UNGER v. GREGORY, Wis., Judgment, Law, casemine.com

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Attorney(S)

Max Raskin of Milwaukee, for the appellant. For the respondents there was a brief by William J. McCauley, district attorney of Milwaukee county, and O. L. O'Boyle, corporation counsel, and oral argument by Mr. O'Boyle.

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Smart Summary

Factual and Procedural Background

Max Unger, plaintiff, had been in the classified service of Milwaukee county continuously since October 1, 1932, originally holding the title junior financial investigator, later financial investigator, and then social investigator. On January 1, 1941, accounts collector positions were reclassified as social investigators. On July 6, 1943, W. G. Coffey, director of county institutions and departments, requested the Milwaukee county civil service commission to recommend abolishing four social investigator positions and one senior investigator position and creating in their place eight collector and investigator positions and one supervising collector and investigator position. The civil service commission recommended as requested on July 8, 1943, and on July 26, 1943, the Milwaukee county board adopted an ordinance establishing the new positions.

An original entrance examination was held to establish an eligible list for the newly created positions; plaintiff was placed number eighteen on that list, and eight of the first ten persons were appointed by Mr. Coffey. Plaintiff's services were terminated on August 3, 1944, due to a reduction in the poor-relief case work in which he was engaged. Plaintiff sued the Milwaukee county board of supervisors and the Milwaukee civil service commission for declaratory relief under sec. 269.56, Stats., alleging that the newly created positions had duties identical to his social investigator position, asserting greater seniority, and contending that the ordinance of July 26, 1943, was null and void. The trial court entered judgment on October 30, 1945, dismissing the complaint. Plaintiff appealed.

Legal Issues Presented

Whether the positions created by the July 26, 1943 ordinance (collector and investigator and supervising collector and investigator) were "new" within the meaning of the Milwaukee county ordinance (sec. 17.05(3)) — i.e., whether their duties were substantially different from those of existing positions in the county classified service (particularly the social investigator).
Whether the civil service commission and county officials acted in bad faith or with intent to injure employees (such that the reclassification and creation of new positions would be invalid).

Arguments of the Parties

Appellant's Arguments

Plaintiff alleged that the duties, functions, and responsibilities of the newly created positions were in truth and in fact the same as those of the social investigator position then occupied by him.
Plaintiff asserted that his seniority exceeded that of other employees who were performing the same work and that the July 26, 1943 ordinance attempted to create positions that already existed and was therefore null and void.

Respondents' Position (as reflected in the record)

The civil service commission determined and found that there was a substantial difference in duties between the newly created positions and the then-existing classified positions.
Members of the commission and director Coffey explained that the new collector positions were intended to focus wholly on collections — a different task and requiring a different type of employee than the social investigators whose duties were primarily to determine eligibility and financial condition for relief.
The record contained findings that there was no evidence of bad faith by the civil service commission or intent by Coffey to injure the plaintiff or others similarly situated.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State ex rel. Thein v. Milwaukee (1938), 229 Wis. 12, 281 N.W. 653	Explains the reason for the rule that a new classification cannot be created merely by giving a new title to a position involving the same duties, because a change in name only with no change in duties indicates bad faith.	The court cited the principle but distinguished the present case: it found no evidence of bad faith and accepted the commission's determination that the new classifications involved substantial differences in duties aimed at facilitating collections; therefore Thein did not compel invalidation of the ordinance here.

Court's Reasoning and Analysis

The court began from the ordinance requirement (sec. 17.05(3), Ordinances, Milwaukee county board) that no position is "new" unless the commission finds its duties substantially different from every other existing classified position. The trial court had found that the civil service commission made such a determination and that there was no evidence of bad faith or intent to treat anyone unfairly in creating the new positions or conducting the examination.

The court applied the established rule (citing State ex rel. Thein v. Milwaukee) that merely relabeling a position without substantive change in duties would indicate bad faith and be invalid. However, the court noted that in this case the record supported the commission's finding of substantial difference: the commission referred Coffey's recommendation to a classification examiner, who investigated and reported; the commission then concluded that the new collector positions focused on extracting collections for the county — "quite a different thing" — requiring a different type of person. Testimony by a commission member described this distinction between investigators (determining clients' resources/eligibility) and collectors (securing funds for the county).

The court acknowledged language in a later commission resolution (September 20, 1943) that could imply a contradiction regarding whether positions could have been filled by promotional examination because incumbents occupied positions of the same salary bracket and performed the same duties. Nevertheless, the court gave weight to the commission's original factual finding that substantial differences in duties existed and declined to overturn the trial court's determination.

Holding and Implications

Judgment affirmed.

Direct consequences: the trial court's dismissal of plaintiff's complaint was affirmed; the ordinance of July 26, 1943, was held to have been legally adopted and the new positions thereby established were held to be legally created; plaintiff's termination by reason of reduction in work stood as adjudicated. The court's decision rests on the factual finding that the civil service commission determined the duties to be substantially different and that there was no bad faith in creating the new classifications.

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UNGER, Appellant, vs. GREGORY and others, Respondents.

