA argues
that, without a pending objection from the Chief, the Board is required by its own
rules to approve officers for promotion based on the numerical order of the
officers on the list of eligible officers that was previously approved by the Board.

5
Like the Majority, I refer to the Milwaukee Police Association and Brian J. Young
collectively as the MPA.
6
The MPA also included a wage claim in its complaint, but the wage claim is not at
issue in this appeal. Therefore, like the Majority, I do not address it further.

3
No. 2021AP1770(D)

Because Young’s application was accepted, he was selected to test for the position
of detective, he had completed all testing requirements, he was placed on the
detective eligibility list, the list was approved by the Board, and Young was
numerically next on the list for promotion, the MPA argues that the Board had no
authority to deny Young’s promotion, given that the Chief had withdrawn his
objection. As explained below, I agree.7

A. Relevant Statutes and Rules

¶40 I begin by reviewing the relevant statutes to determine whether there
is any language in the statutes that would limit the Board from creating the rules
for promotion that exist in this case. Pursuant to WIS. STAT. § 62.50(2) (2019-
20)8, “[n]o person may be appointed to any position either on the police force or in
the fire department of the city, except with the approval of the [B]oard.” The
Board is then provided the broad authority to promulgate rules “to govern the
selection and appointment of persons employed in the police and fire departments
of the city” by § 62.50(3)(b). Neither the Board nor the Majority cite to any
authority that limits how the Board may proceed in exercising its authority to
promulgate those rules.

7
I agree with the Majority’s discussion of the standard of review for both certiorari
review and declaratory judgment. However, unlike the Majority, I conclude that the Board’s
rules for promotion set forth a clear procedure for Young’s promotion and that the Board violated
the very rules that it created in denying Young’s promotion to Detective. Therefore, I conclude
that the Board exceeded its authority, acted arbitrarily and capriciously, and did not proceed on a
correct theory of law and that Young had the right to be promoted pursuant to the Board’s rules.
Thus, under a certiorari review or a declaratory judgment review, the Board’s decision should be
reversed.
8
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

4
No. 2021AP1770(D)

¶41 Pursuant to this authority, the Board developed the following rules.
Rule XI § 3(a) states that “[w]henever there is a vacancy in a sworn position in
either department which is to be filled from an eligible list, the Board shall make
the appointment in numerical order from the appropriate list.” (Emphasis added.)
Rule XI § 4 then states, “The Chief may object to a candidate on an eligible list for
a sworn position by notifying the Board in writing of the reasons for such
objection. The Board shall then interview the candidate and determine whether
the name of the candidate will remain on the eligible list.” Rule XI § 5 further
states, “Appointments or promotions to positions in either department require
Board approval and are not effective until approved by a majority of the Board at a
meeting of the Board.”

¶42 Pursuant to the Board’s rules, applicants for promotions must pass
multiple examinations and testing procedures that are approved by the Board. See
Rules VIII, IX. “Examinations may consist of one or more tests which the Board
may deem necessary …. All tests shall fairly and reliably evaluate the applicant
for fitness to hold the position.” Rule VIII § 4. “Scoring of examinations will
occur without reference to the identity of a candidate.” Rule IX § 2. The Board is
intimately involved throughout and approved the process.

¶43 Courts interpret the relevant statutes and the Board’s rules de novo
using the principles of statutory interpretation. See Seider v. O’Connell, 2000 WI
76, ¶26, 236 Wis. 2d 211, 612 N.W.2d 659. “[S]tatutory interpretation ‘begins
with the language of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). Courts
give the language “its common ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their technical or special

5
No. 2021AP1770(D)

definitional meaning.” Id. The purpose “is to determine what the statute means so
that it may be given its full, proper, and intended effect.” Id., ¶44.

B. The Board Violated Its Rules and Exceeded Its Authority When It
Denied Young’s Promotion

¶44 I conclude that Rule XI plainly states that the Board was required to
promote Young, given that Young’s application was accepted, he was selected to
test for the position, he had completed all testing requirements, and he was placed
on the detective eligibility list, there was no pending objection from the Chief, and
Young was numerically next on the list. Therefore, the Board violated its rules
and exceeded its authority when it denied Young’s promotion.

¶45 Rule XI § 1 mandates that the Board shall promote officers to
detective from eligible lists. In this case, there was an eligible list, and Young was
on it. Thus, the Board was required to promote Young to Detective using the pre-
approved list.

¶46 Furthermore, Rule XI § 3(a) mandates that the Board make
appointments from the list based on “numerical order,” without any other
consideration. Consequently, when Young was numerically the next officer on the
list for promotion, the Board had no discretion not to approve Young’s promotion
and it had no authority to deny it, unless the Chief objected. The rule plainly
states that Young’s promotion was based on his numerical order on the list and
there was nothing for the Board to consider in approving his promotion after the
Chief had withdrawn his objection. “[A]gencies are bound by their own rules.
Such rules define the boundaries of an agency’s authority, and when it abandons
those rules the agency is acting beyond its authority.” State ex rel. Riley v. DHSS,
151 Wis. 2d 618, 625, 445 N.W.2d 693 (Ct. App. 1989) (citation omitted).

6
No. 2021AP1770(D)

¶47 The Board and the Majority point to the authority provided to the
Board in the statutes and contend that the Board did not violate its rules or exceed
its authority when it denied Young’s promotion because it has exclusive authority
over making promotions. See State ex rel. Becker v. Common Council of
Milwaukee, 101 Wis. 2d 680, 688, 305 N.W.2d 178 (Ct. App. 1981). The Board
and the Majority contend that the Board is statutorily required to approve all
promotions and that the MPA’s interpretation leads to an absurd result that renders
the Board’s statutory authority of approval as mere surplusage. The Board and the
Majority assert that if the Board is required to approve promotions based solely on
a candidate’s numerically listed order with no ability to consider the candidate
absent an objection from the Chief, its power of approval is a nullity and the Chief
would be given absolute control over appointments, a result which they assert is
contrary to statute.

