GENTILLI v. BOARD OF POLICE, 2006 WI App 130

294 Wis.2d 698, 717 N.W.2d 853

No. 2005AP1818.Court of Appeals of Wisconsin, District IV.
May 9, 2006.

APPEAL from an order of the circuit court for Dane County: MORIA KRUEGER, Judge. Affirmed.

Before Fine, Curley and Kessler, JJ.

CURLEY, J.[1]

¶ 1 Chris Gentilli appeals from the order affirming the decision of the Madison Board of Police and Fire Commissioners (the board) to terminate Gentilli’s employment with the City of Madison Fire Department. The case was before the circuit court on certiorari review. Gentilli contends that he was discharged under fire department rules that are unconstitutionally vague as applied. We disagree and affirm the circuit court.[2]

I. BACKGROUND. ¶ 2 Gentilli had been a firefighter with the City of Madison Fire Department (MFD) since 1980. In 1999, the Madison Police Department, the Federal Bureau of Investigation, and the Dane County Drug and Gang Task Force obtained information about activities involving illegal drugs among City of Madison firefighters. The Madison Fire Chief, Debra Amesqua, was informed of the discoveries and an investigation ensued. The investigation revealed that while off-duty, Gentilli had, among other things, used and possessed cocaine and marijuana. During an interview in January of 2000, Gentilli initially denied most of the allegations, but ultimately admitted that he had consumed and shared cocaine and marijuana over a ten-year period. Gentilli subsequently recanted the admissions made in January 2000.

¶ 3 As a result of the investigation, disciplinary charges were filed by Fire Chief Amesqua against Gentilli and a number of other firefighters before the Board of Police and Fire Commissioners, pursuant to WIS. STAT. § 62.13(5)(b) (1999-2000),[3] for violating rules of the fire department.

On September 19, 2000, Gentilli was charged with five counts for violating five MFD Rules: Rules 18, 39, 47, 51, and 58. Rule 18 provides:

Members shall be efficient and capable in the service and must not neglect their duty. They shall hold themselves in readiness, at all times, to answer the calls and obey the orders of their superior officers. They shall treat their superiors with respect. In their demeanor to the associates on the Force, they shall be courteous and considerate, guarding themselves against envy, jealousy or other unfriendly feeling. They shall refrain from all communication to their discredit, except to their superior officers, whom it is their duty to inform of every neglect or disobedience of orders that may come to their knowledge. They shall conform to the rules and regulations of the Department, observe the laws and ordinances, and render their services to the city with zeal, courage and discretion and fidelity.

Rule 39 provides: “Members must conform to and promptly and cheerfully obey all laws, ordinances, rules, regulations, and orders, whether general, special or verbal, when emanating from due authority.” Rule 47 provides: “Members of the Department are required to speak the truth at all times and under all circumstances, whether under oath or otherwise.” Rule 51 provides: “Officers and members shall at all times conduct themselves so as not to bring the Department in disrepute.” Rule 58 provides: “It is the duty of every person connected with the Fire Department to note and report to their superior officer or to the Chief any and all violations of the Rules and Regulations which may come under their notice.”

¶ 4 Count one alleged that Gentilli had “repeatedly used, possessed, and purchased marijuana and cocaine in violation of federal and state laws prohibiting the unauthorized possession of controlled substances,” and had thereby violated MFD Rules 18 and 39. Count two alleged that Gentilli had “distributed . . . cocaine on at least two occasions in violation of federal and state laws prohibiting the unauthorized distribution or delivery of controlled substances,” and had thereby violated MFD Rules 18 and 39. Count three alleged that Gentilli “had repeatedly been untruthful in investigative interviews regarding his involvement in illegal drug activity,” and had thereby violated MFD Rule 47. Count four alleged that “Gentilli’s repeated possession, use, purchase, and distribution of cocaine” and “untruthfulness in his interview with federal and local law enforcement officials and with Madison Fire Department investigators” “place the Madison Fire Department in disrepute,” violating MFD Rule 51. Count five alleged that Gentilli possessed first-hand knowledge of the illegal drug activities of at least four co-workers in the Madison Fire Department,” and “[a]t no time did Gentilli advise superiors in the MFD of the misconduct of any of his co-workers” violating MFD Rule 58.

