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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MILWAUKEE POLICE ASSOCIATION,
MELISSA RAMSKUGLER and JUSTIN SOLSVIG,
Plaintiffs,
Case No. 09-C-1192
-vs-
BOARD OF FIRE & POLICE COMMISSIONERS
OF THE CITY OF MILWAUKEE, EDWARD
FLYNN and the CITY OF MILWAUKEE,
Defendants.
DECISION AND ORDER
Probationary  police  officer  Melissa  Ramskugler                                             (Ms.  Ramskugler  or  Officer
Ramskugler) was terminated by the Milwaukee Police Department (MPD) Chief of Police
during her probationary period.   Ms. Ramskugler contends that her termination without a
hearing deprived her of her property interest in her job without due process of law.
On cross-motions for summary judgment, Ms. Ramskugler moves the Court to issue
a Writ of Certiorari directing that:  (1) Officer Ramskugler be returned to the payroll
forthwith; (2) Officer Ramskugler be provided with the pay and benefits withheld since being
removed from the payroll; (3) Chief of Police Edward Flynn issue, file and serve a complaint
with the Board of Fire & Police Commissioners of the City of Milwaukee (the Board)
identifying the facts supporting his decision to discharge Officer Ramskugler; (4) the Board
conduct a hearing that comports with due process, and determine whether there was just




cause for Officer Ramskugler’s discharge; and (5) Officer Ramskugler’s pay and benefits
continue until such time as the Board finally disposes of her appeal from discharge by
providing that due process hearing.
For the reasons that follow, Ms. Ramskugler’s motion is denied, the defendants’
motion is granted, and this matter is dismissed in its entirety.1
BACKGROUND
When a person is appointed as a Recruit Police Officer at the MPD, s/he is appointed
in a probationary status to the Training Academy for a 23-week period of intensive training.
This period of training includes, but is not limited to, Academics, Physical Training, Defense
and Arrest Tactics (DAAT) and Firearms Training.   A recruit may be appointed from an
eligible list for Police Officers or from the rank of Police Aides who have satisfactorily
completed a Police Aide program.  The Physical Training and the Defensive Arrest Tactics
components of  Recruit Training require  that recruits be capable  of participating  in a
physically rigorous course of activity.
DAAT training, which is mandated by the Wisconsin Department of Justice Law
Enforcement Standards Board (LESB), constitutes a large portion of Recruit Training.  While
the LESB mandates a certain amount of training, the MPD Training Division supplements
and requires more extensive training than that minimally required by the LESB, including
400 more hours of training at the Academy, and additional required Field Training.   Upon
1
Another probationary police officer, Justin Solsvig, was named in the amended complaint.   The defendants
moved for summary judgment on Solsvig’s claims, but Solsvig did not respond, and Solsvig did not move for summary
judgment along with Ms. Ramskugler.   Therefore, the defendants’ motion for summary judgment will be granted as to Mr.
Solsvig.
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entering the Academy, recruits are expected to complete mandated training Phases I, II and
III in probationary status.   Upon graduation from the Academy, there is a request made by
the Department on behalf of the recruit to be certified by the LESB, which is typically done
by the LESB on a quarterly basis.
After graduation, the probationary police officer continues in probationary status as
an “Officer in Training” through mandated Field Training Phases IV and V, and in the title
of “Probationary Officer” through mandated Field Training Phase VI.   Neither graduation
nor certification by the LESB means that the probationary officer is adequately or fully
trained or qualified yet to be a regular police officer with the MPD.   Becoming a regular
police officer only happens upon the successful completion of all of the Field Training.
Probationary police officers, whether a Recruit Officer, Officer-in-Training, or Probationary
Officer, serve a total probationary period of Sixteen (16) months.  Participation in the phases
of  training  by  probationary  police  officers  is  an  essential  pre-requisite  to  continued
employment as a Police Officer, and successful completion of all of the phases is required
to be appointed as a regular employee.
By labor contract, Fire and Commission Rule, and Police Department Procedure, a
police officer in probationary classification is expected to complete 16 months of probation
in actual active service and training before being classified as a regular employee.  Pursuant
to  the labor contract, probationary police  officers have  no  grievance rights regarding
discipline or discharge while in the Academy or as a recruit, and have no grievance rights
regarding matters of discharge during all phases of the required Field Training.
