Milwaukee Dist. Council 48 v. Milwaukee Cnty.

• Decision Date: 19 March 2019
• Docket Number: No. 2016AP1525,2016AP1525
• Citation: 924 N.W.2d 153,2019 WI 24,385 Wis.2d 748
• Parties: MILWAUKEE DISTRICT COUNCIL 48, Plaintiff-Respondent, v. MILWAUKEE COUNTY, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

385 Wis.2d 748

924 N.W.2d 153

2019 WI 24

MILWAUKEE DISTRICT COUNCIL 48, Plaintiff-Respondent,

v.MILWAUKEE COUNTY, Defendant-Appellant-Petitioner.

No. 2016AP1525

Supreme Court of Wisconsin.

Oral Argument: September 24, 2018

Opinion Filed: March 19, 2019

For the defendant-appellant-petitioner, there was a brief filed by Alan M. Levy, Samantha J. Wood, and Lindner & Marsack, S.C., Milwaukee. There was an oral argument by Alan M. Levy.

For the plaintiff-respondent, there was a brief filed (in the court of appeals) by Mark A. Sweet and Sweet and Associates, LLC, Milwaukee. There was an oral argument by Mark A. Sweet.

REBECCA GRASSL BRADLEY, J.

¶1 Milwaukee County seeks to deny what it characterizes as "unusually generous" pension benefits to certain members of Milwaukee District Council 48 of the American Federation of State, County and Municipal Employees (DC-48), citing the County's structural deficit, the escalating cost of the Employees' Retirement System of the County of Milwaukee (ERS), and the County's intention to grant a particular benefit to only those represented employees who were hired before 1994. Known as the "Rule of 75," this benefit allows an eligible employee to receive a full pension when his age plus years of service total 75. After the Wisconsin legislature enacted 2011 Wis. Act 10, which limited collective bargaining to base wages for municipal employees, the County resolved to codify existing Rule of 75 eligibility for non-represented employees. Instead, the County enacted an ordinance granting Rule of 75 benefits to all employees "not covered by the terms of a collective bargaining agreement" as long as those employees were hired before 2006. At the time of enactment, County employees who were represented by DC-48 were no longer covered by a collective bargaining agreement (CBA), the last of which expired in 2009. In order to avoid paying $6.8 million in benefits the County says it never intended to grant, the County urges the court to interpret "not covered by the terms of a collective bargaining agreement" to mean "not represented by a union." Because we must apply the plain meaning of the ordinance's text rather than rewrite it to reflect what the County may have intended, we reject the County's request and affirm the court of appeals.

I. BACKGROUND

¶2 Milwaukee County has a history of negotiating CBAs with its employees, including DC-48 members. In 1991, the County created the Rule of 75, which it amended in 1993. The County's amended ordinance addressed Rule of 75 eligibility for employees "not covered by the terms" of a CBA. See Milwaukee Cty. Gen. Or. § 201.24(4.1) (1993). The amended ordinance reads:

A member^{[1 ]} who is not covered by the terms of a collective bargaining agreement at the time his employment is terminated and who retires on and after September 1, 1993, shall be eligible for a normal pension when the age of the member when added to his years of service equals 75[.]

Milwaukee Cty. Gen. Or. § 201.24(4.1) (1993). Under this iteration of the ordinance, the Rule of 75 applied to each employee "not covered by the terms of a collective bargaining agreement" if the employee's age added to years of service equaled 75, regardless of the hire date. Id.

¶3 In 1994, the CBA between the County and DC-48 extended the Rule of 75 benefit to DC-48 members, but only those hired by the County "prior to January 1, 1994." DC-48 members hired on or after January 1, 1994 were not eligible for the Rule of 75.

¶4 In 2005, the County amended Milwaukee County General Ordinance § 201.24(4.1) again, restricting its applicability within that category of employees not covered by a CBA to only those employees who were hired prior to January 1, 2006:

A member who is not covered by the terms of a collective bargaining agreement at the time his employment is terminated and whose initial membership in the retirement system ... began prior to January 1, 2006 who retires on and after September 1, 1993, shall be eligible for a normal pension when the age of the member when added to his years of service equals 75[.]

Milwaukee Cty. Gen. Or. § 201.24(4.1) (2006) (emphasis added). In other words, the County established a cutoff date for application of the Rule of 75 to employees not covered by the terms of a CBA: employees within that category would be eligible for the Rule of 75 benefit only if they were hired before January 1, 2006.

