PUBLISHED OPINION
Case No.: 94-0857
Complete
Title
of
Case:JOHN P. MORRIS,
Plaintiff-Appellant,
v.
EMPLOYE TRUST FUNDS BOARD
OF THE STATE OF WISCONSIN,
Defendant-Respondent.
Submitted
on Briefs: January 13, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 27, 1996
Opinion
Filed: June
27, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Michael
N. Nowakowski
so
indicate)
JUDGES: Eich,
C.J., Gartzke, P.J., and Vergeront, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the brief of Bruce K. Kaufmann of Jenswold,
Studt, Hanson & Gennrich of Madison.
Respondent
ATTORNEYSFor the defendant-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
with Warren M. Schmidt, assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED June
27, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-0857
STATE OF WISCONSIN IN
COURT OF APPEALS
JOHN
P. MORRIS,
Plaintiff-Appellant,
v.
EMPLOYE
TRUST FUNDS BOARD
OF THE
STATE OF WISCONSIN,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Dane County: MICHAEL N. NOWAKOWSKI, Judge.
Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Vergeront, J.
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 in 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 documents[1]
showing "active duty points" he had accumulated in the Air Force
Reserves since 1955, for 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.
I 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
impression, 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] Reappointments 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. IV, § 26, precluded him from electing to come under the career
executive program in 1973, he is entitled to receive career executive program
retirement benefits after his first term of office expired.
In
1973, Article IV, § 26 provided in relevant part: The legislature shall never grant any extra compensation to any
public officer, agent, servant or contractor, after the services shall have
been rendered or the contract entered into; nor shall the compensation of any
public officer be increased or diminished during his term of office....
Morris contends this provision prohibited him from
receiving increased compensation, "enhanced pension program
benefits," until after his term of office had expired in 1977. Since § 20.926, Stats., provides that persons who begin service after July 1,
1973, are "subject to this section without right of election," Morris
contends he should receive the additional retirement benefit.
We
need not decide if the constitution prohibited Morris from making the
§ 20.926, Stats., election
in 1973. Even if with his reappointment
in 1977 the state constitution no longer prohibited him from obtaining
§ 20.926 benefits, that does not automatically entitle him to those
benefits. He must be eligible under the
statute, and to be eligible he had to begin service in a career executive
position after July 1, 1973. Although
his first term of office expired in 1977, Morris did not "begin service after
July 1, 1973." His service began
well before that date in 1971 and did not begin anew with each
appointment. Morris is not eligible
under § 20.926 for the career executive program. His constitutional argument has no merit.
3. MILITARY SERVICE CREDIT
The
Board denied Morris's claim for four years of creditable military service,
granting him instead two and one-half years.
Four years is the maximum creditable service Morris could receive. Section 40.02(15)(c), Stats.
The
statute providing for certiorari review of the Board's decision,
§ 40.08(12), Stats., does
not allow the certiorari court to take evidence. We therefore apply traditional common law certiorari standards to
review the Board's decision. State
ex rel. Brookside v. Jefferson Bd., 131 Wis.2d 101, 119-20, 122, 388
N.W.2d 593, 600-01 (1986). Common law
certiorari review is limited to whether (1) the Board kept within its
jurisdiction, (2) it proceeded on a correct theory of law, (3) its action was
arbitrary, oppressive or unreasonable representing its will and not its
judgment, and (4) the Board could reasonably make its order or determination
based on the evidence before it. Id.
at 119-20, 388 N.W.2d at 600.
Statutory
interpretation is a question of law, and we defer in varying degrees to an agency's
interpretation of an ambiguous statute.
Harnischfeger Corp. v. LIRC, 196 Wis.2d 650, 659-60, 539
N.W.2d 98, 102 (1995). In a de novo
review, we accord the agency's interpretation no weight. Id. at 660 n.4, 539 N.W.2d at
102. If an agency's interpretation is
accorded deference under the due weight standard, we need not defer to an
interpretation which, while reasonable, is not the interpretation which we
consider best and most reasonable. Id. When we grant an agency's interpretation
great weight, we will sustain if it is reasonable. Id. at 661, 539 N.W.2d at 102. We grant great weight deference only when we
conclude that all of the following requirements have been met:
(1) the agency was charged by the legislature with the
duty of administering the statute; (2) that the interpretation of the agency is
one of long-standing; (3) that the agency employed its expertise or specialized
knowledge in forming the interpretation; and (4) that the agency's
interpretation will provide uniformity and consistency in the application of
the statute.
