Milwaukee Police Supervisors Organization v. City of Milwaukee

2023 WI 20SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1319
COMPLETE TITLE: Milwaukee Police Supervisors Organization, John
Cwiklinski, Cheryl Ferrill, Kimberlee Foster,
Dale Grudzina, April Hoffman, Joel Kujawa,
Christopher Lehner, William McKeown, Jason
Mucha, Brenda Nogalski, Tony Snow, Albert Carl
Sunn, Jr., William Welter, Mark Zaremba and Joe
Farina,
Plaintiffs-Respondents,
Milwaukee Professional Firefighters' Association
Local 215,
Intervenor-Respondent-Petitioner,
v.
City of Milwaukee and Milwaukee Employees'
Retirement System,
Defendants-Appellants.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 399 Wis. 2d 840, 967 N.W.2d 306(2021 – unpublished)
OPINION FILED: March 21, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Conen
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion for a
unanimous Court.
NOT PARTICIPATING:
ATTORNEYS:
For the intervenor-respondent-petitioner, there were briefs
filed by Christopher J. MacGillis, Sean E. Lees, and MacGillis
Wiemer, LLC. There was an oral argument by Christopher J.
MacGillis and Sean E. Lees.
For the defendants-appellants, there was a brief filed by
Patrick J. McClain, assistant city attorney. There was an oral
argument by Patrick J. McClain.
2
2023 WI 20NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1319
(L.C. Nos. 2018CV1274 & 2018CV6612)
STATE OF WISCONSIN : IN SUPREME COURT
Milwaukee Police Supervisors Organization, John
Cwiklinski, Cheryl Ferrill, Kimberlee Foster,
Dale Grudzina, April Hoffman, Joel Kujawa,
Christopher Lehner, William McKeown, Jason
Mucha, Brenda Nogalski, Tony Snow, Albert Carl
Sunn, Jr., William Welter, Mark Zaremba and Joe
Farina,
Plaintiffs-Respondents,
FILED
Milwaukee Professional Firefighters' MAR 21, 2023
Association Local 215,
Sheila T. Reiff
Clerk of Supreme Court
Intervenor-Respondent-Petitioner,
v.
City of Milwaukee and Milwaukee Employees'
Retirement System,
Defendants-Appellants.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion for a
unanimous Court.
REVIEW of a decision of the Court of Appeals. Reversed
¶1 REBECCA GRASSL BRADLEY, J. The Milwaukee City Charter
entitles firefighters injured on the job to duty disability
retirement (DDR) benefits, which provide monthly wage
No. 2019AP1319
replacement payments to firefighters unable to continue active
service. As with all pension benefits provided to City of
Milwaukee employees, the City of Milwaukee Employees' Retirement
System (MERS) administers DDR benefits. Under the Milwaukee
City Charter, MERS must pay an eligible DDR beneficiary a
percentage of the "current annual salary for such position which
he held at the time of such injury." MCC § 36-05-C-1-a.
"Current annual salary" is undefined in the Charter, and its
meaning is the subject of this dispute.
¶2 Under the 2013–2016 collective bargaining agreement
between Milwaukee Professional Firefighters' Association Local
215 and the City of Milwaukee (CBA1), certain Milwaukee
firefighters are entitled to a 5.8% "pension offset payment"
conditioned on an employee-paid pension contribution equal to 7%
of salary. Currently, all active Local 215 members make this
contribution, but DDR beneficiaries do not. Prior to 2017, MERS
included the pension offset payment in the "current annual
salary" for purposes of calculating the amount of DDR benefits.
In 2017, however, MERS excluded the pension offset payment from
the calculation of DDR benefits.
¶3 The Milwaukee Police Supervisors Organization (MPSO)
and Milwaukee Professional Firefighters' Association Local 215
(Local 215) challenged MERS's shift in policy. The circuit
All subsequent references to the CBA are to the 2013–2016
1
version.
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No. 2019AP1319
court2 granted summary judgment in favor of MPSO and Local 215.
