                                                              2014 WI 130

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2012AP2466
COMPLETE TITLE:         Suzanne Stoker and Wisconsin Federation of
                        Nurses and
                        Health Professionals , Local 5001, AFT, AFL-CIO,
                                   Plaintiffs-Respondents,
                             v.
                        Milwaukee County,
                                   Defendant-Appellant-Petitioner,
                        Milwaukee County Pension Board,
                                   Defendant-Co-Appellant-Petitioner.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 352 Wis. 2d 125, 841 N.W.2d 532)
                                   (Ct. App. 2013 – Published)
                                     PDC No.: 2013 WI App 144

OPINION FILED:          December 19, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 1, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               William S. Pocan

JUSTICES:
   CONCURRED:
   DISSENTED:           BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                        filed.)
  NOT PARTICIPATING:

ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Alan M. Levy and Lindner & Marsack, S.C., Milwaukee, and oral
argument by Alan M. Levy.


       For        the   defendant-co-appellant-petitioner,    there   were
briefs by         Beth Ermatinger Hanan     and   Gass Weber Mullins LLC,
Milwaukee, and oral argument by Beth Ermatinger Hanan.
    For   the   plaintiffs-respondents,   there   was   a   brief   by
Jeffrey P. Sweetland and Hawks Quindel, S.C., Milwaukee. Oral
argument by Jeffrey P. Sweetland.




                                2
                                                                       2014 WI 130
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.   2012AP2466
(L.C. No.   11CV18550)

STATE OF WISCONSIN                           :             IN SUPREME COURT

Suzanne Stoker and Wisconsin Federation of
Nurses and Health Professionals, Local 5001,
AFT, AFL-CIO,

             Plaintiffs-Respondents,                                   FILED
      v.
                                                                DEC 19, 2014
Milwaukee County,
                                                                   Diane M. Fremgen
                                                                Clerk of Supreme Court
             Defendant-Appellant-Petitioner,

Milwaukee County Pension Board,

             Defendant-Co-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                        Reversed

and remanded.


      ¶1     ANNETTE KINGSLAND ZIEGLER, J.            This is a review of a

published     decision   of   the   court    of    appeals1       affirming       the

Milwaukee County Circuit Court's2 order granting summary judgment


      1
       Stoker v. Milwaukee          Cnty.,        2013    WI     App     144,     352
Wis. 2d 125, 841 N.W.2d 532.
      2
          The Honorable William S. Pocan presided.
                                                                     No.   2012AP2466



and   declaratory       and      injunctive      relief   to     Suzanne     Stoker

("Stoker")3 and       her labor union, the            Wisconsin Federation of

Nurses and Health Professionals, Local 5001, AFT, AFL–CIO ("the

Federation").         The    suit   was    filed     against   the    respondents,

Milwaukee County and the Milwaukee County Pension Board ("the

Pension    Board").         We   reverse   and   remand   this    matter    to   the

circuit court to dismiss the complaint.

      ¶2    Milwaukee County calculates pension payments for its

retired    employees        by   multiplying     a   retiree's    final     average

salary4 by a certain percentage known as a multiplier, and the

resulting number is then multiplied by the retiree's total years

of county service.           When Stoker's county service began, a 1.5%

multiplier applied to her service.                   In 2000 Milwaukee County

      3
       Stoker filed this suit on behalf of all similarly situated
Milwaukee County employees. References to Stoker will refer to
this class of employees unless the context clearly indicates
otherwise.
      4
       Milwaukee County, Wis. General Ordinance                       ("M.C.G.O.")
§ 201.24(2.8) (2000) provides in relevant part:

      Final average salary for a member whose continuous
      membership began after January 1, 1982, means the
      average annual earnable compensation for the five (5)
      consecutive years of service during which the member's
      earnable compensation was the highest, or, if he
      should have less than five (5) years of service, then
      his average annual earnable compensation during such
      period of service. However, when a member is employed
      by the state but paid partly by the county, his final
      average   salary  with   respect  to   any  period  of
      employment solely by the county shall be the average
      earnable compensation for the three (3) or five (5)
      consecutive years respectively of such service during
      which his earnable compensation was the highest.


                                           2
                                                                            No.   2012AP2466



passed an ordinance that increased the multiplier from 1.5% to

2% for service rendered on and after January 1, 2001.                             Milwaukee

County, Wis. General Ordinance ("M.C.G.O.") § 201.24(5.15)(1)(a)

(2000).5         In 2011, consistent with the terms of a collective

bargaining        agreement      with      the     Federation,       Milwaukee       County

passed an ordinance that reduced the multiplier from 2% to 1.6%

for all county service performed on and after January 1, 2012,

the       effective          date     of         the         ordinance.            M.C.G.O.

§ 201.24(5.1)(2)(f)           (2011).        The       2%    multiplier     continued    to

apply to service rendered by Stoker from 2001 through 2011.

      ¶3        Stoker argues that this reduction of the multiplier is

a breach of contract because she had a vested right to have the

2% multiplier apply to her post-2011 county service and because

she   did       not    personally     consent         to    the   reduction.      Milwaukee

County      and       the   Pension   Board       argue       that   the    reduction    is

authorized because Stoker had no vested right to have the 2%

multiplier apply to her post-2011 county service. The Pension

Board further argues that even if she had such a right, the
Federation        lawfully      consented        to    the     reduction     on    Stoker's

behalf     by     ratifying     the   collective            bargaining     agreement    that

agreed to reduce the multiplier from 2% to 1.6% for post-2011

service.



      5
       Technically, this ordinance provided a 0.5% multiplier in
addition to the 1.5% multiplier that applied under M.C.G.O.
§ 201.24(5.1).   Thus, these two ordinances combined provided a
2% multiplier.


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                                                                    No.     2012AP2466



       ¶4      We conclude that Milwaukee County did not breach the

contract with Stoker when it amended the pension multiplier from

2% to 1.6%.           The amendment did not breach Stoker's contractual

right to retirement system benefits earned and vested because it

had prospective-only application to future service credits not

yet earned, specifically, on and after January 1, 2012.                              We

conclude       that    the    legislature       preserved   Stoker's    rights      and

benefits already accrued but also gave Milwaukee County home

rule authority with the flexibility to enact such prospective-

only changes.           We conclude that Stoker does not have a vested

right to have the 2% multiplier apply to her then-unearned post-

2011 service.           In other words, Milwaukee County could so amend

the formula and apply it prospectively because that prospective

application does not "diminish or impair" benefits accrued from

service       credits     already   earned.         Because   we   conclude      that

Milwaukee County did have the ability to make these prospective-

only       reductions    of   the   multiplier      without   Stoker's      personal

consent, we need not address whether the Federation lawfully
consented, on Stoker's behalf, to the reduction.

                              I.    FACTUAL BACKGROUND

       ¶5      The relevant facts are not in dispute.                   In 1937 the

legislature      required      counties     with    populations    of     500,000    or

more to develop retirement systems for their employees.                             Ch.

201, Laws of 1937.6            Pursuant to this law, the Milwaukee County


       6
           Section 1 of ch. 201, Laws of 1937 provided:

                                                                        (continued)
                                            4
                                                           No.    2012AP2466



Employees' Retirement System ("MCERS") was created on January 1,

1938.     On   May   14,   1945,   the   legislature   required   employee

benefits under MCERS to "be assured by benefit contracts."              Ch.

138, Laws of 1945.7        The legislature also provided that "each


          RETIREMENT    SYSTEM    IN    POPULOUS   COUNTIES;
    DEFINITIONS.     In each county having a population of
    five hundred thousand or more a retirement system
    shall be established and maintained for the payment of
    benefits to the employes of such county and to the
    widows and children of such employes, except employes
    who    are   contributory   to,   participants  in,   or
    beneficiaries of a pension fund in operation in the
    state, or any municipal subdivision thereof.         The
    funds of the retirement system shall be derived,
    administered and disbursed in accordance with the
    provisions of this act.       Except where the context
    plainly requires a different meaning, the following
    words    and    phrases   shall   have    the  following
    meanings: . . . .
    7
        Chapter 138, Laws of 1945, provided in pertinent part:

         Chapter 201, Laws of 1937, section 13a is created
    to read:

         (Chapter 201, Laws of 1937) Section 13a (1)
    LEGISLATIVE POLICY.   Employes have been attracted to
    and have remained in the public service in counties of
    more than 500,000 population despite the prevailing
    higher wages in other employments because of the
    deferred compensation for their services promised to
    them in the form of retirement annuities and death
    benefits in the retirement system to which they have
    been admitted as contributing members. The purpose of
    this act is to strengthen the public service in the
    most populous counties of the state by establishing
    the security of such retirement and death benefits.

