KESSLER, J.
¶ 1 Richard Schoen appeals an order of the circuit court affirming the Board of Fire and Police Commissioners' (the Board) decision to discharge Schoen. The Board first found that Schoen acted with excessive force, in violation of Milwaukee Police Department Rules and Procedures.
¶ 2 The sole issue here is whether the Board acted within its authority when, based on the Board's conclusion that its earlier disciplinary decision was based on a mistake of law, it changed its oral decision to suspend Schoen and discharged him instead. Schoen argues that the Board had no authority to reconsider its decision, regardless of the reason. We disagree and affirm.
¶ 3 On May 1, 2012, Milwaukee Police Chief Edward Flynn discharged Schoen for use of excessive force. The discharge stemmed from an incident on September 22, 2011, after Schoen arrested J.T. Schoen stopped J.T.'s car and ultimately arrested J.T. for disorderly conduct. A squad car camera showed that upon arrival at the District Seven police station, Schoen removed J.T., who was handcuffed, from the backseat of the squad car by grabbing her shirt near her abdomen. Schoen punched J.T.'s head multiple times with one hand, while still clutching her shirt with the other. Schoen then grabbed J.T.'s hair, threw her to the ground, got on top of her and "delivered a knee strike." J.T. was escorted into the police station by another officer.
¶ 4 Schoen appealed his discharge to the Board, pursuant to WIS. STAT. § 62.50(13) (2013-14).
¶ 5 The Board reconvened on December 3, 2012, and announced in an open session that the charge against Schoen was sustained. The Board immediately proceeded to Phase Two to determine the appropriate discipline. The parties presented evidence primarily related to the last two "just cause" factors in WIS. STAT. § 62.50(17)(b) and Commission Rule XVI, Section 12. At the conclusion of evidence, the Board again went into a closed session to deliberate. In an open session later that day, the Board announced that it decided the penalty for Schoen's use of excessive force would be a 60-day suspension:
¶ 6 On December 7, 2012, prior to issuing its written decision, the Board publically announced that it would reconvene on December 11, 2012, for further proceedings regarding Schoen's disciplinary appeal. During a phone conference between Schoen's counsel, the Milwaukee City Attorney and the Hearing Examiner, Schoen's counsel objected to the December 11 session.
¶ 7 When the Board reconvened on December 11, Commissioner Michael O'Hear, a professor of law at Marquette University Law School, moved to reconsider the Board's penalty decision. O'Hear explained that he had applied an incorrect legal standard in reaching the earlier disciplinary decision. O'Hear explained that he failed to fully consider Rule XVI, Section 14 because only a portion of the text of that Rule had been provided during the initial deliberations.
¶ 8 O'Hear's full explanation is set out here:
The Board voted to reconsider its decision in a closed session. Following the closed session, the Board publically announced its decision to discharge Schoen. Schoen's counsel was present for the entirety of the hearing and objected to the Board reconvening and reconsidering its earlier decision.
¶ 9 In a written decision, the Board detailed its findings of fact, its analysis of each just cause factor, and the statutes implicated. In discussing its reasoning for Schoen's discharge, the Board concluded that Rule XVI, Section 14, and WIS. STAT. § 62.50(17)(a),
¶ 10 In Schoen's certiorari proceeding, he argued that: the Board acted beyond its jurisdiction when it reconsidered its decision to suspend him and that the Board was politically pressured into changing its decision, thus violating his due process rights.
¶ 11 The circuit court concluded that the Board had inherent authority to reconsider its decision to suspend Schoen, which was based on an error of law. Therefore, the Board did not act beyond its jurisdiction. After allowing Schoen limited discovery to attempt to substantiate his claim of political pressure on the Board, the circuit court concluded that Schoen's due process rights were not violated because the Board reconsidered in order to correct an error of law — not because of political pressure.
¶ 12 This appeal involves only Schoen's claim that the Board had no power to change its oral disciplinary decision.
¶ 13 Schoen argues: (1) that the Board did not have the inherent authority to reconsider its oral decision to suspend Schoen; (2) the Board exceeded its jurisdiction when it reconsidered its decision based upon an incorrect theory of law; and (3) Schoen's procedural due process rights were violated because he did not receive adequate notice that the Board would reconvene on December 11, 2012.
¶ 14 On certiorari, we review the decision of the Board, not the decision of the circuit court. See State ex rel. Sprewell v. McCaughtry, 226 Wis.2d 389, 393, 595 N.W.2d 39 (Ct.App.1999). Certiorari review involves a question of law, which we review de novo. See id. Certiorari review of a decision by an administrative body is limited to: (1) whether the body kept within its jurisdiction; (2) whether it proceeded on the correct theory of law; (3) "`whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment[;] and (4) whether the evidence was such that it might reasonably make the order or determination in question.'" See State ex rel. Gudlin v. Civil Serv. Comm'n of the City of West Allis, 27 Wis.2d 77, 82, 133 N.W.2d 799 (1965) (citation omitted). We review the extent of the Board's authority under the statutory scheme de novo. See Osterhues v. Board of Adjustment for Washburn Cty., 2005 WI 92, ¶ 12, 282 Wis.2d 228, 698 N.W.2d 701.
¶ 15 Schoen argues, essentially, that the Board has no power to reconsider
¶ 16 In the statutory scheme for making disciplinary decisions, the legislature has specifically assigned how to make those decisions to the Police Chief and to the Board in WIS. STAT. § 62.50(17).
¶ 17 It is undisputed that there is no specific reference to reconsideration in WIS. STAT. § 62.50. Correcting a mistake of law is neither specifically authorized nor specifically prohibited, but compliance with the specific standards imposed on the Board by statute is certainly expected by the legislature.
