author: SCHUDSON, J.

text:
    Jerry Lu Epstein, Petitioner-Appellant, v. John T. Benson, State Superintendent of Public Instruction, in his official capacity and Nancy F. Holloway, Executive Assistant to the State Superintendent of Public Instruction, in her official capacity, the Department of Public Instruction, State of Wisconsin, Respondents-Respondents.
    Court of Appeals

      No. 99-1338.

      Submitted on briefs June 5, 2000.

    Decided August 29, 2000.

    2000 WI App 195
    (Also reported in 618 N.W.2d 224.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Bruce Meredith, of the Wisconsin Education Association Council, of Madison.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Bruce A. Olsen, assistant attorney general.
    Before Wedemeyer, P.J., Fine and Schudson, JJ.
   SCHUDSON, J.

¶ 1. Jerry Lu Epstein appeals from the circuit court order affirming the 1998 administrative decision of the Department of Public Instruction (DPI) revoking all of her DPI-issued licenses. Challenging DPI’s decision, Epstein presents numerous arguments, several of which overlap. We focus on three of her theories: (1) that DPI's decision "was an abuse of departmental discretion in light of the record as a whole"; (2) that Superintendent John T. Benson's executive assistant "subtly changed several factual findings without consulting the examiner," thus rendering the decision "procedurally flawed"; and (3) that DPI erred, as a matter of law, in concluding that her actions were immoral.

¶ 2. We conclude that DPI's conduct following this court's remand of Epstein's previous appeal was unconscionable; its delays and evasions fully support Epstein's request for reversal "in light of the record as a whole." We also conclude that DPI's decision was procedurally flawed; Superintendent Benson's executive assistant, to whom he delegated the decision-making authority in this case, did not confer with the hearing examiner before rendering her decision and, therefore, improperly altered at least one of the hearing examiner's most significant factual findings — a finding inextricably connected to the assessment of Epstein's credibility and to the ultimate determination of whether Epstein's conduct was immoral. Finally, we conclude that the evidence does not support DPI's determination that Epstein's conduct was immoral. For all these reasons, we reverse.

I. BACKGROUND

¶ 3. In our per curiam opinion in the previous appeal emanating from DPI's 1994 revocation of Epstein's license, we summarized the factual background and procedural history:

On June 30, 1992, Epstein[, a Whitefish Bay public school employee,] shot and killed [Lee King,] her former son-in-law[,] when he made threats against the li[ves] of her daughter and grandchildren while backing up his automobile . . . with the children in the rear seat and her daughter partially in the car. Epstein had access to a loaded gun because she was carrying it in her purse. She said the gun was in her purse because she was going to target practice later that day. She kept the gun in her home for protection and only carried it with her in her purse when going to target practice. Epstein was acquitted of all criminal charges arising out of this incident with the exception of a carrying a concealed weapon charge.
In April 1993, the Department of Public Instruction issued a notice of probable cause and intent to revoke Epstein's [DPI-issued] licenses. A three-day hearing was held before hearing examiner Dr. Julie Underwood, Esq. Superintendent Benson did not attend any portion of the hearing. The Department was represented by Attorney Kathleen Kalashian. The hearing examiner issued her decision in January 1994, finding that the Department had not proven by clear and convincing evidence that Epstein had committed an immoral act[,] and that Epstein's actions in this shooting incident did not have a nexus to, or endanger, the health, welfare, education or safety of any pupil.
Kalashian filed objections to the hearing examiner's decision and submitted alternate findings of fact and conclusions of law recommending that Epstein's teaching licenses be revoked. In February 1994, Benson summarily reversed the hearing examiner's decision and adopted Kalashian's alternative conclusions and decision. He neither gave Epstein an opportunity to object to this new decision nor did he set forth any explanation for his departure from the hearing examiner's decision. Epstein filed a [WlS. STAT. ch. 227] appeal. The circuit court reversed Benson's decision because of his failure to comply with certain statutory requirements.

Epstein v. Benson, No. 95-0522, unpublished slip op. at 2-3 (Wis. Ct. App. October 24,1995) (footnote omitted).

¶ 4. Superintendent Benson appealed, arguing that he had not violated any statutory provisions in issuing his final decision. See id. at 3-4. We rejected his argument. Adopting portions of the circuit court's decision, we concluded:

"What [WlS. STAT. § ] 227.46(6) requires is that the decision-maker and those participating in the proposed or final decision act impartially. Therefore, since Kalashian was, in effect, the DPI's prosecutor at Epstein's hearing, she could not then be the person [reviewing] the record and submitting] a proposed decision. The plain language of the statute requires that someone other than an advocate at the hearing prepare the proposed decision. Therefore, it was for the Superintendent to either review the record himself or assign some other — impartial—person in his office to do it for him and advise him on the matter. A proposed decision — if adverse to Epstein — should then have been served upon her pursuant to § 227.46(4) so she could react to it and argue her case to the person who would render the decision, presumably Benson."

Id. at 6 (quoting circuit court decision).

¶ 5. We further clarified, among other things, that although Kalashian was free to submit her findings, conclusions, and decision, Benson could not adopt them without examining the record. See id. at 7. We concluded, therefore, that "because Benson adopted [Kalashian's] position without having any independent knowledge of the particular circumstancest,] . . . the decision was not an impartial one." Id. Accordingly, we affirmed the circuit court's order and remanded the case to the circuit court "with directions to remand it to the administrative forum to correct the statutory violations that occurred." See id. at 7-8.

¶ 6. On November 30,1995, remittitur to the circuit court was entered. On January 30, 1996, the circuit court entered an order remanding the case "to the State Superintendent for further proceedings consistent with the Court of Appeals' October 24, 1995, decision." On May 26, 1998, DPI again revoked Epstein's license, leading to circuit court review and this appeal.

II. PROCEEDINGS FOLLOWING REMAND

¶ 7. During the period between this court's 1995 decision (affirming the circuit court's reversal of DPI's 1994 decision revoking Epstein's license) and DPI's 1998 decision (again revoking Epstein's license), Epstein and her attorney, Bruce Meredith, were not idle. They attempted to: (1) renew her license; and (2) either confirm her status as a licensed teacher or, if DPI deemed her unlicensed based on the 1994 revocation, gain a hearing to challenge the revocation. DPI, however, failed to comply with the circuit court order issued subsequent to remittitur. Although tedious to track, DPI's dilatory and duplicitous conduct deserves detailed exposure.

¶ 8. On August 29,1996, Peter J. Burke, then the DPI Director of Planning and Process (Division for Learning Support: Instructional Services), wrote to Epstein, acknowledging that DPI had received her application for license renewal on July 2, 1996. His letter stated:

Currently, the status of your licensure with this Department remains revoked. Your license has not been reinstated as a result of either the circuit court or the appeals court decision. The Department is presently involved in complying with the remitti-tur from circuit court. You will be notified of further processing. Because your license is revoked, you are unable to renew your license at this time.

(Emphasis added.)

¶ 9. On September 6, 1996, Meredith responded to Burke, pointing out that his August 29 letter "misstate[d] the judicial history of Ms. Epstein's case." Meredith correctly explained that this court's 1995 decision had affirmed the circuit court's reversal of DPI's decision that revoked Epstein's license and, therefore, that "Ms. Epstein has a license, since a license cannot be taken away without a decision by the Superintendent ordering revocation." Additionally, Meredith wrote:

The Court of Appeals did give the State Superintendent an opportunity to appropriately issue a decision; however, it has been almost a year since the Court of Appeals' decision, and over eight months since the [circuit court] Order [remanding the case to the State Superintendent for correction of statutory violations], Ms. Epstein and I assumed the Superintendent had chosen not to take any action and simply allow Ms. Epstein to continue to hold her license as she did before the State Superintendent's decision.
It should be remembered that the Superintendent's decision was reversed because of his failure to follow the clear statutory mandates with respect to the procedure for revoking a teacher's license after receiving a hearing officer's recommendation against revocation. It appears the Superintendent is now compounding these errors by claiming the right to keep someone from teaching because of departmental non-action even in the face of a court order remanding the case with directions. Certainly, sitting on this case for the [amount] of time the Superintendent has does not constitute "proceedings consistent with the Court of Appeals!'] October 24,1995 decision."
I hope this letter will prompt immediate action on the department's renewal of Ms. Epstein's teaching license. There has been no valid revocation of her prior license and, therefore, she is entitled to be issued a new license.

(Emphasis added.)

¶ 10. By letter dated September 18,1996, Burke, responding to Meredith, admitted his error. He wrote, "At the time your [September 6, 1996] letter was received I was drafting this present letter indicating my Awareness of the inaccuracy in my original letter." Burke then conceded: "You[ ] are correct in stating that since the Court of Appeals reversed the prior action of the department resulting in revocation of Ms. Epstein's licenses, it was inaccurate to characterize the status of Ms. Epstein's licenses as revoked. Accordingly, Ms. Epstein's life license remains effective."

¶ 11. But Epstein still was not out of the DPI woods. Burke's letter continued:

With respect to Ms. Epstein's other licenses, I note that Ms. Epstein's application for license renewal was received by the bank [sic] on or about June 18th, 1996. The application was returned to Ms. Epstein as incomplete since a check for the renewal fee was not included. This was in accord with customary department practice[;] that is[,] applications are not deemed officially received until they are complete. This department received Ms. Epstein's completed application for renewal on July 2, 1996. Applications for- license renewal that are received after June 30 of any given year are deemed untimely and result in an expired license. Accordingly, the status of Ms. Epstein's other licenses is therefore expired.
Ms. Epstein's application for license renewal is being denied for the reasons set forth in the Notice of Probable Cause and Intent to Revoke License dated April 8, 1993. If Ms. Epstein would like a hearing on the denial of her application for renewal she may write to me with that request within 30 days.

