Erik A. Andrade v. City of Milwaukee Board of Fire and Police Commissioners

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.
August 31, 2021
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. 2020AP333 Cir. Ct. No. 2019CV564

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

ERIK A. ANDRADE,

PETITIONER-APPELLANT,

V.

CITY OF MILWAUKEE BOARD OF FIRE AND POLICE COMMISSIONERS,

RESPONDENT-RESPONDENT.

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

Before Donald, P.J., Dugan and White, JJ.

¶1 WHITE, J. Erik A. Andrade appeals the circuit court order
upholding the decision of the City of Milwaukee Board of Fire and Police
Commissioners (the Board) to discharge him from service as an officer with the
Milwaukee Police Department. Because Andrade fails to show that the Board
No. 2020AP333

acted outside of its jurisdiction or did not proceed on the correct theory of law, his
claim fails, and accordingly, we affirm.

BACKGROUND

¶2 This matter arises out of allegations of misconduct by Andrade that
came to light after the high-profile arrest of Sterling Brown, a Milwaukee Bucks
player, on January 26, 2018. Milwaukee Police Department (MPD) officers used
force and shocked Brown with a Taser while taking him into custody for double
parking in a disabled parking spot outside a Walgreens store. Andrade answered a
call to assist at the scene, but he was not involved in arresting Brown or the use of
force. Andrade’s contact with Brown included transporting him after arrest.

¶3 On May 24, 2018, MPD internal affairs began an investigation into
Andrade’s conduct after a city alderperson relayed a screenshot of one of
Andrade’s Facebook posts to an assistant chief; the alderperson had received the
screenshot from an unnamed MPD member. The post stated, “Nice meeting
Sterling Brown of the Milwaukee Bucks at work this morning!
Lol#FearTheDeer.” Internal affairs reviewed the public information Andrade
shared on Facebook; although he had several photos in his MPD uniform, none of
the posts publicly available could be deemed inappropriate or in violation of the
MPD Code of Conduct.

¶4 On June 19, 2018, Brown filed a civil complaint against MPD
officers who were at the scene of his arrest; Andrade was named as a defendant.
The complaint included images of several of Andrade’s Facebook posts as an
admission that MPD officers engage in unlawful attacks and arrests of African-
Americans without justification or “fear of real discipline.”

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¶5 On June 28, 2018, MPD internal affairs interviewed Andrade during
its renewed investigation into allegations of misconduct that would violate the
Code of Conduct for the core values of competence (Core Value 1.00) and
integrity (Core Value 3.00). Andrade explained that he shared posts on Facebook
with his 1,200 friends. His last profile picture included a badge with a memorial
band on it, and he believed that his Facebook friends knew he was an MPD
officer. Andrade explained to the investigating sergeant that after Brown’s civil
action against MPD officers drew national and international media attention,
Andrade did not like the portrayal that he was a racist based on his Facebook
posts; therefore, he deleted his Facebook account on June 19, 2018, the same day
that Brown filed his suit against MPD.

¶6 During his internal affairs interview, Andrade read aloud MPD’s
Standard Operating Procedure (SOP) § 685.15(A)(5) for social media sites, under
the Code of Conduct, Core Value 1.00 for Competency, which states, in part:

As public employees, members do not lose their
rights under the First Amendment of the U.S. Wisconsin
Constitution. However, speech on or off duty pursuant to
your official duties and professional responsibilities as
members of the Milwaukee Police Department is not
protected. Members are free to express themselves as
private citizens on social networking sites to the degree that
their speech is not disruptive to the mission of the
department….

….

Members must be aware that their communication
on social networking sites can be used by a skilled defense
attorney in impeaching testimony and association with their
professional duties as a member of the department.

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¶7 Andrade then complied with the investigator’s request to read aloud
two sections of the Code of Conduct: Core Value 3.00 on integrity and Guiding
Principle 3.01.

We recognize the complexity of police work and
exercise discretion in ways that are beyond reproach and
worthy of public trust. Honesty and truthfulness are
fundamental elements of integrity. It is our duty to earn
public trust through consistent words and actions. We are
honest in word and deed….

Our behavior shall inspire and sustain the
confidence of our community. Whether on or off duty,
department members shall not behave in such a way that a
reasonable person would expect that discredit could be
brought upon the department or that it would create the
appearance of … impropriety or corruptive behavior.

¶8 The investigator then reviewed Andrade’s Facebook posts that were
at issue in Brown’s complaint and in the internal MPD investigation.

 On March 24, 2018, Andrade posted a comment in response to a Channel
58 article titled, “Milwaukee County Supervisor Introduces Policy Against
Mass Incarceration.” His comment read:

It’s hilarious when people talk about mass incarceration
Imao [laughing my ass off] like wtf [what the fuck] is that?
Mostly all the people I deal with at work cannot stay locked
up and they should be. Last time I checked, if you don’t
commit crimes, you don’t get incarcerated … but that’s
hard for people to comprehend.

 On April 16, 2018, Andrade posted a meme1 composed on the Tide
washing detergent logo and the words “SICK AND TIDE OF THESE

1
A meme is “an amusing or interesting item (such as a captioned picture or video) or
genre of items that is spread widely online especially through social media.” Definition of meme,
MERRIAM WEBSTER, INC., https://www.merriam-webster.com/dictionary/meme (last visited
June 16, 2021).

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HOES,” with Andrade’s words above stating, “What comes to mind when
I’m at work and I’m driving down Greenfield Ave. Smh [Shaking my
head].” [sic]

 On April 24, 2018, Andrade shared a “Who Wore it Better” meme that
compared NBA player Kevin Durant’s hair texture to an ice cream cone
that had been dipped in chocolate sprinkles. Andrade commented, “Damn
… more naps than preschool! Lmao [Laughing my ass off].”

 On May 3, 2018, Andrade responded to a video titled, “Man Fights Police
on Milwaukee’s North Side 5/2/18.” He commented:

Let’s see the whole video now since people are crying
police brutality and how officers are beating an innocent
black man for no reason. You social media educated fools
are too much sometimes. Time after time, people rush into
judgment and make comments after seeing a short clip of
an incident and all the sudden, you all act like you were
there and give expert opinion. Educate yourself on instant
before you dummies want to voice your opinion about it.

The video depicted the arrest of a man who was charged with three felony
counts of battery to a law enforcement officer after his arrest ended with
him and officers going to the hospital for injuries.

 On May 23, 2018, Andrade was tagged in a Facebook post that included the
released police body cam video footage of Brown’s arrest; the text read “I
need your autograph. I spotted you arresting an NBA player, LOL [laugh
out loud].” Andrade commented, “I didn’t arrest him, LOL.” Andrade was
also tagged in a shared Facebook post from a local news video titled
“Milwaukee Bucks Rookie Stunned, Arrested;” the tagged post read “Erik
Andrade let the man get his early morning craving of popcorn.” Andrade
reacted to the post with a laughing emoji.

