COURT OF APPEALS

DECISION

DATED AND FILED

January 31, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1770 Cir. Ct. No. 2018CV10493

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

MILWAUKEE POLICE ASSOCIATION AND BRIAN J. YOUNG,

PLAINTIFFS-APPELLANTS,

V.

BOARD OF FIRE AND POLICE COMMISSIONERS FOR THE CITY OF 

MILWAUKEE AND CITY OF MILWAUKEE,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County: 

JEFFREY A. CONEN, Judge. Affirmed. 

Before Brash, C.J., Dugan and White, JJ.

¶1 WHITE, J. The Milwaukee Police Association and Brian J. Young 

(collectively MPA) appeal the circuit court order affirming the decision by the 

Board of Fire and Police Commissioners for the City of Milwaukee (the Board) to 
No. 2020AP1770

2

deny Young a promotion to detective in the Milwaukee Police Department (MPD). 

We conclude that the Board acted within its authority over the appointment and 

promotion process for MPD members and exercised that authority when it denied 

Young the promotion despite his position on the eligible list. Accordingly, we 

affirm.

BACKGROUND

¶2 The following facts of this case are undisputed. Young is a police 

officer with MPD. In December 2015, Young passed a promotional exam and was 

placed on a list of officers eligible for promotion to detective. The list contained 

fifty-eight officers, and Young was placed thirty-seventh on the list. The list was 

adopted and approved by the Board in December 2015. Young then attended 

detective training school, which he completed in March 2017. In December 2017, 

then MPD Chief, Edward Flynn, imposed a fifteen day unpaid suspension on 

Young for a disciplinary issue; the suspension was upheld by the Board.1

¶3 On February 21, 2018, MPD Chief, Alfonso Morales (hereinafter, 

the Chief), submitted nominations “on a waiver basis and subject to [the Board’s] 

approval” for two officers to the rank of detective; one of the officers was Young. 

The Board’s minutes from the March 1, 2018 meeting noted that the Chief 

subsequently filed a written objection, dated February 28, 2018, to Young’s 

promotion based on Young’s disciplinary record.

 

1

 Young appealed the Board’s decision to uphold the suspension. This court affirmed the 

Board’s decision. See Young v. City of Milwaukee Bd. Of Fire & Police Comm’rs., 

No. 2019AP1095, unpublished slip op. (WI App July 7, 2020). 
No. 2020AP1770

3

¶4 The minutes for the regular and executive Board meetings on March 

15, 2018, both showed that the Chief’s objection to Young’s promotion was listed 

and struck through on the agenda. On March 29, 2018, the Chief submitted a 

letter to the Board again nominating Young to the rank of detective. The minutes 

of the Board meeting on April 5, 2018, reflect that the matter of Young’s 

promotion was considered in executive session. The Board unanimously voted to 

deny Young’s promotion. The minutes from the Board meeting on May 17, 2018, 

reflect that the issue of the Chief’s objection to Young’s motion, by letter on 

February 28, 2018, was considered under unfinished business; however, the

minutes indicate that “the matter was addressed in closed session, and no further 

action was necessary on this agenda item.”

¶5 In December 2018, MPA sought review of the Board’s decision to 

deny Young’s promotion and filed the underlying action against the Board and the 

City of Milwaukee.2 MPA’s complaint requested both declaratory judgment and 

certiorari review of the Board’s decision.

3

 The parties ultimately filed crossmotions for summary judgment, and the court concluded that MPA did not meet 

 

2

 For ease of reading, we will continue to refer to the defendant parties as the Board. 

3

 The circuit court construed MPA’s action as a statutory appeal of the Board’s decision 

under WIS. STAT. § 62.50(21) (2019-20). As such, the court reviewed the action under the 

statutory certiorari standard, putting the burden on MPA to show that the Board did not keep 

within its jurisdiction; that the Board did not proceed on a correct theory of law; and that the 

evidence in the record did not reasonably support the decision of the Board. See Grycowski v. 

Milwaukee Emps.’ Ret. Sys./Annuity & Pension Bd., 2021 WI App 7, ¶30, 395 Wis. 2d 722, 

953 N.W.2d 904. 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

MPA also included a wage claim in its complaint before the circuit court, but the wage 

claim is not at issue in this appeal. Therefore, we do not address it further.
No. 2020AP1770

4

its burden and upheld the Board decision denying Young’s promotion. MPA 

appeals.4

DISCUSSION

¶6 On appeal, MPA argues that Young was entitled to the promotion to 

the rank of detective based on the Rules of the Board of the Fire and Police 

Commissioners for the City of Milwaukee (the Rules) and the Board had no 

discretion to deny the promotion. The Board argues it acted within its authority 

and discretion to deny Young’s promotion. To resolve this case, we consider first 

the proper standard of review, which is raised under both statutory certiorari 

review under WIS. STAT. § 62.50 and declaratory judgment under WIS. STAT.

§ 806.04. Then we interpret and analyze the relevant statutes and Rules. Finally, 

we apply the facts of Young’s action to the legal standard. 

¶7 Ultimately, we conclude that under either standard, the Board has 

the exclusive authority over appointments for police and fire departments under 

the statutes and Rules, which inherently means it has the power to deny a 

promotion to any person, even one on the eligible list. The Board is tasked with 

adopting Rules “designed to secure the best service for the public in each 

department.” Sec. 62.50(3)(b). We conclude it has acted within its authority in 

this matter and we affirm its decision.

