Kierstyn v. Racine Unified School Dist.

• Decision Date: 09 July 1999
• Docket Number: No. 97-1573.,97-1573.
• Citation: 228 Wis.2d 81,596 N.W.2d 417
• Parties: John G. KIERSTYN, Plaintiff-Appellant-Petitioner, v. RACINE UNIFIED SCHOOL DISTRICT, Indiana Insurance Company and Mike Farrell, Defendants-Respondents.
• Court: Wisconsin Supreme Court

228 Wis.2d 81

596 N.W.2d 417

John G. KIERSTYN, Plaintiff-Appellant-Petitioner, v. RACINE UNIFIED SCHOOL DISTRICT, Indiana Insurance Company and Mike Farrell, Defendants-Respondents.

No. 97-1573.

Supreme Court of Wisconsin.

Oral argument May 4, 1999.

Decided July 9, 1999.

For the plaintiff-appellant-petitioner there was a brief by John G. Shannon and Dye, Foley, Krohn & Shannon, S.C., Racine and oral argument by John G. Shannon.

For the defendants-respondents there was a brief by Raymond J. Pollen, Michele M. Ford and Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee and oral argument by Raymond J. Pollen.

¶ 1. ANN WALSH BRADLEY, J.

The Petitioner, John Kierstyn (Kierstyn), seeks review of a published decision of the court of appeals that affirmed the circuit court's grant of summary judgment in favor of the Racine Unified School District (the District).¹ Kierstyn argues that the District and its employee benefits specialist are not immune from suit under Wis. Stat. § 893.80(4) when the employee gave incorrect information regarding disability benefits. Because we determine that the employee's act does not fit any exception to public officer immunity, we affirm the court of appeals.

¶ 2. For purposes of this summary judgment motion, the facts are not in dispute. Both John and Judith Kierstyn (collectively, the Kierstyns) were employed by the District for many years: John Kierstyn (Kierstyn) as a librarian for over 27 years and Judith Kierstyn (Mrs. Kierstyn) as a teacher for over 25 years. Mrs. Kierstyn was diagnosed with cancer in the early part of 1993. By March of 1993 Mrs. Kierstyn became incapable of continuing work and took a medical leave of absence. From March until her death in late June of that year, Mrs. Kierstyn received her regular teacher's salary through sick days she had accumulated over the course of her tenure as an employee of the District.

¶ 3. Mrs. Kierstyn received benefits both as a union employee with the District and as a municipal employee with the Wisconsin Retirement System (WRS). See Wis. Stat. ch. 40. In April, shortly after Mrs. Kierstyn ceased working, the Kierstyns met with a benefits specialist employed by the District, Mike Farrell, in order to discover what disability benefits Mrs. Kierstyn was entitled to receive. ¶ 4. Farrell had been employed by the District since 1991. As a benefits specialist he provided general information to District employees about their employment benefits and was often the first contact for employees who sought such information. Farrell was authorized to give the District's employees information about their union benefits. He was not, however, an agent of the WRS and could not authoritatively represent to District employees what WRS benefits they were entitled to receive. Notwithstanding this fact, Farrell was generally aware of the WRS disability benefits, had pamphlets from WRS relaying information about WRS programs in his office, had WRS computer software that the used to provide benefit estimates to the District's employees, and knew of persons at the WRS whom a District employee could contact in order to obtain specific WRS benefit information.

¶ 5. At the April meeting with the Kierstyns, Farrell misstated that Mrs. Kierstyn could only apply for WRS disability benefits upon the depletion of all of her available sick leave.² This information was incorrect.³ Mrs. Kierstyn could have applied for those benefits when she ceased working in March. However, she would not have been eligible to receive those benefits until she exhausted her available sick leave. Farrell also informed the Kierstyns that WRS would have more specific information about these matters and instructed them to contact the WRS directly.