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 On May 27, 2018, Andrade commented, “A little truth to those who want to
listen” on his shared post of a video from Facebook user “Mind of Jamal.”
The video author’s post stated:

The epidemic of the black community lying on the police
need to be addressed. Yes, whenever something happens, it
always a[n] epidemic of racism, police brutality or
whatever lie these failed liberal handpicked so-called
liberal black leaders come up with this epidemic crap to
cover up the fact they have failed the black community.

 On May 31, 2018, Cavaliers’ player, J.R. Smith, missed a shot in game one
of the NBA Finals between the Cavaliers and Warriors basketball teams;
the Cavaliers ultimately lost the game. Andrade posted, “I hope J.R. Smith
double parks in Walgreens handicap parking spots when he’s in
Milwaukee.”

 In an undated Facebook post, Andrade stated, “Had a great time workin
replacement over in D5 the other day …. 5+ OT and a use of force. Lol.”
[sic]

¶9 Andrade stated that he did not believe that his posts violated the
Code of Conduct. He stated, “some of [his posts] are meant to be jokes; some are
like meant to educate and enlighten … maybe give … a point of view.” He
acknowledged that they could be seen as “unprofessional,” but that his “sense of
humor” gets him in trouble.

¶10 On August 23, 2018, Milwaukee Police Chief Morales charged
Andrade with two violations of the Code of Conduct: count one—Core Value
1.00 for competence referencing Standard Operating Procedures relating to
§ 685.15(A)(5) for use of social networking sites; and count two—Core Value
3.00 for integrity. On September 12, 2018, Chief Morales issued a Personnel

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Order disciplining Andrade. The chief determined Andrade was guilty of count
one for “[p]osting content to a social media networking site that was disruptive to
the mission” of MPD, and imposed a thirty-day suspension without pay. The chief
determined Andrade was guilty of count two for failing “to inspire and sustain the
confidence of our community,” and discharged Andrade from the department.
That same day, Chief Morales notified the Board in an official complaint of the
discipline he imposed on Andrade for his misconduct. The next day, Andrade
appealed to the Board from the chief’s order discharging him from service.

¶11 In November 2018, the counsel retained by Chief Morales to defend
his discharge order and Andrade’s counsel filed their witness and exhibit lists.
Relevant to this appeal, Andrade’s counsel named Chief Deputy District Attorney
Kent Lovern as a potential witness, along with a “duces tecum subpoena for any
form/database/record, etc. of the ‘no testify’ list created and maintained by his
office.”

¶12 A Hearing Examiner conducted a two-day disciplinary appeal
hearing in December 2018 before three commissioners on the Board under the
procedure set forth in WIS. STAT. § 62.50(11)-(17) (2019-20).2 In opening
statements, the chief’s counsel described the undisputed facts of the case:

2
WISCONSIN STAT. § 62.50(17)(b) sets forth that a police officer may only be
discharged, suspended, and reduced in rank if the Board “determines whether there is just cause”
and requires the Board to “apply the following standards, to the extent applicable:”

1. Whether the subordinate could reasonably be expected
to have had knowledge of the probable consequences of the
alleged conduct.

2. Whether the rule or order that the subordinate
allegedly violated is reasonable.

(continued)

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There is no dispute that these posts are posts that
Mr. Andrade posted on social media. There is no dispute
that they caused great uproar. There won’t be any dispute
that during the course of the investigation, Internal Affairs
consulted with the Milwaukee County District Attorney’s
Office; in particular, second-in-command, Attorney Kent
Lovern … and he advised the—the department that the
posts would make it impossible for his office to use
Mr. Andrade as a witness in criminal cases because those
posts could be used to impeach him, impeach his credibility
and the defense lawyers would be able to render him
ineffective as a witness. Mr. Lovern went a step further
and what he said was, since these posts are now known,
they fall into the category called “Brady material” where
the DA’s office actually has a constitutional obligation to
turn them over to defense counsel in every criminal case in
which Mr. Andrade would attempt to serve as a witness.

¶13 The chief’s counsel continued that Chief Morales reviewed the
investigation and the “tenor, tone and content of the posts” were problematic

3. Whether the chief, before filing the charge against the
subordinate, made a reasonable effort to discover whether the
subordinate did in fact violate a rule or order.

4. Whether the effort described under subd. 3. was fair
and objective.

5. Whether the chief discovered substantial evidence that
the subordinate violated the rule or order as described in the
charges filed against the subordinate.

6. Whether the chief is applying the rule or order fairly
and without discrimination against the subordinate.

7. Whether the proposed discipline reasonably relates to
the seriousness of the alleged violation and to the subordinate's
record of service with the chief's department.

A disciplinary hearing consists of Phase I, which considers the first five just cause
standards in WIS. STAT. § 62.50(17)(b), and if the Board concludes those are satisfied, it moves
on to Phase II, to consider the sixth and seventh standards.

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

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because of “the racial nature, the insultive nature, the belittling and fun-making
nature,” but the “linchpin on which the discharge rested was Mr. Andrade’s
inability to serve as a witness in criminal cases … leaving him simply incapable of
performing one of the core functions of a Milwaukee police officer.”

¶14 Andrade’s counsel’s opening statement responded to that point,
stating that “[t]he inadequacies of the chief’s case will be undisputed…. [T]his
case really comes down to whether or not Officer Andrade can testify. Guess
what? There is nothing about whether or not he can testify in the entire
investigation. It is not there.”

¶15 Chief Morales testified about the practical meaning of the core value
for competence in MPD’s Code of Conduct. The chief explained that among the
guiding principles of the core value of competence “was familiarity with policy
and procedure.” He stated this was important because of “lawsuits that occur
when we’re out of policy.” The chief stated it would “absolutely” be disruptive to
the mission of the department if an officer engaged in conduct that rendered the
officer ineffective as a witness in a criminal case.

¶16 One of the Board commissioners questioned how MPD officers are
trained on SOPs. Chief Morales stated that policies are periodically updated;
some are given specific training. The officers must electronically acknowledge
they have reviewed the policy.

¶17 Andrade’s counsel questioned Chief Morales about Andrade’s
ability to testify, to which the chief responded that it was his “belief that he can’t
testify.” Andrade’s counsel asked if that was “different than the DA won’t let him
testify?” Chief Morales responded, “No. That is the same as the DA won’t use
him as a witness.” The chief testified that Andrade “brought discredit to the

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department on discipline and as I stated earlier, the purpose of firing him is I can’t
use him as a witness in court” and that not being able to use him as a witness is
“what tipped it over to me making a decision to fire him.” Andrade’s counsel
questioned the chief on his reasons to discharge Andrade:

[ANDRADE’S COUNSEL:] [Y]ou didn’t fire him
because he brought discredit to the department. I think
your testimony was he only got fired because the DA’s
position took it over the edge. To bring discredit to the
department would have only led to severe discipline. Is
that fair?

