Saying they have not received adequate promotional raises, which has resulted in substantial wage losses over their careers, Waukesha Police Chief Russell Jack and Deputy Police Chief Dennis Angle on Feb. 6 filed a lawsuit against the city in Waukesha County Circuit Court Civil Division.
But city officials say no violation has occurred.
According to the complaint, Jack, who is requesting back pay dating to October 2000, says he is owed $28,618.66 and a 4.03-percent increase in his annual rate of pay at $5,760.21 annually. Jack makes $124,476.98 annually as the police chief, according to Human Resources Manager Donna Whalen.
The complaint, meanwhile, alleges Angle should be paid back $14,708.12 and a 4.03 percent increase in his annual rate of pay at $2,465.03 annually. Angle makes $110,140.16 annually, Whalen said.
"The only thing I can comment on is that it was reviewed and investigated internally by our HR manager, along with (City Administrator) Ed Henschel, and after an extensive study, they weren't (owed) anything," said City Attorney Curt Mietz. "Our insurance company also hired an independent outside attorney, an expert in this area, to analyze their claims, and they came up with the same conclusion. It's been thoroughly analyzed."
Jack and Angle's complaint says that starting in 1998, the pay increase policy said "an employee who is promoted should be paid at the starting rate of the salary grade to which promoted or be given a 5-percent increase over their current base salary, whichever is higher."
But the pay increase policy was revised in 2006-07 to say that an employee who is promoted should be given at least a 5-percent increase over their current base salary, subject to approval by the city administrator.
Not properly paid
The complaint says that Jack did not receive adequate pay when he was promoted on two occasions. The first, the complaint says, was when he received a 1.9-percent increase after being promoted to lieutenant, instead of the required 5 percent. The second was when he was promoted to captain and received a 2-percent increase instead of the required 5 percent.
When Angle was promoted to lieutenant in 2006, he received a 2-percent increase, the complaint says.
The complaint says that in spring of 2013, Jack, who was promoted to chief in 2009, asked Henschel to "interpret the two pay policy provisions."
In a memo on April 5, 2013, Henschel explained the pay-increase process.
He said pay increases begin with a request by the department, most often in the form of a Personal Transaction Notice or memorandum addressed to the city administrator or the human resources manager, which is reviewed by the human resources manager. The HR manager then sends the request to the finance manager and city administrator.
Henschel concluded the promotional pay increase begins with and is based upon the initial departmental request.
City administrator responds
Henschel said in a memo filed last year that former Deputy Chief Wayne Dussault has provided information that at the time of Jack's promotion to captain, it was the practice of the department to provide an increase that would place the employee within the appropriate salary range but not at a salary equal to or higher than other employees who were already at the rank at the time of Jack's promotion.
Henschel said when Jack was promoted to lieutenant that "it is clear the Lt. Jack was paid above the 'starting rate of the salary grade,' but did not receive a 5-percent increase at the time of his promotion."
"Therefore, the department did not request more than a 1.96 percent (raise) at the time of Jack's promotion to captain," Henschel wrote. "This was a standing practice and accounts for the decision by the department to limit its request to less than 5 percent at the time of Jack's promotion.
"Given that the department requested a 1.96-percent increase which was subsequently approved by the interim city administrator and the human resources manager, I see no policy violation related to the pay increase Mr. Jack received upon his promotion to captain."
Not limited to two
The lawsuit also notes that in 2012 Sgt. Chad Pergande discovered that he had not been properly paid due to the pay increase policy. The complaint also says that in 2012 eight additional police supervisors had not been properly paid.
The Common Council, as a result, approved fairly small amounts that were corrected at an administrative level, said Alan M. Levy, who is representing the city and whose firm, Lindner & Marsack S.C., was hired as the independent outside counsel to review and assess the claims made by Jack and Angle's attorney, Alan C. Olson, in May 2013.
But the Common Council denied Jack and Angle's claims in August. Meitz said based on the notice of claims, Jack and Angle had six months to file the lawsuit..
Levy: city has defense
The complaint says "the proper city policies were not followed with respect to Jack and Angle, as they were not provided with the minimum required pay increases upon promotion."
But the city says that "neither questioned the policy which they were responsible for administering."
"Also, the chief negotiated his specific salary with the city administrator pursuant to the City Council action, which awarded him that promotion," Levy wrote. "This salary rate was an increase of 15.86 percent over his prior rate and was the product of mutual agreement, not a unilateral imposition of rules and policies. Therefore, his acceptance of that amount may nullify and/or waive any claim the chief may have."
In a memo from Levy to the City of Waukesha on July 9, 2013, he concluded that "no clear error or policy violation has been shown. The compounding effect of which they complain has been neutralized by subsequent increases."
Levy said last year, if litigated, the city has a high degree likelihood of succeeding. He added that the applicable statute of limitations is "probably the most-effective legal defense" as Levy said Wisconsin Statutes requires a notice of claim be served on a municipality within 120 days of the event that warrants compensation.