Thus, it appears that DPI was refusing to renew Epstein's license for either or both of two reasons: (1) her alleged failure, in 1996, to timely pay the renewal fee required to complete her application; and (2) her conduct related to the 1992 shooting, which originally led DPI to revoke her license in 1994.

¶ 12. Additionally, in his September 18 letter, Burke went on to explain that some delay in proceeding with Epstein's case had come about because "Milwaukee County had misplaced a large portion of the record." He added, however, that "[t]he record is now complete" and that "Mr. Benson is prepared to begin his review of the record at this time." He assured Meredith that "the Department is in the process of complying with the remittitur from circuit court so that this matter may be brought to a conclusion." (Emphasis added.)

¶ 13. By letter dated September 23, 1996, Meredith promptly responded. Revealing his doubts about Burke's explanations, he wrote:

It may well be that the department has a policy of not deeming applications received until they are complete; however, I would find it very unlikely that the department does not automatically reinstate licenses in situations similar to Ms. Epstein's, where an incomplete application was filed prior to the deadline, and a completed application arises [sic] shortly thereafter. If I am mistaken in this assumption, please let me know immediately.
If you do not have a general policy for license reinstatement when an incomplete application is received, then please provide me with copies of the final department disposition of all applications which were received by the department before the expiration dates and returned by the department to the individuals as incomplete, where the individual subsequently completed the application after the expiration date, since January 1,1994.
In addition, in your letter you indicate that the court was unable to provide the department with a complete copy of the transcript in Ms. Epstein's proceedings. Please provide me with all copies of correspondence sent between the department and the circuit court with respect to the record.
Finally, please provide me with all nonprivi-leged correspondence within the department involving Ms. Epstein's license occurring after the date of the court of appeals decision in her case (October 24,1995).
In your letter, you indicate that Ms. Epstein should request a hearing for reinstatement of her license, other than her life license. In order to preserve Ms. Epstein's claims, please consider this a request for such a hearing. However, please also be advised that Ms. Epstein will consider taking legal action, either in terms of a writ of mandamus or prohibition, should the department attempt to schedule such a hearing. It is obvious that the department is attempting to create a new fictitious dispute when, in fact, its decision to not renew Ms. Epstein's licenses is part and parcel of the prior departmental proceedings in this case which were reversed by the court of appeals. We believe that any attempt to conduct a hearing on Ms. Epstein's alleged "reapplication" is not only indefensible as a matter of law but would be in direct violation of the remand order by both the court of appeals and circuit court in this case and, therefore, could place the department in contempt of court.

(Footnote added.)

¶ 14. One week later, on September 30, 1996, Meredith wrote Burke again — this time with added ammunition supporting his suspicions about what he had labeled as DPI's "fictitious dispute" about Epstein's alleged incomplete renewal application. Meredith's letter explained:

I have just received a copy of Ms. Epstein's canceled check representing her license renewal fees. It appears that the check was mailed to the department on or about June 22,1996. It is surprising that it took so long to be delivered to the department. Did you retain a copy of Ms. Epstein's envelope? If so, please forward a copy of that envelope, as well as any correspondence accompanying her check, to me.

¶ 15. By letter dated October 8, 1996, Burke responded to Meredith's letters of September 23 and 30:

[Y]our assumption that the department automatically issues licenses to individuals whose completed applications are received after the July 1 deadline is incorrect. By way of example, enclosed you will find copies of completed applications received by the department after July 1, 1996 that have not been automatically renewed. I can find no examples of an incomplete application that arrived before the June 30 deadline, but then was completed after July 1, where the department subsequently denied that license.
You seem to be under the mistaken impression that the department has denied Ms. Epstein's renewal application because it was not received on time. Such is not the case. The department would have denied Ms. Epstein's request for renewal regardless of when it was received for the reasons set forth in my September 18 letter. My discussion of the June 30 deadline was provided only to explain the current status of her license, regardless of whether her request to renew is granted or denied.
With respect to your request for copies of department correspondence with Milwaukee County circuit court, there exists no such correspondence. However, I have included a copy of a telephone message from the Clerk of Courts concerning the retrieval of the record.
Next, I am not aware of any non-privileged intra-department correspondence that occurred after the court of appeals decision.
Finally, with respect to the inquiry in your September 30, 1996 letter, the department does not retain the envelopes from license applications. I am uncertain why it may have taken a certain number of days for the bank to forward Ms. Epstein's application to us after receiving her check. The department cannot control bank procedures. However, the department does not use the postmark on the envelope to establish the official receipt date. Rather, the date the application is dated stamped [sic] is the official receipt date for departmental purposes.

(Italicized emphases added.)

¶ 16. Without belaboring the several Meredith-Burke debates, we note Burke's most significant concessions: that he could find no other examples of renewal applications being denied due to the late arrival of the renewal fee, and that "[t]he department would have denied Ms. Epstein's request for renewal regardless of when it was received." Thus, quite remarkably, with this October 8, 1996 letter, DPI seems to have been: (1) backing off from its "incomplete application" rationale for denying Epstein's license renewal; (2) reiterating its 1994 rationale, which had culminated in the DPI decision that had been reversed; and (3) possibly leaning back on its "incomplete application" rationale that Epstein's "current status" was unlicensed, "regardless of whether her request to renew" would be granted or denied.

¶ 17. Almost one more year passed with no further DPI action. Finally, on September 9,1997, after a recent contact with Epstein regarding her license status, Meredith wrote directly to Superintendent Benson: "I indicated to [Ms. Epstein] that, due to the substantial lapse of time since the Court of Appeals decision . . I assume[d] the Department was not intending to proceed. I do request from you, however, confirmation of this fact." And on September 10,1997, Epstein personally wrote to Benson, expressing her frustration:

About July, 1992 you started a proceeding to take away my teaching licenses for five years. January 21, 1994 the Hearing Examiner you assigned ruled that my license issued by the Wisconsin Department of Public Instruction should not be revoked. However, you have kept this case in litigation and I have not been issued my teaching license.
Since the five years is over, I assume that I will be receiving my teaching licenses. I would appreciate having my teaching licenses back. This "continuing process" has caused me stress which I hope will now come to an end, and my teaching licenses will be issued.
Once I have my Wisconsin teaching licenses I hope that I and my family will be able to put this tragedy behind us. Five years of litigation pressure hopefully will be enough pain and penalty.

¶ 18. Still, even these letters were not enough to move DPI. More than three additional months passed. Then, on December 22, 1997, Meredith, having received no reply to his September 9 letter, wrote Benson again, seeking notification of "the Department's position" regarding "the status of [Epstein's] teaching license."

¶ 19. The next month, DPI finally replied. In a letter dated January 8,1998, Burke, then DPI Director of Teacher Education and Licensing (Division for Learning Support: Instructional Services), wrote Meredith:

This letter is in response to your September 9, 1997, query regarding the status of the license issue of Ms. Jerry Lu Epstein. I have consulted with State Superintendent John Benson about this case and must report that, to date, no further action has been taken.
Thus the original order of revocation remains reversed as ordered by the Circuit Court and no action has taken place on the remand directed in that order. This is not to say that an action in this case will not be forthcoming; it is only to confirm that the order of remand has not been fulfilled at this time.
Rest assured that you and your client will be contacted immediately should this status change.

(Emphases added.)

¶ 20. But DPI still did nothing, leaving Epstein with neither her license nor a license reinstatement hearing. That status remained unchanged for several more months.

¶ 21. On May 5,1998, Meredith again wrote Benson, asserting that DPI "has consistently refused to schedule a hearing or take other action regarding Ms. Epstein's licenses." Meredith closed the letter, "Please let me know immediately what action you plan to take in this case."

¶ 22. Finally, on May 11, 1998, in response to Meredith's May 5 letter, Nancy F. Holloway, Benson's executive assistant, wrote that Benson had appointed her "to be the decision maker in this case," that she was "in the process of reviewing the record," and that she would issue her decision no later than May 26, 1998. She did so. In her May 26 decision, Holloway revoked Epstein's license, concluding that Epstein's actions — both "carr[ying] a concealed and dangerous weapon ... in the presence of and around public places and children," and shooting and killing King "in close proximity to two children and an adult female" — constituted immoral conduct under Wis. Stat. § 115.31(l)(c), by being "beyond acceptable moral or ethical standards" and endangering the "safety, health and welfare of [Epstein's] school[-]aged grandchildren who were in the car."

¶23. Epstein appealed. The circuit court, in its March 23, 1999 memorandum decision, rejected DPI's reliance on the carrying-concealed-weapon offense as a basis for license revocation. While essentially agreeing that, in theory, the carrying of a concealed weapon could constitute conduct "that is contrary to commonly accepted moral or ethical standards," the circuit court concluded that DPI had erred by applying the "role model" standard, rejected by this court in Thompson v. Wisconsin Department of Public Instruction, 197 Wis. 2d 688, 541 N.W.2d 182 (Ct. App. 1995), in determining whether a nexus existed between Epstein's conduct and endangerment of "the health, safety, welfare or education of any pupil."

