Brian Young 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.
July 7, 2020
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. 2019AP1095-CR Cir. Ct. Nos. 2018CV1190
2018CV1191
2018CV1433

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

BRIAN YOUNG AND BRADLEY JOHNSON,

PETITIONERS-APPELLANTS,

V.

CITY OF MILWAUKEE BOARD OF FIRE AND
POLICE COMMISSIONERS,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM SOSNAY, Judge. Affirmed.

Before Blanchard, Dugan and Donald, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1095-CR

¶1 PER CURIAM. Milwaukee Police Department officers Brian
Young and Bradley Johnson (“the officers”) appeal a circuit court certiorari
review order affirming a decision of the City of Milwaukee Board of Fire and
Police Commissioners (“the Board”). In a combined disciplinary proceeding for
the two officers, the Board upheld their suspensions for fifteen working days
without pay. The Board determined that then Department Chief Edward Flynn
had just cause to impose this discipline based on a fair and objective investigation
showing that the officers had violated the Department’s “citizen contact protocol”
after they stopped a pedestrian. The officers contend that the Board: (1) violated
their rights to due process, because the officers did not receive timely or adequate
notice of the charge against them and because the charge against them is
unconstitutionally vague; (2) exceeded its jurisdiction by issuing a written decision
more than ten days after the hearing, contrary to a Board rule; and (3) erroneously
rejected their argument that the discipline is barred by a doctrine of “employment
double jeopardy.”1 We disagree and affirm.

BACKGROUND

¶2 The following is a brief summary of the Board’s findings of fact
regarding key events on the evening of April 20, 2016, aspects of which were
recorded on Officer Johnson’s body camera. The officers were in uniform and

1
Without reaching the underlying merits, we summarily reject one additional argument
that the officers attempt to make. In a discussion that is confusing in several respects, they appear
to argue that the circuit court misapplied review standards in addressing the Board’s
determinations. As the Board correctly points out, we review only the Board’s decision; the
officers cannot challenge the circuit court decision. See Vidmar v. Milwaukee City Bd. of Fire
Police Comm’rs, 2016 WI App 93, ¶13, 372 Wis. 2d 701, 889 N.W.2d 443. If the officers intend
to make any coherent legal argument not resolved by Vidmar, we reject it as undeveloped. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals need
not address undeveloped arguments).

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No. 2019AP1095-CR

assigned to patrol violent crime areas in an unmarked vehicle. Officers saw an
African American man, J.B., walking toward the officers on West Concordia
Avenue at around North Ninth Street.2 When the officers saw him walking, J.B.
was about seven feet from the curb. The officers drove up to J.B., who was by
then standing in the road near a curb.

¶3 An officer directed J.B. to “come here” and “step forward;” J.B. said
“don’t touch me” and “for what?” Approximately eleven seconds after the
officers opened their car doors to make contact with J.B., they placed their hands
on him and tried to push his hands behind his back. However, J.B. kept his arms
stiff as the officers continued to try to pin his arms behind his back. An officer
asked if J.B. had “weed” (marijuana) or a gun, and J.B. denied possession of
either.

¶4 While Officer Young had a hand on J.B.’s shoulder, Officer Johnson
pointed a Taser at J.B. Officer Johnson yelled, “Get on your knees now, get on
your fucking knees,” and, seconds later, “Get on your knees now or I’m going to
tase your ass,” followed by, “Get down, get down on your fucking knees.” The
officers told J.B. to sit on the curb. J.B. refused. J.B. said that he had not done
“shit.”

¶5 Approximately thirty-three seconds after making direct contact with
J.B., one officer told him that, in the words of the findings, “his offense is standing

2
We use initials to identify this person, who is not a party to this litigation and has not to
our knowledge invited public attention in any way.

3
No. 2019AP1095-CR

in the roadway.”3 An officer told J.B. to sit on the curb. Eight seconds later,
Officer Johnson told J.B. that he would be tased if he did not sit down, and J.B.
again responded that he had done nothing wrong.

