FOURTH DIVISION
August 30, 2007
1-06-1827
WILLIAM TUCKER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
THE BOARD OF TRUSTEES OF THE POLICE )
PENSION FUND OF THE VILLAGE OF PARK )
FOREST ILLINOIS, ) The Honorable
) Anthony L. Young,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
Plaintiff William Tucker, who suffers from bilateral hearing
impairment, appeals the decision of defendant Board of Trustees
of the Police Pension Fund of the Village of Park Forest,
Illinois (Board), which determined that it did not have
jurisdiction to hear his request for pension benefits. In this
court, plaintiff contends that the Board possessed statutory
authority to hear his request and that he is entitled to pension
benefits dues to his disability.
BACKGROUND
On January 10, 1989, the Village of Park Forest Police
Department (Department) hired plaintiff as a police officer. In
October 1997, the Village of Forest Park Fire and Police
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Commission (Commission) filed charges against plaintiff and
sought to discharge him from employment. The Commission based
its charges solely on plaintiff's alleged inability to perform
full services for the Department due to his bilateral hearing
impairment.
On November 19, 1997, plaintiff filed an application for
certificate of disability (application), in which he sought a
"line of duty" disability pension pursuant to section 3-114.1 of
the Illinois Pension Code (Pension Code) (40 ILCS 5/3-114.1 (West
2002)) and, in the alternative, a "not on duty" disability
pension pursuant to section 3-114.2 of the Pension Code (40 ILCS
5/3-114.2 (West 2002)). Therein, plaintiff reserved his
entitlement to benefits in the event of a discharge.
On or about December 15, 1997, the Commission terminated
plaintiff's employment with the Department based on his
disability of bilateral hearing impairment. Thereafter,
plaintiff filed a discrimination action against the Village of
Forest Park in federal court under the Americans With
Disabilities Act (ADA) of 1990 (42 U.S.C. § 12101 et seq.
(2000)).
Subsequently, on February 6, 1998, plaintiff sought a "stay"
in the proceedings on his application until a resolution was
reached on his ADA claim in the federal court. In a written
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correspondence to plaintiff's attorney via the Board's attorney
on February 13, 1998, the Board declined to "stay" proceedings
On May 21, 1998, the Board notified plaintiff that pursuant
to section 3-115 of the Pension Code (40 ILCS 5/3-115 (West
2002)), he was scheduled to appear for two medical examinations
by Board-selected physicians. The examinations were scheduled
for June 15, 1998, and June 24, 1998. The record shows that
plaintiff cancelled both examinations.
On June 12, 1998, plaintiff notified the Board that he was
withdrawing his application. In doing so, however, plaintiff
expressly stated that he preserved his right to seek disability
benefits at a later date. The Board responded by scheduling a
hearing on the merits of plaintiff's application. At the ensuing
hearing, plaintiff informed the Board that he would proceed on
his application.
On August 19, 1998, plaintiff again notified the Board in
writing that he did not want to proceed with his application, but
wished to preserve his right to proceed on the application at a
later date. Plaintiff requested that the Board "stay"
proceedings until the resolution of his federal lawsuit.
Pursuant to an August 27, 1998, notice of hearing, the Board
informed plaintiff that it had scheduled a hearing on the merits
of his application for September 8, 1998.
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On September 1, 1998, plaintiff notified the Board that he
was withdrawing his application. The Board, however, denied
plaintiff's motion to withdraw his application during the
September 8, 1998, hearing.
On November 1, 1998, the Board issued a written "Decision
and Order" in which it dismissed plaintiff's application with
prejudice due to his failure to submit to the scheduled medical
examinations. The Board also informed plaintiff that it would
not "have jurisdiction over Applicant as a result of his
discharge from the Police Department, in the event that Applicant
attempts to renew his disability application." Plaintiff then
filed a "Complaint for Administrative Review" of the Board's
decision with the circuit court of Cook County on November 24,
1998.
On February 18, 2000, the circuit court reversed the Board's
decision and held that the Board erred in dismissing plaintiff's
application. The Board appealed on March 7, 2000.
On March 14, 2001, this court entered its decision in the
matter. Tucker v. Village of Park Forest, No. 1-00-0789 (2001)
(unpublished order under Supreme Court Rule 23). Therein, this
court determined that the Board erroneously denied plaintiff's
motion to withdraw his application. This court noted that
nothing in the Pension Code prevented an applicant from
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voluntarily withdrawing his application for pension benefits. In
so finding, this court also acknowledged the Board's concern that
if plaintiff withdrew his application, he would be unable to file
a new application at a later date because the Board would not
have jurisdiction to rule on the petition under the Pension Code
since plaintiff would no longer be employed as a police officer.
This court concluded, however, that the Board's concerns were
premature. As such, this court held that the Board's ruling
dismissing plaintiff's application for pensions benefits was
vacated as void and remanded the case to the Board to effectuate
and give recognition to plaintiff's voluntary withdrawal of his
application. Tucker, slip op. at 9.