¶ 24. The circuit court affirmed the license revocation, however, on the basis of the shooting. While acknowledging that "Epstein found herself in an exceptional situation on the day in question," the court determined that "[i]t does not strain logic to conclude that [Epstein's] conduct was contrary to commonly accepted moral and ethical standards," and that Holloway's "conclusion that there was a nexus between this conduct and the health, safety, welfare or education of students was reasonable."

III. STANDARDS OF REVIEW

¶ 2,5. "Constitutional due process protections apply to procedures affecting licenses necessary to engage in one's livelihood...." Tavern League of Wis. v. City of Madison, 131 Wis. 2d 477, 489, 389 N.W.2d 54 (Ct. App. 1986). An order "entered by an administrative board in a qzms¿-judicial proceeding wherein the board has denied a party... due process is void and the aggrieved party is entitled to an appropriate proceeding (if... prejudiced by the denial) to have the ... order set aside." Folding Furniture Works, Inc. v. Wisconsin Labor Relations Bd., 232 Wis. 170, 191, 285 N.W. 851 (1939). "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

¶ 26. We review DPI's decision, not that of the circuit court. See Thompson, 197 Wis. 2d at 697. "Our scope of review is identical to that of the [circuit] court." Id. As we have explained:

A different standard of review for agency decisions is applied for questions of law and questions of fact. If presented with a question of fact, we employ the "substantial evidence" standard. Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. An agency's decision may be set aside by a reviewing court only when, upon examination of the entire record, the evidence, including the inferences therefrom, is such that a reasonable person could not have reached the decision from the evidence and its inferences.
If the issue presents a question of law, we must "set aside or modify the agency action if [we] find[ ] that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or [we] shall remand the case to the agency for further action under a correct interpretation of the provision of law." To this end, we apply one of three levels of deference to the conclusion of the agency: "great weight," "due weight" or "de novo."
The great weight standard is the highest degree of deference. It is applied when the agency is charged with administration of the statute at issue, the agency's interpretation is based on "its expertise or specialized knowledge," the interpretation provides "uniformity and consistency in the application of the statute," and the agency conclusion or interpretation is "long standing." If the foregoing criteria are met, we will sustain the agency's interpretation even if an equally or more reasonable interpretation is offered.

Sea View Estates Beach Club v. DNR, 223 Wis. 2d 138, 148-49, 588 N.W.2d 667 (Ct. App. 1998) (citations omitted), review denied, 225 Wis. 2d 489, 594 N.W.2d 383 (1999).

¶ 27. Reviewing whether DPI correctly concluded that Epstein engaged in immoral conduct, we give great weight to the department's decision. See Thompson, 197 Wis. 2d at 698. Nevertheless, we reject DPI's determination that Epstein's conduct was immoral.

IV. UNCONSCIONABLE CONDUCT

¶ 28. Epstein challenges "the unconscionable pattern of delay and deception which kept [her] 'in limbo' for over two and one-half years, thereby effectively preventing her from moving forward with a reinstatement hearing in which she could demonstrate that her current condition no longer warranted keeping her out of the teaching profession." The record provides overwhelming support for Epstein's challenge.

¶ 29. The Meredith/Epstein/Burke/Benson correspondence confirms DPI's unconscionable conduct. DPI failed to promptly respond to Meredith's and Epstein's reasonable inquiries and requests, provided some inaccurate and inconsistent answers, and failed to promptly comply with court orders. As a result, Epstein, in effect, remained both unlicensed and unable to become licensed despite the absence of a valid license revocation. And, by virtue of DPI's delays and evasions, Epstein has, in effect, remained unlicensed since February 18,1994, when Superintendent Benson reversed the hearing examiner's original decision declining to revoke Epstein's license.

¶ 30. Thus, even setting aside the rather obvious question of whether Superintendent Benson's appointment of his own executive assistant complied with this court's order that he appoint "some other — impartial—person in his office" to review Epstein's case, we conclude that DPI's conduct failed to provide even the most rudimentary "due process protections applicable] to procedures affecting licenses necessary to engage in one's livelihood." See Tavern League of Wis., 131 Wis. 2d at 489.

V. ALTERED FACTUAL FINDING / PROCEDURALLY DEFECTIVE DECISION

¶31. As noted, Epstein also challenges DPI's, most recent decision on additional grounds. She contends that "the department's decision still remains procedurally flawed in that the executive assistant [Holloway] subtly changed several factual findings without consulting the examiner [Underwood]." At least in one important respect, Epstein is correct (though she may have been generous in terming Holloway's change "subtl[e]").

¶ 32. Although we cannot know for sure whether, or to what extent, a particular factual finding influenced Holloway's decision, one finding, articulated twice in Holloway's written decision, seems significant. Holloway, after reviewing the record of the original hearing, but without conferring with Underwood, wrote: "The car accelerated and Epstein shot the gun. She claimed to aim at his leg, however, according to the Medical Examiner, Lee was shot below the rib cage at a distance of 2-3 feet.” (Emphasis added.) Five pages later, Holloway wrote, "Epstein claimed to be aiming at Lee's legs but shot him just below the rib cage.” (Emphasis added.) But in her 1994 decision declining to revoke Epstein's license, Underwood found: "Epstein... ran to the passenger's side of the car, put the gun through the window, aiming at Lee's legs, and with her other hand pushed her daughter out of the way. Again[,] she told Lee to stop. The car accelerated, and the gun went off." (Emphasis added.)

¶ 33. Rather transparently, Holloway's references to Epstein's claim regarding her aim reflect a skeptical view of Epstein's account of the shooting. This alteration of Underwood's finding that Epstein was "aiming at Lee's legs" was, therefore, an alteration based on at least an implicit assessment of Epstein's credibility. Before making such a modification, Holloway was required to confer with Underwood. See City of Appleton v. DILHR, 67 Wis. 2d 162, 169-70, 226 N.W.2d 497 (1975) (before department reverses hearing examiner's determination, on basis of assessment of witness credibility, department must confer with hearing examiner because "due process require[s] that the record affirmatively show that the [department] had the benefit of the examiner's personal impressions of the material witnesses"). Holloway failed to do so. Additionally, Holloway's decision failed to include "an explanation of the basis for each variance" from the hearing examiner's decision. See WlS. Stat. § 227.46(2) (1997-98). Consequently, DPI's 1998 revocation of Epstein's license was procedurally defective.

¶ 34. Depending on the significance Holloway attached to the altered finding, the modification may have been material to her conclusion. The apparent importance of Holloway's alteration is best understood when examined in the context of her factual findings immediately preceding her first reference to Epstein's claim regarding aiming at King:

Epstein heard the threats and saw her daughter and granddaughters in the car as it was moving out of the driveway. At this time, she believed that the lives of her daughter and granddaughters were in jeopardy. She ran to the car and yelled to Lee. He responded with threats to Sherie and the children's lives. Epstein then reached into her purse and pulled out the gun, shouting at him to stop — "Stop, Lee, I've got a gun." She ran to the back tire, aimed and shot the tire. She yelled at him again to stop, aimed and shot the tire again. The car continued to move. Epstein then pulled the lever back on the gun and reached through the passenger side window of the moving car. She reached over her daughter's body in the passenger side of the car and aimed the gun at Lee. Again, she told Lee to stop. The car accelerated and Epstein shot the gun.

¶ 35. Accepting Holloway's factual findings, and dissecting them, we see that Epstein took seven steps obviously intended to avoid shooting Kang while protecting her daughter and granddaughters. She: (1) "yelled to Lee"; (2) "shout[ed] at him to stop" — "Stop, Lee, I've got a gun."; (3) "shot the tire"; (4) "yelled at him again to stop"; (5) "shot the tire again"; (6) "aimed the gun at Lee"; and (7) "told Lee to stop." Even after taking these seven steps, Epstein, according to Underwood's findings, still aimed at King's legs before shooting him. But according to Holloway's altered finding, Epstein may not have aimed at King's legs; she only claimed to have done so.

¶ 36. We conclude that Holloway's altered finding — implicitly addressing Epstein's credibility and explicitly addressing the critical issue of whether she was attempting to kill or only wound King — logically related to the ultimate determination of whether Epstein's conduct was immoral. Thus, even assuming that Superintendent Benson's own executive assistant could be impartial, see Wis. Stat. § 227.46(6) (1997-98), her methodology was legally flawed and violative of due process. Once again, DPI's revocation of Epstein's license was improper.

VI. IMMORAL CONDUCT

¶ 37. Epstein also challenges DPI's determination that her conduct was immoral. Once again, her arguments are strong.

¶ 38. If due process is afforded a DPI licensee, "any license granted by the state superintendent may be revoked by the state superintendent for... immoral conduct on the part of the licensee." See WlS. STAT. § 115.31(2) (1997-98). When Epstein shot King, "immoral conduct" was defined as "conduct or behavior that is contrary to commonly accepted moral or ethical standards and that endangers the health, safety, welfare or education of any pupil." Wis. Stat. § 115.31(l)(c) (1991-92).'

A. The Shooting

¶ 39. DPI provides no authority supporting its unavoidable premise — that a woman attempting to protect the lives of her daughter and granddaughters acts "contrary to commonly accepted moral or ethical standards" by shooting their potential attacker after issuing numerous warnings and taking actions in an apparent attempt to avoid shooting or killing him. As Epstein argues:

While all parties can speculate as to whether Epstein made matters better or worse by her actions, one matter is beyond speculation: Epstein's actions in shooting Lee King to protect her family were not contrary to law and accepted morals. The law and accepted morality give all persons, including teachers, the right to use force where they reasonably believe they or others face imminent harm. Both a jury and the Department's Hearing Officer found that Epstein reasonably perceived that her daughter and granddaughters were in grave danger, and responded in the manner she believed to be appropriate. Appellant cannot be deprived of her occupation because she chose to exercise that right, regardless of how the Department now claims a calm, detached person should have acted.