¶ 5 At a hearing conducted before the board, testimony from witnesses, as well as Gentilli’s own testimony, established that the five MFD rules in question had been violated. On June 6, 2001, the board issued a decision and order concluding that Gentilli had committed each of the alleged violations and, pursuant to WIS. STAT. § 62.13(5)(e) (1999-2000), imposed a penalty of discharge on each count.

¶ 6 Gentilli appealed the board’s decision through both a statutory appeal under WIS STAT. § 62.13(5)(i) (1999-2000),[4] and a parallel common-law. certiorari proceeding. The circuit court granted the board’s motion to defer the certiorari review pending the outcome of the statutory appeal. In a statutory appeal, the circuit court reviews the board’s decision to determine whether the board had “just cause” to discipline the person in question. Id. On July 2, 2002, the circuit court determined that the board did have “just cause” to discipline Gentilli, and upheld the board’s decision. The court also dismissed the certiorari review, which argued that MFD Rules 18, 39, 47, 51, and 58 are unconstitutionally vague, finding that Gentilli had failed to advance an additional basis for review for the certiorari proceeding that had not been addressed in the statutory appeal.

¶ 7 The trial court’s decision in the statutory appeal is final, id., but the dismissal of the certiorari review may be appealed. Gentilli appealed the dismissal of the certiorari review to this court, and this court certified the appeal to the Wisconsin Supreme Court. The supreme court accepted the certification, and in Gentilli v. Board ofPolice Fire Commissioners of City of Madison, 2004 WI 60, 272 Wis.2d 1, 680 N.W.2d 335, determined that the trial court had erred as a matter of law in dismissing the action without considering the merits of Gentilli’s constitutional claims and remanded the certiorari proceeding.Id., ¶ 3. The court reasoned that Gentilli could pursue the constitutional issues in a petition for certiorari, even if those issues “somewhat overlapp[ed]” the issues decided in the statutory appeal:

The constitutional issues of vagueness or overbreadth of administrative rules that Gentilli raised in his petition for a writ of certiorari are issues of law that even if somewhat overlapping with the issues in the statutory appeal proceeding may be considered under certiorari because they concern whether the PFC board kept within its jurisdiction and proceeded on a correct theory of the law.

Id. On remand, the trial court upheld the decision of the board and issued a Memorandum Decision and Order. This appeal follows.

II. ANALYSIS. ¶ 8 In Gentilli, the supreme court explained the standard of review to be employed in cases where the board’s determination is subject to both statutory and certiorari review, noting that “Wis. Stat. § 62.13(5)(i) is not an exclusive procedure for review of a disciplinary order of a board of police and fire commissioners. The statute merely limits a circuit court’s scope of certiorari review, but does not eliminate a circuit court’s ability to issue writs of certiorari[,]” Gentilli, 272 Wis.2d 1, ¶ 21 (footnote omitted). The court thus made clear that the correct standard remains the one set forth in State ex rel.Kaczkowski v. Board of Fire Police Commissioners ofCity of Milwaukee, 33 Wis.2d 488, 148 N.W.2d 44 (1967), according to which “a circuit court may determine in a certiorari action whether a board of police and fire commissioners kept within its jurisdiction and whether the board proceeded on correct theory of the law.” Gentilli, 272 Wis.2d 1, ¶ 21 (footnote omitted).

¶ 9 Gentilli’s claims that the MFD Rules are unconstitutionally vague as applied because they were applied differently in this case than they had been in the past, and, as a result, did not give him fair notice that his off-duty drug use would subject him to being discharged.[5]

¶ 10 Vagueness is a due process issue, and due process determinations are questions of law that this court reviews de novo. See State v. Aufderhaar, 2005 WI 108, ¶ 10, 283 Wis.2d 336, 700 N.W.2d 4. When discussing vagueness, our supreme court has explained: “`[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process law.'” State ex rel. Kalt v.Board of Fire Police Commissioners for City ofMilwaukee, 145 Wis.2d 504, 510, 427 N.W.2d 408 (Ct.App. 1988) (quoting Bence v. Breier, 501 F.2d 1185, 1188
(7th Cir. 1974)). “This rule applies to administrative regulations affecting conditions of governmental employment in the same manner as it applies to penal statutes.”Id. (footnote omitted).

