Kierstyn v. Racine Unified School District

Plaintiff-Appellant-Petitioner, John G. Kierstyn,

v. Indiana Insurance Racine District, Unified School Company Defendants-Respondents. Farrell, and Mike

Supreme Court 9, No. argument May July 97-1573. Oral 1999. Decided (Also 417.) reported in 596 N.W.2d the For there plaintiff-appellant-petitioner was Foley, John G. Shannon & Dye, Krohn by brief Shannon, S.C., Racine and oral G. argument by John Shannon. the

For there was a brief defendants-respondents Pollen, Crivello, J. Michele M. Raymond Ford by Carlson, Steeves, S.C., Mentkowski & Milwaukee and J. by Raymond Pollen. argument oral BRADLEY, WALSH J. The Peti- ANN ¶1. tioner, Kierstyn (Kierstyn), John seeks review of a published decision of the court of that affirmed appeals summary judgment grant in favor of circuit court's the District).1 (the School District the Racine Unified of employee Kierstyn argues аnd its ben- that the District specialist under Wis. not immune from suit are efits 893.80(4) employee gave § incorrect the when Stat. regarding we benefits. Because any employee's act does not fit the determine exception immunity, affirm the officer we appeals. court of summary judgment purposes this For of dispute. Both John and are not in

motion, the facts Kierstyns) Kierstyn (collectively, were Judith Kierstyn many years: by employed John the District for years (Kierstyn) over 27 and Judith as a librarian for (Mrs. years. Kierstyn) Kierstyn as a teacher for over 25 early Kierstyn diagnosed in the with cancer Mrs. was Kierstyn By part March of 1993 Mrs. became of 1993. continuing incapable a medical leave work and took of until her death late June From March of absence. Kierstyn regular year, teacher's received her Mrs. days salary through over the she had accumulated sick employee her tenure as an District. course of Kierstyn both as a 3. Mrs. received benefits municipal employee and as a with the District union System employee the Wisconsin Retirement with (WRS). shortly April, after Stat. ch. 40. In See Wis. working, Kierstyns Kierstyn met with Mrs. ceased specialist employed by District, Mike a benefits disability benefits Farrell, in order to discover what entitled to receive. Mrs. was 1 Dist., 221 Wis. 2d Kierstyn v. Racine School Unified (Ct. 1998) App. (affirming decision and order of 585 721 N.W.2d Marik, Wayne County, Hon. J. Circuit Court for Racine presiding). employed by

¶ 4. Farrell had been the District specialist providеd general since 1991. As a benefits he employees employ- information to District about their ment benefits and was often the first contact for employees sought who such information. Farrell was give employees authorized to the District's about their union benefits. agent not, however, He was an authoritatively

of the WRS and could not represent employees to District what WRS benefits they Notwithstanding were entitled receive. this generally disability fact, Farrell was aware of the WRS pamphlets relaying benefits, had from WRS informa- programs tion about office, WRS in his had WRS computer provide software that he used to benefit esti- employees, persons mates to the District's and knew of emplоyee at the WRS whom a District could contact specific order to obtain WRS benefit information. April meeting Kierstyns, ¶ 5. At the with the Kierstyn only apply Farrell misstated that Mrs. could disability upon depletion for WRS benefits of all of her available sick leave.2 This information was incor- Kierstyn applied rect.3 Mrs. could have for those actuality, In correctly Farrell contends that he told the Kierstyns apply that while Mrs. could for those bene April meeting, eligible fits at the time of the she would be receive those benefits until her sick leave was For exhausted. purposes summary judgment, the District invited the court to Kierstyn's assume that version of the facts correct. present purposes, participant For a WRS could receive one types disability survivorship of two benefits: a annuity pro and a non-annuitant The survivor benefit. former significantly greater participant. vided financial benefits to the However, disability survivorship annuity, in order to receive the participants applied prior It WRS needed to have to their death. survivorship annuity Kierstyns seeking was the that the were to receive. working However, in March. she ceased