         (2) CONTRACTS TO ASSURE BENEFITS.   The benefits
    of members, whether employes in service or retired as
    beneficiaries,   and of   beneficiaries  of  deceased
    members in the retirement system created by chapter
                                                   (continued)
                                     5
                                                             No.    2012AP2466



[MCERS] member and beneficiary having such a benefit contract

shall have a vested right to such annuities and other benefits

and   they   shall   not   be   diminished   or   impaired   by    subsequent

legislation or by any other means without his consent."                   Id.

The legislature further provided that each MCERS member has a

      201, laws of 1937, as amended, shall be assured by
      benefit contracts as herein provided:

           (a) Every such member and beneficiary shall be
      deemed to have accepted the provisions of this act and
      shall thereby have a benefit contract in said
      retirement system of which he is such member or
      beneficiary as of the effective date of this act
      unless, within a period of 30 days thereafter, he
      files with the board administering the system a
      written notice electing that this act shall not apply
      to him.   The annuities and all other benefits in the
      amounts and upon the terms and conditions and in all
      other respects as provided in the law under which the
      system was established as such law is amended and in
      effect on the effective date of this act shall be
      obligations of such benefit contract on the part of
      the county and of the board administering the system
      and each member and beneficiary having such a benefit
      contract shall have a vested right to such annuities
      and other benefits and they shall not be diminished or
      impaired by subsequent legislation or by any other
      means without his consent.

             . . .

           (c) Every future entrant who shall become a
      member of this retirement system [MCERS] after the
      effective date of this act shall have a similar
      benefit contract and vested right in the annuities and
      all other benefits in the amounts and on the terms and
      conditions and in all other respects as provided in
      the law under which the retirement system was
      established as such law shall have been amended and be
      in effect at the date of commencement of his
      membership [in MCERS].


                                      6
                                                                         No.    2012AP2466



"vested right in the annuities and all other benefits in the

amounts    and   on   the     terms    and      conditions       and     in    all    other

respects    as   provided      in     the       law    under     which    [MCERS]       was

established as such law shall have been amended and be in effect

at the date of commencement of his membership [in MCERS]."                            Id.

    ¶6      In   1957   the    legislature            provided   that     a    member    of

MCERS has a "vested right . . . to all increases in benefits

covered by amendments subsequent to the date his membership [in

MCERS] is effective."         § 6, ch. 326, Laws of 1957.

    ¶7      In 1965 the legislature granted "home rule" authority

to Milwaukee County over MCERS.                  § 1, ch. 405, Laws of 1965.8


    8
        Section 1 of ch. 405, Laws of 1965 provided in relevant
part:

         Chapter 155,           laws    of      1937,     section      59.137    is
    created to read:

         (Chapter 155, laws of 1937) 59.137 PENSION STUDY
    COMMISSION.    (1) For the purpose of best protecting
    the   employes   subject  to  this   act  by   granting
    supervisory authority over each benefit fund created
    hereunder to the governmental unit most involved
    therewith, it is declared to be the legislative policy
    that the future operation of each such benefit fund is
    a matter of local affair and government and shall not
    be construed to be a matter of state-wide concern.
    Each county which is required to establish and
    maintain a benefit fund pursuant to this act is hereby
    empowered by county ordinance, to make any changes in
    such benefit fund which hereafter may be deemed
    necessary or desirable for the continued operation of
    such benefit fund, but no such change shall operate to
    diminish or impair the annuities, benefits or other
    rights of any person who is a member of such benefit
    fund prior to the effective date of any such change.


                                            7
                                                                         No.     2012AP2466



This session law provided that "the future operation of each

[county] benefit fund is a matter of local affair and government

and   shall      not    be    construed      to      be   a   matter    of     state-wide

concern."        Id.    This law empowered Milwaukee County "to make any

changes in [its employee] benefit fund which hereafter may be

deemed necessary or desirable for the continued operation of

[MCERS]."         Id.        However,    "no       such   change   shall       operate   to

diminish or impair the annuities, benefits or other rights of

any person who is a member of [MCERS] prior to the effective

date of any such change."              Id.

      ¶8      On or about December 17, 1981, Milwaukee County passed

an ordinance that applied a 1.5% pension benefit multiplier to

county service performed by an employee whose employment with

the County began after January 1, 1982.                       M.C.G.O. § 201.24(5.1)

(1981).9    Thus, under this ordinance, the pension payments for an

employee whose employment with the County began after January 1,

1982,     were    calculated      by    multiplying        1.5%    by   the    employee's

final average salary, and the resulting number was multiplied by
the employee's total years of service with Milwaukee County.

Id.



      9
       This ordinance provided in relevant part: "A [MCERS]
member . . . other than a deputy sheriff or elected official,
whose continuous membership began after January 1, 1982, who
meets the requirements for a normal pension shall receive an
amount equal to one and one-half (1 1/2) percent of his final
average salary multiplied by the number of his years of
service . . . ."


                                               8
                                                                                 No.       2012AP2466



      ¶9      On or about April 13, 1982, Stoker began employment

with Milwaukee County and thereby became a member of MCERS.

Stoker      was     a       Milwaukee        County     employee         and     MCERS       member

continuously since then and still was both when this lawsuit was

filed.

      ¶10     On       or     about        November     2,     2000,       Milwaukee         County

increased the pension multiplier to 2% for county employees,

effective     January          1,   2001.          M.C.G.O.     § 201.24(5.15)              (2000).

This 2% multiplier applied to "all pension service credit earned

on and after January 1, 2001."                         Id.     This 2% multiplier also

applied     retroactively             to     eight     years        of     service     prior      to

January 1, 2001, for each year of service performed after that

date.

      ¶11     In        approximately            May    2011,        the     Federation          and

Milwaukee County negotiated the terms of a collective bargaining

agreement for January 1, 2012, through December 1, 2012.                                      Under

the   terms       of    the    collective          bargaining       agreement,         a    pension

multiplier of 1.6% would apply to "all pension service credit
earned on and after January 1, 2012."                         On or about May 23, 2011,

the Federation ratified the collective bargaining agreement.                                      On

or about June 23, 2011, Milwaukee County approved the collective

bargaining        agreement.          On    or     about     July    28,     2011,      Milwaukee

County      implemented          the        collective       bargaining          agreement        by

adopting      an       ordinance,          which    provided        that     a   1.6%       pension

multiplier would apply to "service . . . rendered on and after

January 1, 2012."               M.C.G.O. § 201.24(5.1)(2)(f) (2011).                            This
ordinance is the subject of this lawsuit.
                                                   9
                                                                          No.    2012AP2466



       ¶12   By virtue of the ordinance adopted in 2000, the 2%

multiplier applied to all of Stoker's county service through

December     31,    2011.          The    ordinance       at    issue      changed     the

multiplier     to    1.6%     only       with    respect       to   Stoker's      future,

unearned service rendered on and after January 1, 2012.                             To be

clear, the ordinance at issue did not affect the 2% multiplier

that    applied     to   Stoker's        vested    retirement        benefits      earned

through December 31, 2011.

                             II.    PROCEDURAL POSTURE

       ¶13   On December 16, 2011, Stoker and the Federation filed

suit in circuit court against Milwaukee County and the Pension

Board. Stoker sought relief declaring that the 2011 ordinance

that reduced the pension multiplier from 2% to 1.6% with respect

to    post-2011     county    service       is    invalid.      Stoker     also    sought

injunctive    relief     requiring        Milwaukee    County       and    the    Pension

Board to apply the 2% multiplier to Stoker's county service

performed on and after January 1, 2012, the effective date of

the    ordinance.    Stoker        argued   that    the    2011     ordinance       was   a
breach of contract.10 Stoker, Milwaukee County, and the Pension

Board filed motions for summary judgment.

