COURT OF APPEALS

DECISION

DATED AND FILED

April 23, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2022AP1401 Cir. Ct. No. 2021CV4632

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

JOHN KLEIN, PAUL LOUGH, ERIC PFEIFFER, BRIAN MATTE, DAVID KRITZECK,

MICHAEL HAMANN, KENNETH MURRAY, JAMES CAMPBELL, JOSEPH BAUER,

CRAIG NAWOTKA, ALEXANDER MANTAY, HERBERT SMITH, STEPHAN WHITE,

DENISE RUEDA, ANGELA GONZALEZ, EDDIE ALBRITTON, GREGORY GARNER,

PATRICK PAJOT, SHELONDIA TARVER, JOSEPH HALL, BRIAN BURCH, DIANA 

BARCHUS, DANIEL BOECK, SCOTT KEMPINSKI, DARREN LISS AND GREG 

DANES,

PLAINTIFFS-APPELLANTS,

V.

CITY OF MILWAUKEE AND MILWAUKEE EMPLOYEES’ RETIREMENT 

SYSTEM/ANNUITY AND PENSION BOARD,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County: 

FREDERICK C. ROSA, Judge. Affirmed. 

Before White, C.J., Donald, P.J., and Geenen, J.
No. 2022AP1401

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Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Plaintiffs, a group of police officers and firefighters

for the City of Milwaukee, appeal an order of the circuit court denying their motion 

for declaratory judgment and dismissing their action. They claim that although they 

all began employment with the City on February 21, 2000, they are nonetheless 

entitled to certain retirement benefits eligible to retirement fund members who were 

“in active service” as of January 1, 2000. We agree with the circuit court that 

Plaintiffs are not eligible for these benefits, and accordingly, we affirm.

BACKGROUND

¶2 The following facts are undisputed. Plaintiffs are police officers and 

firefighters for the City of Milwaukee, all of whom began their employment on 

February 21, 2000. Upon starting their employment, each plaintiff enrolled in a 

retirement fund known as the Firemen’s and Policemen’s Survivorship Fund

(“Survivorship Fund”). The Survivorship Fund was one of several Cityadministered pension and/or retirement benefit plans available to City employees 

through the City of Milwaukee Employes’ Retirement System (“ERS” or “the 

system”).

1

¶3 Prior to Plaintiffs beginning employment, the City was involved in 

litigation regarding its ERS. To end the litigation, a resolution was proposed

whereby the assets within the system’s various retirement funds would be merged 

 

1

 In Richland School District v. DILHR, 166 Wis. 2d 262, 271 n.1, 479 N.W.2d 579 (Ct. 

App. 1991), we explained that “employe” is sometimes used in opinions instead of the significantly 

more common “employee” as the result of an express drafting decision of the original drafter of 

WIS. STAT. chapters 101 through 108. The decision was made in order to avoid typos on a 

typewriter.
No. 2022AP1401

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into one fund known as the “Combined Fund.” After the merger, members would 

participate in and receive certain pension or retirement benefits through the new 

Combined Fund, and the Survivorship Fund benefits would cease to exist.

¶4 On October 29, 1999, a Global Pension Settlement (“GPS”) was 

reached. Relevant here, the GPS provided that the Survivorship Fund would merge 

into the Combined Fund if 90% of all affected members, i.e., employees enrolled 

and participating in the Survivorship Fund, owning 90% of the retirement assets 

agreed to the GPS. Moreover, in order for the GPS to take effect without a court 

order, 100% of the members of the Survivorship Fund had to agree to the 

Survivorship Fund’s dissolution through a written consent. 

¶5 Under the GPS, after 100% of the Survivorship Fund members agreed 

to its dissolution, the Survivorship Fund’s assets would be transferred to the 

Combined Fund, and the Survivorship Fund would cease to exist. Additionally,

those members “in active service” as of January 1, 2000, would be awarded an 

additional two years of service: for covered police officers, after completing 

twenty-five years of creditable service or attaining age fifty-seven; and for covered 

firefighters, after twenty-two years of creditable service or attaining age forty-nine. 

They would also receive a one-time bonus paid out as a lump sum upon retirement 

in an amount equal to 5% of that member’s accrued benefit at retirement

(“Additional Benefits”). 