¶48 However, as noted above, pursuant to WIS. STAT. § 62.50(3)(b), the
Board has broad authority to promulgate rules “to govern the selection and
appointment of persons employed in the police and fire departments in the city.”
While the Board undisputedly has to approve Young’s promotion before it is
considered effective, I must also consider the rules that the Board imposed on
itself, and under the rules it created, it did not provide itself with the authority to
do anything but consider Young’s numerical order on the eligible list when
considering his promotion unless the Chief objected to his promotion.
“Administrative rules enacted pursuant to statutory rulemaking authority have the
force and effect of law in Wisconsin.” State ex rel. Staples v. DHSS, 115 Wis. 2d
363, 367, 340 N.W.2d 194 (1983). Rule XI is clear that the Board promotes
officers numerically based on the eligible list and Young’s promotion was
required to be made in this case based on his “numerical order.” The only

7
No. 2021AP1770(D)

exception to this procedure would be if the Chief had filed an objection, which
would then give the Board the authority to interview Young and determine if
Young should remain on the list of eligible candidates. Without having a pending
objection from the Chief in this case, the Board was bound to promote Young
based on his numerical order pursuant to its own rules that it created. Such a
result is not contrary to statute because the Board passed these rules to define its
statutory power of approval of promotions.

¶49 In support of its conclusion that “the Board has the exclusive
authority over appointments for police and fire departments under the statutes and
Rules, which inherently means it has the power to deny a promotion to any person,
even one on the eligibility list,” the Majority states:

In the Application Procedures chapter, the Rule set forth
that “[t]he Board shall refuse to accept an application from,
shall exclude from the selection process, or shall remove
from the eligible list: … (a) any person who does not meet
the qualifications for the position, either at time of
application or appointment[.]” Rule VII § 5(a). This rule
requires the Board to “remove from the eligible list” any
unqualified candidates at the time of “appointment.”
Therefore, we see that the Board’s authority to approve
appointments is reiterated throughout the Rules. We may
interpret the Board’s action to use its authority from Rule
VII to exclude Young at the time of his proposed
appointment for his disciplinary records that occurred after
he was placed on the eligible list.[9]

However, as the Majority notes that during the time this court was reviewing this
case, we directed the parties to submit letter briefs, in part, addressing the
following issue: “Does [Rule VII § 5] have any application to the issues on

9
See Majority, ¶17.

8
No. 2021AP1770(D)

appeal, and if so, cite what authority supports that it does, explain how it
applies….” Both parties submitted letter briefs.

¶50 In its letter brief, the Board argued that “Rule VII does not have any
bearing on this case, and this Court should decide the appeal on the Parties
existing briefs.” The Board goes on to state that “Rule VI establishes the
minimum requirements necessary to apply for MPD positions and Rule VII, in
pertinent part enforces those requirements.” It then asserts that “Rule VII Section
(5)(a) requires either the rejection of an application, or exclusion from further
consideration of any applicant that does not meet the qualification for [a]
position….” The Board then argues that because Young did not fail to meet the
qualifications for the position, Rule VII § 5 did not apply to this case. Thus, the
Board’s own interpretation of its Rules does not support the Majority’s
conclusion.10

¶51 Additionally, I note that the Board had the opportunity to take action
on the Chief’s objection but failed to do so. The Chief made his objection on
February 28, 2018, and the Board held two meetings in March 2018, while that
objection remained pending. By the time the Board took action in April, the Chief
had withdrawn his objection and filed a second recommendation to promote
Young, and therefore, the Board was then required to promote Young based on his

10
In its letter brief, the MPA first argued that Rule VII did not apply to this case because
it deals with the application procedure and Young’s application was accepted, he was selected to
test for the position, he had completed all testing requirements, and he was placed on the
detective eligibility list. Alternatively, the MPA argued that even if the Rule did apply to the
promotions process, then if the Board truly believed that Young was not qualified to be promoted,
the Board would have been required under the Rule to remove him from the eligibility list,
something that never occurred.

9
No. 2021AP1770(D)

numerical order on the eligible list. Because it failed to do so, I conclude that it
violated its rules and exceeded its authority.

¶52 I also note that in the end, the Board could have used its authority
under WIS. STAT. § 62.50(3)(b) to create rules providing it with more flexibility to
consider candidates when approving them for promotion, and it could also have
created a rule prohibiting candidates from being promoted if they have been
disciplined in the past or had any objection, pending or withdrawn, filed by the
Chief. The fact of the matter is that no such rule exists. The Board is bound by
those rules that it has created, and those rules require that Young be promoted
based on his numerical order on the approved eligible list. Having failed to follow
its rules in this regard, the Board violated its rules, exceeded its authority, acted
arbitrarily, and did not proceed on a correct theory of law.

¶53 Consequently I would reverse the order of the circuit court affirming
the Board’s decision, and I would remand this case with instructions to enter
judgment in favor of the MPA.11 Thus, I respectfully dissent.

11
Having concluded that the Board’s rules do not allow it to deny Young’s promotion
without a pending objection from the Chief, I decline to address the remaining arguments
regarding any expansion of previously imposed discipline and whether the employment double
jeopardy doctrine applies. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App.
1989).

10