40.08 Annotation
An appeal to the board was an inadequate remedy under the facts of the case because the board does not have the statutory authority to award interest on delayed benefit payments based either on a claim of unjust enrichment or a takings claim under Art. I, s. 13. The doctrine of exhaustion of administrative remedies did not require an appeal of the department's dismissal of the claim to the board before filing a court action. Fazio v. Department of Employee Trust Funds,
2002 WI App 127,
255 Wis. 2d 801,
645 N.W.2d 618,
01-2595.
40.08 Annotation
An appeal to the board was an inadequate remedy under the facts of the case because the board does not have the statutory authority to award interest on delayed benefit payments based either on a claim of unjust enrichment or a takings claim under Art. I, s. 13. The doctrine of exhaustion of administrative remedies did not require an appeal of the department's dismissal of the claim to the board before filing a court action. Fazio v. Department of Employee Trust Funds,
2002 WI App 127,
255 Wis. 2d 801,
645 N.W.2d 618,
01-2595. Affirmed on other grounds.
2006 WI 7,
287 Wis. 2d 106,
708 N.W.2d 326,
04-0064.
40.19
40.19
Rights preserved. 40.19(1)(1) 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. This section shall not be interpreted as preventing the state from requiring forfeiture of specific rights and benefits as a condition for receiving subsequently enacted rights and benefits of equal or greater value to the participant.
40.19(2)
(2) Any person, or if the person dies prior to applying for a benefit then any beneficiary of that person, who is a participant in the Wisconsin retirement fund or a member of either the state teachers retirement system or the Milwaukee teachers retirement fund on the day prior to January 1, 1982, and who becomes a participating employee in the Wisconsin retirement system may request, prior to application for any benefit from the system, that the amount of and eligibility for benefits from the Wisconsin retirement system be determined in accord with the laws in effect on that date but the election shall be totally in lieu of any benefit amount or eligibility provided by this act or any subsequent act.
40.19(2m)
(2m) Any person who is a participant in the Wisconsin retirement system before March 9, 1984, and who is not subsequently a participating employee in the Wisconsin retirement system shall continue to have the amount of, and eligibility for, the person's benefits determined in accordance with the statutes in effect on the date the person terminated as a participating employee in the Wisconsin retirement system, but the form of payment, processing procedures and accounting controls shall be determined in accordance with this chapter.
40.19(3)
(3) Any person who is a participant in the Wisconsin retirement fund or a member of either the state teachers retirement system or the Milwaukee teachers retirement fund prior to January 1, 1982, and who does not subsequently become a participating employee in the Wisconsin retirement system, shall continue, except as provided in
s. 40.08 (8), to have the amount of and eligibility for the person's benefits determined in accord with the statutes in effect on the date the person terminated as a participating employee in the Wisconsin retirement fund or as an active member of the state teachers retirement system or Milwaukee teachers retirement fund, but the form of payment, processing procedures and accounting controls shall be determined in accord with this chapter.
40.19(4)(a)(a) The department shall assume, and be responsible for, all authority previously exercised by village or city officials relative to pension funds and benefits provided under s.
61.65, 1975 stats., and s.
62.13 (9), (9a) and (10), 1975 stats., except the governing body of the employer shall exercise the authority provided under the first sentence of s.
62.13 (9) (c) 3., 1975 stats.
40.19(4)(b)
(b) The liabilities of each pension fund terminated by
chapter 182, laws of 1977, shall be accounted for and paid by the Wisconsin retirement system in accord with procedures set forth in this subsection.
40.19(4)(c)
(c) Each employee subject to
par. (g) shall make contributions to the Wisconsin retirement system in an amount equal to 4% of salary.
40.19(4)(d)
(d) Each employer affected by this subsection shall reimburse the Wisconsin retirement system for all payments made under
par. (f) or
(g) as a result of employment with that employer. Payments made under
s. 40.27 are not included as payments for which the Wisconsin retirement system is to be reimbursed. The reimbursements due from the employer under this paragraph shall be offset by application of contributions made under
par. (c), applied by the department at times determined by it, and by any contributions made under s.
41.60 (2) (a) 1. and
2., 1977 stats., which have not been applied prior to January 1, 1982.
