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Board of Regents of the University of Wisconsin System v. State6/28/2002
dministrative agency's conclusions when reviewing questions of law. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 244, 493 N.W.2d 68 (1992). Instead, we have applied three levels of deference to conclusions of law and statutory interpretation by an agency. Id. "First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to 'great weight.'" Id. Second, if the agency determination is very nearly one of first impression, the agency determination is entitled to "due weight." Id. Third, if the issue is one of first impression for the agency and the agency lacks special expertise or experience in its determination, our standard of review is de novo. Id. at 245.
. The Commission argues that it has experience applying constitutional standards of due process and therefore its decision on this issue should be accorded due weight deference. However, the issue before us is one of first impression, that is, whether standards on due process and the civil service statutes even apply, requiring notice, before UWM could introduce the after-acquired evidence on Brenon's misconduct. The Commission has not provided any support to show that it has experience in addressing this issue. As a result, we apply a de novo standard. In turn, we review this question independently, while benefiting from the analyses of the Commission and the circuit court. Auman v. School Dist. of Stanley-Boyd, 2001 WI 125, , 248 Wis. 2d 548, 635 N.W.2d 762.
. Applying a de novo standard, we conclude that UWM was required to provide notice to Brenon as contemplated by the civil service statutes and as required under due process before it could introduce evidence related to his alleged misconduct in copying and removing confidential documents from the UWM Police Department. Notice and a proper hearing addressing this misconduct is required to remain faithful to the due process interests of civil service employees in Wisconsin and to remain consistent with the policies of security of tenure and impartial evaluation prior to termination. See Watkins v. Milwaukee County Civil Serv. Comm'n, 88 Wis. 2d 411, 420, 276 N.W.2d 775 (1979).
. In reaching this conclusion, we distinguish McKennon, in which the United States Supreme Court allowed after-acquired evidence, but did so in the context of at-will employment. In McKennon, McKennon was discharged from Banner Publishing Company when she was 62 years old. McKennon, 513 U.S. at 354. She sued alleging that her discharge violated the Age Discrimination in Employment Act of 1967. Id. During a subsequent deposition, Banner discovered that McKennon had copied and removed several confidential documents. Id. at 355. A few days later, Banner terminated her (again) for removal and copying records. Id. After Banner conceded its discrimination, the District Court granted summary judgment to Banner and concluded that, because of her subsequent termination, McKennon was not entitled to any remedy, including back pay. Id. This judgment was affirmed on appeal. Id.
. The Supreme Court reversed, concluding that McKennon could obtain relief despite her employer's discovery of evidence to support her termination subsequent to her initial termination. Id. at 361-63. The Court's decision balanced competing interests: an employee's interest in deterring and gaining compensation for discriminatory conduct and the employer's interest in obtaining relief from an employee's inevitable discharge. Id. at 362. The employer, however, carried the burden when it sought to rely on after-acquired evidence. Id. at 362-63. In this respect, the Court stated that an employ
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