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Ms. Ramskugler started as a probationary police recruit in the MPD Police Academy
on October 8, 2007.   On October 11, 2007, approximately 3 days into recruit training, she
sustained a duty-related injury to her right knee.   She was temporarily removed from the
class and placed in another area of the Department where she performed clerical duties for
approximately one month.   On November 5, 2007, she required surgery to the injured area
and was allowed to take leave for 2 ½ months.   She returned to the performance of clerical
duties in a restricted capacity for a period of 3 months.  She was medically cleared for duty
on April 8, 2008, but remained temporarily assigned to clerical duties pending the next
scheduled recruit class at the Academy.  As of April 8, 2008, she had only had three days of
training at the police academy and was not qualified to do any type of police work.
On June 8, 2008, Ms. Ramskugler was re-appointed to a second recruit class.  From
October 11, 2007 through June 7, 2008, she did not participate in actual active service as a
probationary police officer.   On July 17, 2008, the Chief, by his designee, wrote a letter to
the Board requesting that Ms. Ramskugler’s probationary time as an original acceptance
appointee  be  extended  through  October                                                        14,   2009  because  she  had  participated  in
approximately  35 days of actual active service and training instead of the required  16
months.   Chief Flynn advised the Board of Ramskugler’s re-entry into the recruit class on
June 8, 2008.   Notice of the request for probation extension was submitted to Ramskugler
and her union consistent with the requirements of the collective bargaining agreement.  On
July 24, 2008, the Board considered the request to extend Officer Ramskugler’s probationary
period and approved the extension until October 14, 2009.
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In her second recruit class, Ms. Ramskugler re-injured the same knee and, while in
a restricted capacity, remained assigned to the class until her graduation on November 14,
2008.   Officer Ramskugler’s name was submitted by the Department to the LESB for
certification and approved by the State.  Ms. Ramskugler completed the necessary physical
training and DAAT training prior to her graduation from the MPD recruit academy.   After
graduation, she completed approximately 25 days of the required Phase IV Field Training.
On December 22, 2008, she began a 34 day leave of absence pending a second surgical
procedure on the re-injured knee.   On January 27, 2009, she returned to work to perform
clerical duties consistent with her restrictions but was unable to resume the required training.
The Chief terminated Ms. Ramskugler effective June 11, 2009 pursuant to Milwaukee Police
Department Rule 4, Section 2/335.00 2and Fire and Police Commission Rule XI, Section
7.(a). 3
2
Rule 4, Section 2/335.00 states:
All original appointments to the Police Department shall be for a probationary period,
continuation in the service being dependent upon the conduct of the appointees and their
fitness for the performance to which assigned, as indicated by reports of their supervisory
officers and by reports of Department designated medical examiners.   If, during that
period, members prove unsatisfactory, their services from  the Department shall be
terminated, and they shall not be entitled to an appeal to the Board of Fire and Police
Commissioners from such disposition.
3
Board Rule XI, Section 7 provides:
Original entrance appointees to Police Officer or Firefighter and persons not eligible for
reinstatement to these positions who are re-employed in either department shall be on
probation for an aggregate of 16 months of actual active service.   All other appointees
shall be  on  probation  for  one  year  unless  otherwise  specified  by  the  Board,  City
Ordinance or a collective bargaining agreement.   If during the probationary period, the
appointee proves unfit for the position, the Chief may discharge the appointee.   A full
written statement of the reasons for the discharge must be filed with the Board within five
(5)  days  of the  discharge.    There  shall be  no  appeal from  this  discharge.    If  the
probationary period is completed in a satisfactory manner, the appointee shall then be
(continued...)
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The Chief terminated Ramskugler’s probationary appointment because she was unable to
proceed with required  training at that time and this prevented her from  satisfactorily
completing probationary training and from performing the essential functions of the job.  On
June 15, 2009, Officer Ramskugler filed a notice with the Board requesting a due process
review hearing.  The Board denied her request, stating that “Ms. Ramskugler was terminated
from probationary employment for non-disciplinary reasons.  It is a personnel action that is
not appealable to the Fire and Police Commission.”