[CHIEF MORALES:] Yes.

[ANDRADE’S COUNSEL:] Same thing with the
second charge. You wouldn’t have fired him for failing to
inspire and sustain the confidence in our community but for
the DA’s decision. Is that fair?

[CHIEF MORALES:] That is fair.

¶18 The chief’s next witness was a local defense attorney; Andrade’s
counsel objected to having a defense attorney testify because he did not think his
testimony was relevant. Andrade’s counsel stated, “There is nothing in the
investigation about ability to testify or impeachment....” The Hearing Examiner
allowed the defense attorney to testify. The attorney explained that “any
competent defense counsel” would be able to impeach Andrade’s credibility using
the Facebook posts.

¶19 Andrade called adversely a lieutenant in internal affairs. The
lieutenant testified that the totality of Andrade’s conduct, specifically the social
media posts, were evidence to support both charges against him. The lieutenant
testified that his office did not specifically consider Andrade’s ability to testify in
its investigation. He explained that Andrade’s ability to testify “was brought in as
a consideration by the chief’s office as to the discipline.”

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¶20 The chief called Chief Deputy District Attorney for Milwaukee
County, Kent Lovern, who testified that Chief Morales contacted him during the
internal affair’s investigation into Andrade’s Facebook posts and he was asked to
review the posts and whether he would in “future criminal prosecutions, call
Officer Andrade as a witness for the state in any of our prosecutions.” He
“concluded that the posts … were damaging enough to Officer Andrade’s
credibility that we would not use Officer Andrade in future prosecutions handled
by the Milwaukee County District Attorney’s Office.” He concluded that this
information would need to be turned over to defense counsel as Brady3 material.
Lovern explained that when he examined twelve years of police files, he found

literally three or four other cases … where we have made a
decision that we could not use an officer because the Brady
material we had to turn over was so overwhelmingly
negative, that we felt like it would become a distraction to
our prosecution should that officer be a witness for us.

¶21 Andrade’s counsel reviewed with Lovern the Brady/Giglio list,
which was produced by the DA’s office and contained the names and issues with
116 MPD members. Nine of the MPD members were labeled “do not call” and
Lovern stated that Andrade would be included within this subset. A Board
commissioner questioned Lovern about what would happen “if an officer is on
your ‘no-call’ list and continues with the Milwaukee Police Department and that
particular officer is the investigating officer in a particular case, what would your

3
Brady and Giglio disclosures refer to Brady v. Maryland, 373 U.S. 83 (1963) and
Giglio v. United States, 405 U.S. 150 (1972). In Brady, the U.S. Supreme Court established that
a prosecutor has a duty to disclose exculpatory and impeachment evidence even without a formal
request by the accused. Id. 373 U.S. at 87; State v. Harris, 2004 WI 64, ¶12, 272 Wis. 2d 80,
680 N.W.2d 737. In order to establish a Brady violation, a defendant must demonstrate that the
withheld evidence is favorable and material. See Giglio, 405 U.S. at 154; Harris, 272 Wis. 2d 80,
¶13.

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office do … where that is your one and only star witness, but they are on this ‘no-
call’ list?” Lovern replied that such a case would not be prosecuted.

¶22 In closing arguments for Phase I of the hearing, Andrade’s counsel
argued that the chief’s case did not show that just cause standards one through five
were proven by a preponderance of the evidence, which was the proper legal
standard. Andrade’s counsel argued:

If the issue was the ability to testify, some document, some
reference, either in the investigation or in the Complaint, in
the Charges and Specifications, in the personnel order, it
should say that. Officer Andrade has to be on notice that
that is an issue. That is a clear, fundamental due process
right.

¶23 The Board met in closed session to deliberate and returned with a
unanimous finding that, by a preponderance of the evidence, Andrade violated
MPD’s Code of Conduct on counts one and two. Further, the Board “found, by a
preponderance of the evidence, that the first five just cause standards are satisfied”
for counts one and two. Then the Board moved on to Phase II, in which they
considered the sixth and seventh just cause standards and the “good of the
service.” See WIS. STAT. § 62.50(17)(a).

¶24 In Phase II, Andrade’s counsel called Michael Crivello, an MPD
detective and the president of the Milwaukee Police Association (MPA), whose
testimony focused on comparable discipline, with exhibits showing that MPA
records showed different numbers of officers disciplined for violating the SOP on
social media and discharge for violating Core Value 3.00 on integrity.

¶25 When Andrade’s counsel questioned Crivello about the other
officers involved in the Brown incident and the discipline imposed on them, the
Hearing Examiner sustained the chief’s objection and stated that “[n]one of those

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officers were disciplined for posts—Facebook posts.” The examiner explained
that when you consider different “conduct resulting in discipline,” then you could
consider “the entire discipline history of the police department. I just don’t think
that is what is intended by these comparable type evidence.” The examiner
determined that unless you are considering similar conduct, it is not relevant
because “there can be all sorts of conduct under the rule that is not related to the
type of conduct at issue here and there’s really no end to the number of cases we
can be discussing.” Andrade’s counsel made an offer of proof4 and made a record
that “the Commissioner has ruled the evidence that Officer Andrade believes is
comparable and goes to Just Cause Factor No. 6 will not be allowed to be
discussed or put into evidence.” The examiner confirmed that was correct.

¶26 At the close of deliberation for Phase II, the Board members decided
“unanimously that the discipline of Erik Andrade should be sustained on Count 1
and Count 2, that the good of the service requires Erik Andrade to be suspended
for 30 days without pay and terminated….” The Board stated it would provide a
“written decision as soon as practicable” and waived the “ten-day rule, Fire and
Police Commissioner Rule [XVI] 10(f).”

¶27 The Board issued its written decision on January 4, 2019. It made
findings of fact with regard to Andrade’s problematic Facebook posts, the media
outcry after the Brown arrest became public and Brown filed his civil rights suit
against the City, and the MPD investigation into Andrade. It made legal
conclusions on each of the just cause standards considered under WIS. STAT.
§ 62.50(17)(b). The Board concluded that the chief satisfied all seven standards

4
Five exhibits were labeled and not received as evidence.

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by a preponderance of evidence. It concluded that “the posts and comments
themselves and the public’s reaction to them as described in the record are
sufficient to establish that a reasonable person would expect that the posts and
comments violate” the Code of Conduct. It concluded “that the posts and
comments undermined trust in the department, disrupted the mission of the
department, undermined public confidence, discredited the department, and
created the appearance of impropriety and corruption in the department.”

