Ryan v. Cnty. of Milwaukee Pension Bd. of the Employees' Ret. Sys.

• Decision Date: 16 February 2012
• Docket Number: No. 2011AP314.,2011AP314.
• Citation: 812 N.W.2d 539,340 Wis.2d 497,2012 WI App 40
• Parties: Mark E. RYAN and Colleen Ryan, Petitioners–Appellants, v. COUNTY OF MILWAUKEE PENSION BOARD OF THE EMPLOYEES' RETIREMENT SYSTEM, Respondent–Respondent.
• Court: Wisconsin Court of Appeals

340 Wis.2d 497

812 N.W.2d 539

2012 WI App 40

Mark E. RYAN and Colleen Ryan, Petitioners–Appellants,

v.COUNTY OF MILWAUKEE PENSION BOARD OF THE EMPLOYEES' RETIREMENT SYSTEM, Respondent–Respondent.

No. 2011AP314.

Court of Appeals of Wisconsin.

Feb. 16, 2012.

OPINION TEXT STARTS HEREAPPEAL from an order of the circuit court for Milwaukee County: Charles F. Kahn, Jr., Judge. Affirmed.

Before LUNDSTEN, P.J., VERGERONT and HIGGINBOTHAM, JJ.¶ 1VERGERONT, J.

Mark Ryan appeals the circuit court's order vacating the denial of his claim for additional pension benefits and remanding for further proceedings before the County of Milwaukee Pension Board of the Employees' Retirement System.¹ Ryan's claim before the Pension Board is based on his assertion that he did not validly waive the retention incentive bonus and therefore this bonus should be included in calculating his pension benefit. Ryan contends the court erred by not reversing the Pension Board's denial and ordering that it grant his claim. As grounds for error, Ryan asserts: (1) the undisputed facts show that he did not make a valid waiver of the retention incentive bonus; (2) even if the waiver is otherwise valid, it is invalid because there is no consideration; and (3) even if the waiver is otherwise valid, Wis. Stat. § 59.22(1)(a)1. (2009–10) ² prohibits enforcement. For the reasons we explain below, we affirm the circuit court's order.

BACKGROUND

¶ 2 Ryan became a Milwaukee County employee in 1980, was appointed county clerk in 1999, and was subsequently elected to that office in 2000, 2002, 2004, and 2006.

¶ 3 In 2000 the Milwaukee County Board of Supervisors enacted ordinances providing for two new pension benefits, and Ryan was eligible for both. The “backdrop benefit” permitted members of the Employees' Retirement System (ERS) hired prior to 2001 to elect to receive a lump sum payment upon retirement followed by reduced monthly payments, rather than full monthly payments. The “retention incentive bonus” permitted ERS members hired prior to 1982 to receive a bonus that increased the member's final average salary for pension calculation purposes. SeeMilwaukee County Code of General Ordinances 201.24 §§ 5.16 & 5.15 (Dec.2006).³

¶ 4 In early 2002 the County Board of Supervisors eliminated the backdrop benefit and retention incentive bonus for those who became ERS members after March 15, 2002. Milwaukee County Code of General Ordinances 201.24 §§ 5.16 & 5.15(1)(a). Current ERS members were given the option of waiving the two benefits. Id. The County Board of Supervisors established administrative procedures for ERS members to follow in waiving these benefits, creating a “Consent to Waiver” form for each benefit. SeeMilwaukee County Code of General Ordinances, Appendix B, § 1033.

¶ 5 On June 11, 2002, Ryan executed a backdrop benefit waiver form and went to the ERS office to submit it. According to Ryan's affidavit, the ERS staff person on duty would not accept it and informed him that the Pension Board could not accept an executed backdrop benefit waiver form without a simultaneous filing of an executed retention incentive bonus waiver form. Ryan subsequently executed a retention incentive bonus waiver form and filed both waiver forms with the ERS on June 13, 2002.

¶ 6 Just prior to Ryan's retirement on July 1, 2008, he received a pension benefits estimate from ERS that did not include either the backdrop benefit or the retention incentive bonus. Ryan, through his attorney, wrote a letter to ERS challenging the validity of his waiver of the retention incentive bonus and asking that his pension benefits be recalculated, taking into account this bonus. The letter asserted that Ryan's waiver of the retention incentive bonus was not valid because he signed that waiver form only because a Pension Board staff member told him he had to do so in order to waive the backdrop benefit. The Pension Board had no authority, the letter asserted, to require an elected official to waive both benefits instead of just one.

¶ 7 After receiving pension checks that did not include the retention incentive bonus, Ryan filed an appeal with the Pension Board, pursuant to ERS Rule 1016. SeeMilwaukee County Code of General Ordinances, Appendix B, § 1016. The Pension Board took up the appeal at a meeting at which Ryan's counsel addressed the Board. Ryan did not appear but submitted his affidavit with attachments, the affidavit of his wife, and counsel's memorandum in support of his appeal.

