Expansion of “Arrest Record” to Include Non-Criminal Municipal Offenses under the Wisconsin Fair Employment Act

Introduction

Oconomowoc Area School District v. Gregory L. Cota is a 2025 Wisconsin Supreme Court decision that clarifies the meaning of “arrest record” in the Wisconsin Fair Employment Act (the Act). At issue was whether “arrest record” covers only criminal offenses or also non-criminal municipal offenses such as municipal theft. The School District investigated two employees, Gregory and Jeffrey Cota, for missing scrap-metal proceeds. When its internal inquiry proved inconclusive, the District referred the matter to local police, who in turn cited the Cotas for non-criminal municipal theft. One year later, after the assistant city attorney indicated a conviction was likely, the District terminated their employment. The Cotas sued under the Act’s prohibition on terminating employees “because of” their arrest records. LIRC agreed and ordered reinstatement. The courts of appeals reversed, holding that non-criminal offenses fall outside the Act’s definition of arrest record. The Supreme Court granted review to decide: (1) whether “any . . . other offense” in the Act’s definition of arrest record includes non-criminal municipal offenses, and (2) whether the District unlawfully terminated the Cotas because of their arrest records.

Summary of the Judgment

The Supreme Court unanimously held that “any . . . other offense” in WIS. STAT. § 111.32(1) encompasses non-criminal offenses, including municipal theft. The Court applied ordinary‐meaning principles and textual analysis, noting that nothing in the Act or its structure limits “offense” to crimes. It further observed that municipal officers may arrest for non-criminal violations, traffic infractions, and ordinance breaches. Interpreting the statute to include non-criminal offenses best serves the Act’s purpose: to protect individuals from employment discrimination on the basis of arrest record. Because substantial evidence supported LIRC’s finding that the District fired the Cotas in reliance on their arrest records, the Court affirmed LIRC and reversed the court of appeals.

Analysis

Precedents Cited

The Court drew on well-established rules of statutory interpretation and agency review:

Ordinary Meaning and Context: State v. Kizer, 2022 WI 58; State v. Marotz, 2007 WI 89.
Textual Consistency: Duncan v. Asset Recovery Specialists, 2022 WI 1 (usage of “offense” in contemporaneous statutes).
Statutory Purpose: Clean Wisconsin, Inc. v. DNR, 2021 WI 72 (legislative purpose informs plain‐meaning interpretation).
Agency Fact‐Finding: Hilton ex rel. Pages Homeowners’ Ass’n v. DNR, 2006 WI 84 (substantial evidence review of agency findings).
Onalaska Defense: City of Onalaska v. LIRC, 1984 WI App 8 (employer may discharge based on independent investigation, not arrest record alone).

Legal Reasoning

The Court’s reasoning unfolded in two steps:

“Any . . . Other Offense” Includes Non-Criminal Offenses
• The unqualified word “offense” in common dictionaries embraces infractions of both criminal and non-criminal laws.
• Wis. Stat. Chs. 300, 346, and 165—adopted alongside the Act—use “offense” to cover traffic forfeitures and ordinance violations.
• The Act’s inclusive wording (“includes, but is not limited to . . . any . . . other offense”) points to breadth, not limitation.
• Interpreting “offense” to include forfeiture-only offenses aligns with the Act’s express purpose to shield applicants and employees from discrimination based on arrest records.
Application to the Facts
• LIRC found the District originally could not determine culpability from its internal investigation and only formed a belief in the Cotas’ guilt once law enforcement charged them with municipal theft and the assistant city attorney predicted a conviction or settlement.
• The Court held these findings, supported by substantial evidence, demonstrate the District was motivated by arrest-record information when it fired the Cotas.

Impact

This decision carries significant weight for employment and municipal law in Wisconsin:

Employers may not sidestep the Act by disguising non-criminal ordinance citations as non-qualifying “other offenses.”
Municipalities and law enforcement should recognize that even forfeiture-only ordinances can create protected arrest records under state employment law.
First-offense OWI charges—punishable only by fine—now qualify as covered “arrest records,” ensuring consistent treatment of offenders irrespective of charge classification.
The ruling discourages premature internal terminations: employers may refer suspected misconduct to criminal authorities without losing the ability to act later on independent findings.
Future cases will rely on this precedent to bar employment actions based solely on the existence of an arrest record for any offense, criminal or non-criminal.

Complex Concepts Simplified

Criminal vs. Non-Criminal Offense: Under Wisconsin law, crimes are punishable by jail or fine; non-criminal offenses, like traffic or municipal ordinance violations, carry only forfeitures.
Arrest Record: Defined broadly to include being questioned, detained, arrested, charged, or tried for “any . . . offense” by a law enforcement or military authority.
Municipal Theft Citation: A non-criminal charge under a local ordinance, punishable by forfeiture, but now treated as a qualifying arrest record.
Substantial Evidence Review: Courts defer to agency fact-finding if a reasonable mind could reach the same conclusion on the record.
Onalaska Defense: Employers may still fire employees based on independently developed beliefs of wrongdoing, so long as the decision does not rely solely on the arrest record.

Conclusion

Oconomowoc Area School District v. Cota establishes that “arrest record” under the Wisconsin Fair Employment Act extends to non-criminal municipal offenses. By clarifying statutory meaning, the Supreme Court reaffirmed the Act’s broad protection against employment discrimination based on any form of arrest and emphasized the legislature’s goal—evaluating employees on their qualifications and conduct, not the mere existence of an arrest record. Employers retain the right to investigate internally and to act on independent findings, but cannot circumvent the Act’s protections by narrowly classifying offenses. This ruling will guide future disputes over arrest-record discrimination and strengthen consistent employment rights for Wisconsin workers.