STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

BERNARD COLLINS, Complainant

MILWAUKEE COUNTY CIVIL SERVICE COMMISSION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8822724


An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 2, 1990. Complainant filed a timely petition for review by the Commission, and submitted written arguments in support of his petition. Respondent relied on its brief submitted to the Administrative Law Judge and did not submit further written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

FINDINGS OF FACT

1. The Respondent, Milwaukee County, operates a secure detention facility known as the Children's Court Detention Center in which certain juveniles subject to Children's Court jurisdiction are housed.

2. On November 12, 1985 the County announced that applications would be accepted and a Civil Service examination would be held for the position of Juvenile Correctional Worker, to be assigned to the Children's Court Detention Center.

3. According to the announcement, the duties of the Juvenile Correctional Worker were to maintain a safe and secure environment for all youths who were assigned to the Children's Court Detention Center, to escort youths to and from all daily scheduled activities, to check the census at the beginning of an assigned shift and after escorting youths back from an activity, to conduct impromptu searches and daily security inspections of living quarters, to prepare and submit forms for maintenance and repair, to assist in the intake and release process, to supervise the daily cleaning of the living quarters, to supervise daily showers, to issue clean clothing and linen, to protect youths from peer intimidation and physical confrontations, to restrain hostile and belligerent youths when necessary, to prepare reports, and to perform such other duties as may be assigned.

4. The announcement also indicated that Juvenile Correctional Worker's were required to meet all employment standard requirements of the Wisconsin Law Enforcement Board. A standard of the Wisconsin Law Enforcement Board, reflected in Wisconsin Administrative Code chapter LES 2.01(1)(c), is that an individual commencing employment as a jail officer shall not have been convicted of any federal felony or of any offense which if committed in Wisconsin could be punished as a felony, unless granted an absolute and unconditional pardon. The position of Juvenile Correctional Worker in the Milwaukee Children's Court Detention Center was a jail officer position within the meaning of this rule, as defined by Wisconsin Administrative Code chapter LES 1.03(6) and (7).

5. Complainant Bernard Collins filed an application for the position of Juvenile Correctional Worker on November 21, 1985.

6. Collins was convicted of armed robbery, a felony, in 1976. He has not been granted a pardon. The application materials he completed called for the applicant to indicate whether he or she had ever been convicted of any violation of law other than minor traffic violations, and Collins indicated that he had.

7. Collins was permitted to participate in the examination for the position of Juvenile Correctional Worker, received a passing score, and was placed on the list of persons eligible for appointment to the position.

8. After Collins was placed on the eligible list, he was contacted by Joanne Lamp, a Human Resources Analyst in the Milwaukee County Department of Human Resources, who sought to obtain information concerning the indication he had given on his employment application that he had been convicted of a crime. In their conversation, Lamp obtained from Collins the information that he had been convicted of armed robbery in 1976 resulting in a four-year prison sentence, and that he had been convicted of shoplifting in 1980 resulting in a sentence of one year of probation and restitution.

9. On January 28, 1989, Lamp, who had as of that point taken the position of Human Resources Coordinator for the Milwaukee County Department of Social Services, wrote to the Department of Human Resources requesting that the names of Collins and a number of other persons be removed from the eligibles list for the position of Juvenile Correctional Worker because they had been convicted of felonies and therefore did not meet all employment standard requirements of the Wisconsin Law Enforcement Board. In response, the Department of Human Resources removed Collins' name from the eligibility list. Collins was subsequently informed of the removal of his name from the eligibility list because of his felony conviction record.

10. The County barred Collins from employment as a Juvenile Correctional Worker because of his felony conviction record.

Based on the FINDINGS OF FACT made above, the Commission makes the following:

CONCLUSIONS OF LAW

1. Respondent Milwaukee County is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The circumstances of Collins ' conviction for armed robbery in 1976 substantially relate to the circumstances of the position of Juvenile Correctional Worker, within the meaning of sec. 111.335 (1)(c)1, Stats.

3. Respondent Milwaukee County did not discriminate against Collins because of conviction record, within the meaning of sec. 111.335, Stats., when it barred him from employment as a Juvenile Correctional Worker.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission makes the following:

ORDER

That the complaint in this matter be dismissed.

