Wisconsin Supreme Court affirms Court of Appeals for Green Bay Police detective removed from duty after accessing sensitive information

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By Steve Schuster
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The Wisconsin Supreme Court affirmed the Court of Appeals decision Thursday morning in the case of Andrew Weiss, a Green Bay Police detective who was accused of accessing sensitive information.

The Court of Appeals had affirmed the Circuit Court’s order granting summary judgment to the city.

In Thursday’s Supreme Court decision, Chief Justice Jill J. Karofsky delivered the majority opinion of the Court, in which Chief Justice Annette Kingsland Ziegler, Justices Ann Walsh Bradley, Patience Drake Roggensack, Rebecca Frank Dallet, and Brian Hagedorn joined.

“We afford a high level of deference to arbitration decisions because of the contractual nature of arbitration agreements. Given this deference, the arbitrator did not exceed his powers, and so we likewise affirm,” Karofsky wrote.

Chief Justice Annette Kingsland Ziegler filed a concurring opinion. Justice Rebecca Grassl Bradley filed a concurring opinion.

“In future cases, however, parties must ensure the record contains the contract language establishing the scope of the arbitrator’s powers. Arbitration agreements are no different from all other contracts. Our duty is to read the contract language and ensure the parties received the arbitration they bargained for. The arbitration agreement may very well call for us to apply a “manifest disregard” standard — or it may not. Either way, fulfilling our duty to enforce the arbitration agreement as written becomes nearly impossible when the parties omit it from the record,” the concurring opinion states.

Weiss retired in “good standing” from the Green Bay Police Department, department officials told the Wisconsin Law Journal during an interview Thursday.

According to Green Bay City Attorney Joanne Bungert, city records indicate that Andrew Weiss was hired on Feb. 5, 1995, and retired on February 27, 2021.

“The City is content the matter has been concluded and has no further comment with respect to the opinion issued.  All other relevant facts are contained in the court briefs filed by the parties,” Bungert said Thursday in a written statement to the Wisconsin Law Journal.

Jim Palmer, the Executive Director of the Wisconsin Professional Police Association who was not a party to the case said he was not surprised by Thursday’s Supreme Court ruling.

“We’re not incredibly surprised by the Court’s decision today. I don’t think it will change anything as far as how we approach Loudermill hearings from officers across the state,” Palmer said.

As previously reported by the Wisconsin Law Journal, The Wisconsin Supreme Court announced Tuesday it will release its decision Thursday on Weiss, a detective for the city of Green Bay Police Department who has been removed from his detective assignment after accessing sensitive information through a confidential electronic website regarding two sexual assault cases being investigated by the department, according to court documents obtained by the Wisconsin Law Journal.

Weiss was not working on the cases and used his girlfriend’s cell phone to provide the confidential information to a third party outside the department, court documents state.

The Department’s Professional Standards Division interviewed Weiss and provided him with a formal complaint alleging violations of department policies concerning media relations, media requests, unauthorized access/disclosure/use, and general conduct. Weiss was also provided with copies of each policy, documents state.

At a second interview, the division gave Weiss an amended formal complaint alleging two additional violations: the personal communication devices general policy, and the personally owned personal communications devices policy. The division again provided copies of the policies and asked Weiss to provide records from the cell phone he used to send the information, according to court documents.

At a third interview, Weiss refused to provide the requested phone records. The division informed Weiss that this constituted obstruction of an investigation and provided Weiss with a copy of the applicable policy. Weiss received a  “Loudermil” notice stating the charges. The notice alleged only the violations in the original formal complaint. At the disciplinary hearing, the Department discussed violations in the original formal complaint as well as those in the amended formal complaint. Notice was issued to Weiss imposing discipline and finding violations under two of the violations in the formal complaint, as well as all of the violations in the amended formal complaint.

A Loudermill notice is a letter sent to a public employee that outlines the issues a disciplinary investigation has revealed and asks whether the employee would like to share any additional information before a decision is made. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), after which the Loudermill notice is named, is a United States Supreme Court decision mandating that a tenured public employee is entitled to notice of the disciplinary charges against him, along with an explanation of the evidence the employer has against him, as well as an opportunity to present his side of the story.

The Green Bay Professional Police Association filed a grievance on behalf of Weiss with the City of Green Bay Personnel Committee, but waived a hearing.

The committee denied the grievance, and the association sought arbitration. The Wisconsin Employment Relations Commission held an arbitration hearing. The arbitrator found that Weiss received the due process required under Loudermill, and that cause existed for discipline. The association filed a declaratory judgment action with the Circuit Court seeking vacatur of the arbitrator’s award, and then filed a motion for summary judgment. The city filed a cross-motion for summary judgment. The Circuit Court granted summary judgment to the city. The association then filed an appeal with the Court of Appeals and the Court of Appeals affirmed the Circuit Court’s order granting summary judgment to the city. The Wisconsin Supreme Court granted the Association’s petition to review the Court of Appeals’ decision.

The issues before this court are:

1. Does providing notice to law enforcement officers of “the nature of the
investigation” prior to being interrogated, satisfy Loudermill’s requirement
that a public employee be provided with notice and an opportunity to be heard
with respect to disciplinary “charges” after a personnel investigation has been
completed?

2. Is due process satisfied when a law enforcement officer is disciplined for
“charges” never identified in either a Loudermill notice or Loudermill
hearing, simply because his employer identified the policies that eventually
led to such discipline (along with a host of others) prior to interrogating the
officer?

3. Does Loudermill limit the government’s ability to discipline its employees to
the “charges” that are actually identified in a Loudermill notice and/or at a
Loudermill hearing?

4. Did the arbitrator “manifestly disregard the law” articulated in Loudermill?

This story has been updated.

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