¶28 On January 9, 2019, Andrade filed a notice of appeal to the
Milwaukee County Circuit Court to review the Board’s decision discharging him,
under WIS. STAT. § 62.50(20)-(22). On March 8, 2019, Andrade filed a petition
for a writ of certiorari, also challenging the Board’s decision. On March 20, 2019,
the parties stipulated to consolidating the two cases. The circuit court affirmed the
decision of the Board in a written decision in November 2019. Andrade appeals
only the certiorari decision because if the Board’s decision is sustained in the
statutory appeal to the circuit court, “the order of discharge, suspension or
reduction shall be final and conclusive in all cases.” WIS. STAT. § 62.50(22).
Additional relevant facts are included below.

DISCUSSION

¶29 Andrade argues that the Board violated his due process rights by
preventing him from putting forth a full defense and by not giving him notice that
his ability to testify for the prosecution in future police cases was an issue.
Andrade contends that the circuit court erred when it refused to apply the doctrine
of judicial estoppel to bar the Board from taking inconsistent positions in its
litigation with him and its litigation with Brown. Finally, Andrade argues the
Board exceeded its jurisdiction and lost competency to issue a written decision.

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¶30 “When reviewing a petition for a writ of certiorari, we review the
Board’s decision, not the decision of the circuit court.” Vidmar v. Milwaukee City
Bd. of Fire Police Comm’rs, 2016 WI App 93, ¶13, 372 Wis. 2d 701, 889 N.W.2d
443. Our “certiorari review is limited to whether the Board kept within its
jurisdiction or applied correct legal theories.” 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. We review these questions of law de novo. Vidmar, 372 Wis. 2d
701, ¶13.

I. Due process

¶31 Andrade argues his right to due process was violated when the Board
refused to allow him to present a full defense to the charges, specifically by
refusing to allow additional comparable discipline evidence. Andrade asserts that
the Board improperly limited his right to present evidence to rebut the chief’s sixth
just cause standard, whether the chief is applying the rule fairly and without
discrimination against the officer. WIS. STAT. § 62.50(17)(b)6.

¶32 Andrade argues that he is entitled to the “full panoply of due process
protections[.]” Sliwinski, 289 Wis. 2d 422, ¶13 (citation omitted). The Board
asserts that the fairness of its application of the just cause standards have been
fully litigated by the nature of Andrade’s statutory appeal before the circuit court;
therefore, any analysis of the sixth standard is not properly before this court. See
WIS. STAT. § 62.50(20). On certiorari review, we may not review whether the
evidence showed just cause for his discharge. It is the circuit court that determines
“the question of fact presented” on statutory appeal, and the circuit court “shall be
limited in the review thereof to the question: ‘Under the evidence is there just
cause, as described in sub. (17)(b), to sustain the charges against the accused?’”

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§ 62.50(21). The circuit court’s review is final. § 62.50(22). Accordingly, we
limit our analysis to whether the Board considered the correct standard of law and
stayed within its jurisdiction.

¶33 The admission of evidence at a disciplinary appeal hearing is vested
in the hearing examiner’s “reasoned discretion[.]” Sliwinski, 289 Wis. 2d 422,
¶15. We will uphold a decision to admit or exclude evidence as long as the
examiner applied the proper standard of law.5 Id. The proper standard of law is
relevance. See id. (citing WIS. STAT. § 904.016). Although there is a superficial
commonality that all of the officers’ records were impacted by Brown’s arrest, the
discipline imposed for the other officers’ conduct during Brown’s arrest was not
relevant to the question of the just cause of disciplining and discharging Andrade
for his social media posts.7 Therefore, the examiner’s decision was reasonable to
exclude evidence of the other officers’ discipline. Andrade’s right to present a full
defense was not unlimited and it did not require the examiner to admit evidence
that was not relevant. We conclude that limiting Andrade to offering relevant
evidence and testimony did not violate Andrade’s right to due process.

5
We note that two Rules of the Board of the Fire and Police Commissioners City of
Milwaukee (FPC Rules) apply to the introduction or evidence and testimony. “Trials are quasi-
judicial proceedings intended to secure the facts in as direct and simple a manner as possible.
Wisconsin Rules of Evidence controlling civil cases will apply, but the Hearing Examiner may
relax the rules of evidence to assure that relevant facts are elicited during the trial.” FPC Rule
XVI § 11(a). “The Board may limit the calling of witnesses or the taking of testimony which
appears to be cumulative or lacking sufficient relevance.” FPC Rule XVI § 10(c).
6
“‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” WIS. STAT. § 904.01.
7
Andrade argues that the officers disciplined for arresting Brown brought more discredit
upon the department; however, this again misses the Hearing Examiner’s point that the Board
cannot consider “the entire discipline history of the police department” or else there is “no end to
the number of cases we can be discussing.”

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¶34 Andrade argues that the comparable discipline evidence that the
examiner denied admission was relevant. He argues that the Board must compare
the “rule” in the charges, not the conduct in the charges. See WIS. STAT.
§ 62.50(17)(b)6. (“Whether the chief is applying the rule or order fairly and
without discrimination against the subordinate.”). Andrade’s statutory
interpretation is not persuasive.8 The statute calls for the Board to review the
chief’s application of the rule. Here, we interpret Andrade to seek to introduce the
discipline of officers who violated Core Value 3.00; however, integrity is a very
broad category. We agree with the examiner’s conclusion that widening the
comparable disciplines could open up comparisons to the entire department if it
were not limited by reasonably related conduct. Further, the Board argues that the
statutes and case law do not require MPD or the Board to apply the same
discipline to every violation of a particular rule, regardless of the severity or nature
of the violation or its collateral consequences.

¶35 Andrade argues that the social media posts were only applicable to
count one for violating Code of Conduct, Core Value 1.00 on competence;
therefore, the Board erred when it relied on those posts as evidence proving count
two. Andrade contends that because the chief acknowledged that but for the DA’s
decision that it would not call Andrade as a witness, Andrade would not have been
discharged for the Facebook posts alone, and the Board was not considering
whether violations of the same rules were receiving fair and consistent discipline.
This argument appears to be based on a misapprehension of the complaint—while

8
“The purpose of statutory interpretation is to determine what the statute means so that it
may be given its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statutory
language is plain, we typically end our inquiry. Id., ¶45.

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it is true that the SOP on social media was referenced in count one, the specific
allegations against Andrade in count two were based on him posting
“inappropriate, disrespectful and defamatory comments to various memes and
videos on his personal Facebook social networking account and shar[ing] them
with his Facebook friends.” There is simply no way to read the complaint that the
charges against Andrade were limited to social media posts in count one and the
ability to testify in count two. The Board properly considered Andrade’s social
media posts when assessing the entirety of Andrade’s conduct alleged for both
counts. We conclude that the Board employed the proper legal standard in its just
cause analysis for discharge for count two.

