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Union president shocked by appeals court decision

By: Eric Heisig//October 1, 2013//

Union president shocked by appeals court decision

By: Eric Heisig//October 1, 2013//

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County employees who retire after a health benefit is taken away are not eligible to receive the benefit, even if it was promised when they were hired, according to a Wisconsin Court of Appeals decision issued Tuesday.

The opinion stemmed from a lawsuit filed in March 2012 over the loss of Medicare Part B premium reimbursements that would have gone to employees upon retirement. The lawsuit was filed by the Wisconsin Federation of Nurses and Health Professionals, Local 5001 and the Association of Milwaukee County Attorneys after the Milwaukee County Board in October 2011 took the reimbursements away from many employees by setting retirement deadlines in the wake of Act 10, which Wisconsin enacted in June 2011. Nurse Susan Schwegel and attorney Susan Jaskulski also were named as plaintiffs in the case.

Milwaukee County Circuit Judge Christopher Foley ruled in favor of the plaintiffs in September 2012, saying that benefits promised to an employee when they were hired remained in place unless the employee agreed otherwise. But the appellate court, in a 2-1 vote, reversed Foley’s ruling, explaining that employees have to actually retire before they are eligible for the benefit.

Citing a 2008 appellate opinion in a case where a Milwaukee city employee retired after a benefit was taken away, the appeals court said employees must actually retire to receive the benefits.

“As we have seen,” the decision, authored by appellate Judge Ralph Fine, states, “the union members’ inchoate eligibility for county payment of their Medicare Part B premiums did not mature into an entitlement because they did not retire before the deadlines, even though they could have.”

The ruling is another step in what many longtime union members see as a slow dismantling of the power they once wielded. Nurses union president Candice Owley said she was disappointed and shocked by the decision. Foley’s ruling was based on cases that had previously been upheld, she said, so the appellate court’s decision was unexpected.

“I think we are really surprised because we understood this to be settled law,” Owley said.

She said she hasn’t yet decided whether to appeal. The plaintiffs’ attorney, Jeffrey Sweetland of Hawks Quindel SC, said he still had to consult his clients before making that decision.

Association of Milwaukee County Attorneys President David Pruhs did not return a call Tuesday.

From a county standpoint, the ruling is an affirmation of the methods many counties are using to cut what they say are egregious healthcare and pension costs.

The county’s attorney in the case, Alan Levy of Lindner & Marsack SC, said the appellate court’s decision provides guidance on how to handle these cases going forward. The issue of benefits taking up government resources is something many counties have grappled with for more than a decade, he said, and really came to light when former Milwaukee County executive, now-Gov. Scott Walker, took office in 2002.

“Ever since 2002, there have been numerous cases at the county level of what to do with these,” Levy said. “The county is like any other employer. The cost of healthcare, in particular, is way out of balance from what it used to be. It has to be addressed.”

In a dissenting opinion, appellate Judge Joan Kessler agreed with Foley’s ruling, and said the other judges decided to give less weight to a collective-bargaining agreement between the unions that guaranteed the premium reimbursements.

The majority opinion offered the following response: “The dissent … points to no provision in any collective bargaining agreement that trumps the ordinances we uphold.”

The nurses union is involved in two other lawsuits against Milwaukee County that concern pension issues. One is awaiting an appellate court decision, while the other is in Milwaukee County Circuit Court.

— Follow Eric on Twitter

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