benefits when eligible receive those bene- have been she would not leave. sick her available she exhausted fits until Kierstyns would that WRS Farrell also informed specific matters these information about more have directly. to contact WRS instructed them Kierstyns WRS, which ¶ did contact The Kier- tailored tо Mrs. estimates to them benefit mailed mailing styn. included estimates, the to the In addition disability application with instructions benefits for an disability explaining 16-page WRS ben- brochure part: pertinent read, in efits. The instructions BENEFIT DEATH BEFORE DISABILITY APPROVAL leave of absence employe or on you If are an active the Board 15,1991 and die before August or after on annuity benefit, your disability will your approves received your death we have granted prior if be certifying Report and one Medical your application very important . .It is therefore your disability. . as quickly as Reports the Medical be submitted your must also receive department The possible. you employ- ceased certification employеr's disability disability your your before ment due approved. benefit can be approved your disability benefit

Whether or amount of the impact on the can have a substantial your death. Death ben- payable upon death benefits on the disability benefit will be based efits from a may contact annuity you select. You option about how for further department calculated. death benefits are glancing estimates, Kier- at the 7. Aside from styn from the information he received did not read the Kierstyn apply WRS. Mrs. did not bene- fits at that time. Kierstyn's 8. About a week before Mrs. death,

Kierstyn again By met with date, Farrell. this there was little doubt that Mrs. soon would die. Kierstyn, assumption still under the incorrect Kierstyn disability Mrs. could not filе for benefits until days any her sick exhausted, were wanted to know of Kierstyn remaining available method to rid Mrs. of her days. again incorrectly sick Farrell stated that the sick completely filing leave must be exhausted before application with WRS.4 Kierstyn's

¶ Kierstyn 9. After Mrs-. death, filed application an for the benefits. Because the application prior had not been filed death, to her Kier- styn only was entitled to a non-annuitant survivor financially generous benefit and not to the more disa- bility survivorship annuity. Kierstyn

¶ alleging 10. suit, filed that Farrell negligence and the District were liable for common law negligent misrepresentation. The District filed a summary judgment, contending motion for that it and Farrell were immune from suit under Wis. Stаt. 893.80(4) (1997-98).5 § granted The circuit court concluding giving motion, that Farrell's act of informa- 4 statement, Much like his earlier disputes Farrell that he gave this incorrect information. 5 893.80(4) Wisconsin Stat. reads as follows: ‍​‌​‌‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​​‌​‌​​​​‍may brought against any No suit company organ- be volunteer fire 213, political corporation, governmental ized under ch. subdivision any agency officers, or thereof for the intentional torts of its offi- cials, agents employes may any brought against or nor suit be such corporation, agency company subdivision or or volunteer fire or against officers, officials, agents employes its or for acts done in the legislative, quasi-legislative, judicial quasi-judicial exercise of or

functions. discretionary than a ministerial act rather tion was one. appealed appeals and the court of 11. appeals The court of con- in a 2-1 decision.

affirmed giving awas of benefit advice cluded that Farrell's immunity "governmental" as a act, so he retained municipal employee decision under this court's County, Scarpaci 96 Wis. 2d v. Milwaukee (1980). concluding Judge dissented, Brown N.W.2d setting advising in an intimate act of a "client" that the "professional" "governmental" rather but was subject liability. was an act nature Kierstyn therefore petitioned this court for review. It that when this court is well settled summary applies judgment it

