Jesus “Jesse” Alba became chief of the City of Waukesha, Wisconsin Fire Department in May 2013. Two months later, the City of Waukesha mayor filed charges alleging that Alba had violated Department rules and the City’s anti-harassment policy. The mayor alleged that Alba had not disclosed during his interview for the position that he and a Department employee under his command had an affair in 2012 or that, when they decided to end it, he asked her to resign to avoid the “distraction” of encountering each other at work.
During the ensuing investigation, Alba provided e-mails from the woman showing that the affair had been mutually pursued. The independent investigator nonetheless concluded that resignation requests to a subordinate reasonably could be construed as an implied threat of an adverse job action. Although the mayor favored termination, the City’s Police and Fire Commission voted to demote Alba to firefighter.
Alba challenged his demotion on due process grounds. The Wisconsin Court of Appeals agreed that the way the Commission made its disciplinary decision violated due process and ordered the Commission to reconsider its disciplinary decision.
The problem, the Court found, was the fact that Commission members not only decided whether Alba should be disciplined, but that they did so based on evidence that they themselves essentially provided.
The Court focused on an interview of Alba conducted by Commission president Cheryl Gemignani. The interview was not recorded, and Alba and Gemignani recalled the interview differently: “Alba maintained he was asked only about matters in his professional life that could embarrass the City or Department and thus said nothing about the affair, which he considered a personal matter. Gemignani insisted she also asked broader questions about ‘mistakes’ and ‘skeletons in [his] closet’ that gave him ‘numerous opportunities’ to be forthcoming but he ‘chose not to do it.’
“One of the findings of fact from the disciplinary hearing stated that the Commission considered as evidence the responses Alba gave to Gemignani’s questioning. We agree with Alba that this constituted a due process violation. Commission members essentially were witnesses at the interview, then used their recollections when they sat as adjudicators at his disciplinary hearing. The Commission undisputedly made a finding based on personal knowledge and perception rather than on evidence presented at the hearing and available to the public. A judge cannot be a witness and the finder of fact, too.”
The Court found that the proper remedy was “a remand to the Commission for a new disciplinary hearing at which Alba’s veracity during the hiring interview may not be considered. Should the City choose to address his truthfulness, the Commission as currently constituted would not be an appropriate fact finder and the City will have to determine how to proceed.”
State of Wisconsin v. City of Waukesha Board of Police and Fire Commission, 2015 WL 5022580 (Wis. App. 2015).