       ¶14   On July 11, 2012, the circuit court granted Stoker's

motion for summary judgment.                The circuit court reasoned that,


       10
       Stoker also argued that the 2011 ordinance was an
impairment of contract and an uncompensated taking of property
in violation of Article I, Sections 12 and 13 of the Wisconsin
Constitution. Stoker later abandoned these arguments, which are
not before this court.


                                            10
                                                                               No.    2012AP2466



under      ch.    138    of    the     Laws     of     1945,     Stoker     had       a    vested

contractual right to retirement benefits since her employment

with Milwaukee County began.                     According to the circuit court,

this right includes the 2% multiplier.

      ¶15        Milwaukee County and the Pension Board appealed.                                 On

November 14, 2013, the court of appeals affirmed.

                                   III. STANDARD OF REVIEW

      ¶16        We    independently       review          whether    the   circuit         court

correctly granted summary judgment to Stoker.                               Tatera v. FMC

Corp., 2010 WI 90, ¶15, 328 Wis. 2d 320, 786 N.W.2d 810 (citing

Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24, 323

Wis. 2d 682,           781    N.W.2d 88).             Summary        judgment        "shall       be

rendered          if     the         pleadings,            depositions,         answers           to

interrogatories,             and    admissions        on    file,     together        with       the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law."                        Wis. Stat. § 802.08(2) (2011-

12).11
      ¶17        This case requires us to interpret county ordinances

and session laws. The rules for statutory interpretation apply

to   our    interpretation            of   an   ordinance.            Marris     v.       City    of

Cedarburg,        176    Wis. 2d 14,       32,       498    N.W.2d 842      (1993)        (citing

Cnty. of Columbia v. Bylewski, 94 Wis. 2d 153, 169 n.7, 288

N.W.2d 129 (1980)).

      11
       All subsequent references to the Wisconsin Statutes are
to the 2011-12 version unless otherwise indicated.


                                                11
                                                                         No.    2012AP2466



       ¶18    "Statutory interpretation is a question of law that

this   court    reviews     de     novo    while    benefiting       from      the    lower

courts' analyses."         Noffke ex rel. Swenson v. Bakke, 2009 WI 10,

¶9, 315 Wis. 2d 350, 760 N.W.2d 156 (citing Megal Dev. Corp. v.

Shadof,      2005    WI   151,    ¶8,     286    Wis. 2d 105,      705    N.W.2d 645).

"[S]tatutory        interpretation        'begins    with    the   language          of   the

statute.      If the meaning of the statute is plain, we ordinarily

stop the inquiry.'"          State ex rel. Kalal v. Circuit Court for

Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110

(citations omitted).             We give statutory language "its common,

ordinary,      and    accepted      meaning,        except    that       technical        or

specially-defined words or phrases are given their technical or

special definitional meaning."                  Id. (citing Bruno v. Milwaukee

Cnty., 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660 N.W.2d 656;

Wis. Stat. § 990.01(1)).            We interpret statutory language in the

context of the statute in which it is used and in relation to

closely-related statutes.               Id., ¶46 (citations omitted).                     We

interpret statutes to avoid absurd or unreasonable results.                               Id.
(citations omitted).             If the statutory language is unambiguous,

we do not consult extrinsic sources of interpretation, such as

legislative history.         Id. (citations omitted).

                                    IV.    ANALYSIS

       ¶19    Stoker argues that the Milwaukee County ordinance that

reduced the pension multiplier from 2% to 1.6% for post-2011

service does not apply to her because the County is barred from

making such prospective-only reductions to her vested retirement
benefits without her personal consent.                 Stoker relies heavily on
                                            12
                                                                           No.     2012AP2466



the    session    laws    from    1945,      1957,    and    1965     to    support        her

argument.      In short, she argues that she is entitled to the most

favorable      pension     formula       available      during       her     employment.

Stoker    asserts    that    when      the    County    amended       the        formula    to

reduce the multiplier from 2% to 1.6% for unearned benefits, it

served to "diminish or impair" her vested benefits.

       ¶20    Milwaukee     County       argues      that    the     legislature           has

endowed it with home rule authority to enact prospective changes

in the Milwaukee retirement system.                   The County argues that the

pension formula reduction and its prospective-only application

did    not    "diminish     or    impair"         benefits       already    accrued        for

pension service credits earned.                    The County contends that the

change does not "diminish or impair" Stoker's benefits because

any potential future benefit, due to future service, is not

vested until earned.             The County asserts that under its home

rule    authority,    it    has    the    authority         to    amend    its     unvested

pension plans with prospective-only application.

       ¶21    Because Milwaukee County reduced the multiplier only
prospectively, we first determine whether the County has the

legal right to reduce employee benefits on a prospective-only

basis.       We next determine whether Stoker has a vested right to

have the 2% multiplier apply to her post-2011 service.                              Because

we    conclude    that     Milwaukee      County       may       prospectively       reduce

unvested employee benefits and that Stoker has no vested right

to have the 2% multiplier apply to her post-2011 service, we do

not    consider   whether        the   Federation      may       consent    on     Stoker's
behalf to a prospective reduction of her vested benefits.
                                             13
                                                                    No.    2012AP2466




              A. Whether Milwaukee County May Prospectively
                         Reduce an Employee Benefit
       ¶22    To   determine        whether        Milwaukee        County        may

prospectively modify unvested benefits, we turn to the session

laws   that    govern    MCERS.     Chapter    138      of   the    Laws   of   1945

provides that every member of MCERS has a "vested right in the

annuities and all other benefits in the amounts and on the terms

and conditions . . . in effect at the date of commencement of

his membership [in MCERS]."          Similarly, ch. 326 of the Laws of
1957 provides each MCERS member with a "vested right . . . to

all increases in benefits covered by amendments subsequent to

the date his membership is effective."               However, ch. 405 of the

Laws of 1965 gives to Milwaukee County home rule authority "to

make any changes in [its employee] benefit fund which hereafter

may be deemed necessary or desirable for the continued operation

of [MCERS]."       Stoker notes that ch. 405 expressly limits this

home   rule    authority    by    stating   that     "no     such   change      shall

operate to diminish or impair the annuities, benefits or other

rights of any person who is a member of [MCERS] prior to the
effective date of any such change."

       ¶23    Stoker interprets ch. 405 of the Laws of 1965 to allow

Milwaukee County to reduce benefits only with respect to persons

who began employment with Milwaukee County after the reduction

takes effect.       Stoker reaches this interpretation by invoking

the canon of statutory construction known as the rule of the

last antecedent, arguing that "prior to the effective date of
any    such    change"   modifies    "who     is    a    member"     rather      than

                                      14
                                                                    No.    2012AP2466



"annuities, benefits or other rights."                Stoker thus argues that

ch. 405 forbids Milwaukee County from reducing a benefit of a

person whose county employment began prior to the effective date

of the reduction.       We disagree.

    ¶24    The    principle       of     interpreting      statutes       to    avoid

unreasonable     or    absurd   results       is    more   compelling      in   this

instance than the rule of the last antecedent.                  See Kalal, 271

Wis. 2d 633, ¶46; Chickasaw Nation v. United States, 534 U.S.

84, 94 (2001) (quoting Circuit City Stores, Inc. v. Adams, 532

U.S. 105, 115 (2001)) (holding that canons of construction "'are

often   countered . . . by        some    maxim     pointing   in    a    different

direction.'").        Stoker's interpretation of ch. 405 of the Laws

of 1965 would prohibit Milwaukee County from reducing a current

employee's expected, future benefits before they vest.                          That

interpretation is unreasonable because a right that is unvested,

by definition, can be taken away.                  See Black's Law Dictionary

1520 (10th ed. 2014) (A "vested right" is a "right that so

completely and definitely belongs to a person that it cannot be
impaired or taken away without the person's consent."); Neiman

v. Am. Nat. Prop. & Cas. Co., 2000 WI 83, ¶14, 236 Wis. 2d 411,

613 N.W.2d 160 ("The concept of vested rights is 'conclusory——a

right is vested when it has been so far perfected that it cannot

be taken away by statute.'") (quoting Charles B. Hochman, The

Supreme   Court       and   the        Constitutionality       of     Retroactive

Legislation, 73 Harv. L. Rev. 692, 696 (1960)).                      We therefore

conclude that ch. 405's limit on Milwaukee County's home rule


                                         15
                                                                          No.        2012AP2466



authority allows Milwaukee County to reduce a benefit that has

not vested prior to the effective date of the reduction.