¶36 Andrade’s second due process argument is that he was not on notice
that his ability to testify was an issue. He asserts that the complaint against him
did not list the ability to testify as a concern related to his continued employment
as a police officer for MPD. The Board argues that Andrade was not charged with
being unable to testify, instead he was charged with violating the Code of Conduct
for integrity, which requires that MPD officers “shall not behave in such a way
that a reasonable person would expect that discredit could be brought upon the
department.” The Board contends that Andrade’s social media posts brought
discredit upon the department and the posts rendered him vulnerable to
impeachment by a defense attorney if he were to serve as a State’s witness. The
Board argues the fact that Andrade has been deemed unusable as a witness in a
criminal case is not an element of the charge against him; it is a consequence of
his failure to inspire and sustain the confidence of the community and the harm he
has done to the department’s mission.

18
No. 2020AP333

¶37 Andrade argues that the statutory process requires the chief to set
forth the reasons for the discharge.9 He asserts that because his perceived inability
to testify was the sole reason for his discharge that should have been contained in
the charging document. The record reflects the critical importance of being able to
serve as a credible witness as a sworn police officer—Chief Morales and Chief
Deputy DA Lovern both discussed it extensively. The chief stated that the ability
“to testify in court is a tool that is needed, no different than a firearm.” He
questioned how an officer who could not use a firearm or who could not testify
“be operational or useful for the Milwaukee Police Department?” Lovern testified
that Andrade’s social media posts would require his office to disclose this
evidence as potentially exculpatory in any case in which he served as a witness,
per Brady and Giglio. Andrade’s argument fails because the record makes clear
that the reason he was discharged was his conduct on social media, conduct that
triggered the DA’s officer to determine that calling Andrade as a witness would
require Brady/Giglio disclosures and that the DA’s office would not call him as
witness.

9
We note that the complaint against Andrade does not list an ability to testify as a charge
against him; however, the record reflects that Andrade had actual notice that an officer’s ability to
serve as a credible witness was a concern far before the hearing. First, in Andrade’s interview
with internal affairs, he was asked to read the subsection of the SOP on social media specifically
stating that “Members must be aware that their communication on social networking sites can be
used by a skilled defense attorney in impeaching testimony and association with their
professional duties as a member of the department.” Andrade’s interview in August 2018
predated the complaint. Second, his counsel requested Lovern produce his Brady/Giglio lists
under a subpoena duces tecum in November 2018 when the parties submitted their exhibit and
witness lists before the December 2018 hearing. Having reviewed the hearing transcripts, we
reject that Andrade was ambushed by the chief’s case against him. Although Andrade disputes
that he had notice, he fails to explain why he would request the Brady disclosure list if he was
unaware that it was a concern.

19
No. 2020AP333

¶38 Andrade focuses on a perceived unfairness in the proceedings that he
was not charged with being unable to testify. He argues that neither Core Value
1.00 nor 3.00 pertained to his ability to testify and internal affairs did not
investigate his ability to testify. However, the Board’s reasoning in its written
decision showed that it relied upon the theory of law within the Code of Conduct,
Core Value 3.00 for integrity, in its analysis of count two. The Board concluded
that Andrade’s posts “managed to repeat every negative stereotype plaguing big
city police departments, i.e., racism, use of excessive force, disregard for ethnic
sensitivities, distrust of the public, and incurring excessive overtime.” The Board
concluded “that the posts and comments undermined trust in the department,
disrupted the mission of the department, undermined public confidence,
discredited the department, and created the appearance of impropriety and
corruption in the department.” Further, the Board concluded that discharge was a
“drastic consequence of Andrade’s conduct” but that discharge “underscores the
seriousness of the offense.”

¶39 As the record reflects, the Board heard substantial testimony that the
ability of a police officer to testify is critical. As we explained in another
discharge appeal, “[i]f an officer’s capacity to work in the field, which includes
giving credible testimony in court, has been permanently compromised … then his
ability to engage in the full spectrum of the responsibilities of a police officer has
also been compromised.” Vidmar, 372 Wis. 2d 701, ¶20. Andrade’s conduct
undermined the confidence in the community with regard to his credibility as a
witness and discredited the department. We conclude that the Board proceeded on
a correct theory of law in concluding that Andrade violated count two for Core
Value 3.00.

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No. 2020AP333

II. Judicial estoppel

¶40 Andrade argues that the circuit court erred when it declined to apply
the doctrine of judicial estoppel in his statutory and certiorari appeal because the
Board has asserted inconsistent positions in litigation with Brown and with him.
“Judicial estoppel is an equitable doctrine, generally applied by circuit courts, that
‘precludes a party from asserting a position in a legal proceeding and then
subsequently asserting an inconsistent position.’” Salveson v. Douglas Cnty.,
2001 WI 100, ¶37, 245 Wis. 2d 497, 630 N.W.2d 182 (citation omitted). There
are three elements required to “invoke the doctrine of judicial estoppel: (1) the
later position must be clearly inconsistent with the earlier position; (2) the facts at
issue should be the same in both cases; and (3) the party to be estopped must have
convinced the first court to adopt its position.” Id., ¶38.

¶41 Andrade contends that the first element of judicial estoppel is
satisfied because the Board took inconsistent positions in the two cases as
evidenced by its claim in this case that the Facebook posts about excessive
overtime and force amounted to “bragging” and “making fun” of the situation,
which Andrade claims is not what was stated in the City’s answer in Brown’s civil
suit in federal court.10 Andrade claims that the second element is satisfied because
the Facebook posts that were considered racist and inappropriate were used in both
cases. Finally, Andrade argues the third element was satisfied because the City
convinced the Board that the Facebook posts were racist and inappropriate.

10
We note that Andrade’s suit is against the Board and Brown’s suit is against the City
of Milwaukee and several officers within MPD. For the sake of this argument we will accept
without deciding that the Board and the City are sufficiently the same entity to consider judicial
estoppel; however, Andrade has not established this as a fact.

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No. 2020AP333

Ultimately, Andrade claims that by taking a contradictory position in the earlier
case with Brown, the Board estopped itself from making the argument that his
Facebook posts were racist and inappropriate in this case

¶42 Conversely, the Board argues judicial estoppel would not apply
because its positions are not inconsistent between the two cases. For the first
element of judicial estoppel, the Board asserts that in both cases the Board and the
City maintained that Andrade’s social media posts were racist and inappropriate,
so its argument was not inconsistent. For the second element, the Board argues
that the issues in each case were “radically different.” The Board maintains that
Brown’s case involved a question of whether his arrest was racially motivated, and
the question in this case was about whether Andrade’s social media posts violated
MPD’s Code of Conduct. For the third element, the Board argues that because
Brown’s federal lawsuit against the City and the MPD officers had not concluded
by the time Andrade’s disciplinary hearing occurred, the federal court could not
have been convinced of the City’s position. The Board contends it has maintained
a consistent position on Andrade’s Facebook posts; therefore, the doctrine of
judicial estoppel should not be applied to this case.

