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Dietscher v. Pension Board of Employees' Retirement System of County of Milwaukee

Court of Appeals of Wisconsin, District I

June 25, 2019

Dennis Dietscher, Petitioner-Respondent,
v.
Pension Board of the Employees' Retirement System of the County of Milwaukee, Respondent-Appellant.

          APPEAL from an order of the circuit court for Milwaukee County No. 2017CV4717: REBECCA F. DALLET, Judge.

          Before Brash, P.J., Kessler and Dugan, JJ.

          DUGAN, J.

         ¶1 The Pension Board of the Employees' Retirement System of the County of Milwaukee (Board) appeals the trial court's order reversing the Board's decision to uphold the Board's prior revocation of former County employee Dennis Dietscher's pension benefits. It revoked his pension on the ground that his employment was terminated for "fault or delinquency."[1] The trial court found that the Board's application of the "fault or delinquency" provision was arbitrary, oppressive, and unreasonable and contrary to law and reversed the decision and remanded the matter to the Board.

         ¶2 On appeal, we review the Board's decision, not that of the trial court. The issues on appeal focus on the Board's interpretation and application of two sections of Milwaukee County's pension ordinance. The first ordinance, § 4.1(2)(a) provides for a special type of normal pension, [2] known as the Rule of 75. That Rule provides that a County employee is immediately eligible to receive a normal pension if the sum of the employee's age and years of credited County service equals or exceeds seventy-five. The second ordinance, § 4.5(1) provides, in part, that a County employee "shall be eligible for a deferred vested pension [DVP] if his employment is terminated for any cause, other than fault or delinquency on his part[.]"

         ¶3 On appeal, the Board argues that this court should affirm its revocation of Dietscher's pension because it reasonably interpreted and applied the ordinances to determine that Dietscher was ineligible to receive a County pension. We disagree.

         ¶4 On certiorari and on appeal, the Board's arguments are ever changing. Before the trial court, the Board argued that it rationally concluded that Dietscher was in a DVP status when he retired and that he was terminated for fault or delinquency. The Board's sole argument, that Dietscher was in a DVP status, was its "gap" theory described below.

         ¶5 By contrast, the Board now makes three arguments before this court-two of which were not made before the trial court. The Board argues as follows: (1) pursuant to § 4.5(1), Dietscher was eligible for a DVP because he was "discharged for cause," but because he was terminated for fault or delinquency he forfeited his eligibility for a DVP; (2) Dietscher was eligible for a DVP because there was a "gap" in his County service between the date when his employment ended and the date when he completed his retirement paperwork; and (3) ERS Rule 807 provides an independent source of jurisdiction for the Board to revoke Dietscher's pension.[3]

         ¶6 As we explain below, it is difficult to discern from the Board's decision what its reasoning was when it decided to revoke Dietscher's pension. Regardless, the Board's ever-changing arguments demonstrate that once it determined that Dietscher's conduct constituted fault or delinquency it also concluded, as it states in its brief, that "it would be grossly irresponsible for the Board to read the DVP Provision in a manner that allows Dietscher to collect one more cent from the ERS Trust and thereby add to the County's growing deficit." We conclude that the Board's decision and arguments show that the Board sought to find a way to comply with the County Executive's impassioned plea to find any avenue available to terminate Dietscher's pension.[4] Its decision was outcome oriented-to devise a means to revoke Dietscher's pension. To accomplish that outcome, the Board did not interpret the plain language of the ordinance and the rules. As a result, its decision was arbitrary and unreasonable and represented its will and not its judgment.

         ¶7 For the reasons stated below, we affirm the trial court's order reversing the Board's decision that upheld the Board's earlier revocation of Dietscher's pension.

         ¶8 Further, Dietscher asserts that this appeal is frivolous and has filed a motion for fees and costs pursuant to Wis.Stat. Rule 809.25(3) (2017-18).[5]

         BACKGROUND

         ¶9 Dietscher began his employment with Milwaukee County in September 1986. He was consistently employed in a supervisory position in the Risk Management Division of the County's Department of Administrative Services.

         ¶10 On February 19, 2014, Dietscher was arrested on several felony charges related to allegations of official misconduct, accepting bribes, and lying in connection with the hiring of contractors between 2009 and 2013. On February 20, 2014, the County placed Dietscher on paid administrative leave, "pending a fact-finding investigation into allegations relating to possible violations of Milwaukee County Civil Service Rules."

         ¶11 On February 28, 2014, Dietscher filed an emergency retirement application with the Division of Employee Benefits Employees' Retirement System (ERS). He elected a retirement date of March 1, 2014, and he completed his retirement paperwork on March 19, 2014.

