Morris v. Employe Trust Funds Board

554 N.W.2d 205, 203 Wis. 2d 172, 1996 Wisc. App. LEXIS 846
CourtCourt of Appeals of Wisconsin
DecidedJune 27, 1996
DocketNo. 94-0857
StatusPublished
Cited by1 cases

This text of 554 N.W.2d 205 (Morris v. Employe Trust Funds Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Employe Trust Funds Board, 554 N.W.2d 205, 203 Wis. 2d 172, 1996 Wisc. App. LEXIS 846 (Wis. Ct. App. 1996).

Opinion

GARTZKE, P.J.

John Morris appeals from a circuit court order affirming a decision of the Employe Trust Funds Board of the State of Wisconsin, which in turn adopted an administrative decision by a hearing examiner. Morris contends that the Board erred in determining when he "began service" under § 20.926, Stats., 1973, and in determining his "active military service" for which he should be credited in figuring his state retirement benefits. We reject his argument concerning when he "began service," and we conclude that he is ineligible for more credits for "active military service." We, therefore, affirm.

1. BACKGROUND

In 1971, Morris was appointed to the Wisconsin Tax Appeals Commission. He continued in his position as commissioner until he retired in 1991. During his tenure, he was reappointed several times, went from part-time to full-time, and twice served as chairman. One of his reappointments occurred in 1985, after the legislature set a special one-time date for all commissioners' terms to expire simultaneously.

In 1973, the legislature enacted ch. 51, STATS., Laws of 1973, creating § 20.926, STATS. The new law established a category of employees called "career executives" who were eligible for higher retirement benefits [177]*177in exchange for higher mandatory retirement contributions and a mandatory retirement age. The law required qualifying employees to elect by December 31, 1973, if they wished to come under the new category. The new law provided that any person who "begins service" in a career executive position after July 1, 1973, would be a "career executive" without right of election.

Although Morris elected in 1973 not to come under the § 20.926, Stats., program, he claimed career executive retirement benefits when he retired in 1991. He contended that because his post-1973 reappointments to the tax appeals commission meant he "began service" anew several times after his election not to participate, he automatically became a "career executive" without right of election. The board rejected his contention.

Upon retirement, Morris submitted an affidavit to the board purporting to show that he qualified for an additional 1.5 years of creditable state service because he had spent a qualifying amount of time on "active" military duty in the Air Force Reserves. Morris served in the Air Force Reserves from May 31,1955, to August 29, 1955, and from March 1, 1958, to February 10, 1978, and in the Air Force from August 30, 1955 through February 28, 1958. Morris had been granted two-and-one-half years of creditable military service for his service in the Air Force.

At a hearing before a hearing examiner, Morris furnished documents1 showing "active duty points" he had accumulated in the Air Force Reserves since 1955, [178]*178for the purposes of a military pension. He testified that each point represented one full day of active duty time. While in the Air Force Reserves, he also accumulated inactive duty points. He testified that inactive duty points are earned when "you are put on a reserve status with your individual reserve unit and you are on a schedule of weekends," and that his active duty points earned in the Reserves were not for training.

[O]n active duty orders for the United States Air Force, I was either by direction of the president of the United States or by the order of the secretary of Air Force, ordered to active duty for a specific period of time.

While ordered to active duty, he was assigned from his reserve unit to regular air force units. He testified as follows as to a 1977 active duty mission:

From Ramstein Air Base, Germany, I flew cargo within the system of the air — Military Airlift Command as a navigator to Dhahran, Saudi Arabia. Back from Dhahran, Saudi Arabia to Ramstein, Germany. And then from Ramstein, Germany, back to Dhahran, Saudi Arabia, back to Ramstein Air Base, Germany. From Ramstein Air Base, Germany, back to Dover Air Force Base, at which time I went back off of active duty, returned back to my home and that is just one of the hundreds of orders that I've received sending me to different places all over the world, flying in the active duty status and flying around the world.

He testified that other missions were similar to the 1977 mission.

[179]*1791 flew out of bases out of Kansas City, Missouri. I went to Japan flying with the Military Airlift Command out of our own aircraft, which is a C-124 Globemaster. We would go and fly and pick up cargo in California. We would fly it to Japan. We would fly it into Korea. We would fly cargo into Vietnam, to the Philippines, to Germany, to — to Saudi Arabia. We were worldwide. We were in the Military Airlift Command system....

In his proposed decision, the hearing examiner concluded "the greater weight of the credible evidence does not indicate that the Appellant's reserve unit was called into 'active duty' at any time from 1958 to 1971 or was functionally under the control of the regular armed forces during that period . . . ." The hearing examiner concluded that Morris was not entitled to any additional creditable service for his service in the Air Force Reserves. The Board adopted the decision. Morris then brought a certiorari action in the circuit court for Dane County for review of the Board's decision.2 The court affirmed the Board, and he appeals.

2. BEGINNING SERVICE

Morris argues that because the date he "began service" under § 20.926, Stats., 1973, is a matter of first [180]*180impression, we should give no weight to the Board's determination. The Board argues that we should defer to its determination. We need not resolve the dispute. Even giving the Board's determination no weight, we conclude that Morris did not "begin service" anew with every appointment.

Morris argues that an appointed state official who holds over without being legislatively confirmed is and remains a de facto official until confirmation. Because his service on the tax appeals commission was punctuated with several periods of delay while he waited for either reappointment or confirmation, he concludes that his appointments began new terms of service. That is not the law.

Over thirty years ago, the supreme court held that when "an incumbent holds over after the expiration of the term for which he was originally appointed," then "it cannot be said that the (appointive) office is vacant ...." Specifically, an officer required to be confirmed by the legislature has the right to continue in office after the expiration of his or her term and is an officer de jure until the legislature again considers confirmation.3 State ex rel. Thompson v. Gibson, 22 Wis. 2d 275, 294, 125 N.W.2d 636, 645 (1964).

One who serves in the same capacity for twenty years does not "begin service" more than once.4 Reap-[181]*181pointments and reconfirmations sustained Morris' service, but his service never lapsed. The practical details of his career confirm that proposition. During his entire twenty years, his sick leave and vacation pay accrued, and he served without interruption of his salary.

We reject Morris's argument that because Wis. Const, art.

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Related

Morris v. EMPLOYE TRUST FUNDS BD. OF WISCONSIN
554 N.W.2d 205 (Court of Appeals of Wisconsin, 1996)

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554 N.W.2d 205, 203 Wis. 2d 172, 1996 Wisc. App. LEXIS 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-employe-trust-funds-board-wisctapp-1996.