The Chief’s written statement was heard by the Board in open session on July 16,
2009.  At that meeting, Ramskugler requested reinstatement.  The Chief submitted a written
recommendation regarding Ms. Ramskugler’s request for reinstatement.   Ramskugler’s
request for reappointment was heard by the Board on February 18, 2010.   At the February
18, 2010 hearing, after hearing from Ms. Ramskugler and Chief Flynn, the reappointment
request was denied by the Board.
ANALYSIS
Summary judgment should be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).   The plain language of the rule “mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party's
3
(...continued)
classified as a regular employee.
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case, and on which that party will bear the burden of proof at trial.”  Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).   Summary judgment is appropriate only if, on the record as a
whole, a rational trier of fact could not find for the non-moving party.  Rogers v. City of Chi.,
320 F.3d 748, 752 (7th Cir. 2003).
A procedural due process claim consists of the following elements: a cognizable
property interest, a deprivation of that interest, and a denial of due process.  Palka v. Shelton,
623 F.3d 447, 452 (7th Cir. 2010).   A property interest in continued employment can be
created by an independent source such as state law securing certain benefits, or by a clearly
implied promise of continued employment.   Phelan v. City of Chicago, 347 F.3d 679, 681
(7th Cir. 2003).  In the context of public employment, the plaintiff must establish a legitimate
claim of entitlement to continued employment except for cause.   Palka, 623 F.3d at 452
(citing Lee v. County of Cook, 862 F.2d 139, 141 (7th Cir. 1988)).                                   “A person’s interest in
a benefit, such as continued employment, constitutes ‘property’ for due process purposes
only if ‘there are such rules or mutually explicit understandings that support his claim of
entitlement to the benefit.’” Covell v. Menkis, 595 F.3d 673, 675-76 (7th Cir. 2010) (quoting
Border v. City of Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996)).
Section                                                                                              62.50,  Wis.  Stats.,  governs  police  and  fire  departments  in  cities                  (like
Milwaukee) with populations over 150,000, also known as “1st class cities.”   Wis. Stat. §
62.05                                                                                                (1)(a).   First Class cities are required by statute to create a board of fire and police
commissioners.  Wis. Stat. § 62.50(1h).  The Board, in turn, is granted rule-making authority
by the legislature.                                                                                  §§ 62.50(3)(a), (b).  Pursuant to this authority, the Board enacted Board
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Rule XI, Section 7.  The Rule provides, in pertinent part, that “[o]riginal entrance appointees
to Police Officer . . . shall be on probation for an aggregate of 16 months of actual active
service.”   The Rule further provides that the Chief can discharge an appointee during the
probationary period if the appointee proves unfit for the position, and there “shall be no
appeal from this discharge.”  It is undisputed that Ms. Ramskugler was discharged before she
completed her probationary period because she was deemed unfit for the position of police
officer.
Ms. Ramskugler argues that Rule XI, Section 7 is invalid because it conflicts with the
specific provisions in the balance of § 62.50.  For example, § 62.50(11) provides that   “[n]o
member of the police force or fire department may be discharged or suspended for a term
exceeding 30 days by the chief of either of the departments except for cause and after trial
under this section.”   The remaining provisions govern the procedures for a trial before the
Board, §§ 62.50(16), (17), salary during suspension, § 62.50(18), and circuit court review.4
§ 62.50(20).   These provisions repeat the phrase “member of the force” or “member of the
police force.”   § 62.50(12) (Trial to be ordered) (“Whenever complaint against any member
of the force of either department is made to the chief thereof, the chief shall immediately
communicate the same to the board of fire and police commissioners and a trial shall be
ordered by the board under this section”); § 62.50(13) (“chief discharging or suspending for
a period exceeding 5 days any member of the force shall give written notice of the discharge
4
When Ms. Ramskugler was discharged, § 62.50(18) guaranteed continued pay and benefits to discharged
officers pending a due process review hearing.   Milwaukee Police Ass’n, Local 21 v. City of Milwaukee, 757 N.W .2d 76,
79 (Wis. Ct. App. 2008).   It was later amended to apply only to suspensions.
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or suspension to the member . . .”).   Essentially, Ms. Ramskugler argues that she was a
“member of the police force” entitled to a for cause hearing prior to her discharge pursuant
to § 62.50(11), and the Board cannot change that fact through its rule-making authority.