¶ 11 The only issue Gentilli pursues on appeal is whether the fire department rules identified above are unconstitutionally vague as applied.[6] We agree with Chief Amesqua[7] that Gentilli effectively concedes that the fire department rules under which he was disciplined are not unconstitutionally vague on their face. Gentilli does not, therefore, argue that the rules are void for vagueness, but instead makes an as-applied vagueness challenge. SeeUnited States v. Powell, 423 U.S. 87, 92 (1975) (a statute which is void on its face for vagueness is one that “may not constitutionally be applied to any set of facts”).

¶ 12 Gentilli claims that given the board’s previous application of the rules, he did not have fair notice that his off-duty conduct could constitute a rule violation and subject him to discharge. We interpret Gentilli’s argument as having two prongs: first, that Gentilli did not receive notice that his off-duty conduct could result in a rule violation, and, second, that Gentilli did not receive notice that his particular conduct could result in discharge because previous violations had been treated quite differently. We reject both arguments.

A. Whether Gentilli Had Notice That His Off-Duty Conduct Could Result In A Rule Violation

¶ 13 Gentilli contends that administrative rules that clearly apply to given conduct on plain reading may become vague through the way in which those rules are applied. Thus, Gentilli argues that the department’s historical failure to apply the rules to off-duty conduct created vagueness because it led employees like Gentilli to believe that the rules, despite their plain language to the contrary, did not apply to off-duty conduct.[8] We disagree.

¶ 14 A party making an as-applied challenge to a statute must “prove, beyond a reasonable doubt, that as applied to him the statute is unconstitutional.” State v. JosephE.G., 2001 WI App 29, ¶ 5, 240 Wis.2d 481, 623 N.W.2d 137. This analysis applies to administrative regulations in the same way it does to statutes. See WisconsinBuilders Ass’n v. DOT, 2005 WI App 160, ¶ 34, 285 Wis.2d 472, 702 N.W.2d 433. Thus, Gentilli has the burden of proving, beyond a reasonable doubt, that, as applied to him, the rules are unconstitutionally vague. See JosephE.G., 240 Wis.2d 481, ¶ 5.

¶ 15 As support for his particular as-applied vagueness theory, that is, that a rule may lose its plain meaning, Gentilli cites Wolfel v. Morris, 972 F.2d 712 (6th Cir. 1992), and Waters v. Peterson, 495 F.2d 91
(D.C. Cir. 1973). Wolfel and Waters
involved prison inmates and government employees, respectively, who engaged in conduct for which they could have been, and were, disciplined under a plain reading of the applicable rules See Wolfel, 972 F.2d at 715, 718;Waters, 495 F.2d at 94, 99. The courts in both of those cases concluded that the disciplinary rules were vague as applied because the rules had not previously been applied to the conduct at issue, even though the parties themselves or other parties had previously engaged in the same conduct.Wolfel, 972 F.2d at 717; Waters, 495 F.2d at 100. In other words, until disciplinary action was taken against the parties in Wolfel and Waters, the parties and others had engaged in the same conduct on numerous occasions without consequence. The parties, therefore, had no notice that their conduct would subject them to discipline under those rules and, for that reason, the courts concluded that the rules were vague as applied.Wolfel, 972 F.2d at 717; Waters, 495 F.2d at 101.

¶ 16 Wolfel and Waters are not binding on this court, and it is not readily apparent that the vagueness analysis used in those cases flows from an accurate interpretation of the due process clause. However, we need not address that issue because Gentilli’s argument contains a flaw that does not require resolution of whether Wolfel
and Waters use a correct as-applied vagueness analysis. Even assuming that the Wolfel/Waters
vagueness analysis is correct, to conclude that a rule is unconstitutionally vague as applied under that analysis requires a record that shows that the past application of the rules would lead a person to believe that the conduct at issue is not subject to the discipline imposed. Here, the record does not show that the fire department or the Board of Police and Fire Commissioners failed to previously apply the disputed rules to identified instances of off-duty conduct.

¶ 17 Gentilli refers to testimony by Assistant Fire Chief Carl Saxe, Fire Chief Amesqua, and Fire Department Lieutenant Joseph Conway, in an effort to show that the established practice at the MFD was that the rules did not apply to off-duty conduct, absent evidence of an on-duty impact.

