Pension Revocation

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WI Court of Appeals – District I

Case Name: Dennis Dietscher v. Pension Board of the Employees’ Retirement System of the County of Milwaukee

Case No.: 2018AP518

Officials: Brash, P.J., Kessler and Dugan, JJ.

Focus: Pension Revocation

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 Board.

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 part[.]” 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.

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. 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.

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).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.