PUBLISHED OPINION
Case No.: 94-2504
†Petition for
Review Filed
Complete Title
of Case:
WINNEBAGO COUNTY, a State of
Wisconsin municipal corporation,
and JULIE A. PAGEL, in her capacity
as Winnebago County Clerk of Courts,
Plaintiffs‑Respondents,†
v.
THE WINNEBAGO COUNTY COURTHOUSE
EMPLOYEES ASSOCIATION
and PATRICIA FELKER,
Defendants‑Appellants,
THE HONORABLE WILLIAM
H. CARVER,
Defendant-Respondent.
Submitted on Briefs: July 28, 1995
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: September 6, 1995
Opinion Filed: September
6, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If
"Special", JUDGE: ALLAN J. DEEHR
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendants-appellants, the cause was
submitted on the briefs of Frederick J. Mohr, S.C., of Green Bay.
Respondent
ATTORNEYSOn behalf of the plaintiffs-respondents, the cause was
submitted on the briefs of John A. Bodnar, Corporation Counsel.
COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 6, 1995 |
NOTICE |
A party may file
with the Supreme Court a petition to review an adverse decision by the Court
of Appeals. See § 808.10
and Rule 809.62, Stats. |
This opinion is
subject to further editing. If
published, the official version will appear in the bound volume of the
Official Reports. |
No. 94-2504
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
WINNEBAGO COUNTY, a State of
Wisconsin municipal corporation,
and JULIE A. PAGEL, in her capacity
as Winnebago County Clerk of Courts,
Plaintiffs‑Respondents,
v.
THE WINNEBAGO COUNTY COURTHOUSE
EMPLOYEES ASSOCIATION
and PATRICIA FELKER,
Defendants‑Appellants,
THE HONORABLE WILLIAM
H. CARVER,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Winnebago County: ALLAN J. DEEHR,
Judge. Reversed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON,
P.J. The Winnebago County Courthouse Employees
Association (WCCEA) and Patricia Felker appeal from an order of the circuit
court wherein the court granted declaratory judgment in favor of Winnebago
County and Julie Pagel. Because we
conclude that § 59.38, Stats.,
does not give the clerk of circuit court the statutory authority to terminate
the employment of a judicial assistant without following the terms of the labor
agreement, we reverse.
Felker
was an employee of Winnebago County.
She had the dual employment status of judicial assistant assigned to
Judge William H. Carver as well as a deputized clerk of the circuit court. Felker was removed from the position of
judicial assistant by Pagel, Clerk of Circuit Court, at the request of Judge
Carver. Felker was subsequently
terminated. In a letter to Felker,
Pagel stated that the reason for Felker's termination, among other things, was
that she allegedly tape recorded conversations with Judge Carver without his
knowledge.
WCCEA
filed a grievance on behalf of Felker, challenging her discharge. Article VI of the agreement provides: “The County shall have the right to
discharge any employee for just cause.”
Article VII sets forth the grievance procedure to follow on matters
involving the interpretation, application or enforcement of the terms of the
agreement. The County, however, refused
to process the grievance, stating that it had no authority to require the clerk
of courts to continue to employ Felker.
WCCEA filed a complaint with the Wisconsin Employment Relations
Commission (WERC), alleging that the County had committed a prohibited
practice.
The
County filed a complaint for declaratory judgment in the circuit court
requesting a determination that Judge Carver and Pagel were nonparties to the
collective bargaining agreement; that the Wisconsin Constitution and the
Wisconsin Statutes confer certain inalienable rights to Judge Carver pertaining
to his assignment of deputy clerks of court who act as judicial assistants
which could not be superseded by the labor contract between Winnebago County
and WCCEA; that § 59.38(1), Stats.,
confers certain inalienable rights to Pagel which could not be superseded by
the labor agreement; that provisions of the labor agreement which attempted to
modify these rights should be declared null and void and that Felker's labor
grievance was not substantively arbitrable.
WCCEA and Felker filed a motion requesting the court to dismiss the
County's complaint and order the County to submit Felker's dismissal to
arbitration pursuant to the labor agreement.