UFE Incorporated v. LIRC, No. 94-2794, 1996 WL 269997 (Wis.) at *3.
a. Statutes
Section
40.02(15), Stats., provides in
pertinent part:
(a) "Creditable military service" means
active service in the U.S. armed forces, based on the total period of service
in the U.S. armed forces, provided:
1. The participant enlisted or was ordered or
inducted into active service in the U.S. armed forces:
2. The participant left the employment of a
participating employer to enter the U.S. armed forces;
3. The participant returns to the employment of
the employer whose employment the participant left to enter the U.S. armed
forces within 180 days of release or discharge from the armed forces, or within
180 days of release from hospitalization because of injury or sickness
resulting from service in the armed forces;
4. The period of service in the U.S. armed forces
is not more than 4 years, unless involuntarily extended for a longer period;
5. The participant was discharged from the U.S.
armed forces under conditions other than dishonorable;
6. The participant upon return from service in the
U.S. armed forces furnishes evidence required to establish the participant's
rights under this chapter ....
(c) Notwithstanding sub. (17) (intro.) and any
other law, any person who is credited with 5, 10, 15 or 20 or more years of
creditable service, not counting any previously granted creditable military
service, may receive creditable military service at the time of retirement for
not more than 1, 2, 3 or 4 years, respectively, of active service which meets
the standards under par. (a)5., provided:
1. This paragraph applies only to active military
service served prior to January 1, 1974.
2. Any creditable military service otherwise
granted shall be included in determining the maximum years to be granted under
this paragraph.
3. Creditable military service under this
paragraph shall be allocated at the time of retirement in proportion to the
amount of the participant's creditable service for each of the types of
creditable service set forth in s. 40.23(2m)(e) on the date the participant
attains 5, 10, 15 or 20 years of creditable service.
4. This paragraph does not apply to any active
service used for the purpose of establishing entitlement to, or the amount of,
any benefit, other than a disability benefit, to be paid by any federal
retirement program except OASDHI and the retired pay for nonregular military
service program under 10 USC 1331 to 1337 or, if the participant makes an
election under s. 40.30(2), by any retirement system specified in s. 40.30(2)n
other than the Wisconsin retirement system.
5. The
participant's creditable service terminates on or after January 1, 1982.
Section
40.02(17), Stats., provides in
pertinent part:
"Creditable service" means the creditable
current and prior service, expressed in years and fractions of a year ... and
creditable military service.... How
much service in any annual earnings period is the full-time equivalent of one
year of creditable service shall be determined by rule by the department and
the rules may provide for differing equivalents for different types of
employment.... No more than one year of
creditable service shall be granted for any annual earnings period ....
b. Creditable Military
Service During
Public Employment
The
Board concluded that Morris could not receive military service credits for his
active service, if any, while he served as a commissioner. The Board noted that state employees on
reserve training, even if absent for several weeks, take "military
leave" and receive "creditable service" for the entire year of
state service. Section 40.02(17), Stats., bars participants in the state
retirement program from receiving more than one year of creditable service for
each calendar year.
The
Board said Morris sought creditable military service under § 40.02(15), Stats., without distinguishing between
§ 40.02(15)(a) and (c). Reasonably
well-informed persons could differ on the relationship of § 40.02(15)(a)
to (c). These provisions are therefore
ambiguous. See State v.
Sutton, 177 Wis.2d 709, 716, 503 N.W.2d 326, 329 (Ct. App. 1993)
(interaction of two subsections can create ambiguity).
When
construing an ambiguous statute, we examine its history, context, subject
matter, scope and purpose. Village
of Shorewood v. Steinberg, 174 Wis.2d 191, 202, 496 N.W.2d 57, 61
(1993). We also consider the agency's
interpretation of the statute. UFE
Incorporated, 1996 WL 269997, *2.