      ¶25     Indeed, Stoker seems to recognize that ch. 405's grant

of   home    rule   authority     allows         Milwaukee       County    to     reduce      a

current employee's expected, future benefits before they vest.

Specifically,       Stoker    argues        that     ch.        405    does     not     allow

Milwaukee County to reduce the 2% multiplier with respect to her

post-2011     service     because     her    "right        to    the    use     of    the    2%

multiplier as to future as well as past service was already 'in

existence'" when the multiplier was reduced.                             Thus, Stoker's

logic    seems      to    acknowledge       that     ch.        405     would        allow   a

prospective reduction of the 2% multiplier if she did not have a

vested right to have the 2% multiplier apply to her post-2011

service.

      ¶26     Because     Milwaukee      County      may        prospectively          reduce

benefits before they vest, our analysis turns on whether Stoker

has a vested right to the 2% multiplier for post-2011 service.

 B. Whether Stoker Has a Vested Right to Have the 2% Multiplier
        Apply to Her Post-2011 Service for Milwaukee County
      ¶27     Having determined that the home rule authority in ch.

405 of the Laws of 1965 allows Milwaukee County to prospectively

reduce      benefits     before   they      vest,    we     now       determine       whether

Stoker has a vested right to have the 2% multiplier apply to her

post-2011 service.

      ¶28     An employee benefit may be modified before it vests.

Loth v. City of Milwaukee, 2008 WI 129, ¶¶33-43, 315 Wis. 2d 35,
758 N.W.2d 766.          In Loth, prior to 2004, the City of Milwaukee

                                            16
                                                                          No.    2012AP2466



offered      premium-free     health    insurance        to    its     employees        that

reached age 60, were employed by the city for at least 15 years,

and retired. Id., ¶2.          In 2002 the city amended this retirement

benefit      to     provide   shared-premium-cost             health      insurance       to

anyone who reached age 60, was employed by the city for at least

15 years, and retired after January 1, 2004.                      Id.       Loth had 15

years of city service in 1999, and in 2005 he reached age 60 and

retired.          Id.   When Loth received shared-premium-cost health

insurance after retiring, he sued the city, arguing that he was

entitled      to    premium-free      health       insurance.          Id.,      ¶3.      He

reasoned that he reached 15 years of service when the premium-

free health insurance retirement benefit was in effect, and that

reaching 15 years of city service was the only requirement for

becoming entitled to this benefit.                 Id.

       ¶29    We    upheld    the    city's     modification         of    the    retiree

health insurance benefit with respect to Loth.                        Id., ¶¶6-7.         We

determined that the city made a unilateral contract offer of

premium-free        retiree   health    insurance        benefits,        and    that    the
city modified the benefits before Loth became entitled to them

by accepting the offer.             Id., ¶¶6, 14.        We focused on the terms

and conditions of the benefits to determine how they could be

accepted by an employee and thus become an entitlement.                                 Id.,

¶31.     According to the terms and conditions of the city's health

insurance benefits for retirees, the benefits were accepted and

became       an    entitlement      when      an    employee         fulfilled         three

requirements: being employed by the city for 15 years, reaching
age 60, and retiring.            Id., ¶¶6, 16-29.             Because Loth did not
                                           17
                                                                        No.     2012AP2466



"perform the requested acts" of reaching age 60 and retiring

while the premium-free health insurance benefit was in effect,

id., ¶14, he had no contractual right to this benefit.                          Id., ¶6;

see also id., ¶39 (Loth had no right to premium-free health

insurance upon retirement because "he had not fully performed

the   services      entitling      him   to    such       benefits     when    the    City

amended     [its]    policy . . . .").          We     distinguished          cases   that

rejected employers' attempts to reduce their employees' benefits

after they vested.              Id., ¶¶32-46.        Thus, Loth stands for the

principle that an employer may modify a benefit that has not

vested because its terms and conditions for entitlement have not

been satisfied.

      ¶30    To determine whether Milwaukee County reduced a vested

benefit of Stoker, we focus on the terms and conditions of the

multiplier.         See    id.,   ¶31;   see    also      ch.   138,    Laws    of    1945

(stating that MCERS members have a vested right to benefits on

the "terms and conditions" of the benefits).                           The terms and

conditions of the 2% multiplier are located in Milwaukee County
ordinances     and        the   collective     bargaining        agreement.            The

ordinance that created the 2% multiplier stated that the 2%

multiplier applied to "all pension service credit earned on and

after January 1, 2001."             M.C.G.O. § 201.24(5.15)(1)(a) (2000).12

Pension     credit    service       is   earned      by    rendering     service       for

Milwaukee County.          M.C.G.O. App. B. § 301 (1980).               The ordinance

      12
       This ordinance created a 2% multiplier by adding 0.5% to
the existing 1.5% multiplier. See supra note 5.


                                          18
                                                                           No.    2012AP2466



at    issue    provided        that     the        1.6%   multiplier           applied    to

"service . . . rendered on and after January 1, 2012."                            M.C.G.O.

§ 201.24(5.1)(2)(f) (2011).               Likewise, the collective bargaining

agreement adopted in 2011 provided that a 1.6% multiplier would

apply    to    "all    pension     service         credit    earned       on     and    after

January 1, 2012."           The plain language of these ordinances and

the collective bargaining agreement shows that the multiplier

accrues      over    time   as    county       service      is    rendered,       and    the

multiplier     is     directly     tied      to    that     service.           Because    the

multiplier accrues as service is rendered, the home rule power

in ch. 405 of the Laws of 1965 allows Milwaukee County to reduce

the multiplier with respect to Stoker's service rendered after

the effective date of the reduction.

       ¶31    Other case law also supports our conclusions that the

multiplier accrues over time as service is rendered and that,

therefore,      Milwaukee        County      may    reduce       the    multiplier       with

respect to service rendered after the reduction takes effect.

In Loth we discussed the court of appeals' decision in Champine
v.    Milwaukee      County,     2005     WI   App    75,    280       Wis. 2d 603,       696

N.W.2d 245.         Loth, 315 Wis. 2d 35, ¶¶44-46.                     We noted that the

court of appeals in Champine held that a "payout for accrued

sick leave represents a benefit that is 'earned as the work is

performed.'         An employee accrues sick allowance (and may earn

the right to receive             payout for the accrued sick allowance)

gradually as the employee performs his or her work."                           Id., ¶46.

       ¶32    In Champine, prior to 2000, Milwaukee County allowed
its     non-union      employees        to     receive       the        cash     value     of
                                             19
                                                                               No.    2012AP2466



approximately       400     hours        of    their      unused     sick        leave      upon

retirement.         Champine,        280       Wis. 2d 603,        ¶¶2-3.             In    2000

Milwaukee County adopted an ordinance that allowed its non-union

employees to receive the cash value of all of their unused sick

leave upon retirement.             Id.    This ordinance did not have a start

date or end date.           Id., ¶2.          In February 2002 Milwaukee County

adopted     an   ordinance    that        limited      non-union     employees'             sick-

leave payout at retirement to approximately 400 hours of unused

sick leave, effectively reinstating the limit in place prior to

2000.     Id., ¶6.        This February 2002 ordinance took effect on

March 15, 2002.       Id.

      ¶33     The   court    of    appeals         held   that     the    2002        ordinance

lawfully limited the sick-leave payout benefit with respect to

sick leave that accrued after the limit took effect.                                 Id., ¶¶15-

17.       Specifically,       the        court      held    that         the     ordinance's

prospective reduction of the sick-leave payout benefit did not

breach    a   contract      with    the       non-union     employees.               Id.,    ¶14.