40.19(4)(e)
(e) All amounts due under this subsection shall be paid in accordance with procedures established by the department.
40.19(4)(f)
(f) Each benefit being paid under s.
61.65, 1975 stats., or s.
62.13 (9), (9a) or (10), 1975 stats., on March 30, 1978, shall be continued in full force and effect, on the terms and conditions under which the benefit was originally granted, regardless of whether the granting was in accordance with the law then in effect, but after January 1, 1982 each benefit shall be paid by the Wisconsin retirement system and if all or a portion of the benefit was in accord with the law then in effect, that portion of the benefit shall be subject to
s. 40.27 (1). No supplemental benefit shall be paid under
s. 40.27 (1) with respect to any portion of a benefit which was not granted in accordance with the law then in effect.
40.19(4)(g)
(g) After January 1, 1982, each member of a pension fund created under s.
61.65, 1975 stats., or s.
62.13 (9), (9a) or (10), 1975 stats., who was an actively employed member of that fund on March 30, 1978, shall continue to have benefits and obligations determined in accordance with the applicable provisions of s.
61.65, 1975 stats., or s.
62.13 (9), (9a) or (10), 1975 stats., but paid by the Wisconsin retirement system, except that for any member whose employment terminates after March 9, 1984, the monthly pension shall equal 55% of the member's monthly compensation. The provisions of
s. 40.23 (1) (f) relating to compulsory retirement shall not apply to those actively employed members.
40.19(4)(h)
(h) This subsection does not apply to any pension fund operated by a 1st class city in accordance with s.
62.13 (10) (h), 1975 stats.
40.19 Annotation
All participants who have benefits accrued are protected by sub. (1) from the abrogation of those benefits unless the benefits are replaced by benefits of equal or greater value. Statutory changes to ch. 40 may be made as long as accrued benefits are not abrogated. Nonstatutory distributions made by
1999 Wis. Act 11 did not abrogate accrued benefits nor did they violate the constitutional protections against the taking of property or impairment of contract. Wisconsin Professional Police Association, Inc. v. Lightbourn,
2001 WI 59,
243 Wis. 2d 512,
627 N.W.2d 80,
99-3297.
WISCONSIN RETIREMENT SYSTEM
40.20
40.20
Creation. A Wisconsin retirement system is created, including the benefits provided by this subchapter, the disability annuities provided by
s. 40.63 and the death benefits provided by
ss. 40.71 and
40.73. For purposes of determining an employee's eligibility for social security coverage only, the former state teachers retirement system and Milwaukee teachers retirement fund and the local police and fire pension funds established under s.
61.65 (1), (6) and (7), 1975 stats., and s.
62.13 (9) (e), (9a) and (10) (f) and (g), 1975 stats., shall continue to be considered separate retirement systems but for all other purposes the Wisconsin retirement system is a continuation of the Wisconsin retirement fund.
40.20 History
History: 1981 c. 96;
1987 a. 403 s.
256.
40.21
40.21
Participating employers. 40.21(1)
(1) Any employer shall be included within and thereafter subject to the provisions of the Wisconsin retirement system by so electing, through adoption of a resolution by the governing body of the employer. If the official notice of election to be included has been received by the department on or before November 15 the effective date of participation of the employer shall be the ensuing January 1. If the department receives the notice of election after November 15 the effective date shall be the January 1 after the ensuing January 1.
40.21(1m)
(1m) Notwithstanding
sub. (1), if the governing body of a federated public library system, established under
s. 43.19, whose territory lies within a single county with a population of 500,000 or more adopts a resolution to become a participating employer, the effective date shall be June 1, 1994.
40.21(2)
(2) Any employer who elected or was required to participate in the Wisconsin retirement fund under s.
41.05, 1979 stats., shall be included in the Wisconsin retirement system on the same basis as the employer was included in the Wisconsin retirement fund.
40.21(3)
(3) Every employer authorized by law to employ or pay the salaries of teachers, who is not otherwise a participating employer, is a participating employer with respect to teacher employees only.
40.21(3m)
(3m) A city-county health department that is established under
s. 251.02 (1m), that is subject to
s. 251.02 (1r), and that is not otherwise a participating employer, is a participating employer with respect to its employees who are included in a collective bargaining unit for which a representative is recognized or certified under
subch. IV of ch. 111 and is not required to adopt a resolution electing to participate in the Wisconsin retirement system or provide notice of such election to the department under
sub. (1).