 

4

 During the pendency of this appeal, this court requested additional briefing from the 

parties on the issue of the Board’s authority under the application procedures in Rule VII or any 

other part of the Rules. Both parties responded by letter brief.
No. 2020AP1770

5

Standard of Review

¶8 The Board argues first that our review is limited to the certiorari 

action because “[d]eclaratory judgment provides prospective rather than remedial 

relief.” PRN Assocs. LLC v. DOA, 2009 WI 53, ¶52, 317 Wis. 2d 656, 766 

N.W.2d 559. The Board contends that Young raises no issues that were not 

present at the time of the Board decision; therefore, his recourse is certiorari. 

MPA contends that our review is not limited to certiorari. It contends that while 

the prospective use of declaratory judgment may be “preferred ... declaratory 

relief is appropriate wherever it will serve a useful purpose.” Lister v. Board of 

Regents of Univ. Wis. Sys., 72 Wis. 2d 282, 307, 240 N.W.2d 610 (1976). 

Further, MPA asserts that a declaration of the proper interpretation of the 

promotion and appointment process would be helpful for all MPA members who 

may end up in the same situation as Young. 

¶9 MPA contends that the circuit court erred when it decided the action 

was governed by the certiorari review under WIS. STAT. § 62.50(21). MPA asserts 

that review process only applies to appeals from discipline—which could not 

include claims arising from a complaint that the Board failed to comply with its 

own rules governing the promotion and appointment process. We conclude that 

the certiorari process was an appropriate method to address Young’s complaint, 

but that declaratory judgment was not inappropriate. We accept MPA’s request to 

declare the proper interpretation of the Rules, as well as address the certiorari 

standard.

¶10 “On certiorari, we review the decision of the Board, not the decision 

of the circuit court.” Schoen v. Board of Fire & Police Comm’rs of City of 

Milwaukee, 2015 WI App 95, ¶14, 366 Wis. 2d 279, 873 N.W.2d 232. Further, 
No. 2020AP1770

6

our review of a statutory certiorari appeal “is limited to whether the Board 

‘(1) acted within its jurisdiction; (2) proceeded on a correct theory of law; (3) was 

arbitrary, oppressive, or unreasonable; or (4) might have reasonably made the 

order or finding that it made based on the evidence.’” Sliwinski v. Board of Fire 

& Police Comm’rs of City of Milwaukee, 2006 WI App 27, ¶12, 289 Wis. 2d 422, 

711 N.W.2d 271 (citation omitted). This court independently reviews questions of 

law and the extent of the Board’s authority under the statutory scheme. Schoen, 

366 Wis. 2d 279, ¶14.

¶11 A declaratory judgment is governed by Wisconsin’s Uniform 

Declaratory Judgments Act, WIS. STAT. § 806.04, which allows a court to “declare 

rights, status, and other legal relations whether or not further relief is or could be 

claimed.” “A court must be presented with a justiciable controversy before it may 

exercise its jurisdiction over a claim for declaratory judgment.” Olson v. Town of 

Cottage Grove, 2008 WI 51, ¶28, 309 Wis. 2d 365, 749 N.W.2d 211.5 

The Board’s authority

¶12 To determine whether the Board acted within its jurisdiction and 

proceeded on a correct theory of law, we must resolve the question of the Board’s 

authority over the appointment and promotion process. Therefore, we must 

interpret WIS. STAT. § 62.50 and the administrative rules of the Board of the Fire 

 

5

 There are four factors that determine whether a conflict is justiciable. Olson v. Town 

of Cottage Grove, 2008 WI 51, ¶29, 309 Wis. 2d 365, 749 N.W.2d 211. First, it must be a 

“controversy in which a claim of right is asserted against one who has an interest in contesting it.” 

Id. Second, it must be a controversy “between persons whose interests are adverse.” Id. Third, 

“[t]he party seeking declaratory relief must have a legal interest in the controversy—that is to say, 

a legally protectible interest.” Id. Fourth, [t]he issue involved in the controversy must be ripe for 

judicial determination.” Id. We note that the Board does not argue that MPA has not brought a 

justiciable controversy. 
No. 2020AP1770

7

and Police Commissioners City of Milwaukee (the Rules). “[S]tatutory 

interpretation ‘begins with the language of the statute. If the meaning of the 

statute is plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct. 

for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation 

omitted). The nature and scope of an administrative agency’s authority is a matter 

of statutory interpretation or construction. See GTE N. Inc. v. Public Serv. 

Comm’n of Wisconsin, 176 Wis. 2d 559, 564, 500 N.W.2d 284 (1993). This 

court independently reviews “the application of a statute and an administrative 

rule to undisputed facts[.]” American Fam. Mut. Ins. Co. v. Haas, 2017 WI App 

83, ¶4, 379 Wis. 2d 336, 904 N.W.2d 830. 