(Record references omitted.)

¶ 40. As we have explained, whether Epstein aimed at King's legs or at another area of his body could, in the estimation of Underwood, Holloway, or others, relate to whether Epstein's conduct was "contrary to commonly accepted moral or ethical standards." Perhaps a "calm, detached person" could have retained the self-control to aim only at King's legs; perhaps not. Clearly, however, Epstein's action, as claimed by Epstein and found by Underwood — finally aiming at King's legs and shooting him — was not shown, by clear and convincing evidence, to be "contrary to commonly accepted moral or ethical standards." Thus we need not address whether Epstein's action endangered "the health, safety, welfare or education of any pupil," and we conclude, as a matter of law, that the evidence utterly fails to establish that Epstein's shooting of King was immoral.

B. Carrying a Concealed Weapon

¶ 41. As DPI reminds us, however, its revocation of Epstein's license also rested on her carrying of a concealed weapon. Thus, notwithstanding the circuit court's rejection of the carrying-concealed-weapon rationale as the basis for concluding that Epstein's conduct was immoral, we must consider it. See Sea View Estates Beach Club, 223 Wis. 2d at 145 ("[W]e review the agency's decision, not the circuit court's.").

¶ 42. DPI contends that when Epstein, just before the shooting, was carrying a loaded, concealed weapon in her purse while accompanying her granddaughters in their recreational activities, she was indeed engaging in "behavior that is contrary to commonly accepted moral or ethical standards." After all, DPI reasons, the conduct was criminal and potentially dangerous to children. There is, however, more to this story.

¶ 43. Epstein, according to the undisputed findings, intended to take the gun to a shooting range for target practice and did not realize that her method of carrying the gun was illegal. Hearing examiner Underwood concluded, therefore, that while "carrying a weapon with you on routine Saturday morning activities indicates a lack of common sense and may even indicate a cavalier attitude toward a loaded gun," Epstein's conduct was not "an act indicating moral turpitude." As a matter of law, Underwood was correct.

¶ 44. Carrying a concealed weapon violates Wisconsin law. See WlS. STAT. § 941.23 (1997-98) ("Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor."). Whether it also violates Wisconsin's moral standards, however, is less clear. Indeed, one of the more frequent and frustrating sentencing dilemmas for Wisconsin criminal court judges is presented by defendants who have been convicted of carrying concealed weapons for purposes many view as legitimate — making nighttime bank deposits after closing their stores; seeking protection from serious, threatened attack; traveling to hunt or target shoot without awareness of the legal manner of transporting weapons. Thus, without excusing such conduct, we simply point out that although Wisconsin has declared that carrying a concealed weapon is a crime, that declaration does not necessarily make such conduct immoral. See Lee v. Wisconsin State Bd. of Dental Exam'rs, 29 Wis. 2d 330, 338, 139 N.W.2d 61 (1966) (moral turpitude not necessarily involved in all acts prohibited by law). As the supreme court recently declared, a person who carries a concealed weapon illegally "need not have culpability or bad purpose." See State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999).

¶ 45. DPI argues that "[a] school district's message that students face serious consequences if they carry guns is undermined if students see that Ms. Epstein suffered no apparent serious consequences for carrying a concealed loaded weapon." Although we share DPI's concern about the message to students, DPI's lament is less legitimate than it might seem.

¶ 46. Granted, if DPI misrepresents this court's decision, it could be detrimental to students; an accurate account, however, would be highly instructive. An accurate account would refute DPI's preposterous suggestion that students would conclude that Epstein suffered "no apparent serious consequences"; on the contrary, students would learn that Epstein suffered a personal and family tragedy, that she was convicted of a crime, and that she has lost the opportunity to work in her chosen profession for the past six years. And an accurate account would help students learn that government, at times, behaves unconscionably, and that an independent and strong judiciary is essential to the preservation of both responsible government and individual rights.

¶ 47. Thus, while Epstein's carrying of a concealed weapon was illegal, and while her carrying of a loaded weapon while accompanying her grandchildren was particularly ill-advised, the evidence is not clear and convincing that her conduct was "contrary to commonly accepted moral or ethical standards." Therefore, we conclude, as a matter of law, that the evidence did not establish that Epstein's carrying of a concealed weapon constituted immoral conduct.

VII. CONCLUSION

¶ 48. In the opening comments of Epstein's brief to this court, appellate counsel maintains that "Epstein has yet to receive a fair, thoughtful, and balanced decision on one [of] the most serious issues a citizen can face: whether she is morally fit to remain in her chosen profession." Hopefully, Epstein now has received the decision she deserved many years ago.

¶ 49. Because DPI acted unconscionably, because DPI's unconscionable conduct denied Epstein due process of law, because DPI's decision was procedurally flawed, and because the evidence was not clear and convincing that Epstein's conduct was immoral, we remand this case to the circuit court for entry of an order directing DPI to immediately reinstate all of Epstein's DPI-issued licenses, retroactive to the dates of their original, respective revocations.

By the Court. — Order reversed and cause remanded with directions.

       Epstein held three licenses issued by DPI: a five-year license as a teacher for hearing-impaired (grades K-12); a five-year license as a teacher for elementary education (grades 1-6); and a lifetime license as a school social worker. In 1994, DPI revoked her two teaching licenses, but not her school social worker license; in 1998, however, DPI revoked all three. References to "license" and "licenses" appear throughout the record and the parties' briefs, without any apparent significance being attached to this distinction, or to the difference between Epstein's licenses for teaching and social work, or to the difference between the revocation of two licenses in 1994 and three in 1998. Therefore, for convenience in this opinion, we will simply refer to Epstein's "license."

       In these letters of September 18 and 23, 1996, Burke and Meredith do distinguish between Epstein's five-year teaching licenses and her lifetime school social worker license. Ultimately, however, neither Burke nor Meredith connected any consequence to the distinction and the balance of their correspondence continued to address Epstein's "license" revocation. See ¶ 1 n.l, supra.

       Wisconsin Stat. § 115.31 (1991-92) defines " '[ilmmoral conduct'" as "conduct or behavior that is contrary to commonly accepted moral or ethical standards and that endangers the health, safety, welfare or education of any pupil." Wis. Stat. § 115.31(l)(c). It also provides the state superintendent with discretionary authority to revoke "after written notice of the charges and of an opportunity for defense, any license granted by the state superintendent" for "immoral conduct on the part of the licensee," except as specified under the statutory provision mandating revocation of licenses following particular felony convictions. See Wis. Stat. § 115.31(2). The state superintendent was required to abide by the "clear and convincing evidence" standard when deciding to revoke Epstein's license on the basis of immoral conduct. See Wis. Admin. Code § PI 3.04(2)(a) (1997).

       In a footnote, however, the circuit court commented: "Had the proper nexus standard been applied by the Superintendent, this Court would likely have affirmed the revocation based upon this charge."

       Determining the correct standard of review of DPI's decision requires a very careful reading of Thompson v. Wisconsin Department of Public Instruction, 197 Wis. 2d 688, 541 N.W.2d 182 (Ct. App. 1995). In that case, DPI revoked Thompson's teaching license based on statutory revocation provisions and corresponding portions of the administrative code. See id. at 696. The relevant statute allowed revocation of a teaching license for immoral conduct. See Wis. STAT. § 118.19(5) (1989-90). Wisconsin Admin. Code § PI 3.04(l)(a) (1989) defined immoral conduct as "conduct or behavior which is contrary to commonly accepted moral or ethical standards." Wisconsin Admin. Code § PI 3.04(2)(a) (1989) allowed revocation of a teaching license "for immoral conduct if there is clear and convincing evidence that the person engaged in the immoral conduct and there is a nexus between the immoral conduct and the health, welfare, safety or education of any pupil."
      In Thompson, we concluded that "due weight," not "great weight," was the appropriate deference to be given to the superintendent's revocation of a teacher's license based on the teacher's immoral conduct and the nexus between that conduct and "the health, welfare, safety or education of any pupil." See Thompson, 197 Wis. 2d at 698. In doing so, we merged the superintendent's two determinations: (1) that the teacher engaged in "immoral conduct"; and (2) that the conduct had the required nexus to "the health, welfare, safety or education of any pupil." See id. Our discussion surrounding our conclusion, however, implied that, because the superintendent had vast experience in addressing the question of immoral conduct in conjunction with its nexus to "the health, welfare, safety or education of any pupil," we would have given great weight to that determination if that, alone, had been the element on appeal. See id. at 697-99. But, in Thompson, because the superintendent had had substantial experience in addressing nexus questions, but no experience in applying the role model standard to a nexus question, and because that latter element was the one on appeal, we concluded that "due weight" deference would be appropriate. See id. at 698-99.
      Thus, while our standard of review, based on Thompson, may not be absolutely clear, it appears that, consistent with Thompson, and in fairness to DPI, we should show "great weight" deference to DPI's determination of Epstein's immoral conduct: In this case, because we ultimately reject DPI's determination that Epstein engaged in conduct that was "contrary to commonly accepted moral or ethical standards," we need not go on to apply what, based on Thompson, would be "great weight" deference to DPI's nexus determination.