¶ 8 The Pension Board voted to deny Ryan's appeal, stating the following grounds in the minutes of the meeting and in a subsequent letter to Ryan's counsel:

[T]he Pension Board denies the pension benefit appeal by Mark Ryan, consistent with the discretion assigned to the Pension Board by Ordinance section 8.17 to interpret the Ordinances and Rules of ERS, due to uncertainty regarding Mr. Ryan's evidential support and pursuant to legal precedents regarding negligent misrepresentation, mistake of fact, rescission of contract due to misrepresentation, lack of consideration and an impermissible decrease in benefits.

¶ 9 Ryan appealed the Pension Board's decision by petition for a writ of certiorari in the circuit court. The court vacated the Pension Board's decision and remanded to the Board. The court concluded that the Pension Board had failed to issue a written decision, failed to make findings of fact, and failed to explain the reasons for its decision, as required by Milwaukee County Code of Ordinances, Appendix B, § 1016(b). In arriving at its decision to vacate and remand, the court rejected Ryan's argument that the undisputed facts before the Pension Board supported only one conclusion: that Ryan did not voluntarily and knowingly waive his right to the retention incentive bonus.

¶ 10 The circuit court also made rulings on two other arguments advanced by Ryan. First, the court concluded that, as a matter of law, consideration is not required in order for the waiver to be valid. Second, the court concluded that Wis. Stat. § 59.22(1)(a)1. does not prevent enforcement of Ryan's waiver. This statute provides that “the compensation established [for elected county officials] shall not be increased nor diminished during the officer's term....”

DISCUSSION

¶ 11 On appeal Ryan contends the circuit court erred on three grounds. First, he asserts, the undisputed facts show that he did not make a valid waiver of the retention incentive bonus. Therefore, according to Ryan, the circuit court should not have vacated the Pension Board's decision and remanded; instead it should have reversed the decision and ordered the Pension Board to include this bonus in calculating his pension benefits. Second, Ryan asserts, even if the waiver is otherwise valid, it is invalid because there is no consideration. Third, even if his waiver is otherwise valid, Wis. Stat. § 59.22(1)(a)1. prohibits enforcement.

I. Propriety of Remand

¶ 12 The circuit court decided that the Pension Board failed to issue a written decision, make findings of fact, and explain the reasons for its decision. It concluded that a remand was appropriate because the evidence would permit more than one reasonable inference on whether Ryan's waiver of the retention incentive bonus met the standard for a valid waiver. A waiver is the “voluntary and intentional relinquishment of a known right.” Milas v. Labor Ass'n of Wisconsin, Inc., 214 Wis.2d 1, 9, 571 N.W.2d 656 (1997) (citation omitted).

¶ 13 In response to Ryan's challenge on appeal to the circuit court's ruling, the Pension Board does not argue that the circuit court was correct to remand to the Board. Instead, the Pension Board argues that the circuit court should have affirmed the Board under the standard for certiorari review because there is evidence, or reasonable inferences from the evidence, to support the Pension Board's decision.⁴ In other words, the Pension Board is not asking that we affirm the circuit court's remand order but instead is asking that we modify the order so that it affirms the Board. A respondent seeking a modification of the circuit court's order is required to file a cross-appeal. Wis. Stat. § 809.10(2)(b). However, the Pension Board did not file a cross-appeal. Thus, our review is limited to the propriety of the remand order.⁵

¶ 14 Ryan's contention that there is no basis for a remand to the Pension Board rests on his assertion that the only evidence before the Board was that he signed the waiver form for the retention incentive bonus only because he was given incorrect information by a Pension Board employee. This is the only evidence, according to Ryan, because this is what his affidavit averred, supported by his wife's affidavit, and there is no contrary evidence.

¶ 15 The question presented is whether the Pension Board could reasonably find on the evidence before it that Ryan voluntarily and intentionally waived the retention incentive bonus. This is a question of law, which we review de novo. See H & R Block E. Enters., Inc. v. Swenson, 2008 WI App 3, ¶ 11, 307 Wis.2d 390, 745 N.W.2d 421 (whether an inference is reasonable and whether more than one reasonable inference may be drawn are questions of law) (citation omitted); Hoskins v. Dodge Cnty., 2002 WI App 40, ¶ 31, 251 Wis.2d 276, 642 N.W.2d 213 (whether there are factual disputes is a question of law) (citation omitted). For the following reasons, we agree with the circuit court that the Pension Board could reasonably find that Ryan voluntarily and intentionally waived the retention incentive bonus.

¶ 16 Ryan's affidavit describes his signing of the waiver for both benefits as follows:

Around June of 2002, I obtained a copy of the “Consent to Waiver Agreement” with respect to the Backdrop Benefit from the ERS office. I did not at that time obtain a waiver agreement for the Retention Benefit Bonus, as I did not intend or wish to waive that benefit. I signed the Backdrop Benefit waiver form on June 11, 2002 ... [and that day]...