However, the court held that non-union employees who retired
after the effective date of the 2002 ordinance were entitled to

receive a retirement payout of all of the sick leave that they

accrued prior to the effective date of the 2002 ordinance.                                  Id.,

¶¶15-17.      The court reasoned that the sick-leave payout benefit

is "a form of deferred compensation that is earned as the work




                                              20
                                                                 No.   2012AP2466



is performed.        The benefit can be changed, but only as it is

related to work not yet performed."             Id., ¶16.13

       ¶34    In   Pasko v. Milwaukee County, 2013 WI App 91, 349

Wis. 2d 444, 836 N.W.2d 461, two Milwaukee County retirees sued

the County for paying them the cash value of approximately 400

hours of unused sick leave upon retirement.               The two plaintiffs

had been union members while Milwaukee County employees, and

their union contracts provided that upon retirement they would

receive a cash payout of all of their unused sick leave.                   Pasko,

349    Wis. 2d 444,      ¶6.      Before    retiring,   the    plaintiffs    were

promoted to non-union managerial positions, thus subjecting them

to    the    Milwaukee   County    ordinance    adopted   in    February    2002,

which limited the sick-leave payout upon retirement for non-

       13
       Stoker argues that Champine is distinguishable because
the court of appeals stated that "in the absence of a collective
bargaining agreement or employment contract, [Milwaukee County]
should not be bound to continue providing a benefit it now
regrets offering." Champine v. Milwaukee Cnty., 2005 WI App 75,
¶19, 280 Wis. 2d 603, 696 N.W.2d 245.     Stoker interprets this
language to mean that Champine involved neither a collective
bargaining agreement nor a contract, unlike the present case.
To the contrary, the court of appeals explained that the 2000
ordinance, which provided a right to a payout of all unused sick
leave upon retirement, was a contract while it was in effect.
Id., ¶14.    This quoted language simply meant that the 2000
ordinance did not provide a vested right to the sick-leave
payout with respect to future service.      In any event, in a
nearly identical case that involved union contracts with
Milwaukee County, the court of appeals reached the same
conclusion as it did in Champine. See Pasko v. Milwaukee Cnty.,
2013 WI App 91, ¶¶9-14, 349 Wis. 2d 444, 836 N.W.2d 461. Thus,
the fact that Champine did not involve union contracts or
collective   bargaining   agreements   is    not  a    meaningful
distinction.


                                           21
                                                                            No.     2012AP2466



union employees to approximately 400 hours of unused sick leave.

Id., ¶¶3-6.         This ordinance was at issue in Champine.                        Id., ¶5.

Because the plaintiffs retired as non-union employees, Milwaukee

County argued that, under the 2002 ordinance, they were entitled

to   a    payout     of    only    approximately      400     hours    of    unused       sick

leave.      Id., ¶¶6, 9.

         ¶35   The court of appeals held that the plaintiffs were

entitled to a payout upon retirement of all of the unused sick

leave     that      they    accrued    while      they     were     covered       by    union

contracts with Milwaukee County.                     Id., ¶13.        Under the union

contracts,       the      sick-leave    hours       that    the     plaintiffs         accrued

while they were union members "vested as they were earned."

Id., ¶¶9-13.         Thus, the "vesting trigger" of sick leave was the

"day-by-day accrual" of sick leave.                   Id., ¶12.        The court noted

that     Milwaukee        County    could    have    used,    but     did     not      use,    a

different      vesting       trigger    in    its     union       contracts       so    as    to

preserve its ability to retroactively reduce the amount it was

required to pay retirees for sick leave already accrued.                               Id.
         ¶36   In    Valeo    v.     J. I.   Case     Co.,     18     Wis. 2d 578,           119

N.W.2d 384 (1963), a collective bargaining agreement provided

that employees were eligible for a certain amount of vacation

pay annually and that the right to vacation pay began accruing

each year on June 1.                Valeo, 18 Wis. 2d at 579.                The employer

terminated the collective bargaining agreement on February 29,

1960, three months before June 1.                      Id.        A strike ensued and

lasted until a new collective bargaining agreement was signed on
September 19, 1960.                Id. at 579-80.          The employer denied its
                                             22
                                                                                No.    2012AP2466



employees      any       vacation      pay   for      the    period     of     June    1,     1959,

through February 29, 1960, arguing that the right to vacation

pay did not vest until June 1 and that the collective bargaining

agreement         was     terminated      before       June      1.     Id.    at     580.       An

employee sued the employer, arguing that he was entitled to

vacation pay that accrued during the nine months from June 1,

1959, through February 29, 1960.                       Id. at 580, 583.               This court

held that the employee had a vested right to the vacation pay

that   "accrued           as   services      were      performed"        for    the     employer

during these nine months.                 Id. at 585.            The court reasoned that

"the     nature         of     vacation      pay      [is]       compensation         for      work

performed,"         and      the   collective         bargaining        agreement       did    not

provide that the right to vacation pay vested based on something

besides service rendered.               Id.

       ¶37    Champine, Pasko, and Valeo show that certain employee

benefits, by their nature, accrue as service is rendered unless

a contract or law states otherwise. In the present case, "the

nature"      of     the      pension   multiplier           is   "compensation         for     work
performed."             See id.        As we already explained, the relevant

Milwaukee          County      ordinances        and     the      collective          bargaining

agreement expressly state that the multiplier accrues as service

is rendered.            See M.C.G.O. §§ 201.24(5.15) (2000), App. B. 301

(1980), 201.24(5.1)(2)(f) (2011).                      If Milwaukee County wanted to

make   the        2%    multiplier      vest       immediately          when    enacted        with

respect to all future service, it could have used a "vesting

trigger" besides "day-by-day accrual," but "[i]t did not."                                      See
Pasko,       349       Wis. 2d 444,       ¶12.         Thus,      the    language        of     the
                                                 23
                                                                            No.     2012AP2466



ordinances and collective bargaining agreement and the nature of

the multiplier show that the multiplier, like vacation pay and

sick leave, accrues over time as service is rendered.

      ¶38    Because       the    multiplier             is   "a    form     of      deferred

compensation that is earned as the work is performed," it "can

be    changed,   but       only    as    it        is    related    to     work     not   yet

performed."          See   Champine,          280       Wis. 2d 603,       ¶16.     See   also

Wisconsin Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶¶111-

12,    243   Wis. 2d 512,         627        N.W.2d 807       (holding      that      statute

governing      Wisconsin         Retirement         System,        which     stated       that

benefits accrued as service is rendered, allows reduction of

benefits      with     respect          to     service        performed           after   the

reduction).14




      14
           The statute in Lightbourn provided in relevant part:

           Rights exercised and benefits accrued to an
      employee under this chapter for service rendered shall
      be due as a contractual right and shall not be
      abrogated by any subsequent legislative act.       The
      right of the state to amend or repeal, by enactment of
      statutory changes, all or any part of this chapter at
      any time, however, is reserved by the state and there
      shall be no right to further accrual of benefits nor
      to future exercise of rights for service rendered
      after the effective date of any amendment or repeal
      deleting the statutory authorization for the benefits
      or rights.

                                                                                  (continued)
                                              24
                                                              No.    2012AP2466



    ¶39    Loth, Champine, Pasko, and Valeo show that Stoker's

reliance on ch. 138 of the Laws of 1945, ch. 326 of the Laws of

1957, and ch. 405 of the Laws of 1965 is misplaced.                     These

chapters state that MCERS members shall have a benefits contract

that protects their vested rights, but these chapters do not

explain whether the 2% multiplier is a vested right with respect

to future service.       Indeed, these chapters do not mention this

multiplier at all.15       As we explained, the relevant Milwaukee

County   ordinances,     the   collective    bargaining      agreement,    and

Loth, Champine, Pasko, and Valeo show that Stoker did not have a

vested right to have the 2% multiplier apply to her post-2011

service.

