Fedorski v. The Board of Trustees of the Aurora Police Pension Fund

No. 2--06--1004 Filed: 7-30-07
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

DANIEL G. FEDORSKI, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 05--MR--500
)
THE BOARD OF TRUSTEES OF THE )
AURORA POLICE PENSION FUND, )
DANIEL HOFFMAN, as President of the )
Board of Trustees of the Aurora Police Pension )
Fund, EDWARD BEALE, as Secretary of )
the Board of Trustees of the Aurora Police )
Pension Fund, and JOHN PAVLINEC, JOHN )
DUGGAN, and ANDREW TA, as Trustees )
of the Aurora Police Pension Fund, ) Honorable
) Michael J. Colwell,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Daniel G. Fedorski, appeals from an order of the circuit court of Kane County

affirming the decision of the Board of Trustees (Board) of the Aurora Police Pension Fund (Fund)

denying his application for a line-of-duty disability pension and instead awarding him only a nonduty

disability pension. We affirm.

At the hearing on his application, plaintiff testified that on January 31, 2003, he was employed

by the City of Aurora as a police officer and was assigned to work as a plainclothes investigator.
No. 2--06--1004

Plaintiff's duties included investigating crimes, identifying witnesses, interviewing suspects, and

compiling evidence for prosecutions. On the date in question, plaintiff was functioning as a "street

level" evidence technician. Plaintiff testified that the Aurora police department employs 10 to 12

evidence technicians, all of whom are police officers rather than civilian personnel. Plaintiff was

assisting Investigators Trujillo and Coursey in a murder investigation and was responsible for taking

photographs of a crime suspect and other individuals who were taking part in a lineup at the Kane

County jail. The lineup was conducted at the request of the Kane County State's Attorney's office.

After the lineup was completed, plaintiff and Investigators Trujillo and Coursey left the jail

in an unmarked squad car. Plaintiff was sitting in the backseat of the vehicle and had brought a

camera, film, and some paperwork with him. The officers were returning to Aurora, but they planned

to stop en route to meet another officer somewhere along Farnsworth Road. Plaintiff testified that

the camera he had been using was borrowed, and they were meeting the other officer so that plaintiff

could return it. Plaintiff had tasks related to the investigation that he needed to complete at the police

station. He needed to contact the State's Attorney, enter evidence, and complete a report. While the

vehicle was stopped at a red light, it was struck from behind. It is undisputed that, as a result of the

collision, plaintiff suffered injuries that disabled him from performing the duties of a police officer.

Section 3--114.1(a) of the Illinois Pension Code (Code) provides, in pertinent part, that a

police officer found to be disabled for service in the police department "as the result of sickness,

accident or injury incurred in or resulting from the performance of an act of duty *** shall be entitled

to a disability retirement pension equal to *** 65% of the salary attached to the rank on the police

force held by the officer at the date of suspension of duty or retirement." 40 ILCS 5/3--114.1(a)

(West 2002). A police officer who becomes disabled as a result of any cause other than an act of

-2-
No. 2--06--1004

duty is entitled to a pension equal to 50% of the salary attached to the officer's rank at the date of

suspension of duty or retirement. 40 ILCS 5/3--114.2 (West 2002). The Board concluded that

plaintiff was not performing an act of duty at the time of the accident giving rise to his disabling

injuries and was therefore entitled only to a nonduty pension. Plaintiff filed a complaint for

administrative review against the Board and each of its trustees. As noted, the trial court affirmed

the Board's decision. This appeal followed.

When a party to an administrative review proceeding takes an appeal, the appellate court

reviews the administrative agency's decision, not the trial court's. Harroun v. Addison Police Pension

Board, 372 Ill. App. 3d 260, 261-62 (2007). The agency's findings of fact will be upheld unless

against the manifest weight of the evidence, but rulings of law are reviewed de novo. Harroun, 372

Ill. App. 3d at 262. An administrative agency's decision on a mixed question of fact and law will be

upheld unless clearly erroneous. Harroun, 372 Ill. App. 3d at 262. "A mixed question exists where

the historical facts are admitted or established, the rule of law is undisputed, and the only issue is

whether the facts satisfy the settled statutory standard." Dowrick v. Village of Downers Grove, 362

Ill. App. 3d 512, 515 (2005). Here, the relevant facts are undisputed, and the parties' dispute hinges

on the interpretation of the term "act of duty," as used in section 3--114.1(a) of the Code.

