CHAD A WIECHERT, Complainant

CITY OF SHAWANO HOUSING
AUTHORITY, Respondent

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission makes the following:

1.   The respondent, City of Shawano Housing Authority, (hereinafter "respondent"), is an employer in the State of Wisconsin.

2.   The complainant, Chad Wiechert, (hereinafter "complainant"), applied for the job of Executive Director with the respondent in the fall of 2012.

3.   At the time the complainant submitted his application to the respondent he was employed by the Oshkosh Housing Authority as a property manager/program manager. In that job the complainant was responsible for all aspects of managing a building with 110 units, and overseeing a staff of eight employees.

4.   The responsibilities of the Executive Director with the respondent include inspecting buildings to see if they pass housing quality standards, interacting with tenants and with law enforcement personnel regarding incidents that take place on residents' property, representing the respondent at various functions, and attending meetings with other housing authority directors. The Executive Director is required to drive a vehicle in order to get to and from the different buildings.

5.   Shortly after the meeting at the bank, the complainant was interviewed for the Executive Director position by a panel consisting of several members of the respondent's board and a member of the public. During the interview the complainant was asked about his skills and his background. He was not asked any questions about his arrest or conviction record.

6.   After the complainant interviewed for the position he was contacted by Paul Winter, a member of the respondent's board, who wanted to check his references. The complainant provided the requested information.

7.   On October 10, 2012, the complainant was contacted by Mr. Wille, who asked him to sign a consent form for a background check. Mr. Wille also asked the complainant if there was anything he needed to tell him about his background. The complainant shared that he had been subject to charges of disorderly conduct while in college. Mr. Wille replied that everyone makes mistakes in college and that it was not a big deal. The complainant signed the form authorizing the background check.

8.   In addition to the disorderly conduct charges, the complainant had other arrests on his record that did not result in charges and had been issued a number of civil forfeitures. The complainant did not disclose these to Mr. Wille, on the assumption that Mr. Wille was only asking about criminal charges.(1)

9.   On October 11, 2012, the complainant was contacted by Charlene Helms, the chair of the respondent's board, who told him there was a mistake with his form and he would need to sign the background check form again. During this conversation the complainant revealed to Ms. Helms that he had a prior DUI on his record. The complainant did so because, although the DUI was not a criminal conviction, he wanted to disclose anything that could possibly be a problem. Ms. Helms told the complainant that the DUI was not a problem and that they were simply going through the procedure. The complainant signed a second consent form.

10.   On October 12, 2012, Ms. Helms called the complainant and offered him the Executive Director job. The complainant mentioned that he had signed two different consent forms and wondered whether there were any issues with his background check. The complainant told Ms. Helms that he would be resigning from his current job and would not be able to get that job back. Ms. Helms assured the complainant that there were no issues. He then accepted the Executive Director job with the respondent and resigned his position with the Oshkosh Housing Authority.

12.   After offering the complainant the job, the respondent asked the Chief of Police for the City of Shawano, Edward Whealon, to conduct a background check on the complainant. Chief Whealon performed a background check that consisted of checking the complainant's records on the Wisconsin Circuit Court Access website (hereinafter "CCAP").

16.   After reviewing the complainant's CCAP record, Chief of Police Whealon prepared a memo to Charlene Helms, dated October 15, 2012, in which he stated, in relevant part:

We have found a total of three (3) arrests of Mr. Wiechert for the following offenses which were misdemeanors(2) in nature.

1:    Criminal Damage to property(3) - 10/21/1998 Oshkosh PD
2:    Disorderly Conduct - 02/21/2002 UW Eau Claire Div Public Safeties
A second charge was read into the record of resisting or obstructing an officer (no conviction)
3:    Disorderly Conduct - 03/02/2007 Oshkosh Police Department (no
prosecution of this offense)

Further we found that on the following dates Mr. Wiechert was issued forfeiture citations for the following:

1:    Operating a motor vehicle w/intoxicated - 11/30/2006 - Winnebago County
2:    Operating a motor vehicle w/o required insurance - 11/18/2010 - Winnebago County
3:    Speeding - 11/19/2008 - Winnebago County
4:    Public Urination - 08/16/2011 - City of Oshkosh
5:    Operate Snowmobile w/o registration - 2/14/2011 - Florence County
6:    Seat Belt violation - 05/24/2012 - State of Wisconsin
7:    Seat Belt violation - 11/22/2010 - City of Oshkosh

17.   On October 18, 2012, the complainant received a call from Mr. Winter stating that the board had changed its mind and decided not to hire him. Mr. Winter explained that the mayor and the chief of police did not like his record.