    ¶40    We note that our conclusion that Milwaukee County may

prospectively   modify    benefits   before    they   vest    is    consistent

with the anti-cutback rule of the Employee Retirement Income

Security Act ("ERISA") of 1974.16           The anti-cutback rule allows

Wis. Stat. § 40.19(1) (1997-98). Stoker argues that Lightbourn
is not helpful in the present case because, unlike Wis. Stat.
§ 40.19(1), the session laws governing MCERS do not state that
benefits accrue as service is rendered or allow prospective
reductions of benefits. However, the relevant Milwaukee County
ordinances and collective bargaining agreement state that the
pension multiplier accrues as service is rendered, and ch. 405
of the Laws of 1965 allows prospective reduction of unvested
benefits.    Thus, we find helpful the Lightbourn court's
conclusion that a benefit that accrues as service is rendered
may be prospectively reduced.
    15
       Section 1 of ch. 326, Laws of 1957 mentions a multiplier,
but Stoker does not argue that this multiplier is relevant in
the present case.
    16
         See 29 U.S.C. § 1054(g).


                                     25
                                                                             No.     2012AP2466



employers subject to ERISA to modify benefits with respect to

future   service     because         those    benefits     have       not    yet     accrued.

Cent. Laborers' Pension Fund v. Heinz, 541 U.S. 739, 747 (2004).

The anti-cutback rule prohibits employers subject to ERISA from

adding new conditions to benefits that have accrued for service

rendered.     Id.         Stoker      argues       that   Milwaukee         County    may     go

beyond the protections under the anti-cutback rule by providing

benefits that vest before service is rendered.                          However, as we

have   explained,        the      relevant    Milwaukee     County      ordinances           and

collective bargaining agreement show that the multiplier is a

benefit that accrues for service rendered.

       ¶41   Similarly,           Stoker's    reliance      on    Welter       v.    City     of

Milwaukee, 214 Wis. 2d 485, 571 N.W.2d 459 (Ct. App. 1997), and

Rehrauer v. City of Milwaukee, 2001 WI App 151, 246 Wis. 2d 863,

631    N.W.2d 644,       is    also      misplaced.       In     Welter      the     City     of

Milwaukee    provided         a   duty    disability      retirement         allowance        to

police officers who became disabled due to injuries suffered in

the course of their employment.                    Welter, 214 Wis. 2d at 487-88.
At a certain age, known as the conversion age, an officer who

was    receiving     a    duty      disability       retirement        allowance           began

receiving a less-generous service retirement allowance instead.

Id. at 488.        The City of Milwaukee lowered the conversion age

while the plaintiffs were employed as police officers.                               Id.     The

plaintiffs    became          disabled       and    received      a    duty        disability

retirement allowance that was converted to a service retirement

allowance when they reached this lower conversion age.                               Id.     The
plaintiffs sued the city, arguing that they had a vested right
                                              26
                                                                     No.    2012AP2466



to the higher conversion age that was in effect when they began

employment     with    the    City   of    Milwaukee.       Id.      The    court   of

appeals agreed with the plaintiffs.                Id.     The court of appeals

reasoned that an officer's right to a disability pension vests

when the officer begins employment with the City of Milwaukee,

rather than when the officer becomes disabled.                     Id. at 494-95.

The   court    held    that    two   session     laws    governing    the   City    of

Milwaukee's retirement system dictated this result.                   Id.

      ¶42     Welter   is     inapposite    in   the     present   case.      Welter

involved a right that vested when a person began employment.                        In

the present case, we already determined that Stoker accrues a

right to the pension multiplier as she renders county service.

Further, the multiplier in effect when Stoker began employment

with Milwaukee County was 1.5%, and the multiplier has not been

reduced below that level with respect to any of Stoker's past or

future service.17       Although the court of appeals in Welter relied

solely on two session laws to conclude that a disability pension

vested when employment began, we think the better approach in
the present case is to interpret the relevant ordinances to

determine the extent to which the multiplier was a "vested"

right within the meaning of the session laws governing MCERS.

See Dunn v. Milwaukee Cnty., 2005 WI App 27, ¶¶2, 10-11, 13, 279

Wis. 2d 370,     693    N.W.2d 82     (relying     on    relevant    ordinance      to

      17
       This fact also provides a basis for distinguishing ch.
138 of the Laws of 1945, upon which Stoker heavily relies,
because this chapter applies only to benefits in existence when
a person's county employment began.


                                           27
                                                                               No.    2012AP2466



determine if Milwaukee County employees had a vested right to

future       pay    increases);          Champine,         280     Wis. 2d 603,            ¶¶13-14

(relying on relevant ordinance to determine if Milwaukee County

employees had a vested right to receive a cash payout for all of

their    unused         sick    leave    upon       retiring);        Hussey    v.    Milwaukee

Cnty., 740 F.3d 1139, 1143 (7th Cir. 2014) (relying on relevant

ordinances         to    determine       if   Milwaukee          County      retirees       had   a

vested right to premium-free health insurance).                                 Again, these

ordinances provide that the multiplier accrues as service is

rendered.

       ¶43     In Rehrauer the plaintiffs began their employment as

City    of     Milwaukee        firefighters          prior      to    February       8,    1972.

Rehrauer, 246 Wis. 2d 863, ¶2.                      When their employment began, the

City of Milwaukee provided limited-term duty disability benefits

to    its     firefighters        who     became       disabled        due     to    an    injury

suffered during the course of employment.                              Id.     A contract in

effect       between      February       8,     1972,      and     September         30,    1977,

provided more-generous lifetime duty disability benefits.                                    Id.,
¶¶2, 7.       After September 30, 1977, the City of Milwaukee again

offered limited-term duty disability benefits.                                 Id., ¶3 n.3.

The      plaintiffs            applied        for      disability            benefits       after

September 30,           1977,    so     the    City     of    Milwaukee         awarded      them

limited-term duty disability benefits in effect at that time.

Id., ¶2.       The plaintiffs sued the city, arguing that they gained

a    vested    contractual         right      to     the     lifetime        duty    disability

benefits established during their employment.                           Id., ¶5.


                                                28
                                                                           No.    2012AP2466



       ¶44    The    court      of   appeals       agreed    with    the   firefighters.

Id.    The court concluded that "the firefighters gained vested

rights in the highest level of duty disability benefits that

came   to    be     contractually          established      during       their    years   of

active duty."            Id., ¶20.          The court reasoned that, "[u]nder

§ 36-13-2-c of the Milwaukee City Charter, [the plaintiffs] have

a 'vested right in the . . . benefits in the amounts and on the

terms and conditions and in all other respects as provided in

the law . . . in effect at the date of commencement of his [or

her]    membership        and     as    subsequently         amended.'"           Id.,    ¶16

(emphasis added by court of appeals).

       ¶45    Rehrauer       is      inapposite      in     the     present      case.    In

Rehrauer      the    court      of     appeals     relied    on     an   ordinance       that

expressly provided a vested right to an increase in benefits,

and it also relied on the holding in Welter that disability

benefits vest immediately rather than when an employee becomes

disabled.         Id.,    ¶¶13-14,         16.      In    contrast,      the     ordinances

relevant in the present case do not state that MCERS members
have a vested right to have an increased multiplier apply in

perpetuity.         To the contrary, these ordinances provide that the

multiplier accrues over time as service is rendered.                             It is true

that the ordinance relied upon in Rehrauer is similar to ch. 326

of the Laws of 1957, which provides each MCERS member with a

"vested      right . . . to          all    increases       in    benefits     covered     by

amendments subsequent to the date his membership is effective."

However, as we already discussed, ch. 326 does not explain the
precise nature of the "vested right" it mentions.                              Because the
                                              29
                                                                   No.     2012AP2466



multiplier vests over time as service is rendered, the "vested

right" to which ch. 326 refers does not include a vested right

to have the 2% multiplier apply in perpetuity.                          Rather, the

"vested right" to which ch. 326 refers includes the right to

have the 2% multiplier apply to all service that is rendered

while the 2% multiplier is in effect.