We
need not decide what level of deference we should grant the Board's
interpretation of § 40.02(15), Stats.,
with respect to when public employees can obtain creditable military service
for their active military service during their public employment. Even under the great weight standard, we
would determine that the Board's interpretation is unreasonable because it is
clearly contrary to legislative intent.
Harnischfeger, 196 Wis.2d at 662, 539 N.W.2d at 103.
Section
40.02(15), Stats., was enacted in
1981. Laws of 1981, ch. 96. During the debate on the measure, the Joint
Survey Committee on Retirement Systems twice explained that § 40.02(15)(c)
provided creditable military service for military service "which is not a
break in public employment."
Fiscal Estimate, 1981 AB 272; Report on AB 272 and Assembly Substitute
Amendment #1, at 4. "Not a break
in public employment" can mean military service prior to or during
public employment. The parties agree
that § 40.02(15)(c) allows creditable military service for military
service prior to public employment. But
because creditable military service earned under sub. (15)(c) is not subject to
the sub. (17) limitation that no more than one year of creditable service be
granted for any annual earnings period, the legislature must have intended that
creditable military service also means service during public employment. See Joint Survey Committee Report on
Assembly Bill 272 and Assembly Substitute Amendment #1, at 4, ("Changes
the crediting of military service which is not a break in public employment ...
and deletes any restriction on `double crediting' of such military
service.").
Thus
§ 40.02(15), Stats.,
establishes two ways to obtain "creditable military service." Under the first, an employee who leaves
employment of a "participating employer" to serve in the armed forces
and then returns to his employment after a discharge under conditions other
than dishonorable receives credit for that service in the armed forces. Section 40.02(15)(a)1 through 7. Under the second, an employee earns
creditable military service for active service in the armed forces prior to or
during his employment with a participating employer.
We
conclude that if Morris is otherwise qualified, he may receive creditable
military service under § 40.02(15)(c), Stats.,
for his active military service while he was on the tax appeals commission
prior to January 1, 1974.[5]
c. "Active Service"
The
Board ruled that because he had not shown that his reserve unit was called into
active duty or was functionally under control of the regular armed forces,
"as would be required," the Board said under § 40.02(15), Stats., and Wis. Adm. Code § ETF 10.01(1g), Morris did not establish
that his service in the Reserves prior to 1971 was "active service"
within the meaning of § 40.02(15).
When defining "active military service" and "active
service," Wis. Adm. Code
§ ETF 10.01(1g) excludes "active duty for training." Morris argues that Wis. Adm. Code § ETF 10.01(1g) was adopted after he
filed his certiorari action and therefore, does not apply to him. By not attempting to counter Morris's
contention, the Board concedes that Wis.
Adm. Code § 10.01(1g) does not apply to him. Charolais Breeding Ranches, Ltd. v.
FPC Sec. Corp., 90 Wis.2d 97, 109, 279 N.W.2d 493, 499 (Ct. App. 1979).
However,
the Board argued to the circuit court that Wis.
Adm. Code § ETF 10.01(1g) codified its long-standing administrative
policy which excluded active duty for training from the definition of active
service and active military service as those terms are used in
§ 40.02(15), Stats.[6] On appeal, the Board implicitly argues that
its policy should control.
Morris
argues all of his military service was "active service" because on
all occasions he was "called into active duty and attached to a unit of
the Regular Air Force to perform missions." But he does not dispute that his service was "active duty
for training." As the circuit
court noted, "[t]he fact that during his reserve `active duty for
training' he served alongside those who were `regular military' does not change
his own status."
In
the alternative, Morris argues that the Board's policy wrongly denies
creditable military service for active duty for training. Section 40.02(15)(c), Stats., does not define "active
service" or "active military service." In support of its interpretation, the Board cites a dictionary
definition that "active service" means "engaged in full-time
service, esp. in the armed forces."
Webster's Third New International
Dictionary 22 (1986). The
definition is not useful. It hinges on
the meaning of "full-time," defined in the same dictionary as
"employed for or working the amount of time considered customary or standard." Id. at 919.
