Along with handling an intensive run of grievances and arbitrations, the law firm for District Council 48 finds itself with oh, a few extra little duties.
Like fencing with some of the best known lawyers in the state. Like trying to explain things to the media. Like dashing to Waukesha on one day's notice to get a temporary restraining order against Milwaukee County pension tampering. Like telling Milwaukee's District Attorney that he may be committing a felony by inserting his office into the civil litigation surrounding the county pension.
No one can say we aren't keeping Podell, Ugent and Haney, S.C., busy.
"Well, the needs of clients come in cycles, " chuckles Attorney Alvin R. Ugent, whose firm handles most the labor issues that come up for AFSCME District Council 48. He concedes, though, that right now his legal squad is among the busiest cyclists in town.
The highest-profile legal case in the county requires pedaling through a traffic jam of high-powered lawyers. Ugent doesn't sound the least bit daunted -- though he chuckles again about the strange bedfellows the Milwaukee County pension is creating.
He also urges patience. The civil lawsuit - the one that might change the rules of the road or keep them intact -- will probably take years to come to any resolution. And the players' positions could change.
Right now, Ugent and company are on the same side as Milwaukee County and its acting corporation counsel, Timothy Schoewe, and the county's private law firm, Reinhart, Boerner, Van Deuren.
Yes, that sounds like Strange Bedfellows No. 1, though sometimes the interests of the workers and the management do dovetail. Sometimes, though, they part, and while the union is committed to its contractual obligations, politics can and does change where county officials stand.
From that political perspective, with a new county executive in place and with supervisors dropping left and right in recall elections over whether they should have approved these very same pension enhancements -- well, couldn't all that reverse the county's commitment to defend the pension its ousted administration approved?
You can't rule that out. Which is why Ugent's firm worked so hard to be accepted into the case as an intervenor-defendant. Which it has. So it is positioned to do what it must for its AFSCME client.
The case creates strange opponents, too. Typically, AFSCME is supportive of other unions and of the concerns of the DA's office. In this case it can't be.
The other side is another county union. Atty. John Fuchs brought the civil lawsuit on behalf of the sheriff's deputies and retirees. They claimed they have a vested property interest in the pension fund, that the changes to the pension made excluded them and were furthermore unconstitutional. What they want as a remedy is compensation, though the nature of their complaint doesn't much care about jeopardizing compensation received by other workers.
AFSCME Atty. Alvin Ugent is forced to chuckle at the bizarre pension case's cast of players.
It is a bizarre situation and a pretty curious lawsuit. The deputies had not negotiated a contract at the time the pension enhancements were approved in 2000 (first for nonrepresented workers and elected officials, and then as part of the AFSCME labor contract). In fact, some observers say, the deputies were so focused on such issues as pay that they wouldn't even discuss the pension concept with the county. Nor did they change their demands or challenge the pension payouts as the deal was approved in 2000 by the county's pension study committee (which includes supervisors), by the County Board's Personnel Committee (all supervisors) and then by the County Board itself. So they failed to get in on the enhancements.
Most people would say, "Tough luck. " But a full two years later, along comes their lawsuit - after the potential size of lump sum payments to top-paid administrators fed community outrage and just as the deputies saw their own bosses among those walking off with hefty lump sum payouts plus solid monthly pensions.
One lawyer jokingly described the deputies' legal position as "The pension changes were bad, they weren't legal, but we'd sure like to get a piece of the action."
And then came Milwaukee County District Attorney E. Michael McCann, not quite endorsing the plaintiffs (the deputies and their retirees) but technically on their side of the fence. But actually he's filing a civil suit of his own. He's arguing not just that the pension changes violated a legal procedure but that this means the changes were unconstitutional and the remedy should be to void them - that is, get the lump-sum payouts back and stop the pension enhancements in their tracks. He says the county should then renegotiate in "good faith" with unions such as AFSCME.
"That's a prescription for chaos, " said Ugent. "It's impractical, unworkable and it would cost the county one heck of a lot of money besides with little likelihood of success. " Aside from concocting incredible and interminable litigation against retirees, McCann's suggestion would reopen labor contracts in a way requiring the county to give compensatory benefits to the unions - benefits that would directly slam the property tax in ways that pension payouts do not.
And hovering in the wings is the Wisconsin Attorney General, a candidate for the Democratic nomination for governor. After filing criminal charges against Gary Dobbert, the former head of human resources and proclaimed architect of the pension enhancements, Jim Doyle also served notice of a desire to speak in the civil case, but exactly what he wants to argue and in what manner remains a little unclear.
"He's running for office, " commented one lawyer, "so I think he's waiting to see which way the wind blows. " Ugent wisely stays mum on Doyle's potential involvement.
The civil action, we should emphasize, is separate from the Dobbert criminal case, which alleges that for his own personal gain he misled county officials. But the issues do overlap in curious ways. For instance, if the judge rules that the law wasn't violated, that could impact the argument that Dobbert deliberately duped supervisors. If the judge rules that the law was violated, the culpability may not be Dobbert's but the fault of the pension study committee that was supposed to follow the law. Yet according to news statements by some supervisors, veteran members of that committee didn't even know about the requirement that McCann says was violated.
There are more legal maneuvers, such as further criminal investigations. What the federal grand jury is after is anyone's guess, though they have called in or spoken to a number of people.
Ugent and Local 594 President Lee Henderson prepare for a grievance case, just one of his many AFSCME duties as he also preps for the big pension court battle.
And more lawyers have intruded into the mix, offering solicited and unsolicited opinions. All this has sorely tested the nerves of county officials and county workers, sending people scurrying to the pension office to check what they would get if they took early retirement now, asking the impossible question - will what we get now really be taken away later?
