SCOW: SUPREME COURT AFFIRMS OFFICER’S FIRING FOR RACIST, DEROGATORY SOCIAL MEDIA POSTS

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. 

The case: Erik A. Andrade v. City of Milwaukee Board of Fire and Police Commissioners
 
Majority: Justice Brian Hagedorn, pictured left, (25 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz
 
Dissent: Chief Justice Annette Ziegler (26 pages), joined by Justice Rebecca Bradley 

The Upshot
The law does not support Andrade's claim. For public employees terminable only for cause, Loudermill generally entitles a terminated employee to notice of the charges, an explanation of the evidence supporting them, and some pretermination opportunity to respond. The scope and nature of the pre-termination procedures can vary depending on the nature of the post-termination proceedings and the interests that are implicated. The Fourteenth Amendment's due process guarantees in this context are not rigid and formal; they are flexible, giving employers wide latitude on the process and nature of the notice due when terminating employees.

Here, the Department notified Andrade of his conduct (the Facebook posts) and what policies this conduct violated. The Department provided Andrade an opportunity to respond to the allegations before the Chief imposed punishment. The Chief's decision to terminate was confirmed after a full administrative hearing before the Board, as well as judicial review of the Board's decision. We conclude the Due Process Clause does not require a more exacting and rigid pre-termination process than what Andrade received.

Background
On January 26, 2018, Milwaukee police officers arrested Milwaukee Bucks player Sterling Brown, using force and shocking him with a Taser. Officer Erik Andrade transported Brown to the police station after his arrest. Later that day, Andrade posted about the encounter on his personal Facebook page. Over the following months, Andrade posted a number of other "inappropriate, disrespectful and defamatory comments" — as the Chief would later describe them — on Facebook.

Sometime later, a member of the City of Milwaukee Common Council shared Andrade's posts with the Department. The Department's Internal Affairs Division opened an investigation in May. Things escalated on June 19 when Sterling Brown sued the City, Chief Morales, and the police officers present at the scene of his arrest, including Andrade. Brown's complaint cited many of Andrade's offensive posts as an admission that Andrade and other officers could engage in "unlawful attacks and arrests of African Americans without justification" or a "fear of real discipline." That same day, the Milwaukee Journal Sentinel published an article about the lawsuit featuring Andrade's posts.

The day after Brown filed the lawsuit, an officer from Internal Affairs called Andrade to inform him that they were investigating allegations he posted inappropriate content on social media. Internal affairs also sent Andrade a written notice, which he signed, that summarized several of the offending posts and referenced two Department policies (called "Core Values") that his conduct implicated. The notification further warned, "Disciplinary action may result," and set the date Andrade was "required to provide verbal responses and/or 'Memorandum' Reports(s)."

On August 23, 2018, the Department officially charged Andrade with violating the same Core Values and Guiding Principles he was put on notice of prior to and during his interview….Both violations were a result of Andrade's Facebook posts that contained "inappropriate, disrespectful and defamatory comments to various memes and videos."

This put the ball in the court of Chief of Police Alfonso Morales. Chief Morales had to determine whether to find Andrade guilty of the charges and what discipline to impose. The Chief had Internal Affairs reach out to the Milwaukee County District Attorney's Office and asked whether Andrade's posts would affect his credibility as a witness. They said yes. The comments diminished his credibility so severely that the office would never call him to testify. Even more, Kent Lovern, the second in command at the DA's Office, stated that the posts would fall into the category of Brady material. This means that if Andrade served as a witness in a criminal proceeding, the District Attorney's Office would be required to disclose evidence of Andrade's bias and untrustworthiness to defense counsel as impeachment evidence.

September 12, 2018, almost three weeks after the Department issued formal charges, Chief Morales issued an order that found Andrade guilty of the charges and imposed discipline. The Chief suspended Andrade for 30 days without pay for "[p]osting content to a social networking site that was disruptive to the mission of the department." And for the charge of "Failure to inspire and sustain the confidence of our community," the Chief discharged him from the Department. The order did not explain the reasoning for the chosen level of discipline.

The Chief's decision, however, is not the final word. Wisconsin law requires Milwaukee to establish a Board of Fire and Police Commissioners. After the chief discharges or suspends an officer for more than five days, he must file his written notice of discharge with the Board along with a complaint "setting forth the reasons for the discharge or suspension." The discharged officer then may choose to appeal the chief's decision to the Board. In that case, the Board holds a trial where the discharged officer "shall have full opportunity to be heard in defense and shall be entitled to secure the attendance of all witnesses necessary for the defense at the expense of the city."

Accordingly, Chief Morales filed a complaint with the Board, listing the two violations and the punishment for each. The complaint stated that Andrade's Facebook posts were the basis for both violations. Andrade appealed the Chief's decision to the Board, and in December 2018, a hearing examiner presided over a two-day trial before a panel of three commissioners.

