932 N.W.2d 446
Wis. Ct. App.2019Background
- Dennis Dietscher, a long‑time Milwaukee County employee, filed an emergency retirement application Feb 28, 2014 (retirement effective Mar 1, 2014) after being placed on administrative leave following his arrest for felony charges. ERS processed the retirement and benefits began.
- Dietscher pled guilty to felony misconduct in office in June 2016 and was sentenced to prison. The County sought revocation of his pension under the ordinance provision disallowing deferred vested pensions (DVPs) for members whose employment was terminated for "fault or delinquency."
- The Pension Board initially continued benefits but, after pressure from the County Executive and counsel, reversed course and revoked Dietscher’s pension and sought repayment of benefits.
- Dietscher appealed; the Board upheld its revocation on May 10, 2017. The trial court reversed the Board as arbitrary and unreasonable; the Board appealed to the court of appeals.
- The court of appeals reviewed the Board’s interpretation and application of Milwaukee County pension ordinances (not the trial court’s decision) and concluded the Board acted arbitrarily and contrary to the ordinance language.
Issues
| Issue | Dietscher's Argument | Board/County's Argument | Held |
|---|---|---|---|
| Whether §4.5(1) (DVP eligibility) disqualifies members who were later found to have been terminated for fault or delinquency from normal retirement already granted under Rule of 75 | Dietscher: He qualified under Rule of 75 and thus was entitled to normal retirement; §4.5(1) does not strip an already qualified normal pension | Board: Read §4.5(1) to make members who were "terminated for any cause" eligible for DVP; if terminated for cause and then convicted, member is subject to forfeiture | Held: §4.5(1) plain language disqualifies persons terminated for fault from DVP, but does not convert a previously valid Rule of 75 normal retirement into only a DVP; Board’s reinterpretation was contrary to the ordinance and unreasonable. |
| Whether a "gap" between last day worked and completion of retirement paperwork converts a Rule of 75 retirement into a DVP | Dietscher: Retirement occurs the day after last day of employment once pension requirements are met (MCGO §2.19); no "gap" doctrine converts a qualifying normal retirement into a DVP | Board: There was a gap (between Feb 28 and Mar 19, 2014) so Dietscher did not retire "directly from active service" and thus was only a DVP member | Held: Rejected. "Directly from active service" is not in the ordinance; retirement definition controls and the Board’s gap theory yields absurd results and is inconsistent with ordinance. |
| Whether ERS Rule 807 supplied independent authority for revoking benefits after felony conviction | Dietscher: A rule cannot expand or contradict an unambiguous ordinance; Rule 807 cannot override §4.5(1) | Board: Rule 807 mandates review and forfeiture when a member is convicted of a felony substantially related to job duties | Held: Board conceded on appeal Rule 807 does not provide independent jurisdiction to revoke benefits inconsistent with the ordinance; court treated the concession as dispositive. |
| Whether the Board’s decision was arbitrary, oppressive, or represented its will rather than judgment | Dietscher: Board acted outcome‑oriented under Executive pressure, producing inconsistent findings and novel statutory readings | Board: Sought legal bases (gap, DVP reading, Rule 807) for revocation | Held: Board’s decision was arbitrary and unreasonable; the Board misapplied and rewrote ordinance language to achieve a desired outcome; appellate court affirmed trial court reversal. |
Key Cases Cited
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis.2d 633 (statutory interpretation principles; give words ordinary meaning and avoid surplusage)
- Ottman v. Town of Primrose, 332 Wis.2d 3 (review standards on certiorari of municipal decision; deference with critical eye)
- Bruno v. Milwaukee Cty., 260 Wis.2d 633 (ordinance retirement definition; court will not add words to ordinance)
- Baumeister v. Automated Prods., Inc., 277 Wis.2d 21 (standard for finding an appeal frivolous; resolve doubt in favor of nonfrivolous)
- Seider v. O'Connell, 236 Wis.2d 211 (administrative rule cannot conflict with controlling statute or ordinance)