         ¶12 On March 20, 2014, the Department of Human Resources prepared a report stating that Dietscher had "terminated" his employment to "retire" with an effective date of February 28, 2014. The ERS processed Dietscher's retirement application and by letter dated April 28, 2014, an ERS manager acknowledged that Dietscher's retirement was effective on March 1, 2014. At the Board's meeting on May 21, 2014, an ERS manager reported Dietscher's retirement to the Board. Dietscher began receiving retirement benefits.

         ¶13 On June 28, 2016, Dietscher entered guilty pleas to two counts of felony misconduct in office and was sentenced to prison. On October 10, 2016, the County requested that the Board revoke Dietscher's previously granted pension because his guilty pleas constituted "fault or delinquency" under the pension ordinance and rules. However, at its October 26, 2016 meeting, the Board voted to continue Dietscher's pension benefits.

         ¶14 By letter dated October 31, 2016, the County Executive asked the Board to reconsider its decision. The County Executive's letter stated that his administration had "retained counsel who researched any avenues available to terminate and recover these payments." The letter further stated, "Our attorney advised and proposed that a consideration of pension termination could be argued under the Fault and Delinquency standard in Section 807 of the Milwaukee County Rules of the Employee's Retirement System[.]"

         ¶15 On November 21, 2016, the Board heard Dietscher's case again and this time decided to revoke his pension. It also directed Retirement Plan Services (RPS) to stop Dietscher's benefits and recover the payments previously made to him. The Director of RPS sent Dietscher a letter notifying him that he was required to repay $186, 059.15.

         ¶16 On January 18, 2017, Dietscher appealed the Board's decision. On April 26, 2017, the Board heard his appeal and on May 10, 2017, the Board issued a decision upholding its previous revocation of Dietscher's pension benefits. Dietscher filed a petition for certiorari review in the trial court and in a written decision, the trial court reversed the Board's decision. This appeal followed.

         DISCUSSION

         ¶17 On appeal, the Board acknowledges that Dietscher initially qualified for retirement under the Rule of 75. However, it argues that Dietscher forfeited his pension under § 4.5(1) because his employment was terminated for fault or delinquency and for that reason the Rule of 75 no longer applied; that this court should affirm its termination of Dietscher's pension because as a result of a "gap" between his active service and the date he completed his retirement paperwork Dietscher only qualified for a DVP; and that ERS Rule 807 provides an independent source of jurisdiction for the Board to revoke Dietscher's pension. We will address each argument in sequence.

         ¶18 For the reasons stated below, we conclude that the Board's interpretation of § 4.5(1) is contrary to the plain language of the ordinance.[6]Further, the Board's decision consists of contradictory and inconsistent findings and conclusions and relies on the County's assertions, without any rational analysis or legal support.

         ¶19 We conclude that because the Board sought to find a way to comply with the County Executive's impassioned plea to find any available avenue to terminate and recover Dietscher's pension benefits, that the Board's decision was arbitrary and unreasonable, and represented its will, rather than its judgment.

         I. The standard of review and the law regarding the interpretation of ordinances and rules

         ¶20 This case comes before us as a common law certiorari review of the Board's May 10, 2017 decision upholding its prior revocation of Dietscher's pension. On certiorari review, we review the decision of the Board and not that of the trial court. See State ex rel. Harris v. Annuity & Pension Bd., 87 Wis.2d 646, 651, 275 N.W.2d 668 (1979).

         ¶21 This court reviews the record compiled by the Board to determine: (1) whether the Board kept within its jurisdiction; (2) whether the 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 Board might reasonably make the order or determination in question. See Ottman v. Town of Primrose, 2011 WI 18, ¶35, 332 Wis.2d 3, 796 N.W.2d 411.

         ¶22 "Wisconsin courts have repeatedly stated that on certiorari review, there is a presumption of correctness and validity to a municipality's decision." Id., ¶48. However, it does not follow "that affording the municipality a presumption of correctness eviscerates meaningful review." Id., ¶51.

         ¶23 Generally, the interpretation and application of an ordinance to an undisputed set of facts is a question of law. Id., ¶55. A reviewing court will defer to a municipality's own interpretation and application of its own ordinance, but a reviewing court still applies a "critical eye," rather than blindly accepting the municipality's interpretation. Id., ¶¶60, 61 (citation omitted). "A court will not defer to an interpretation that is unreasonable." Id., ¶61. For example, this court will not defer to an interpretation that is contrary to the law; clearly contrary to the intent, history, or purpose of the ordinance; without a rational basis; or directly contravenes the words of the ordinance. See id., ¶62.

         ¶24 Courts apply the same rules to construe statutes and municipal ordinances. Bruno v. Milwaukee Cty., 2003 WI 28, ¶6, 260 Wis.2d 633, 660 N.W.2d 656');">660 N.W.2d 656. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110. "Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." Id., ¶46. "'[W]hen a court construes an ordinance or statute, words must be given their common meaning.'" Bruno, 260 Wis.2d 633, ¶8 (citation omitted).

         II. The Board's May ...


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