After each side rested, the panel examined the five standards and concluded that the evidence supported both charges. The panel then moved to the second phase during which it heard evidence and arguments regarding the final two standards, including what discipline to impose. In the end, the panel determined that both the suspension and the discharge punishments were appropriate. It issued a written decision memorializing and explaining its determination on January 4, 2019.

Andrade then appealed the panel’s determination in Milwaukee Circuit Court. The Honorable Jeffrey A. Conen of the Milwaukee County Circuit Court presided and upheld the panel’s decision.

Andrade appealed the court's certiorari decision to the court of appeals. Relevant here, he argued that the Board did not have just cause to sustain the second charge (for which he was terminated) and that——contrary to the notice mandates of due process he was unaware prior to the hearing that his inability to testify was an issue. The Court disagreed. After reviewing the record, the court found substantial evidence to support the panel's just cause decision on the merits.

In 2021 WJI Covered Andrade’s appeal, that post can be found here.

The Guts
The question in this case is whether the Milwaukee Police Department complied with the Fourteenth Amendment's Due Process Clause and Wis. Stat. § 62.50(13) when it terminated Andrade. Procedurally, this question comes to us via certiorari, and in this context, we limit our review to two questions: whether the Board proceeded on a correct theory of law and whether it kept within its jurisdiction. Andrade at times argues both, but he does not develop a separate argument as to why the Board exceeded its jurisdiction. Given that we have said proceeding "on a correct theory of law includes complying with the requirements of due process," we will analyze Andrade's claim on this basis and will not separately examine whether the Board exceeded its jurisdiction.

We begin with the constitutional challenge. Andrade argues that the Board proceeded on an incorrect theory of law because Chief Morales violated his due process rights when he terminated Andrade without mentioning his inability to testify as a basis for the punishment.

***
Andrade's basic contention is that he was not given an explanation of the evidence supporting his discharge prior to his termination. Andrade focuses on the fact that, even though Chief Morales would have disciplined him no matter what, his discipline would not have risen to the level of discharge absent the fact that Andrade could no longer testify [in court proceedings]. In his eyes, then, his inability to testify constituted evidence against him that the Chief should have disclosed prior to terminating him. Andrade argues he needed this information so that he could make any plausible arguments that might prevent the discipline.

Not so. Andrade confuses the factors leading to the Chief's choice of discipline with the evidence of the violations in the first place. Chief Morales did not charge Andrade for his inability to testify. As the Chief explained, his conclusions about the policy violations differed from his decision about how to discipline Andrade. Loudermill does not require an explanation of the reasons discharge was the chosen punishment as opposed to suspension or something lesser. Rather, Loudermill just requires an explanation of the basic reasons the employee is being disciplined. Andrade proposes far more rigid, formal, and exhaustive notice requirements than Loudermill commands. Nothing in Loudermill requires an exhaustive pre-termination explanation of every fact or factor that might be considered in the disciplinary process. An employer need not detail all the consequences of an employee's misconduct, nor must it show in detail how those consequences might inform the employer's choice of discipline. The employer must simply notify the employee of the charges and evidence and give them an opportunity to respond. That's exactly what happened here.

Loudermill, is a US Supreme Court decision that holds a public employee subject to termination only for cause, like Andrade, has a property interest in continued employment, which implicates due process protections.

From the beginning, Andrade was told by Internal Affairs that they were investigating him for violating two identified Department policies because he posted inappropriate, disrespectful, and defamatory comments on Facebook. Investigators showed him and asked him about every concerning post. He knew that violations such as this could lead to discipline up to and including suspension and discharge. And following the investigation, the Department charged Andrade with violating the previously identified policies due to his Facebook posts. He was therefore on notice of the charges (the rule violations) and the evidence supporting them (the Facebook posts). It should not have surprised Andrade, then, when the Chief discharged him for one of the violations.

Even more, Loudermill instructs that the "nature" of the post-termination review informs the "formality," "procedural requisites," and "scope" of the pre-termination process. Here, there can be no question Andrade received thorough post-termination review. After discharging Andrade, the Chief filed a formal complaint with the Board that explained the charges and evidence. The Board then held a full blown trial, giving Andrade the opportunity to call his own witnesses and cross-examine the Department's. Afterward, the Board considered seven comprehensive standards in making its "just cause" determination. The end result was a detailed, ten page written decision containing findings of fact and conclusions of law, thereby providing a robust substantive, procedural, and evidentiary check on the discipline Andrade received. After that, Andrade appealed to the circuit court, which reviewed the Board's just cause determination. These extensive post-termination procedures eliminate any doubt that Andrade had all the notice and opportunity to be heard that the Constitution requires.