The legislature can explicitly or implicitly authorize an administrative agency to
promulgate certain rules.   Seider v. O’Connell, 612 N.W.2d 659, 676 (Wis. 2000).   To
determine whether the Board was authorized to promulgate Rule XI, Section 7, the Court
must examine the plain language of the enabling statute.  Castaneda v. Welch, 735 N.W.2d
131, 140 (Wis. 2007).  The Court should consider a particular statutory section in relation to
the whole statute and also to related sections.   Conway v. Bd. of Police and Fire Com’rs of
City of Madison, 662 N.W.2d 335, 342 (Wis. 2003).   Words and phrases are given their
common and approved meaning, and the Court may consult a dictionary if necessary.  If the
rule matches the statutory elements, then the statute expressly authorizes the rule.  However,
the enabling statute need not spell out every detail of a rule in order to expressly authorize
it; if it did, no rule would be necessary.   Id. at 342-43.
In a first class city, the Board is authorized to “prescribe rules for the government of
the members of each department.”   § 62.50(3)(a).  The Board is also required to “adopt rules
to  govern  the  selection  and  appointment  of  persons  employed  in  the  police  and  fire
departments of the city” that are “designed to secure the best service for the public in each
department” and that “provide for ascertaining, as far as possible, physical qualifications,
standing and experience of all applicants for positions . . .”  § 62.50(3)(b).  Finally, the Board
may enact rules that “provide for the competitive examination of some or all applicants in
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such subjects as are deemed proper for the purpose of best determining the applicants’
qualifications for the position sought” and which “provide for the classification of positions
in the service and for a special course of inquiry and examination for candidates for each
class.”   Id.   The use of probation, long recognized in Wisconsin as an important part of the
hiring process for police officers, is expressly authorized by the foregoing provisions.
“There is no doubt that the use of a probationary period is an excellent means of examining
candidates and is well-suited to securing the best service available.   It enables the board to
better evaluate a potential officer’s skill and character.   Probation is a continuation of the
hiring process.”   Kaiser v. Bd. of Police and Fire Comm. of the City of Wauwatosa, 311
N.W.2d 646, 649 (Wis. 1981); see also Kraus v. City of Waukesha Police and Fire Comm’n,
662 N.W.2d 294, 302 (Wis. 2003) (“Probation is a form of examination, and one that is
highly effective in the realm of law enforcement.   It allows chiefs and PFCs to ascertain
whether newly placed subordinates are suited for the positions for which they have been
selected”).
The question then becomes whether the Board exceeded its statutory authority.  A rule
exceeds an agency’s statutory authority if it contradicts either the language of a statute or the
intent of the legislature.  If a conflict arises between a statute and an administrative rule, the
statute prevails.  Castaneda, 735 N.W.2d at 143.  As noted, Ms. Ramskugler argues that Rule
XI, Section  7's provision for discharge without trial or an appeal during her 16-month
probationary period conflicts with the statutory mandate that “[n]o member of the police
force . . . may be discharged or suspended . . . except for cause and after trial under this
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section.”   § 62.50(11).  This argument presumes that Ms. Ramskugler was a “member of the
police force” even though she was a probationary employee.  Ms. Ramskugler is mistaken.
The  term                                                                                        “member  of  the  police  force”  has  no  specific  statutory  definition.
Ramskugler argues that she was a “member of the police force” because she was a “law
enforcement officer,” defined by statute as “any person employed by the state or any political
subdivision of the state, for the purpose of detecting and preventing crime and enforcing laws
or ordinances and who is authorized to make arrests for violations of the laws or ordinances
that the person is employed to enforce.”   Wis. Stat. § 165.85(2)(c).   Ms. Ramskugler did
graduate from the MPD’s training academy, after which time she was certified as a “law
enforcement officer.”  Wis. Stat. § 165.85(4)(b).  But it does not follow that Ms. Ramskugler
was a  “member of the police force” pursuant to  §  62.50.   The dictionary definition of
“member”  is  “one  of  the  individuals composing a  group.”    Merriam-Webster Online
Dictionary (2011), http://www.merriam-webster.com/dictionary/member; see also Webster’s
Third New International Dictionary (1986) (defining member as “one of the individuals
composing a society, community, association or other group”).  Ms. Ramskugler was not one
of the individuals composing a group (i.e., the “police force” in the City of Milwaukee)
unless and until she successfully completed  16 months in active service.    The statute
governing general law enforcement standards  “does not preclude any law enforcement
agency from ‘setting recruit training and employment standards which are higher than the
minimum standards set by the board.’” Kraus,  662 N.W.2d at 300  (citing Wis. Stat. §
165.85                                                                                           (4)(e)).