40.21(4)
(4) Every city or village which was subject to s.
61.65, 1975 stats., and s.
62.13, 1975 stats., on or before March 30, 1978, except a city of the 1st class, which is not otherwise a participating employer, is a participating employer but only with respect to present and future employees of its police and fire departments specified by
s. 61.65 (6) and
(7), 1975 stats., and
s. 62.13 (9) (e),
(9a) and
(10) (f) and
(g), 1975 stats.
40.21(5)
(5) Whenever any employer is created, the territory of which includes more than one-half of the last assessed valuation of an employer which at the time of creation was a participating employer on a basis other than that specified in
sub. (3) or
(4) and the employer so created assumes the functions and responsibilities of the previous employer with respect to the territory, then the employer so created shall automatically be a participating employer from its inception, but no prior service credits shall be provided for any personnel of the employer unless the new participating employer adopts a resolution as provided in
sub. (1). If a resolution is adopted, no employee shall receive prior service credit for any period of service which was previously covered by a retirement system.
40.21(6)(a)(a) Any employer electing to be included within the provisions of the Wisconsin retirement system in accordance with this section may in the resolution and in the certified notice of election recognize 100%, 75%, 50%, 25% or none of the prior creditable service of its employees earned by the employees while employed by the employer, if the same percentage of each employee's prior creditable service is recognized.
40.21(6)(b)
(b) Any employer which recognizes less than all of the prior creditable service of its employees under
par. (a) may adopt another resolution as provided in this section, increasing, for each person who is still a participating employee on the effective date of the increase determined under this section, the percentage of the employee's prior creditable service which is recognized to one of the higher levels provided by
par. (a) provided the accumulated percentage does not exceed 100%.
40.21(6)(c)
(c) Whenever the percentage of recognized prior creditable service is increased as provided in
par. (b), the employer contributions computed under
s. 40.05 (2) shall be increased to reflect the value of the increased prior creditable service being granted, amortized over the remainder of the funding period provided for prior creditable service costs of that employer.
40.21 Annotation
Sub. (4) limits prospective mandatory Wisconsin Retirement System coverage to present and future police and firefighter employees of cities and villages that had police and firefighter employees included in the Wisconsin Retirement Fund prior to March 31, 1978.
75 Atty. Gen. 34.
40.22
40.22
Participating employees. 40.22(1)
(1) Except as provided in
sub. (2), each employee currently in the service of, and receiving earnings from, a state agency or other participating employer shall be included within the provisions of the Wisconsin retirement system as a participating employee of that state agency or participating employer.
40.22(2)
(2) No person may be included within, or receive benefits from, the Wisconsin retirement system for any service if any of the following conditions apply:
40.22(2)(a)
(a) Except as provided in
sub. (2m), the employee was initially employed by a participating employer before July 1, 2011, and is not expected to work at least one-third of what is considered full-time employment by the department, as determined by rule.
40.22(2)(am)
(am) Except as provided in
sub. (2r), the employee was initially employed by a participating employer on or after July 1, 2011, and is not expected to work at least two-thirds of what is considered full-time employment by the department, as determined by rule.
40.22(2)(b)
(b) The employee's expected duration of employment is less than one year.
40.22(2)(d)
(d) The employee is subject to
s. 40.19 (4) provided that contributions and benefits shall be paid as provided by that subsection.
40.22(2)(e)
(e) The employee is subject to a contract involving the furnishing by the person of more than the person's personal services.
40.22(2)(f)
(f) The employee is a member of a retirement system of a 1st class city and was an employee of a technical college district created under
ch. 38 on the date the district was created.
40.22(2)(g)
(g) The employee is appointed by the university under
s. 36.19, or by the University of Wisconsin Hospitals and Clinics Authority, as a student assistant or employee in training or is appointed by a school or other education system in which the person is regularly enrolled as a student and is attending classes to perform services incidental to the person's course of study at that school or education system.
40.22(2)(gm)
(gm) The employee is initially employed by a participating employer on or after April 23, 1992, is under the age of 20 and is regularly enrolled, or is expected to be regularly enrolled, as a full-time student in a school, as defined in
s. 118.257 (1) (d).
