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CHALK UP ANOTHER LEGAL VICTORY FOR THE MPA AND ITS LEGAL COUNSEL by: Jon Cermele In MPA & Sliwinski v. City of Milwaukee, 2008 WI App 119, (Sliwinski II), the Court of Appeals issued a sweeping decision guaranteeing Milwaukee Police Officers the right to continued pay and benefits until such time as the Fire and Police Commission provides them with a fair trial that comports with the constitutional right to due process. To put this all into context, let me take you through the history of Sliwinski’s case. It began when, on November 13, 2002, Sliwinski was discharged by then Chief Arthur Jones for allegedly violating an MPD rule. Sliwinski appealed and, almost 2 years later, a hearing was conducted before the Fire and Police Commission (FPC). At that hearing, the FPC heard about an FBI agent that was, to say the least, questionable at best. The investigation involved only partial video surveillance, no audio surveillance, agents who failed to follow the target of the sting (even though they knew him to be in possession of the sting money), and an uncorroborated statement from the sting target (who was by then a convicted felon) who had pled guilty to stealing more than $4,000 of the sting money. During the hearing, the FPC refused to allow Sliwinski’s legal counsel, Jon Cermele, to fully question the FBI agent in charge of the sting. In so doing, the FPC denied Sliwinski his right to confront the witnesses and evidence against him. To make matters worse, the FPC went on to uphold Sliwinski’s discharge based on weak and circumstantial evidence, evidence that Sliwinski was, unfortunately, not allowed to fully refute. Cermele & Associates, S.C., appealed the FPC’s decision, eventually making it to the Court of Appeals. There, the Honorable Adam Fine concluded that the FPC’s hearing had been constitutionally deficient. Judge Fine reasoned that, by failing to allow Sliwinski to confront the primary witness against him, the FPC had refused to allow Sliwinski “access to witnesses and evidence that could assist his defense.” Sliwinski v. Board of Fire and Police Commrs= for the City of Milwaukee, 2006 WI App. 27, 289 Wis. 2d 422, 711 N.W.2d 271 (Sliwinski I). As a result, on January 24, 2006, the Court of Appeals ordered that a new hearing be held that complied with Sliwinski’s constitutional rights. Specifically, that Sliwinski be entitled to witnesses and evidence that would support his defense, including full access to the FBI agent in charge. Two months later, having yet to receive either a hearing or be put back on the payroll, despite multiple demands for that relief, Sliwinski filed suit in the U.S. District Court, Eastern District of Wisconsin, in an effort to effectuate the Court of Appeals’ decision. Although the District Court, the Honorable Lynn Adelman presiding, agreed that Sliwinski had a property interest in continued pay and benefits, it concluded that he had to exhaust his state court remedies (specifically mentioning mandamus and a wage claim) before the Federal Courts would consider his claim. The MPA and Sliwinski then followed Judge Adelman’s advice, pursuing a Writ of Mandamus at the Circuit Court level. Unfortunately, in July 2007, Judge Fiorenza quashed the Writ. Undeterred, the MPA and Sliwinski once again sought relief in the Court of Appeals. The argument was straightforward just like any police officer who’s discipline was pending before the FPC. Sliwinski was entitled to pay and benefits until such time as the FPC provided him with a hearing that comported with fundamental concepts of fair play and due process. As Sliwinski had never been provided with such a constitutional hearing in the first place, he should be placed back on the payroll and paid all wages and benefits lost since the 2004 unconstitutional FPC hearing, and until one is eventually conducted. Quite fittingly, the case found itself before the exact same judge as it had two years previously and, on June 17, 2008, the Honorable Adam Fine authored a decision on behalf of the Court of Appeals. Judge Fine not only reiterated Sliwinski’s right to a fair hearing that complied with due process but, noting that the hearing had not yet been held despite his order to do so some two years previously, concluded that until such time as the FPC actually provided Sliwinski with that fair trial, the matter would not be disposed of and Sliwinski would remain entitled to pay and benefits. Not only is Sliwinski II a legally sound decision, it is truly a sweeping (and well deserved) victory for all MPA members. First, it affirms the Court’s prior ruling that Milwaukee Police Officers are entitled to a trial that comports with the fundamental constitutional principles, such that they are guaranteed the right to confront witnesses against them and access evidence that would assist their defense. Second, and just as importantly, it goes on to provide that an Officer’s FPC appeal would not be disposed of until such time as that type of trial is provided and that the City would remain on the hook for pay and benefits until such a disposition occurs. Unfortunately, rather than admitting its errors and complying with the Court of Appeals’ order, the City has decided to seek review before the Wisconsin Supreme Court of Wisconsin. Rest assured Cermele & Associates, S.C., will continue to fight this battle on behalf of the MPA and its members. Pending that fight stay tuned. Chelsie Allan, Matt Granitz and Jon Cermele, can be reached at CERMELE & ASSOCIATES, S.C., 6310 West Bluemound Road, Suite 200, Milwaukee, Wisconsin 53213 (414) 276-8750.
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Tuesday, Sept. 9, 2008 at 9:00 AM & 7:00 PM at The MPA® Building 6310 W. Bluemound Road Milwaukee, WI 53213 |
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Tuesday, September 9, 2008 at 6:00 PM at The MPA® Building 6310 W. Bluemound Road Milwaukee, WI 53213 |