¶43 Judicial estoppel’s primary purpose is to ensure that parties do not
play “fast and loose with the judicial system.” State v. Fleming, 181 Wis. 2d 546,
557, 510 N.W.2d 837 (Ct. App. 1993) (citations omitted). Reviewing the first
element, Andrade relied on the City’s answer to Brown’s federal lawsuit, in which
Andrade’s Facebook posts were alleged to show that Andrade mocked Brown,
shared racist memes, celebrated overtime pay and use of force, and as admissions
that he and the other defendant officers “were allowed to engage in unlawful
attacks and arrests of African Americans without justification and then relish such
events without any fear of discipline.” The City denied these allegations (or

22
No. 2020AP333

objected that they were legal conclusions) and asserted that the Facebook postings
speak for themselves. The City’s answers that the Facebook posts speak for
themselves is not a denial that they were inappropriate.

¶44 Although the first element is unlikely to be satisfied, our review of
the second element shows that the “facts at issue” are not the same. This case is
about Andrade’s social media postings that undermined confidence in MPD and in
his integrity and Brown’s case is about MPD and the officers who allegedly
violated Brown’s rights during his arrest. The third element is also not satisfied
because the City had not convinced the federal court to adopt its position by the
time this case was decided by the Board.11 Ultimately, Andrade has not provided
sufficient evidence that the Board’s actions in each case satisfy the necessary
elements of judicial estoppel. We reject Andrade’s claim that the circuit court
erred when it denied his claim of judicial estoppel.

III. Jurisdictional defect in written decision

¶45 Finally, Andrade argues that the Board acted outside of its
jurisdiction because it lacked competency to issue a written decision. Andrade
asserts that the rules require the Board to issue a written decision within ten days.
Under the Rules of the Board of the Fire and Police Commissioners City of
Milwaukee (FPC Rules), “A written decision will be signed by Board members
who participated in the decision within ten (10) days after such decision is

11
Andrade argues that this element is satisfied because the Board adopted the chief’s
position that the Facebook posts were racist and inappropriate. As the doctrine requires a litigant
to maintain the same position it had in a prior suit, we are uncertain why Andrade argues that
convincing the Board satisfied this element. He makes no argument about the City convincing
the federal court of its position.

23
No. 2020AP333

rendered and will be forwarded to each of the parties.” FPC Rules XVI § 10(f).
Andrade’s hearing was completed on December 19, 2018, and the Board’s written
decision was issued January 4, 2019, which equals sixteen days.

¶46 Andrade argues that the Board, as an administrative agency is bound
by the rules it enacts and cannot proceed without regard to them. See Wisconsin
DOR v. Hogan, 198 Wis. 2d 792, 816, 543 N.W.2d 825 (Ct. App. 1995)
(explaining that administrative agencies “have only such powers as are expressly
granted to them by the legislature, or as may be necessarily implied from the
applicable statutes.”). However, whether a time limit is mandatory or directory is
a question of law that we review independently. Koenig v. Pierce Cnty. Dep’t of
Hum.. Servs., 2016 WI App 23, ¶39, 367 Wis. 2d 633, 877 N.W.2d 632. Unless
there is a mandatory time limit, an administrative agency’s “‘delay in issuing a
decision is not reversible error’ on due process grounds.” Id.

¶47 The Board argues that even if we assumed that it was tardy in
issuing its decision, the deadline was directory and did not affect its competency
or jurisdiction.

The neglect of the commission to act within the ten days
may furnish occasion for complaint, but as a rule a statute
prescribing the time within which public officers are
required to perform an official act is merely directory,
unless it denies the exercise of power after such time, or the
nature of the act, or the statutory language, shows that the
time was intended to be a limitation.

State v. Industrial Comm’n, 233 Wis. 461, 466, 289 N.W. 769 (1940). The
deadline here is not by statute and there is no language in the statute or in the FPC
rules that shows that the Board loses jurisdiction over a disciplinary appeal if its
written decision is delayed.

24
No. 2020AP333

¶48 Andrade argues that the Board’s unlawful delay in issuing a written
decision injured Andrade by delaying his ability to recoup his job and clear his
name. Andrade contends that because the Board’s delay injured Andrade, the ten
day deadline must be considered mandatory. See Karow v. Milwaukee Cnty. Civ..
Serv. Comm’n, 82 Wis. 2d 565, 572, 263 N.W.2d 214 (1978) (“But where the
failure to act within the statutory time limit does work an injury or wrong, this
court has construed the time limit as mandatory.”). In Karow, the statute set a
three-week time limit to hold a disciplinary hearing and the administrative agency
promulgated a rule that allowed them to delay the hearing for good cause. Id. at
569. Our supreme court concluded that the statutory deadline was mandatory
because the appellant was injured. Id. at 572. Karow is distinguishable for two
reasons. First, in contrast to Karow’s situation, the statute governing Andrade’s
discharge requires a written decision, but it does not set a deadline. See WIS.
STAT. § 62.50(17)(a). Second, Karow petitioned for reinstatement when his pay
was suspended during the delay of his disciplinary hearing—the claims against
him had not yet been adjudicated by the administrative agency, much less decided.
In contrast, Andrade had a hearing and he knew at the end of the hearing on
December 19, 2018, that the Board had upheld his discharge. Karow’s injury was
not being paid while he was awaiting resolution, Andrade’s only injury here is a
delay in being able to file an appeal.

¶49 Additionally, the statutory construction of timed deadlines would
exclude weekends and holidays from the ten day deadline.12 See WIS. STAT.
12
Andrade argues that we should consider the rule to set a ten calendar day requirement
and rejects that Board’s contention that counting business days would be appropriate. Andrade
does not explain why the statute on time in civil actions would not apply in the absence of express
direction. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (explaining
we do not develop argument for parties).

25
No. 2020AP333

§ 801.15 (“When the period of time prescribed or allowed is less than 11 days,
Saturdays, Sundays and holidays shall be excluded in the computation.”). The
hearing concluded on December 19, 2018. Two holidays were observed between
the date the hearing concluded and the date the Board issued its decision, such that
the Board produced its written report within ten days. In any case, we conclude
that the Board has not acted outside of its jurisdiction and it did not lose
competency to issue a written decision.