40.22(2)(h)
(h) The employee is teaching while on leave from an educational institution not a part of the University of Wisconsin System, if the person is a visiting professor, visiting associate professor, visiting assistant professor or visiting lecturer at the university and if the employment at the university is all within 12 consecutive calendar months. If the employment at the university is continued beyond the 12-month period the person shall, at the start of the 13th consecutive calendar month of employment, come under the system for future service.
40.22(2)(i)
(i) The employee contributes to the employee retirement system of the county of Milwaukee if the person was contributing to that system on September 10, 1959.
40.22(2)(j)
(j) The employee is employed by a transportation system in a position that is excluded from the Wisconsin retirement system and is included in another retirement system under
s. 66.1023.
40.22(2)(k)
(k) The employee is eligible to receive similar benefits from any other state covering the same service and earnings.
40.22(2)(L)
(L) The employee is employed by a participating employer after the person becomes an annuitant, unless the service is after the annuity is terminated under
s. 40.26.
40.22(2m)
(2m) An employee who was initially employed by a participating employer before July 1, 2011, who is not expected to work at least one-third of what is considered full-time employment by the department, as determined by rule, and who is not otherwise excluded under
sub. (2) from becoming a participating employee shall become a participating employee if he or she is subsequently employed by the state agency or other participating employer for either of the following periods:
40.22(2m)(a)
(a) At least one year for at least one-third of what is considered full-time employment by the department, as determined by rule, or, for an educational support personnel employee, at least one year for at least one-third of what is considered full-time employment for a teacher.
40.22(2m)(b)
(b) At least 600 hours in the immediately preceding 12-month period.
40.22(2r)
(2r) An employee who was initially employed by a participating employer on or after July 1, 2011, who is not expected to work at least two-thirds of what is considered full-time employment by the department, as determined by rule, and who is not otherwise excluded under
sub. (2) from becoming a participating employee shall become a participating employee if he or she is subsequently employed by the state agency or other participating employer for either of the following periods:
40.22(2r)(a)
(a) At least one year for at least two-thirds of what is considered full-time employment by the department, as determined by rule, or, for an educational support personnel employee, at least one year for at least two-thirds of what is considered full-time employment for a teacher.
40.22(2r)(b)
(b) At least 1,200 hours in the immediately preceding 12-month period.
40.22(3)
(3) A person who qualifies as a participating employee shall be included within, and shall be subject to, the Wisconsin retirement system effective on one of the following dates:
40.22(3)(a)
(a) The employer's effective date of participation if the person is an employee of that employer on the employer's effective date and has met all requirements for inclusion on or prior to that effective date.
40.22(3)(b)1.1. The first day after completion of one year of employment for at least one-third of what is considered full-time employment by the department, as determined by rule, if the person becomes a participating employee under
sub. (2m) after the employer's effective date of participation.
40.22(3)(b)2.
2. The first day after completion of one year of employment for at least two-thirds of what is considered full-time employment by the department, as determined by rule, if the person becomes a participating employee under
sub. (2r) after the employer's effective date of participation.
40.22(3)(c)
(c) The first day of employment if the person is a participating employee not covered under
par. (a) or
(b).
40.22(3m)
(3m) Any employee who becomes a participating employee shall continue to be a participating employee notwithstanding
sub. (2) (a) or
(b) for periods of subsequent employment with that state agency or other participating employer unless the employment with the state agency or other participating employer is terminated for 12 or more consecutive calendar months or unless the employee receives a benefit under
s. 40.23,
40.25 (1) or
(2) or
40.63.
40.22(4)
(4) For purposes of
s. 40.02 (25), a person who is employed by a state agency shall be deemed to have become a state employee on the date the person becomes a participating state employee. No participating employee may be included under
s. 40.52 (3).
40.22(5)
(5) A determination as to whether an employee has met or will meet the actual or anticipated performance of duty or other requirements of this section shall be made by the employer in accordance with rules of the department. The department may by rule identify circumstances and establish procedures under which eligibility for participation shall be based on combined employment when a person is employed by 2 or more employers.