The court of appeals reversed the circuit court's grant of
summary judgment to Local 215 but affirmed with respect to MPSO,
extinguishing MPSO's involvement in this appeal. Milwaukee
Police Supervisors Org. v. City of Milwaukee, No. 2019AP1319,
unpublished slip op., ¶24 (Wis. Ct. App. Oct. 5, 2021) (per
curiam).
¶4 Before this court, Local 215 argues the pension offset
payment must be included in the calculation of DDR benefits for
beneficiaries hired before October 3, 2011. We agree, and
therefore reverse the court of appeals. Under the CBA, the
current annual salary includes the 5.8% pension offset payment;
therefore, the plain language of the Charter requires MERS to
include the pension offset payment in the calculation of DDR
benefits.
I. Background
¶5 Chapter 36 of the Milwaukee City Charter, titled the
Employes' Retirement System Act (ERSA), establishes DDR benefits
for any firefighter whose duty-related injuries cause
disability. MCC § 36-05-3-c-1-a.3 The Charter entitles a
2The Honorable Jeffrey A. Conen, Milwaukee County Circuit
Court, presided.
3 MCC § 36-05-3-c-1-a provides, in relevant part:
(continued)
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No. 2019AP1319
qualifying firefighter each year to "75% of the current annual
salary for such position which he held at the time of such
injury." Id. A firefighter who sustains a career-ending
disability "that would impair the member's (retiree's) ability
to earn a livelihood" shall receive "90% of his current annual
salary" in DDR benefits each year. § 36-05-3-c-1-b.4 Although
the Charter does not define the phrase "current annual salary,"
the parties agree the phrase garners meaning from the CBA.
¶6 The process by which Local 215 members contribute
toward their pensions is established primarily in Articles 23
and 10 of the CBA. Article 23 requires each firefighter who is
a MERS member to contribute 7% of his "earnable compensation."
[A]ny fireman or policeman who shall become
disabled as the direct result of injury incurred
in the performance of one or more specific acts
of duty shall have a right to receive duty
disability benefit during the period of such
disability of an amount equal to 75% of the
current annual salary for such position which he
held at the time of such injury.
4 MCC § 36-05-3-c-1-b provides, in relevant part:
In the event however that such fireman or
policeman who is eligible to recover duty
disability has a disability involving the loss of
both eyes or the full loss of use of one eye and
one limb or the full loss of the use of 2 limbs
or an equivalent disability that would impair the
member's (retiree's) ability to earn a livelihood
and such disability is determined by majority
action of the medical panel or medical council,
then in such event the disabled fireman or
policeman shall receive a duty disability pension
of 90% of his current annual salary. . . .
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No. 2019AP1319
To compensate for this cost to the firefighter, Article 10 of
the CBA establishes "pension offset payments" in the amount of
5.8% of the biweekly wage, thereby increasing employees' taxable
compensation. Article 10 entitles only those employees who make
the member contribution to receive a pension offset payment.5
The parties agree DDR recipients cannot make the 7%
contribution, but they disagree whether the 5.8% pension offset
payment must be included as part of the "current annual salary"
used to calculate DDR benefits under ERSA.
¶7 Article 10 of the CBA also contains two sets of salary
grids detailing the biweekly wages of Local 215 members. One
set of grids (Section 10(C)) lists the wages for employees hired
before October 3, 2011. Another set of grids (Section 10(B))
lists the wages for those hired on or after October 3, 2011.
Within each set, individual grids are labeled with the titles of
the positions they cover——firefighter, fire captain, fire
5 Article 10 of the CBA provides, in pertinent part:
Commencing Pay Period 1, 2016, employees hired
prior to October 3, 2011 who make the member
contribution in accordance with the provisions of
Article 23 of this Agreement shall receive an
additional 2.9% pension offset payment. The
pension offset payment to the employee will
continue to be made as long as the employee makes
the member contribution. If the employee does
not make the member contribution, the 5.8%
pension offset (2015 offset and 2016 offset)
payment will no longer be paid to the employee.
The pension offset payment made to such eligible
employee shall be base building and pensionable.