Just sorting out the traffic of who is representing which side of the equation would make many lawyers scream, which the affable Ugent certainly doesn’t. Instead, he chuckles and then he turns serious, saying flatly, "I feel confident and strong about winning this. "
But he also says flatly, "There are 13 lawyers involved in this thing, so I expect a lot of trouble. "
While McCann got a lot of coverage when he announced his intent to intervene in the case, which the judge allowed, there was little notice when Ugent's firm asked the judge to reconsider, arguing that McCann's involvement in this civil case is both inappropriate and illegal.
"If you and I were going to file a lawsuit, " said Ugent, "we have to worry about hiring an attorney, paying fees and sticking through a complicated case. McCann has come in wearing three hats. He's a taxpayer, he's a member of the pension plan and then he's got the full awesome weight of the DA's office behind him, plus all that staff of lawyers to work on this case. So there's taxpayer money being used by the county to defend itself and taxpayer money being used by McCann against the county. "
In a motion before the court, Ugent's firm argues that McCann is breaking the law by entering a civil case where he has a personal interest and simultaneously using his public office to pursue it, an action the firm alleges is clearly prohibited by state statute. That's no different, the motion says, than McCann using public resources to pursue a divorce or a personal injury claim. Ugent's motion also warns that if any county officials encouraged McCann to intervene, they, too, may have violated a criminal statute.
"There's another irony here, " added Robert Haney, a partner with Ugent in the argument. "McCann is the only million dollar lump-sum beneficiary in the pension who has not said he won't take this option. He hasn't suggested any method of how the county can get back the money they've been paying out for 18 months, as if it could. The big money boys, except for him, have already left with their sizeable payouts, so the people left that he can hurt with this action are just the little guys. "
Other county legal officials, such as judges, are staying away from the case to avoid the appearance of conflict of interest. That's why this issue is before a judge from
Bayfield County - Thomas Gallagher. "Don't really know him, " said Ugent, "but he sure is going to have quite a cast of characters. "
All these maneuvers may not rain comfort on the union workers at the county, who would prefer a simple answer - is the contract safe or isn't it? They've seen the community outrage over the richest pension payouts - many even share it. They have seen all the hoopla forcing resignations (County Executive Tom Ament and his top councilors) and toppling supervisors in recall elections, and they have also seen the stampede of their colleagues (largely nonrepresented county employees) to apply for retirement .
Ugent is too good a lawyer to make predictions or guarantees, but conversations with him and other lawyers in the case offer both comfort and reality.
First, this will hardly be decided overnight. That may not comfort the anxiety but it certainly confirms that no one should be in rush to retire. Their children may be working for the county before all this is settled.
Every side we contacted is convinced it will linger for years, because no one is going to back down. "No matter how the judge rules in this case, " said one lawyer, "it will be appealed, and then that appeal will be taken up the Wisconsin Supreme Court. There are too many issues and players involved. "
The McCann suit alone virtually guarantees long life for this case. Ugent has joined with the county's private counsel in a motion to dismiss the deputies' lawsuit on several grounds and precedents.. But even if that succeeds, McCann's complaint still lingers. Moreover, knowing more people may intervene and that there will be motions to determine in the case, the lawyers can't even begin taking dispositions until August.
Somewhere along this road, the community may also realize that it's probably going to be spending more tax dollars on special elections and court cases than lump sum pension payouts ever represented.
Ugent sees something else that should comfort union workers at the county, and that is the historic strength and legal protections that surround labor agreements mutually arrived at. The union is not even being accused of doing anything illegal. In fact, its care -- and its speculation two years ago that high-paid administrators were getting a "golden parachute" -- have been mentioned in the lawsuits.
McCann's argument is that the state statute requires a written report on proposed pension changes by the county's pension study committee before the County Board votes on the plan. The first issue is one of facts - did the advance letters prepared by Dobbert and by the county's contracted actuary, Dennis A. Skelly, satisfy the requirements of the report law? Particularly, did they sufficiently address the impact of the "back drop" option? Then there is the mysterious "green file" of pension information that was present when the Personnel Committee approved the changes. Did that fulfill the law?
Even if the court rules that such items did not fulfill the law's requirement, there is the entire issue of fairness and remedy.
"Courts aren't very big on producing a decision for which there is no remedy, " said Ugent. "Suppose they did break a law - well, what do you do? Sue all the people who have left to give the money back. Reopen the union negotiations - think about what that would cost! Should the entire pension enhancements be thrown out because of this? Can union workers be penalized for what the supervisors failed to do?
"I think any judge has got to be concerned about making any punishment fit the crime. And if there was a crime, who is responsible? Certainly not the union, which did its side in the right way. A judge has got to be concerned about that.
"Let me give you a for instance. Say you go to Marshall Field's to buy an item. It should cost 100 dollars, but the clerk says, 'I'll sell it to you for 10.' You don't know the clerk is doing anything wrong. But afterward Marshall Field's says to the clerk, 'That's illegal, you're fired.' Fine, that's right.
"But then Marshall Field's says, 'And now we're going to sue the customer.' Now that's ridiculous. "
Ugent has been involved in pension disputes before, city and county, and suggests the case will still be going on when District Council 48 sits down to negotiate its next contract.
"I tell you the people I really feel sorry for are Richard Abelson and his bargaining team at the county, " Ugent said. "I think they're going to be in for the most difficult negotiations in the history of the labor movement. It's hard to know right now what sort of County Board they're going to face, what its mood is, what the new county executive wants to do. From a legal perspective I think we're going to have to be very alert to all the pressures involved. "