¶13 Pursuant to WIS. STAT. § 62.50(2), “[n]o person may be appointed to 

any position either on the police force or in the fire department of the city, except 

with the approval of the [B]oard.” The Board is provided the authority to 

promulgate rules “to govern the selection and appointment of persons employed in 

the police and fire departments of the city” by § 62.50(3)(b). The appointment and 

promotion process is covered by Rule XI. Within that Rule, section one states that 

appointments to sworn, non-exempt positions “will be made from eligible lists 

established by the Board.”6 Rule XI § 1. Section three states that “[w]henever 

there is a vacancy in a sworn position in either department which is to be filled 

from an eligible list, the Board shall make the appointment in numerical order 

from the appropriate list.” Rule XI § 3. Section four states that “[t]he Chief may 

object to a candidate on an eligible list for a sworn position by notifying the Board 

 

6

 There is no dispute that this case involves a sworn, non-exempt position. See

Rule V § 3. Furthermore, there are additional rules that govern other types of positions, such as 

non-sworn positions, that are not at issue here. See, e.g., Rule XI § 3(b) (providing the process 

for appointments of non-sworn positions).
No. 2020AP1770

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in writing of the reasons for such objection. The Board shall then interview the 

candidate and determine whether the name of the candidate will remain on the 

eligible list.” Rule XI § 4. Section five states that “[a]ppointments or promotions 

to positions in either department require Board approval and are not effective until 

approved by a majority of the Board at a meeting of the Board.” Rule XI § 5. 

¶14 Under the plain meaning of both the statute and the Rules, the 

“approval” of the Board is required for a person to be appointed to a position. See

WIS. STAT. § 62.50(2) (providing that appointments occur “with the approval of 

the [B]oard”); Rule XI § 5 (providing that appointments “require Board approval” 

and must be “approved by a majority of the Board at a meeting of the Board” in 

order to be effective). The definition of the word “approval” reinforces that the 

Board has to make a choice in order to comply with the statutory mandate. 

Approval means “the act of approving” or “certification as to acceptability.” 

Approval, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993). In its 

verb form, approve means “to judge and find commendable or acceptable” or “to 

vote into effect.” Approve, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 

(1993). At its essence, the logical interpretation of the statute and Rule is that the 

Board must have discretion in deciding whether a candidate is or is not acceptable, 

that the authority of approval is also the authority not to approve. Therefore, we 

conclude and declare that under the law, the Board had authority to deny an 

appointment at this stage.

Application of the law to Young’s promotion

¶15 We now turn to MPA’s arguments. MPA asserts that the Board had 

no discretion to deny Young the promotion to detective because he complied with 

the Rules: he satisfied the qualifications to compete for a position within the 
No. 2020AP1770

9

department, he participated in the required examinations, he was successfully 

named to the eligible list, and the Board did not have a pending objection from the 

Chief at the time of appointment. MPA contends that because the Board failed to 

address Young’s promotion while the Chief’s objection was pending and failed to 

follow the interview procedure for that objection, the Board had a statutory 

mandate to promote Young when his position on the eligibility list arose. 

¶16 MPA’s argument fails for two reasons. First, the Board has the 

exclusive authority over appointments, not the Chief. Therefore, the Chief’s 

objection is not dispositive to an appointment. This court has previously 

recognized that the “exclusive authority over the hiring, removal and disciplining 

of police and fire department personnel is vested in the Board of Fire and Police 

Commissioners (the Board) by sec. 62.50, Stats.” State ex rel. Becker v. Common 

Council of City of Milwaukee, 101 Wis. 2d 680, 688, 305 N.W.2d 178 (Ct. App. 

1981). “The Board is also vested with exclusive control over appointments[,] ... 

suspension and removal.” Id. (footnotes removed). Rule XI § 4 provides that a 

department chief may object to an appointment, but it does not give the 

department chief the power to remove that person—instead the Rules requires the 

Board to interview that person and decide whether the person should remain on 
No. 2020AP1770

10

the eligible list. The department chief’s authority is limited by the Board, not the 

other way around.7 

¶17 Second, the Board is tasked with “secur[ing] the best service for the 

public in each department.” WIS. STAT. § 62.50(3)(b). A recurring principle in 

the Rules is that the Board only appoints (or promotes) persons it considers to be 

qualified. The Rules devote an entire chapter to qualifications of candidates, 

including that “every applicant ... shall be of good moral character[.]” Rule VI

§ 2. In the Application Procedures chapter, the Rule sets forth that “[t]he Board 

shall refuse to accept an application from, shall exclude from the selection process, 

or shall remove from the eligible list: ... (a) any person who does not meet the 

qualifications for the position, either at time of application or appointment[.]” 

Rule VII § 5(a). This rule requires the Board to “remove from the eligible list” 

any unqualified candidates at the time of “appointment.” Therefore, we see that 

the Board’s authority to approve appointments is reiterated throughout the Rules. 

We may interpret the Board’s action to use its authority from Rule VII to exclude 

 

7

 That a department chief’s authority is subordinate to the Board is illustrated in Rule II 

on the scope of the authority of the Board, which provides that “[t]he Board may prescribe rules 

for the governance of each department. A Chief may not suspend any rule prescribed by the 

Board.” Rule II § 3(b). “The Chief of each department may propose rules for the governance of 

the department. Any rule proposed by a Chief shall be subject to review and approval by the 

Board. Any rule proposed by a Chief shall not take effect until the rule is reviewed and approved 

by the Board.” Rule II § 3(c). “The Chief of each department shall provide the Board with 

current standard operating procedures or other directives. Nothing in a standard operating 

procedure or other directive shall be used to circumvent a Board or department rule.” Rule II § 4. 

