By GINA BARTON
When it comes to firing officers for misconduct, police chiefs in Wisconsin don’t have the final say.
In Milwaukee, the chief’s decision to fire an officer or to impose a suspension longer than five days can be appealed to the civilian Fire and Police Commission. An officer who doesn’t agree with the commission’s decision has the right to take the case to court.
In other Wisconsin departments, the chief may only recommend discipline; it’s up to a commission or civilian board to carry it out.
“You have the right to hear charges against you, tell your side of the story, be represented by an attorney — the basic procedural protections you get in court,” said Paul Secunda, an associate professor at the Marquette University Law School who specializes in labor law.
In deciding whether a punishment imposed by the chief is justified, the commission and the courts also must consider precedent, said Eugene O’Donnell, professor of law and police studies at John Jay College of Criminal Justice in New York.
“Even when they explicitly say there’s a rule, there are, commonly, exceptions to the rule,” he said. “Nobody picks up on that faster than the cops.”
And they aren’t afraid to use it in court.
For example, Milwaukee police Officer Ronald Ferrill was fired after he was convicted of disorderly conduct while armed for firing a gun from a moving car in 1990. Ferrill, who is black, sued for racial discrimination, saying a white officer would not have been fired for similar conduct. He was rehired under the terms of a settlement agreement.
Since 2008, when Edward Flynn took over as the city’s police chief, 19 officers have been fired, according to the Fire and Police Commission. Three of them — Milford Adams, Charles Cross and Vincent Woller — were reinstated as a result of the appeals process, according to court and commission records.
In a criminal court, jurors must be convinced of guilt beyond a reasonable doubt. At a disciplinary hearing before the commission, the standard is preponderance of the evidence, which translates to “more likely than not,” according to Michael G. Tobin, executive director of the commission. The rules of evidence also are more lenient.
Commissioners, appointed by the mayor and approved by the Common Council, take the role of jurors. There are seven positions, but one is vacant. Based on their availability, panels of three are chosen to hear each disciplinary appeal.
As in the criminal courts, the two sides argue about the admissibility of evidence and try to negotiate agreements in the weeks leading up to the hearing.
Adams was accused of allowing a woman to avoid arrest in exchange for performing a sex act in his squad car in 2004. He was criminally charged but acquitted by a jury. Former Chief Nannette Hegerty fired Adams, but his appeal was not concluded by the time she retired in late 2007. Flynn took over the process, reiterating that Adams should be fired. The commission overturned that decision after a hearing in August 2008, and Adams kept his job.
Flynn initially fired Cross and Woller but later agreed to reinstate them as part of settlement agreements while their appeals were pending, according to the commission.
Cross was convicted of criminal damage to property in August 2007 for kicking in the door of the apartment he shared with his girlfriend, according to court records.
Woller was accused of kicking a handcuffed suspect in the head after a chase in November 2008, according to a complaint Flynn filed with the commission.
Woller admitted to internal investigators he was upset with the suspect and intended to tackle the man. The officer told internal investigators “he might have been unable to stop himself” as he ran toward the suspect, resulting in physical contact, the chief’s complaint says. Woller was not criminally charged.
Flynn declined to be interviewed for this series. In March, he told the Journal Sentinel he had no choice but to accept the outcome when the commission or the courts overturn a firing.
“The decision was made by higher authority that they are competent to be officers,” he said then. “It’s my responsibility to make sure they’re properly supervised and are held accountable.”
He did not address his role in settlement agreements.
Sheriff criticizes board
Milwaukee County Sheriff David A. Clarke Jr. has been more aggressive, sending objections to the county’s Personnel Review Board when it goes against his recommendations for firing problem deputies.
“You have rationalized abhorrent behavior by those involved in law enforcement, such as domestic violence battery, drunk driving, gross dereliction of duty, knowingly cheating on timecards and now, theft,” he wrote in one letter to the board. “Your decision . . . has given license to anybody wearing a law enforcement badge in Milwaukee County to engage in criminal behavior, with no fear of being separated from the service. You couldn’t be that clueless. What you are, though, is an enabler.”
In an interview with the Journal Sentinel, Clarke called it “extremely frustrating” to have his judgment overruled by the board.
In 1998, Monica Ray, then a deputy chief with the Milwaukee Police Department, got into a shouting match with a clerk at a custard stand.
Ray accused the worker of shorting her daughter $5 in change and cursed at her, according to media reports at the time. Both Ray and the clerk were ticketed for disorderly conduct, a city ordinance violation.
Ray — whom Police Chief Edward Flynn promoted to assistant chief in 2008 — appealed in Municipal Court, where the citation was upheld. She then appealed to Milwaukee County Circuit Court, where a jury found her guilty. She was fined $300.
Although Ray was convicted, she was not disciplined for breaking the department rule against violating laws or ordinances. Instead, her personnel record says, she was suspended for 10 days for violating a different rule: failing to be civil and courteous to a member of the public.
Ray, who retired from the Milwaukee Police Department in March, is now the chief of police at Alabama A&M University. She did not respond to an email seeking comment.
Her case illustrates that despite spending thousands of dollars and waiting more than a year and a half for Police Department records, it is impossible for the newspaper — and the public — to figure out exactly how many Milwaukee police officers have run afoul of the law.
To figure out how often officers engage in criminal conduct, the newspaper requested the personnel records — known as hard cards — of the department’s approximately 1,900 sworn members under the state open records law. After negotiations between attorneys for the newspaper and the city, the department agreed in late 2009 to release the back page of each record, which lists each rule violated, the date and punishment. Under the agreement, the department did not release copies of the front side of the cards, which contain information such as birth date, home address, the date the officer was hired, promotions and district assignments.
For some officers, the newspaper later requested copies of the front of the cards, which the department redacted before release.
The newspaper paid $2,059.42 in location and copying fees for access to the back sides of the cards, which the department said it would release in batches of about 100 per month.