***
Andrade also briefly argues that Chief Morales failed to comply with Wis. Stat. § 62.50(13). This provision requires the police chief to notify the Board of a discharge or suspension greater than five days, and to include "a complaint setting forth the reasons for the discharge or suspension." § 62.50(13). Andrade contends the complaint did not do so because it failed to mention the inability to testify.
***
Here, the complaint Chief Morales filed with the Board was simple, straightforward, and consistent with the statute. The Chief listed the Department policy Andrade violated for charge one, the punishment of a 30-day suspension, along with the evidence supporting the violation——the Facebook posts. The complaint also listed the Department policy Andrade violated for charge two, the punishment of discharge, along with the evidence supporting the violation——the Facebook posts. As we explain above, the inability to testify was not the conduct that violated the policies, but rather a consequence of Andrade's conduct that informed the level of punishment imposed. Therefore, the complaint submitted by Chief Morales to the Board complied with § 62.50(13).

The Ziegler Dissent 
​
Because of his behavior on social media, Officer Erik Andrade ("Andrade") may very well have ultimately received the same discipline. I do not condone his behavior. But as an accused, Andrade is owed certain due process rights, rights which are constitutionally and statutorily protected. Andrade was denied these due process rights.

***
Though the Board upheld the Chief's decision to terminate Andrade over his perceived inability to testify, Andrade was not provided with that information as the basis for discharge until post-termination. Through this failure, Andrade's constitutional right to due process, as guaranteed under Loudermill, was violated. Through this failure, Andrade was likewise denied the statutory procedural rights he was due as required by Wis. Stat. § 62.50(13), which required the Chief to provide Andrade with the reasons for his discharge and to do so at the same time he imposed the correlating discipline. Andrade was provided alternative reasons for discharge throughout the pre-termination process——for violation of two provisions of the Department's Code of Conduct——before he was finally provided the actual reason necessitating his discharge—— his perceived inability to testify——in the post-termination proceedings.

The majority is correct that "due process guarantees in this context are not rigid and formal; they are flexible." However, the process due cannot be so flexible as to have no solid parameters or shape at all. At its foundation, procedural due process requires that the accused be provided "notice and an opportunity to respond" to the charges presented, as well as "an explanation of the employer's evidence."

***

Yet, Andrade was not provided these basic requirements of due process pre-termination. The parties do not dispute the fact that Andrade had a legitimate property interest in retaining his job, as the United States Supreme Court has recognized the importance of protecting this property interest:

[T]he significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood. While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job.

***

It is not reading Loudermill "too woodenly" as the majority asserts, to recognize that due process demands Andrade be on notice and provided with the actual reason for his termination prior to depriving him of his property interest in continued employment. Nor is it demanding more than due process requires to expect that Andrade be provided the evidence substantiating the actual reason for his termination, so as to enable him to defend himself and his interests. Andrade's perceived inability to testify was not merely a consequence of Andrade's misconduct, as the majority states. Andrade's perceived inability to testify was the "sole" reason for his termination. The Chief testified as much during Andrade's post-termination hearing in front of the Board. Accordingly, this "sole" reason for termination cannot be both a consequence of the decision to terminate and a part of the decision to terminate.

Due process is "flexible" but it is not flexible on "[t]he essential requirements" of "notice and an opportunity to respond" and "the opportunity to present reasons, either in person or in writing, why [the] proposed action should not be taken . . . ." And, if the due process right "to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented," so it must be provided pre-deprivation of Andrade's property interest.

Andrade was provided notice and the opportunity to respond to the charges of two specific violations of two provisions of the Department's Code of Conduct. Had those specified charges been the reason that Andrade was terminated, due process could have been satisfied. But Andrade was terminated for a third, unspecified and unnoticed reason. Andrade's fundamental due process rights were impermissibly violated.

​Andrade did not receive due process when he was terminated from the Department for his perceived inability to testify. Andrade was deprived of his property interest without having ever been placed on notice of the actual charge, nor provided the opportunity to respond. This deficient process fails to satisfy either the "flexible" standard relied on in Loudermill or the more demanding standard required by Wis. Stat. § 62.50(13). It is not necessary to consider the content of the offensive Facebook postings. They are distasteful and unbecoming of police officers. But due process, even when flexible, demands certain "essential requirements" be met, namely, that the accused be provided "notice and an opportunity to respond." These "essential requirements" of due process were not provided here. Due process under the statute required the Chief to provide Andrade with a complaint "setting forth the reasons" for Andrade's termination at the time that discipline was imposed. The Chief testified that the sole reason for Andrade's termination was his perceived inability to testify. Yet, that reason for termination was not provided to Andrade until post-termination.