Susan L. Baldwin and Leverett F. Baldwin, Plaintiffs-Appellants,
Milwaukee County and Employees' Retirement System of the County of Milwaukee, Defendants-Respondents.
from an order of the circuit court for Milwaukee County No.
2015CV9354: TIMOTHY G. DUGAN, Judge.
Lundsten, P.J., Blanchard and Fitzpatrick, JJ.
Many employees of Milwaukee County have the right to pension
benefits through the Employees' Retirement System of the
County of Milwaukee (ERS), which is overseen by a Pension
Board. Susan Baldwin was an employee of Milwaukee
County. At the time of Baldwin's retirement in
2003, the Pension Board approved her monthly pension payment,
and Baldwin started receiving that approved monthly payment
in 2003. In 2014, the ERS informed Baldwin of the following:
a mistake had been made by the ERS in 2000 in determining her
eligibility to receive certain service credits and that error
affected the Pension Board's 2003 determination of her
monthly pension payment; as a result, the pension payments
Baldwin received were incorrect; and she had received
overpayments totaling approximately $223, 000. In 2015, the
ERS informed Baldwin that her monthly pension payment would
be reduced significantly to adjust for the service credit
error and to recoup the overpayments. In 2015, Baldwin
appealed to the Pension Board the ERS's determinations
that she was ineligible to receive the service credits and
that her monthly pension payments would be reduced to account
for the service credit mistake and to recoup the
overpayments. Baldwin's appeal was denied by the Pension
Board. Baldwin sought certiorari review of the Pension
Board's decisions in the Milwaukee County Circuit Court,
and the circuit court affirmed the Pension Board's
decisions. Baldwin appeals.
On appeal, Baldwin, for the first time, concedes that the
Pension Board was correct when it decided that Baldwin was
not eligible to receive the service credits. We accept that
concession and, on that basis, affirm the circuit court in
this respect. However, we agree with Baldwin that, pursuant
to a time limitation contained in Pension Board Rule 1001,
the Pension Board no longer had the authority in 2015 to
reduce Baldwin's monthly pension payments. Accordingly,
we affirm in part, and reverse in part, the order of the
circuit court, and remand this matter to the circuit court
with directions that it remand to the Pension Board for
proceedings consistent with this opinion.
There is no dispute as to the following facts. Baldwin was
employed by Milwaukee County from April 1984 to September
2003. Of importance to this dispute is that Baldwin was also
employed by Milwaukee County for about seven weeks in 1969.
Milwaukee County administered a "Reinstatement
Program" which gave County employees an opportunity to
purchase, for the purpose of pension calculations, service
credits for prior, non-continuous years of service. Milwaukee
County and the ERS notified County employees, including
Baldwin, of the program. In 1999, Baldwin made a request to
purchase additional service credits based on her 1969
short-term employment with Milwaukee County.
In 2000, Robert Ott, then Corporation Counsel for Milwaukee
County, circulated a memorandum which approved Baldwin's
request and concluded that: Baldwin was employed by Milwaukee
County in 1969; and Baldwin "should be allowed to buy
back" service credits "as provided for in the
Pension Board rules." A short time later, the ERS sent
Baldwin a letter offering her service credit for her 1969
period of employment in exchange for a payment from Baldwin.
Baldwin accepted the offer and paid the amount the ERS
requested. The ERS accepted Baldwin's check and made the
corresponding time of service credit adjustment. The time of
service credit adjustment had the effect of changing
Baldwin's employment start date from 1984 to 1969. As a
result, different rules, advantageous to Baldwin, applied to
the calculation of her pension benefits.
As Baldwin neared retirement, she received written
confirmation from the ERS that her ERS enrollment date had
been adjusted from 1984 to 1969. In 2003, Baldwin retired
from her county position and, at its October 2003 meeting,
the Pension Board determined that Baldwin's monthly
pension payment would be $4, 198.
In 2007, the ERS and Milwaukee County filed a Voluntary
Correction Program application with the Internal Revenue
Service and therein self-reported operational errors
regarding, among other things, overpayments to retirees. Also
in 2007, Baldwin and other pensioners received letters from
the ERS stating that, as a result of those errors reported to
the IRS, their pension benefits may need to be reevaluated.
At that time, the ERS took no action to modify Baldwin's
benefits and did not inform Baldwin how, or even if, the ERS
might take action to change her benefits.
In 2014, the ERS sent Baldwin a letter advising her that her
purchase of the service credits in 2000 was invalid and her
monthly pension benefit would be recalculated. But, that
letter did not state how much Baldwin's payment would be
In February 2015, the ERS informed Baldwin that her monthly
pension payment determined by the Pension Board in 2003 would
be reduced from her then-monthly pension benefit of $5, 121
to $3, 705. Additionally, the ERS took the position
that Baldwin had been overpaid monthly pension benefits since
October 2003 and informed Baldwin that she must repay $223,
209 to the ERS.The ERS also advised Baldwin that the
amended $3, 705 monthly pension payments would be further
reduced by fifty percent to $1, 852 until the overpayment
amount was recovered in full by the ERS.
