The state Supreme Court will consider whether people arrested for municipal offenses are entitled to the same job protection as people arrested for misdemeanors and felonies.
The state Court of Appeals, in answering a question no one asked, said they are not. The decision, if it stands, would reverse an interpretation in effect since 1977, according to a brief filed by the Labor and Industry Review Commission.
Appellate Judge Mark Gundrum wrote the 2-1 decision for the District II appellate panel. He was joined by Appellate Judge Shelley Grogan; Appellate Judge Lisa Neubauer dissented.
The issue was not raised by either party; that was done by the court itself.
At particular issue, Gundrum wrote, is language in the state's fair employment statute:
“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.
"We conclude the legislature intended ...these statutory provisions...to protect only with regard to criminal-offense information, and thus, the District’s termination of ... (defendants Gregory and Jeffrey Cota) based on the noted civil, municipal offense information did not constitute unlawful employment discrimination," Gundrum wrote.
"To begin," Gundrum continued, we note that an 'arrest' is generally associated with taking a person into custody in connection with a criminal charge, not a civil one."
In other words, according to the majority, "offense" in the statute does not mean "municipal offense." (That would probably come as a surprise to anyone fingerprinted, photographed, and held in a lockup after an arrest for a municipal violation.)
Municipal offenses - ordinance violations - are generally punishable by forfeiture.
The Cota brothers, both employed by Oconomowoc schools, paid $500 in restitution to the District after police ticketed them for stealing from their employers. They two were never tried or convicted of the offense in any court, and the facts in the case were much in dispute. The District did not fire them after its own lengthy investigation, having found there was not enough evidence to do so. It took action only after a Municipal Court prosecutor said he thought he could get a conviction.
The brothers contested the firing, saying they were illegally discriminated against because of their arrest records. The brothers won at the Labor and Industry Review Commission and in Waukesha County Circuit Court, but lost in the Court of Appeals.
Neubauer, in her dissent, said "the majority’s interpretation leads to an arbitrary result."
When a municipality enacts an that reflects an existing criminal statute, she said, an employer's decision to fire an employee charged with the bad conduct "can turn on whether the employee is charged under the ordinance rather than directly under the statute. ... I can discern no principled basis for such an outcome."
State law frequently use the term "offense" to refer to either civil municipal or state criminal charges, she said.
The majority's decision, she said, stands for the idea that the legislature "did not intend to prohibit discharge based on suspicions or unproven charges for civil offenses."
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