       DPI argues that we should interpret Epstein's challenge to its conduct as a "waiver- or estoppel-type argument" and reject it because, as the supreme court explained in Department of Revenue v. Moebius Printing Co., 89 Wis. 2d 610, 639, 279 N.W.2d 213 (1979), "estoppel doctrine" generally may not be "invoked against the government when the application of the doctrine interferes with the police power for the protection of the public health, safety or general welfare." DPI, however, fails to acknowledge that this principle is not absolute. The supreme court noted that, despite the general preclusion of an estoppel defense against the government:
      [W]e have recognized that estoppel may be available as a defense against the government if the government's conduct would work a serious injustice and if the public's interest would not be unduly harmed by the imposition of estoppel. In each case the court must balance the injustice that might be caused if the estoppel doctrine is not applied against the public interests at stake if the doctrine is applied.

        ... In each case the court must determine whether justice requires the application of the doctrine of estoppel; the determination of whether the state is estopped must be made on a case-by-case basis.

        Id. at 638-39, 641 (citations and footnotes omitted).
      Accepting, for the sake of argument, DPI's view that Epstein's argument essentially presents an estoppel theory, we have balanced the competing interests. Here, clearly, "the government's conduct" already has "work[ed] a serious injustice" by denying Epstein the opportunity to engage in her chosen profession while simultaneously precluding her from challenging that denial. And, just as clearly, "the public's interest would not be unduly harmed by the imposition of estoppel." After all, this court serves the public interest by holding DPI accountable for its unconscionable conduct, and by ensuring compliance with court orders. And, because the evidence failed to establish a proper basis for Epstein's license revocation, this court serves the public interest by ensuring that the improper license revocation is voided. Thus we have concluded that this case is an exceptional one in which "justice requires the application of the doctrine of estoppel." See id. at 641.

       DPI concedes, "It is undisputed that Ms. Holloway did not consult with the hearing examiner prior to issuing the May 26, 1998, decision."

       "If an agency's decision varies in any respect from the decision of the hearing examiner, the agency's decision shall include an explanation of the basis for each variance." WlS. STAT. § 227.46(2) (1997-98).

       At that time, the administrative code merely defined "immoral conduct" as "conduct or behavior which is contrary to commonly accepted moral or ethical standards." Wis. Admin. Code § PI 3.04(l)(a) (1991). At all times relevant to Epstein's case, however, the administrative code provided that "[a] license may be revoked for immoral conduct if there is clear and convincing evidence that the person engaged in the immoral conduct and there is a nexus between the immoral conduct and the health, welfare, safety or education of any pupil." WlS. Admin. Code § PI 3.04(2)(a) (1997).

       In her brief to this court, Epstein, relying on Donnie E. Martin, "Concealed Carry" Legislation and Workplace Violence: A Nightmare in Employers' Liability?, 65 Def. COUNS. J. 100, 101 (1998), asserts that "[i]n the majority of jurisdictions, [her] conduct would have been completely legal." Martin, a law student, wrote:
      Forty-three states and the District of Columbia now have legislation that legalizes the concealed possession of handguns or other deadly weapons. Thirteen states, as well as the District of Columbia, allow an individual to obtain a permit or license to carry a concealed [weapon] on a showing of some specific need....
      . . . Only seven states continue complete prohibitions against individuals from carrying concealed deadly weapons, [sic]

        Id. (footnotes omitted). See also State v. Dundon, 226 Wis. 2d 654, 673 & n.14, 594 N.W.2d 780 (1999) (noting that "[fjorty-three states have legislative enactments permitting citizens to carry concealed weapons under a variety of conditions and circumstances," and citing Martin's article).
      We have not attempted to verify whether Martin's summary of the current status of carrying-concealed-weapons laws is accurate. We do recognize, however, that even in Wisconsin, where carrying a concealed weapon is against the law, it does not necessarily draw moral condemnation. Just recently, an incident in Milwaukee highlighted both the judicial dilemma and the community's view, at least to the extent that it may have been expressed in a newspaper editorial:
      In Jerusalem, where Milwaukee grocer Munir A. Hamdan was raised, it would be unusual for a merchant to carry a gun to work to protect himself and his business, according to Hamdan.
      But this is America, a place where violent crime, in contrast to Jerusalem's strife, has grown so common that even otherwise law-abiding people such as Hamdan feel they have no choice but to pack a pistol and pray they never have to use it.

        Still, Hamdan was not abiding by the law last Nov. 26 when police stopped at his convenience store on W. Capitol Drive to inquire about beer sales. When officers asked whether he had a gun, Hamdan, who has been robbed numerous times at gunpoint, reached into his pocket and pulled out a loaded .32-caliber revolver.
      He was charged with carrying a concealed weapon.
      That was a clear violation of the law, all right, but as Circuit Judge Robert Crawford noted, this was a difficult case. Hamdan claimed that officers had asked him many times previously whether he had a gun, and he had always said "yes." According to Hamdan, police never warned him against concealing it, and court records indicate that even the officers last November weren't certain immediately what to do.
      Considering how many times Hamdan has been robbed at gunpoint over the years, it's hard to fault him for bringing a gun to work. Thus, Crawford was justified in fining the grocer only $1, rather than sending him to jail for the 30 days recommended by prosecutors.
      Don't take this wrong. The law is the law. Police and prosecutors have no choice but to enforce it. But it's up to judges to weigh the facts in the cases before them and use judicial discretion, as Crawford did.
      The judge conceded that he couldn't dismiss the case against Hamdan because it was, as Crawford put it, "legally sufficient." So, while Hamdan has to pay a fine of only $1, he still stands convicted. Moreover, the law was not compromised.
      Many merchants in this city are, like Hamdan, in a tough spot. With guns seemingly everywhere, good folks sometimes feel compelled to carry weapons to protect themselves and their businesses, loved ones and possessions.
      But that doesn't mean the answer is more guns, or allowing people to conceal them. With society locked in a high-stress mode, even the thought that the other guy might have a gun in his waistband can push some folks over the edge.
      That's why Hamdan's offense can't go entirely unpunished. But there has to be enough leeway in the criminal justice system to give legitimately nervous shopkeepers such as Munir Hamdan a break.

        There's Sense in $1 Fine, MILWAUKEE J. SENTINEL, July 21, 2000, at 14A. By quoting this editorial, we do not express agreement or disagreement — either with Judge Crawford's decision or with the editorial comments. We do, however, offer it as an illustration of a number of the competing concerns that, at times, may separate criminal conduct from immoral conduct.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    James Grafft, Petitioner-Respondent, v. Wisconsin Department of Natural Resources, Respondent-Appellant.
    Court of Appeals

      No. 00-0020.

      Oral argument August 10, 2000.

    Decided August 29, 2000.

    2000 WI App 187
    (Also reported in 618 N.W.2d 897.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Lorraine C. Stoltzfus, assistant attorney general.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Neal A. Nielsen, III, of Eagle River.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   CANE, C.J.

¶ 1. The Wisconsin Department of Natural Resources (DNR) appeals from an order reversing the DNR's denial of James Grafft's application for a permit to construct a permanent boat shelter. The DNR argues that it did not exceed its rule-making authority under Wis. Stat. § 30.l2(3)(c) when it promulgated Wis. Admin. Code § NR 326.055(4)(f), which provides that a permanent boat shelter permit may only be granted for locations adjacent to developed shorelines. Because the administrative rule neither contradicts the legislative intent nor exceeds the bounds of correct interpretation, we conclude the DNR did not exceed its authority in promulgating WlS. ADMIN. Code § NR 326.055(4)(f). Accordingly, we reverse the order.

Background

¶ 2. In June of 1998, Grafft applied to the DNR for a permit to construct a permanent boat shelter on the bed of Stone Lake in Vilas County. In July, the DNR denied the permit, finding that the proposed project would be detrimental to the public interest, contrary to WlS. Stat. § 30.12(3)(b). Specifically, the DNR concluded that the proposed boat shelter did not conform with the standards set forth in WlS. Admin. Code § NR 326.055(4)(f), which provides:

Permits for permanent boat shelters may only be granted for locations adjacent to developed shorelines. Developed shorelines are those where there are at least 5 principal structures including at least one on the applicant's property which are located within 500 feet of the proposed shelter site and which are visually intrusive as viewed from a location on the water.

Because the DNR found only four visually intrusive structures, it concluded the proposed project was located adjacent to undeveloped shoreline, thus precluding it from granting Grafft's permit application. The Division of Hearings and Appeals affirmed the permit denial, and Grafft petitioned the circuit court for review of that denial.

¶ 3. The circuit court, relevant to this appeal, concluded that Wis. Admin. Code § NR 326.055(4)(f) was invalid for exceeding the rule-making authority granted the DNR under Wis. Stat. § 30.12(3)(c), and remanded the matter to the DNR for further proceedings. This appeal followed.

Analysis

¶ 4. Generally we review the DNR's decision, and not that of the circuit court. See Knight v. LIRC, 220 Wis. 2d 137, 147, 582 N.W.2d 448 (Ct. App. 1998). Although we do not defer to the circuit court's opinion, its reasoning may assist us. See Sterlingworth Condo. Ass'n v. DNR, 205 Wis. 2d 710, 720, 556 N.W.2d 791 (Ct. App. 1996). "Our standard of review for agency decisions depends upon whether the issues presented are questions of law or questions of fact." Knight, 220 Wis. 2d at 147. Where, as here, we are construing a statute involving the scope of an agency's power, we give no deference to the agency's opinion, but rather, interpret the statute de novo. See Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶ 6, 234 Wis. 2d 335, 610 N.W.2d 129.

