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Board of Regents of the University of Wisconsin System v. State6/28/2002
troduce evidence of misconduct to show termination to limit his award of back pay. As a result, UWM could not introduce evidence of his subsequent misconduct without adequate notice and hearing. Adequate notice and hearing must follow the due process requirements discussed in Loudermill. Such notice and hearing is consistent with policies of security of tenure and impartial evaluation prior to deprivation of this property interest in employment. See Watkins, 88 Wis. 2d at 420. UWM concedes that it did not provide any such notice to Brenon prior to its introduction of this evidence at the remedy hearing. Adequate notice should have been provided to Brenon at the time that UWM would have acted on the misconduct. The Commission relied on this lack of notice in justifying its decision to exclude the evidence. Lack of notice provided a reasonable basis for the exclusion of the evidence.
. Requiring notice in this case is consistent with Tracy, which the Commission also cited in making its determination. In Tracy, the state treasurer discharged several civil service oil inspectors without reason. Tracy, 219 Wis. at 55. The discharges, however, were found illegal. Id. In a subsequent investigation, the treasurer found that, for some of the inspectors, there had existed a just cause for their discharges at the time of the original illegal discharges, but that a reasonable time had expired for those inspectors to provide an explanation pursuant to Wis. Stat. § 16.24 (1933). Id. at 56. The treasurer therefore notified these inspectors of their subsequent discharges by letter. Id. Nevertheless, the circuit court ordered the treasurer to reinstate these inspectors as of the date of their original discharges, concluding that the subsequent discharges did not affect their rights to gain relief from the time of the original discharges to the time of the alleged subsequent discharges. Id. at 57-59. The primary question was whether the subsequent discharges defeated the court's reinstatement of these inspectors to the time of the original discharges. Id. at 59-60. The court held the subsequent discharges would not operate retroactively to be effective on the date of the original discharges, and that, even though valid, the subsequent discharges should not affect the reinstatements. Id. at 61, 63.
. For our purposes, the court's holding is important insofar as it showed that the subsequent discharges were valid because the treasurer complied with the notice requirements. See id. at 63 (the reinstatement could occur despite "just and valid causes for discharge" which were "effective upon compliance with the conditions precedent and the expiration of time prescribed under [Wis. Stat. § 16.24(1) (1933)]"). Thus, although Tracy does not discuss an after-acquired evidence question, it does lend support to the conclusion that notice must be provided on a subsequent discharge in order to limit back pay. Therefore, the Commission also appropriately cited Tracy as consistent with its holding in this case.
. Finally, the Commission appropriately relied on UWM's waiver as a legal basis in excluding the after-acquired evidence from the remedy hearing. Before the remedy hearing, Commissioner Murphy specifically enumerated the issues for discussion at the hearing. Extensive briefing by both parties followed. UWM never informed Brenon that it intended to present evidence related to Brenon's alleged document removal in order to limit its damages on back pay. As the Commission noted, UWM's evidence instead indicated that the document removal issue would be addressed during the replevin action or in a subsequent disciplinary action. As a result, UWM waived this issue.
. In sum, we conclude that the fact
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