Opinion
October 9, 1951 —
November 6, 1951.
APPEAL from judgment of the circuit court for Dane county: AROLD F. MURPHY, Circuit Judge, Presiding. Reversed.
For the appellant there was a brief by the Attorney General, Stewart G. Honeck, deputy attorney general, and Roy G. Tulane, assistant attorney general, and oral argument by Mr. Tulane and Mr. Honeck.
For the respondent there was a brief by Curran Curran of Mauston, and oral argument by Charles P. Curran.
The respondent, Homer G. Bell, had been employed by the state of Wisconsin in various capacities in the enforcement of the state's motor vehicle statutes for some twenty-nine years. From November 27, 1939, until March 27, 1950, he was director of enforcement in the Motor Vehicle Department and in that capacity had served under Commissioners Rikeman, Jones, and Marcus.
On March 27, 1950, Bell was discharged by B. L. Marcus, commissioner of the Motor Vehicle Department. Being under civil service, Bell appealed his discharge to the Personnel Board of Wisconsin (hereinafter referred to as the "board") pursuant to sec. 16.24 (1) (a), Stats. After a public hearing, the board, under date of June 16, 1950, made findings of fact and conclusions of law, and rendered its decision thereon as follows:
"FINDINGS OF FACT
"1. That prior to March 27, 1950, Homer G. Bell was an employee of the Motor Vehicle Department in the competitive division of the classified service, holding the position director of inspection and enforcement; that Mr. B. L. Marcus, commissioner, was his appointing authority.
"2. That said Homer G. Bell in the performance of his duties as director of inspection and enforcement in the Motor Vehicle Department was subject to rules established under ch. 16.
"3. That by letter dated March 24, 1950, said appointing authority notified Mr. Bell that he would be discharged from his position as director of inspection and enforcement, effective at 12 o'clock noon, on March 27, 1950, because of `insubordination, neglect of duty, inefficiency, and lack of co-operation in carrying out the duties of your position.'
"4. That said appointing authority filed in writing with the director the reasons for discharging Mr. Bell prior to the effective date thereof.
"5. That said Homer G. Bell filed in writing with the director a request for a hearing. before the Personnel Board within the time required by law.
"6. That this dismissal was not motivated or prompted by either political or religious consideration.
"7. That an atmosphere of friction had extended over a considerable period of time, as well as a conflict in point of view of the appellant and the department head with regard to questions of policy, judgment, and procedure, and the performance of the functions of the appellant as director or the enforcement division of the Motor Vehicle Department.
"The department head is charged with responsibility for proper and efficient management of the department of which he is the executive officer. To discharge that responsibility, obviously, he must have the assistance and efforts of efficient and co-operative employees and subordinate executives. For that reason the legislature has conferred upon the department head or appointing authority the duty and the power to appoint such subordinates as are necessary and to dismiss them if the good of the service is served thereby. It becomes, therefore, a matter of sound discretion with the appointing authority to determine whether the good of the service justifies a dismissal. It is not for this board to substitute its discretion or judgment for that of the department head or to decide who is right with regard to differences of opinion and judgment between the department head and subordinate executives. It is the board's jurisdiction to determine only the issue as to whether the appointing authority was justified in dismissing a subordinate or whether his action was motivated by political or religious considerations and without reasonable basis or justification.
"8. That the commissioner had reason to believe that the appellant as a subordinate executive did not wholeheartedly assist and co-operate in carrying out his (the commissioner) policies and administrative procedures.
"9. That the commissioner had reason to believe that the appellant was unsatisfactory as a subordinate executive because he neglected or failed to properly appraise the relative importance to the state of the various functions of the enforcement division, and failed to concentrate the efforts of his limited staff of officers in those areas of operation from which the state would derive the greatest returns, i.e., the weighing and ton-mile-tax enforcement.
"10. That the commissioner had reason to believe that the appellant followed a policy of leniency to trucking violators, that prosecutions for violations were not mandatory.
"11. That the commissioner had reason to believe that the appellant continuously favored and fostered by various means the creation of a state police force contrary to the expressed wishes and desires of the commissioner.
"Upon the basis of the foregoing findings of fact, the Personnel Board makes the following conclusion of law:
"That the discharge of Homer G. Bell from the state service by the commissioner of the Motor Vehicle Department was for just cause which was neither religious nor political.
"DECISION
"Upon the basis of the above and foregoing findings of fact and conclusions of law the Personnel Board, pursuant to sec. 16.24 of the Wisconsin statutes for 1949, sustains the action of the commissioner of the Motor Vehicle Department in the discharge of Homer G. Bell from his position as director of inspection and enforcement."
These findings and decision were signed by William Ahrens, Clifford G. Mathys, and Mrs. Jane B. Harvey, being all three members of the board.