reviews motion Boss, 97 as the circuit court. Grams v. same standards (1980). 332, 338-39, 294 In this 2d N.W.2d Wis. Farrell, are to whеther case we asked determine immunity though negligent, munici- is entitled to as a pal employee § This under Wis. Stat. 893.80. legal application is a of a set of facts to a standard independently question the of we of law that review by legal determinations rendered the circuit court appeals. Thomack, 650, v. 210 2d court of Miller Wis. (1997). 658, 563 N.W.2d 891 enjoy employees immu- officers or Public liability nity injuries resulting from the from for any discretionary scope performance act the within of City governmental employment.6 v. of their Barillari of the are to the All further references to Wisconsin statutes noted. 1997-98 version unless otherwise 6Kierstyn differentiate between apparently does not say, That is District's and Farrell's conduct. to conduct 88 Milwaukee, 194 247, 257, Wis. 2d 533 N.W.2d 759 (1995); Olson, C.L. v. 701, 710, 143 Wis. 2d 422 N.W.2d Board, (1988); Regents, 614 Lister v. 72 Wis. 2d of (1976). applies regard- 300, 240 N.W.2d 610 This rule public employed by of less whether the official is by political state or municipality state, subdivision of the such as a Raymond, or school district. v. 80 Lifer (1977). 503, 511-12, 2dWis. N.W.2d immunity origins ¶ 14. Public officer traces its separate the common law and is from distinct guarantee sovereign immunity, constitutional of although the distinction is often overlooked.7 As a deri- governmental immunity law, vation of the common upon policy founded considerations that strike bal- public perform ance between of "the need officers to freely [and] right aggrieved their functions anof party Lister, to seek redress." 72 Wis. 2d at 300. Those policy largely protectiоn considerations focus on the of argue ought analyzed does not that the District's actions to be separately from theoretically Farrell's so that the District could subject immunity not, be while Farrell could or vice versa. See generally Andrade, Cavanaugh 290, 550 Estate v. 202 Wis. 2d of (1996) (drawing political N.W.2d 103 distinction between subdi conduct). public vision's conduct and official's years ago As we Regents, said in Lister Board v. Wis. of (1976): 282, 298-99, 2d Wis. 2d 240 N.W.2d 610 sovereign immunity principle The doctrine and the which immunity liability extends an officers from civil dam- ages separate concepts. are .[T]he two and distinct . state's sovereign immunity procedural from suit is in nature and arises immunity from the state constitution. The afforded officers respect performance functions, to the with their official on the hand, personal liability other is a substantive limitation on their damages derive, language is common It does not as the law. imply, sovereign immunity in some cases would from the state's IV, under art. sec. of27 the Wisconsin Constitution....

89 against legal public purse action and on the the through political public rather of officials restraint judicial Lister, in means. As we identified Wis. than 299, include: 2d at those considerations (1) in the influencing public The of officers danger by the threat of law- performance of their functions (2) suit; of effect which the threat the deterrent con- liability might have on those who are personal (3) service; sidering entering public the drain on (4) by aсtions; valuable time caused such the unfair- liability for subjecting personal ness of officials to (5) subordinates; feeling the acts of their are more procedures and removal ballot dealing appropriate methods with misconduct public office. Id. at 299. 893.80(4), gov- § Stat. 15. As outlined in Wis. immunity political relieves both a ernmental public pursu- officials from acts done subdivision and legislative, judicial, quasi- quasi-legislative, or ant to capacities. activity quasi- judicial To describe an as say activity judicial quasi-legislative or Lister, 2d involves exercise discretion. 72 Wis. at Spencer County, 641, 299; v. Brown 215 Wis. 2d (Ct. 1997). App. N.W.2d 222 immunity However, under Wis. Stat. years, § 893.80 is not absolute. Over the this court has exceptions immunity. recognized four offiсer Kierstyn Since contends that Farrell's actions fall exceptions, four we address each of within three of the exceptions separately three those below.8 exception, The fourth and the one that does not constitutes, immunity suggest conduct removes when Farrell's "malicious, engages negligent officer conduct that is Duty Ministerial century, ¶ 17. For at least a the law has drawn discretionary acts, distinction between shielding and ministerial performer exposing of the former but liability. Barillari, latter to 257-58; 194 Wis. 2d at Ehly, 31, 41, v. Wis. Cords (1974); 62 2d 214 432 N.W.2d (*621), Salomon, Druecker v. 21 Wis. 628 637 (*630) (1867). The oft-cited summation of this most exception initially common was Lister, stated 72 Wis. 2d at 301:

