STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RICHARD HARRIS, Complainant

BERLIN CHAMBER OF COMMERCE, Respondent A

CITY OF BERLIN BUSINESS IMPROVEMENT DISTRICT, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 9401702

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter on September 21, 1995. A timely petition for review was filed. The commission received the file from the Division on October 25, 1996.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed December 4, 1996
harriri.rsd : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant takes issue with several of the findings of fact made by the administrative law judge. Specifically, the complainant disagrees with the administrative law judge's findings that Respondent B did not set his hours of work or supervise his daily activities, that there was considerable overlap between his job duties and those of Mr. Casey, that he was given a signed check for the purchase of a computer, and that it would have been his responsibility to instruct the city to begin incentive payments with respect to lease agreements. Based upon its independent review of the record, the commission concludes that the findings of fact in question are supported by the witness testimony and documentary evidence presented at the hearing. The commission also notes that, although the complainant argues that portions of the testimony are untrue, the complainant elected not to testify on his own behalf and offered nothing to rebut the testimony in question. Moreover, the complainant has failed to clarify the significance of the challenged findings or to explain how they adversely affected the outcome of the case, and the commission sees no reason to conclude that they did so. The undisputed evidence presented at the hearing established that the complainant's job duties included fund raising and accepting membership dues, and that the complainant would have been called upon to work unsupervised in an office in which blank checks and large amounts of cash were frequently on hand. Further, in addition to the opportunity for fraud presented by the complainant's handling of funds, the respondents credibly explained that the complainant's job entailed acting as a public relations representative and that there was a concern that his conviction record might result in a public relations problem for the respondents. Thus, even if there were some basis for concluding that the findings of fact in question were made in error, the record nevertheless contains ample evidence to support the conclusion that the complainant's criminal conviction for mail fraud, bank fraud, and interstate transportation of forged securities was substantially related to the circumstances of the position in question.

In his petition the complainant also contends that, because his criminal conviction was based solely upon circumstantial evidence, there is no evidence to determine whether it substantially relates to the circumstances of the job. This argument is without merit. A criminal conviction may be based upon circumstantial evidence, and there is nothing in the record to suggest that the complainant's conviction has been overturned. Moreover, in determining whether a conviction is substantially related to the circumstances of a particular job, the statute does not contemplate an inquiry into the evidence presented at the criminal trial. Rather, the question to consider is whether the circumstances of the offense for which the employe has been convicted relate to the particular circumstances of the job. In this case, the circumstances of the complainant's criminal conviction indicate a propensity to act dishonestly in order to obtain money, and a job entailing fund raising and the collection of dues bears a substantial relationship to that conviction.

Finally, the complainant argues that, although the Wisconsin Fair Employment Act (hereinafter "Act") provides that it is not discrimination to terminate the employment of an individual who has a criminal conviction substantially related to the circumstances of the job, a convicted felon does not lose any civil rights guaranteed under the United States Constitution or the constitution of the State of Wisconsin. The complainant indicates that the respondents engaged in a conspiracy to violate his civil rights and, further, that he was discharged without a formal hearing, which had the effect of producing a constitutionally prohibited "bill of pains and punishments" against him. The complainant has not bothered to develop these constitutional arguments, and the commission cannot be entirely certain how to interpret his allegations. Although the complainant suggests that he was deprived of constitutionally guaranteed rights, he has not demonstrated that his constitutional claims fall within the purview of the Act. To the extent the complainant may be challenging the constitutionality of the Act itself, the commission is unable to consider this argument, as an administrative agency is without authority to rule on the constitutionality of the statutes which it is authorized to enforce. See McManus v. Revenue Dept., 155 Wis. 2d 450, 454, 455 N.W.2d 906 (Ct. App. 1990).

cc: JOHN M. BLAZEL
MILTON SPOEHR

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