Due Process Violation – Arbitration Award

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WI Court of Appeals – District III

Case Name: Green Bay Professional Police Association, et al., v. City of Green Bay

Case No.: 2021AP102

Officials: Stark, P.J., Hruz and Gill, JJ.

Focus: Due Process Violation – Arbitration Award

The Green Bay Professional Police Association (hereinafter, “the Association”) and Andrew Weiss (hereinafter, “Weiss”), appeal a summary judgment granted in favor of the City of Green Bay (hereinafter, “the City”), confirming an arbitration award. The arbitrator concluded that Weiss violated various Green Bay Police Department (hereinafter, “the Department”) policies by accessing information contained in confidential Department files without authorization and by leaking that information to third parties outside of the Department. The arbitrator therefore determined that the Department had cause to remove Weiss from his position as detective and assign him to the patrol division—which resulted in Weiss’s loss of an eighty-dollar monthly stipend.

The Association argues that the circuit court erred by failing to conclude that Weiss’s due process rights were violated by the City taking his property without it having first provided Weiss with notice of all of his claimed Department policy violations. More specifically, the Association asserts that Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), limits a municipality’s ability to impose discipline to only those infractions actually identified in a pre-determination notice and at a pre-determination hearing, and that discipline can only be imposed based on allegations identified in the “Loudermill notice.” The Association claims that Weiss was denied due process because, prior to a hearing on his alleged policy violations, the Department failed to provide him with notice in a Formal Complaint Against Personnel (hereinafter, “Formal Complaint”) of all of the policies it later determined that he violated and on which it based its disciplinary decision. The Association further argues that the court erred in affirming the arbitration award because the arbitrator manifestly misconstrued the law provided in Loudermill. Finally, the Association asserts that the arbitrator misconstrued the labor agreement in determining there was just cause for Weiss’s removal from his detective assignment.

We conclude that the circuit court properly rejected the Association’s arguments and confirmed the arbitration award. The pre-disciplinary oral and written notices provided to Weiss, as well as the interviews and the pre-determination meeting itself, collectively gave Weiss actual notice of the grounds for his discipline and an opportunity to be heard, such that the requirements of Loudermill were satisfied. That process coupled with Weiss’s extensive post-disciplinary opportunities for review fully satisfied his due process rights. We therefore reject the Association’s claim that the arbitrator misconstrued the law and the labor agreement by finding that the Department had cause to remove Weiss from his detective assignment. Accordingly, we affirm.

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Derek A Hawkins is Corporate Counsel, at Salesforce.