A duty only officer's is ministerial when it is absolute, certain and imperative, involving merely performance of a specific task when the law imposes, time, prescribes defines the mode and occasion for its performance certainty with such nothing that remains for or judgment discretion. difficulty Kierstyn ¶ 18. The faces with this exception is that Farrell was under no that was imperative" "imposed], "absolute, certain and which prescribed] defined] time, mode and occasion performance." Kierstyn pointed any for its has statutory obligation Farrell faced under law Wisconsin employees regarding to advise the District's their WRS any obligation benefits or even similar faced he under arrangement his contractual with the District. See Cof- fey City Milwaukee, 526, v. 74 539, Wis. 2d 247 (1976) (ministerial by N.W.2d duties can arise stаt- contract). by ute or Olson, 701, 710-11,

willful and intentional." C.L. v. Wis. 2d (1988); Samore, 422 N.W.2d v. Ibrahim 118 Wis. 2d (1984). 728, 348 N.W.2d 554 seriously actuality, has not In ‍​‌​‌‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​​‌​‌​​​​‍obligated provide legally

argued Farrell was employees of the District. benefit WRS along posited Farrell's conduct all Rather, he has Farrell's because ministerial considered should be reading errant resulted from his incorrect unambiguous statute. a clear and of typically Kierstyn acknowledges a that 20. immunity public Farrell, is clothed as officer, such given applies facts, a set of statutes to that officer when partic- apply interpreting a will to how statutes as such argues, person. He 2d at 717-18. Olson, 143 Wis. ular judg- typical case because this is not a however, that interpretation, discretion, the hallmarks of ment and unambiguous. implicated where the statute are not argument, it, is that one does as we understand His unambiguous "interpret" statute, follows it. one an Kierstyn's argument accept ¶ 21. We cannot duty. unambiguous As creates a ministerial statute an duty public must arise from above, officer's noted a by obligation The was under law. District created some specialist. legal obligation In like to hire benefits no obligation legal to offer no fashion, Farrell was under employees of the District. to advice about WRS benefits 510; at 722; 80 Wis. 2d Olson, Lifer, 2d at See 143 Wis. Cavanaugh 290, 2d Andrade, v. 202 Wis. Estate of c.f. (1996); City v. Mil- Turner 300-01, 550 N.W.2d (Ct. 412, 421-22, 535 N.W.2d waukee, 2d Wis. 1995). App. argument there. end his does not no if Farrell was under that even

Rather, he maintains duty provide tо the WRS information ministerial choosing employees instance, his in the first District's duty provide to do so created a ministerial the cor- rect information.

¶ 23. It is that in true a select number of cases we have concluded that once officers choose in their they by duty act, discretion to are bound a ministerial example, to act in a certain manner. For in a series of involving highway signs, cases the erection of road this court determined that once officers make the discretionary place highway warning sign, decision to they duty place sign have a ministerial accord- ing specific placement. to the administrative rules for Dvorak, 102, Chart v. (1973). 57 Wis. 2d 203 N.W.2d 673 Major County, Also, in v. Milwaukee 196 Wis. (Ct. 1995), App. 939, 944-45, 2d 539 N.W.2d 472 appeals county court of that, concluded while a had parcel property negoti- discretion both to sell a and to signed ate sale, the terms of the it once a sales contract county pro- had a ministerial to adhere to the visions of the contract. provide

¶ 24. cases, however, These little aid to Kierstyn's they readily distinguisha- cause because are public Major ble. The officers in Chart and were duty they deemed to have ministerial not because They elected to act. duty were deemed to have a ministerial they subject because elected to act and the matter imposed specific legal obligations their of action on the they sаy, manner in which were to act. That is to these public they officers did not have to act if at all—but did they specific legal obligation act, choose to faced a to do prescribed so in a manner.

¶ result, 25. As a while the in officers legally obligated signs Chart were not to erect road in any particular place, they once did choose to erect signs, they obligated signs were to erect those in the specified by Chart, manner the rules and statutes. City Milwaukee, Raisanen v. See also Wis. 2d at 99. (1967). Like 513-14, 151 N.W.2d 2d 35 Wis. Major not were officers wise, while county property it obligated free to sell or were to sell they signed contract a sales terms, once on their own duty they to follow thе terms under a ministerial were Major, This 2d at 944-45. 196 Wis. of that contract. principle as contexts followed other has been same Metropolitan e.g., Sewer Co. v. See, Allstate Ins. well. age 10, 15-17, 258 N.W.2d 2d Comm., 80 Wis. (1977) discretionary; systems (design con is of sewer design according is to the of sewers struction ministerial). duty provide no to