Dated and mailed March 8, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

It is not disputed that Milwaukee County barred Bernard Collins from employment as a Juvenile Correctional Worker because of his felony conviction record. Milwaukee County relies on the affirmative defense in sec. 111.335 (1) (c) 1, Stats., which provides:

"Notwithstanding sec. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, any individual who:

1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity."

Collins argues that the County cannot avail itself of this affirmative defense because it did not, at the time it made the decision, actually conduct any inquiry into the question of whether the circumstances of the offense and the job were substantially related. Rather, Collins argues, the County barred him from employment solely because he had been convicted of a felony. Thus, Collins in effect argues that the "substantially related" test is a standard against which a reviewing tribunal must measure the actual subjective decision-making process of the employer as of the time the challenged decision is made.

A proper appreciation of Collins' theory requires an understanding of an important consequence of it. If Collins is correct, then situations could conceivably arise in which the Commission would be obliged to order a complainant hired into a position, notwithstanding that an after-the-fact analysis demonstrates conclusively that the individual has a conviction record substantially related to the position in question, simply because the decision-making employer did not undertake this analysis at the time of the decision.

Collins' argument is rejected.

"The substantial relation test provided for in sec. 111.335, Stats., is an objective legal test, not a test of the employer's motives. It is an affirmative defense, and if it is demonstrated at hearing to have been applicable as a matter of law to a challenged decision, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had a conscious intention or belief that it was acting because of 'substantial relationship' between certain offenses and the job. Such a belief on the part of the employer would not shield the employer, no matter how strongly and honestly the employer held the belief, if it were not a legally appropriate conclusion under all the circumstances. By the same token, where a finding of a 'substantial relationship' is legally appropriate, it does not matter whether this was the basis on which the employer subjectively acted." Black v. Warner Cable Communications (LIRC, July 10, 1989).

None of the three supreme court decisions interpreting sec. 111.335, Law Enforcement Standards Board v. Lyndon Station, 101 Wis. 2d 472 (1981), Gibson v Transportation Commission, 106 Wis. 2d 22 (1982), and County of Milwaukee v. LIRC and Serebin, 139 Wis. 2d 805 (1987), provide any support for Collins' argument. On the contrary, they support the conclusion arrived at herein.

In Law Enforcement Standards Board v. Lyndon Station, there was no indication that the Law Enforcement Standards Board had made any analysis whatsoever of whether the circumstances of the convictions there involved were substantially related to the position at issue. Rather, it acted solely on the basis of a determination that the individual in question had been convicted of felonies. The supreme court was obviously not troubled by this fact. It conducted its own analysis of the "substantially related" question, 101 Wis. 2d at 492-93, and arrived at its own determination that there was a substantial relation between the circumstances of the offenses and the circumstances of the position.

In Gibson v. Transportation Commission, while the licensing agency did in fact consider and make a determination upon the question of whether the circumstances of the offense were substantially related to the circumstances of the licensed activity at the time of its decision, nothing in the supreme court's decision suggests that this fact was necessary to the result. Rather, the court again conducted its own independent analysis of the "substantially related" question. 106 Wis. 2d at 28.

In County of Milwaukee v. LIRC and Serebin, contrary to the argument made by Collins in his brief, there was no indication that the county had made any determination that offense and circumstances were "substantially related." On the contrary, the commission made a specific finding of fact that the complainant therein had been discharged based upon the newspaper report of his conviction and because of concerns over adverse publicity to the county connected with its employment of the complainant in view of this reported conviction, without verifying the conviction or inquiring into the surrounding circumstances. 139 Wis. 2d at 812. That finding of fact was not overturned by the supreme court. Rather, it reversed based on a conclusion that the Commission had misapplied the legal standard involved. As in the previous decisions, the court conducted its own analysis of and inquiry into the question of whether offense and position were substantially related. 139 Wis. 2d at 828-29.