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No. 2019AP1319
lieutenant, etc. Each grid includes a wage ladder, the numbered
steps of which correspond with the number of years worked in a
particular position. To illustrate, the grid below applies to
firefighters and fire paramedics hired before October 3, 2011:
a. Firefighter
Fire Paramedic
Step 1. $1,683.57
Step 2. 1,751.05
Step 3. 1,940.59
Step 4. 2,130.65
Step 5. 2,340.21
Step 6. 2,571.33
Step 7. 2,801.98
A first-year firefighter earned $1,683.57 biweekly. In his
second year, his biweekly compensation increased to $1,751.05.
¶8 Prior to 2017, MERS used the pre-October 3, 2011 grids
to calculate DDR benefits for recipients hired before that date.
The pre-October 3, 2011 grids include the 5.8% pension offset
payment without reduction for the requisite 7% pension
contribution by the employee. The 7% contribution is typically
withheld as a payroll deduction from an employee's base wages.
The figures in the pre-October 3, 2011 grids are therefore
higher than a Local 215 member's biweekly take home pay.
¶9 In 2017, MERS changed how it calculated DDR benefits.
Prior to implementing that change, MERS asked the Milwaukee City
Attorney's Office "whether the 5.8% 'pension offset payment' for
represented public safety employees is includable in 'current
annual salary' for purposes of MCC 36-05-3-c-l-a." In a
memorandum, the Assistant City Attorney opined that "the 5.8%
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No. 2019AP1319
pension offset payment is not includable in 'current annual
salary' as that phrase is used in Chapter 36 of the City
Charter." MERS accordingly notified DDR beneficiaries it would
no longer include the pension offset payment in the calculation
of their DDR benefits. Thereafter, MERS used the post-October
3, 2011 grids to calculate DDR benefits in lieu of the pre-
October 3, 2011 grids. Because the post-October 3, 2011 set
excludes the 5.8% pension offset payment, the amount of DDR
benefits decreased. MERS also clawed back excess benefits from
each DDR benefit recipient on the pre-October 3, 2011 roll,
directing some DDR beneficiaries to return pension payments of
up to $6,000 per beneficiary.
¶10 In response, MPSO sought a declaratory judgment and
injunctive relief against the City and MERS. Local 215
intervened, and the cases were consolidated. MPSO and Local 215
both moved for summary judgment, arguing the 5.8% pension offset
payment must be included in the DDR benefits calculation. In
turn, MERS and the City also moved for summary judgment, arguing
the pension offset payment cannot be included. After a hearing,
the circuit court granted summary judgment in favor of MPSO and
Local 215, concluding the pension offset payment must be
included in calculating DDR benefits because the CBA provides
such payments are "base building and pensionable."
¶11 The Court of Appeals reversed, reasoning the CBA
conditions receipt of the 5.8% pension offset payment on the 7%
member contribution. Milwaukee Police Supervisors Org., No.
2019AP1319, at ¶19. Because DDR recipients do not make that
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No. 2019AP1319
contribution, the court concluded DDR recipients cannot receive
the pension offset payment. Id., ¶20. According to the court
of appeals, "current annual salary" equals whatever an employee
would earn had he never made the 7% contribution or received the
5.8% pension offset payment. Id. Local 2156 filed a petition
for review, which we granted.
II. Standard of Review
¶12 This case requires us to review a grant of summary
judgment. "Summary judgment is appropriate when there is no
genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law." Brey v. State Farm
Mut. Auto. Ins. Co., 2022 WI 7, ¶8, 400 Wis. 2d 417, 970
N.W.2d 1 (quoting Kemper Indep. Ins. Co. v. Islami, 2021 WI 53,
¶13, 397 Wis. 2d 394, 959 N.W.2d 912); Wis. Stat. § 802.08(2)
(2021–22) ("The judgment sought shall be rendered if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law."). Because the parties in this case have stipulated to the
facts, we need only interpret ordinances and a contract to
The court concluded MPSO's collective bargaining agreement
6
did not condition pension offset payments on member
contributions. Milwaukee Police Supervisors Org. v. City of
Milwaukee, No. 2019AP1319, unpublished slip op., ¶1 (Wis. Ct.
