Failure To Hold Timely Hearing Results In Reinstatement Of Terminated Detective

On December 3, 2013, Milwaukee Police Chief Edward Flynn discharged Detective Rodolfo Gomez for violating departmental rules stemming from his use of force during an interrogation. The next day, Gomez filed a notice of appeal of his discharge with Milwaukee’s Board of Fire and Police Commissioners. On December 6, the Board issued a scheduling notice requiring the parties to identify witnesses and exhibits, stating that the time of trial was “to be determined.”

For more than a year, no significant activity on the appeal took place. On April 10, 2015, the Board issued another scheduling notice, which set a trial for July 14, 2015. To accommodate the schedules of witnesses, the Board moved the trial to July 22. After a two-day trial, the Board issued a written decision finding that the “just cause” standards for a discharge were satisfied and upheld Gomez’s discharge.

Gomez challenged the decision in court, alleging that the Board exceeded its jurisdiction by holding the trial more than 120 days after the Board’s December 6 scheduling notice. An appeals court agreed, and reversed Gomez’s termination.

The Court’s decision focused on Section 62.50 (14) of the Wisconsin Statutes. The statue provides that “the Board, after receiving the notice of appeal of a discharge or suspension shall, within five days, serve the Appellant with a copy of the complaint of the charges and a notice fixing the time and place of trial, which time of trial may not be less than 60 days nor more than 120 days after service of the notice and a copy of the complaint.”

The Court found that “the statute uses mandatory language for promptly setting a trial date within a specified time frame, further confirming a mandatory interpretation of the 120-day limit. The Board ‘shall’ serve a notice ‘fixing’ the time and place of the trial not less than 60 days nor more than 120 days after service of the notice. Use of ‘shall’ for providing a notice fixing a trial date within that time frame matches and reinforces the mandatory effect of ‘may not’ for the timing of the trial. The word choice comports with a legislative intent to have a trial date within the identified time period firmly in place.

“We also note that not long ago the time limit was only 15 days. The Legislature increased the limit to 120 days in 2007. That the Legislature undertook to consider and amend the time limit is suggestive of an expectation that the limit be followed.”

“The statutes demonstrate that the process was meant to be handled with dispatch. Consider the time allotments: After receiving a discharge notice, an employee that wishes to appeal must do so within ten days; after receiving an appeal, the Board must notify the employee of the trial date within five days; the Board may grant an adjournment of the trial, but only for cause and for no more than 15 days; after the trial, the Board must decide whether to sustain the charges within three days; if sustained, the Board must determine the penalty ‘at once’; if the discharged employee wishes to appeal the Board’s decision to the Circuit Court, he or she must do so within ten days; upon that appeal, the Board must certify to the court clerk all relevant documents within five days; the Circuit Court review ‘shall be given preference’ and, upon application, the Court shall fix a trial within 15 days (unless the parties agree to a different date); and if the charges are not sustained, the employee will be reinstated ‘immediately.’ That tight deadline framework would contrast starkly with the Board having discretion to hold a trial 594 days (or more) after service of the scheduling notice.”

Gomez v. Board of Fire and Police Commissioners, 2017 WL 6033919 (Wis. App. 2017).