Milwaukee District Council 48 v. Milwaukee County
Milwaukee District Council 48 v. Milwaukee County
Opinion of the Court
*155*752¶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 *753agreement (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 *754bargaining 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 *156hired 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 *755never 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.
¶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 *756eligible for a normal pension when the age of the member when added to his years of service equals seventy-five (75)[.]
*157Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b) (2011)
¶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 *75729, 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.
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 *758between January 1, 1994 and January 1, 2006 would be entitled to the Rule of 75 benefit. *158A. 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.,
*759B. Analysis
¶12 The County argues DC-48 employees were in fact covered by the terms of the expired CBA on September 29, 2011. This argument stems from
¶13 Setting aside the duty to bargain in good faith, the County's ordinance, specifically its use of the phrase "covered by the terms" of a CBA, is plain. The ordinance creates two classes of employees: (1) those "covered by the terms" of a CBA with one of the enumerated unions and (2) those "not covered by the terms" of a CBA. See Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b). Regardless of what the County intended, the plain meaning of "covered by the terms" of a CBA includes only those employees bound by a valid CBA. It is difficult to imagine how an employee could be "covered by the terms" of an expired CBA that no longer binds its parties. If a CBA has expired, then, absent some other consideration, its terms no longer cover the parties.
¶14 The County's invocation of the duty to bargain in good faith and maintain the status quo does *760not alter our interpretation of the plain text of the ordinance. As part of the duty to "bargain collectively," federal law provides that employers have an obligation to "meet ... and confer in good faith with respect to wages, hours, and other terms and conditions of employment." NLRB v. Katz,
¶15 Wisconsin Stat. § 111.70 requires municipal employers "to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement ... with respect to wages for general municipal employees," and the statute provides "[i]t is a prohibited practice for a municipal employer ... [t]o refuse to bargain collectively."
¶16 The obligation to maintain the status quo does not, however, support the County's argument. The status quo obligation arises statutorily, as recognized in our case law; it does not arise from the expired CBA. See
¶17 The dissent complains that our reading of the ordinance results in meaningless surplusage. Dissent, ¶¶31, 49. This concern is misplaced. The canon against surplusage guides us to read legislative language "where possible to give reasonable effect to every word, in order to avoid surplusage."
*763Kalal,
*764
¶18 Even if no employees were in fact covered by the terms of a CBA with DC-48 (due to the expiration of the previous CBA), this extrinsic fact is immaterial to ascertaining the ordinance's plain meaning. The concept of surplusage is intrinsic to the text of the ordinance; attempting to avoid surplusage is a tool employed as part of our textual analysis. While we endeavor *161to give effect to every word, we do not reach beyond the statutory text itself to consider the practical, political, or policy implications of the law, nor do we weigh the extrinsic ramifications of our construction, such as the "cost to taxpayers" noted by the dissent. Dissent, ¶41 n.6. Instead, we confine our analysis of unambiguous laws to their text. See Kalal,
¶19 The canon against surplusage usually applies only if there are two ways to read a text. See Scalia, supra ¶17, at 176 (explaining that the canon typically applies when a statutory provision is susceptible to two different interpretations, one of which will result in surplusage while the other does not); see also Bourne Valley Court Tr. v. Wells Fargo Bank, NA,
¶20 Disregarding the actual text of the ordinance, the County proffers an alternative definition of "covered by the terms" of a CBA. It claims that "covered by the terms" of a CBA was merely a "commonly understood method of categorization" meant to distinguish union employees (including those with expired CBAs) from those who had never worked under a CBA. Citing Local 321, Int'l Ass'n of Fire Fighters v. City of Racine,
*766of a CBA to mean any employee represented by a union who was at one point subject to a CBA.