App. Oct. 5, 2021) (per curiam). As a result, the court held
the "current annual salary" for MPSO members includes the
pension offset payment. Id.8
No. 2019AP1319
resolve this dispute. See Lewis v. Physicians Ins. Co. of Wis.,
2001 WI 60, ¶9, 243 Wis.2d 648, 627 N.W.2d 484 ("This case is
before us on a grant of summary judgment. Because the parties
have stipulated to the facts, this appeal only raises a question
of law") (citing L.L.N. v. Clauder, 209 Wis. 2d 674, 682, 563
N.W.2d 434 (1997)).
¶13 To determine whether the circuit court properly
granted summary judgment to Local 215, we must interpret the
Milwaukee City Charter. The interpretation of city ordinances
is a question of law we review independently. Milwaukee Dist.
Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶11, 385 Wis. 2d 748,
924 N.W.2d 153 (citing Schwegel v. Milwaukee Cty., 2015 WI 12,
¶18, 360 Wis. 2d 654, 859 N.W.2d 78). "In interpreting
municipal ordinances, we apply the same principles used in
statutory interpretation." Id. (citing Stoker v. Milwaukee
Cty., 2014 WI 130, ¶17, 359 Wis. 2d 347, 857 N.W.2d 110).
¶14 "[S]tatutory interpretation 'begins with the language
of the statute.'" Id. (quoting State ex rel. Kalal v. Cir. Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110). "We give statutory language 'its common, ordinary,
and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning.'" Id. We search for plain and reasonable
meaning, not ambiguity. Id., ¶47. If statutory language is
unambiguous, we do not "consult extrinsic sources of
interpretation[.]" Id., ¶46.
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No. 2019AP1319
¶15 This case also requires us to interpret the CBA. Like
any other contract, the interpretation of a collective
bargaining agreement presents a question of law we review
independently. Roth v. City of Glendale, 2000 WI 100, ¶15, 237
Wis. 2d 173, 614 N.W.2d 467 ("Interpretation of a collective
bargaining agreement, as with other contracts, presents a
question of law that we review independently of the
determinations rendered by the circuit court and the court of
appeals") (citing Wis. Label Corp. v. Northbrook Prop. & Cas.
Ins. Co., 2000 WI 26, ¶22, 233 Wis. 2d 314, 607 N.W.2d 276).
¶16 In interpreting contracts, courts must ascertain the
intent of the contracting parties as reflected in the contract
language. See Am. Fam. Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI
2, ¶23, 268 Wis. 2d 16, 673 N.W.2d 65 ("Judicial interpretation
of a contract . . . seeks to determine and give effect to the
intent of the contracting parties."). We discern the intent of
contracting parties from the plain and ordinary meaning of the
text. Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶26, 348
Wis. 2d 631, 833 N.W.2d 586 ("We presume the parties' intent is
evidenced by the words they chose, if those words are
unambiguous") (internal quotation marks omitted) (quoting Kernz
v. J.L. French Corp., 2003 WI App 140, ¶9, 266 Wis.2d 124, 667
N.W.2d 751).
III. Discussion
¶17 The Milwaukee City Charter grants duty disability
payments to firefighters who sustain injuries in the line of
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No. 2019AP1319
duty. Section 36-05-3-c-1-a of the Charter provides, in
relevant part:
[A]ny fireman . . . who shall become disabled as the
direct result of injury incurred in the performance of
one or more specific acts of duty shall have a right
to receive duty disability benefit during the period
of such disability of an amount equal to 75% of the
current annual salary for such position which he held
at the time of such injury.
¶18 The Charter does not define the phrase "current annual
salary," but the parties agree the CBA is the source of its
meaning. Because the CBA describes the pension offset payment
as "base-building and pensionable," Local 215 argues the phrase
"current annual salary" encompasses that payment. The City and
MERS disagree, contending the pension offset payment may not be
included in "current annual salary" for purposes of calculating
DDR benefits because DDR beneficiaries do not make the requisite
7% contribution. Both parties supplement their arguments with
extrinsic evidence to resolve any ambiguity. Resort to
extrinsic evidence is unnecessary because the phrase "current
annual salary" is unambiguous and its meaning is discernible
from the pre-October 3, 2011 salary grids in the CBA.