It would be illogical for a department chief to have more authority than the Board in this singular 

function of the appointment process. 
No. 2020AP1770

11

Young at the time of his proposed appointment for his disciplinary records that 

occurred after he was placed on the eligible list.8 

¶18 MPA contends that the Board acted unlawfully because it could have 

adopted rules to govern a separate process for it to review and approve or deny 

appointments, but it did not. This argument fails as well. The Board did not need 

to create a special procedure in the Rules to allow it to deny an appointment 

because the power to deny an appointment is part of the power to grant an 

appointment. Under the Rules, the Board must take two actions before an 

appointment is effective. First, the Board must approve the applicant; and second, 

a majority of the Board must agree to the approval at a meeting. Rule XI § 5. It 

would add surplusage into the Rules and render the Board’s authority a nullity if 

the Board could not exercise a meaningful choice in this stage of the process. See

State ex rel. Kalal, 271 Wis. 2d 633, ¶46. 

¶19 MPA’s arguments misconstrue the appointment process in the Rules 

and, if applied, would diminish the Board’s authority. When the Board acts to 

approve an appointment, it must comply with the procedures it adopted within its 

own rules; nevertheless, that procedure does not compel the Board to rubber stamp 

the appointment of any applicant who makes it to the eligible list. Inherent in the 

term “eligible list” is that a person on that list is eligible for an appointment, not 

guaranteed. To be eligible is to be “fitted or qualified to be chosen or used” or 

“worthy to be chosen or selected.” Eligible, WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY (1993). To be found “eligible” does not make the 

 

8

 As the Dissent points out, the Board does not ask this court to rely upon Rule VII to 

decide this case. See Dissent ¶49. However, we conclude that Rule VII provides another 

example of the Board’s ultimate authority over which persons are appointed to positions in MPD. 
No. 2020AP1770

12

promotion or appointment automatic. The plain meaning of the language of the 

Rules does not indicate that the Board relinquishes its authority to decide to grant 

or deny approval for appointments. 

¶20 We conclude that the Rules, as written and adopted, are sufficiently 

clear that the majority of the Board must approve a candidate in order for the 

candidate to advance. Our interpretation of the Rules relies on their plain meaning

and further, it harmonizes with the Board providing meaningful oversight of the 

police and fire departments. The Board, through its Rules, has promulgated a 

procedure for the appointment of an eligible person; however, the final decision on 

whether an appointment occurs rests with the Board at its discretion to approve or 

deny. 

¶21 Having determined the question of law with regard to the Board’s 

authority, we turn to the remaining certiorari appeal standard. The Board argues 

that MPA has not overcome the presumption of correctness afforded to an agency 

decision. See State ex rel. Ruthenberg v. Annuity & Pension Bd. of City of 

Milwaukee, 89 Wis. 2d 463, 473, 278 N.W.2d 835 (1979) (“In a review of a 

decision on a writ of certiorari there is a presumption that the Board acted 

according to law and the official decision is correct and the weight and credibility 

of the evidence cannot be assessed.”). 

¶22 The Board argues that MPA’s arguments fail to show that the Board 

violated its duties under the four factors considered when reviewing a certiorari 

petition. First, the Board acted within its jurisdiction because by the plain 

meaning of the WIS. STAT. § 62.50, the Board has exclusive authority over 

appointment of MPD members. We agree. Second, the Board asserts the Board 

acted according to the law because although the Rules created a process for 
No. 2020AP1770

13

eligibility for appointment, the Rules did not require a person on the eligible list to 

be promoted. We agree with the Board’s position that it acted within its 

jurisdiction and proceeded under a correct standard of law because it had authority 

to approve or deny promotions. See Schoen, 366 Wis. 2d 279, ¶14.

¶23 Turning to the third factor, the Board contends its decision was not 

“arbitrary, oppressive, or unreasonable” because there was no evidence in the 

record that the Board’s decision was an unfair expansion on the previously 

imposed discipline. See Sliwinski, 289 Wis. 2d 422, ¶12. MPA argues that the 

Board acted arbitrarily and capriciously when it imposed its will and did not 

comply with its own rules. MPA contends that the process of appointment does 

not allow for the Board to reject an appointment unless it is addressing the Chief’s 

objection. MPA also argues that consideration of the prior suspension unfairly 

applies more punishment on a closed matter. 

¶24 We note here that MPA’s primary emphasis in pursuing the 

declaratory judgment on appeal is the expanded record that was developed in 

discovery before the circuit court. It asserts that the Board did not object to this 

discovery at that time and may not restrict the record on appeal. At issue is 

whether to consider MPA’s depositions of Board staff and several of the Board 

commissioners. The record reflects that depositions from two of the 

commissioners who voted against Young’s promotion showed that they both

“mistakenly believed that the Board’s rules prevented an officer from being 

promoted if the officer had been disciplined in the past.” However, a deposition 

from a third commissioner stated that he took Young’s disciplinary record into 

consideration as part of the total review of his possible promotion. Further, the 

deposition of the executive director of the Board stated that the commissioners 

generally considered the entire record of a person eligible for a promotion, but 
No. 2020AP1770

14

confirmed there was no rule precluding a disciplined officer from attaining a 

promotion. MPA argues that by “using the mere existence of the prior discipline 

to prevent Young’s promotion, the Board necessarily expanded the scope and

application of the discipline imposed beyond the terms of the written decision” 

imposing the suspension in 2017. 