¶6 In April 2000, the City Common Council passed various ordinances 

to create the new Combined Fund and facilitate the GPS. It enacted Milwaukee City 

Charter Ordinance § 36-08-9 to provide a means by which ERS members enrolled 

in the system prior to June 28, 2000, could execute a written consent form agreeing 

to retroactively participate in the Combined Fund. Specifically, that ordinance 
No. 2022AP1401

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stated that members “enrolled in the retirement system prior to June 28, 2000 may 

execute a consent form to participate in the [C]ombined [F]und in which case they 

shall participate in the [C]ombined [F]und effective January 1, 2000.” MILWAUKEE,

WIS. MCC § 36-08-9. Other ordinances codified the Additional Benefits provided 

under the GPS, specifically stating that police officers and firefighters “in active 

service as of January 1, 2000, who participate[] in the [C]ombined [F]und” are 

eligible for the additional service credit and a 5% bonus. MILWAUKEE, WIS. MCC 

§§ 36-04-4-a & b, 36-05-11-a & b.

¶7 Subsequently, the City solicited consent from members via a “Global 

Settlement Consent Form,” directed to each member. The consent form allowed 

members to either “consent” or “object” to the GPS. It explained that, by 

consenting, members agreed to participate in the new Combined Fund and obtain 

other benefit improvements, and authorized the City to proceed to implement the 

GPS on their behalf. It also provided an explanation of the new benefits structure 

and the implementation process.

¶8 Plaintiffs, because they were enrolled in ERS and the Survivorship 

Fund prior to June 28, 2000, were required to execute consent forms to participate 

in the Combined Fund. Each Plaintiff consented to the GPS and to their 

participation in the Combined Fund. A sufficient number of ERS members 

consented to the merger and to participate in the Combined Fund. The City 

implemented the GPS.2 

 

2

 From their hire date on February 21, 2000, through February 2001, Plaintiffs made 

contributions via payroll deduction to the Survivorship Fund. Upon the implementation of the 

GPS, those contributions were returned to Plaintiffs.
No. 2022AP1401

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¶9 In 2021, two firefighter plaintiffs nearing twenty-two years of service 

made a request to collect the Additional Benefits from the Combined Fund. ERS 

denied the request. The City concluded that, although the two plaintiffs were 

members of the Combined Fund as of January 1, 2000 by having executed the 

written consent permitting retroactive participation, they were not “in active 

service” on that date as required by the GPS and relevant ordinances. Therefore, 

they were not eligible to receive the Additional Benefits.

¶10 On August 3, 2021, Plaintiffs filed the instant lawsuit seeking a 

declaratory judgment that they are entitled to the Additional Benefits. Plaintiffs

filed a motion for declaratory judgment. The circuit court denied the motion and

dismissed Plaintiffs’ action. In an oral ruling, the circuit court concluded that 

Plaintiffs were not “in active service” as of January 1, 2000, because they did not 

become employed by the City until February 21, 2000. 

¶11 Plaintiffs appeal.

DISCUSSION

¶12 Plaintiffs appeal the circuit court’s order denying their motion for 

declaratory judgment and dismissing their action. The circuit court’s ruling against 

Plaintiffs had the effect of a summary judgment; the parties agree that our review 

should be governed by the summary judgment standard that we apply de novo using 

the same methodology as the circuit court. See Young v. West Bend Mut. Ins. Co., 

2008 WI App 147, ¶6, 314 Wis. 2d 246, 758 N.W.2d 196. Additionally, the issues 

involved require the interpretation of ordinances and thus present a question of law 

that we review de novo, applying the same principles used in statutory 

interpretation. Milwaukee Dist. Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶11, 

385 Wis. 2d 748, 924 N.W.2d 153. As such, we begin with the language of the 
No. 2022AP1401

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ordinance, giving the words their “‘common, ordinary, and accepted meaning, 

except that technical or specially-defined words or phrases are given their technical 

or special definitional meaning.’” Id. (citation omitted). If the meaning of the 

language is plain, the inquiry ordinarily ends. Id.

¶13 Plaintiffs argue, and the City agrees, that by signing the consent form 

to convert the Survivorship Fund into the Combined Fund, they became members 

of the Combined Fund “effective January 1, 2000[,]” under MILWAUKEE, WIS.

MCC § 36-08-9. However, the parties disagree about whether Plaintiffs were “in 

active service” as of January 1, 2000. 

¶14 Plaintiffs argue that surrounding ordinances and certain language in 

the consent form make clear that they are considered to have been “in active service” 

as of January 1, 2000, and are therefore eligible for the Additional Benefits. In 

support, they cite MILWAUKEE, WIS. MCC § 36-13-2-c, which provides that rights 

to benefits vest on the date of the commencement of their membership in the system. 