¶19 The salary grids detail the biweekly wages for each
position. These figures reflect the "current annual salary" for
employees hired before October 3, 2011. The grids, located in
an article titled "Base Salary," list the biweekly wages
employees in each position received. The parties agree "current
annual salary," as used in the Charter, means a position's base
salary. Most naturally construed, the figures in the grids——
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No. 2019AP1319
multiplied by 26——constitute the base salary for each position
within the Milwaukee Fire Department. Because the "base salary"
for each position in those salary grids includes the 5.8%
pension offset payment, and the parties agree the "base salary"
means the "current annual salary," MERS must include the pension
offset payment in the calculation of DDR benefits, which are
calculated as a percentage of the "current annual salary for
each position" under Section 36-05-3-c-1-a of the Charter.
¶20 Local 215 argues the pension offset payment must be
included in base salary because the CBA describes the payments
as "base-building and pensionable." Although this description
is unnecessary for purposes of discerning the meaning of
"current annual salary" under the CBA, the pension offset
payment does increase the base salary for each position, thereby
increasing the amount of the DDR benefit payable under the
Charter. Logically, the pension offset payment "builds" the
base salary for both active duty employees as well as DDR
beneficiaries who are paid a percentage of the base salary for
the position they held while on active duty. As the City
explains, however, DDR benefits represent wage replacements for
duty-disabled firefighters and are not a pension. When DDR
beneficiaries reach retirement age, their eligibility for DDR
benefits ceases and their pension benefits become payable. Even
without the "base-building and pensionable" language in the CBA,
the "current annual salary" for each position encompasses the
5.8% pension offset payment. The salary grids detailing the
current annual salary for each position therefore obligate MERS
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No. 2019AP1319
to include the pension offset payment in its calculation of DDR
benefits.
¶21 The City and MERS contend a provision in Article 10,
Section (C) of the CBA conditions a member's eligibility for the
pension offset payment on the member making the 7% contribution.7
Based on that provision, they argue the benefits paid to DDR
recipients, who do not make the 7% contribution, cannot include
the pension offset payment. We disagree. That provision
applies to active duty employees, not DDR beneficiaries. Under
the CBA, "employees" means only those who are "in active
service." Their duty-related disabilities prevent DDR
beneficiaries from being in active service. Because DDR
beneficiaries are not "employees," they are not required to make
the 7% member contribution. Nevertheless, because the "current
annual salary" for the positions they held while in active
service includes the pension offset payment, DDR benefits——which
7 That provision of Article 10, Section (C) provides:
Commencing Pay Period 1, 2016, employees hired
prior to October 3, 2011 who make the member
contribution in accordance with the provisions of
Article 23 of this Agreement shall receive an
additional 2.9% pension offset payment. The
pension offset payment to the employee will
continue to be made as long as the employee makes
the member contribution. If the employee does
not make the member contribution, the 5.8%
pension offset (2015 offset and 2016 offset)
payment will no longer be paid to the employee.
The pension offset payment made to such eligible
employee shall be base building and pensionable.
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No. 2019AP1319
are calculated based on a percentage of the "current annual
salary"——necessarily include the pension offset payment.
¶22 The provision of Article 10, Section (C) conditioning
a member's eligibility for the pension offset payment on the
member making the 7% contribution has no bearing on the meaning
of "current annual salary" as used in MCC § 36-05-3-c-1-a. It
merely disqualifies active duty employees who do not make the
member contribution from receiving pension offset payments.
That DDR beneficiaries do not currently make the contribution is
irrelevant. The Charter entitles disabled firefighters to a
disability benefit based on the "current annual salary" for the
position they held at the time of their eligibility for DDR
benefits——without conditions or exceptions. The fact that DDR
beneficiaries neither receive the 5.8% pension offset payment
nor make the 7% pension contribution is immaterial because the
current annual salary for the position held at the time of
disability includes the 5.8% payment.