We
conclude the terms "active military service" and "active
service" in § 40.02(15)(c), Stats.,
are ambiguous because they are reasonably susceptible to more than one
meaning. We therefore examine the
statute's history, context, subject matter, scope and object of the
statute. Village of Shorewood v.
Steinberg, 174 Wis.2d at 202, 496 N.W.2d at 61. We also consider the agency's interpretation
of the statute. UFE Incorporated,
1996 WL 269997, *2. We conclude we
should give great weight to the Board's interpretation. The Board has the duty of administering the
statute. Section 40.03, Stats.
The Board's interpretation is one of long-standing and is based upon the
agency's specialized knowledge interpreting the nature of federal military
service. The Board's interpretation
will provide uniformity and consistency in the application of the statute. We therefore must sustain the Board's
interpretation of the terms "active service" and "active
military service" in § 40.02(15)(c), if it is reasonable. Harnischfeger, 196 Wis.2d at
661, 539 N.W.2d at 102.
Morris
argues that we should adopt the definitions of "active service" and
"active military service" as they appear in Title 10 of the United
States Code. The absence of statutory
definitions of terms critical to the administration of § 40.02(15)(c), Stats., could lead us to conclude the
legislature intended to use federal definitions, since federal law controls the
nature and type of service performed in the U.S. Armed Forces.
Title
10 defines "active service" as "service on active duty or
full-time National Guard duty," 10 U.S.C. § 101(d)(3). "Active duty" is:
full-time duty in the active military service of the
United States. It includes full-time
training duty, annual training duty, and attendance, while in the active
military service, at a school designated as a service school by law or by the
Secretary of the military department concerned. Such term does not include full-time National Guard duty.
10 U.S.C. § 101(d)(1).
An
explanatory note following the definition of "active duty" when it
appeared at 10 U.S.C. § 101(22) confirms that "active duty" includes
"active duty for training," even though the definition, then as now,
does not use that term. The note
explains that Title 10 drafters rejected a definition of "active
duty" appearing elsewhere in the federal code in favor of the present
definition because the other definition excluded active duty training.[7] The present renumbered definition of
"active duty" in 10 U.S.C. § 101(d)(1) is identical to the previous
10 U.S.C. § 101(22).
Section
40.02(15)(c)4, Stats.,
specifically references Title 10. Under
that subsection, Wisconsin public employees cannot receive creditable military
service under § 40.02(15)(c) if they have used their active service in the
armed forces to establish entitlement to federal retirement and disability
benefits. Section 40.02(15)(c)4 exempts
from this limitation active service used to establish entitlement for
retirement pay for nonregular military service under Title 10 U.S.C.
§§ 1331 to 1337. That program
provides retirement pay to reserve members with at least twenty years of
service. Reserve members are credited
with one year of service if they gain more than fifty points in that year. Reserve members gain one point for each day
of active service. As stated
previously, Title 10 defines active service to include active duty for
training.[8] Reserve members may use their active service
in the regular armed forces towards this retirement program.
When
first enacted in 1981, § 40.02(15)(c)4, Stats.,
did not refer to Title 10 U.S.C. §§ 1331 to 1337. That reference was added by 1987 Wis. Act 62. A Joint Survey Committee on Retirement
Systems Report recommended the enactment in order to comply with 10 U.S.C.
§ 1336. Report of Joint Survey
Committee on Retirement Systems, Appendix to 1987 Senate Bill 19, at 3. 10 U.S.C. § 1336 provided:
No period of service included wholly or in part in
determining a person's right to, or the amount of, retired pay under this
chapter [10 U.S.C. §§ 1331 et seq.] may be excluded in determining his
eligibility for any annuity, pension, or old-age benefit, under any other law,
on account of civilian employment by the United States or otherwise, or in
determining the amount payable under that law, if that service is otherwise
properly credited under it.
The Committee report cited Cantwell v. County of
San Mateo, 631 F.2d 631 (9th Cir. 1980). The Cantwell decision compelled a county retirement
system to comply with 10 U.S.C. § 1336.