¶21 In support of this construction, the County points to the whereas clauses of the 2011 amendments to Milwaukee County General Ordinance § 201.24(4.1)(2). One of these clauses expressed the County Board's "wish[ ]" to "codify in the ordinances pension provisions previously found in such collective bargaining agreements units for" general municipal employees "related to the pension multiplier, the normal retirement age and the Rule of 75[.]" Based on the County Board's "wishes," the County insists that it could not have meant to expand eligibility for the Rule of 75 to DC-48 employees hired after January 1, 1994 because the expired CBA did not do so. The language the County enacted, however, says otherwise, and it is the enacted language the court must apply. "The words of a governing *162text are of paramount concern, and what they convey, in their context, is what the text means." Scalia, supra ¶17, at 56; see also Kalal,
¶22 The dissent similarly strays from the text of the ordinance while assigning unwarranted import to the phrase "the terms of" in isolation from the full phrase: "covered by the terms of a collective bargaining agreement." The dissent admonishes that our reading of Milwaukee County General Ordinance § 201.24(4.1)(2) renders the phrase " 'by the terms of' ... functionally useless within subsection (4.1)(2)." Dissent, ¶38. The dissent accuses us of conflating the phrase "covered by the terms of a collective bargaining agreement" with the phrase "covered by a collective bargaining agreement," insisting there must be a difference between the two. Dissent, ¶42.
¶23 Specifically, the dissent cites Milwaukee County General Ordinance § 201.24(3.11)(1)(a), (1)(e), and (1)(f) (2018) as other instances of the County's use of both "covered by the terms of" a CBA and "covered by" a CBA. Dissent, ¶¶45-47. The dissent insists "[t]he Board of Supervisors' choice to use differing language in neighboring sections of the County Employee *768Retirement System ordinances should be respected," and the use of these phrases in paragraph (1)(a) in particular "is a distinction with a difference." Dissent, ¶45. Much like its analysis of § 201.24(4.1)(2), however, the dissent offers nothing more than a bare conclusion that the phrases must mean something different. Dissent, ¶45. The dissent cites two other ordinance sections using the phrase "covered by a collective bargaining agreement," but its analysis of these provisions is similarly conclusory. Dissent, ¶48. The dissent's inability to identify any operative difference between being "covered by" a CBA and being "covered by the terms" of a CBA lends credence to the likelihood that the use or omission of "the terms of" is nothing more than a "stylistic mannerism." See Scalia, supra ¶17, at 177.
¶24 By insisting that "covered by the terms" of a CBA is different than "covered by" a CBA without identifying a textual basis for the distinction, the dissent disregards the reality that "[s]ometimes drafters do repeat themselves and do include *163words that add nothing of substance[.]" Scalia, supra ¶17, at 176; see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
¶25 "Though one might wish it were otherwise, drafters ... often (out of a misplaced pursuit of stylistic elegance) use different words to denote the same concept." Scalia, supra ¶17, at 170; see also Freeman v. Quicken Loans, Inc.,
*770We should be wary, however, of "creat[ing] unforeseen meanings or legal effects from" what is nothing more than a "stylistic mannerism." Scalia, supra ¶17, at 177; see also Connecticut Nat'l Bank v. Germain,
¶26 Although the dissent would adopt it, we are unpersuaded by the County's largely unsupported assertion that *164there existed some "commonly understood" definition of "covered by the terms" of a CBA that included employees who were not in fact covered by the terms of a CBA. An employee is not "covered by the terms" of a CBA merely by virtue of being represented by a union. If the County had intended such a categorization, it could have easily written the ordinance to accomplish this, as the court of appeals noted. See Milwaukee Dist. Council 48,
¶27 In this case, we are not called upon to construe an ambiguous ordinance; the ordinance is quite clear so we need not consult extrinsic sources. "We assume that the legislature's intent is expressed in the statutory language." Kalal,
¶28 The County takes Local 321 out of context in an attempt to support its proffered "commonly understood" definition of "covered by the terms" of a CBA; the case does not support the County's construction. In Local 321, the City of Racine and the union signed two *772successive CBAs, and the second CBA-although signed and legally binding-was not yet in effect. Local 321,
¶29 Finally, other portions of Milwaukee County General Ordinance § 201.24(4.1) rebut the County's position that "covered by the terms" of a CBA really means "represented by a union." The ordinance uses each of these phrases to identify different groups of employees. Compare Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b) (using "covered by the terms" of a CBA) with § 201.24(4.1)(2)(f)-(g) (applying to employees "covered by the terms" of a CBA but "not represented *773by" particular unions (emphasis added)).
