COURT OF APPEALS
DATED AND FILED
August 5, 2008
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Katherine Thomas and
from orders of the circuit court for
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 WEDEMEYER, J. The Milwaukee City Board of Fire and Police Commissioners appeals from a circuit court order remanding the matter to the Board for an appeal hearing. The Board also appeals from an order denying its motion seeking reconsideration. The Board contends that the circuit court erred, claiming that because Thomas resided outside the City of Milwaukee, she vacated her position as a matter of law; and therefore, the Board does not have jurisdiction to hold a hearing on Thomas’s claim that the Police Chief erred in removing Thomas from the City of Milwaukee Police force. Because the circuit court did not err in ruling that the Board has jurisdiction to hear Thomas’s appeal of her removal from office, we affirm.
¶2 Katherine E. Thomas was hired as a Milwaukee Police Officer
in March 1994. On December 30, 1995, she
married Paul Thomas. In May 1998, Paul
was hired as a police officer for the City of
¶3 In April 2001, the matter came back to the Board, and the
parties stipulated to certain facts. In
May 2001, Katherine withdrew her request for a residency exemption because a
request for an exemption from the
¶4 The request was placed on the Board’s agenda for March 2,
2006, at which time a closed hearing was convened. The Board was advised of the reasons for the
exemption request, and Katherine testified that she had never been late for
work or for any court appearance even when having to drive in from
¶5 Two weeks later, on March 16, 2006, Katherine was notified via Personnel Order 2006-73 that she had been removed from public office by operation of law, because she had established her residence outside the City of Milwaukee, and thus, had “vacated” her “public office.” In response, Katherine sent a letter pursuant to Wis. Stat. § 62.50 (2005-06) appealing the police chief’s finding that she had vacated her public office. She also objected to the use of her waiver hearing as a basis to terminate her. The Board then requested an opinion from the city attorney’s office as to whether it had jurisdiction to hear the appeal. The city attorney responded that the Board needed to decide whether Katherine had “vacated her position” and if so, then the Board had no jurisdiction to hear her appeal.
¶6 The Board then requested the opinion of Katherine’s counsel,
who responded that Katherine had a right to a decision by the Board. The matter was set for trial. Katherine filed a brief with the Board,
arguing that residency determinations are to be made by the Board, that Wis. Stat. § 62.50 applied to this
case and that Katherine was not “holding public office” for purposes of Wis. Stat. § 17.03. 
On August 15, 2006, the city
attorney’s office submitted a letter to the Board stating that the Board did
not have jurisdiction over Katherine because she had not admitted nor denied
the police chief’s finding that Katherine established residency outside of
¶7 On August 17, 2006, the Board convened and the city attorney
asked the Board to rule that it lacked jurisdiction to hear Katherine’s
case. Katherine argued that the Board
had jurisdiction. The Board decided that
it did not have jurisdiction to proceed with the matter of Katherine’s appeal
from her removal as a
¶8 When the Board ruled that it did not have jurisdiction to hear Katherine’s appeal following the police chief’s action removing her from office on the basis that she had “vacated her public office,” Katherine filed an appeal with the circuit court, seeking both certiorari and statutory review, pursuant to Wis. Stat. § 62.50. As indicated, the circuit court ruled in Katherine’s favor in a written decision, dated May 31, 2007. In that decision, the circuit court held: “that the Board has jurisdiction to hear [Katherine’s] appeal of her removal from office and remands this matter to the Board for a hearing consistent with this decision.”
¶9 The issue in this case involves the interpretation of statutes,
which presents a question of law, although we benefit from the interpretation
of the circuit court. See Gentilli
v. Bd. of Fire and Police Comm’rs of the City of
¶10 The dispositive issue here is whether Katherine is entitled to
a review pursuant to Wis. Stat.
§ 62.50 following the police chief’s removal of her as a police
officer for the City of
Wellnitz involved the
position of Chief of Police in a municipality (
The City of
The Board also
relies on Eastman v. City of Madison, 117
(Footnotes omitted). Based on the foregoing, this court concludes that Wellnitz is distinguishable from the facts and circumstances in the instant case. Katherine is an employee, not a police chief. Wis. Stat. § 62.50(2) refers to the position of police officer, whereas Wis. Stat. § 62.50(6) refers to the office of police chief. In order for Katherine to be subject to Wis. Stat. § 17.03, she would have to hold a public office, not a public position.
¶11 Thus, the City of Milwaukee, may remove Katherine from her
position as police office for violating the residency requirement; however,
they must do so by following the procedures pertinent to removal of police
officers set forth in Wis. Stat.
§ 62.50. The Board has the
jurisdiction, pursuant to § 62.60, to remove Katherine from her position
of police officer of the City of
By the Court.—Order affirmed.
Not recommended for publication in the official reports
 This opinion was circulated and approved before Judge Wedemeyer’s death.
 The Milwaukee City Charter provides in pertinent part:
7. HARDSHIP EXCEPTIONS.
b. In the event that a city employe weds an employe of another jurisdiction which also has a residency requirement, mandating that its employe reside within that jurisdiction’s boundaries, and if that employment is in effect at the time of the marriage, the city service commission may grant the city employe an exemption from the city’s residency requirements….
The Board’s earlier denial of the residency exemption was based on the language in this ordinance, which states “if that employment is in effect at the time of the marriage.” The Board ruled that because Paul became employed after the marriage, the exemption would not apply. The city attorney opined, based on the subsequent federal ruling that the Board has the discretion to apply the hardship exception broadly, based on the totality of the circumstances.
 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
Vacancies, how caused. Except as otherwise provided, a public office is vacant when: …. [t]he incumbent ceases to be a resident of: … [if] the office is local and appointive, and residency is a local requirement, the county, city … or area within which the duties of the office are required to be discharged.
court notes the Board’s reliance on Klatt v. LIRC, 2003 WI App 197, 266
Wis. 2d 1038, 669 N.W.2d 752. Although
case bears some similarity in initial facts to the instant case, the procedural
avenue sought in Klatt is distinguishable.
Klatt’s case involved the denial of unemployment compensation.
This court also acknowledges the Board’s attempt to
convince us that Katherine vacated a “public office” under Wis. Stat. § 17.03 by citing the
Charter of the City of