BERNARD OLEJNICZAK, Claimant

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Paragraphs 6 through 12 of the appeal tribunal's FINDINGS OF FACT and CONCLUSIONS OF LAW are deleted, and the following is substituted therefor:

The claimant makes two contentions regarding potential offsets of the pension amount to be deducted from his unemployment insurance entitlement. He first contends that only the portion paid by the county into the Wisconsin Retirement Fund should be allocated. However, the statute makes no provision for prorating the pension reduction among the various employers who have made contributions to the claimant's pension fund. This contention therefore is rejected. The claimant also contends that his purchase of previously-forfeited service should be disregarded. This contention is sustained. Wisconsin Stat. § 108.05(7)(f) allows for reduction of the pension offset (against unemployment insurance entitlement) to the extent of a claimant's contribution to the pension fund generating the pension payment at issue. When the claimant repurchased the forfeited service, it was his choice whether to do so, and the monies he used to do so legally were his own. The claimant's repurchase of previously-forfeited service amounted to 1.07 percent of the monies in the pension account overall. This amount must be deemed to have been funded by the claimant, within the meaning of Wis. Stat. § 108.05(7)(f), and it is so found.

The appeal tribunal decision, as modified, is affirmed. Accordingly, as of week 2 of 2003, benefits otherwise payable for any week of partial or total unemployment are reduced by $302.70. There is no overpayment as a result of this decision.

Dated and mailed August 1, 2003
olejnbe . umd : 105 : 9  UW 980

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission has modified the appeal tribunal decision in this case essentially to reinstate the initial determination. The commission has concluded that, as a matter of law, the claimant's purchase of previously- forfeited service is a contribution by the claimant, within the meaning of Wis. Stat. § 108.05(7).

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uploaded 2003/08/12