CONCLUSION

¶50 We conclude that the Board’s decision to discharge Andrade for
violating the department’s Code of Conduct complied with the proper standard of
law. We conclude that judicial estoppel is unwarranted. We also conclude that
the Board maintained competency to issue its written decision. For these reasons,
we affirm the circuit court.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

26
No. 2020AP333(D)

No. 2020AP333(D)

¶51 DUGAN, J. (dissenting). Because I believe that Andrade did not
receive his full panoply of due process protections—here, an explanation of the
Chief’s evidence relating to his discharge—I respectfully dissent.1

STANDARD OF REVIEW

¶52 “In general, the scope of our certiorari review is limited to whether
the Commission (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 it made based on the evidence.” Umhoefer v. Police &
Fire Comm’n of Mequon, 2002 WI App 217, ¶12, 257 Wis. 2d 539, 652 N.W.2d

1
As explained below, I disagree with the Majority’s conclusion that the fact that the
Chief and the Chief Deputy District Attorney both testified extensively at the hearing about the
critical importance of being able to serve as a credible witness as a sworn police officer fulfills
Andrade’s due process rights. The due process issue in this case is not what occurred during the
hearing, but rather, whether Andrade received his full panoply of pretermination due process
rights—here “an explanation of the [Chief’s] evidence.” See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 539-41, 546 (1985). As further explained herein, I am also
unpersuaded that Andrade’s recitation of the SOP on social media during the investigation and his
counsel’s request for production of a Brady/Giglio list is sufficient to conclude that Andrade was
on notice of the role his ability to testify played in his case. Therefore, I respectfully dissent.

I note that, with respect to other issues on appeal, I agree with the Majority’s conclusions
that: (1) the hearing officer reasonably ruled that discipline of officers for their conduct involved
in the arrest of Sterling Brown, which did not involve the use of social media, was not relevant to
Andrade’s discipline for his conduct which involved his social media postings; (2) that judicial
estoppel does not apply in this case; and (3) that assuming, without deciding, that even if the
Board’s written decision was untimely under its rules, the ten-day rule is directory—not
mandatory.
No. 2020AP333(D)

412.2 “However, when the trial court has disposed of a [WIS. STAT.] § 62.13(5)
direct appeal, our certiorari review is further limited to whether the Commission
kept within its jurisdiction and whether it proceeded on a correct theory of law.
These are questions of law that we review de novo.” Id. (footnote omitted;
citation omitted).

¶53 As relevant to this dissent, Andrade contends that the Chief violated
his due process rights by not providing him an explanation of the evidence that
supported his discharge—namely, that the sole reason that he was being
discharged was that the Chief Deputy District Attorney, Kent Lovern, said that
Andrade could no longer be called as a witness in any criminal case because of his
conduct. I construe Andrade’s certiorari argument as addressing whether or not
the Board proceeded on a correct theory of law. See State ex rel. Wasilewski v.
Board of Sch. Dirs. of Milwaukee, 14 Wis. 2d 243, 263, 111 N.W.2d 198 (1961)
(explaining that the rule that the scope of review in certiorari extends to whether
the board acted “according to law” refers not only to applicable statutes, but also
to guarantees of due process).

DISCUSSION

¶54 As noted, the issue of whether Andrade received the full panoply of
due process protections is what this dissent will discuss. Addressing what process
is due in the case of a person who has a constitutionally protected property

2
I note that Andrade initially appealed his discharge on a writ of certiorari and under
WIS. STAT. § 62.13(5)(i). However, the trial court’s determination on the statutory review is final
and conclusive, and we, therefore, “have no jurisdiction to review that determination.”
Umhoefer v. Police & Fire Comm’n of Mequon, 2002 WI App 217, ¶12, 257 Wis. 2d 539, 652
N.W.2d 412 (citation and one set of parenthesis omitted).

2
No. 2020AP333(D)

interest,3 the United States Supreme Court, in Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985), stated that “[t]he tenured public employee is
entitled to oral or written notice of the charges against him, an explanation of the
employer’s evidence, and an opportunity to present his [or her] side of the story.”
Id. at 539-41, 546 (emphasis added); see also Hough v. Dane Cnty., 157 Wis. 2d
32, 43, 458 N.W.2d 543 (Ct. App. 1990) (citing Loudermill, 479 U.S. at 532, 546,
the court stated, “Because he had a property interest in continued employment,
Hough could not be terminated without (1) oral or written notice of the charges
against him, (2) an explanation of the evidence supporting the charges, and (3) an
opportunity to respond to the charges.”) (emphasis added)).

¶55 Andrade argues that it was never explained to him that his discharge
was based solely on the fact that the Chief Deputy District Attorney stated that
Andrade could no longer be called as a witness and that the DA’s office would not
prosecute any crimes where Andrade would need to be called as a witness. In
other words, that fact was never mentioned, let alone explained to him, when he
was given an explanation of the evidence supporting the charges against him.

¶56 As the Majority points out, there is no dispute that the sole reason
that the Chief discharged Andrade was because of the Chief Deputy District
Attorney’s statement that Andrade could no longer be called by the DA’s office as
a witness. Majority, ¶¶12, 17. In his opening statement at the hearing, the Chief’s
counsel stated that there would be no dispute that the Chief Deputy District
Attorney was asked by the Chief’s office if there was an issue with Andrade

3
It is undisputed in this case that Andrade had a constitutionally protected interest in his
continued employment.

3
No. 2020AP333(D)

testifying as a witness in light of his postings. Id., ¶12. He then stated that the
Chief Deputy District Attorney said that the posts would make it impossible for
the DA’s office to use Andrade as a witness. Id. The Majority points out that the
Chief’s counsel continued to state that the posts were problematic, but the
“lynchpin on which the discharge rested was [Andrade’s] inability to serve as a
witness in criminal cases[.]” Id., ¶13.

¶57 As the Majority notes, the Chief’s own testimony clearly shows that
the only reason that he discharged Andrade—as compared to disciplining him—
was because the Chief Deputy District Attorney said the DA’s office could no
longer use him as a witness in criminal cases. Id., ¶17. The Chief further testified
that without the witness issue Andrade’s conduct involving the postings was still
“discipline-worthy conduct … [i]t would [have] imposed heavy discipline.” But,
he added, “I would not have fired him had it not been for his inability to testify in
court or be used by the district attorney’s office to testify in court.” Moreover, in
its decision the Board found that

[the Chief] solicited the opinion of the Milwaukee District
Attorney’s Office whether Andrade could remain a witness
in state criminal cases. The DA’s Office informed him it
would not permit Andrade to testify because of his
Facebook posts and comments. The Chief’s decision to
discharge Andrade was based on the DA’s position that
Andrade could not testify credibly and, therefore, would
not be permitted to testify.

The Board also found that “[t]he Chief learned from colleagues across the country
that the story of the posts was receiving national media coverage ….
Nevertheless, the Chief would not have discharged Andrade for his posts and
comments; instead, he would have imposed a lesser discipline.”