¶23 In accepting the City and MERS's interpretation, the
court of appeals erred. The court reasoned "the Local 215
contract clearly requires a member to make the 7% pension
contribution to receive the 5.8% wage increase but "pursuant to
ordinance . . . DDR beneficiaries may not contribute to the
pension plan. Therefore, DDR beneficiaries are not entitled to
receive the pension offset wage increase to their base salary."
Milwaukee Police Supervisors Org., No. 2019AP1319, at ¶20. The
court of appeals erroneously conflated DDR beneficiaries with
active duty employees. Unlike the latter, DDR beneficiaries
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No. 2019AP1319
receive a disability benefit, not a base salary. CBA provisions
expressly applicable to employees who are MERS members simply do
not extend to DDR beneficiaries.
¶24 In adopting the construction of the governing
ordinance and the CBA advanced by the City and MERS, the court
of appeals missed the pivotal fact that DDR beneficiaries do not
receive the 5.8% as a "pension offset payment" per se, but
instead because the "current annual salary" for members hired
before October 3, 2011 includes it. Presenting an equity-based
argument, the City and MERS emphasize the fact that "firemen who
receive the 5.8% increase also have to forgo 7% of their base
salary as a member contribution," which DDR beneficiaries do not
make. We do not balance equities in interpreting either
ordinances or contracts——we apply their plain meaning. See
Anderson v. Wilson, 289 U.S. 20, 27 (1933) ("We do not pause to
consider whether a statute differently conceived and framed
would yield results more consonant with fairness and reason. We
take the statute as we find it"); Wisconsin Marine & Fire Ins.
Co. Bank v. Wilkin, 95 Wis. 111, 115, 69 N.W. 354 (1896) ("It
must be borne in mind that the office of judicial construction
is not to make contracts or to reform them, but to determine
what the parties contracted to do; not necessarily what they
intended to agree to, but what, in a legal sense, they did agree
to, as evidenced by the language they saw fit to use.").
¶25 Finally, the City and MERS contend "exempting" DDR
beneficiaries from the pension offset language conditioning
receipt of the 5.8% increase on making the 7% pension
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No. 2019AP1319
contribution renders that condition applicable to no one, since
all active-duty firefighters hired before October 3, 2011 pay
the mandatory 7% member contribution. The extrinsic fact that
the CBA may have created "a category into which no employee
fits" does not alter the interpretation or application of the
contract's clear text. See Milwaukee Dist. Council 48, 385
Wis. 2d 748, ¶18. This language of the CBA still "bears a
textual function," providing that an active duty employee who
ceases to make the contribution will no longer receive the
pension offset payment. Id. "Any apprehension about the
existence of a category into which no employee may fit
necessarily concerns the wisdom" of the language negotiated by
the City and Local 215. Id. Second-guessing the prudence of
that language because all employees currently make the
contribution "would reach beyond the proper judicial role, which
is limited to interpreting and applying the clear text." Id.Regardless, the CBA requires the City and MERS to pay each DDR
beneficiary the "current annual salary" for the position he held
during active service, and for anyone hired before October 3,
2011 that salary includes the 5.8% pension offset payment.
¶26 In addition to their textual arguments, each party
offers extrinsic evidence to support its analysis. We consider
extrinsic evidence only when contractual or statutory language
is ambiguous. Kalal, 271 Wis. Stat. § 633, ¶46. In this case,
the relevant text of the CBA and the Charter is unambiguous,
obviating any need for resorting to extrinsic evidence. Our
analysis begins and ends with the governing text.
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No. 2019AP1319
IV. Conclusion
¶27 We conclude the circuit court properly granted Local
215's motion for summary judgment. The Charter, read alongside
the CBA, requires MERS to include the 5.8% pension offset
payment in the "current annual salary" used to calculate DDR
benefits for beneficiaries hired before October 3, 2011.
By the Court.—The decision of the court of appeals is
reversed.
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No. 2019AP1319
1