It is evident from the language of the supreme court in Serebin that the "substantially related" test is intended to be a legal test, applied after the fact by the reviewing tribunal, not a test of the subjective intent of the decision-maker. Defining the central issue in the case, the court stated:

"The basic question is: what is the nature of the inquiry required by sec. 111.32 (5)(h)2b? Answering this question requires that this court determine what the legislature intended when it chose to phrase the exception in terms of the 'circumstances' of the offense and 'circumstances' of the particular job. Depending on what meaning is ascribed to the term 'circumstances,' the question remains: what procedure is required in order that courts may assess the 'circumstances' in the particular case?" 139 Wis. 2d at 818. (emphasis added)

Further indication that the test is one to be applied independently by, reviewing tribunals is found in the court's statement that:

"Actions taken by an employer or licensing agency which might normally constitute discrimination are, by definition, deemed not to be 'unlawful' if it can be shown that the circumstances of the offense substantially relate to the circumstances of the particular job or licensing activity." 139 Wis. 2d at 820. (emphasis added)

The use of the phrase "if it can be shown that" clearly anticipates a showing in a subsequent trial. Thus, the court did not say that actions taken by an employer which might normally constitute discrimination would, by definition, be deemed not to be "unlawful" if the employer could show that it had concluded at the time that the circumstances of the offense substantially related to the circumstances of the particular job or licensing activity.

Complainant's argument also ignores the teaching of the supreme court in Serebin, that a purpose of the affirmative defense at issue herein is to avoid forcing employers to assume risks of repeated conduct by those whose conviction records show them to have the propensity to commit similar crimes. 139 Wis. 2d at 823.  As noted, Complainant's construction of the statute could require the Commission and courts to affirmatively order an employer to hire a person for a position notwithstanding that an independent, after-the-fact analysis conclusively demonstrates that the person has a conviction record which substantially relates to the position in question, thus creating precisely the situation which the Legislature intended to avoid.

For these reasons, the commission concludes that the failure of the Respondent in this case to have made its own inquiry into and decision on the existence of a "substantial relationship" is not relevant to the applicability of sec. 111.335(1)(c)(1), Stats. The Commission carries out such an inquiry independently. Doing so, it arrives at the conclusion that the circumstances of the offense for which Complainant Collins was convicted in 1976, armed robbery, were substantially related to the circumstances of the position of Juvenile Correctional Worker.

The circumstances of the offense of armed robbery are substantially related to the position of school bus driver. Gibson v. Transportation Commission, 106 Wis. 2d at 29. The Commission considers it obvious from this that the circumstances of the offense of armed robbery would also be substantially related to the position of Juvenile Correctional Worker, a position that supervises young persons assigned to the Children's Court Detention Center. The characteristics which the court indicated in Gibson would be needed by a school bus driver, those being extreme patience, levelheadedness and avoidance of the use of force, 106 Wis. 2d at 28, and which the court found were contradicted by the propensities evidenced by an armed robbery conviction, are certainly necessary in what is in effect a job as a prison guard for juvenile detainees. That job involves similar responsibility for juveniles, but in a much more difficult situation than that presented on a school bus.

The Commission's conclusion that the offense herein was substantially related to the position makes it unnecessary for it to consider the arguments raised by Complainant, that the Administrative Law Judge improperly allowed certain evidence offered by the County in an effort to call into question whether Complainant had suffered any real loss by virtue of the removal of his name from the eligibility list.

NOTE: The Commission wishes to specifically indicate that, in deciding this matter, it has not given any consideration to the testimony of the Assistant Attorney General who was called as an expert witness by the County, on the question of whether Collins' conviction for armed robbery was substantially related to the position in this case. The point of allowing expert testimony is to allow the trier of fact to better understand the evidence or determine a fact in issue. Sec. 907.02, Stats. While in certain limited circumstances relating to establishment of the content of law from foreign jurisdictions, it may be appropriate to call attorneys as expert witnesses to testify as to what the law is, this is because in those limited circumstances the question of the nature of the foreign law is considered to be a question of fact. Witt v. Realist, Inc., 18 Wis. 2d 282, 289-90 (1962). There is no reported authority in Wisconsin recognizing the appropriateness of calling an attorney as an expert witness on an issue of domestic law which is an issue for the judge in the case. The commission considers that, where the facts of record concerning the circumstances of the offense and the circumstances of the position are undisputed, the question of whether there is a "substantial relation" between the two is purely a question of law. "Opinions" on that question, however offered, are actually no more than argument. Argument should be presented as such, not in the guise of "expert testimony" from attorneys sworn as witnesses.

The Commission has issued its own decision in this matter principally in order to set forth more fully the basis upon which it arrived at the same result as the Administrative Law Judge.

110


Appealed to Circuit Court.  Affirmed October 18, 1991.  Appealed to Court of Appeals.  Affirmed December 15, 1992, unpublished per curiam decision.

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