¶ 18 WISCONSIN STAT. § 62.50(17)(b) charges the Board with the responsibility of making a "just cause" determination of grounds for discipline based on consideration of seven specific factors, four of which involve the Board deciding whether the Police Chief's conclusions were "reasonable." See id. If the Board finds just cause for discipline, WIS. STAT. § 62.50(17)(a) requires the Board to decide "whether the good of the service requires that the accused be permanently discharged or be suspended without pay for a period not exceeding 60 days or reduced in rank." See id. The statutes do not require the Board to consider whether the discipline the Police Chief imposed was "reasonable." Rather, the statutes require the Board to decide what discipline "the good of the service" requires. As O'Hear explained, it was his erroneous failure to consider the statutory "the good of the service" requirement, which led to the Board's error of law.
¶ 19 The authority to reconsider a decision based on an error is implicit in such grant of authority to a quasi-judicial body. See Goldberg v. City Milwaukee Bd. of Zoning Appeals, 115 Wis.2d 517, 522, 340 N.W.2d 558 (Ct.App.1983) ("`[V]iewing the board of appeals as a quasi-judicial tribunal, the general rule is that such a board is not vested with the power to reopen and rehear a proceeding which has once been terminated, at least in the absence of mistake in the prior proceedings.'") (citation omitted; some emphasis omitted; emphasis added; brackets in Goldberg); State v. Cummings, 199 Wis.2d 721, 736, 546 N.W.2d 406 (1996) ("A grant of jurisdiction by its very nature includes those powers necessary to fulfill the jurisdictional mandate."). A quasi-judicial body is defined as "having a partly judicial character by possession of the right to hold hearings on and conduct investigations into disputed claims and alleged infractions of rules and regulations and to make decisions in the general manner of courts."
¶ 20 Our conclusion that the Board, a quasi-judicial body, had the inherent authority to reconsider its decision is supported by long-standing Wisconsin precedent. It is a fundamental and basic principle of administrative agency law that "`an administrative agency has the power to reconsider its own decisions since the power to decide carries with it the power to reconsider.'" City of Oak Creek v. PSC, 2006 WI App 83, ¶ 27, 292 Wis.2d 119, 716 N.W.2d 152 (citation omitted). Wisconsin has long acknowledged this concept,
Lindas, 183 Wis.2d at 564-65, 515 N.W.2d 458 (citation omitted; final set of brackets in Lindas).
¶ 21 Schoen contends that the phrase "at once" in WIS. STAT. § 62.50(17)(a)
¶ 22 Here, a reading of WIS. STAT. § 62.50 as urged by Schoen would require us to uphold a decision based on a mistake of law — a mistake the Board itself acknowledged and corrected. An administrative agency may not disregard the legal standards that govern the performance of its duties. Rickaby v. DHSS, 98 Wis.2d 456, 461-62, 297 N.W.2d 36 (Ct.App.1980). The Board was required, both by Rule XVI and WIS. STAT. § 62.50(17)(a), to select a specific discipline based on the "good of the service." O'Hear acknowledged that he mistakenly relied upon "an open-ended reasonableness test" when he initially voted to suspend Schoen. The only way to correct the Board's mistake was to reconsider its disciplinary decision based on the correct standard — § 62.50(17)(a). Where a quasi-judicial agency reaches a decision
¶ 23 Schoen argues that he was denied procedural due process because the Board "deprived him of both the right to make a full defense and meaningful appellate review" when it reconsidered its decision to suspend him. Schoen's counsel contends that he was not given notice of the Board's decision to reconvene on December 11, 2012. However, there is evidence that Schoen's counsel spoke with the Hearing Examiner and the City Attorney on December 10, 2012, and objected to the hearing. Moreover, Schoen's counsel was present at the December 11 hearing.
¶ 24 "Generally, the fundamental or essential requirement of procedural due process of law is notice and hearing, that is opportunity to be heard either before a court or the administrative agencies." Mid-Plains Tel., Inc. v. PSC, 56 Wis.2d 780, 785-86, 202 N.W.2d 907 (1973). Here, pursuant to Board Rules and Wisconsin Statutes, Schoen had both notice and a hearing on the original charge and on the discipline recommended by the Police Chief. Schoen's counsel presented a defense to the charge — namely, that Schoen was trying to protect himself. Schoen's counsel objected to the Board's decision to reconvene and was present at the December 11, 2012 session. Any error in the notification process was thus de minimis. See Union State Bank v. Galecki, 142 Wis.2d 118, 417 N.W.2d 60 (Ct.App.1987) (competitor's allegation that Banking Review Board's procedure for ruling on applicant's application for branch bank violated competitor's right to due process of law due to lack of notice and lack of opportunity to participate was rejected because the record reflected competitor's participation in the hearing); Poncek v. Poncek, 121 Wis.2d 191, 358 N.W.2d 539 (Ct.App.1984) (wife's failure to serve an order for husband's appearance was harmless error where the record reflected that husband had actual notice of the hearing).
¶ 25 The entire December 11, 2012 proceeding focused on a specific legal issue, namely, the proper legislative criteria for imposing a disciplinary sanction. See WIS. STAT. § 62.50(17)(a). Schoen's counsel has advanced numerous legal arguments before this court that essentially challenge the Board's power to correct its legal error. We are not told what additional legal arguments counsel would have made to the Board that have not been made here. We have explained why we conclude that the Board, acting here as a quasi-judicial body, had the inherent authority to correct its error of law. Consequently, we find Schoen's procedural due process rights were not violated based on the facts before us.
¶ 26 Were we to hold that this quasi-judicial body is powerless to correct its
Order affirmed.