Baldwin appealed to the Pension Board the rescission of the
service credits, the ERS demand for her to remit the
overpayment, and the proposed reduction of her pension
payments. Among other arguments, Baldwin contended that,
under Pension Board Rule 1001, the Pension Board had only one
year from the date on which the Pension Board determined her
benefits in 2003 to address any errors related to her pension
payment and, accordingly, the Pension Board no longer had the
authority to reduce her pension payments.
On March 31, 2015, the Pension Board issued a written
decision denying Baldwin's appeal. The Pension Board
decided that Baldwin was not employed in 1969 in a position
that gave her an option to enroll in the ERS at that time
and, consequently, she was ineligible to purchase the service
credits. The Pension Board also rejected Baldwin's
interpretation of Rule 1001. As a result, the Pension Board
directed that: Baldwin's purchase of the service credits
was rescinded; her monthly pension payment was reduced to $1,
852 per month to reflect her reduced pension and to provide
repayment of the overpayments; and, after the overpayments
were fully repaid, Baldwin's monthly benefit will be $3,
Baldwin filed a petition against the ERS and Milwaukee County
in the Milwaukee County Circuit Court seeking certiorari
review of the Pension Board's decisions. The circuit
court affirmed the Pension Board's decisions. Baldwin now
Other material facts will be mentioned in particular parts of
the discussion which follows.
Baldwin argues in her brief-in-chief that we should reverse
the Pension Board's decisions that Baldwin was not
eligible to purchase the service credits, and the Pension
Board's related decision to reduce Baldwin's monthly
pension payments to correct for the service credits mistake
and to recoup the overpayments. First, based on a concession
in Baldwin's reply brief, we affirm the circuit
court's decision concluding that the Pension Board was
correct in deciding that Baldwin was not eligible to purchase
the service credits. Second, we conclude that the plain
language of Pension Board Rule 1001 establishes that the
Pension Board no longer had the authority in 2015 to reduce
Baldwin's pension benefits to correct for the service
credits mistake. Therefore, the Pension Board erred by
reducing Baldwin's pension payments and determining that
Baldwin must reimburse the ERS for the overpayments.
Standard of Review and Interpretation of Ordinances and
This dispute comes before us through common law certiorari
review, a procedure in which a court tests the validity of a
decision rendered by, as an example, a municipal board such
as the Pension Board. See Ottman v. Town of
Primrose, 2011 WI 18, ¶34, 332 Wis.2d 3, 796 N.W.2d
411. In certiorari review, we review the decision of the
Pension Board and not that of the circuit court. State
ex. rel. Harris v. Annuity & Pension Bd., 87 Wis.2d
646, 651, 275 N.W.2d 668 (1979). Our review is limited to:
(1) whether the Pension Board kept within its jurisdiction;
(2) whether the Pension Board proceeded on a correct theory
of law; (3) whether its action was arbitrary, oppressive or
unreasonable and represented its will and not its judgment;
and (4) whether the evidence was such that the Pension Board
might reasonably make the order or determination in question.
See Ottman, 332 Wis.2d 3, ¶35; see also
Lamar Cent. Outdoor, Inc. v. Board of Zoning Appeals of City
of Milwaukee, 2005 WI 117, ¶¶15-16, 284 Wis.2d
1, 700 N.W.2d 87 (certiorari review of the decision of a
board created by the City of Milwaukee).
In certiorari review, there is a presumption of correctness
and validity to a decision of a board created by a
municipality. Lamar Cent. Outdoor, Inc., 284 Wis.2d.
1, ¶16. However, affording that presumption of
correctness does not "eviscerate[ ] meaningful
review." Ottman, 332 Wis.2d 3, ¶51.
Generally, the interpretation and application of an ordinance
to an undisputed set of facts is a question of
Id., ¶55; Marquardt v. Milwaukee Cty.,
2000 WI.App. 77, ¶10, 234 Wis.2d 294, 610 N.W.2d. 496.
However, "[a]n interesting question arises when a court
is asked on certiorari to review a municipality's
interpretation and application of its own ordinance."
Ottman, 332 Wis.2d 3, ¶55. When, as here,
"the municipality's ordinance appears to be unique
and does not parrot a state statute but rather the language
was drafted by the municipality in an effort to address a
local concern ... we will defer to the municipality's
interpretation if it is reasonable." See id.,
¶60. This does not mean that the Pension
Board's interpretation here is reviewed "without a
critical eye." See id., ¶61 (quoting
Racine Harley-Davidson, Inc. v. State Division of
Hearings & Appeals, 2006 WI 86, ¶15, 292 Wis.2d
549, 717 N.W.2d 184). A municipality's interpretation of
its own rules and applicable ordinances is unreasonable if it
is, as examples: (a) contrary to law; (b) clearly contrary to
the intent, history or purpose of the ordinance; (c) without
a rational basis; or (d) the interpretation "directly
contravenes the words of the ordinance" or rule. See
"The rules for the construction of statutes and
municipal ordinances are the same." Bruno v.