III. CONCLUSION
¶30 The meaning of Milwaukee County General Ordinance § 201.24(4.1) is plain. Employees not covered by the terms of a CBA are entitled to the benefit of the Rule of 75 if they were hired prior to January 1, 2006. On September 29, 2011, the operative date in the County's amended ordinance, DC-48 members were not covered by the terms of a CBA because the last CBA had expired. Although the County may have been obligated to maintain base wages at the same rates expressed under the expired CBA, the obligation derives from statutes, not any contract. DC-48 members were not "covered by the terms" of the expired CBA, which lacks any legal force or validity. If the County intended a different *166allocation of benefits, it should have chosen different language. But with respect to County employees hired between 1994 and 2006, the plain text enacted by the County does not confine the application of the Rule of 75 to unrepresented employees and the court may not rewrite the ordinance to give effect to the County's purported intentions.
By the Court. -The decision of the court of appeals is affirmed.
"Member" means any member of the County's retirement system. All County employees become members of the retirement system when hired.
It is undisputed DC-48 members are general municipal employees.
All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.
All subsequent references to this ordinance are to the 2011 version unless otherwise indicated.
Paragraphs (2)(c) through (2)(g) in the ordinance address employees "covered by the terms of a collective bargaining agreement" with other unions. The interpretation of these paragraphs was not raised by the parties and therefore is not before us. See Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(c)-(2)(g)(2011).
The Honorable Stephanie G. Rothstein presiding.
Paragraph (1)(a) defines "collective bargaining" in part as "the performance of the mutual obligation of a municipal employer, through its officers and agents, and the representative of its municipal employees in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement ... with respect to wages for general municipal employees."
Wisconsin Stat. § 111.70 also limits any increase in base wages to the increase in the consumer price index.
Peculiarly, the dissent accuses the court of failing to consider "how collective bargaining works," referring to the County's status quo obligations. Dissent, ¶49. We do not overlook "how collective bargaining works" but with some detail reject the dissent's proffered construction of the ordinance because it improperly reaches beyond the ordinance's text, and necessarily injects an assessment of the efficacy of the County's legislative choices, which we decline to do. By relying solely on collective bargaining law rather than the actual text of the ordinance, the dissent's construction improperly "travel[s] ... beyond the borders of the statute." United States v. Great N. Ry.,
Even if a plain meaning interpretation creates surplusage, sometimes legislatures do create surplusage and redundancies of language, and therefore the canon against surplusage is not absolute. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176-77 (2012); State ex rel. Kalal v. Circuit Court for Dane Cty.,
Surely the dissent, in endeavoring to find outcome-determinative meaning in each and every word, would not ascribe interpretive significance to the "doublets and triplets" prevalent in legal writings of every kind, such as "[e]xecute and perform-what satisfies one but not the other? Rest, residue and remainder-could a judge interpret these as referring to three distinct things? Peace and quiet-when is peace not quiet?" See Scalia, supra ¶17, n.10, at 177. As yet another example of how slight variations in the expression of a term often bear no substantive meaning, "[b]efore the 2007 revisions, the Federal Rules of Civil Procedure contained varying requirements for cause, for good cause, for cause shown, and for good cause shown. There was no reason to believe that, after removal of the attendant modifiers, the cause did not have to be good or did not have to be shown." Scalia, supra ¶17, n.10, at 177. So too here; there is no reason to assign a different meaning to "covered by the terms of a collective bargaining agreement" than "covered by a collective bargaining agreement" and the dissent identifies no textual basis for doing so, despite its repeated invocations of plain meaning.
We are aware that the County added paragraphs (f) and (g) of Milwaukee County General Ordinance § 201.24(4.1)(2) after adopting the revisions at issue in this case. Regardless of when the ordinance paragraphs were enacted, the use of both "covered by the terms of a collective bargaining agreement" and "represented by" a union indicates the phrases are not synonymous and cannot mean the same thing. We interpret the language of the ordinance "not in isolation but as part of a whole" and "in relation to the language of surrounding or closely-related statutes." Kalal,
Dissenting Opinion
¶31 I dissent from the majority opinion because *775it misconstrues Milwaukee County General Ordinances ("MCGO") §§ 201.24(4.1)(2) and 201.24(3.11)(1). It errantly dispenses with the choices set out in the ordinances that use two different phrases: (1) "covered by the terms of a collective bargaining agreement" and (2) "covered by a collective bargaining agreement." The opinion pays no heed to whether the phrases chosen by the Milwaukee County Board of Supervisors have distinct meanings. Rather, it conflates the terms despite their use in the context of this and also nearby, closely-related ordinance sections. The majority completely disregards this language and yet claims to engage in a plain meaning analysis that serves to render "by the terms of" mere surplusage. Instead of evaluating whether that language can be construed to have meaning, the majority injects its conclusion that the Board of Supervisors did not mean what it said, relying on the notion "that at times drafters ... include words that add nothing of substance." Majority op., ¶24 (internal quotations omitted). Such an interpretation stands in opposition to basic rules of construction, which traditionally strive to give effect to each word of an ordinance when possible. Due to the majority's significant departure from a plain meaning analysis of § 201.24(4.1)(2), I respectfully dissent.