40.22(6)
(6) Notwithstanding
subs. (1),
(2),
(3),
(4) and
(5), if an employee's employment with an employer terminates after a period of service of less than 30 calendar days, the employee is not eligible for retirement coverage for that period of service. This subsection shall not apply to employment covered under
sub. (3m) and shall not affect an employee's eligibility for insurance coverage for that period of service.
40.23
40.23
Retirement annuities. 40.23(1)(a)
(a) Except as provided in
par. (am), any participant who has attained age 55, and any protective occupation participant who has attained age 50, on or before the annuity effective date shall be entitled to a retirement annuity in accordance with the actuarial tables in effect on the effective date of the annuity if the participant submits an application for a retirement annuity on a form furnished by the department and all of the following apply:
40.23(1)(a)1.
1. The participant is separated, regardless of cause, and continues to be separated until the annuity effective date, the date 30 days after the application is received by the department or the date 30 days after separation, whichever is later, from all employment meeting the qualifications for inclusion specified in
s. 40.22 for any participating employer.
40.23(1)(a)2.
2. The participant is not on authorized leave of absence from any participating employer.
40.23(1)(am)1.1. In this paragraph "part-time service" is service in a position normally requiring actual performance of duty during fewer than 1,044 hours per calendar year.
40.23(1)(am)2.
2. Any participant who has attained age 55 and who is a participant because of employment other than part-time service as an elected official and who is also a participating employee because of part-time service as an elected official may, after termination of all covered employment other than service as a part-time elected official, waive further participation under the fund for his or her current, and any future, part-time service as an elected official. Any election under this paragraph is irrevocable and is effective beginning the day after the date of election. Notwithstanding
par. (a), any participant who elects under this paragraph may receive a retirement annuity for all service under the fund credited to the participant to the date he or she elects. The date a participant elects under this paragraph is deemed to be the date of separation from the last participating employer by which that participant was employed.
40.23(1)(am)3.
3. No participant who elects under
subd. 2. may have his or her annuity terminated under
s. 40.26 (1) because of earnings received for any part-time services as an elected official.
40.23(1)(b)
(b) Except as provided in
par. (bm), all retirement annuities shall be effective on the day following, or on the first day of a month following, the date of separation from the last participating employer by which the participant was employed, as specified by the participant in the written application for the annuity. However, the date shall not be more than 90 days prior to the date of receipt of the application by the department. The participant may specify that additional contribution accumulations shall not be applied to provide an annuity until a subsequent application is filed for an annuity to be paid from the additional contribution accumulations. The subsequent application shall be made as specified under
sub. (4) or the department shall automatically distribute the accumulated additional contribution accumulations as a lump sum.
40.23(1)(bm)
(bm) If an application by a participant age 55 or over, or by a protective occupation participant age 50 or over, for long-term disability insurance benefits is disapproved under rules promulgated by the department, the date which would have been the effective date for the insurance benefits shall be the retirement annuity effective date if requested by the applicant within 60 days of the disapproval or, if the disapproval is appealed, within 60 days of the final disposition of the appeal.
40.23(1)(c)
(c) No application specifying an annuity effective date later than 60 days after the date of its receipt by the department shall be accepted, unless the participant files the application on or after January 1 of the calendar year in which the participant attains the age of 69.5 years specifying an annuity effective date that begins before April 1 of the calendar year following the calendar year in which the participant attains the age of 70.5 years.
40.23(1)(d)
(d) Notwithstanding
par. (c), an application for an annuity to be effective on the day following termination of employment may be filed up to 90 days prior to the employee's anticipated termination date. The anticipated termination date shall be stated in the application and the department shall not make an annuity payment until the employee has terminated. The department shall reject any application that is filed more than 90 days prior to the employee's termination date.
40.23(1)(e)
(e) Whenever it is determined that an annuity effective date is incorrect, the annuity effective date shall be corrected and any related computational and payment adjustments shall be made.
40.23(1)(f)
(f) Any participating employee may be retired by the employer after attainment of the employee's normal retirement date, under policies established or agreed to by the employer, except:
40.23(1)(f)2.
2. Each elected official's and each sheriff's employment shall be continued to the end of the official's or sheriff's term of office and to the end of each subsequent term of office to which elected.
40.23(1)(f)4.
4. Any employer may, in a collective bargaining agreement, limit its right to require retirement.