¶ Here, Farrell was under 26. instance. Simi- in the first WRS benefit larly, provide WRS benefit to some Farrell elected once legal duty in a to do so under no information, he was according any particular particular rules. or manner Barillari, 194 Wis. 2d at 261-62. See really Kierstyn's argument is end, In the 27. any duty imposed Farrell on that the statute only negligently provide Farrell information, provisions interpreted of the statute. the clear any obliga- duty analysis not on ministerial focuses his imposed Farrell, rather on the on but the statute tion clarity. statute's argue the statute is clear However, to immunity. point the circuit court As miss the

is to aptly stated: duty had a argues] that Farrell

[Kierstyn really negligent. not to be due care and exercise however, the doctrine of That, what precisely from, i.e., liability due party insulates a immunity negligent. The fact they that have been to the fact negligent does may have been that certain conduct a a not transform that conduct into breach of minis- duty. duty terial The existence of a of care does not necessarily imply duty that the was ministerial. immunity implies Consideration of the issue of party may negligent. they the was or have bеen If not, they protection were would not need to seek the immunity. Immunity presupposes negligence and has no reason Kimps Hill, for existence without it. v. 200 Wis. 2d (1996). 11, 546 N.W.2d 151 may The and Far- statute have been clear may negligently applied it,

rell have but the statute did any not direct Farrell to act in manner. Farrell was duty. under no ministerial Danger

Known a 30. Even where officer's is not proscribed time, mode, in its and occasion so that noth- ing judgment, remains for the the factual officer's may clearly circumstances of case nevertheless require Anderson, v. a officer to act. Cords (1977). 525, 541-42, Wis. 2d 259 N.W.2d 672 This exception very having rarely one, is a limited ‍​‌​‌‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​​‌​‌​​​​‍been successfully. asserted exemplify

¶ 31. The facts of Anderson best extrаordinary necessary type events that will be trigger exception. They order to also demonstrate why sufficiently extraordinary: case is this Anderson,] manager park

[In of a state-owned subject liability negligence by failing was held for steps dangerous to take to warn of the condition posed by path open night hiking ran precipitous drop within inches of a into 90-foot gorge. park manager We concluded that because the terrain, dangerous position in a to of the was

knew it, he something yet nothing, did was do about holding Our in that case was liability. immune to "duty a so clear and so presented based on facts that it of a min- absolute that falls within the definition duty." isterial omitted). (citations light

Kimps, 2d In of Wis. at 15 200 facts, that these we concluded [tjhere stоps." a Ander- comes time when "the buck dangerous the at the was glen son knew terrain particularly night; position park at he was in a as something it; he manager to do about failed to do liable this anything about it. He is for the breach of duty.

Anderson, 80 Wis. at 541. 2d County, Similarly, in Domino v. Walworth (Ct. App. 488, 490-92, 118 1984), Wis. 2d N.W.2d police appeals of that a dis- the court concluded "duty patcher of under a so informed a downed tree was dispatcher legally the clear and absolute" that was obli- squad investigate gated police a the to send to person injured result, situation. As a a when his motor- against cycle a the downed tree could maintain suit hit government. the Olson, 2d the 33. As we said in 143 Wis. at exception only danger

known is еffective those cases compelling danger where the "nature of the known to the officer and is of such force By way compari- to officer has no discretion not act.” say possibility son, we cannot of reduced impose duty such benefits was "of force" necessity on Farrell to act. We do not believe that reasonably give benefit advice resembles either necessity necessity to warn of a 90-foot cliff or the investigate blocking roadway. a fallen tree See Kimps, 2d at 15 - 16. 200 Wis. See also Bauder v. Dela Dist., 310, 315-16, van-Darien School 207 Wis. 2d (Ct. 1996) App. (using N.W.2d 881 a deflated soccer ball physical present education class does not known danger injury). Scarpaci

The Rule Finally, Kierstyn argues ¶ 34. that even if Far- discretionary present rell's was did not danger, immunity known Farrell is not entitled to any part "professional" discretion on in because his was argument This nature. is based on our decision in Scarpaci, 96 Wis. 2d at 686-88. Scarpaci, discretionary