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Ms. Ramskugler also argues that in 1986, the legislature amended a variety of statutes
to exempt officers in a probationary classification from due process appeal rights.  Wis. Stats.
§§ 62.13(6m), 60.56(a)(am) and 61.65(1)(am).  Since the legislature did not similarly amend
§ 62.50 to create a “probationary carve-out,” the argument goes that the legislature would not
allow extension of the probation period beyond the standard certification requirements under
Wisconsin law.                                                                                      § 165.85(4)(b)1.   This does not follow because § 62.13(6m) (cities with a
population of less than four thousand), § 60.56(1)(am) (town police departments), and §
61.65                                                                                               (1)(am) (village police departments) apply to municipalities without a police and fire
commission.  By contrast, the general statute governing police and fire departments in cities
other than first class cities (Wis. Stats. § 62.13) requires the establishment of a board of
police and fire commissioners.  § 62.13 does not mention probation, but the “authority to use
probationary periods as part of the appointment process is not undermined by the absence of
specific language regarding probation in Wis. Stat. § 62.13(4).  Numerous management tools
integrally  related  to  appointment,  such  as  interviews,  references,  and  letters  of
recommendation, are not expressly enumerated in that statute.  These tools are not forbidden
simply because they are not enumerated.”  Kraus at 303.  Similarly, the legislature’s failure
to explicitly eliminate due process rights for probationary employees in § 62.50 says nothing
about the authority of the Board to promulgate rules pertaining to the same.
Ramskugler relies on Castaneda, where the Supreme Court held that a series of rules
implementing the citizen complaint procedure in § 62.50(19) were invalid because they
contravened the intent of the statute.  “If the Board wants to promulgate a rule, it should craft
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a rule that better reflects the purpose intended by the legislature of providing persons with
serious grievances against a member the right to present those grievances at a public trial.”
735 N.W.2d at 150.  Castaneda is easily distinguishable for the reasons already stated.  Here,
the purpose of the legislature was to create a property interest in continued employment for
police officers who are “members of the police force,” not to create a property interest for
probationary employees.   If anything, the legislature’s use of the phrase “member of the
police force” acknowledges the Board’s authority to establish the contours of employment
rights for police officers in first class cities.   Rule XI, Section 7 can be harmonized with §
62.50 by interpreting the phrase “member of the police force” to exclude those individuals
who have not satisfied the requirements of the rule.   Such an individual is merely an
appointee, not a member of the police force.
Accordingly, pursuant to Board Rule XI, Section 7, Ms. Ramskugler had no more than
a unilateral expectation in continued employment as a police officer with the City of
Milwaukee.  Bd. of Regents v. Roth, 508 U.S. 564, 577 (1972).   “Clearly, Wisconsin courts
have concluded that state law provides no legitimate expectation of employment on behalf
of a probationary police officer.  In line with those decisions, this Court hereby finds that the
plaintiff in this case did not have a protected property interest in her job, and that procedural
due process provisions do not apply . . .”   Ratliff v. City of Milwaukee, 608 F. Supp. 1109,
1129 (E.D. Wis. 1985).
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NOW ,  THEREFORE,  BASED  ON  THE  FOREGOING,  IT  IS  HEREBY
ORDERED THAT:
1.                                                              Plaintiffs’ motion to submit an additional affidavit [D. 40] is GRANTED;
2.                                                              Plaintiffs’  motion  for  summary  judgment  and  for  certiorari             [D.   24]  is
DENIED;
3.                                                              Defendants’ motion for summary judgment [D. 16] is GRANTED; and
4.                                                              This matter is DISMISSED.  The Clerk of Court is directed to enter judgment
accordingly.
Dated at Milwaukee, Wisconsin, this 23rd day of May, 2011.
BY THE COURT
s/ Rudolph T. Randa
HON. RUDOLPH T. RANDA
U.S. District Judge
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