Accordingly, our review is de novo. See Alm v. Lincolnshire Police Pension Board, 352 Ill. App. 3d

595, 598 (2004); White v. City of Aurora, 323 Ill. App. 3d 733, 735 (2001).

For purposes of section 3--114.1(a), the definition of "act of duty" set forth in section 5--113

of the Code (40 ILCS 5/5--113 (West 2002)) applies. See, e.g., Alm, 352 Ill. App. 3d at 598. As

pertinent here, section 5--113 defines "act of duty" as "[a]ny act of police duty inherently involving

special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman

-3-
No. 2--06--1004

by the statutes of this State or by the ordinances or police regulations of the city in which this Article

is in effect or by a special assignment." 40 ILCS 5/5--113 (West 2002). Illinois courts have had a

number of opportunities to consider the scope of this definition. We have noted that "[o]ur supreme

court has expressly rejected the notion that the term 'special risk' encompasses only inherently

dangerous activities." Alm, 352 Ill. App. 3d at 599, citing Johnson v. Retirement Board of the

Policemen's Annuity & Benefit Fund, 114 Ill. 2d 518, 521 (1986). In Johnson, a citizen involved in

a traffic accident requested assistance from a police officer who was directing traffic. As the officer

walked across the street in response to the request, he slipped and suffered a disabling injury. Even

though crossing the street did not itself involve any special risk, our supreme court concluded that

the officer was entitled to a line-of-duty disability pension because he was performing an act of duty--

responding to a citizen's request for assistance--when he was injured. Johnson, 114 Ill. 2d at 522.

As we noted in Alm, "Johnson teaches that in determining whether an officer is entitled to a

line-of-duty benefit, '[t]he crux is the capacity in which the police officer is acting' rather than the

precise mechanism of injury." Alm, 352 Ill. App. 3d at 599, quoting Johnson, 114 Ill. 2d at 522.

Johnson "preserves the requirement that an act of duty be something involving a risk not shared by

ordinary citizens." Morgan v. Retirement Board of the Policemen's Annuity & Benefit Fund, 172 Ill.

App. 3d 273, 276 (1988). But "an officer performing duties involving special risks will be entitled

to line-of-duty benefits even if the immediate cause of injury is an act involving only an ordinary risk."

Alm, 352 Ill. App. 3d at 599.

Of course, not all police work involves special risks. Comparing Wagner v. Board of Trustees

of the Police Pension Fund, 208 Ill. App. 3d 25 (1991), to Morgan helps illustrate this point. In

Wagner, a police officer who was trying to serve a notice to appear suffered a disabling injury when

-4-
No. 2--06--1004

his leg fell through a rotted plank on a porch. Although the injury could have happened to anyone

walking across the porch for any reason, the officer suffered the injury while performing an act

involving special risk. A police officer serving a notice to appear faces the risk of a hostile, and

perhaps violent, response from the intended recipient of the notice. Thus, the Wagner court noted

that "[w]hile the act of walking across a porch is hardly unique to police officers, serving notices to

appear generally is." Wagner, 208 Ill. App. 3d at 29.

In contrast, in Morgan an officer suffered a disabling injury when a chair rolled out from under

him as he was at his desk taking a police report from a citizen. The Morgan court concluded that the

injury did not occur in the performance of an act of duty. In distinguishing Johnson, the Morgan

court explained:

"While no civilian occupation may involve completing police reports, countless civilian

occupations do involve the completion of reports of one type or another. Moreover, we take

judicial notice of the fact that, while completing such reports, many civilians sit or attempt to

sit in chairs. As such, we cannot say that completing police reports, albeit a function peculiar

to police officers, inherently involves special risk not ordinarily assumed by a citizen in the

ordinary walks of life." Morgan, 172 Ill. App. 3d at 276-77.

In White, a divided panel of this court held that a patrol officer was not performing an act of

duty when he slipped and suffered a disabling injury upon exiting his patrol car to issue a parking

ticket. The Aurora police department required its police officers to issue parking tickets (White, 323

Ill. App. 3d at 734), but the department also employed civilians to issue tickets (White, 323 Ill. App.

