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A That's an unfortunate statement. I did not mean to infer that, but I continue to believe that if you read this letter in conjunction with the actuary's October 3rd letter, you would realize that there had been no calculation done by the actuary on the backDROP or the sick leave. 37 Plaintiffs’ claim against Mercer thus hinges on an allegation that Mercer should have “spoken up” to correct what at most was an ambiguity in Dobbert’s October 25, 2000 memorandum that Dobbert himself does not even acknowledge. 9. The County Decisionmakers Did Not Rely On Mercer’s Alleged Failure To Disclose That Mercer Had Not “Costed Out” The BackDROP As Of October 27, 2000, Because They Never Considered Mercer’s Advice At All. Most importantly: although a necessary premise of the Plaintiffs’ claim is that County decisionmakers – the County Board – misunderstood Dobbert’s memorandum, and relied on Mercer’s attached letter as the complete cost of the benefit enhancements, there is no evidence that any of them even saw Mercer’s October 3 rd letter. For instance, DeBruin, who served on both the PSC and the County Board’s Personnel Committee has testified that she never saw the October 3, 2000 letter until “after the scandal broke.” 38 More tellingly, Borkowski, who voted with the majority on the County Board to enact the Package and whose vote on the PSC was decisive in its 3-2 approval of the pension enhancements included in the Package, testified that he never saw the October 3, 2000 letter containing a cost of more than $7.6 million for the pension enhancements: Q. Yeah. We're looking at over 7 million bucks for just part of it for just one year. A. Yeah. Q. Would that have impacted your vote? 37 PFF, 79. 38 PFF, 80. Similarly, Derek Kenner (“Kenner”), one of the two non-County Board, “citizen” members of the PSC, testified that he could not recall receiving any documents other than a notice of the meeting and “maybe some talking points” for the October 27, 2000 hearing, and wasn’t even aware prior to the meeting that the county was considering making changes to the pension. At the time of the meeting, Kenner candidly admits, he did not understand what the BackDROP meant or what it entailed, and does not recall any discussion of the benefit at the PSC hearing. PFF, 81-82. QBACTIVE\6280487.1 18 Case 2:06-cv-00372-CNC Filed 06/09/2008 Page 18 of 52 Document 110
A. Yes. Q. Now as a PSC member or as a supervisor or as both? A. Both. Q. And the PSC you're saying didn't have this information, this Mercer information to whatever extent it looked at these proposed enhancements?... Did the Pension Study Commission have the memo that Dobbert wrote it regarding the ordinance revisions? Did it have this memo? A. I don't recall having this memo. All I can simply say is that I did not see $7.6 million. Q. And that 7.6 million is in the, quote, attached letter that the memo refers to; correct? A. Does the memo refer to it? Q. Yeah. That's just what I just read you. The actuaries reviewed the cost of these benefits provisions and has provided the attached letter. A. I know I didn't see the 7.6 million. Q. And you don't even know you saw this memo. Is that your testimony? A. That's correct. Elsewhere Borkowski emphasized that he did not see the October 25 th Dobbert memorandum and the attached October 3 rd Mercer letter because “I would remember if I saw a $7 million price tag on something.” Instead, Borkowski testified that, prior to the PSC hearing in October 2000, he did not rely on any consultants, including actuarial consultants like Mercer, for information regarding the Package, but instead relied on department heads like Dobbert, Zielinski and Robert Ott (“Ott”), the County’s Corporation Counsel. 39 Similarly, James Schmitt (“Schmitt”), another member of the Personnel Committee, who voted with the majority to enact the Package, also testified that he had never seen Mercer’s October 3, 2000 letter, and never knew of the $7.65 million cost Mercer had attributed to the other pension benefits that were changed in the Package even without the BackDROP. 40 Indeed, Schmitt testified that the PSC did not advise the county at all about the cost implications of any of the proposed pension changes, much less the BackDROP: 39 PFF, 83-85. 40 PFF, 86. QBACTIVE\6280487.1 19 Case 2:06-cv-00372-CNC Filed 06/09/2008 Page 19 of 52 Document 110
Page 1 and 2: MILWAUKEE COUNTY, EMPLOYEE‘S RETI
Page 3 and 4: submitted a memorandum to the PSC d
Page 5 and 6: UNDISPUTED MATERIAL FACTS The undis
Page 7 and 8: negotiating contracts with County e
Page 9 and 10: 2001, has testified that the ERS wa
Page 11 and 12: 4. The Plaintiffs’ Claims Against
Page 13 and 14: Again, Dobbert confirmed these fact
Page 15 and 16: The “attached letter” was a let
Page 17: we don't know what you're talking a
Page 21 and 22: calculating a $718,000 annual cost
Page 23 and 24: Indeed, it was one of the central c
Page 25 and 26: assist the author in preparation of
Page 27 and 28: Indeed, the “crux of the report,
Page 29 and 30: Mercer here was responding to a req
Page 31 and 32: In fact, the Plaintiffs have repeat
Page 33 and 34: Contrary to Plaintiffs’ allegatio
Page 35 and 36: Again, Soderstrom is advising the P
Page 37 and 38: ARGUMENT I. SUMMARY JUDGMENT STANDA
Page 39 and 40: Further, failure to disclose a mate
Page 41 and 42: B. Mercer Is Not Liable To The Coun
Page 43 and 44: him the investments were safe and c
Page 45 and 46: 3. In any event, the County, throug
Page 47 and 48: every ordinance submitted to the Mi
Page 49 and 50: • Soderstrom: “I have training
Page 51 and 52: those benefits the County Board has

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