¶ 5. The goal of statutory interpretation is to determine and give effect to the legislature's intent. See Doe v. American Nat'l Red Cross, 176 Wis. 2d 610, 616, 500 N.W.2d 264 (1993). We must first look to the statute's plain language. If the language is clear and unambiguous on its face, we merely apply that language to the facts at hand. See In re Peter B., 184 Wis. 2d 57, 71, 516 N.W.2d 746 (Ct. App. 1994). Although we do not look beyond the statute's plain meaning, we will consider its parts in relationship to the whole statute and to related sections. See Elliott v. Employers Mut. Cas. Co., 176 Wis. 2d 410, 414, 500 N.W.2d 397 (Ct. App. 1993). When a statute's language is ambiguous, we may then consider legislative intent and collateral sources, including "the scope, history, context, subject matter and object of the statute." Armor All Prods. v. Amoco Oil Co., 194 Wis. 2d 35, 50, 533 N.W.2d 720 (1995). "Statutory language is ambiguous if reasonably well-informed individuals could differ as to its meaning." State v. Kirch, 222 Wis. 2d 598, 602-03, 587 N.W.2d 919 (Ct. App. 1998).

¶ 6. An administrative rule is invalid if it exceeds the statutory authority of the promulgating agency. See WlS. Stat. § 227.40(4)(a); see also Seider v. O'Connell, 2000 WI 76, ¶ 70, 236 Wis. 2d 211, 612 N.W.2d 659. To determine whether an agency has exceeded its statutory authority in promulgating a rule, this court first examines the enabling statute, which indicates whether the legislature expressly or implicitly authorized the agency to create the rule. See Seider, 2000 WI 76 at ¶ 70. Generally, "an administrative agency has only those powers , as are expressly conferred or necessarily implied from the statutory provisions under which it operates, but acting within that grant of delegated power, an agency effectuates the will of the legislature." Brown County v. DH&SS, 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981). Any doubts, however, as to the implied power of an agency are to be resolved against the existence of authority. See Debeck v. DNR, 172 Wis. 2d 382, 387, 493 N.W.2d 234 (Ct. App. 1992).

¶ 7. To establish whether an agency rule was promulgated by express authorization from the legislature, a reviewing court "should identify the elements of the enabling statute and match the rule against those elements." Wisconsin Hosp. Ass'n v. Natural Resources Bd., 156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990). "If the rule matches the statutory elements, then the statute expressly authorizes the rule." Id. This court has recognized, however, that if an enabling statute needed to spell out every detail of a rule in order to expressly authorize it, no rule would be necessary. See id. at 705-06. "Accordingly, whether the exact words used in an administrative rule appear in the statute is not the question." Id.

¶ 8. Wisconsin Admin. Code § NR 326.01 outlines the purpose of § NR 326, stating: "These rules are promulgated under ss. . . . 30.12, 30.13 . . . and 227.11, Stats., in order to provide consistency in the application of ss. 30.12 and 30.13, Stats., to the construction of piers, boat shelters and similar structures on the beds of navigable waterways as aids to navigation." In turn, Wis. Stat. § 227.11 provides, in pertinent part:

(2) Rule-making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it exceeds the bounds of correct interpretation.

¶ 9. At issue in the present case is Wis. Stat. § 30.12(3)(c), which authorizes the DNR to

promulgate rules deemed necessary to carry out the purposes of par. (a)6., including rules to establish minimum standards to govern the architectural features of boat shelters and the number of boat shelters that may be constructed adjacent to a parcel of land. The rules may not govern the aesthetic features or color of boat shelters. The standards shall be designed to assure the structural soundness and durability of a boat shelter.

Id Grafft contends that the legislature did not expressly authorize promulgation of Wis. Admin. Code § NR 326.055(4)(f) because the statutory elements do not match the administrative rule. We agree. Wis. Admin. Code § NR 326.055(4)(f) provides that permits for permanent boat shelters may only be granted for locations adjacent to developed shorelines. The statute does not expressly authorize the DNR to grant or deny permanent boat shelter permits based on the "undeveloped shoreline" standard of § NR 326.055(4)(f). Rather, the statutory language authorizes the DNR to "promulgate rules deemed necessary" to effectuate its discretionary authority to either grant or deny a riparian owner the permit necessary to construct a permanent boat shelter adjacent to his or her property. We conclude this language is ambiguous and therefore resort to rules of statutory construction to determine if the legislature implicitly authorized the DNR to promulgate the "undeveloped shoreline" standard of § NR 326.055(4)(f).

¶ 10. Looking to the history of the statute, "[i]t is well established that the state holds the beds underlying navigable waters in trust for all of its citizens." Sterlingworth Condo., 205 Wis. 2d at 723. In furtherance of that trust, the legislature "has declared it to be unlawful to place any structure on the bed of a navigable water unless a permit has been granted by the DNR, or unless the structure is otherwise authorized by statute." Id. This court has recognized that WlS. Stat. § 30.12, which governs the construction of permanent boat shelters, prohibits "structures that are detrimental to the public interest." Id. at 724. We have further recognized that the statute authorizes the DNR "to weigh the relevant policy factors which include, 'the desire to preserve the natural beauty of our navigable waters, to obtain the fullest public use of such waters, including but not limited to navigation, and to provide for the convenience of riparian owners.'" Id. at 724-25.

¶ 11. Within this general framework, Wis. Stat. § 30.12(3)(e) authorizes the DNR to establish those "rules deemed necessary" to effectuate its discretionary authority to either grant or deny a riparian owner the permit necessary to construct a permanent boat shelter. To that end, § 30.12(3)(c) provides that included among those rules deemed necessary, may be rules to establish minimum standards governing (1) the architectural features of boat shelters; and (2) the number of boat shelters that may be constructed adjacent to a parcel of land. The statute thus implicitly authorized the DNR to promulgate the undeveloped shoreline standard of Wis. Admin. Code § NR 326.055(4)(f).

¶ 12. Grafft nevertheless contends the rule contradicts the legislative intent and, thus, the DNR exceeded its authority in promulgating it. "An agency interpretation is not reasonable if it contradicts either the language of a statute or legislative intent." Seider, 2000 WI 76 at ¶ 72. Where a conflict arises between a statute and an administrative rule, the statute prevails. See id.

¶ 13. The legislature enacted Wis. Stat. § 30.12(3) to regulate the construction of permanent boat shelters. See 1987 Wis. Act 374, § 22. The previous § 30.12(3)(c) (1987-1988) provided, in relevant part:

The department may promulgate rules deemed necessary to carry out the purposes of par. (a)6, including rules to establish minimum standards to govern the architectural and aesthetic features of boat shelters and the number of boat shelters that may be constructed adjacent to a parcel of land. The standards shall be designed to assure the structural soundness and durability of a boat shelter and to minimize the visual intrusiveness of a boat shelter with respect to the surrounding body of water and shoreline. (Emphasis added.)

In 1991, the DNR promulgated the present boat shelter standards of Wis. Admin. Code § NR 326.055(4)(f). The legislature subsequently amended § 30.12(3)(c), removing any language regarding the aesthetics of boat shelters. See 1995 WlS. Act 27, § 1657ym. The amended statute provides:

The department may promulgate rules deemed necessary to carry out the purposes of par. (a)6., including rules to establish minimum standards to govern the architectural features of boat shelters and the number of boat shelters that may be constructed adjacent to a parcel of land. The rules may not govern the aesthetic features or color of boat shelters. The standards shall be designed to assure the structural soundness and durability of a boat shelter....

Wis. Stat. § 30.12(3)(c) (1995-96).

¶ 14. Given the statute's amendment, Grafft argues the DNR has exceeded its rule-making authority by denying permits based on its "undeveloped shoreline" standard — a standard that determines the visual intrusiveness of principal structures located adjacent to the proposed boat shelter site. We conclude, however, that the administrative rule does not conflict with the amended statute. The language of the statute evinces the legislature's intent to remove regulations based on the aesthetics and color of proposed boat shelters; however, it does not limit rule-making concerning the surrounding principal structures. Accordingly, consistent with its implied authority to make rules deemed necessary to effectuate its discretionary authority to grant or deny permanent boat shelter permits to riparian owners, the DNR promulgated the undeveloped shoreline standard. That standard does not consider the aesthetics, color or visual intrusiveness of a proposed boat shelter, but rather, limits the number of boat shelters based on the number of visually intrusive principal structures surrounding the proposed boat shelter site. Because the administrative rule neither contradicts the legislative intent nor exceeds the bounds of correct interpretation, see Seider, 2000 WI 76 at ¶¶ 71-72, we conclude the DNR did not exceed its authority by promulgating Wis. Admin. Code § NR 326.055(4)(f).

¶ 15. Because we conclude the DNR did not exceed its authority by promulgating Wis. Admin. Code § NR 326.055(4)(f), we refrain from addressing the DNR's alternative arguments for denying Grafft's permit application. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (only dispositive issues need be addressed). Although at oral argument Grafft contended, with some persuasion, that the rule is arbitrary, at best, in its application, the only issue before this court is whether the DNR exceeded its authority in promulgating §NR 326.055(4)(f). It is not for this court, based on the record before us, to second-guess the wisdom of the rule.

By the Court. — Order reversed and cause remanded.

       All statutory references are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. § 30.l2(3)(b) provides:
      A person who seeks to place structures or deposits under par. (a) shall apply to the department for a permit. The department may disapprove the application if it finds that the proposed structure or deposit will materially impair navigation or be detrimental to the public interest.

