PFC rules against Isthmus

[What follows is the text of the ruling issued by the Madison Police and Fire Commission on Dec. 3, 1998, regarding the complaint brought by Bill Lueders of Isthmus against Lt. Dennis George Riley.]

BEFORE THE BOARD OF POLICE AND FIRE COMMISSIONERS OF THE CITY OF MADISON

DECISION AND ORDER

Bill Lueders,
Complainant
vs.
Lt. Dennis George Riley,
Respondent

Complainant Bill Lueders filed charges against Lt. Dennis George Riley on April 1, 1998. The original charges were significantly narrowed by the Board's decision to dismiss several elements of the complaint, partly granting a motion by Respondent. This decision follows hearing on the surviving charge and post-hearing argument.

Complainant alleges that respondent untruthfully represented that respondent had no knowledge of certain matters, in violation of department rule 2-1816 (Complaint, page 5) . Specifically, Complainant states "I believe that Lt. Riley violated this rule when he falsely represented to me that he had no knowledge of Patty's complaint."

Our disciplinary decisions are subject to 62.13, Wisconsin Statutes, as amended by 1993 Wisconsin Act 54. The pertinent provision of that amendment sets forth the standards which the Board must use in imposing discipline, summarized generally as "just cause" and known colloquially as the "seven standards." These standards are clearly designed to guide decisions on charges prosecuted by chiefs, but the statute does not distinguish formally between such charges and those brought by a citizen such as Mr. Lueders; we are merely directed to apply the seven standards "to the extent applicable."

Our statute provides the following text of the "seven standards"

1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.

2. Whether the rule or order that the subordinate allegedly violated is reasonable.

3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.

4. Whether the effort described under subd. 3. was fair and objective.

5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.

6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.

7. Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chief's department.

We have concluded that department rule 2-1816, the standard of conduct at issue, was known to respondent, and that it is reasonable, as required by the first two of the seven standards. As we have noted, the application of the seven standards to citizen complaints is awkward, but we have concluded that no other component of complainant's burden has been met. Complainant has not established at any satisfactory threshold level that any violation has occurred. Formally, this failure of proof may be construed as insufficiency of Complainant's case under standards 3., 5., and 6.

We observe that this is not simply a matter of unresolvable contradictions or inconsistencies among conflicting items of evidence, nor is it a matter of complainant's proof failing to rise to a necessary level of persuasion, which in this instance we believe would be a "preponderance of the evidence" as the standard is often expressed. In this case we find no evidence other than Complainant's opinion testimony that Respondent lied to the Complainant, that is, deliberately misrepresented a fact. In our view, all evidence is fully consistent with Respondent's explanation that he may have had a lapse of memory but did not intentionally misstate a fact. The evidence before us includes, but obviously is not limited to, the uncontradicted reports of Respondent's corrective action when questions regarding the correspondence at issue led to the identification and retrieval of the material. We believe that Respondent has a sound reputation for truthfulness; we believe that Respondent was truthful in our hearings; we find Respondent's explanation of forgetfulness or inadvertence fully credible and reasonable.

In the absence of sustained allegations we need not address the final standard regarding appropriate penalty.

In our deliberations we have given no weight to submissions filed by each party after the close of the briefing schedule.

Order

The Complaint filed April 1, 1998, is dismissed, with prejudice.

MADISON BOARD OF POLICE AND FIRE COMMISSIONERS

Signed by

Alan Seeger, President
Byron Bishop, Vice President
Margaret McMurray, Treasurer
Lynn Hobbie, Commissioner
Mario Mendoza, Commissioner
distribution:
Commissioners
Complainant
Atty. Schwarzenbart

[End of document.]