¶5 In 2008, with the current CBA set to expire on December 31, 2008 the County started negotiating a new CBA with DC-48. The County and DC-48 agreed to extend the CBA for another three months. Although a tentative successor agreement was reached, the County Board never approved it and DC-48's members never ratified it. DC-48's CBA expired on March 31, 2009, and no subsequent CBA was ever consummated.

¶6 Effective June 2011, the legislature enacted 2011 Wis. Act 10, which limited collective bargaining for "general municipal employees" to base wages.² See 2011 Wis. Act 10; see also Wis. Stat. § 111.70(1)(a) (2011-12).³ As a result of other changes made by Act 10, DC-48's certification as a representative of County general employees was eventually revoked in January 2012.

¶7 After the enactment of Act 10, the County again amended Milwaukee County General Ordinance § 201.24(4.1) to codify Rule of 75 eligibility for employees covered by the terms of a CBA on September 29, 2011 and to add the demarcating date of September 29, 2011 for that category of employees not covered by a CBA. The relevant parts of the ordinance provide:

(a) A member who, on September 29, 2011, is employed and is not covered by the terms of a collective bargaining agreement, and whose initial membership in the retirement system ... began prior to January 1, 2006 ... shall be eligible for a normal pension when the age of the member when added to his years of service equals seventy-five (75)[.]

(b) A member who, on September 29, 2011, is employed and is covered by the terms of a collective bargaining agreement with ... District Council 48, or with the Technicians, Engineers and Architects of Milwaukee County, or with the International Association of Machinists and Aerospace Workers, and whose initial membership date is prior to January 1, 1994, shall be eligible for a normal pension when the age of the member when added to his years of service equals seventy-five (75)[.]

Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b) (2011)⁴ (emphasis added).⁵ The amendment applied the Rule of 75 to employees "not covered by the terms of a collective bargaining agreement" on September 29, 2011 and hired "prior to January 1, 2006." Id. (emphasis added). For an employee who, on September 29, was"covered by the terms of a collective bargaining agreement" with DC-48 or one of the other enumerated unions, the Rule of 75 applied only if the employee was hired "prior to January 1, 1994." Id. (emphasis added). This disparate treatment of "covered" and "not covered" employees under the ordinance gives rise to the dispute before us. Employees not covered by the terms of a CBA have a much later cutoff date-of-hire to be eligible for application of the Rule of 75, thereby expanding the pool of employees within that category who are eligible for the Rule of 75 benefit.

¶8 After DC-48's decertification, it sought a declaratory judgment that its members were not covered by the terms of a CBA, and therefore all members hired prior to January 1, 2006 (as opposed to January 1, 1994) were eligible for the Rule of 75. Both parties moved for summary judgment. The County argued that employees represented by DC-48 on September 29, 2011 were not entitled to the Rule of 75 unless they were hired prior to January 1, 1994. The County asserted these employees were in fact represented by DC-48 and covered by the terms of a CBA despite the last CBA expiring in 2009. DC-48 argued that, as of the September 29, 2011 trigger date, its members were not covered by the terms of a CBA, and were therefore entitled to the Rule of 75 as long as they were employed prior to January 1, 2006.

¶9 The circuit court granted DC-48's motion and denied the County's.⁶ It reasoned the last CBA between DC-48 and the County expired in 2009; therefore, DC-48 members were not covered by the terms of a collective bargaining agreement on September 29, 2011. The court of appeals affirmed. Milwaukee Dist. Council 48 v. Milwaukee Cty., 2017 WI App 82, ¶1, 379 Wis. 2d 322, 905 N.W.2d 140. The County filed a petition for review, which we granted.

II. DISCUSSION

¶10 Although the legislative changes made by Act 10 and the County's multiple amendments to its ordinance form the backdrop for this dispute, the central issue is quite simple: under Milwaukee County General Ordinance § 201.24(4.1)(2), were DC-48 members "covered by the terms of a collective bargaining agreement" on September 29, 2011? If so, only DC-48 members hired prior to January 1, 1994 would be eligible for the Rule of 75. This would leave DC-48 members hired between January 1, 1994 and January 1, 2006 ineligible for the benefit. However, if DC-48 members were not covered by the terms of a CBA on September 29, 2011, then the members hired between January 1, 1994 and January 1, 2006 would be entitled to the Rule of 75 benefit.

A. Standard of Review

¶11 This issue involves the interpretation of an ordinance, which is a question of law we review de novo. 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. Stoker v. Milwaukee Cty., 2014 WI 130, ¶17, 359 Wis. 2d 347, 857 N.W.2d 102. "[S]tatutory interpretation ‘begins with the language of the statute.’ " State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). If the meaning of the language is plain, our inquiry ordinarily ends. Id. We give statutory language "its common, ordinary, and accepted meaning, except that...