¶6 Within seconds, officers began to struggle with J.B. in an attempt to
take him to the ground. This struggle lasted for approximately eighteen seconds
but did not result in J.B. going to the ground.

¶7 Officer Johnson again pointed the Taser at J.B. and yelled, “Get on
the fucking ground.” J.B. refused to get on the ground and argued with the
officers. The officers tried again to take him to the ground and this time
succeeded. Approximately two minutes and twenty-eight seconds after getting out
of their car, the officers handcuffed J.B., marking the end of the pertinent events of
the officers’ encounter with J.B.

¶8 In April 2017, Chief Flynn found that the officers in this incident
failed to follow the Department’s “citizen contact protocol.” More specifically,
Chief Flynn determined that, by failing to adhere to Department policy on citizen
contacts, the officers had violated the Department’s Code of Conduct under Core
Value 1.00 - Competence, which holds officers accountable for the quality of their
performance, and Guiding Principle 1.05, which requires officers to be familiar
with and abide by Department policies, procedures, and training.4 The citizen

3
It is not necessarily a law violation to stand in a roadway. However, WIS. STAT.
§ 346.29(2) (2017-18), provides: “No person shall stand or loiter on any roadway other than in a
safety zone if such act interferes with the lawful movement of traffic.”

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
4
Core Value 1.00 – Competence states:

(continued)

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No. 2019AP1095-CR

contact protocol at issue is described in subparts 1. and 2. of § 085.10.A. in the
Department’s Standard Operating Procedure.5

¶9 The Board issued a written decision following a hearing held over
the course of two days in December 2017. Ten witnesses testified before the
hearing examiner, including both officers. The Board detailed its findings of fact,

We are prudent stewards of the public’s grant of authority and
resources. We are accountable for the quality of our
performance and the standards of our conduct. We are
exemplary leaders and exemplary followers.

Guiding Principle 1.05 states, “All department members shall be familiar with department policy,
procedures and training and shall conduct themselves accordingly.”
5
Section 085.10.A. INTRODUCTION provides in pertinent part:

1. To the extent that safety considerations allow, police
members will introduce themselves to all citizens they make
contact with. A proper introduction will establish the
identity of the police member, the authority of the police
member, and the context surrounding the initiation of the
contact. This provides the platform for the lawful actions or
requests made by the police member during the contact.
Introductions should be formulated so that they provide:

a. The police member’s name.

b. The police member’s rank or title.

c. The police member’s affiliation with the Milwaukee
Police Department.

d. The reason for the contact or stop.

2. The introduction shall occur as early in the contact as safety
permits and will be given prior to the police member’s
request for identification or license and registration
information from the citizen being contacted.

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No. 2019AP1095-CR

explained its analysis of each of the seven “just cause” standards set forth in WIS.
STAT. § 62.50(17), and concluded that these standards “are satisfied.”6

¶10 The Board’s reasoning included the following. The officers “could
reasonably be expected to know that unnecessarily escalating a pedestrian stop
into an arrest requiring force and the drawing of a Taser would have an adverse
effect on the person stopped and the public’s perception of the department.” The
Board also determined that the officers failed “to even attempt to follow the

6
WISCONSIN STAT. § 62.50, which applies to police and fire departments of “first class
cities” such as Milwaukee, provides in subpart (17), as pertinent here:

(b) No police officer may be suspended … based on
charges filed by the … chief … unless the board determines
whether there is just cause, as described in this paragraph, to
sustain the charges. In making its determination, the board shall
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.

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.

6
No. 2019AP1095-CR

contact protocol,” which “resulted in turning a pedestrian stop into an incident
involving use of force, inappropriate language, and a Taser.” The Board
acknowledged that Chief Flynn had “considered the officers’ records of service
and found them to be positive.” However, the Board concluded that the “harm
done” by the officers in violating the citizen contact protocol “was great” and that
“there was no reasonable suspicion to justify the tactics employed.”

