Kamermayer v. City of Milwaukee, No. 2007AP29 (Wis. App. 12/18/2007)
| Decision Date | 18 December 2007 |
| Docket Number | No. 2007AP29.,2007AP29. |
| Parties | Jodi Kamermayer, Petitioner-Appellant, v. City of Milwaukee and Nanette Hegerty, Respondents-Respondents. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Milwaukee County: MICHAEL GUOLEE, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
Jodi Kamermayer appeals from an order denying her petition for a writ of mandamus and dismissing the complaint for declaratory judgment that she filed against the City of Milwaukee and former Police Chief Nanette Hegerty (collectively, the City). She contends that the trial court erred in concluding that she did not make an excusable mistake when she entered into a settlement agreement with the City and subsequently tendered her resignation. We disagree with Kamermayer's contention and affirm the order of the trial court.
¶ 2 This litigation arises out of Kamermayer's dismissal from service with the Milwaukee Police Department (MPD). Kamermayer appealed from the order for dismissal and retained counsel to represent her before the Milwaukee Fire and Police Commission (the Commission). Thereafter, the parties engaged in settlement discussions.
¶ 3 The attorney who represented Kamermayer during the settlement discussions was deposed and testified that a conference call took place where she, Kamermayer, and one or two representatives from the Employes' Retirement System (ERS) were on the telephone at various times discussing Kamermayer's pension benefits.1 The attorney admitted that, as she initially understood it, Kamermayer would only have access to her pension funds upon completion of ten years of service. However, following the conference call, her initial understanding was corrected. It was at that time that Kamermayer's attorney was advised that Kamermayer only needed to have four years of service in order to be vested. Kamermayer's attorney stated at her deposition that she was further advised by the representatives of ERS as follows:
that the only difference or the only benefit that is different for reaching ten years is that you can have like a cash and carry option. In other words, you can withdraw money now instead of waiting until you're retirement age to withdraw it. In any event you don't entirely forever lose your access to that money.
¶ 4 Following the conference call, Kamermayer's attorney said that she discussed what she learned with Kamermayer:
I explained that my initial impression and [another attorney in my office's] initial impression of the pension benefits was obviously incorrect, that she had four years then so getting to ten years would not impact her ability to get a pension when she retires but that if she gets to ten years she can use that money sooner.
On the same day as the conference call, Kamermayer's attorney provided Kamermayer with a letter, which provided:
[I]n exchange for waiving your right to have an appeal hearing before the Fire & Police Commission, we have negotiated a settlement in which the City of Milwaukee would allow you to resign effective the date that is one day after the ten (10) year anniversary of your application for membership with the Employes' Retirement System (ERS) of the City of Milwaukee.
By resigning effective the date that is one day after the ten (10) year anniversary, you would separate from service with ten (10) years of creditable service, and would therefore be entitled to withdraw the accumulated contributions in your pension fund.... By resigning effective the date that is one day after the ten (10) year anniversary, you would also remain on the City of Milwaukee payroll for approximately two and one-half months longer than if you have an appeal hearing in which your termination is upheld.
If you choose not to enter into this settlement agreement with the City of Milwaukee, you cannot separate from service with ten (10) years of creditable service, and therefore are forever barred from withdrawing the accumulated contributions in your pension fund.
....
As you know, both [another attorney at this office] and I strongly believe that it is in your best interest to enter into this settlement agreement with the City of Milwaukee, and we have therefore recommended that you do not proceed to an appeal hearing before the Fire & Police Commission. Our recommendation is based upon the following:
(1) Our experience and expertise with the Fire & Police Commission leads us to believe that the chances of getting your job back are very slim;
(2) The settlement agreement would provide you with the option of having access to a significant sum of money that you would otherwise have no ability to access, as well as keeping you on the payroll for several additional months....
Kamermayer signed the letter that day indicating that she chose to resign from the MPD effective one day after her ten-year anniversary.
¶ 5 As a result, Kamermayer's attorney and the attorney for the City sent letters to one another confirming that an agreement was reached whereby Kamermayer would resign effective the day after she reached ten years of creditable service with the City. Kamermayer then submitted her written resignation, which was to go into effect on April 11, 2006.
¶ 6 Kamermayer's version of the events leading up to the settlement agreement differs from her former attorney's version. Kamermayer contends that she agreed to the settlement because she understood it to be the only way that she could recover her pension contributions. Shortly after submitting her resignation letter, Kamermayer claims to have been contacted by a union steward who told her she was misinformed and that she was entitled to her pension contributions so long as she had completed four years of service. At the time that she learned this information, she had completed four years of service.2
¶ 7 Approximately one week after she submitted her letter of resignation and seventy days prior to the effective date, Kamermayer notified the Commission and counsel for Chief Hegerty that she was rescinding the settlement agreement. The City refused to acknowledge Kamermayer's attempt to withdraw her resignation. Instead, Kamermayer received correspondence notifying her that her resignation was effective April 11, 2006.
¶ 8 Kamermayer subsequently filed a petition for a writ of mandamus to require "the City of Milwaukee and Nanette Hegerty, Chief of Police of the City of Milwaukee, to refrain from treating Ms. Kamermayer as resigned from her employment as a police officer with the City of Milwaukee." In the alternative, she filed a complaint for declaratory relief requesting "that judgment be entered in her favor declaring that the settlement reached with the City of Milwaukee is void and ordering her resignation from employment withdrawn."
¶ 9 In a supplemental affidavit filed in support of her petition for a writ of mandamus, Kamermayer acknowledged, after reading her former attorney's deposition transcript, that she recalled her former attorney "telling me that an ERS representative told her in a telephone conference that there was a distinction between the significance of having 4 years of service and having 10 years of service." However, Kamermayer further stated that following the telephone conversation, her former attorney told her that ten years had always been the triggering point for accessing accumulated pension contributions and that the ERS representative was wrong in advising them otherwise.
¶ 10 Kamermayer contends that she signed the resignation letter on the advice of her former attorney and with the understanding that resigning was the only way she could retain and receive the pension benefits. According to Kamermayer, if she had known she was entitled to her pension benefits regardless of whether she reached her tenth anniversary of participation in the pension plan at the time of the settlement discussions, she would not have agreed to the settlement and would have proceeded with the hearing on her appeal. She asserted in her affidavit: "I do not and would not have considered the cash and carry option to be a significant benefit to me to have induced me to agree to resign my employment as a police officer with the MPD."
¶ 11 In denying Kamermayer's petition for a writ of mandamus and dismissing her declaratory judgment action, the trial court stated:
The City of Milwaukee offered a settlement agreement with certain terms. The petitioner accepted those terms and formed a settlement contract with the City. There was consideration on both sides. The City made an offer with the following consideration for the plaintiff-petitioner. She would not be subject to public scrutiny or public hearing. She would have the benefits of resigning versus the possible stigma of being fired. She'd receive two more months of paid compensation, and she would receive pension benefits. In exchange in consideration, the City would be released from defending their initial dismissal against the petitioner.
....
The petitioner entered into a Settlement Agreement when she accepted the City's offer. Even though she dislikes the outcome now, she has not presented justification for voiding this contract. She may not have understood the actual pension benefits that the settlement was offered, was offering, but she was not presented any, she has not presented any evidence that this mistake, if material, being unilateral, was also excusable. The party seeking rescission of the unilateral mistake must show that mistake was excusable. In this case there is no showing of that.
Kamermayer's attorney subsequently requested that the trial court limit its decision to a denial of the petition for a writ of mandamus and that it allow the parties to proceed on the declaratory judgment action; however, the trial court declined to do so and dismissed the action as to both causes.
¶ 12 "Mandamus...
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