The
trial court granted the County's demand for declaratory judgment, holding that
Pagel and Judge Carver were not parties to the collective bargaining agreement
and that the agreement did not supersede the inalienable rights of Judge Carver
regarding the assignment of deputy clerks to his court as judicial
assistants. The court also held that
Articles VI and VII of the labor agreement as applied to the discharge of
Felker were null and void and violative of § 59.38(1), Stats., and Art. VII, § 12 of the Wisconsin Constitution and
that Felker and WCCEA's pending labor grievance was not substantively
arbitrable under § 111.70, Stats. Felker and WCCEA appeal.
Whether
the clerk of circuit court has the statutory power, pursuant to § 59.38(1), Stats., to terminate a judicial
assistant's employment without just cause is a question of statutory
interpretation which we review de novo.
See K.N.K. v. Buhler, 139 Wis.2d 190, 199, 407 N.W.2d 281,
286 (Ct. App. 1987). We also note that
“[a] collective bargaining agreement under § 111.70, Stats., must, where possible, be harmonized with other
statutory provisions.” County of
Eau Claire v. AFSCME Local 2223, 190 Wis.2d 299, 305, 526 N.W.2d 802,
804 (Ct. App. 1994).
Felker and
WCCEA argue that “the trial court improperly interpreted the meaning of the
power of the clerk of the circuit court to revoke an appointment.” Section 59.38(1), Stats., provides:
Every clerk of the circuit court shall appoint one or
more deputies and the appointments shall be approved by the majority of circuit
judges for the county, but shall be revocable by the clerk at pleasure ¼.
Felker and WCCEA claim that the trial court's ruling was
too broad an interpretation of the clerk's power of revocation when it held
that the clerk's right to revoke an appointment also granted the clerk the
right to terminate the employee's employment.
We agree
with Felker and WCCEA that the clerk of courts' statutory authority is limited
to the appointment of deputies and the revocation of that status. Section 59.38(1), Stats., does not grant the clerk the power to terminate the employment
of a judicial assistant without just cause.
Such an interpretation of § 59.38(1) exceeds the plain language of the
statute and would impinge upon the power of the county board. Section 59.15(2)(c), Stats., provides:
The board may ¼ establish the number of employes in any department or
office including deputies to elective officers, and may establish regulations
of employment for any person paid from the county treasury ¼.
Having the power to establish employment regulations,
the County can bargain that power with the union.[1] A limitation on the clerk of courts' power
requiring the clerk to terminate a judicial assistant pursuant to the labor
agreement does not impermissibly infringe upon his or her statutory authority.[2]
The County
emphasizes the fact that Felker was not removed from the position of judicial
assistant upon Pagel's own initiative but, rather, at the direction of Judge
Carver. The County states that the
judicial branch of government has certain inherent powers, citing Breier
v. E.C., 130 Wis.2d 376, 386, 387 N.W.2d 72, 76 (1986) (quoted source
omitted), for the following proposition:
From time immemorial, certain powers have been conceded
to courts because they are courts. Such
powers have been conceded because without them they could neither maintain
their dignity, transact their business, nor accomplish the purposes of their
existence. These powers are called
inherent powers.
The court in Breier cited prior case law defining
inherent power as “one without which a court cannot properly function.” Id. at 387, 387 N.W.2d at 77.[3] The County argues:
The parties' collective bargaining agreement cannot be
harmonized in relationship to the facts of this case so as to allow a
usurpation of the inherent power of the court and the judicial branch of government
to transact its business in such a manner that the dignity and efficiency of
that branch of government is not impaired or curtailed.
We
disagree with the County and conclude that this case does not involve the
inherent powers of the court and should not be read as such. As we read the constitution, relevant
statutory provisions, case law and the labor agreement, our decision today does
not infringe upon the inherent power of a court to appoint or remove his or her
staff.[4] A court's right to remove and appoint a
staff member is an entirely different issue than the subsequent termination of
that staff member's employment. The
power to terminate Felker's employment without just cause or without adhering
to the grievance procedure is not essential to the existence or orderly
functioning of a circuit court, nor is it necessary to maintain the circuit
court's dignity, transact its business or accomplish the purpose of its
existence. Breier, 130
Wis.2d at 386, 387 N.W.2d at 76. That a
collective bargaining agreement might require just cause for termination or
adherence to a grievance procedure does not restrict the judge's inherent
powers.
