Green Bay Professional Police Ass'n v. City of Green Bay

WISCONSIN SUPREME COURT
December 12, 2022

10:45 a.m.
2021AP102 Green Bay Professional Police Ass’n v. City of Green Bay
This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in
Wausau) that affirmed the Brown County Circuit Court order, Judge Kendall M. Kelley, presiding,
that granted summary judgment confirming an arbitration award for the City of Green Bay.
Andrew Weiss, a detective for the City of Green Bay Police Department (the
“Department”), accessed sensitive information through a confidential electronic website
regarding two sexual assault cases being investigated by the Department; Weiss was not working
on the cases. He used his girlfriend’s cell phone to provide the confidential information to a
third party outside the Department. The Department’s Professional Standards Division (the
“Division”) interviewed Weiss and provided him with a Formal complaint alleging violations of
Department policies concerning media relations, media requests, unauthorized
access/disclosure/use, and general conduct. Weiss was also provided with copies of each policy.
At a second interview, the Division gave Weiss an amended Formal complaint alleging
two additional violations: the personal communication devices general policy, and the personally
owned personal communications devices policy. The Division again provided copies of the
policies; the Division also asked Weiss to provide records from the cell phone he used to send
the information.
At a third interview, Weiss refused to provide the requested phone records. The Division
informed Weiss that this constituted obstruction of an investigation and provided Weiss with a
copy of the applicable policy.
Weiss received a Loudermill1 notice stating the charges. The notice alleged only the
violations in the original Formal complaint. At the disciplinary hearing, the Department
discussed violations in the original Formal complaint as well as those in the amended Formal
complaint. Notice was issued to Weiss imposing discipline and finding violations under two of
the violations in the Formal complaint, as well as all of the violations in the amended Formal
complaint. Weiss was removed from his detective assignment.
The Green Bay Professional Police Association (the “Association”) filed a grievance on
behalf of Weiss with the City of Green Bay Personnel Committee (the “Committee”), but waived
a hearing. The Committee denied the grievance, and the Association sought arbitration. The
Wisconsin Employment Relations Commission held an arbitration hearing.
The arbitrator found that Weiss received the due process required under Loudermill, and
that cause existed for discipline. The Association filed a declaratory judgment action with the
1
A Loudermill notice is a letter sent to a public employee that outlines the issues a disciplinary
investigation has revealed and asks whether the employee would like to share any additional information
before a decision is made. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), after which
the Loudermill notice is named, is a United States Supreme Court decision mandating that a tenured public
employee is entitled to notice of the disciplinary charges against him, along with an explanation of the
evidence the employer has against him, as well as an opportunity to present his side of the story.
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circuit court seeking vacatur of the arbitrator’s award, and then filed a motion for summary
judgment. The City filed a cross-motion for summary judgment. The circuit court granted
summary judgment to the City. The Association filed an appeal with the Court of Appeals and
the Court of Appeals affirmed the circuit court’s order granting summary judgment to the City.
The Supreme Court granted the Association’s petition to review the Court of Appeals’
decision. The issues before this court are:
1. Does providing notice to law enforcement officers of “the nature of the

investigation” prior to being interrogated, satisfy Loudermill’s requirement
that a public employee be provided with notice and an opportunity to be heard
with respect to disciplinary “charges” after a personnel investigation has been
completed?
2. Is due process satisfied when a law enforcement officer is disciplined for
“charges” never identified in either a Loudermill notice or Loudermill
hearing, simply because his employer identified the policies that eventually
led to such discipline (along with a host of others) prior to interrogating the
officer?
3. Does Loudermill limit the government’s ability to discipline its employees to
the “charges” that are actually identified in a Loudermill notice and/or at a
Loudermill hearing?
4. Did the arbitrator “manifestly disregard the law” articulated in Loudermill?
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WISCONSIN SUPREME COURT

December 12, 2022

2021AP102 Green Bay Professional Police Ass’n v. City of Green Bay

1. Does providing notice to law enforcement officers of “the nature of the

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