¶11 The officers challenged the disciplinary decisions in circuit court, as
they are permitted to do, through their simultaneously filed appeals based on
common law certiorari appeal and WIS. STAT. § 62.50. See State ex rel. Heil v.
Green Bay Police and Fire Comm’n, 2002 WI App 228, ¶¶7-12, 256 Wis. 2d
1008, 652 N.W.2d 118 (discussing the two avenues available to appeal police and
fire commission decisions). In a written decision addressing both the certiorari
appeal and the statutory appeal, the circuit court affirmed the Board’s decision,
determining that “the Board kept within its jurisdiction, proceeded on a correct
theory of law, and satisfied ‘just cause’ in its decision[.]” The officers appeal.7

DISCUSSION

¶12 We address in turn the officers’ due process and jurisdictional
challenges and their argument that the Board decision violates “employment
double jeopardy.”

¶13 Our review is limited to two issues only: “whether the [Board] kept
within its jurisdiction and whether it proceeded on … correct theor[ies] of the

7
The officers present a single set of arguments on appeal, are represented by the same
attorney, and were charged with participating together in the incident that gave rise to discipline.
Neither party now suggests that any issue is individual to either officer.

7
No. 2019AP1095-CR

law.” See Herek v. Police & Fire Comm’n Vill. of Menomonee Falls, 226
Wis. 2d 504, 510, 595 N.W.2d 113 (Ct. App. 1999). This is because under WIS.
STAT. § 62.50(22), a board decision on a statutory appeal under § 62.50 is “final
and conclusive” once sustained by the circuit court and, therefore, no portion of
the officers’ statutory appeal is before us. See Gentilli v. Board of Police and
Fire Comm’rs of Madison, 2004 WI 60, ¶14, 272 Wis. 2d 1, 680 N.W.2d 335. As
to the circuit court’s denial of the writ of certiorari, because issues “pertaining to
the reasonableness of the [Board’s] actions and the sufficiency of evidence to
support the [Board’s] actions” were resolved by the statutory appeals in circuit
court, the officers may raise only the two issues of jurisdiction and correct theories
of law. See Herek, 226 Wis. 2d at 510. These are questions of law that we review
de novo. Id.

I. DUE PROCESS

¶14 The officers make two due process arguments. First, they contend
that the Board proceeded based on an incorrect theory of law regarding what was
required in the way of pre-discipline notice to the officers regarding the nature of
the charge. The Board’s incorrect theory, according to the officers, was that the
Board could sustain the discipline based on different charges than the one relied on
by Chief Flynn in imposing discipline, and which the officers had notice of:
alleged violations of the citizen contact protocol. Second, the officers contend that
the set of rules on which they were disciplined are unconstitutionally vague.

8
No. 2019AP1095-CR

A. Notice

¶15 The parties agree that the due process clause entitled the officers to
pre-discipline notice of the charges against them, an explanation of the
Department’s evidence, and an opportunity to present their sides of the story.8
The parties further agree that the only charge against the officers lodged by Chief
Flynn that was properly before the Board was their alleged failures to follow the
citizen contact protocol quoted above in note five of this opinion. They also agree
that the officers were given notice of this failure-to-follow-contact-protocol
charge, an explanation of the Department’s evidence on that charge, and an
opportunity to present their sides of the story as to that charge. Further, the Board
does not dispute that it would violate the officers’ right to notice if the Board’s
decision was actually predicated on different charges.

¶16 The only dispute is whether, as the Board contends, the Board
affirmed the discipline based on the failure-to-follow-contact-protocol charge or,
as the officers contend, the Board affirmed the discipline based on determinations
that the officers did one or more of the following: conducted an illegal stop, failed
to exercise restraint, or failed to act in a courteous, lawful, and professional
manner. However, the officers fail to support this argument with pertinent record
references and we agree with the Board that the record supports its position that it
affirmed the discipline based on the failure-to-follow-contact-protocol charge.

8
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539-41, 546-48 (1985) (when
a member of classified civil service may be disciplined only for cause under state law, the
employee possesses a property right in continued employment that cannot be taken away except
pursuant to constitutionally adequate procedures; a tenured public employee is entitled to oral or
written notice of charges, an explanation of the employer’s evidence, and an opportunity to
present his or her side of story; all process that is due is provided by pretermination opportunity
to respond, coupled with post-termination administrative procedures).

