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A Court of Appeals ruling that arrests for municipal violations do not count as "arrests" under the state's fair employment law is "inconsistent with prior case law and explicitly statutory instruction," two former Oconomowoc School District employees told the Supreme Court.
The appellate court ruled that "arrests" referred only to arrests for criminal offenses, not municipal offenses.
"There is simply no statutory or policy justification for why an employer should be able to fire an employee for receiving a single OWI citation — a municipal offense in most circumstances — but could not do the same for an employee’s second through tenth OWI, which are criminal," Jeffrey and Gregory Cota argued in their first brief to the Supremes. The case is scheduled for oral argument September 10.
The brothers are represented by attorneys Alan Olson and Nicholas Yurk of Alan C. Olson & Associates.
The brothers were fired from the Oconomowoc School District after Town of Oconomowoc police issued them municipal citations for theft for allegedly stealing from the district and the prosecutor told district officials he believed he could get a conviction. The tickets were issued after the district conducted its own investigation and declined to dismiss the two because of a lack of evidence. The brothers paid $500 to resolve the municipal court case while continuing to deny wrongdoing, and were never tried or convicted of any offense.
The district said they were ultimately fired based on the citations and the prosecutor's opinion, according to court filings.
The two appealed their firings, and the state Labor and Industry Review Commission found that they were wrongly terminated. Waukesha County Circuit Judge Lloyd Carter agreed, but the District II Court of Appeals did not. Appellate Judge Mark Gundrum, joined by Appellate Judge Shelley Grogan, wrote the 2-1 decision. Appellate Judge Lisa Neubauer dissented.
LIRC also is appealing the decision.
"The Court of Appeals’ decision in this case upends 40 years of settled law surrounding arrest record discrimination without any examination of the precedent it was implicitly overruling," the brothers' brief said. "A review of past LIRC and Wisconsin cases shows that in every case — including this case — the parties presumed that municipal citations were part of an arrest record," the brief said.
The District II panel raised the issue of the "arrest" definition on its own.
Under the Wisconsin Fair Employment Act (WFEA), the brief said, an “ 'arrest record' includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority."
The statute also tells courts to "liberally construe" the law to ensure, as far as possible, employment of qualified people, but allows suspensions if arrests are substantially related to their jobs.
"Should the Court of Appeals be affirmed, Wisconsin employers will be strongly incentivized to immediately fire any employee charged with a municipal offense, such as a first-offense OWI ... lest the employee receive a second OWI, or other more serious charges, and gain WFEA protections," the brief said.
"Interpreting the WFEA in a manner which encourages employers to fire otherwise qualified individuals because of their interactions with the criminal justice system is obviously contrary to the stated purpose of the WFEA," it said.
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