18.   The respondent rescinded the job offer because of the complainant's arrest and conviction record.

19.   The Executive Director job would have included an annual salary of $45,000, reviewable in six months, and a benefit package including Wisconsin State pension and health insurance.

Based on the above FINDINGS OF FACT the commission hereby makes the following:

1.   That the complainant is an individual with both an arrest record and a conviction record, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act").

2.   That, during the time period at issue, the complainant had no pending criminal charges, within the meaning of the Act.

3.   That the circumstances of the complainant's convictions are not substantially related to the job of Executive Director, within the meaning of the Act.

4.   That the respondent discriminated against the complainant based upon his arrest and conviction record, within the meaning of the Act.

Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission hereby issues the following:

1.   That the respondent shall cease and desist from discriminating against the complainant on the basis of arrest or conviction record.

2.   That the respondent shall offer the complainant instatement to the Executive Director position or to a position substantially equivalent to that job. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford him all seniority and benefits, if any, to which he would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.

3.   That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the amount he would have earned as an employee, including pension, health insurance and other benefits, from the date of discharge until such time as the complainant resumes employment with the respondent or would resume such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment insurance or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4.   That the respondent shall pay the complainant's reasonable attorney's fees and costs associated with this matter, in the total amount of $5,338.65. A check in that amount shall be made payable jointly to the complainant and his attorney, Michael J Kuborn, and delivered to Mr. Kuborn.

5.   That within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent shall submit a copy of the Compliance Report to the complainant at the same time that it is submitted to the commission. Within 10 days from the date the copy of the Compliance Report is submitted to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.

Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. §§ 111.395, 103.005(11) and (12).

Dated and mailed July 22, 2015

wiechch_rrr . doc : 164 : 122

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

For purposes of the Wisconsin Fair Employment Act (hereinafter "Act"), the definition of the term "arrest record" is as follows:

"Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

Wis. Stat. § 111.32(1).

The definition of "conviction record" is:

"Conviction record" includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.

Wis. Stat. § 111.32(3).

The Act prohibits an employer from refusing to hire an individual on the basis of arrest record or conviction record. See, Wis. Stat. §§ 111.321 and 111.322. However, the law contains the following exceptions:

(b) Notwithstanding s. 111.322, it is not employment discrimination because of arrest record to refuse to employ. . . any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job. . . .

(c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ. . . 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. . . .

Wis. Stat. § Section 111.335(1)(b) and (c)1.

In drafting the substantial relationship exceptions, the legislature sought to strike a balance between society's interest in rehabilitating those who have been convicted of crime and its interest in protecting citizens. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 821, 407 N.W.2d 908 (1987). In County of Milwaukee the Wisconsin Supreme Court stated, in relevant part:

"This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the 'propensity' to commit similar crimes long recognized by courts, legislatures and social experience.

"In balancing the competing interests, and structuring the [statutory] exception, the legislature has had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear. The test is when the circumstances, of the offense and the particular job, are substantially related."

Id. at 823.

A finding of a substantial relationship requires a conclusion that a specific job provides an unacceptably high risk of recidivism for a particular employee. On this point the commission has held:

"The question is whether the circumstances of the employment provide a greater than usual opportunity for criminal behavior or a particular and significant opportunity for such criminal behavior. It is inappropriate to deny a complainant employment opportunities based upon mere speculation that he might be capable of committing a crime in the workplace, absent any reason to believe that the job provides him with a substantial opportunity to engage in criminal conduct. The mere possibility that a person could re-offend at a particular job does not create a substantial relationship."

Robertson v. Family Dollar Stores, Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005).

Arrest record

As Wis. Stat. § 111.335(1)(b), cited above, clearly indicates, an employer may not deny an individual a job based upon an arrest record unless there are pending criminal charges that substantially relate to the circumstances of the job. While the complainant in this case did have an arrest record, having been charged with an offense or offenses, he had no pending criminal charges at the time he applied for the job with the respondent. Consequently, the respondent could not lawfully decide to rescind his employment offer based upon his arrest record.