¶ 18 Gentilli cites a portion of Assistant Chief Saxe’s testimony, which described a “generic discussion” about “potential damage control” with respect to the emerging information about drug use among firefighters. Saxe indicated that the parameters being considered were that an employee dealing or using drugs would result in immediate suspension, an investigation, and possible termination. Gentilli does not, however, explain how this reference to a discussion about responses that were considered shows that the rules had not previously been applied to off duty-conduct. The testimony appears to in fact support the notion that termination was a penalty that was being considered.

¶ 19 The portions of Chief Amesqua’s testimony on which Gentilli relies concern a document from 1980 involving a former firefighter. Chief Amesqua admitted never seeing the document, and after reviewing it, noted that it was an agreement between the then-Fire Chief and the former firefighter regarding “chemical abuse.” Chief Amesqua indicated that the document made no mention of an investigation, and she concluded that there was very little she could deduce from it. Chief Amesqua was then questioned about two other instances, one of which was described as an individual being “involved in a prior situation,” and one which was described simply as “smoking marijuana.” Chief Amesqua acknowledged knowledge of both instances, and specifically noted that the situation involving the firefighter who had smoked marijuana also involved issues related to a possible inappropriate revocation of his probationary period as a result of the use of police records, rather than an internal investigation by the department, and that the firefighter was therefore brought back to the department for other reasons, “not because he was given a second chance for using marijuana.” We do not see how the limited portions of Chief Amesqua’s testimony that Gentilli cites support his claim that discipline was not previously imposed for off-duty conduct.

¶ 20 The most significant testimony cited by Gentilli is that of Lieutenant Conway, who testified that he believed the rules had not previously been applied to off-duty conduct. Conway’s testimony covered his knowledge of Madison firefighters who had engaged in some type of drug use or possession at some point. Some of the incidents about which Conway testified involved random drug and alcohol testing and, for most of the rest of the incidents, it is unclear how the firefighters’ drug use was discovered. The firefighters all received some sort of discipline, or entered into a settlement in which they signed an agreement, which, if violated, could lead to their discharge. As such, Lieutenant Conway’s testimony does not show that previous off-duty drug violations were not subject to discipline under the rules in question. In fact, Conway’s testimony indicates that, in at least some prior instances, off-duty drug use had significant consequences, including the threat of discharge.

¶ 21 For instance, Gentilli cites portions of Conway’s testimony in which Conway testified about the investigations of a firefighter and a lieutenant. Conway referenced a meeting at which he remembered Chief Amesqua stating, “drug use in itself doesn’t warrant termination . . .” and recited a report from the meeting which included a section that read “suspended with pay. Chief has taken a soft stance; does not want termination.” Gentilli, however, also cites a portion in which Conway testified that Chief Amesqua wanted an investigation into the alleged drug use by the two men, and a portion in which Conway referenced a meeting at which Chief Amesqua stated she was seeking their termination and acknowledged that Chief Amesqua’s “stance changed.” Given that both men were part of the same investigation as Gentilli, anything involving the two cannot be referred to as indicative of prior practices. In addition, because Amesqua sought the termination of both men, and because both men retired after complaints seeking their termination were filed against them, rather than showing that off-duty drug-related misconduct had previously gone undisciplined, these instances appear to show the opposite.[9]

¶ 22 In addition, an examination of case law leads to the conclusion that these rules have previously been applied by the fire department and the board to off-duty conduct. InGreer v. Amesqua, 212 F.3d 358 (7th Cir. 2000), a case involving both conduct and discipline that pre-date a large portion of the conduct in this case, a federal court upheld the board’s decision to dismiss a firefighter for off-duty conduct in 1997 that violated, among others, Rule 51, which prohibits conduct that would bring the fire department into disrepute.Id. at 365, 369. Additionally, in 1997, a firefighter was dismissed under the rules directing firefighters to obey all laws (Rules 18 and 39) for a crime committed prior to his becoming a firefighter. See City of Madison v.DWD, 2002 WI App 199, ¶¶ 2-3, 257 Wis.2d 348, 651 N.W.2d 292, rev’d on other grounds, 2003 WI 76, 262 Wis.2d 652, 664 N.W.2d 584.

