The state Supreme Court should overturn a ruling that allows employers to discriminate in hiring based on arrests for civil municipal ordinance violations while people arrested on criminal charges are protected from the same discrimination, a state agency argued in a petition to the high court filed this week.
Hiring discrimination generally is prohibited if it is based on arrests for criminal activity unless the crime is substantially related to the employment. A District II Court of Appeals panel ruled in January that municipal violations are not crimes and the prohibition does not apply. Appellate Judge Mark Gundrum wrote the decision; Appellate Judge Shelley Grogan concurred; and Appellate Judge Lisa Neubauer dissented. (That decision is here.)
The statute specifically states that 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." (Emphasis added)
Gundrum, in his decision, said the "other offense" language applied to arrests from some non-Wisconsin jurisdictions, not arrests for municipal offenses, which are civil violations and not criminal.
In addition, he said, "we note that an 'arrest' is generally associated with taking a person into custody in connection with a criminal charge, not a civil one."
Attorney Katy Lounsbury, attorney for the Labor and Industry Review Commission, which is seeking the high court review, said in the petition the District II decision would have "absurd results" if it is upheld.
The case at issue involves brothers Gregory and Jeffrey Cota, two Oconomowoc School District grounds crew employees who were ticketed in May 2015 for theft by the Town of Oconomowoc police for allegedly splitting some proceeds from the sale of scrap metal taken from the district.
The ticket was based on the allegation of a single individual, co-worker Garret Loehrer, and was issued after an internal School District investigation found "that that the ability of the Administration to determine which employee or employees are responsible for this cash shortfall is limited by the conflicting allegations," according to the petition. The shortfall was $5,683.81.
Loehrer and both Cotas were disciplined after the internal investigation for various infractions of School District rules, though Loehrer was the only one disciplined for theft. Pam Casey, director of human resources for the district, testified later that she did not feel the Cotas should be fired after the internal investigation.
Casey understood that Town of Oconomowoc Detective Kristen Wraalstad's recommendations of municipal theft charges was based on Loehrer's allegation that he and the Cotas split scrap metal proceeds on a single occasion in 2012.
"No additional information regarding the Cotas was produced by way of the police investigation," Lounsbury wrote.
Still, the District suspended after the ticket was issued.
“The issuance of the municipal theft citation clearly calls into question the veracity and truth of the statement you made to the school district during our investigation into these thefts,” Casey wrote to the brothers.
Attorney Jeffrey Ek prosecuted the cases and eventually told Casey that he thought he could reach a settlement with the brothers.
"Ek told the District that he believed he could convict the Cotas, but never said what evidence he possessed that he intended to use to do so," the petition says.
The district supported the proposed settlement, which called for the brothers to pay $500 as "restitution" in exchange for dismissal of the charges.
The district fired the brothers in April, 2016. Casey based her decision on the theft citations and the prosecutor's statements that he believed he could convict the brothers and his proposed settlement called for them to make restitution, Lounsbury wrote.
The brothers filed claims with the Department of Workforce Development, alleging discrimination based on arrest records. The case went before an administrative judge, and the District won. Appeals followed, and the brothers won before the Labor and Industry Review Commission and in a case before Waukesha County Circuit Judge Lloyd Carter before the appeals court reversed.
"Using tortured logic, the court of appeals concluded that a person arrested for theft in Australia, where the labels 'felony' and 'misdemeanor' are not used in the descriptions of crimes, would be protected in Wisconsin against discrimination based on his or her Australian theft arrest record, but that a person in Oconomowoc, Wisconsin, investigated by a police detective, prosecuted by a city attorney, and charged with theft under the city code, would not be protected in Wisconsin against discrimination based on the record of his or her theft charges," Lounsbury wrote.
The commission has consistently applied the prohibition on employment discrimination to all arrests, including those for municipal offenses, she said.
"Cases involving arrest records arising out of forfeiture offenses have been heard and decided by the court of appeals and were never rejected on the basis that the prohibition on arrest record discrimination does not apply in cases involving forfeitures," she wrote. "The recent decision of the court of appeals upends decades of consistent application of the statute, which has been untouched by the legislature in the wake of these decisions."
The full petition filed in 2022AP1158, Oconomowoc School District v. Gregory Cota, is here.
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