¶ In 35. we decided that performed by public only acts officers would be clothed immunity "governmental in if those acts involved dis- county result, cretion." As a we concluded that a perform autopsy medical examiner's decision to an was governmental an at exercise discretion. Id. 683-85. court, However, this concluded that the medical exam- immunity any negligence iner was not entitled to in performance autopsy. his of the Id. at 686. While we recognized per- medical examiner's method of forming autopsy discretionary nature, was we gov- [was] medical, concluded that the "discretion immunity. ernmental" and therefore not clothed in Id. Scarpaci ¶ decided, 36. Since 1981 when was this exception successfully only on two has been asserted occurring occasions, other in the medical context. both Co., 364, 369-70, 132 2d 392 Protic v. Castle Wis. (Ct. 1986) App. (post-surgical 119 care medical N.W.2d discretion); County, 2d v. Milwaukee 125 Wis. Gordon (Ct. 1985) App. (psychiatric 62, 67-69, 370 803 N.W.2d discretion). diagnosis and medical In Stann treatment 97 County, 808, 818, 161 2d 468 N.W.2d v. Wis. Waukesha (Ct. 1991), App. the court concluded that Scarpaci's further than the medical rule extends no setting. Kierstyn argues that Stann's limitation legitimate posits reason artificial one. He that no

an solely Scarpaci's limit rationale to medical exists to Kierstyn v. Racine School decisions. See also Unified (Ct. App. 563, 570, Dist., 221 Wis. 2d 585 N.W.2d 1998) (Brown, Kierstyn argues dissenting). Rather, J., interpreted exempting Scarpaci ought to be as immunity. "professional" See C.L. discretion from also (Ct. Olson, 224, 231, 2d 409 N.W.2d 156 v. Wis. 1987), App. 2d 422 N.W.2d 614 aff'd, Wis. (1988); Kimps, 2d at 17 - 18. but see 200 Wis. previously declined the invitation 38. We have Kimps, 2d at 19-20. to revisit the Stann rule. 200 Wis. unnecessary twice, it is to reach the We now do so as this if we issue order to resolve case. Even were Scarpaci inclined to conclude that should be inter- preted excluding "professional" as officer's immunity, discretionary acts from we would not specialist category. a within that include benefits specialist, ¶ 39. With the inclusion of a benefits Kierstyn's concept "professional" a of becomes Certainly exception that would swallow the rule. Far- expertise particularized area; all, rell had in a after he specialist. Scarpaci's However, if was a benefits rule beyond profession, the medical are confi- extends we "professional" dent that the term could not have as meaning Kierstyn vacuous a as would have it. parlance, professions ¶ 40. In the modern beyond theology, law, However, and medicine. extend generally thought ways profession of in similar to the Dictionary it: Webster's definition of calling requiring specialized knowledge and often long and preparation intensive including instruc- tion in skills and methods as well as in the scientific, historical, or scholarly principles under- lying such methods, skills and maintaining by force of organization or concerted opinion high standards conduct, achievement and and committing its members to study continued and to a kind of work which has for prime its purpose the rendering of public service.

Webster's Third New Int'l (unabr. Dictionary 1993) (quoted in Kittilstad, State v. 2d 204, Wis. (Ct. 214, 585 N.W.2d 925 App. 1998)); see also Black's Law Dictionary 1089-90 (5th 1979). ed. A benefits spe- cialist for District, as that position was described in a job in the posting record, would not fall within such a definition.9 result, As a even if we were to read Scarpaci as erasing immunity for acts of professional discretion, this expansion wоuld be of no avail Kierstyn. In sum, Kierstyn has not shown that Far-

rell's conduct fits any exceptions public officer posting That part: read in relevant Plan, organize supervise employee POSITION PURPOSE: programs directly

benefit cooperation the district both and in position reports with other administrators. This to the Assistant Superintendent, Personnel Services. QUALIFICATIONS: Degree years Bachelors with at least two experience special emphasis in Human Resources with in benefits management. ADDITIONAL DESIRED EXPERIENCE/TRAINING: Claims processing experience. Computer reporting analy- experience. Benefits/counseling experience. sis Knowledge of state programs e.g., Unemployment Compensation, and federal Compensation, Security, COBRA, Worker's Social and Wisconsin System. Retirement difficulty immunity. represents the that can This case immunity. By public all with officer be associated opportunity further accounts, is denied his remedy solely happened pursue legal a because Farrell employee municipality. of a Such a result is to be an of the ‍​‌​‌‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​​‌​‌​​​​‍harsh; however, such a result is reflection Ultimately, balancing policy considerations. of various 893.80(4) required by § a Wis. Stat. such result is interpreted Because the cases that have the statute. we immunity, affirm conclude that Farrell is entitled to we appeals. the court of

