Victor E. Plantinga had mixed feelings about the outcome this week on the appeal of his client, former city of Waukesha fire chief Jesse Alba.
On one hand, Waukesha County Circuit Court Judge Lee S. Dreyfus on Monday, June 9, didn't rule that Alba should have his chief's position back.
Alba was demoted to the rank of firefighter by the Police and Fire Commission last fall for violating city and department policies that stemmed around him asking a part-time female employee to resign as a "solution" to an affair they had the year before.
On the other hand, Dreyfus also ruled that Alba's fundamental due process rights were violated during the disciplinary hearings held last year at City Hall and said that the case should return to the city level for a new hearing.
Dreyfus' ruling comes about a year after the issue was first filed with the city's Human Resources Department.
Plantinga, who was denied his request for back pay for Alba, said he was pleasantly surprised by Dreyfus' decision. The judge's decision comes a few weeks after both Plantinga and Alan Levy, the city's attorney, each made their case in front of Dreyfus.
"We're still alive and fighting," said Plantinga, Alba's attorney, as he was walking out of the courtroom at the Waukesha County Courthouse.
Disagreeing on demotion
Levy said the Police and Fire Commission was warranted in their decision to demote Alba, while Plantinga contested multiple aspects in the way the case was handled last year.
Dreyfus ultimately ruled that a new hearing should take place because the Police and Fire Commission consisted of the same members who hired Alba last spring and who were making the determination on Alba's discipline.
Dreyfus said that's a problem because of some of the differing opinions in the interview process. The commission felt that Alba was untruthful with them when they asked him during his interview if there was anything in his professional life that may reflect negatively upon his performance as chief.
However, during the disciplinary hearings, Alba and the commissioners disagreed over the exact nature of those questions.
"The circumstances here can't be described as anything other than unique," Dreyfus said. "Meaning literally it was April of last year he was part of the interview process and within a couple months of that point the city started its investigation."
Dreyfus acknowledged the members of the PFC were just doing a function of their job when presiding over the disciplinary hearings.
But Dreyfus added that Alba is entitled to a new hearing under the circumstances, and the decision should be made by a city group that hasn't already been involved in the issue. That way, the ruling body wouldn't try to rely on their memories, as PFC members may have done as a result of their role in the hiring process a few months earlier.
Dreyfus said the case would essentially be a fresh start with a new body presiding over the case.
"They could change or modify (the findings) and end up with a very different finding," Dreyfus said. "(It's) not limited to the prior findings."
The judge said finding a body to preside over Alba's new hearing would be up to the city.
"Some of this is in the city's control as to what charges they want to go forward with," Plantinga said.
He added he and his team will discuss with city officials as to what the next step will be.
"Certainly we'll be willing to talk to the city," Plantinga said. "We haven't made any decisions on what the road looks like going forward. I think they have some things to work out, too."
Levy and city officials present at Monday's hearings had no comment on Dreyfus' ruling.