4
No. 2020AP333(D)

¶58 Clearly, the record shows that, but for the allegation that Andrade
could not testify in criminal cases, the Chief would not have fired him.

¶59 The issue then becomes whether the Chief gave Andrade “an
explanation of the employer’s evidence.” See Laudermill, 470 U.S. at 546.
Andrade asserts that no document referenced Andrade’s alleged inability to testify
as having anything to do with his discharge prior to the termination hearing. The
record reflects that neither the thirteen page “Charges” document, nor the five
page “Complaint,” make any mention of his alleged inability to testify.

¶60 The testimony of Lieutenant David Feldmeier explains why there is
no reference to Andrade’s alleged inability to testify in any of those documents.
He testified that the issue of Andrade’s ability to testify was not something the
Internal Affairs Division looked into at the time of its investigation of Andrade’s
conduct. He stated that “[i]t was not something that we specifically looked at, no.
That was something that was brought in as a consideration by the Chief’s office as
to the discipline” after the investigation file was moved over to the Chief’s office.
Therefore, the issue of Andrade’s ability to testify was not a part of the Internal
Affairs Division’s investigation, which included the notice and explanation of
charges and interviews with Andrade.

¶61 The Board does not refute these facts. Rather, the Board argues that
Andrade conflates a consequence for violation of a department rule—that he
cannot be called as a witness—with notice of the violation itself. The Board
contends that not being deemed usable as a witness is not an element of the charge
for which Andrade requires notice and it is only a consequence of the violation of
the rules. However, the Board then states that Andrade “ignores the actual
complaint filed with the Board and the fact that Andrade could not be called as a

5
No. 2020AP333(D)

witness by the DA is itself evidence of a failure to inspire and sustain that
confidence.” (Emphasis added.)

¶62 The Board is correct that the fact that Andrade allegedly could not
be called as a witness is not an element that the Chief was required to prove in
order to show that Andrade violated the rule, but rather, it is evidence regarding
the issue of whether his conduct violated the rule that an officer’s conduct must
inspire and sustain the confidence of the community. What the Board ignores is,
as noted above, that due process requires that the Chief had to give Andrade not
only “notice of the charges against him,” but also “an explanation of the [Chief’s]
evidence.” See Laudermill, 470 U.S. at 546. Andrade acknowledges that he was
given notice of the rules that he is alleged to have violated. However, his
argument is that the Chief did not mention, let alone give him, an explanation of
the evidence that proved he violated those rules. Here, that evidence was that the
Chief Deputy District Attorney said that the posts would make it impossible for
the DA’s office to use Andrade as a witness, and that fact demonstrates that
Andrade’s conduct failed to inspire and sustain confidence under the rule.

¶63 The record reflects that the Chief identified and explained detailed
evidence that supported the charges against Andrade throughout the investigation.
The thirteen-page “Charges” document set forth the numerous allegations in a
civil action that Sterling Brown filed against various defendants, including
Andrade. The document extensively details the nature of numerous postings on
Facebook that Brown alleged Andrade posted. The Charges document also sets
forth Andrade’s responses to the various postings. However, there is no mention
in that document of Andrade’s ability to be called as a witness. By contrast to the
detailed investigation, and identification, and explanation of the evidence
regarding the details of the postings, the Internal Affairs Division’s investigation
6
No. 2020AP333(D)

of Andrade did not consider his ability to be called as a witness. The fact that
evidence of Andrade’s ability to be called as a witness was being considered as a
part of the charges against him, let alone that fact that it was the sole basis for his
discharge, was never explained to him until the hearing itself.

¶64 The Board next argues that Laudermill only requires notice and
opportunity to be heard. It never mentions anywhere in its brief that Laudermill
holds that the “employee is entitled to … an explanation of the employer’s
evidence[.]” See Laudermill, 470 U.S. at 546. The Board’s arguments on this
point are supported only by general statements, and the Board provides no legal
support for its argument that Laudermill only requires notice and opportunity to
be heard. Because the arguments are undeveloped and lack any legal authority,
we do not address them. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d
633 (Ct. App. 1992).

¶65 Lastly, the Board argues that Andrade was given ample notice that
his ability to testify would be an issue at his hearing. It notes that the Chief and
the Chief Deputy District Attorney who testified regarding Andrade’s alleged
inability to be called as a witness were disclosed on the Chief’s witness list well in
advance of the hearing. It also states that an exhibit that was introduced at the
hearing, “which Andrade’s council demanded and received prior to the hearing,
was the District Attorney’s list of current and former police officers determined by
the DA to be … officers for whom the DA would have an obligation to turn over
[exculpatory] information during discovery.” It further states that “[t]he list also
included comments about several individuals for whom the information was so
damaging that the office would no longer call them.” The Board asserts that this
shows that Andrade had actual notice that the Chief’s decision was based on the

7
No. 2020AP333(D)

Chief Deputy District Attorney’s statement that Andrade could not be called as a
witness in the future.4

¶66 What the Board does not disclose is that the list of witnesses consists
merely of the names of the witnesses and does not mention what the witness may
testify about. As to the DA’s list of officers described above, Andrade’s counsel
subpoenaed that list from the Chief Deputy District Attorney the day before he
was called to testify by the Chief. The Chief did not voluntarily disclose the list, it
was not disclosed until the day before the Chief Deputy District Attorney was
going to testify as the Chief’s witness, and the Chief never gave Andrade an
explanation of the list. I conclude that these facts do not constitute compliance
with the due process requirement that the “employee is entitled to … an
explanation of the employer’s evidence[.]” See Laudermill, 470 U.S. at 546.

¶67 Because I believe that Andrade did not receive his full panoply of
due process protections—here, an explanation of the Chief’s evidence relating to
his discharge—I respectfully dissent.

CONCLUSION

¶68 I conclude that under the facts of this case, Andrade’s due process
rights required an explanation by the Chief of his evidence that supported his
decision to discharge Andrade. Here, that evidence was that the Chief’s decision
to discharge Andrade was solely based on the Chief Deputy District Attorney’s
statement that because of Andrade’s posting, Andrade could not be called as a
witness in criminal trials in the future, that the Chief believed that a sworn

4
The Majority was persuaded by this argument. Majority, ¶37 n.9.

8
No. 2020AP333(D)

officer’s ability to be called as a credible witness in criminal trials is critical to the
officer’s duties, and evidence that Andrade could not be called as a witness was
evidence of Andrade’s failure to inspire and sustain confidence. The record
clearly shows that the Chief never mentioned, let alone explained, that evidence to
Andrade prior to the hearing.

¶69 Thus, I would conclude that the Board’s decision should be vacated
and the matter be remanded to the Board for further proceedings, consistent with
this dissent.

9
No. 2020AP333(D)