Wis.LIRC ER Decision: Pustina, Marion - April 27, 1993 - Settlement - A settlement memorialized on the record at hearing is as conclusive as one which is reduced to writing and is signed by the parties; thus, once entered into by all parties on the record, such a settlement is final

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

MARION PUSTINA, Complainant

FOX & FOX, S.C., Respondent A

FOX, FOX, SCHAEFER & GINGRAS, S.C., Respondent C

FAIR EMPLOYMENT DECISION
ERD Case No. 9100377

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued an Order of Dismissal in the above-captioned matter on November 9, 1992. Complainant filed a timely petition for review by the Commission.

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

ORDER

The Order of Dismissal of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed April 27, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

Two days after the hearing held in this matter on September 23, 1992, Complainant wrote to the Administrative Law Judge and asserted that while she may have understood the words which were spoken in the settlement discussions on the day of hearing, she did not exercise good judgment in agreeing to the settlement without legal counsel and therefore could not agree to the settlement. Her present petition to review the Order of Dismissal which the Administrative Law Judge eventually issued rests on essentially the same assertions. However, these assertions are made too late. Based on a review of a transcript of the hearing the Commission has concluded that Complainant and Respondent entered into a full and final settlement of this matter at that time. It is appropriate to treat a settlement thus memorialized as being as conclusive as one which is reduced to writing and is signed by the parties. Once entered into by all parties, either in a writing or on the record, such a settlement is final.

In the absence of an allegation of misrepresentation or intimidation by a representative of the Department, and where there is nothing in the terms of the settlement agreement itself which makes it invalid, the Commission will not entertain collateral attacks on the finality of a settlement based on a party's claim that their attorney misrepresented the agreement to them or exceeded the scope of his or her authority in agreeing to it. Clussman v. Ellis Stone Construction Co. (LIRC, March 25, 1986). This rule reflects not only the important policy of making parties accountable for actions of their attorneys, see, Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d 865 (1977), but also the equally important policy that settlement should be encouraged. There would be no incentive to enter into a settlement if, once entered into, it could be repudiated simply because one party thought better of it later. If settlement is to be encouraged, settlements must be treated as final when made. This same consideration applies in cases in which a party not represented by an attorney has entered into a settlement agreement knowingly and voluntarily.

The Commission agrees with the Administrative Law Judge that this was the case here. The Complainant quite evidently understood exactly what the terms of this settlement agreement were, including what expenses it was contemplated she would be reimbursed for. She was not subject to any pressure by the Administrative Law Judge to either enter into discussion of the possibility of settlement in the first place or to enter into the actual settlement. She had had many months prior to the hearing to obtain counsel to replace her previous attorney who had withdrawn, and at the hearing she made no objection to proceeding based on lack of counsel. Complainant has simply had second thoughts about the agreement she entered into. The commission will not disregard a voluntary settlement agreement on the basis of such second thoughts. Petitions for review may be filed by parties who are dissatisfied with the order of the Administrative Law Judge. Sec. 111. 39 (5) (a) , Stats. Complainant's voluntary settlement agreement precludes her from now maintaining that she is dissatisfied with the Order of Dismissal which was part of what she agreed to.

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