       "Visually intrusive" is defined as: "clearly standing out from the shoreline background because of color or reflectivity when viewed from out on the water during the time when leaves are on deciduous trees." Wis. Admin. Code § NR 326.03(11).

       Wisconsin Stat. § 30.12(3)(a)6 provides:
      The department, upon application, may grant to a riparian owner a permit to:
      6. Place a permanent boat shelter adjacent to the owner's property for the purpose of storing or protecting watercraft and associated materials, except that no permit may be granted for a permanent boat shelter which is constructed after May 3,1988, if the property on which the permanent boat shelter is to be located also contains a boathouse within 7 5 feet of the ordinary high-water mark or if there is a boathouse over navigable waters adjacent to the owner's property.

       Wisconsin Stat. § 30.12(3) provides that the DNR, upon application, "may" grant a riparian owner the permit necessary to place a permanent boat shelter adjacent to the owner's property. The word "may" is generally construed as permissive or discretionary. See Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 447-48, 531 N.W.2d 606 (Ct. App. 1995).

       Our review of the legislative reference file indicates that, by amending WlS. Stat. § 30.12(3)(c), the legislature intended to eliminate the DNR's ability to promulgate rules regarding the regulation of boat shelter color or aesthetic value. Accordingly, we conclude that when the legislature deleted language regarding the "visual intrusiveness of a boat shelter with respect to the surrounding shoreline," it was simply effectuating its intent to prevent DNR regulation based on boat shelter color or aesthetics.

       Grafft emphasizes the statute's amendment to support his contention that the DNR exceeded its rule-making authority. We recognize, however, that at oral argument, Grafft argued that the DNR exceeded its authority at the rule's inception. In any event, we conclude the DNR did not exceed it rule-making authority by promulgating WlS. ADMIN. CODE § NR 326.055(4)(f).

       The amended statute arguably speaks to the regulation found in Wis. Admin. Code § NR 326.055(2)(b), which provides, in relevant part, that "[a] boat shelter may not be visually intrusive as viewed against the shoreline." Although the DNR concedes it does not have the authority to regulate the color or aesthetics of boat shelters, it notes that it has not removed this language from its regulations. In any event, Grafft does not challenge para. (2)(b) of the rule and we therefore refraining from addressing it.

       Grafft's counsel strongly and eloquently made this assertion during oral argument. Nevertheless, there are no facts in the record about arbitrary application because that was not an issue in the case. Without a factual basis, we cannot determine whether the rule is arbitrarily applied.


author: PETERSON, J.

text:
    Oneida County, Petitioner-Appellant, v. Wisconsin Employment Relations Commission and Oneida County Courthouse Employees, Local 158, Respondents-Respondents.
    Court of Appeals

      No. 00-0466.

      Submitted on briefs August 7, 2000.

    Decided August 29, 2000.

    2000 WI App 191
    (Also reported in 618 N.W.2d 891.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Dean R. Dietrich and Julie M. Falk oí Ruder, Ware & Michler, S.C., Wausau.
    On behalf of the respondents-respondents, the cause was submitted on the brief of James E. Doyle,
      attorney general, and David C. Rice, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   PETERSON, J.

¶ 1. The issue in this case is whether chief deputies in the offices of clerk of court, county clerk, county treasurer and register of deeds are excluded from a collective bargaining unit as a matter of law. We hold they are not and accordingly affirm the order.

BACKGROUND

¶ 2. Oneida County originally commenced a declaratory judgment action seeking a ruling that the deputy clerk of court, deputy county clerk, deputy county treasurer and deputy register of deeds are excluded from the collective bargaining unit of the Oneida County Courthouse Employees, Local 158. The collective bargaining agreement provides "all regular full-time and regular part-time employees of the Oneida County Courthouse [are] covered by this agreement, but excluding all elected personnel, supervisory personnel, and managerial personnel, as defined by the Act." The Act referred to is the Municipal Employment Relations Act (MERA), Wis. Stat. §§ 111.70-111.77. The deputies, as members of the collective bargaining unit, are covered by the agreement.

¶ 3. The County sought exemption for the deputies based on two contentions. First, by virtue of their designation as chief deputies, the County claimed the positions are exempt from MERA as a matter of law. Alternatively, the County contended the deputies are exempt by the terms of MERA because the deputies are supervisors or managerial employees.

¶ 4. The circuit court referred the case to the Wisconsin Employment Relations Commission (WERC). The commission held a hearing, made findings and concluded that (1) the positions are not exempt from MERA as a matter of law and (2) based on the facts, the deputy clerk of court is exempt as a supervisor under MERA, but the other deputies are not exempt because they are neither supervisors nor managerial employees.

¶ 5. The County then filed a petition for judicial review of the commission's decision. The circuit court affirmed and this appeal follows.

STANDARD OF REVIEW

¶ 6. We review the decision of the commission and not the circuit court. See Lewandowski v. State, 140 Wis. 2d 405, 409, 411 N.W.2d 146 (Ct. App. 1987). Some deference is normally paid to the commission's determination. See Brown County v. WERC, 138 Wis. 2d 254, 261-62, 405 N.W.2d 752 (Ct. App. 1987). However, when the question involves the interpretation of statutes and case law outside the area of labor relations and the statute's relationship to the applicable provisions of the MERA, the issue is one of law " 'within the special competence of the courts rather than the Commission....'" City of Brookfield v. WERC, 87 Wis. 2d 819, 827, 275 N.W.2d 723 (1979) (quoting Glendale Prof'l Policemen's Ass'n v. Glendale, 83 Wis. 2d 90, 100-01,264 N.W.2d 594 (1978)). As a result, we do not defer to the commission's decision. See id.

DISCUSSION

I. MATTER OF LAW ARGUMENT

A. Case Law

¶ 7. The County's primary argument is that under County of Eau Claire v. AFSCME Local 2223, 190 Wis. 2d 298, 526 N.W.2d 802 (Ct. App. 1994) and Winnebago County v. Winnebago County Courthouse Employees Ass'n, 196 Wis. 2d 733, 540 N.W.2d 204 (Ct. App. 1995), chief deputies are automatically excluded from the bargaining unit. We are not persuaded.

¶ 8. As a backdrop to Eau Claire and Winnebago, we first review two cases which set the stage, Iowa County v. Iowa County Courthouse Soc. Servs. Employees, 166 Wis. 2d 614, 480 N.W.2d 499 (1992) and Crawford, County v. WERC, 177 Wis. 2d 66, 501 N.W.2d 836 (Ct. App. 1993). In Iowa, the position of register in probate became vacant. A statute provided that the judge shall appoint the register in probate. The county's collective bargaining agreement, however, provided that vacancies must be posted and that the most senior person applying must get the job. Our supreme court concluded that while a county may limit its own power with respect to registers in probate, e.g., setting salary, it could not bargain "restrictions on the hiring of a register in probate because it was not within its power to begin with." See Iowa County, 166 Wis. 2d at 620. Thus, the provisions in the agreement which purported to limit the statutory power of the judge to appoint a register in probate were void. All other provisions remained in effect. See id. at 621.

¶ 9. In Crawford, the union proposed subjecting deputies in the clerk of court's and register of deeds' offices to all terms and conditions of a collective bargaining agreement. The statutes, however, authorized the elected clerk of court and register of deeds to appoint and remove deputies. Consistent with Iowa, we concluded that the county could not bargain away the statutory power of the clerk of court and register of deeds to appoint and discharge deputies. See Crawford County, 177 Wis. 2d at 78. The county could, however, bargain on subjects over which it had authority, such as pay and other conditions of employment. See id.

¶ 10. Oneida County first relies on the Eau Claire case. There, we again dealt with the offices of clerk of court and register of deeds. The county had entered into a collective bargaining agreement with the union covering the employees in those offices. The collective bargaining agreement contained provisions for hiring and firing: required posting for hiring and required just cause for firing. Each office had a nonunion chief deputy position, but virtually every other employee was deputized and was covered by the agreement.

¶ 11. We first stressed the importance of harmonizing, if possible, the provisions of a collective bargaining agreement under MERA with other conflicting statutory provisions. See County of Eau Claire, 190 Wis. 2d at 304. We observed that Crawford involved only a single chief deputy in the offices of clerk of court and register of deeds. We then limited the holding of Crawford to those facts "to avoid the evisceration of the legislative intent underlying MERA" and the statutes authorizing the clerk of court and register of deeds to appoint and discharge deputies. County of Eau Claire, 190 Wis. 2d at 305.

While Crawford could not reconcile the appointment of a deputy clerk and deputy register at the pleasure of their superior, it does not follow that the number of appointments pursuant to this statutory power is unlimited. The size and function of the particular office will ultimately determine the scope of the power.

Id. We then remanded the case to determine whether any employees were exempt under MERA as supervisors or managers. If not, they would remain covered by the agreement and were not exempt merely because they were deputized. See id. at 307.

¶ 12. Oneida County seizes on the following statement in Eau Claire: "We conclude that deputized employees, apart from the chief deputy, are exempt from MERA coverage only to the extent that they in fact function as managerial or supervisory employees . . . ." Id. at 301. From this, the County concludes that chief deputies are automatically excluded from the collective bargaining unit as a matter of law. It would not have to show whether the chief deputies are exempt from MERA as supervisors or managers because MERA does not apply to chief deputies. Other deputy employees, according to the County, are covered by MERA and are only exempt if they are supervisors or managers.