Conviction record

Pursuant to Wis. Stat. 111.35(1)(c)(1), it is not employment discrimination because of conviction record to refuse to employ an individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. It is the respondent's burden to establish the existence of such relationship. Robertson v. Family Dollar Stores, Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005). Further, a respondent that wishes to avail itself of the substantial relationship test is required to verify that the complainant has actually been convicted of a felony, misdemeanor or other offense. Confirmation of whether or not an individual has been convicted can be obtained by contacting the appropriate municipal, state or federal court system and requesting a copy of the official court records. McKnight v. Silver Spring Health and Rehabilitation, ERD Case No. 199903556 (LIRC Feb. 5, 2002).

The information submitted by the respondent in this case does not indicate that any of the arrests or charges against the complainant ever resulted in a conviction of a felony, misdemeanor or other offense. The only evidence the respondent submitted at the hearing on this point was Police Chief Whealon's written description of the complainant's record. However, Chief Whealon's letter constitutes hearsay and, as noted in footnotes 2 and 3 above, contains several errors and inaccuracies. The respondent did not present the CCAP records or any other documentation showing the disposition of the charges or citations it contends were issued to the complainant.

Given the respondent's failure to make its record, the only evidence available from which the commission could conclude that the complainant was convicted of any offense is the complainant's own testimony. The complainant agreed that the first two items referenced in Chief Whealon's report, the 1998 criminal damage to property charge (which was amended to a disorderly conduct charge) and the 2002 disorderly conduct charge, did result in convictions. During his testimony the complainant also conceded that he was convicted of a DUI and that he was convicted of the offense of public urination. The question to decide is whether any of these convictions, all of which were non-criminal, was substantially related to the job of Executive Director so as to justify the respondent's decision to rescind the job offer.

A determination as to whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. Goerl v. Appleton Papers, Inc., ERD Case No. 8802099 (LIRC Oct. 5, 1992). As a general rule the circumstances of the offense are to be gleaned based upon a review of the elements of the crime and an inquiry into the factual details of the specific offense is generally not required. County of Milwaukee v. LIRC, 139 Wis. 2d. 805, 823-824, 407 N.W.2d 908 (1987). However, in County of Milwaukee the court noted that, where the circumstance of the offense are not explicit, as in the case of disorderly conduct, some additional factual elucidation of the "fostering circumstances" may be warranted. Id. at 825.

In this case, the record contains very little information about the incidents that resulted in the complainant's two disorderly conduct convictions, both of which occurred when the complainant was a college student, and there is no basis from which the commission can conclude that the circumstances of those offenses are in any way related to the circumstances of the job of Executive Director. Moreover, the respondent specifically acknowledged the lack of any such relationship, having offered the complainant the job with full knowledge of the disorderly conduct violations, which it indicated were "no big deal."

The commission turns next to the offense of "public urination," another municipal ordinance violation which, like disorderly conduct, entails no clear "elements of the crime" that can be readily compared with the circumstances of the job. The most that can be said, in the absence of any additional information regarding the fostering circumstances, is that a person who has been convicted of the offense of public urination has shown a willingness to urinate in a public place when no bathroom is available. There is nothing about the job of Executive Director that would be particularly conducive to engaging in such conduct--there is no reason to believe that the Executive Director would not have access to a bathroom when one was needed, nor has the respondent provided any other information or argument that convincingly establishes a connection between the offense at issue and the job, let alone a substantial one.

At the hearing the complainant also acknowledged that he had a DUI on his record, which the commission interprets as meaning that he was, in fact, convicted of driving while under the influence. To the extent that any general character traits are revealed by having been convicted of a DUI, a non-criminal offense, they are poor judgment and a willingness to operate a vehicle after drinking. However, while the Executive Director job does entail some driving, there is nothing in the record to suggest that the complainant would be involved in any situation during the work day at which alcohol would be served, nor any reason to suspect that the complainant, who has a single DUI on his record, has any predisposition to consume alcohol during the work day. Thus, the commission sees no reason to believe that the circumstances resulting in the conviction would be likely to reoccur on the job.(4)

At the hearing the respondent also suggested, without explanation, that the complainant's DUI presented "travel concerns." However, the record contains no evidence as to how much driving the job entailed, whether the complainant would be required to drive the respondent's vehicle or could provide his own vehicle, or whether the DUI had any effect on the complainant's licensing or insurance. Consequently, there is no basis to conclude that a DUI conviction would have prevented the complainant from performing any necessary job function. Further, and significantly, the commission notes that prior to being offered the job the complainant notified the respondent that he had a DUI on his record and was told that this was not a problem.