Cantwell had served roughly 3.5 years on active duty in the United
States Navy and twenty years in the Naval Reserves. He obtained reserve retirement benefits under 10 U.S.C.
§§ 1331 to 1337. California law
allowed its public employees to receive credit towards their retirement
benefits for their prior public service, but only if that prior service did not
entitle them to receive a pension from their former public employer. Cantwell challenged the exception because it
would have denied him county retirement credits for his active service in the
United States Navy. The Cantwell
court ruled that 10 U.S.C. § 1336 prevailed over California law and
entitled Cantwell to receive credit in the county retirement system for his 3.5
years of active Navy service. Id.
at 637.
The
drafting file to 1987 Wis. Act 62 contains a letter from two University of
Wisconsin law professors, also citing Cantwell. Their letter states:
Our problem is that the present Wisconsin law, which
grants retirement credit for active military service by all other state
of Wisconsin employes, expressly excludes from this benefit those of us who, in
addition to our active service, did up to 20 or more years of extra reserve
service in order to qualify for a limited federal reserve retirement benefit.
Letter to Senator Russell Feingold (March 18, 1986) (on
file with the Legislative Reference Bureau).
The professors offered the Senator a draft of the legislation virtually
identical to the present wording of the statute. Id.
The
agency's interpretation of the terms "active service" and
"active military service" is reasonable. The Committee Report's citation to Cantwell, and
the letter from the law professors make it apparent that when the legislature
amended § 40.02(15)(c)4, Stats.,
to refer to 10 U.S.C. §§ 1331-37, the legislature assumed and intended
that § 40.02(15)(c) grant creditable military service only for active
service with the armed forces, and not active duty for training. In Cantwell, the public
employee sought retirement credits only for his active service in the armed
forces. The two university professors
sought credit only for their active service.
They provided a draft of proposed legislation to accomplish that end,
and the proposed legislation was adopted.
Based on the evidence he introduced at the hearing, Morris's service in
the Reserves cannot be credited under § 40.02(15)(c), Stats.
We, therefore, affirm the circuit court's order affirming the Board's
determination.
By the Court.—Order affirmed.
[1] The documents are Morris' Report of
Separation and Record of Service, travel vouchers indicating his destinations
while serving on active duty, Request and Authorization for Active Duty
Training/Active Duty Tour, Request and Authorization for change of
Administrative Order, flight authorization and ANG/USAFR Point Credit Summary.
[2] Section 40.08(12), Stats., provides:
Notwithstanding s. 227.52, any action, decision or
determination of the board, the Wisconsin retirement board, the teachers
retirement board, the group insurance board or the deferred compensation board
in an administrative proceeding shall be reviewable only by an action for
certiorari in the circuit court for Dane County that is commenced by any party
to the administrative proceeding, including the department, within 30 days
after the date on which notice of the action, decision or determination is
mailed to that party, and any party to the certiorari proceedings may appeal
the decision of that court.
[3] Morris agrees
that he falls into this category. In
his brief he states that his appointment was not effective "until Senate
confirmation took place." Appointees
requiring Senate confirmation are those which the Thompson court
held are "de jure" officials with a legal right to hold over. Id., 22 Wis.2d at 293-94, 125
N.W.2d at 645.
[4] Morris argues
that when he went from a part-time commissioner to a full-time chairperson, his
position necessarily changed. We
disagree. Section 15.06(2), Stats., provides that the governor
shall "designate" a chairperson from among the members "to serve
as chairperson" for a two-year term.
A member designated as chairperson for a portion of his or her appointed
term remains a member, and his other position as a member is not changed by
becoming chairperson.
[6] David Stella, the Department of Employe Trust
funds director of retirement and survivor benefit programs, testified the
policy dated back to the enactment of ch. 96, Laws of 1981, the law that
created the Wisconsin Retirement System.
In clause (22), the definition of "active duty"
is based on the definition of "active Federal service" in the source statute,
since it is believed closer to general usage than the definition in 50:901(b),
which excludes active duty for training from the general concept of active
duty. 10 U.S.C. § 101, Explanatory
Notes.