Action by Max Unger against the Milwaukee county board of supervisors and the Milwaukee civil service commission for declaratory relief under sec. 269.56, Stats. From a judgment entered October 30, 1945, dismissing the complaint, plaintiff appeals.

Plaintiff has been in the classified service of Milwaukee county continuously since October 1, 1932. He entered service in a position entitled junior financial investigator. On January 1, 1933, the title of his position was changed to financial investigator, and on January 1, 1939, it was changed to social investigator. On January 1, 1941, positions entitled accounts collector were also reclassified as social investigators.

On July 6, 1943, W.G. Coffey, director of county institutions and departments, requested of the Milwaukee county civil service commission that it recommend to the Milwaukee county board of supervisors that four positions of social investigator and one position of senior investigator be abolished, and that there be created in lieu thereof eight positions of collector and investigator and one position of supervising collector and investigator. On July 8, 1943, the requested recommendation was made by the civil service commission to the county board, and on July 26, 1943, the Milwaukee county board, by ordinance, set up the positions recommended. Subsequently, an original entrance examination to establish an eligible list for the filling of the newly created positions was held and plaintiff placed number eighteen on the list. Eight of the first ten persons on the eligible list were appointed to the positions by Mr. Coffey.

On August 3, 1944, the services of the plaintiff were terminated by reason of a reduction in the poor-relief case work in which he was engaged under his classification.

The plaintiff alleges that the duties, functions, and responsibilities of the said newly created positions are in truth and in fact the same as that of the position now known as social investigator; that his seniority is greater than other employees in the service of Milwaukee county who are performing the same work and carrying out the same duties he performed when employed, and that the ordinance adopted July 26, 1943, attempting to create positions which in truth and in fact already existed, is null and void.

The trial court found that the "civil service commission did determine and find that there was a substantial difference in the duties of the newly created positions as to those then in existence in the classified service," and that "there was no evidence of bad faith on the part of members of the Milwaukee county civil service commission in any action taken relative to the creation of such new positions or the conduct of the examination relative thereto and there was no evidence of any intent or purpose on the part of William L. Coffey, as the director of Milwaukee county institutions and departments, to injure the plaintiff or others similarly situated in their rights as employees of the defendant county through the creation of the new positions of collector and investigator;" and that the ordinance of July 26, 1943, was legally adopted and the new positions set up thereby legally created.

FAIRCHILD, J.

Sec. 17.05 (3), Ordinances, Milwaukee county board, reads: "No office, position or employment shall be considered new unless the duties thereof are found by the commission to be substantially different from those of every other existing position in the county classified service." The trial court has found that the civil service commission of Milwaukee county did make such a determination. It has further found that there was no bad faith or intent to treat anyone unfairly on the part of the civil service commission in creating such position. The reason for the rule that a new classification cannot be created by giving a new title to a position involving the same duties is because such a change in name only with no change in duties indicates bad faith in creating the new position. State ex rel. Thein v. Milwaukee (1938), 229 Wis. 12, 281 N.W. 653. Here, there is no evidence of bad faith and it is conceded that none existed. Mr. Coffey was interested in facilitating collections of accounts in Milwaukee county and considered that a reclassification and reorganization of positions would accomplish that purpose. Although the social investigators had, incidentally, made some collections, it now became important to create a position in which the employee was concerned wholly with collections and should be one specially qualified by training and disposition for the work.

Consequently, if there is evidence to support the trial court's finding that the civil service commission complied with the Milwaukee county ordinance by finding that the duties of the new position are substantially different from those of the old position, judgment must be affirmed. And the evidence adduced by appellant to the effect that in some particulars there is a similarity of the duties, salary, and qualifications is not controlling.

One of the members of the civil service commission testified that the recommendation of Mr. Coffey was taken under advisement and was referred to a classification examiner, whose duty it was to check into the duties involving the new classification; that after about two weeks he made his report to the commission, "and the commission then discussed the report and decided that there was justification for a new classification, for while we did not have investigators — financial investigators — their duties were to find out what money clients had and what their properties were and whether they were eligible to relief from the county, and these new collectors, their duties were to find out what money they had, and then get it out of these clients for the county, which after all is quite a different thing; it takes a different type of person to actually extract the money from the clients, and turn it over to the county officers. And on that basis we decided that. there was justification for a new classification of collectors."

There is, it is true, language in a resolution subsequently passed on September 20, 1943, reversing a previous decision of the commission to reopen the examination for the new position, which might imply that the commission was contradicting the former finding as to the substantial difference in duties. The clause in question read: "Whereas, it was subsequently discovered that said positions could not be filled by a promotional examination for the reason that the group of employees who could qualify as candidates for any such examination were already occupying positions of the same salary bracket and would be performing the same duties as they are presently performing. . . . "Nevertheless, bearing in mind the weight to be given findings of fact, we cannot overrule the determination of the court that the original decision of the civil service commission that there existed substantial differences in duties amounting to a new position controlled.

By the Court. — Judgment affirmed.

UNGER v. GREGORY