3d at 736). The White majority concluded that the circumstances were more closely analogous to

those of Morgan than to those of Johnson:

-5-
No. 2--06--1004

"Just as filling out police reports does not involve a special risk, neither does exiting a car to

place a traffic ticket on a windshield. Both filling out a report and exiting a car to place a

notice or flyer are acts that ordinary citizens assume. Numerous civilian occupations involve

filling out citations and placing them where the violator will see them. In fact, White

acknowledged that parking regulations are enforced by Aurora employees who are not police

officers. Moreover, like the Morgan court, we take judicial notice of the fact that, while

completing such citations, many civilians exit automobiles. As such, we cannot say that

placing a citation on a vehicle inherently involves a special risk not ordinarily assumed by

citizens in the ordinary walks of life." White, 323 Ill. App. 3d at 736.

But see Alm, 352 Ill. App. 3d at 603, quoting Johnson, 114 Ill. 2d at 522 (noting that, like the officer

in Johnson, the officer in White was acting in a capacity that required him to have his " 'attention and

energies directed towards being prepared to deal with any eventuality' ").

With these decisions in mind, we conclude that plaintiff was not performing an act of duty

when he was injured. As discussed above, the fact that the injury could have befallen anybody

traveling in an automobile for any reason does not, in itself, foreclose a line-of-duty disability pension.

Our focus is not on the precise mechanism of the injury, but on the capacity in which the officer was

acting when injured, and, in particular, the special risks a police officer faces when acting in such a

capacity. Accord Morgan, 172 Ill. App. 3d at 276 (noting that Johnson "reaffirm[ed] the existence

of the special risk element in acts of duty and the distinction between such acts and 'any cause other

than' such acts when entitlement to disability benefits is at issue"). Had plaintiff been acting in a

capacity involving a special risk when he was injured, he would have been entitled to a line-of-duty

-6-
No. 2--06--1004

disability pension even though the immediate cause of the injury was an act--riding in an automobile--

involving only ordinary risk. Plaintiff argues that he was acting in such a capacity. We disagree.

Plaintiff contends that he was "involved in an act of police duty involving a special risk as an

investigator performing the task of an evidence technician in assisting a state's attorney at a lineup."

There are several problems with the argument. First, it is not altogether clear that evidence

technicians face any particular risks while photographing lineups. Moreover, while within the Aurora

police department the duty of an evidence technician (and the associated risks, if any) may be unique

to police officers, other law enforcement agencies may very well employ civilians to perform this sort

of work, and those civilians would presumably face the same risks (if any) that plaintiff faced while

acting in this particular capacity.

More importantly, however, whether or not plaintiff was "performing the task of an evidence

technician" when the accident occurred, he was not acting in a capacity that entailed any special risk

at that particular time. Plaintiff maintains that he was involved in an "ongoing investigation." His

argument, in essence, is that he was acting in the capacity of an investigator or an evidence technician

until he completed these tasks. None of the cases hold that the title of an officer's duty assignment

is determinative of the capacity in which he is acting. Rather the cases illustrate that the proper focus

is on the particular activities the officer is engaged in when he or she is injured. Thus, in Johnson,

the officer was entitled to a line-of-duty disability pension based on the risk he faced in his capacity

as an officer responding to a citizen's request for assistance. In Wagner, the officer's right to a line-

of-duty disability pension was a function of the hazards of acting in the capacity of an officer serving

a notice to appear. In Morgan, the refusal to award a line-of-duty disability pension reflected the lack

-7-
No. 2--06--1004

of any special risk to an individual acting in the capacity of a police officer taking a police report from

a citizen.

The majority opinion in White is consistent with this view. It cannot be gainsaid that patrol

officers face a variety of special risks not encountered by citizens in ordinary walks of life. Yet the

fact that the officer in White was assigned to patrol duty was not enough to justify a line-of-duty

disability pension where the White majority was of the view that the particular function the officer

was fulfilling when injured--issuing a traffic a ticket--did not itself involve any such risk. Although

the majority opinion in Alm criticized the White court's conclusion that issuing a traffic ticket does

not involve a special risk, both opinions are consistent with our focus on the specific activity the

officer is performing rather than the general nature of the officer's duty assignment.

At the time of the accident, plaintiff was merely riding in an automobile and he faced risks

essentially no different from those faced by any other automobile passenger. Nothing related to his

duties as an evidence technician increased that risk. We therefore conclude that he was not

performing an act of duty as defined by statute.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

BYRNE and ZENOFF, JJ., concur.

-8-