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Board of Regents of the University of Wisconsin System v. State6/28/2002
ction. Brenon, however, continued his argument on the objection. He asserted that he had not been charged with any misconduct on the issue and that the issue had not been included in the notice of hearing. After a recess, Commissioner Murphy sustained the objection and excluded the evidence. UWM made an offer of proof on the issue, during which Commissioner Murphy specifically asked whether it had been UWM's intent to present the document evidence in order to show just cause for terminating Brenon in June 1996. UWM answered affirmatively.
. In the proposed decision and order on damages, Commissioner Murphy concluded that the decision to exclude the evidence at the hearing "was proper." He stated that " o have ruled otherwise would have been in deprivation of appellant's [Brenon's] job property rights without due process of law."
. The Commission adopted the proposed decision and order. It also provided additional discussion on its decision to exclude the after-acquired evidence. Specifically, it concluded that this evidence, if admitted, would have unfairly required Brenon to address a significant new issue on which he had no prior notice. The Commission rejected UWM's arguments that Brenon had prior notice based on evidence in the record. Instead, based on this evidence, the Commission held that it was reasonable for Brenon to conclude that the document removal issue would be addressed in a pending replevin action seeking these documents or in a new disciplinary action following his restoration to his former job. The Commission declined to address the question of whether introduction of this evidence would violate the civil service code. It stated:
There is also a question as to whether it would violate the civil service code to sanction what would be in effect the retroactive addition of reasons for the discharge of the appellant. However, because the commission concludes that lack of notice precludes litigation of the issue of the missing documents at this point in the remedy process, it will not address the question of whether injecting this issue into this case at this time would violate the civil service code. (Citations omitted.)
. UWM moved for reconsideration. In support of its motion, UWM pointed to newly discovered documents that Brenon recently provided to UWM that had been at his home. UWM argued that Brenon should have disclosed these allegedly confidential documents in June 1996 and that this evidence provided a basis for the Commission to overturn its order for reinstatement and back pay. UWM also cited to McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), to support its argument that the after-acquired evidence should have been admitted at the remedy hearing.
. The Commission, however, held that the newly discovered documents did not provide a material difference to allow UWM to raise any issue surrounding the documents at that time. It maintained that UWM never raised the document removal issue before the remedy hearing and that it therefore waived this issue. The Commission also distinguished McKennon, noting that Brenon's case involved a discharge under the civil service code, requiring due process before any disciplinary action. Such a limitation on back pay based on subsequent misconduct, the Commission determined, would effectively amount to an unlawful retroactive discharge requiring notice. UWM, the Commission stated, could not now add additional reasons for discharge after its initial notice of termination, Brenon's disciplinary hearing, and the hearings before the Commission. The Commission relied on State ex. rel. Tracy v. Henry, 219 Wis. 53, 262 N.W. 222 (1935), in reaching its conclusion.
. UW
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