I
¶32 The most glaring error in the majority's interpretation of MCGO § 201.24(4.1)(2) lies in its failure to evaluate whether the language "covered by the terms of a collective bargaining agreement," as used throughout the subsection, could indeed have meaning when compared with a previous section of the ordinance that does not use that phrase. The majority *776proclaims its intent to adhere to the plain text of the ordinance, and then ignores traditional tools of construction to conclude that "[b]ecause no contractual obligations existed on September 29, 2011," pursuant to an active collective bargaining agreement ("CBA"), "the members of DC-48 were not 'covered by the terms' of a CBA on that date." Majority op., ¶16. As will be explained below, such an interpretation belies the plain meaning of the ordinance.
A
¶33 It is well-established that the rules regarding the interpretation of state statutes apply equally when interpreting local ordinances. State v. Ozaukee Cty. Bd. of Adjustment,
¶34 In construing statutes, "[s]tatutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." State ex rel. Kalal v. Circuit Court for Dane Cty.,
¶35 Additionally and importantly, "[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." Id. The majority correctly states that this rule is not absolute, as "[s]ometimes drafters do repeat themselves and do include words that add nothing of substance[.]" Majority op., ¶24 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176 (2012)). However, this is the exception, not the rule, when interpreting statutes. Indeed, we have repeatedly stated that we should strive to not interpret statutes in a manner that renders any word or phrase unnecessarily superfluous. See, e.g., Metropolitan Assocs. v. City of Milwaukee,
¶36 Moreover, when considering statutes, "[i]t is presumed that the legislature acted with full knowledge of the existing law, both the statute[s] and the court decision[s] interpreting it." Kindy v. Hayes,
B
¶37 My analysis is driven by the plain meaning of the language in the ordinances at issue. Specifically, certain parts of the ordinances use the phrase "covered by the terms of a collective bargaining agreement" and other parts use the phrase "covered by a collective bargaining agreement." Instead of ascertaining why this choice might have been made, the majority quickly surmises that the language has no meaning and was gratuitously added.
*168¶38 The majority starts its analysis at the finish line, reading MCGO § 201.24(4.1)(2) in a manner that ascribes no meaning to the phrase "by the terms of," thus rendering the phrase functionally useless within subsection (4.1)(2). It concludes that, "[r]egardless *779of what the County intended, the plain meaning of 'covered by the terms' of a CBA includes only those employees bound by a valid CBA," stating that it cannot "imagine how an employee could be 'covered by the terms' of an expired CBA that no longer binds its parties." Majority op., ¶13. But, as will be demonstrated, such an interpretation contradicts the plain text of the ordinance.
¶39 The at-issue ordinance determines eligibility for the "Rule of 75," which provides eligible Milwaukee County employees a full pension plan when an employee's age and years of service equals or exceeds 75. Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a) creates Rule of 75 eligibility for any 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 under section 201.24 began prior to January 1, 2006, and who *780retires on and after September 1, 1993."
¶40 Subsection (4.1)(2)(b) creates eligibility for any "member who, on September 29, 2011, is employed and is covered by the terms of a collective bargaining agreement" with a few unions, including Municipal Employe[e]s District Council 48, "and whose initial membership date is prior to *169January 1, 1994." MCGO § 201.24(4.1)(2)(b). Thus, under subsection (4.1)(2)(b), Rule of 75 benefits are afforded to any member of DC-48 or other enumerated union who: (1) initially *781became a member prior to January 1, 1994; and (2) on September 29, 2011, was employed and was covered by the terms of a CBA.