9
No. 2019AP1095-CR

¶17 In its written decision the Board clearly and repeatedly makes the
failure-to-follow-contact-protocol issue its focus. The officers seize on a
contextual reference made in the Board’s decision, attempting to suggest that it
represents a different charge, but the officers’ interpretation is not reasonable. The
officers point to a reference in the Board’s decision to a statement of Chief Flynn
that “restraint is a core value of the department, that is, to use only the force
necessary to fulfill the purpose of the task.” However, the citizen contact protocol,
quoted in note five above, explains that providing name, rank, affiliation, and the
reason for the contact or stop, “as early in the contact as safety permits,” “provides
the platform for the lawful actions or requests made by the police member during
the contact.” The Board determined that the officers pulled up in an unmarked
car, aggressively confronted J.B., and quickly put their hands on him, all without
clearly identifying themselves and for reasons not explained to J.B., without a
safety justification for doing so. This conduct violated the policy goal expressed
in the citizen contact protocol (“provides the platform for … lawful actions or
requests”) in a manner that demonstrated a lack of restraint. There was not a
separate charge of lack of restraint. Many terms could have reasonably been used
by the Department and the Board to characterize problems with this particular
violation of the citizen contact protocol; lack of restraint is one apt
characterization.

¶18 Separately, the officers inaccurately state that “the Board concluded
in its written decision that the Officers conducted an illegal stop.” To the contrary,
the Board stated, “The low level violation that occasioned the stop did not justify
the officers’ reaction as if it were a felony stop.” (Emphasis added.)

¶19 Otherwise, the officers merely cite to various arguments and
references by counsel for then Chief Flynn that the officers assert were not

10
No. 2019AP1095-CR

directed at the failure-to-follow-contact-protocol issue. But this strays from the
issue here, which as the Board points out is whether the Board itself deprived the
officers of their pre-discipline due process rights. It does not matter whether an
advocate for the Chief might have made references or arguments that diverged
from the sole charge that was properly before the Board.9

¶20 The officers fail to show that the Board proceeded based on an
incorrect theory of law regarding notice.

B. Vagueness

¶21 The officers appear to intend to make a two-part constitutional
vagueness argument, although neither part is well developed. First, they assert
that Core Value 1.00 and Guiding Principle 1.05 (both quoted above in note four)
are “extremely vague and overbroad,” and the officers appear to intend to suggest
that from this we should conclude that the charge here is unconstitutionally vague.
Second, they challenge the citizen contact protocol itself (quoted above in note
five) as vague because it reads as mere “general guidance.” As part of this
argument, the officers point to language that we now emphasize in an introductory
portion of § 085.10 of the Department’s Standard Operating Procedure: “While
these contacts vary in nature, and each situation must be treated individually, the
goal of the department is that each contact be conducted in a courteous,

9
The officers assert that it violated their due process rights for the hearing examiner to
purportedly deny their counsel’s request for an adjournment of the hearing based on a lack of
notice. This adds nothing to the officers’ other arguments for reasons that include the following.
First, the cited transcript pages suggest that counsel did not pursue this objection after raising it in
the midst of an argument. In other words, the hearing examiner could have reasonably
determined that the officers were not pursuing this objection. Second, the officers do not now
develop an argument that anything counsel said at the hearing supports the arguments they now
make on the notice issue.

11
No. 2019AP1095-CR

professional and lawful manner[,]” (emphasis added), and to the qualifier in
§ 085.10.A.1. that the protocol is to be followed “[t]o the extent that safety
considerations allow.” We reject these arguments.

