from an order of the circuit court for Milwaukee County No.
2017CV4717: REBECCA F. DALLET, Judge.
Brash, P.J., Kessler and Dugan, JJ.
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." 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
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,  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
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
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
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.
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. 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.
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.
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).
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.
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
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.
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.
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.
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
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.
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.
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
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.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.
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.
The standard of review and the law regarding the
interpretation of ordinances and rules
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).
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.
"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."
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
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).
The Board's May ...