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Board of Regents of the University of Wisconsin System v. State6/28/2002
M appealed the Commission's decision on the merits of the suspension and discharge and on the decision to exclude the after-acquired evidence to the circuit court (Case No. 99 CV 2959). Brenon appealed the Commission's decision on fees and costs to the circuit court (Case No. 00 CV 661). The cases were consolidated. The Circuit Court of Dane County, Judge Michael Nowakowski presiding, upheld the Commission's findings on the merits, concluding that the Commission's modifications to UWM's discipline of Brenon were reasonable. The court also affirmed the Commission's decision denying fees and costs to Brenon. The court, however, reversed the Commission's decision and order related to the back pay award. The court concluded that the Commission's refusal to consider evidence related to the document removal was an abuse of discretion. The court's decision was based in part on its conclusion that the Commission applied an incorrect rule of law by concluding that Tracy was applicable and by concluding that McKennon was inapplicable. It also concluded that the Commission failed to properly engage in a balancing of interests to determine whether the evidence was admissible in light of any surprise element of the evidence. The court remanded to the Commission for further hearings at which UWM would be permitted to offer evidence in support of its after-acquired evidence theory.
. The court of appeals certified this case to us. The court presented the following issue for certification: "whether the Personnel Commission is permitted to consider 'after-acquired evidence' when deciding the remedy for a civil service employee who was wrongfully discharged." We accepted certification on this issue and on the issue of whether Brenon is entitled to fees and costs.
II.
. We rephrase the first issue. The first issue is whether the Commission properly excluded evidence of Brenon's alleged misconduct when it was offered, without prior notice, during a hearing on damages to reduce the amount of back pay for Brenon's wrongful termination. We review the decision by the Commission, not the decision by the circuit court. Currie v. DILHR, 210 Wis. 2d 380, 386, 565 N.W.2d 253 (Ct. App. 1997).
. Admission of evidence is a matter of discretion with the Commission. J.I. Case Co. v. LIRC, 118 Wis. 2d 45, 48, 346 N.W.2d 315 (Ct. App. 1984). We uphold the Commission's discretionary decision if there is a reasonable basis for it. Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372 (Ct. App. 1987). A proper exercise of discretion must be based on facts appearing in the record and on the appropriate and applicable law. Id.
. Our review, like UWM's arguments, focuses primarily on the legal bases for the Commission's decision, in particular the civil service statutes and the due process clause. The Commission concluded that the attempted introduction of the after-acquired evidence on the alleged document removal amounted to a retroactive termination of Brenon. As a result, it excluded this evidence in part because UWM had not provided notice to Brenon as required under the civil service statutes and the due process clause. Our review of whether the Commission properly based its decision on this law requires a determination on a question of law, that is, whether UWM was required to provide notice, following due process and civil service statutory requirements, to Brenon before it could introduce this evidence during the remedy proceeding. We first resolve this question of law before we address the Commission's discretionary decision. We also examine the additional legal bases for the Commission's determination, namely the Tracy decision and waiver.
. We are not bound by an a
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