They further point to the following language in the consent form:

If I consent to the Global Settlement by checking the 

“Consent” box below, I understand that I am agreeing to 

participate in the newly created “Combined Fund” within the 

Milwaukee Employes’ Retirement System (“MERS”). I 

understand that this Combined Fund will provide improved 

benefits to its participants and fund structural changes that 

will benefit the City of Milwaukee (“City”) and City 

Agencies participating in the MERS. I understand that I will 

be authorizing the City to proceed to implement the Global 

Settlement on my behalf, thereby waiving my right to object 

to the terms and conditions of the Global Settlement and my 

right to object to my participation in the Combined Fund. I 

further understand that the City has reserved the right to 

refuse to proceed with implementation of the Global 

Settlement, even with my consent, if 90% of the members of 

the MERS representing 90% of the assets of the MERS do 

not consent to the Global Settlement.
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If I object to the Global Settlement, by checking the 

“Object” box below, I understand that I am refusing to 

participate in the Combined Fund and will not receive the 

additional pension benefits provided under the Global 

Settlement, unless the Court orders objecting members to 

participate in the Global Settlement.

(Plaintiffs’ emphasis).

¶15 Plaintiffs recognize that the GPS requires them to have been “in active 

service” in order to be eligible for the Additional Benefits, but they argue that the 

meaning of “active service” should be controlled by MILWAUKEE, WIS. MCC § 350-

40-1-a, which reads:

350-40. Vacations. 1. DEFINITIONS.

a. “Active service” means the time spent as an appointed 

employee on the city payroll in a position qualifying for 

fringe benefits ....

Although Plaintiffs do not explicitly say so, it appears that their argument is that 

because they are deemed to be “participants” in the Combined Fund effective 

January 1, 2000, they were “on the city payroll in a position qualifying for fringe 

benefits” as of that date as well, therefore qualifying for the Additional Benefits.

¶16 We agree with the circuit court and the City that Plaintiffs are not 

entitled to the Additional Benefits because they were not “in active service.” As the 

City points out, Plaintiffs’ interpretation runs contrary to well-established principles 

of statutory interpretation. Plaintiffs’ interpretation treats “in active service” and 

“participation in the [C]ombined [F]und” as identical concepts even though they 

appear together in the same sentence. “Statutory language is read where possible to 

give reasonable effect to every word, in order to avoid surplusage.” State ex rel. 

Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 
No. 2022AP1401

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110. In order to avoid surplusage, we read these phrases as two distinct 

requirements to be eligible for the Additional Benefits. 

¶17 There is no dispute that Plaintiffs “participat[ed] in the [C]ombined 

[F]und” effective January 1, 2000 by virtue of having executed the written consent 

allowing for retroactive participation, so they meet this requirement of eligibility. 

Further, the parties agree that we should use the definition of “active service” in 

MILWAUKEE, WIS. MCC § 350-40-1-a to determine if Plaintiffs were “in active 

service” for purposes of Additional Benefit eligibility. 

¶18 Although it is “[t]his court, not the parties,” that decides questions of 

law, Cramer v. Eau Claire County, 2013 WI App 67, ¶11, 348 Wis. 2d 154, 833 

N.W.2d 172 (citations omitted), we agree with the parties that it is appropriate to 

apply Chapter 350’s definition of “active service” in this context. See Kalal, 271 

Wis. 2d 633, ¶46 (explaining that “closely-related statutes” are proper 

considerations in interpreting statutory language). We conclude that Plaintiffs do 

not meet the definition. “Active service” in Chapter 350 requires that the employee 

be: (1) in an appointed city position; (2) on the city payroll; and (3) in a position 

qualifying for fringe benefits. MILWAUKEE, WIS. MCC § 350-40-1-a.

¶19 We agree with the City that under Chapter 350’s definition, it is likely 

not possible that “active service” could ever begin on a date earlier than the 

employee’s date of hire because that is the earliest date that an employee could fill 

a city position or be added to the city’s payroll. Because Plaintiffs were not 

“appointed employee[s] on the city payroll in a position qualifying for fringe 

benefits” as of January 1, 2000, they were not “in active service” as of that date. 
No. 2022AP1401

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Therefore, the circuit court correctly concluded that Plaintiffs were ineligible for the 

Additional Benefits.

3

¶20 For the foregoing reasons, we affirm the circuit court. 

By the Court.—Order affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5. (2021-22).

 

3

 Because we conclude that Plaintiffs were not “in active service” as of January 1, 2000, 

we do not address the issue of whether Plaintiffs waived their right to the Additional Benefits by 

signing the consent form to join the Combined Fund.