Bice: Law firm seeks one-third cut of payments owed to disabled Milwaukee cops

Milwaukee police officer Graham Kunisch had to retire as a Milwaukee police officer and begin receiving duty disability payments after he was shot in the face during a routine trafficstop on the city's south side.

Kunisch, now 41, lost his left eye and much of the frontal lobe in his brain as a result of the 2009 shooting. His wife has testified that the incident changed his personality, leaving him angry and paranoid.

Last year, the city Employees' Retirement System concluded that it owes Kunisch $32,005.17 in retroactive benefits in light of a recent state Supreme Court decision on how duty disability payments are calculated.

But now a local law firm, MacGillis Wiemer, is asking a Milwaukee County court to order Kunisch and dozens of other retired Milwaukee police officers who were injured in the line of duty to turn over one-third of these retroactive payments to the firm — even though its attorneys don't even represent them.

The firm is accusing the Milwaukee cops on duty disability of "unjust enrichment" if they don't fork over the money.

"It's super crass and wrong," said Andrew Wagner, president of the Milwaukee Police Association, which represents the duty-disabled retirees but receives no membership dues from them. "Why would you be taking injured officers' money that … the city had already agreed to pay them? And not only are you taking it, you're holding it up in court."

A hearing on the dispute is scheduled for Monday before Milwaukee County Circuit Judge Brittany Grayson.

If MacGillis Wiemer gets its way, the firm could receive up to $678,691 from the $2.03 million in retroactive payments due 96 retired Milwaukee cops receiving duty disability payments, according to calculations from the Milwaukee Police Association, including $10,668 from Kunisch.

In its filings, the law firm argues that it should get a cut of these retroactive payments for the disabled Milwaukee cops because it brought the lawsuit that led to the Supreme Court decision on recalculating duty disability benefits. The firm represents retired Milwaukee firefighters and Milwaukee police supervisors in the case.

Retired Milwaukee firefighters on duty disability have already agreed to pay MacGillis Wiemer more than $1.3 million in attorneys' fees, according to court records. And the Milwaukee Police Supervisors Organization has asked the city Employees' Retirement System to kick in another $129,289 for legal fees and costs.

In a November court filing, Christopher MacGillis, a founding partner with the law firm, said the retired Milwaukee police officers on duty disability are acting as "free riders" by enjoying the benefits from the Supreme Court decision, even though they were not plaintiffs in that case. It would only be fair, he added, for them to pay out one-third of their retroactive pay to cover litigation costs.

Otherwise, "this situation will create an inequity and lead to the unjust enrichment of the benefiting non-plaintiffs," meaning Kunisch and the other former cops on duty disability, MacGillis wrote.

Samuel Hall Jr., an attorney for the Milwaukee police union, rejected that argument in a Monday filing:

"None of the 96 MPA (duty disability retiree) police officers are parties to this lawsuit. Accordingly, this Court does not have jurisdictional authority to order any of them to pay, directly or indirectly, Attorney MacGillis’s attorney fees."

Officer benefits tied up on lengthy legal battle

This dispute represents just the latest turn in a case that has been going on for more than five years.

Back in 2011, Milwaukee began requiring police officers and firefighters hired on or after Oct. 3, 2011, to contribute 7% of their wages toward their pensions.

Under a 2013-'16 collective bargaining agreement, Milwaukee police and firefighters hired after October 2011 started receiving an annual 5.8% salary boost to help offset their pension payments. Most of these city employees never saw the extra money because it went straight to the retirement system.

These pension offset payments created a question as to whether they should be included when calculating how much to pay retired police and firefighters on duty disability, especially for those hired before October 2011. Those duty disability retirees never made the 7% pension payment.

For police and firefighters who are injured on the job, they receive monthly retirement benefits equal to either 75% or 90% "of the current annual salary for such position which he held at the time of such injury," depending on if it was a career-ending disability.

In 2017, then-Milwaukee City Attorney Grant Langley determined that these pension offset payments should not be included in the base pay when calculating benefits for duty disability retirees for those hired before October 2011. This reduced how much was paid out to these former city workers.

The retirement system then clawed back any excess payments from the past, forcing some of these retirees to return pension payments of up to $6,000 to the city.

Retired Milwaukee firefighters and Milwaukee police supervisors on duty disability took the issue to court in 2018. They won at the circuit court but lost on appeal.

Last year, in a unanimous decision, the Supreme Court held that the pension offset payments counted as base salary and, therefore, should have been included when calculating benefits for duty disability retirees hired by the city before October 2011.

As a result, the city is to make retroactive benefit payments totaling more than $4 million to 170 retired Milwaukee firefighters on duty disability.

Eric Daun, president of Milwaukee Professional Firefighters Association Local 215, said his union is going to allow MacGillis Wiemer, the firm that won the case, to take one-third of those payments. That will total more than $1.3 million.

"I don't believe anything has been paid up this point," Daun said.

After the Supreme Court decision, officials with the City Attorney's Office concluded that retired Milwaukee cops on duty disability were also eligible for retroactive benefits. The amount exceeds $2 million, or $21,209 per recipient.

But the city has been sitting on those payments while the two sides hash out whether the law firm should get a cut of the checks.

Daun said he has no interest in taking a side in that dispute.

"That's up to the lawyers on how that plays out," Daun said. "At the end of the day, I guess I'm partial to stay out of it and let the lawyers do what lawyers do."

MacGillis did not respond to calls and emails.

Wagner, the head of the Milwaukee police union, said he saw no reason to drag the retired cops into the case. The law firm looks like it's going to be well compensated for handling the litigation, he said.

Wagner said his union has already paid up to $15,000 in legal fees fighting the motion by MacGillis.

"He says right in his brief to the court that these (retired and injured) officers are going to receive unjust enrichment if he doesn't get paid," Wagner said. "That's just wrong."

Contact Daniel Bice at (414) 313-6684 or dbice@jrn.com. Follow him on X at @DanielBice or on Facebook at fb.me/daniel.bice.

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This article originally appeared on Milwaukee Journal Sentinel: Law firm seeks one-third cut of payments due disabled Milwaukee cops