¶ 6. The Kierstyns did contact the WRS, which mailed to them benefit estimates tailored to Mrs. Kierstyn. In addition to the estimates, the mailing included an application for disability benefits with instructions and a 16-page brochure explaining WRS disability benefits. The instructions read, in pertinent part:

DEATH BEFORE DISABILITY BENEFIT APPROVAL

If you are an active employe or on leave of absence on or after August 15, 1991 and die before the Board approves your benefit, your disability annuity will be granted if prior to your death we have received your application and one Medical Report certifying your disability.... It is therefore very important that the Medical Reports be submitted as quickly as possible. The department must also receive your employer's certification that you ceased employment due to your disability before your disability benefit can be approved.

Whether or not your disability benefit is approved can have a substantial impact on the amount of the death benefits payable upon your death. Death benefits from a disability benefit will be based on the annuity option you select. You may contact the department for further information about how death benefits are calculated.

¶ 7. Aside from glancing at the estimates, Kierstyn did not read the information he received from the WRS. Mrs. Kierstyn did not apply for disability benefits at that time.

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

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

¶ 10. Kierstyn filed suit, alleging that Farrell and the District were liable for common law negligence and negligent misrepresentation. The District filed a motion for summary judgment, contending that it and Farrell were immune from suit under Wis. Stat. § 893.80(4) (1997-98).⁵ The circuit court granted that motion, concluding that Farrell's act of giving information was a discretionary act rather than a ministerial one.

¶ 11. Kierstyn appealed and the court of appeals affirmed in a 2-1 decision. The court of appeals concluded that Farrell's giving of benefit advice was a "governmental" act, so he retained immunity as a municipal employee under this court's decision in Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 292 N.W.2d 816 (1980). Judge Brown dissented, concluding that the act of advising a "client" in an intimate setting was not "governmental" but rather "professional" in nature and therefore was an act subject to liability. Kierstyn petitioned this court for review.

[1, 2]

¶ 12. It is well settled that when this court reviews a motion for summary judgment it applies the same standards as the circuit court. Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980). In this case we are asked to determine whether Farrell, though negligent, is entitled to immunity as a municipal employee under Wis. Stat. § 893.80. This application of a set of facts to a legal standard is a question of law that we review independently of the legal determinations rendered by the circuit court and court of appeals. Miller v. Thomack, 210 Wis. 2d 650, 658, 563 N.W.2d 891 (1997).

[3, 4]

¶ 13. Public officers or employees enjoy immunity from liability for injuries resulting from the performance of any discretionary act within the scope of their governmental employment.⁶Barillari v. City of Milwaukee, 194 Wis. 2d 247, 257, 533 N.W.2d 759 (1995); C.L. v. Olson, 143 Wis. 2d 701, 710, 422 N.W.2d 614 (1988); Lister v. Board of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976). This rule applies regardless of whether the public official is employed by the state or by a political subdivision of the state, such as a municipality or school district. Lifer v. Raymond, 80 Wis. 2d 503, 511-12, 259 N.W.2d 537 (1977).

[5]

¶ 14. Public officer immunity traces its origins to the common law and is separate and distinct from the constitutional guarantee of sovereign immunity, although the distinction is often overlooked.⁷ As a derivation of the common law, governmental immunity is founded upon policy considerations that strike a balance between "the need of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress." Lister, 72 Wis. 2d at 300. Those policy considerations focus largely on the protection of the public purse against legal action and on the restraint of public officials through political rather than judicial means. As we identified in Lister, 72 Wis. 2d at 299, those considerations include:

(1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office. Id. at 299.

[6]

¶ 15. As outlined in Wis. Stat. § 893.80(4), governmental immunity relieves both a political subdivision and public officials from acts done pursuant to legislative, judicial, quasi-legislative, or quasi-judicial capacities. To describe an activity as quasi-judicial or quasi-legislative is to say that the activity involves the exercise of discretion. Lister, 72 Wis. 2d at 299; Spencer v. Brown County, 215 Wis. 2d 641, 647, 573 N.W.2d 222 (Ct. App. 1997).

¶ 16. However, immunity under Wis. Stat. § 893.80 is not...