In
County of Eau Claire, 190 Wis.2d at 302, 526 N.W.2d at 803, the
court concluded that deputized employees, apart from the chief deputy, are
exempt from Municipal Employment Relations Act (MERA) coverage only to the
extent that they in fact function as managerial or supervisory employees, as
that term is defined by case law.[5] The court in County of Eau Claire
went on to harmonize MERA and the appointment authority so that the clerk
retained the power to hire and fire deputies at will, but only to the extent
that the persons appointed fell within the classification of managerial
employees.
In
the present case, whether Felker functioned as a managerial employee in her
capacity as a deputy clerk was not an issue before the trial court; hence, no
findings were made. We need not,
however, decide this question today. It
is undisputed that Felker also had the employment status of a judicial
assistant. The County negotiated a
collective bargaining agreement with the union which included the position of
judicial assistant under “office positions.”
Because the position of judicial assistant is covered under the labor
agreement and is not a position which the clerk of circuit court is empowered
by statute to appoint or remove, Felker must be allowed the due process
afforded under the contract's grievance procedure.
Lastly,
Felker and WCCEA argue that the trial court should have stayed the proceedings
and ordered arbitration. Instead, the
court held that because Articles VI and VII of the agreement as applied to
deputies of constitutionally elected officials of Winnebago County was null and
void, the labor grievance was not substantively arbitrable under § 111.70, Stats.
We conclude that because the labor agreement and the statutory powers of
the clerk of courts can be harmonized, the just cause and grievance procedure
provisions of the agreement are not null and void, and thus, arbitration should
have been ordered.
By
the Court.—Order reversed.
Recommended
for publication in the official reports.
[1] When creating
any position in a department or office, under § 59.15(2)(c), Stats., a county is free to give that
position managerial and supervisory powers, and employees in such positions
could be exempt from the Municipal Employment Relations Act (MERA). See § 111.70(1)(i) & (o), Stats.; County of Eau Claire v.
AFSCME Local 2223, 190 Wis.2d 299, 526 N.W.2d 802 (Ct. App. 1994). A county is also free to bargain with the
union representing its employees to exclude nonmanagerial and nonsupervisory
positions in county departments or offices from the collective bargaining
agreement. Therefore, in the future,
situations may arise where county employees assigned to assist circuit judges
are not afforded protection under a collective bargaining agreement or MERA.
[2] We distinguish
the recent case of Heitkemper v. Wirsing, 194 Wis.2d 182, 533
N.W.2d 770 (1995), from this appeal.
The issue in Heitkemper was whether a collective
bargaining agreement could limit a sheriff's ability to dismiss and demote a
deputy. The supreme court held that
“Because neither [the sheriff's] power to dismiss nor demote a deputy is
constitutionally protected and because the collective bargaining agreement does
not conflict with [the sheriff's] statutory powers ¼ the agreement is valid and enforceable.” Id. at 185, 533 N.W.2d at 771.
In its holding, the supreme court
distinguished Crawford County v. WERC, 177 Wis.2d 66, 501 N.W.2d
836 (Ct. App. 1993), stating that the statute in Crawford County
contained little or few limits on the clerk's power to appoint subordinates and
afforded no protections to the appointed subordinates, unlike the sheriff's
power which was statutorily limited. Heitkemper,
194 Wis.2d at 200, 533 N.W.2d at 777.
The facts in the present case
are distinguishable from Heitkemper in that the clerk's ability
to dismiss a judicial assistant is limited by the language of both §§ 59.38(1)
and 59.15(2)(c), Stats.
[3] The court in Breier
v. E.C., 130 Wis.2d 376, 386, 387 N.W.2d 72, 76 (1986) (quoted sources
omitted), cited the following language:
The authorities, in so far as any can be found on the
subject, are to the effect that a constitutional court of general jurisdiction
has inherent power to protect itself against any action that would unreasonably
curtail its powers or materially impair its efficiency.
[4] The court's right to remove members from his or her
staff is not subject to collective bargaining.
[5] In its decision, the court distinguished Crawford
County, stating:
That case held that an irreconcilable conflict existed
between the County's power to bargain collectively with the union on various
subjects of employment and the power of the clerk of court and register of
deeds to appoint and discharge deputies.
We distinguish Crawford on its facts because it apparently
involved a union exclusion of only a single chief deputy in each office.
County of Eau Claire, 190 Wis.2d at 302, 526 N.W.2d at 803 (citation
omitted).