By appeals decision of the court of the Court.—The affirmed. (dissenting). BABLITCH, 42. A. J. WILLIAM vеry Kierstyn. also, This is a harsh result for Mr. It is my opinion, an incorrect result. Kierstyns

¶ 43. The asked a official for advice, the answer to which was in the statutes. The gave official them an erroneous answer. The Kierstyns, unfortunately, a followed advice. It was very costly Kierstyn: error to Mr. the difference approximately month, between $1100 $400 majority says month for the rest of his life. The Mr. Kierstyn will have to live with it. specialist, case, In this the benefits Michael legal obliga-

Farrell, undertook to do what he had no give Kierstyns regarding tion to do— regarding benefits. Because the statute when to WRS apply no for WRS benefits leaves room interpretation, Farrell, I would conclude that once give discretion, information, his deсided to he had a give ministerial correct information. Accord- ingly, I dissent. majority accurately public 45. As the states, employees liability

officers or are immune from for injuries arising any discretionary from act which the employee performs part officer gov- or as of his or her employment. Majority op. ernmental at 88. The majority accurately points also out that there are exceptions public employee immunity. to officer or performing Because I conclude that Farrell was a min- discretionary giving isterial rather than action in the Kierstyns regarding apply when to WRS benefits, I believe his actions fall within exception immunity. an to official explained majоrity opinion: 46. As in the

A public duty officer's only ministerial when it is absolute, certain and imperative, involving merely performance specific of a task when the law imposes, prescribes time, and defines the mode and occasion performance for its with certainty such nothing judgment remains for or discretion. Majority op. (quoting Regents, at 91 Lister v. Board of (1976)). 72 282, 301, Wis. 2d However, N.W.2d 610 employee if a officer or chooses, in his or her may discretion, to task, undertake a he or she have a duty carry ministerial out that task in accord with given rules or statutes. Chart v. Dvorak, 92, 57 Wis. 2d (1973) (relying 100-01, 203 N.W.2d 673 on Firkus v. (1964)). Rombalski, 25 352, Wis. 2d 130 N.W.2d example, For Chart, the court determined that once highway discretionary commissioners made the place highway warning sign, "they decision to had the duty place negligence." it and maintain it without Chart, 57 Wis. 2d at 100-01. Similarly, Major County ¶ 47. v. Milwaukee, (Ct. App. 1995), Wis. 2d 539 N.W.2d 472 appeals County determined that Milwaukee

court of parcel property, had discretion whether to sell a but "[o]nce those terms of sale were set and reified in the County contract,.. .the was under a ministerial County comply." Id. at 944-45. The was under an duty" imperative "absolute, certain and to not make a representation knowledge pres- that it had no of the affecting materials or ence of toxic conditions representation property unless such was true. Id. at presents ¶ 48. The case now before the court a majority point The is correct similar situation. to out legal obligation that the District had no to hire a bene- specialist specialist, hired, fits and the benefits once legal obligation provide employees had no to District regarding Majority op. with information WRS benefits. Major, However, at 92. as in Chart and once the bene- specialist provide chose, discretion, fits in his to such information, and where the statute leaves no room for interpretation, duty give he had a ministerial to the unambiguous provided in the statute. majority attempts distinguish