¶25 Although the Board contends that matters outside of the certiorari 

record may not be considered, it argues that if this court considers the additional 

factual record, the denial of a promotion is not a form of discipline.9 Therefore, 

the Board contends that it is not unreasonable if the commissioners considered 

Young’s prior suspension. The Board asserts it would create an absurd reading of 

the statutes and Rules to bar the Board from considering the entirety of the record 

of a person eligible for appointment or promotion. To the extent that we interpret 

MPA to posit that the Board could not consider an applicant or potential 

appointee’s entire record, we conclude MPA’s reading of the Rules is 

unreasonable. MPA has not shown that the Board’s consideration of Young’s 

disciplinary record was arbitrary or capricious. We conclude that the Board acted 

within its discretion, not in an arbitrary and capricious way, but arising from a 

reasonable, rational basis. See State ex rel. Ruthenberg, 89 Wis. 2d at 473. 

¶26 Finally, the fourth factor is that the Board “might have reasonably 

made the order ... based on the evidence[.]” See Sliwinski, 289 Wis. 2d 422, ¶12

 

9

 The Board’s argument is premised on the language in WIS. STAT. § 62.50(17)(b) which 

holds that an officer may appeal to the Board if the officer is disciplined by being “suspended, 

reduced in rank, suspended and reduced in rank, or discharged[.]” We note that MPA appears to 

have endorsed that the denial of a promotion is not a disciplinary action when it asserted that the 

disciplinary statutory certiorari process under § 62.50(21) does not govern this appeal, because 

the denial of a promotion is not a form of discipline. 
No. 2020AP1770

15

(citation omitted). The Board agues this point is undisputed; nevertheless, we 

address the standard. This fourth factor “inquiry is limited to whether there is 

substantial evidence to support the [agency’s] decision.” Van Ermen v. DHSS, 84 

Wis. 2d 57, 64, 267 N.W.2d 17 (1978).10 “Substantial evidence is evidence that is 

relevant, credible, probative, and of a quantum upon which a reasonable fact 

finder could base a conclusion.” Cornwell Pers. Assocs., Ltd. v. LIRC, 175 Wis. 

2d 537, 544, 499 N.W.2d 705 (Ct. App. 1993). “We may not substitute our 

judgment for that” for that of the administrative board. Von Arx v. Schwarz, 185 

Wis. 2d 645, 656, 517 N.W.2d 540 (Ct. App. 1994). “If substantial evidence 

supports the [Board’s] determination, it must be affirmed even though the 

evidence may support a contrary determination.” Id.

¶27 The evidentiary record is limited in this matter. The minutes from 

the regular session on April 5, 2018, show that Young’s promotion and denial was 

discussed during an executive, closed meeting of the Board. Such employmentrelated decision-making in closed session is allowed by WIS. STAT. § 19.85(1)(c); 

however, the Rules do not permit anyone “to record that meeting through the 

utilization of audiotape, videotape, stenographic reporter or by any other means.” 

Rule III § 1(c). The record reflects, from the commissioner and staff deposition

testimony, that the Board’s decision-making was premised on concerns about 

Young’s disciplinary record. This satisfies the standard for substantial evidence. 

Ultimately, we conclude that MPA has not overcome the presumption of 

correctness afforded to an agency decision. See State ex rel. Ruthenberg, 89 

Wis. 2d at 473.

 

10

 We note that we rely on generalized certiorari review standards for definitions. 
No. 2020AP1770

16

¶28 Although we accept MPA’s request to declare the Board’s authority 

over appointments, we decline to address its “employment double jeopardy” 

argument.11 MPA fails to provide Wisconsin legal authority in support of this 

argument. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 

1992) (“Arguments unsupported by references to legal authority will not be 

considered.”).

CONCLUSION

¶29 For the reasons stated above, we conclude that the Board had the 

authority to deny Young’s promotion. It acted within its jurisdiction and the law, 

its decision was not arbitrary or capricious, and its decision was reasonable based 

upon the record. See Schoen, 366 Wis. 2d 279, ¶14. Further, we declare that 

under the Rules and by statute, the Board maintains power to deny an appointment 

at any stage. See WIS. STAT. § 806.04. Accordingly, we affirm the circuit court 

order upholding the Board’s decision.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

 

11

 MPA concedes that there are no published Wisconsin cases on employment double 

jeopardy. Instead, MPA offers that a treatise discussing this topic has been cited in other contexts 

in Wisconsin appellate court decisions. However, our examination suggests this treatise covers a 

multitude of topics, and MPA failed to quote a relevant excerpt. In Young’s prior case before this 

court, this legal theory was raised and we also rejected the argument for failing to provide 

Wisconsin authority. See Young, No. 2019AP1095, unpublished slip op. ¶36. Further, in this 

case, the Board asserts that the treatise does not support MPA’s position in any case. MPA 

ignores the topic in its reply brief, which we take as a concession about the relevance of the 

treatise. See United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 

N.W.2d 578.
No. 2021AP1770(D)

1

No. 2021AP1770(D)

¶30 DUGAN, J (dissenting). Because I conclude that pursuant to the 

rules adopted by the Board1regarding promotions, the Board was bound to 

promote Young, and I respectfully dissent.