¶22 Our supreme court has explained the following standards:

The concept of vagueness may be generically described as
resting on the “constitutional principle that procedural due
process requires fair notice and proper standards for
adjudication.” The constitutional demand of procedural
due process is not a requirement that the statute or
ordinance be drafted with mathematical exactitude.…
“Condemned to the use of words, we can never expect
mathematical certainty from our language.” Accordingly,
the standard applied to examine a statute or ordinance has
been expressed as follows: “A fair degree of definiteness is
all that is required to uphold a statute or regulation, and a
statute or regulation will not be voided merely by showing
that the boundaries of the area of proscribed conduct are
somewhat hazy.” …:

“‘... Before a ... rule may be invalidated for
vagueness, there must appear some ambiguity or
uncertainty in the gross outlines of the duty imposed or
conduct prohibited such that one bent on obedience may
not discern when the region of proscribed conduct is
neared, or such that the trier of fact in ascertaining guilt or
innocence is relegated to creating and applying its own
standards of culpability rather than applying standards
prescribed in the ... rule.’”

City of Milwaukee v. K.F., 145 Wis. 2d 24, 32-33, 426 N.W.2d 329 (1988)
(second paragraph alterations in original) (citations omitted).

¶23 We reject the first part of the officers’ vagueness argument for two
reasons. First, it is undeveloped and does not even begin to represent a serious
effort to apply the legal standards quoted above. Second, the officers fail to reply
to the persuasive argument of the Board that the following are properly construed
as “a single, coherent charge:” Core Value 1.00, Guiding Principle 1.05, and the
citizen contact protocol itself. See United Coop. v. Frontier FS Coop., 2007 WI

12
No. 2019AP1095-CR

App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (failure to refute a proposition
asserted in a response brief may be taken as a concession).

¶24 We reject the second part of the officers’ vagueness argument
because Section 085.10 of the Department’s Standard Operating Procedure,
including both its introductory portion and A.1. and 2., provide clear direction, not
mere general guidance. The protocol specifically requires introductions of four
unambiguous elements, to be made “as early in the contact as safety permits.”
These concepts are stated with clarity. As for the statement in the rule that
“contacts vary in nature, and each situation must be treated individually,” and that
the protocol is to be followed “[t]o the extent that safety considerations allow,”
these are merely common-sense acknowledgment of the obvious. Enforcement of
virtually any rule “requires the exercise of some degree of … judgment,” and the
conferral of enforcement discretion does not render a law impermissibly vague as
long as that judgment is appropriately “confined.” See Grayned v. City of
Rockford, 408 U.S. 104, 114 (1972) (upholding anti-noise ordinance against void-
for-vagueness due process challenge because it required “demonstrated
interference with school activities”). None of the language the officers point to
creates, to quote the passage in K.F., “‘some ambiguity or uncertainty in the gross
outlines of the duty imposed or conduct prohibited such that one bent on
obedience may not discern when the region of proscribed conduct is neared.’”
K.F., 145 Wis. 2d at 33.

¶25 The officers fail to carry the burden of showing constitutional
vagueness.

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No. 2019AP1095-CR

II. JURISDICTION

¶26 The officers briefly argue that the Board lost jurisdiction over this
discipline case because its written decision was issued more than ten days after the
oral decision of the hearing panel, contrary to FPC Rule XVI § 10(f), because the
ten-day requirement in the rule is mandatory.10 We reject the officers’ argument
based on reasoning in the analogous case of Kruczek v. DWD, 2005 WI App 12,
278 Wis. 2d 563, 692 N.W.2d 286 (administrative regulation requiring state
agency to issue final order within thirty days in appeal from agency decision
merely directory and not mandatory).

¶27 FPC Rule XVI § 10(f) provides, “A written decision will be signed
by Board members who participated in the decision within ten (10) days after such
decision is rendered and will be forwarded to each of the parties.” The decision
here was issued more than forty days later.11

¶28 The officers argue that the rule is mandatory, but they fail to
distinguish Kruczek in their reply brief. We now summarize Kruczek.

¶29 Kruczek appealed a judgment affirming his temporary debarment
from work projects by the Department of Workforce Development. Kruczek, 278
Wis. 2d 563, ¶1. Kruczek argued in pertinent part that DWD failed to abide by
WIS. ADMIN. CODE § DWD 294.05(5)(b) (through May 2020), which provides that

10
The officers assert that, even if the rule is directory, the Board lacked authority to issue
the decision, but they fail to cite supporting authority and we ignore this assertion as an
undeveloped argument.
11
There is a separate Board rule that allows the Board to waive the ten-day rule, but the
Board acknowledges that the requirements to invoke this waiver rule were not met here.