¶41 The majority construes subsections (4.1)(2)(a) and (4.1)(2)(b) in a vacuum to surmise that it creates two groups of members: (1) those covered by an existing CBA with one of the enumerated unions
*782¶42 The majority's construction of MCGO § 201.24(4.1)(2) goes no further to determine whether the different language might have meaning. Instead it conflates "covered by the terms of a collective bargaining agreement" with "covered by a collective bargaining agreement" and declares, without more, that the Board of Supervisors included words that added nothing of substance. See majority op., ¶24. In other words, the majority begins its analysis with an assumption that the legislative body did not mean what it said.
¶43 We most typically do not begin our analysis with an assumption that mandates one conclusion without further considering whether the words used might actually have meaning, especially in the context of a provision that was drafted in order to exclude certain people from Rule of 75 benefits. If the Rule of 75 was intended to apply to all, this provision would be unnecessary.
¶44 The majority dashes to interpret MCGO § 201.24(4.1)(2) by ignoring key language of the text itself and the fact that each phrase appears in surrounding provisions, for example, MCGO § 201.24(3.11). Under a proper understanding of the plain meaning of § 201.24(4.1)(2), since DC-48 members were covered by the terms of a CBA on September 29, 2011, they are eligible for Rule of 75 benefits only if they were employed on September 29, 2011, and initially became members prior to January 1, 1994. See MCGO § 201.24(4.1)(2)(b).
*170This language has distinct meaning as is demonstrated by its use elsewhere.
¶45 As noted previously, statutory interpretation requires an evaluation of the context in which a *783statute appears, as statutes are viewed not in isolation, but as part of a whole. Kalal,
¶46 Subsection (3.11)(1)(a) means to include only employee retirement system members who are "covered by a collective bargaining agreement that has adopted this ordinance," or who are "not covered by the terms of a collective bargaining agreement." This begs the question: When would one be subject "to the terms of" a CBA but not be covered by it? The answer to this question: members may still be covered by the terms of a CBA when the CBA has expired but the terms might continue to apply.
¶47 Subsections (3.11)(1)(e) and (3.11)(1)(f) similarly illustrate this linguistic distinction. Subsection (3.11)(1)(e) applies to any member "who is covered by a collective bargaining agreement." MCGO § 201.24(3.11)(1)(e) (emphasis added). Subsection (3.11)(1)(f) applies to any member "who is covered by the terms of a collective bargaining agreement." § 201.24(3.11)(1)(f) (emphasis added). Why *171again presume, as the majority does, that the Board of Supervisors' choice to create these distinctions deserves no significance? There are indeed categories of employees who may be covered by the terms of a CBA but are not actually covered by a CBA. *785¶48 Moreover, my interpretation of the plain meaning of MCGO § 201.24(4.1)(2) is further supported by a review of other parts of the ordinances, where the Board of Supervisors exclusively uses the phrase "covered by a collective bargaining agreement," without reference to "the terms of" any CBA. See § 201.24(2.18)(3)(a) (defining "[n]ormal retirement age" as 64 for a member (a) "who is not covered by a collective bargaining agreement" at the time his employment terminates; (b) who is "not an elected official" at the time his employment terminates; and (c) "whose initial membership in the retirement system began on or after January 1, 2010" (emphasis added)); MCGO § 203.2.6.f. (defining "[e]mploye" in part as "[t]hose employes who are members of a collective bargaining unit covered by a collective bargaining agreement which (as a result of good faith bargaining between the county and representatives of such unit) does not provide for their inclusion" (emphasis added)).
¶49 As a practical matter, the majority's interpretation of MCGO § 201.24(4.1)(2) is further flawed, as it renders the phrase "by the terms of" surplusage without consideration of how collective bargaining works. Given the status quo requirement-that even the parties agree has been and is controlling-key terms of the CBA must remain in effect until a successor CBA is negotiated and agreed to by the employer and the union. Might that be a reason for using the phrase "by the terms of"? Yes. Simply stated, certain terms of a CBA may have significance even after a CBA has expired. It is undisputed that on September 29, 2011, DC-48 employees were not actually covered by an existing CBA, as the CBA expired in 2009 and no new CBA was executed. Despite that, Milwaukee County was still required to maintain the terms of *786DC-48's expired CBA regarding base wages. Thus, terms of DC-48's expired CBA with Milwaukee County remained in effect, and on September 29, 2011, DC-48 members were covered by the terms of a CBA despite the fact that the CBA was expired. The majority's reading of § 201.24(4.1)(2) fails to give any consideration to this basic principle to which the parties even agree.