¶ 23 Gentilli effectively admits that a plain reading of the rules informs firefighters that the rules apply to off-duty conduct.[10] Under Gentilli’s Wolfel/Waters
argument, in order to show that the rules were rendered vague by the lack of prior application, Gentilli needed to point to evidence in the record showing that the board allowed off-duty rule violations to go undisciplined. He has not done so.

B. Whether Gentilli Had Fair Notice That His Conduct Could Result In Discharge

¶ 24 Gentilli also argues that the rules were vague as applied because previous enforcement of the rules led him to conclude that he would not be discharged for his conduct. We disagree.

¶ 25 WISCONSIN STAT. § 62.13(5)(e) authorizes the board to discharge a firefighter if the board determines that rule-violation charges brought against the firefighter are sustained.[11] Further, a rule is not vague so long as one is put on notice of the conduct proscribed and the severity of the penalty that may be imposed. See Jacque v.Steenberg Homes, Inc., 209 Wis.2d 605, 627, 563 N.W.2d 154
(1997); see also State v. Cissell, 127 Wis.2d 205, 216-17, 378 N.W.2d 691 (1985) (criminal statutes not unconstitutionally vague because they made clear the range of punishment authorized). Thus, the question we must answer for purposes of Gentilli’s Wolfel/Waters fair notice argument is whether Gentilli could have reasonably expected that dismissal was within the range of authorized penalties for his rule violations.

¶ 26 In this context, Gentilli again relies on his factual arguments relating to the lack of previous application of the rules to suggest that the board had never before discharged a firefighter for drug use. However, the germane question is not whether, in general, anyone had previously been discharged for drug use, but rather, whether someone engaging in conduct comparable to Gentilli’s conduct, brought to the attention of the board, was or was not discharged. As is apparent from our discussion above, we are satisfied that the record does not reflect that Gentilli’s expectation that discharge was not among the possible penalties was reasonable.

¶ 27 Gentilli points to other evidence: (1) testimony by Assistant Chief Saxe, according to which Chief Amesqua had stated that mere drug use would not warrant discharge and that an employee would be disciplined only if he or she engaged in drug-dealing for profit, engaged in drug transactions on City property or used drugs while on duty; (2) the City’s administrative procedure memorandum, which states that the preferred procedure for first-time positive results from random alcohol and drug tests is to have the city employee submit to rehabilitation; and (3) WIS. ADMIN. CODE § COMM 30.16, which directs the fire department to establish a policy that firefighters with any mental or physical health problems, including alcohol or substance abuse, should be referred to health care services for treatment or rehabilitation.[12]

¶ 28 Gentilli misreads Saxe’s testimony regarding Chief Amesqua’s statement. Saxe’s testimony about Amesqua’s comments regarding parameters for “damage control” for purposes of the investigation reads:

Any employee dealing in drugs for profit, any transactions that took place on City property and any use while on duty were considered unacceptable, would result in immediate suspensions, and we would begin the investigation with the thought that if we could sustain those charges, the Chief would be looking at termination.

Saxe’s testimony clearly did not indicate that only drug-dealing for profit, drug-dealing on City property or drug use while on duty would be considered “unacceptable”; rather, those were the situations that would result in “immediate suspensions.” Saxe’s testimony also in no way implies that these three instances were an exclusive list of circumstances under which a firefighter would be disciplined or that could lead to termination.

¶ 29 Gentilli’s reliance on the policy regarding random drug and alcohol testing in the administrative procedure memorandum is likewise misplaced. First, the administrative procedure memorandum does not preclude resort to discipline under the fire department rules. Second, the policy is not implicated by Gentilli’s conduct because the policy comes into play only if a firefighter tests positive during random drug testing. That is not the case here. Furthermore, what is at issue here is Gentilli’s conduct, as opposed to Gentilli’s dependence on controlled substances.

¶ 30 WISCONSIN ADMIN. CODE § COMM 30.16 also does not preclude resort to discipline under the fire department rules. Section COMM 30.16 merely directs fire departments to establish a policy regarding treatment for the physical and mental health of firefighters. It does not state a policy preference for treatment, rather than discipline or discharge, in specific fact situations.

¶ 31 In sum, the record does not show that the practice of either the fire department or the board rendered the rules unconstitutionally vague as applied. Accordingly, we affirm.

By the Court. — Order affirmed.