BACKGROUND

¶31 Young was a police officer with the Milwaukee Police Department 

(MPD). In December 2015, pursuant to the rules adopted by the Board for 

promotions, Young took and passed a promotional exam and was placed on a list 

of officers eligible for promotion to Detective. The list contained fifty-eight 

officers, and Young was placed thirty-seventh on the list. The Board approved 

this list according to its rules.2 

¶32 The Chief of Police, Alfonso Morales, recommended Young for 

promotion on February 21, 2018. However, on February 28, 2018, the Chief filed 

an objection to Young’s promotion based on Young’s disciplinary record from 

December 2017.3 

 

1

 Like the Majority, I refer to the Board of Fire and Police Commissioners for the city of 

Milwaukee as the Board.

2

 Rule X § 1(a) on eligible lists states, “After an examination, an eligible list shall be 

prepared containing the names of the candidates in the order of their relative ranking.” Once the 

list is prepared, Rule X § 1(b) provides that “[a]ll eligible lists, consisting of name and ranking of 

each candidate, shall be presented for adoption.” 

3

 Young was disciplined with a fifteen-day suspension in December 2017. 
No. 2021AP1770(D)

2

¶33 At the Board’s meeting on March 1, 2018, Young’s promotion and 

the Chief’s corresponding objection were on the agenda, but never discussed. The 

Board met again on March 15, 2018, and the same agenda items regarding 

Young’s promotion and the Chief’s objection were on the agenda. However, 

Young’s promotion and the Chief’s objection were not discussed at this meeting. 

¶34 The Chief subsequently withdrew his objection and filed a second 

recommendation to promote Young to Detective, dated March 29, 2018. The 

recommendation stated:

This member was put through a timely internal vetting 

process where in the member’s entire record was reviewed, 

including disciplines, open and closed investigations, 

administrative matters (e.g. use of force reports, squad car 

accidents, criminal investigations, citizen complaints), 

fitness, and history with the FPC. I certify that this 

member is in good standing with the Department and 

suitable for promotion consistent with my statutory 

duties.... 

¶35 At a meeting held on April 5, 2018, the Board denied Young’s 

promotion.4 The agenda for the Board’s April meeting contained the Chief’s 

recommendation to promote Young from March 29, 2018—it did not contain any 

reference to the Chief’s objection from February 28, 2018. 

¶36 The Board met again in May 2018. Its agenda listed “Objection to 

Detective Promotion” under the category of unfinished business, and the meeting 

 

4

 The parties’ briefs include reasons why the Board denied Young’s promotion at this 

meeting. As a result of my conclusion today, I need not discuss why the Board denied Young’s 

promotion, and the simple fact that the Board denied Young’s promotion at the April meeting is 

sufficient.
No. 2021AP1770(D)

3

minutes reflect that this agenda item was “addressed in closed session, and no 

further action was necessary.” 

¶37 In December 2018, the MPA5sought review of the Board’s decision 

to deny Young’s promotion and filed this action, which was styled as both one for 

declaratory judgment and certiorari review.6 The parties ultimately filed crossmotions for summary judgment, and the circuit court affirmed the Board’s 

decision to deny Young’s promotion. The MPA appeals.

DISCUSSION

¶38 On appeal, the MPA argues that Young was entitled to the 

promotion to Detective based on the Board’s own rules under which the Board had 

no discretion to deny his promotion. It argues that by denying Young’s promotion 

the Board exceeded its authority and acted arbitrarily and capriciously. 

¶39 In making its argument, the MPA acknowledges that candidates for 

promotion must be approved by the Board, but the MPA argues that, based on the 

Board’s own rules, in the case of a sworn non-exempt position such as Detective, 

pursuant to the rules it adopted, the Board does not have discretion to deny 

Young’s promotion without an objection from the Chief. Rather, the MPA argues 

that, without a pending objection from the Chief, the Board is required by its own 

rules to approve officers for promotion based on the numerical order of the 

officers on the list of eligible officers that was previously approved by the Board. 

 

5

 Like the Majority, I refer to the Milwaukee Police Association and Brian J. Young 

collectively as the MPA.

6

 The MPA also included a wage claim in its complaint, but the wage claim is not at 

issue in this appeal. Therefore, like the Majority, I do not address it further.
No. 2021AP1770(D)

4

Because Young’s application was accepted, he was selected to test for the position

of detective, he had completed all testing requirements, he was placed on the 

detective eligibility list, the list was approved by the Board, and Young was 

numerically next on the list for promotion, the MPA argues that the Board had no 

authority to deny Young’s promotion, given that the Chief had withdrawn his 

objection. As explained below, I agree.7

A. Relevant Statutes and Rules

¶40 I begin by reviewing the relevant statutes to determine whether there 

is any language in the statutes that would limit the Board from creating the rules 

for promotion that exist in this case. Pursuant to WIS. STAT. § 62.50(2) (2019-

20)8, “[n]o person may be appointed to any position either on the police force or in 

the fire department of the city, except with the approval of the [B]oard.” The 

Board is then provided the broad authority to promulgate rules “to govern the 

selection and appointment of persons employed in the police and fire departments 

of the city” by § 62.50(3)(b). Neither the Board nor the Majority cite to any 

authority that limits how the Board may proceed in exercising its authority to 

promulgate those rules. 

