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Court upholds firing of Milwaukee officer who punched woman (UPDATE)

A state Court of Appeals has ruled that a board did not act outside its authority when it changed its decision to suspend a Milwaukee police officer.

Milwaukee Police Chief Ed Flynn discharged Officer Richard Schoen in May 2012 for the use of excessive force in a arrest the previous September. Schoen was accused of grabbing a handcuffed woman from the back seat of his squad car, punching her in the head while still holding onto her shirt, then grabbing her hair, throwing her on the ground and kneeing her in the stomach.

Schoen appealed to the Board of Fire and Police Commissioners. The result was a two-phase hearing that took place in November 2012. The board eventually concluded that Schoen’s behavior warranted discipline and that Schoen should be suspended for 60 days.

But before the board had issued its written decision, it reconvened, reconsidered the appeal and then, reversing course, decided to agree with Flynn that Schoen should be discharged.

This time, Schoen appealed to the Milwaukee County Circuit Court, alleging the board had overreached its authority in reconsidering its initial decision to suspend him. He further alleged that the board had been under political pressure to reverse course and that it had therefore violated his right to due process.

The court rejected his arguments and sided with the board. In particular, it found that the board had rightly reconsidered its decision in response to an error of law, that it had authority to reconsider its decision to suspend Schoen and that it had not violated Schoen’s right to due process.

The District 1 Court of Appeals’ decision on Tuesday affirmed the circuit court’s conclusion.

In his appeal, Schoen had argued that the board did not have the power to change its oral decision because it had no inherent authority in the matter and that, in reversing course, had exceeded its jurisdiction. Moreover, Schoen contended that he had not received adequate notice that the board had reconvened.

The appeals court disagreed with all three points. The court noted that Wisconsin has long acknowledged quasi-judicial bodies’ inherent power to reconsider their own decisions and has repeatedly recognized that administrative agencies have the authority to reopen, review and modify decisions.

That authority, according to the appeals court, is exactly what the board exercised in Schoen’s case.

In reconvening, Michael O’Hear, a Marquette law professor, asked the board to reconsider the penalty decision because he had applied the wrong legal standard.

According to Fire and Police Commission Rule XVI, Section 14, the board was supposed to weigh whether discipline was merited for Schoen after considering the reasonableness of his conduct. Anyone deciding to imposing discipline, in turn, was supposed to take into account the so-called “good of the service” and consider the effects of the alleged misconduct on the complainant, department and community.

O’Hear had said he realized that he had not taken “the good of the service” properly into account.

The court noted that a decision to side with Schoen would have challenged the Legislature’s lawmaking authority. It also would have meant that there would be no way for an administrative agency to correct a decision except by filing an appeal to the circuit court and explaining how it had exceeded its own authority by applying the wrong law.

“We are not prepared to impose such an unnecessary journey through the judicial system and a waste of judicial resources when the legislature did not specifically direct us to do so,” according to Tuesday’s opinion.

About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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