By Attorney Nicholas E. Fairweather
Cullen Weston Pines & Bach LLP
All Wisconsin counties, except for Milwaukee County, participate in the Wisconsin Retirement System (“WRS”). Many municipalities also participate, depending on whether they have elected to do so. Your benefits under the WRS depend upon the amount of time during which your employer reported you to the State Department of Employee Trust Funds as an “employee.” According to the State Statutes establishing and governing the WRS, your status as an “employee” is dependent upon the position in which you work and whether that position “normally requires” more than a set number of hours of work in each year.
On March 26, 2007, Dane County Circuit Court Judge Maryann Sumi issued a decision and order that has a significant impact on WPPA members’ rights to WRS benefits. Judge Sumi upheld a decision of the State of Wisconsin Employee Trust Funds Board (“the Board”) that ruled in favor of 14 City of West Bend police officers and WPPA members. The officers had worked for the City at various times from 1968 to 1984 in positions that the City characterized as “part time.” Consequently, the City failed to report this service to the State. In reality, the officers worked in positions that can only be called full-time hours.
The officers filed their claims for WRS participant status in August 2003, well after the seven-year statute of limitations that now applies to employee claims. However, that seven-year period was not written into Chapter 40 of the Wisconsin Statutes until 1984, well after many of the officers had completed their “part-time” work for the City. The officers and the Employee Trust Funds Board relied upon a Wisconsin Court of Appeals decision to advance their claims. That decision, State ex rel. Dicks v. Employe Trust Funds Bd., 202 Wis. 2d 703 (1996), held that the legislature could not enact a statute of limitation that “would extinguish an employee’s claim to pension rights in the WRS without a fair notice of the after-adopted limitation and without fair opportunity to preserve that claim.” The City claimed that the 14 officers had been provided the required “fair notice” and a “fair opportunity” to assert their claims regarding their so-called part-time service, within the seven-year period. The Board and Judge Sumi disagreed. They both held that the position of “part-time” officer for the City of West Bend normally required the performance of 600 or more hours of actual duty per year. The employees who worked in those positions were entitled to be reported as WRS participants for this period of part-time employment. The City declined to appeal the Judge’s decision and will now have to report each of the 14 officers as “employees” for the time periods during which they worked in their “part-time” positions.
This decision has great import for WPPA members who dispute their employer’s reporting of hours worked and a member’s “employee” status under the WRS. Be aware that even though you may have been called a “part-time” employee, and your employer did not report you as eligible for WRS contributions, for some period of your work history, you may be entitled to retirement benefits for the time you worked in such a capacity. If you feel that your employer made a mistake in reporting your past service, you can appeal the decision to the Department of Employee Trust Funds. The appeal form can be found online at http://etf.wi.gov/publications/et4938.pdf. Do not hesitate to file an appeal if you believe that your employer incorrectly determined that you did not qualify as a participating employee.
Attorneys Lester A. Pines and Nicholas E. Fairweather acted as legal counsel for the 14 City of West Bend police officers. The decision of the Dane County Circuit Court and the Wisconsin Retirement Board are available on the website of Cullen Weston Pines & Bach LLP: http://www.cwpb.com/PDFs/WestBend.pdf.