Milwaukee Cty., 2003 WI 28, ¶6, 260 Wis.2d 633, 660
N.W.2d 656 (quoting County of Columbia v. Bylewski,
94 Wis.2d 153, 169 n.7, 288 N.W.2d 129 (1980)). We start with the
language of the applicable ordinances or rules. Id.,
¶7. If the meaning of the ordinance or rule is clear,
then a court need not look to rules of statutory construction
or other intrinsic aids. Id. Rather, "a court
should simply apply the clear meaning of the [ordinance or
rule] to the facts before it." Id. (quoting
UFE, Inc. v. LIRC, 201 Wis.2d 274, 281-82, 548
N.W.2d 57 (1996)). Words in an ordinance or rule must be
given their common meaning. Id., ¶8. Technical
words or phrases with a peculiar meaning in the law must be
construed according to such meaning. Id., ¶20.
We now turn to the question of whether Baldwin was eligible
to purchase the service credits.
Baldwin's Purchase of Service Credits.
In her brief-in-chief, Baldwin asserts that the Pension Board
erred when it decided that she was not eligible to purchase
the service credits based on her 1969 short-term employment.
The Pension Board takes the position that Baldwin has not
presented a developed argument supporting the view that this
determination of the Pension Board was
incorrect. We agree that Baldwin has presented no
developed argument on this point. Moreover, in her reply
brief, Baldwin concedes that there is substantial evidence in
the record to support the Pension Board's decision that
she was ineligible to purchase the service credits.
Therefore, we do not address the merits of this issue.
Rather, we deem Baldwin to have conceded this issue and, on
that basis, affirm the circuit court's decision affirming
the Pension Board's 2015 decision that Baldwin was not
eligible under Milwaukee County General Ordinances and
Pension Board rules to purchase the service credits. In
addition, regardless of whether Baldwin was eligible to
purchase the service credits, we conclude, pursuant to a time
limitation contained in Pension Board Rule 1001, that the
Pension Board no longer had the authority in 2015 to reduce
Baldwin's monthly pension payments.
Pension Board Rule 1001 reads as follows:
Action of board final after one year.
All actions of the board affecting the status of rights of
any individual employe or his beneficiaries shall be
considered to be final after expiration of one (1) year from
the date such action was taken.
argues that, based on this language, the Pension Board's
2003 decision which set her monthly pension payments was a
Board "action" that became "final" in
2004, and, accordingly, the Pension Board had no authority in
2015 to reduce her payments to correct for an error or to
recoup overpayments. In response, the Pension Board contends
that: (1) the 2003 Pension Board decision was a "routine
ratification" rather than an "action"; (2)
Rule 1001 is not applicable unless the Pension Board takes
"action, " and the Board never took any
"action" on Baldwin's purchase of the service
credits; (3) even if the Board's decision was an
"action, " Rule 1001 cannot be read as Baldwin
argues because the Pension Board must be able to correct
mistakes found more than one year after an action is taken by
the Board; and (4) there will be adverse federal tax
consequences to the Milwaukee County retirement system if
Rule 1001 is interpreted to bar the ERS from collecting
overpayments from Baldwin.
We conclude that, pursuant to the plain language of Pension
Board Rule 1001, the Pension Board did not have the authority
in 2015 to reduce Baldwin's pension payments to correct
for the service credits error and to recover related
overpayments because the Pension Board's 2003 decision
setting the amount of Baldwin's monthly pension payment
was an "action" that became "final" in
2004. We reject the Pension Board's various
interpretations of Rule 1001 because those interpretations
are not reasonable, and we reject the Pension Board's
assertion regarding the alleged adverse federal tax
The Pension Board Took "Action" in 2003 and That
Action Became "Final" in 2004.
Baldwin argues that, under Rule 1001, the Pension Board did
not have the authority in 2015 to reduce her monthly pension
amount. We agree and now discuss why we conclude that the
powers and duties of the Pension Board, the events of the
October 2003 Pension Board meeting, and the elements of Rule
1001 demonstrate that the decision at the October 2003
meeting regarding Baldwin's pension payment was an
"action" of the Pension Board, and that action
became "final" in October 2004.
Powers and Duties of the Pension Board.
The applicable Milwaukee County General Ordinances and
Pension Board rules set forth the powers and duties of the
Pension Board. Milwaukee County General Ordinance
(M.C.G.O.) § 201.24 is lengthy, detailed, and governs
the ERS. Section VIII of M.C.G.O. § 201.24 concerns
administration of the ERS, and portions of Section VIII are
pertinent to our analysis. M.C.G.O. § 201.24(8.1)
The general administration and responsibility
for the proper operation of the retirement system
and for making effective the provisions of this ordinance are
hereby vested in a [Pension Board] ….
added.) M.C.G.O. § 201.24(8.6) is entitled "Rules
and regulations" and reads:
Subject to the limitations of this ordinance, the
[Pension Board] shall, from time to time, establish
rules and regulations for the administration of the
funds created by this ...