 

7

 I agree with the Majority’s discussion of the standard of review for both certiorari 

review and declaratory judgment. However, unlike the Majority, I conclude that the Board’s 

rules for promotion set forth a clear procedure for Young’s promotion and that the Board violated 

the very rules that it created in denying Young’s promotion to Detective. Therefore, I conclude 

that the Board exceeded its authority, acted arbitrarily and capriciously, and did not proceed on a 

correct theory of law and that Young had the right to be promoted pursuant to the Board’s rules. 

Thus, under a certiorari review or a declaratory judgment review, the Board’s decision should be 

reversed.

8

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2021AP1770(D)

5

¶41 Pursuant to this authority, the Board developed the following rules. 

Rule XI § 3(a) states that “[w]henever there is a vacancy in a sworn position in 

either department which is to be filled from an eligible list, the Board shall make 

the appointment in numerical order from the appropriate list.” (Emphasis added.) 

Rule XI § 4 then states, “The Chief may object to a candidate on an eligible list for 

a sworn position by notifying the Board in writing of the reasons for such 

objection. The Board shall then interview the candidate and determine whether 

the name of the candidate will remain on the eligible list.” Rule XI § 5 further 

states, “Appointments or promotions to positions in either department require 

Board approval and are not effective until approved by a majority of the Board at a 

meeting of the Board.”

¶42 Pursuant to the Board’s rules, applicants for promotions must pass 

multiple examinations and testing procedures that are approved by the Board. See

Rules VIII, IX. “Examinations may consist of one or more tests which the Board 

may deem necessary .... All tests shall fairly and reliably evaluate the applicant 

for fitness to hold the position.” Rule VIII § 4. “Scoring of examinations will 

occur without reference to the identity of a candidate.” Rule IX § 2. The Board is 

intimately involved throughout and approved the process.

¶43 Courts interpret the relevant statutes and the Board’s rules de novo

using the principles of statutory interpretation. See Seider v. O’Connell, 2000 WI 

76, ¶26, 236 Wis. 2d 211, 612 N.W.2d 659. “[S]tatutory interpretation ‘begins 

with the language of the statute. If the meaning of the statute is plain, we 

ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). Courts 

give the language “its common ordinary, and accepted meaning, except that 

technical or specially-defined words or phrases are given their technical or special 
No. 2021AP1770(D)

6

definitional meaning.” Id. The purpose “is to determine what the statute means so 

that it may be given its full, proper, and intended effect.” Id., ¶44.

B. The Board Violated Its Rules and Exceeded Its Authority When It 

Denied Young’s Promotion

¶44 I conclude that Rule XI plainly states that the Board was required to 

promote Young, given that Young’s application was accepted, he was selected to 

test for the position, he had completed all testing requirements, and he was placed 

on the detective eligibility list, there was no pending objection from the Chief, and 

Young was numerically next on the list. Therefore, the Board violated its rules 

and exceeded its authority when it denied Young’s promotion.

¶45 Rule XI § 1 mandates that the Board shall promote officers to 

detective from eligible lists. In this case, there was an eligible list, and Young was 

on it. Thus, the Board was required to promote Young to Detective using the preapproved list. 

¶46 Furthermore, Rule XI § 3(a) mandates that the Board make 

appointments from the list based on “numerical order,” without any other 

consideration. Consequently, when Young was numerically the next officer on the 

list for promotion, the Board had no discretion not to approve Young’s promotion 

and it had no authority to deny it, unless the Chief objected. The rule plainly 

states that Young’s promotion was based on his numerical order on the list and 

there was nothing for the Board to consider in approving his promotion after the 

Chief had withdrawn his objection. “[A]gencies are bound by their own rules. 

Such rules define the boundaries of an agency’s authority, and when it abandons 

those rules the agency is acting beyond its authority.” State ex rel. Riley v. DHSS, 

151 Wis. 2d 618, 625, 445 N.W.2d 693 (Ct. App. 1989) (citation omitted). 
No. 2021AP1770(D)

7

¶47 The Board and the Majority point to the authority provided to the 

Board in the statutes and contend that the Board did not violate its rules or exceed 

its authority when it denied Young’s promotion because it has exclusive authority 

over making promotions. See State ex rel. Becker v. Common Council of 

Milwaukee, 101 Wis. 2d 680, 688, 305 N.W.2d 178 (Ct. App. 1981). The Board 

and the Majority contend that the Board is statutorily required to approve all 

promotions and that the MPA’s interpretation leads to an absurd result that renders 

the Board’s statutory authority of approval as mere surplusage. The Board and the 

Majority assert that if the Board is required to approve promotions based solely on 

a candidate’s numerically listed order with no ability to consider the candidate 

absent an objection from the Chief, its power of approval is a nullity and the Chief 

would be given absolute control over appointments, a result which they assert is 

contrary to statute. 

¶48 However, as noted above, pursuant to WIS. STAT. § 62.50(3)(b), the 

Board has broad authority to promulgate rules “to govern the selection and 

appointment of persons employed in the police and fire departments in the city.” 