¶50 Thus, these ordinances can indeed be interpreted to give meaning to this language and with reason, draw a distinction between members "covered by the terms of" a CBA and members "covered by" a CBA. The majority claims that my analysis "strays from the text of the ordinance while assigning unwarranted import to the phrase 'the terms of' " in the CBA. Majority op., ¶22. To the contrary, as I have shown, I adhere to the text of the ordinance, reading MCGO § 201.24(4.1)(2) completely and giving effect to each word in the ordinance.
¶51 In order for the majority's reading of MCGO § 201.24(4.1)(2) to pass muster, one must assume that the Board of Supervisors' choice to sometimes use different, distinct, and disjunctive provisions was haphazard and is entitled to no consideration whatsoever. The majority fails to even attempt to reconcile how these choices might have meaning. Therein lies the Achilles heel in the majority's reasoning.
¶52 Due to the majority's significant misinterpretation of MCGO § 201.24(4.1)(2), I respectfully dissent from the majority opinion.
*172¶53 I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK joins this dissent.
I note that Milwaukee County also raises significant concerns regarding what it phrases as the duty to "maintain the status quo about mandatory subjects of bargaining" and its effect on the Milwaukee County General Ordinances. As I focus on the plain meaning of MCGO § 201.24(4.1)(2) based upon the ordinance's text, I will not further address Milwaukee County's argument regarding the status quo obligation.
Milwaukee Cty. Gen. Or. § 201.24(4.1)(2) creates seven groups of members who may be eligible for Rule of 75 pension benefits, but only subsections (4.1)(2)(a) and (4.1)(2)(b) are at issue here. The majority criticizes my purported failure to address or explain the effect of MCGO § 201.24(4.1)(2)(f)-(g). Subsections (4.1)(2)(f) and (4.1)(2)(g) did not appear in the Milwaukee County General Ordinances until July of 2016-approximately 20 months after this action was commenced. However, subsections (4.1)(2)(f) and (4.1)(2)(g) merely state that if an employee is covered by the terms of a CBA on September 29, 2011, and is no longer represented by either of the two enumerated unions at the date of retirement, the employee is eligible for a Rule of 75 pension. See § 201.24(4.1)(2)(f)-(g). The subsections seem to ensure that employees who fall within either subsection will have a pension despite no longer being represented by either of the two enumerated unions when they retire.
The remainder of subsection (4.1)(2)(a) limits eligibility for certain employees, such as "any member eligible under section 4.5," which addresses "deferred vested retirement," for certain sheriffs or correctional officers. MCGO § 201.24(4.1)(2)(a). Such limitations are not relevant for our purposes here.
Like subsection (4.1)(2)(a), subsection (4.1)(2)(b) states that it does not apply to "any member eligible under section 4.5." MCGO § 201.24(4.1)(2)(b).
Subsections (4.1)(2)(c) through (4.1)(2)(g) of the ordinance further define which members of specifically enumerated unions, who were covered by the terms of a CBA on a particular date, are eligible under the Rule of 75. See MCGO § 201.24(4.1)(2)(c)-(g).
While the cost to taxpayers cannot drive statutory interpretation, the majority's misinterpretation is not a distinction without a difference. Indeed, the majority's errant construction of MCGO § 201.24(4.1)(2) would result in Milwaukee County taxpayers providing an additional $6.8 million in benefits.
Subsections (3.11)(1)(c) and (3.11)(1)(d) operate similarly to subsection (3.11)(1)(a). See MCGO § 201.24(3.11)(1)(c)-(d).
Reference
- Full Case Name
- MILWAUKEE DISTRICT COUNCIL 48, Plaintiff-Respondent, v. MILWAUKEE COUNTY, Defendant-Appellant-Petitioner.
- Cited By
- 40 cases
- Status
- Published