¶ 49. The to Chart Major by asserting governmental that once the they specific act, officials in these cases chose to had "a legal obligation proscribed to do so in a manner." Majority op. Chart, In at 93. once the оfficers signs, they obligated chose to erect certain were to do so specified by in accord the manner with certain rules Major, and statutes. Id. In once the officers parcel chose to sell a of land and entered a sales con- they tract, were under a ministerial to follow the majority attempts terms of the contract. Id. The provide case, reason in this that once Farrell chose to Kierstyns benefits information to the legal duty "he under was no particular according to do so a manner or any particular majority rules." Id. The reaches its despite very the clear directive of Wis. Stat. conclusion below)1 40.63(8)(f) participant (reprinted § that a may disability annuity apply as if the the WRS for day day paid though the last the last worked were payment employee to receive for sick time continues majority day its after the last worked. The reaches very despite conclusion the clear directive 40.63(8)(h) below)2 application (reprinted § that an for only disability depart- if benefits is deemed valid application applicant's before the ment receives unambiguous case, statutes, In death. this 40.63(8)(f) provides: Wisconsin Stat. § (f) employe's employer If an certifies that an date of termina- being past day employment tion of extended the last worked due leave, any payment compensa- vacation or for аccumulated sick time, tory participating employe may application file an for a day disability annuity day paid. as if the last worked were the last annuity, Regardless application disability date for a the date employment purposes date shall be of termination of effective day participant paid, deemed to the last for which the was be leave, including any payment for accumulated but if a annuity application application approved has been dies whose day worked, day paid, after the last the effective before the last but the death. date is date of 40.63(8)(h) provides: Stat. § Wisconsin (h) regarding applicant prior dies to the date a decision If an disability approval disapproval application of an for a benefit the or (5), application is deemed to have

becomes final under sub. the approved prior applicant's if: been to the death disability benefit; applicant eligible for the

1. The was application disability department the 2. The received an for department approved by one in the form the and at least benefit (l)(d); required qualifying medical certification under sub. written and applicant dies on or after the date which would have 3. The disability date of the benefit.

been the effective 40.63(8)(f) (h), nothing judgment § for or dis- and leave 2d at Lister, cretion. 72 Wis. 301. Cf. majority I not see the distinction that the 50. do attempts and create between this case Chart legal obliga- Major. Chart, In the officials had no Major, highway sign; in the the tion to erect legal obligation parcel to sell the of officials had no specialist present had no land; legal obligation case, in the the benefits regarding provide when Kierstyns. apply to the In benefits WRS specific task case the decision to take on the was each discretionary. Similarly, performance case the each Chart, ministerial. In the

the undertaken task was question that it was a factual court determined placement sign complied the of the with the whether Uniform on Traffic Control Devices for Streets Manual signs placed Highways required which be " hazard or condition 750 feet advance of the 'about (quoting Chart, .'" 2d at 100 the warned of. . . 57 Wis. Manual). ‍​‌​‌‌​‌‌‌‌​‌​‌​‌‌​‌​‌​‌‌​‌‌‌‌​​​​​‌​‌‌‌​​‌​‌​​​​‍Major, County represented In in its sales " knowledge that it had 'no notice or of. . .the contract any presence dangerous condi- or toxic materials or affecting property.'" Major, tions 196 Wis. 2d at contract). (quoting the sales The court determined County to not make this that the representation had ministerial "Simply put,

unless true. Milwaukee County representation should not have made the with- checking present case, its files." Id. In the out may unambiguously provides applicant statute that an disability annuity application file an for a before his or exhausted, her sick leave has been Wis. Stat. 40.63(8)(f), applicant's § do and failure to so before 40.63(8)(h). application § invalid, The death deems the specialist represented Kierstyns to the benefits disability annuity apply Mrs. could not Simply put, until after her sick leave was exhausted. representation Farrell should not have made the with- checking unambiguous out statute. Farrell, discretion, on the 52. Once his took Kierstyns providing

task of with information about apply benefits, when to provided for WRS unambiguous I statute, in an conclude that provide Farrell had a ministerial the correct Accordingly, dissent, information. I and would reverse appeals' the court of decision and remand the case to proceedings the circuit court for on the merits. ¶ 53. I am authorized to state that Justice N. joins Patrick Crooks this dissent.

Case Details

Case Name: Kierstyn v. Racine Unified School District

Court Name: Wisconsin Supreme Court

Date Published: Jul 9, 1999

Citation: 596 N.W.2d 417

Docket Number: 97-1573

Court Abbreviation: Wis.