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No. 2019AP1095-CR

upon appeal of proposed findings of fact, the DWD’s representative “‘shall issue a
findings of fact and final order within 30 calendar days of the receipt of the last
argument filed.’” Kruczek, 278 Wis. 2d 563, ¶¶1, 11 (emphasis added).12
Kruczek contended that the thirty-day deadline was mandatory and the debarment
was therefore invalid because it took DWD fifteen months to issue its
determination. Id., ¶11. DWD maintained that the deadline was directory. Id.

¶30 The Kruczek court noted a “general rule” regarding the use of the
word “‘shall’” in administrative regulations and statutes, which is that it “is
presumed mandatory.” Id., ¶13 (citation omitted). But the court also explained a
more specific rule: “statutes specifying a time period in which an agency is to act
are directory unless the statute denies the exercise of power after such time or the
nature of the action or the statutory language shows the time was meant to be a
limitation.” Id., ¶14. Stepping back, the court observed that courts use four
factors to determine whether the word “shall” is mandatory or directory: “(1) the
objectives to be accomplished by the statute or regulation; (2) the statute’s history;
(3) consequences of an alternate interpretation; and (4) whether a penalty is
imposed for the violation of the time limit.” Id.

¶31 After considering the code provision under these four factors, the
Kruczek court determined that DWD’s fifteen-month delay, while “not an

12
The Board attempts to suggest that the word “will” in the rule here (“will be signed …
within ten (10) days”) is “more innocuous” (i.e., less mandatory in tone) than the word “shall”
used in the code provision at issue in Kruczek v. DWD, 2005 WI App 12, 278 Wis. 2d 563, 692
N.W.2d 286, but we question that proposition. The routine comparison is between “shall” and
“may,” see id., ¶13, but in standard dictionary definitions “shall” is close in meaning to “will.”
Will, MERRIAM-WEBSTER.COM Dictionary, https://www.merriam-webster.com/dictionary/will,
(last visited June 16, 2020) (third definition of “will” as an auxiliary verb: “used to express a
command, exhortation, or injunction”).

15
No. 2019AP1095-CR

example of government efficiency,” “is not fatal to DWD’s debarment order.” Id.,
¶¶15-23. Considerations included the following: the court could identify no
language in the code suggesting that “immediate” compliance was required; DWD
needed time to consider whether Kruczek actually merited debarment; debarment
would be a temporary condition and the public interest in debarment “is effected at
whatever time debarment begins”; “Kruczek shows no injury resulting from the
fifteen-month delay;” and the code did not suggest “that DWD loses jurisdiction or
competence to proceed in the event it fails to render a debarment decision in the
time frame specified in the code.” Id., ¶¶18, 21-22.

¶32 The analysis in Kruczek is generally applicable here. In both cases,
there is no suggestion in the agency rules at issue that it is an objective that the
deadline be met, nor is any penalty expressed for noncompliance with the
deadline. Like the DWD in Kruczek, the Board here has a strong interest in taking
the time to make sure that suspension is expressed accurately in writing. Beyond
that, as the Board points out, the legislature in WIS. STAT. § 62.50 has not set a
deadline for the Board to record its decisions in writing, or even require that the
Board itself set a deadline. See § 62.50(19) (providing only that the Board “shall
decide” and “make the decision public”). The statutory appeal rights commence
only after the findings “are filed with the secretary of the Board,” not upon a
verbal decision at hearing. See § 62.60(20).

