OTRADOVEC v. CITY OF GREEN BAY

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Docket Number

No. 83-1152.

Attorney(S)

For the appellant the cause was submitted on the brief of Parins, McKay, Mohr Beilich, S.C., and R. Paul Mohr of Green Bay. For the respondent City of Green Bay the cause was submitted on the brief of James A. Simmonds, city attorney. For the respondent Peter J. Naze the cause was submitted on the brief of Kenneth J. Bukowski, Brown County corporation counsel.

Judges

CANE, J.

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Smart Summary

Factual and Procedural Background

Richard P. Otradovec was a residential appraiser employed under an indefinite term contract in the Green Bay city assessor's office when he was elected to the City of Green Bay Common Council (alderman). The common council approves terms and conditions of employment for residential appraisers after agreement with a local union. Since his election, Otradovec was not a union member and abstained, with the council's permission, from contract negotiations and from voting on matters affecting the union contract related to his position. The Green Bay city attorney had advised Otradovec that a potential "conflict of interest" might exist if he held both positions.

The circuit court for Brown County determined that by accepting the office of alderman while serving as a residential appraiser in the assessor's office, Otradovec violated the common law doctrine of incompatibility and sec. 946.13, Stats., and ordered him to choose between the office and the position within ninety days. The instrument deciding the matter is treated as a final judgment on review. Otradovec appealed, arguing that the doctrine and statute apply only to prohibitions on holding two public offices, not to holding a public office and a position of public employment. The Court of Appeals affirmed the judgment.

Legal Issues Presented

Whether the common law doctrine of incompatibility can apply to a person holding a public office and a position of public employment (as opposed to only two public offices).
Whether, applying that doctrine, the office of alderman (member of the common council) and the position of residential appraiser (assistant city assessor) are incompatible.
Whether it was necessary for the court to decide whether Otradovec violated sec. 946.13, Stats., in light of the incompatibility determination.

Arguments of the Parties

Appellant's Arguments

Otradovec contended that under state common law the doctrine of incompatibility and the referenced statute apply only to the holding of two public offices, and therefore do not prohibit simultaneously holding a public office and a position of public employment.

Respondents' Arguments

Both the City of Green Bay and the Brown County District Attorney supported the trial court's resolution that Otradovec must choose between his office and his position. The respondents supported the determination that the office and position at issue are incompatible, and the court therefore restricted its opinion to that incompatibility question.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Katze v. Randolph Scott Mutual Fire Insurance Co., 111 Wis.2d 326, 330, 330 N.W.2d 232, 234 (Ct.App. 1983)	Describes that questions of law are decided without deference to the trial court.	Used to justify de novo review of whether the doctrine of incompatibility applies to an office plus a position of employment.
State v. Jones, 130 Wis. 572, 110 N.W. 431 (1907)	Holds that offices are incompatible when one is superior in some respect to another such that duties may conflict to the public detriment; abstention from votes does not remove incompatibility where substantial conflicts may arise.	Supported the view that substantial potential conflicts between council duties and assessor-office employment render the two positions incompatible even if the officeholder abstains from particular votes.
Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163 (1941)	States the doctrine applies where the nature and duties of two offices make it improper, on public policy grounds, for one person to discharge both; distinguishes constitutional ineligibility analysis from common-law incompatibility.	Interpreted as recognizing the public-policy basis of incompatibility and as not limiting the doctrine to two constitutional "offices"; used to support extension of the doctrine to public employment positions.
Tarpo v. Bowman Public School Dist. No. 1, 232 N.W.2d 67 (N.D. 1975)	An out-of-state decision finding a teacher's position incompatible with service as a school board trustee.	Cited as supporting authority from other jurisdictions that positions of public employment can be incompatible with public office.
Haskins v. State ex rel. Harrington, 516 P.2d 1171 (Wyo. 1973)	An out-of-state decision finding a teacher's position incompatible with service as a school board member.	Used as additional support for the proposition that employment positions may be incompatible with public office.
Rogers v. Village of Tinley Park, 451 N.E.2d 1324 (Ill.App. 1983)	An out-of-state decision finding a police officer's position incompatible with the office of village trustee.	Further supported the court's conclusion by demonstrating similar holdings in other jurisdictions.

Court's Reasoning and Analysis

The court first framed the central question—whether the common law doctrine of incompatibility extends to the holding of a public office together with a position of public employment—as a pure question of law and reviewed it de novo. It consulted prior Wisconsin decisions for guiding principles: State v. Jones emphasizes incompatibility where duties may conflict to the public detriment, and Martin v. Smith emphasizes a public-policy basis for incompatibility where the nature and duties of two roles make it improper for one person to discharge both.

Applying those principles, the court concluded that the doctrine is not limited to two public offices. The same public-policy concerns and potential public detriment that justify disallowing dual public offices can arise when one person holds a public office and a position of public employment. Specifically, a common council member may vote on contracts setting employment terms for residential appraisers and may vote on approval of the appointment of the city assessor, whose office supervises the appraiser. Those potential conflicts are substantial and sufficient to establish incompatibility. The court explicitly stated that the possibility of abstention from votes does not negate incompatibility; it is enough that substantial conflicts might arise to the public detriment.

The court also relied on analogous decisions from other jurisdictions (cited in the opinion) that have held positions of public employment incompatible with public office to corroborate its conclusion.

Holding and Implications

Judgment affirmed.

Implications:

The Court of Appeals held that the common law doctrine of incompatibility extends to situations in which a person holds a public office and a position of public employment.
Applying that doctrine to the facts, the court affirmed the trial court's order requiring Otradovec to resign either his office as alderman or his position as a residential appraiser within ninety days because the two roles are incompatible due to substantial potential conflicts of interest.
Because the appellate court affirmed solely on the incompatibility ground, it did not consider or rule on whether Otradovec violated sec. 946.13, Stats.

