STEPHEN M. NAGY, Complainant
FOX VALLEY TECHNICAL COLLEGE and VICTOR BALDI, Respondents A and B
An Administrative Law Judge for the Equal Rights Division ('ERD") of the Department of Industry, Labor and Human Relations issued an Order of Dismissal in this matter on September 29, 1995. That Order recited that the parties had informed the Administrative Law Judge that they had entered into a private settlement, that they had requested that the terms of the settlement remain confidential, and that the Complainant had requested the dismissal of the complaint based upon that confidential settlement. On that basis the Administrative Law Judge ordered the complaint dismissed with prejudice.
The Order was accompanied by a Notice of Appeal Rights which indicated that any party who was dissatisfied with the attached Decision and Order of the Administrative Law Judge could file a written petition for review by the Labor and Industry Review Commission.
On or about October 19, 1995 the Complainant filed a letter with the Division which indicated that he had previously been advised by the Chief of the ERD Hearing Section that he could file a petition for review of the Administrative Law Judge's decision "in order to get an audience for [his] concerns about the way he handled [the] hearing". The letter concluded with the heading, "PETITION FOR REVIEW" and the statement, "Please consider this a petition for review of Judge James Schacht's handling of my case, within the framework of applicable appeal rights provided by Wisconsin law".
In a subsequent letter to the commission, the Complainant sought leave to file an affidavit containing a description of the conduct of Judge Schacht during settlement discussion held on June 7, 1995. The Complainant's letter stated, in part, "My dissatisfaction with the outcome of this matter focuses specifically on the conduct of Administrative Judge James Schacht in handling the pre-hearing settlement conference..."
As noted, the matter had been scheduled for hearing on June 7, 1995, and on that day the parties and the Administrative Law Judge engaged in discussions following which a settlement agreement was arrived at. By at least as early as July 6, 1995, the Complainant had objected in writing (by way of a letter to the Administrative Law Judge) to the conduct of the Administrative Law Judge in the settlement discussions. However, the Complainant did not assert in his letter of July 6, 1995, or in the "Incident Report" which he attached thereto, that he believed that a settlement had not been arrived at or that he was unwilling to comply with the terms of any settlement agreement arrived at. Thereafter, on September 27, 1995 the Complainant filed with the Division a written request for the withdrawal of his complaint, giving as a reason therefor that the Respondent Fox Valley Technical College had entered a stipulation of settlement with Complainant. The Order for Dismissal was then issued.
Based on the above the commission finds and concludes that the Complainant is not seeking modification or reversal of the Administrative Law Judge's Order of Dismissal, and that the October 19, 1995 letter from Complainant was not intended as a Petition for Review of that Order of Dismissal. The commission finds and concludes that Complainant is in fact seeking commission review solely and specifically of certain conduct of the Administrative Law Judge during settlement discussion held on June 7, 1995.
The commission's review authority under sec. 111.39(5), Stats. extends solely and specifically to review of the "findings and order[s]" of examiners. There having been no request for review of the Order of Dismissal of the Administrative Law Judge in this case, the commission has no authority to act. It therefore issues the following:
The Complainant's petition for review is dismissed.
Dated and mailed November 22, 1995
nagyst . rpr : 110 :
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ David B. Falstad, Commissioner
The commission wishes to emphasize that its decision in this case does not involve a matter of "standing." The commission has recognized, with respect to its review authority in the parallel area of housing discrimination, that "a party who is merely 'dissatisfied' with the Department's decision may in turn seek review before the Commission . . . [this] would allow parties not adversely affected by the Department's decision to nonetheless appeal to the Commission if they felt themselves to be 'dissatisfied' with something such as the ALJ's rationale." Metropolitan Milwaukee Fair Housing council v. Goetsch (LIRC, December 6, 1991)
Even such an interpretation of the enabling statutes, however, recognizes that the right of commission review is implicitly limited to review of Administrative Law Judge's written decisions and their actual Orders ("findings and order," in the language of sec. 111.39(5), Stats.). Where a party is not even asking the commission to review or make any changes in the written findings and Order issued by the Administrative Law Judge, but only to make what amounts to an advisory pronouncement that something the Administrative Law Judge did before issuing that decision was improper, there is simply no basis on which the commission may act. The commission does not employ, supervise, or otherwise control the Administrative Law Judges of the Department of Industry, Labor and Human Relations. It reviews the final and appealable written decisions which they issue in cases before them.
cc: Attorney Dennis W. Rader
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