      ¶46    Accordingly, we are not persuaded by Stoker's argument

that Welter and Rehrauer apply in the present case because they

involved session laws similar to the session laws that govern

MCERS.      Disability benefits, unlike the pension multiplier, are

a promise by an employer that is not conditioned on subsequent

action by an employee, such as rendering service.                          Instead,

disability benefits are a promise to receive coverage for an

unforeseen event that happens at some point in the future.                        As

we    explained,    we   rely     on     the     relevant     Milwaukee      County

ordinances and the collective bargaining agreement to determine

the extent to which the 2% multiplier is a vested right within

the meaning of the session laws.               In light of these ordinances
and the collective bargaining agreement, we conclude that Stoker

does not have a vested right to have the 2% multiplier apply to

her    post-2011    service,      which       she    rendered     after     the   2%

multiplier was reduced to 1.6%.               Because Stoker did not have a

vested right to have the 2% multiplier apply to her post-2011

service,     Milwaukee   County    was    free      to   reduce   the    multiplier

below 2% for her post-2011 service.                 See Loth, 315 Wis. 2d 35,

¶¶30-47.
                                V.       CONCLUSION
                                         30
                                                                    No.     2012AP2466



       ¶47    We conclude that Milwaukee County did not breach the

contract with Stoker when it amended the pension multiplier from

2% to 1.6%.          The amendment did not breach Stoker's contractual

right to retirement system benefits earned and vested because it

had prospective-only application to future service credits not

yet earned, specifically, on and after January 1, 2012.                              We

conclude      that    the    legislature      preserved   Stoker's      rights      and

benefits already accrued but also gave Milwaukee County home

rule authority with the flexibility to enact such prospective-

only changes.          We conclude that Stoker does not have a vested

right to have the 2% multiplier apply to her then-unearned post-

2011 service.         In other words, Milwaukee County could so amend

the formula and apply it prospectively because that prospective

application does not "diminish or impair" benefits accrued from

service      credits    already     earned.         Because   we   conclude      that

Milwaukee County did have the ability to make these prospective-

only   reductions       of   the    multiplier      without   Stoker's      personal

consent, we need not address whether the Federation lawfully
consented, on Stoker's behalf, to the reduction.

       By    the   Court.—The      decision    of   the   court    of     appeals   is

reversed and remanded.




                                         31
                                                                 No.   2012AP2466.awb


       ¶48   ANN WALSH BRADLEY, J.              (dissenting).     Rather          than

addressing the session laws which provide a clear answer to our

inquiry and dictate protection of the employees' benefits, the

majority shifts the focus of its analysis to language in the

Milwaukee County General Ordinance.                  It is only by repeatedly

ignoring the language of the governing session laws that the

majority is able to conclude that the County may reduce the

pension multiplier, thereby dealing a blow to the rights of the

employees.

       ¶49   I   conclude       instead,    as    did   a    unanimous    court    of

appeals, that the session laws mean what they say: employees

have    a    vested     right     to    their     benefits    when     they   accept

employment with the County and the County is not permitted to

diminish or impair those benefits.                   As such, the County was

without authority to pass an ordinance reducing Stoker's pension

multiplier.        Accordingly, I respectfully dissent.

                                           I

       ¶50   The      Milwaukee        County    Employee     Retirement      System
[MCERS] was created by the legislature in chapter 138 of the

Laws of 1945.          That session law provided that employees shall

have a benefit contract and vested rights to their benefits at

the time each employee commences membership:

       Every future entrant who shall become a member of
       [MCERS] after the effective date of this act shall
       have a similar benefit contract and vested right in
       the annuities and all other benefits in the amounts
       and on the terms and conditions and in all other
       respects as provided in the law under which the
       retirement system was established as such law shall
       have been amended and be in effect at the date of
       commencement of his membership.
                                           1
                                                                     No.    2012AP2466.awb


Laws of 1945, Ch. 138 (emphasis added).                    The legislature did not

refer       to    an   employee     earning        or   accruing    benefits     through

services rendered.              Rather, the legislature provided that rights

to   benefits          "vested"    at    the   "date      of   commencement      of   [an

employee's] membership."1               It is hard to imagine how much clearer

the legislature could have been.

       ¶51       Not     surprisingly,       Wisconsin     courts    have    previously

concluded that language similar to that used in chapter 138 of

the Laws of 1945 created a vested right to benefits at the time

of hire.          In Welter v. City of Milwaukee, 214 Wis. 2d 485, 571

N.W.2d 459 (Ct. App. 1997), the court considered substantially

similar laws relating to police officers' retirement benefits.

The session law at issue provided that:

       Every such member . . . shall thereby have a benefit
       contract in said retirement system of which he is such
       member or beneficiary as of the effective date of this
       act . . . . [E]ach member and beneficiary having such
       a [retirement system] benefit contract shall have a
       vested right to such annuities and other benefits and
       they shall not be diminished or impaired by subsequent
       legislation or by any other means without [the
       officer's] consent. . . . Every future entrant who
       shall become a member of this retirement system after
       the effective date of this act shall have a similar
       benefit contract and vested right in the annuities and
       all other benefits . . . .
Laws       of    1947,    ch.    441,    §   30(2).        After    considering       this

language, the court determined that the retirement benefits at

issue vested at the time officers became employees.

       1
       "Vested" is defined as "[t]hat has become a completed,
consummated   right  for  present  or future   enjoyment; not
contingent; unconditional; absolute."  Black's Law Dictionary
1557 (7th ed. 1999).


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    ¶52      The Welter court reasoned that the language of the

session    laws    "[is]       not      ambiguous;       [its]       meaning       is    plain."

Welter,    214    Wis.     2d      at    491.        "Under    [the        laws    at    issue],

retirement-plan        benefits         in     effect    when        a     Milwaukee      police

officer becomes a member of the retirement system are vested as

to that officer unless the officer agrees to a change."                                        Id.

The court rejected the city's argument that the rights vested at

some later date, stating that "[t]his argument, however, ignores

the legislative command that the critical date is not that of

the duty-related disability but the date the officer becomes a

member of the retirement system——the date he or she was first

employed by the City as a police officer."                           Id. at 494-95.            See

also Rehrauer v. City of Milwaukee, 2001 WI App 151, ¶¶11-13,

246 Wis. 2d 863, 631 N.W.2d 644 (following Welter's conclusion

that the officers' benefits vested at the date of hire).

    ¶53      The majority attempts to avoid the plain language of

the session laws and the cases interpreting similar language by

shifting    its   focus       to     the     language     of     the       Milwaukee      County
General Ordinance.         Majority op., ¶30.                 It asserts that this is

the proper approach because the session laws do not "explain

whether the 2% multiplier is a vested right with respect to

future     service"      and       thus,       the     majority          implies       that   the

Ordinance     does.        Id.,         ¶39.         Pointing        to     the    Ordinance's

statement    that      0.5%     of      the    multiplier        applies          to    "service

rendered,"       the     majority          concludes          that        this    means       "the




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multiplier accrues over time."                     Id., ¶30.2     It then states that

Welter is inapposite because it relied on the language of the

session laws and not an ordinance.                   Id., ¶42.

      ¶54    Contrary to the majority's implications, the Ordinance

does not directly address whether the multiplier creates vested

rights with respect to future service.                      The majority's strained

reasoning on this point conflicts with the common definition of

the   word    "accrue."          The     word       "accrue"    generally         means    "to

accumulate over time."             The American Heritage Dictionary of the

English      Language      12    (3d     ed.       1992);   see    also        Black's     Law

Dictionary        21    (7th     ed.     1999)       (defining         accrue     as     "[t]o

accumulate periodically").

      ¶55    Nothing in the Ordinance indicates that the multiplier

grows     over    time.         Under    the       Ordinance,     an    employee        "shall

receive an amount equal to one and one-half (1½) percent of his

final average salary multiplied by the number of his years of

service rendered."         MCGO § 201.24(5.1)(1).

      ¶56    The       Ordinance       further       provides     that        "all     pension
service credit earned on and after January 1, 2001, shall be

credited in an amount equal to an additional one-half (0.5)

percent      of    the     member's        final        average        salary."           MCGO

§ 201.24(5.15).          As indicated by the language of the Ordinance,

the multiplier does not grow or accumulate in proportion to the


      2
       It is unclear why the majority focuses on the language in
the Ordinance creating the additional 0.5% multiplier and not
the   language   regarding  the   base  1.5%   multiplier,  MCGO
§ 201.24(5.1)(1). The two provisions have different language.


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years of service rendered.            It is the number of pension service

credits   that   increases         over    time,       not   the   multiplier.           The

multiplier itself does not "accrue."