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Richard P. OTRADOVEC, Plaintiff-Appellant, v. CITY OF GREEN BAY and Peter J. Naze, Brown County District Attorney, Defendants-Respondents.

CANE, J.

Richard P. Otradovec appeals a judgment determining that, by accepting the office of alderman on the City of Green Bay Common Council while serving as a residential appraiser in the Green Bay assessor's office, he violated the common law doctrine of incompatibility and sec. 946.13, Stats., and ordering him to choose between the office and position or be subject to prosecution. Otradovec contends that the doctrine and the statute apply only to prohibit persons from holding incompatible public offices. We conclude that the doctrine of incompatibility also prohibits a person holding a public office and an incompatible position of public employment. We affirm the judgment. Our conclusion makes it unnecessary to review the trial court's determination that Otradovec violated sec. 946.13 by retaining both the public office and position of public employment.

The document in the record determining the issues and directing Otradovec to choose between his office and position is entitled "Decision." Since this instrument finally determines the action, we treat it on review as a final judgment. See § 806.01(1), Stats.

Otradovec was elected to the City of Green Bay Common Council while retaining his job as a residential appraiser in the Green Bay city assessor's office under an indefinite term contract. The common council approves the terms and conditions of employment for residential appraisers after agreement with a local union. Since his election to the common council, Otradovec has not been a union member and has abstained from both contract negotiations and, with the council's permission, voting on matters affecting the union contract that relates to his position. The trial court noted that the mayor appoints the city assessor, subject to the common council's approval. Prior to Otradovec's election to the common council, the Green Bay city attorney advised Otradovec that there might be a "conflict of interest" if he were to simultaneously hold the position of residential appraiser and the office of a common council member.

The trial court concluded that Otradovec accepted a public office incompatible under common law with the position of public employment he already held and ordered him to resign either the office or the position within ninety days. Otradovec argues that under the common law of the state only two public offices, not an office and a position, can be incompatible. We disagree.

Both the city and the district attorney support the trial court's resolution of which position Otradovec should retain. We therefore restrict our opinion to the question of whether the office of alderman and the position of assistant city assessor are incompatible.

Whether the common law doctrine of incompatibility can apply to a person holding a public office and a position of public employment is a question of law. We decide questions of law without deference to the trial court. Katze v. Randolph Scott Mutual Fire Insurance Co., 111 Wis.2d 326, 330, 330 N.W.2d 232, 234 (Ct.App. 1983).

While the Wisconsin Supreme Court has never directly addressed this particular issue, two decisions give guidance on the common law doctrine of incompatibility. In State v. Jones, 130 Wis. 572, 575-76, 110 N.W. 431, 432 (1907), the supreme court stated that if one office was superior in some respect to another, so that the duties exercised under each might conflict to the public detriment, the offices were incompatible. In Martin v. Smith, 239 Wis. 314, 326, 1 N.W.2d 163, 169 (1941), the court noted that the doctrine applies "where the nature and duties of two offices were such as to render it improper from considerations of public policy for one person to discharge the duties of both."

Otradovec incorrectly asserts that Martin "specifically determined there could be no incompatibility unless the two positions involved both constituted public offices." Martin was concerned with art. XIII sec. 3 of the Wisconsin Constitution, that makes officers of the United States ineligible to hold "any office of trust, profit or honor in this state." Id. It held that the president of the University of Wisconsin was not such an office and that an officer of the United States was therefore not constitutionally ineligible to serve as president of the University of Wisconsin. Id. at 333, 1 N.W.2d at 172. Martin expressly recognizes that art. XIII sec. 3 "does not deal with incompatibility of offices." Id. at 326, 1 N.W.2d at 169.

The common law doctrine of incompatibility extends to positions of public employment as well as public offices. Both Martin, 239 Wis. at 326, 1 N.W.2d at 169, and Jones, 130 Wis. at 575, 110 N.W. at 432, note the importance of public policy in applying the doctrine. The public detriment in having one person hold incompatible public offices can also exist when one person holds a public office and a position of public employment with duties that might conflict. As a member of the common council, Otradovec has the power to vote on contracts setting the terms of his employment. He may also vote on approval of the appointment of the city assessor in whose office he must work. These potential conflicts are substantial and establish the incompatibility of the public office and position of public employment Otradovec holds. It does not matter that he may be permitted to abstain from voting in these areas or whether conflicts exist in all or a greater part of the functions of his office and position. See Jones, 130 Wis. at 574-75, 110 N.W. at 432. It is sufficient that substantial conflicts might arise that would be detrimental to the public.

Our conclusion is supported by the recent decisions in other states that the trial court relied on. See Tarpo v. Bowman Public School Dist. No. 1, 232 N.W.2d 67, 71 (N.D. 1975) (position of teacher incompatible with office of member of board of school district trustees) and Haskins v. State ex rel. Harrington, 516 P.2d 1171, 1175-78 (Wyo. 1973) (position of teacher incompatible with office of school board member). See also Rogers v. Village of Tinley Park, 451 N.E.2d 1324, 1329 (Ill.App. 1983) (position of police officer incompatible with office of village trustee). We note that the supreme court in Martin also looked beyond Wisconsin case law to help define the doctrine of incompatibility.

Because the trial court's order requiring Otradovec to resign either his office or position is affirmed, based solely on its determination that the two are incompatible, we need not consider whether Otradovec has violated sec. 946.13, Stats.

By the Court. — Judgment affirmed.