¶ 13. Asa preliminary matter, Eau Claire did not address whether chief deputies are automatically exempt from MERA. That was not an issue in the case. In fact, the chief deputies there were non-union positions. The issue was whether deputized employees, aside from the chief deputy, were subject to MERA. See id. Any comments about chief deputies must be read in the context of the facts of the case.

¶ 14. More fundamentally, however, the County misreads our decision. Crawford held that deputies were subject to the collective bargaining agreement in all respects except those that conflicted with the statutory powers of appointment and removal. See Crawford County, 177 Wis. 2d at 78. By limiting Crawford to its facts, Eau Claire restricted Crawford's, holding to one chief deputy in each office. See County of Eau Claire, 190 Wis. 2d at 304. That chief deputy is subject to MERA with one exception: the county may not bargain away the elected official's power to appoint and discharge. By applying MERA in all other respects to chief deputies, they will be subject to a collective bargaining agreement unless they are exempt as supervisors or managers, just like other deputies. Thus, under Eau Claire, the difference between the chief deputy and other deputies is simply that the elected official always retains the power to appoint and discharge the chief deputy. The power to hire and fire other deputies, however, can be limited by a collective bargaining agreement.

¶ 15. Last, the County cites the Winnebago case. However, Winnebago merely restated the holding in Eau Claire. See Winnebago County, 196 Wis. 2d at 743. It did not expand the holding, nor was the question of a chief deputy's exemption from MERA even an issue in the case. Winnebago adds no further support to the County's argument.

¶ 16. Thus, we conclude that, contrary to the County's argument, Eau Claire and Winnebago do not support the proposition that chief deputies are exempt from MERA as a matter of law. To the contrary, the case law holds that chief deputies are subject to MERA, with the exception of the elected officials' power to appoint and discharge.

B. Legislative History

¶ 17. The County additionally argues that WERC disregarded relevant legislative history regarding the revision of the treasurer's powers in Wis. Stat. § 59.25(2)(a). The former statute allowed the treasurer to appoint one or more deputies. The statute was amended by 1997 Wisconsin Act 211 to limit the appointment to one deputy and to require just cause for discharge. The County argues that these amendments were prompted by its interpretation of the rulings in Eau Claire and Winnebago. We reject the County's argument because, as already explained, we reject its interpretation of our cases.

¶ 18. The County cites a legislative reference bureau memorandum to support its argument for why the statute was changed. To begin with, we do not defer to the legislative reference bureau for an interpretation of our decisions. In addition, the County does not make an argument that the statute is ambiguous. In the absence of ambiguity, we do not refer to legislative history. Cf. State v. Sample, 215 Wis. 2d 487, 495, 573 N.W.2d 187 (1998).

¶ 19. Finally, a reading of the legislative amendments cited by the County actually supports the commission's decision. WISCONSIN Stat. § 59.52(2)(a) was amended to provide for the appointment of a single deputy treasurer and to permit the removal of the deputy treasurer only for just cause. It provides the deputy treasurer with just cause protection, a protection the position would lack under the holding in Crawford.

C. Public Policy

¶ 20. The County also makes a public policy type of argument for exclusion of chief deputies from the collective bargaining unit. The argument is as follows:
Pursuant to the appointment statutes, the Deputies perform the statutory duties and, with regard to the offices of the Register of Deeds and the Clerk of Court, the constitutional duties, of their respective elected officials during a vacancy in the elective office, during an absence of the elected official, or during a period in which the elected official is unable to perform his or her duties. The terms of employment of the Deputies are also coextensive with the elected official who appointed them. Like the elected officials, the Deputies are required by statute to take and file an oath and post a bond.. . . The Deputies' duties and conditions of employment are those of the elected officials, rather than that of mere employees. (Footnote omitted.)

As a result, the County contends that chief deputies "cannot fairly and effectively perform their duties if they are torn by an allegiance to the bargaining unit members or are unduly influenced by their own membership."

¶ 21. The County's argument must be rejected for three reasons. First, we have previously acknowledged these factors. In Crawford we recognized

the constitutional origins of the offices themselves, the statutory provisions authorizing their appointed deputies to carry out the functions of the offices in the event of vacancy or inability of the officeholder to serve, and by the various provisions of the Wisconsin Constitution and state statutes which, in distinction to local officers, give other state officials a role in their appointment, resignation and removal.

Id. 2d at 77-78. That recognition, however, did not lead to the sweeping conclusion of automatic exemption from the collective bargaining unit. Rather, it led to harmonizing the statutes by barring only the county's authority to bargain the statutory powers of appointment and discharge.

¶ 22. Second, the statutes and the constitution do not support the County's argument. Rather, those laws all refer to a "deputy" or "deputies." None specifies a "chief deputy. If we were to accept the County's argument based on the statutes and the constitution, we would logically have to exempt all deputies in these offices from the collective bargaining unit. Since most employees in these offices are deputized, this would have the effect of abrogating the collective bargaining rights of a major portion of courthouse employees. This is a conclusion we will not reach on public policy grounds.

¶ 23. Third, the County's argument is directed at the wrong forum. A public policy argument is best made to the legislature. A court's function is to interpret and give effect to the statutes, not to rewrite them on the grounds of public policy. See Flynn v. DOA, 216 Wis. 2d 521, 539, 576 N.W.2d 245 (1998).

II. EVIDENCE ARGUMENT

¶ 24. Finally, the County argues that if the chief deputies are not exempt from MERA as a matter of law, then the evidence shows that they should all be exempt as supervisory or managerial positions. However, this issue was not raised in circuit court. In fact, in its reply brief in circuit court, the county specifically stated:

[T]he Commission argues that it could reasonably find that the Deputy County Clerk, Deputy County Treasurer, and Deputy Register of Deeds did not qualify as managerial or supervisory employees within the meaning of the Municipal Employment Relations Act (MERA). Oneida County is not challenging that determination. Rather, the County's sole contention in this matter is that these Deputies, and the Deputy Clerk of Court, should be excluded from the collective bargaining unit as a matter of law because they are duly appointed Chief Deputies to the elected officials.

We generally do not address issues raised for the first time on appeal. See Anderson v. Nelson, 38 Wis. 2d 509, 514, 157 N.W.2d 655 (1968). We conclude that the County waived any claim that the positions were supervisory or managerial by its failure to raise the issue in the circuit court.

By the Court. — Order affirmed.

       A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

       The only statutory reference to a "chief1 deputy is for the clerk of court office in Milwaukee County. Wis. Stat. § 59.40(l)(b). Every other statute refers only to "deputy" or "deputies." Nevertheless, by practice counties have apparently adopted the title of "chief deputy" for positions in various offices.

        The following Wisconsin Statutes are the relevant statutes regarding deputies:
      59.23 Clerk. (1) DEPUTIES; SALARIES; VACANCIES, (a) Every clerk shall appoint in writing one or more deputies and file the appointment in the clerk's office. The deputy or deputies shall aid in the performance of the duties of the clerk under the clerk's direction, and in case of the absence or disability of the clerk or of a vacancy in the clerk’s office, unless another is appointed therefor as provided in par. (c), shall perform all of the duties of the clerk during the absence or until the vacancy is filled. The board may, at any meeting, provide a salary for the deputy or deputies.
      59.25 Treasurer.
      (2) Deputies; oath; salary; temporary vacancy, (a) The treasurer shall appoint one deputy to aid the treasurer, under the treasurer's direction, in the discharge of the duties of the office of treasurer. A deputy appointed under this paragraph may be removed only for just cause. The appointment shall be in writing and shall be filed and recorded in the treasurer's office. Such deputy, in the absence of the treasurer from the treasurer's office or in case of a vacancy in said office or any disability of the treasurer to perform the duties of the office of treasurer, unless another is appointed therefor as provided in par. (b), shall perform all of the duties of the office of treasurer until such vacancy is filled or such disability is removed. The person so appointed shall take and file the official oath. The person shall file his or her appointment with the clerk. The hoard may, at its annual meeting or at any special meeting, provide a salary for the deputy.
      59.40 Clerk of court. (1) CLERK OF COURT; DEPUTIES; CHIEF DEPUTY; DIVISION CHIEF DEPUTIES; CALENDAR DEPUTY IN CERTAIN COUNTIES. (a) Counties of less than 500,000 population. Every clerk of the circuit court shall appoint one or more deputies and the appointments shall be approved by the majority of circuit judges for the county, but shall be revocable by the clerk at pleasure, except in counties having a population of500,000 or more. The appointments and revocations shall be in writing and shall be filed in the clerk's office. The deputies shall aid the clerk in the discharge of the clerk's duties. In the absence of the clerk from the office or from the court, the deputies may perform all the clerk's duties; or in case of a vacancy by resignation, death, removal or other cause the deputy appointed shall perform all such duties until the vacancy is filled.
      59.43 Register of deeds; duties, fees, deputies.
      (3) Register OF DEEDS; DEPUTIES. Every register of deeds shall appoint one or more deputies, who shall hold office at the register's pleasure. The appointment shall be in writing and shall be filed and recorded in the register's office. The deputy or deputies shall aid the register in the performance of the register's duties under the register's direction, and in case of the register's vacancy or the register's absence or inability to perform the duties of the register's office the deputy or deputies shall perform the duties of register until the vacancy is filled or during the continuance of the absence or inability.

       Wisconsin Stat. § 111.70(l)(i) reads as follows:" 'Municipal employe' means any individual employed by a municipal employer other than an independent contractor, supervisor, or confidential, managerial or executive employe."