The substantial relationship defense is aimed at preventing criminal recidivism. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987). However, it is clear from this record that the respondent was not genuinely concerned that the complainant might commit a criminal, or even a non-criminal, offense on the job. Rather, the respondent appears to have formed a belief that the complainant's arrest and conviction record, when taken as a whole, suggested that he lacked the judgment and maturity needed to be the Executive Director. On this point, Police Chief Whealon testified that the complainant's arrests and convictions were substantially related to the job because they show poor judgment and a "pattern of bad choices,"(5) and the chair of the board, Joel Whitehouse, testified that the violations show that the complainant was "not making the best decisions" and was not willing to follow the rules. The administrative law judge adopted the same reasoning in her decision, noting that the complainant is an individual not likely to follow rules and laws, and who is immature and does not exercise sound judgment. However, the law requires an analysis of whether and how a specific offense is related to the circumstances of the job, and it does not permit an employer to deny an individual an employment opportunity based upon generalized conclusions about his character gleaned from a broad reading of his arrest and conviction record. As virtually all convictions for either criminal or civil offenses demonstrate to some degree an unwillingness to follow rules and a failure in judgment, while virtually all jobs require employees to follow some rules and to exercise reasonable judgment, the effect of such interpretation would be to eliminate most individuals with conviction records from consideration for most jobs. Such a result would be inconsistent with the goals of the Fair Employment Act as well as with its plain language.

Absent any reason to believe that the complainant had pending criminal charges or a conviction record the circumstances of which were substantially related to the individual circumstances of the job such as to create an unacceptable risk of recidivism, the respondent's decision to rescind the job offer based upon the complainant's arrest and conviction record was in violation of the statute.

Non-disclosure/misrepresentation defense

In its brief to the commission the respondent argues that the complainant did not disclose everything on his record, even though he knew that if something turned up in the investigation based upon the release he had signed it could result in his not being employed. The respondent accuses the complainant of a lack of candor. This argument is without merit. At the hearing Glenn Wille testified that he did not remember if the information provided in the complainant's background check had been asked for in the interview process, and the complainant testified without rebuttal that no information was requested beyond Mr. Wille's general question about whether the complainant had anything he wanted to tell him about his background. Moreover, the complainant voluntarily told Ms. Helms, the board chairperson, about his DUI and asked her whether any aspect of his background check was a problem, as he was about to resign from his current job. Ms. Helms told the complainant there were no problems and encouraged him to provide his two-weeks' notice to his current employer. Under all the circumstances, there is no reason to conclude that the complainant failed to disclose requested information or misrepresented any information to the respondent, nor any basis to find that the respondent rescinded the job offer as a result of the complainant's conduct during the interview process. Rather, for the reasons set forth above, the commission concludes that the respondent's decision not to hire the complainant was based solely upon his arrest and conviction record and that its actions in rescinding the job offer on that basis constituted unlawful discrimination.

Attorney's fees

The complainant's attorney has requested a total of $5,338.65 in costs and fees associated with this matter. This request reflects a total of 26.2 hours of work at $200 an hour, along with $98.65 in costs. The respondent has indicated that it does not object to the amounts requested by the complainant's attorney and, based upon its review of the fee petition, the commission finds the fees and costs requested to be reasonable.

NOTE: The commission did not confer with the administrative law judge who held the hearing about credibility prior to reversing. The commission's reversal is as a matter of law and is not based upon a differing assessment of witness credibility.

cc: Attorney Michael J. Kuborn
     Attorney Timothy J. Schmid

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(1)( Back ) In fact, the disorderly conduct charges filed against the complainant were municipal ordinance violations punishable only by a forfeiture, and therefore not considered to be "criminal." See, Wis. Stat. § 939.12.

(2)( Back ) None of the enumerated offenses constituted misdemeanors, as all were violations of municipal ordinances. Conduct punishable only by a forfeiture is not a criminal offense. Wis. Stat. § 939.12.

(3)( Back ) Although not reflected in Chief Whealon's report, the criminal damage to property charge was amended to disorderly conduct.

(4)( Back ) While the respondent expressed a concern about the complainant being drunk in public or intoxicated at events, nothing about the complainant's conviction record suggests that he would be prone to such behavior.

(5)( Back ) It is clear that Chief Whealon's concerns went well beyond considerations that are permissible under the statute. For example, Chief Whealon testified that he found a 2007 disorderly conduct arrest to be "significant," even though he was aware no prosecution resulted. He also indicated that the job entailed overseeing large sums of money and stated that the complainant's record raised "trust issues," notwithstanding the fact that none of the complainant's convictions were related to theft or dishonesty. 

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