While the Board undisputedly has to approve Young’s promotion before it is 

considered effective, I must also consider the rules that the Board imposed on 

itself, and under the rules it created, it did not provide itself with the authority to 

do anything but consider Young’s numerical order on the eligible list when 

considering his promotion unless the Chief objected to his promotion. 

“Administrative rules enacted pursuant to statutory rulemaking authority have the 

force and effect of law in Wisconsin.” State ex rel. Staples v. DHSS, 115 Wis. 2d 

363, 367, 340 N.W.2d 194 (1983). Rule XI is clear that the Board promotes 

officers numerically based on the eligible list and Young’s promotion was 

required to be made in this case based on his “numerical order.” The only 
No. 2021AP1770(D)

8

exception to this procedure would be if the Chief had filed an objection, which 

would then give the Board the authority to interview Young and determine if 

Young should remain on the list of eligible candidates. Without having a pending 

objection from the Chief in this case, the Board was bound to promote Young 

based on his numerical order pursuant to its own rules that it created. Such a 

result is not contrary to statute because the Board passed these rules to define its 

statutory power of approval of promotions.

¶49 In support of its conclusion that “the Board has the exclusive 

authority over appointments for police and fire departments under the statutes and 

Rules, which inherently means it has the power to deny a promotion to any person, 

even one on the eligibility list,” the Majority states:

In the Application Procedures chapter, the Rule set forth 

that “[t]he Board shall refuse to accept an application from, 

shall exclude from the selection process, or shall remove 

from the eligible list: ... (a) any person who does not meet 

the qualifications for the position, either at time of 

application or appointment[.]” Rule VII § 5(a). This rule 

requires the Board to “remove from the eligible list” any 

unqualified candidates at the time of “appointment.” 

Therefore, we see that the Board’s authority to approve 

appointments is reiterated throughout the Rules. We may 

interpret the Board’s action to use its authority from Rule 

VII to exclude Young at the time of his proposed 

appointment for his disciplinary records that occurred after 

he was placed on the eligible list.[9]

However, as the Majority notes that during the time this court was reviewing this 

case, we directed the parties to submit letter briefs, in part, addressing the 

following issue: “Does [Rule VII § 5] have any application to the issues on 

 

9

 See Majority, ¶17.
No. 2021AP1770(D)

9

appeal, and if so, cite what authority supports that it does, explain how it 

applies....” Both parties submitted letter briefs.

¶50 In its letter brief, the Board argued that “Rule VII does not have any 

bearing on this case, and this Court should decide the appeal on the Parties 

existing briefs.” The Board goes on to state that “Rule VI establishes the 

minimum requirements necessary to apply for MPD positions and Rule VII, in 

pertinent part enforces those requirements.” It then asserts that “Rule VII Section 

(5)(a) requires either the rejection of an application, or exclusion from further 

consideration of any applicant that does not meet the qualification for [a] 

position....” The Board then argues that because Young did not fail to meet the 

qualifications for the position, Rule VII § 5 did not apply to this case. Thus, the 

Board’s own interpretation of its Rules does not support the Majority’s 

conclusion.10

¶51 Additionally, I note that the Board had the opportunity to take action 

on the Chief’s objection but failed to do so. The Chief made his objection on 

February 28, 2018, and the Board held two meetings in March 2018, while that 

objection remained pending. By the time the Board took action in April, the Chief 

had withdrawn his objection and filed a second recommendation to promote 

Young, and therefore, the Board was then required to promote Young based on his 

 

10

 In its letter brief, the MPA first argued that Rule VII did not apply to this case because 

it deals with the application procedure and Young’s application was accepted, he was selected to 

test for the position, he had completed all testing requirements, and he was placed on the 

detective eligibility list. Alternatively, the MPA argued that even if the Rule did apply to the 

promotions process, then if the Board truly believed that Young was not qualified to be promoted, 

the Board would have been required under the Rule to remove him from the eligibility list, 

something that never occurred.
No. 2021AP1770(D)

10

numerical order on the eligible list. Because it failed to do so, I conclude that it 

violated its rules and exceeded its authority.

¶52 I also note that in the end, the Board could have used its authority 

under WIS. STAT. § 62.50(3)(b) to create rules providing it with more flexibility to 

consider candidates when approving them for promotion, and it could also have 

created a rule prohibiting candidates from being promoted if they have been 

disciplined in the past or had any objection, pending or withdrawn, filed by the 

Chief. The fact of the matter is that no such rule exists. The Board is bound by 

those rules that it has created, and those rules require that Young be promoted 

based on his numerical order on the approved eligible list. Having failed to follow 

its rules in this regard, the Board violated its rules, exceeded its authority, acted 

arbitrarily, and did not proceed on a correct theory of law. 

¶53 Consequently I would reverse the order of the circuit court affirming 

the Board’s decision, and I would remand this case with instructions to enter 

judgment in favor of the MPA.11 Thus, I respectfully dissent.

 

11

 Having concluded that the Board’s rules do not allow it to deny Young’s promotion 

without a pending objection from the Chief, I decline to address the remaining arguments 

regarding any expansion of previously imposed discipline and whether the employment double 

jeopardy doctrine applies. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 

1989).