¶33 The officers’ primary argument in favor of interpreting “will” as
mandatory is that “the Board’s delay worked an injury on the Officers.” The basis
for this argument is Officer Young’s testimony at the December 2017 hearing that
he became eligible for promotion to detective in June 2017 and that he had not
been promoted pending the outcome of the discipline proceeding. Based on this
testimony, the officers argue that, at least as to Officer Young, delay in release of

16
No. 2019AP1095-CR

the written decision “amounts to an injury to him, both monetarily and reputation-
wise.” However, the officers have no substantive reply to the Board’s position
that any injury to Officer Young would not have been the result of delay in release
of the Board’s written affirmation of and explanation of its oral decision against
the officers on the day of the hearing. In other words, any injury resulted from the
oral decision, and the timing of the written affirmation did not change the nature
or effect of the injury.

¶34 The only reply by the officers to this argument is to suggest that
delay in releasing the written decision necessarily postponed the ultimate
resolution of this discipline (presumably through resolution of this appeal with this
court and any potential review by our supreme court). But, given inevitable delays
of at least some period resulting from litigation in the circuit court and, potentially,
the appellate courts, this would be a tenuous basis to conclude that “will” is
mandatory, given the reasoning in Kruczek. As the Board points out, this does not
resemble the circumstances in Karow v. Milwaukee Cty. Civ. Serv. Comm’n, 82
Wis. 2d 565, 570-73, 263 N.W.2d 214 (1978) (interpreting “shall” as mandatory in
WIS. STAT. § 63.10(2) (1975-76), which provided that the county civil service
commission “shall appoint a time and place for the hearing of said charges
[allegedly meriting an employee’s demotion or dismissal], the time to be within 3
weeks after the filing of the same”). As the Kruczek court noted in distinguishing
Karow, in Karow the commission’s delay in holding any hearing at all to
adjudicate the discipline beyond the three-week period forced Karow to continue
on unpaid suspension for that time. Kruczek, 278 Wis. 2d 563, ¶20.13 The
13
Given our dispositive discussion on this topic in the text, we do not need to address the
dispute between the parties regarding the Board’s alternative argument that, even assuming a
procedural error, any error was harmless.
(continued)

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No. 2019AP1095-CR

duration of the officers’ unpaid suspensions here was not extended past the fifteen
days imposed by Chief Flynn.

¶35 We conclude that the Board did not exceed its jurisdiction based on
the timing of its written decision.

III. EMPLOYMENT DOUBLE JEOPARDY

¶36 The officers argue that the Board erroneously rejected their
argument that the discipline is barred by a doctrine of “employment double
jeopardy” because a supervisor counseled the officers following the incident. The
Board assumed without deciding that “imposition of a second discipline for the
same conduct would be unfair and in violation of the fourth just cause standard,”
and rejected this argument based on the determination that the counseling session
did not constitute discipline. We reject the officers’ argument based on the failure
of the officers to provide Wisconsin authority of any kind establishing the
existence of, and certainly not the specifics of, “employment double jeopardy.”

¶37 We need not summarize facts surrounding the counseling session. It
is sufficient to resolve this issue that, as the circuit court aptly put it, the officers’
argument “is based on arbitration decisions, Louisiana case law, and Wisconsin
case law concerning double jeopardy in the criminal context.” The sole Wisconsin
judicial opinion cited by the officers bears no resemblance to the situation here
involving a police employment counseling session followed by discipline imposed

Separately, the officers wait until their reply brief to address Kruczek at all and then
briefly assert, with little explanation, that Kruczek must be interpreted in light of Koenig v. Pierce
Cty. DHS, 2016 WI App 23, 367 Wis. 2d 633, 877 N.W.2d 632. We reject this argument as both
undeveloped and tardy. Further, we see no merit to the argument that the officers may be trying
to make based on Koenig.

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No. 2019AP1095-CR

by a police chief and affirmed by the a police and fire commission. See City of
Oshkosh v. Winkler, 206 Wis. 2d 538, 540-42, 557 N.W.2d 464 (Ct. App. 1996)
(involving criminal prosecution following administrative discipline imposed on a
college student). The scant legal authority offered by the officers raises more
questions than it does answers.

¶38 We cannot reverse the Board for not following a legal standard that
the officers have failed to show exists in Wisconsin.

CONCLUSION

¶39 For all these reasons, we affirm the circuit court order affirming the
Board’s decision in all respects.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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