Former acting public safety Rolling chief joins lawsuit against village
By Kevin Boneske
ASHWAUBENON – A former acting village public safety chief has joined a state lawsuit of another former officer to allege they didn’t receive their full retirement payout.
Attorneys with the Hawks Quindel law firm, which represents the Ashwaubenon Public Safety Officers’ Association (APSOA), filed an amended complaint last month with the Brown County clerk of circuit court on behalf of Tom Rolling, who was a village public safety officer from June 1992 to January 2020.
Rolling, who took over last summer as the department’s interim chief of police operations, had been a supervisor since 2008.
He also worked as a lieutenant and a commander after being a union employee from 1992 to 2008 subject to the APSOA’s collective bargaining agreement (CBA).
The complaint alleges a difference of $13,725 upon retirement between what Rolling claimed and was paid.
It is based on the village using an hourly rate of $36.92, instead of $51.83, to calculate the 24-hour sick time with all the other categories of retirement payout based on the higher rate, the complaint states.
According to the amended complaint, Rolling relied on the village’s employee handbook, the CBAs in force over time and the village’s past practice of paying out accrued, vested sick leave, accrued vacation and compensatory time to retiring employees at their regular hourly rate of pay.
Rolling joined the lawsuit of Luke Pasterski, who retired from the public safety department last year with more than 20 years of service and then became a battalion chief for De Pere Fire Rescue.
Pasterski, who worked as an Ashwaubenon public safety officer from February 1999 to April 2019, had been a union employee between 1999 and 2007 before being a department lieutenant from January 2007 until his retirement in April 2019.
The lawsuit with Pasterski listed as the sole plaintiff was initially filed last September to allege he didn’t receive his full retirement payout.
The village’s response in October from Adam Marshall of Town Counsel Law and Litigation disputed Pasterski’s claim of the hourly rate and payout amount and requested to have the complaint dismissed.
In the response, it stated the village uses two hourly rates – one for converting salary into an hourly rate based upon 2,080 hours worked in a year and another based on Pasterski’s actual hours worked at 2,920 hours in a year.
“(Pasterski’s) hourly rate for converting salary to an hourly rate was $42.80,” the response states. “(His) hourly rate for actual hours worked was $30.49.”
As stated in the amended complaint, the difference of $21,764 between what Pasterski claimed and was paid is based on the village using an hourly rate of $30.49, instead of $42.80, to calculate the 24-hour sick time, vacation accrual and 2019 vacation with only compensatory time based on the higher rate.
Causes of action
Rolling and Pasterski accuse the village of failure to pay wages in violation of state law and breach of contract among the suit’s causes for action.
Pasterski is seeking damages of $21,764 in unpaid wages earned, along with $10,882 in administrative penalties for 50 percent of wages due.
Rolling is seeking damages of $13,725 in unpaid wages earned, along with $6,862 in administrative penalties for 50 percent of wages due.
In addition, the suit is seeking the cost of all attorneys’ fees in prosecuting this action and the costs of this action, as well as other legal and equitable relief as deemed just and necessary.
The lawsuit has requested a jury trial.
A telephone scheduling conference was set for 10 a.m. March 12 before Judge Tammy Jo Hock.
Another retirement payout dispute involving a former Ashwaubenon public safety officer is headed for an arbitration hearing next month with the Wisconsin Employment Relations Commission (WERC).
The grievance the APSOA filed on behalf of Shawn Wright is scheduled for a hearing at 10:30 a.m. Thursday, April 9, at the village hall before WERC arbitrator Raleigh Jones.
Wright is disputing the amount of his retirement payout for unused paid time off (PTO),
The APSOA claims the village miscalculated the hourly rates based on which it made the payout.
The union has sought to have the village recalculate Wright’s final PTO payout “in accordance with the parties’ collective bargaining agreement(s) and consistent with the manner in which the village has historically paid out such benefits to retiring PSOs (public safety officers).”
According to records related to the grievance, the payout to Wright was based upon his actual hourly rate of pay, which was based upon his salary divided by the number of hours required for his respective shift (i.e. 2,920 annual hours for a 24-hour shift) and not the overtime rate.
The grievance was denied in December by the village board, which found it “does not explain with specificity how the village allegedly miscalculated the hourly rates for the PTO retiree payout to PSO Wright and how this violates the parties’ collective bargaining agreement.”
“Additionally, the grievance does not explain with detail how the village has historically paid out such PTO benefits to retiring PSOs,” stated a letter from Village President Mary Kardoskee to union attorney Aaron Halstead. “As a result, the village is unable to properly or adequately respond in specific detail to the grievance’s general allegations.”
The APSOA attributed its filing of the grievance and pending litigation on the retirement payout structure for officers having changed without negotiations or advance notice to the union to do so.
The union accuses Village Manager Allison Swanson of changing the payout amount to retiring officers, costing the average officer $15,000 to $50,000 each upon retirement.