    ¶57     The majority's refusal to acknowledge the words of the

governing session laws is evident in its reliance on Champine,

Pasko, and Valeo to support its conclusion that the multiplier

accrues as service is rendered.                 I recognize that each of those

cases determined that under the governing law or contract being

interpreted,     the     benefit      at    issue        vested     as        service    was

rendered.     However, each of those cases also acknowledged that

legislation    or   a   contract      could          include   a   different         vesting

trigger, such as the commencement of employment.                              See Champine

v. Milwaukee County, 2005 WI App 75, ¶19, 280 Wis. 2d 603, 696

N.W.2d 245; Pasko v. Milwaukee County, 2013 WI App 91, ¶12, 349

Wis. 2d 444, 836 N.W.2d 461; Valeo v. J. I. Case Co., 18 Wis. 2d

578, 584, 119 N.W.2d 384 (1963).

    ¶58     In this case, clear language in a governing session

law creates a vesting trigger different from the trigger found
in those cases.         Chapter 138 of the Laws of 1945 states that

employees   "shall      have   a    similar          benefit   contract        and    vested

right in the annuities and all other benefits in the amounts and

on the terms and conditions . . . at the date of commencement of

his membership."        In other words, upon acceptance of employment,

employees   gain    a   vested      right       to    benefits     on    the    terms   and




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conditions   of   the    contract.3        Because   one    of    the    terms   and

conditions   of    the    pension     benefit    was       that    it    would    be

calculated using a 2% multiplier, there is a vested right to

that multiplier.

    ¶59   The majority further attempts to distance this case

from the governing session laws by asserting that chapter 138 of

the Laws of 1945 does not apply because that chapter applies

only to benefits in existence when a person's county employment

began and that the multiplier when Stoker began employment was

1.5%, lower than the 1.6% at issue here.                    Majority op., ¶42

n.17.   Again, the majority's narrow focus has led it astray.

    ¶60   Although chapter 138 of the Laws of 1945 could have

initially been read as the majority posits, a 1957 amendment to

that chapter clarifies that an employee has vested rights to

increases in benefits, not just the benefits available at the

start of employment.        Specifically, Chapter 326 of the Laws of

1957 amended the language to read:


    3
       Citing Loth v. City of Milwaukee, 2008 WI 129, 315 Wis. 2d
35, 758 N.W.2d 766, the majority alludes to the argument that
the session law was a unilateral contract offer that the county
could modify until an employee became entitled to the benefits
by accepting the offer.       Majority op., ¶¶29, 46.      It is
understandable that the majority does not attempt to directly
embrace the unilateral contract argument.    Neither the session
law nor the Ordinance creates eligibility requirements that
employees need to meet before being entitled to the multiplier.
As illustrated above, to the extent the session law can be
viewed as a unilateral contract offer, the only action an
employee need take to accept the offer, and thereby create a
binding contract, is to accept employment. Similarly, under the
Ordinance, an employee is entitled to the multiplier regardless
of how many years of service the employee has rendered.


                                       6
                                                                            No.   2012AP2466.awb

     [E]ach member and beneficiary having such a benefit
     contract shall have a vested right to all benefits
     stated by the act at the time his membership is
     effective and to all increases in benefits covered by
     amendments subsequent to the date his membership is
     effective and they shall not be diminished or impaired
     by subsequent legislation on or by any other means
     without his consent.

Ch. 326, Laws 1957, § 6 (emphasis added).
     ¶61     Nearly identical language was interpreted in Rehrauer,

246 Wis. 2d 863.            In that case the ordinance at issue provided

that firefighters have a "vested right in the . . . benefits in

the amounts and on the terms and conditions and in all other

respects as provided in the law . . . in effect at the date of

commencement       of    his     membership         and    as   subsequently         amended."

Id., ¶16 (quoting Milwaukee City Charter § 36-13-2-c).                                      Based

on the language of the ordinance and the governing statutes, the

principles    set        forth    in    Welter,          and    the   importance          of   the

attraction        and     retention       of        public      employees,          the     court

concluded that "firefighters gained vested rights in the highest

level of duty disability benefits that came to be contractually

established       during       their    years       of    active      duty."        Id.,       ¶20.

Given that the language in this case is nearly identical to that

at   issue    in        Rehrauer,       there       is     little      justification           for

interpreting it differently.

                                               II

     ¶62     In    contrast        to    the        majority's        interpretation,            I

conclude that the language of the session law governs: employees

"shall have a vested right to all benefits stated by the act at
the time his membership is effective and to all increases in

benefits     covered       by    amendments          subsequent        to     the    date      his
                                                7
                                                                        No.   2012AP2466.awb


membership is effective."               Ch. 326, Laws of 1957, § 6.                     This

language      is    unambiguous         and       is     not    open    to     alternative

interpretations.           See Madison Teachers, Inc. v. Walker, 2014 WI

99,   ¶145,    __     Wis. 2d     ___,    851          N.W.2d   337    (concluding      that

similar provisions in Milwaukee's Charter "unmistakably evince

the clear intention of the Common Council to create a 'vested

and contractual right to the [pension] benefits in the amount

and on the terms and conditions' as provided in [the Charter]").

      ¶63     Here,    upon     accepting         employment     with    the    County    in

1982, Stoker entered into a contract which provided her with a

vested      right     to    a    1.5%     pension         multiplier.           See     MCGO

§ 201.24(5.1) (1981).             During her employment, that multiplier

was increased to 2%.            See MCGO § 201.24(5.15)(1) (enacted 2000).

Under chapter 326 of the Laws of 1957, Stoker had a vested right

to the increase as well.

      ¶64     Once her rights to the multiplier vested, the County

was unable to reduce it.            The legislature's restrictions on the

County's home rule authority with respect to altering employee
benefits are clear.             It instructed that "no such change shall

operate to diminish or impair the annuities, benefits or other

rights of any person who is a member of [MCERS] prior to the

effective date of any such change."                        Ch. 405, Laws 1965.            An

ordinance     that     conflicts     with         the    authority      granted    by    the

session laws is void.              See State ex rel. Ziervogel v. Wash.

Cnty. Bd. of Adjustment, 2004 WI 23, ¶38, 269 Wis. 2d 549, 676

N.W.2d 401.        Here, the County’s amendment to the Ordinance would
operate to reduce Stoker's pension multiplier to 1.6%, thereby

                                              8
                                                                       No.      2012AP2466.awb


conflicting with the Legislature’s mandate that employee rights

and benefits not be diminished.                     Accordingly, the amendment to

the Ordinance is void.

       ¶65       In sum, the majority's attempt to avoid the language

of   the     governing       session      laws      and    shift    the     focus     to   the

language in the Ordinance is unpersuasive.                         It turns a blind eye

to the clear language of the session laws which must trump the

amendment to the County Ordinance.

       ¶66       Although the County offered employment to individuals

with the promise that a certain pension benefit formula would

accompany such employment,                the majority erroneously concludes

that       the    County    has    unfettered        discretion       to       prospectively

reduce it.         As a result, an employee who accepted the offer has

no   contractual          rights     to   enforce      that      formula.         Because    I

conclude         that    employees    have      a   vested    right       to    the   formula

containing         the    multiplier      and       that   the     County       was   without

authority to pass an ordinance reducing that multiplier, I would

affirm the unanimous court of appeals' decision.4
       4
       The same day the court heard argument on this case, we
also heard argument on another case involving when Milwaukee
County employees' benefits become vested. The decision in that
case is still pending. Efforts should be made to make the two
opinions consistent. The core function of courts is, of course,
clear, consistent, and reliable application of the law.



     Because   of  the   court's   new   procedure   for  opinion
preparation and mandate, I cannot comment on the other decision
at this time given that I want this dissent to be mandated at
the same time as the majority opinion.     See State v. Gonzalez,
2014 WI 124, ¶30, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson,
C.J., concurring) (setting forth the new procedure).

                                                9
                                                         No.   2012AP2466.awb


    ¶67    For   the   reasons   set    forth   above,   I     respectfully

dissent.

    ¶68    I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON joins this opinion.




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