Bell then appealed the decision of the board to the circuit court for Dane county pursuant to ch. 227, Stats. (the Uniform Administrative Procedure Act). The trial court, after reviewing the record and considering the briefs of counsel, made a memorandum decision and entered formal findings of fact, wherein the trial court found that "the statements, inferences, and conclusions" of the board "do not constitute findings of fact," that "the so-called findings . . . are unsupported by substantial evidence in view of the entire record," that the conclusions of the board are "arbitrary conclusions," that "the so-called findings do not support the decision" of the board, that not any of the board's conclusions "constitute just cause for the removal" of Bell, and that the decision of the board "is unsupported by substantial evidence in view of the entire record."
The trial court thereupon, under date of March 10, 1951, rendered a judgment reversing the decision of the board, and the board appealed to this court from such judgment.
Sec. 16.24 (1) (a), Stats., provides that a civil-service employee, such as Bell, shall not be discharged "except for just cause, which shall not be religious or political." Sec. 16.24 (1) (b) provides with respect to the action which the board shall take, in the event a civil-service employee appeals a discharge to it, that after public hearing the board "shall either sustain the action of the appointing officer, or shall reinstate the employee fully."
Ch. 16, Stats., does not provide that any findings of fact shall be made by the board in support of its decision on appeal but the provisions of sec. 227.13 require such findings of fact. This statute provides:
"Every decision of an agency in a contested case shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each contested issue of fact without recital of evidence."
The first question which confronts us is whether the findings of fact made by the board in this instance comply with the provisions of sec. 227.13, Stats.
An analysis of the findings of fact made by the board, which are set forth in the statement of facts preceding this opinion, discloses that findings 7, 8, 9, 10, and 11 are those which purport to relate to the question of whether Bell was discharged for "just cause."
Finding 7 is to the effect that friction had developed between Bell and Marcus over a considerable period of time with respect to questions of policy, judgment, and procedure, and the performance of the functions of Bell as director of the enforcement division of the Motor Vehicle Department, and that Marcus is charged with the responsibility for the proper and efficient management of such department.
Findings 8, 9, 10, and 11 are all couched in the language that Marcus " had reason to believe" that Bell was guilty of such and such conduct.
We are of the opinion that findings 8, 9, 10, and 11 are defective and not the type of findings required under the provisions of sec. 227.13, Stats. In determining whether Bell was discharged for just cause it is not sufficient for the board to find that Marcus believed Bell was guilty of certain conduct, which, if true, would constitute just cause for the discharge; but rather, whether Bell actually did these things which the board has found that Marcus believed Bell did.
Having found that the board did not make proper findings of fact, this brings us to the second question of whether there is any substantial evidence in view of the entire record as submitted which would have sustained the decision of the board upholding Bell's discharge, if the board had made proper findings of fact. Sub. (d) of sec. 227.20 (1), Stats., provides that the trial court may reverse the decision of an administrative agency, such as the board, in the event its conclusions or decisions are "unsupported by substantial evidence in view of the entire record as submitted." We construe sec. 227.20, as applied to the fact situation in this case, to mean that the trial court must reverse the board's decision sustaining Bell's discharge if there is no substantial evidence, considering the entire record as a whole, which would establish that the discharge was made for just cause.
In the case of Gateway City Transfer Co. v. Public Service Comm. 253 Wis. 397, 405, 34 N.W.2d 238, this court stated in its opinion:
"The term `substantial evidence' has been employed in a considerable number of states, defining the powers of administrative boards and agencies. In Edison Co. v. National L. R. Board (1938), 305 U.S. 197, 229, 59 Sup. Ct. 206, 83 L.Ed. 126, the court dealt with this subject authoritatively. The court said:
"`The companies contend that the court of appeals misconceived its power to review the findings and, instead of searching the record to see if they were sustained by "substantial" evidence, merely considered whether the record was "wholly barren of evidence" to support them. We agree that the statute, in providing that "the findings of the board as to the facts, if supported by evidence, shall be conclusive," means supported by substantial evidence. Washington, v. M. Coach Co. v. National Labor Relations Board, 301 U.S. 142, 147. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
In the Gateway City Transfer Co. Case this court also stated (p. 406) that "the term `substantial evidence' does not include the idea of weight of evidence."
In the case of Ray-O-Vac Co. v. Wisconsin E. R. Board, 249 Wis. 112, 119, 23 N.W.2d 489, this court stated:
". . . that on a review of the board's findings, the court has no jurisdiction to determine the factual issues anew if there is some evidence before the board reasonably tending to support a finding, and `the court may not weigh the evidence to ascertain whether it preponderates in favor of the finding' ( Wisconsin Labor R. Board v. Fred Rueping L. Co. 228 Wis. 473, 494, 279 N.W. 673);or substitute its judgment for that of the board even though the court might have decided the question differently had it been before the court de novo."
Upon the hearing before the board in this case, two hundred sixty-three pages of testimony were taken, and seventy-five exhibits were submitted. After a careful reading of the testimony and an examination of these exhibits, we are unable to reach the conclusion of the learned trial court that there is no substantial evidence which might sustain the decision of the board if it had made proper findings of fact, and therefore the record must be returned to the board so that it may make proper findings of fact and a new decision based upon such new findings.
By the Court. — The judgment of the circuit court is reversed, with directions to return the matter to the Personnel Board for further proceedings in accordance with this opinion.