On April 3, 2001, plaintiff filed a "Motion to Withdraw His
September 1, 1998, Withdrawal of His Application for a
Certificate of Disability" with the Board. Subsequently, on
August 27, 2001, the Board vacated its November 1, 1998, ruling
and granted plaintiff's September 1, 1998, motion to withdraw in
accordance with this court's Rule 23 order. The Board did not
address plaintiff's April 3, 2001, motion to withdraw his
September 1, 1998, motion to withdraw.
On February 15, 2002, plaintiff filed a "Motion to Set
Pending Motions for Hearing and Compel Decision" and an
"Alternative Motion to Reinstate Application for Certificate of
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Disability." At a regular quarterly meeting on March 5, 2002,
the Board discussed plaintiff's motions and rendered a verbal
decision that it no longer had jurisdiction to rule on
plaintiff's pending motions. The Board confirmed its ruling
through its attorney in a March 11, 2002, letter to plaintiff,
which was served via facsimile. The letter provided in pertinent
part:
"I regret to inform you that the
Pension Board cannot take any
action with respect to either of
the Motions as it lacks
jurisdiction over these matters,
for two reasons. First on August
27, 2001 the Pension Board entered
its 'Decision and Order on Remand,'
granting Mr. Tucker's request to
'withdraw' his disability pension
application. That Decision
terminated any proceedings before
the Pension Board and no complaint
for administrative review was filed
to my knowledge. Secondly, your
client is no longer a 'police
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officer' and therefore under
DeFalco vs WoodDale Firemen's
Pension Fund [sic], [122 Ill. 2d 22
(1988),] your client is no longer
eligible to apply for a disability
pension."
On March 28, 2002, plaintiff filed a "Complaint for
Administrative Review" of the Board's decision with the circuit
court. The circuit court affirmed the Board ruling in its June
9, 2006, written order. Plaintiff appealed.
ANALYSIS
Pursuant to section 3-148 of the Pension Code (40 ILCS 5/3-
148 (West 2004)), we review the Board's decision in accordance
with the Administrative Review Law (735 ILCS 5/3-101 et seq.
(West 2004)). Knight v. Village of Bartlett, 338 Ill. App. 3d
892, 898 (2003). Accordingly, our review extends to all
questions of fact and law presented in the record. Knight, 338
Ill. App. 3d at 898. That said, the determinative issue in the
case at bar is whether the Board properly determined that it did
not have jurisdiction to review plaintiff's February 15, 2002,
motions. Since the Board clearly based its March 11, 2002,
decision on its interpretation of provisions in the Pension Code,
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we review its interpretation, which presents a question of law
(Knight, 338 Ill. App. 3d at 898), de novo (City of Belvidere v.
Illinois State Labor Relations Board, 181 Ill. 2d 191, 205
(1998)).
In this court, the Board first contends that plaintiff
failed to seek a timely review of its August 27, 2001, decision,
which granted plaintiff's September 1, 1998, motion to withdraw
his application pursuant to this court's Rule 23 order. As such,
the Board argues that the Board lacked jurisdiction to review
that decision on March 11, 2002. In making its argument, the
Board relies on Fredman Brothers Furniture Co. v. Department of
Revenue, 109 Ill. 2d 202 (1985).
In Fredman Brothers Furniture Co., the Department of Revenue
issued a notice of tax liability to petitioner Fredman Brothers
Furniture Insurance Company, Inc. (Fredman Brothers), which
Fredman Brothers protested. Thereafter, an administrative
hearing was held to determine the correct tax liability figure,
and following the hearing, the Department of Revenue levied a
final assessment of $12,403.78 in taxes, penalties, and interest
against the petitioner on August 24, 1981. The petitioner
responded by filing a request for a rehearing on September 24,
1981, which was denied on October 15, 1981. Subsequently, the
petitioner filed an action in the circuit court of Peoria County
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on November 19, 1981, for judicial review of the tax assessment.
The circuit court initially found that the petitioner failed
to post a sufficient bond within 20 days of the filing of its
action and dismissed the case. The appellate court reversed that
ruling and remanded the case with directions to review the
petitioner's complaint. On remand, the Department of Revenue
filed a motion to dismiss where it argued that the petitioner
failed to file a timely complaint with the circuit court within
35 days of the Department's final ruling on August 24, 1981. The
circuit court agreed and dismissed the case. The appellate court
affirmed that ruling, and petitioner again appealed.
On review, the supreme court determined that the circuit
court was exercising special jurisdiction conferred by the
Administrative Review Act (Act) (Ill. Rev. Stat. 1981, ch. 110,
par. 265). Fredman Brothers Furniture Co., 109 Ill. 2d at 211.
As such, the court determined that the provisions of the Act
specifying the time period in which to file a complaint for
administrative review were jurisdictional. Fredman Brothers
Furniture Co., 109 Ill. 2d at 211. The court concluded that the
August 24, 1981, final assessment by the Department of Revenue
constituted a final administrative decision. Fredman Brothers
Furniture Co., 109 Ill. 2d at 213. In so ruling, the supreme
court found that the petitioner's filing for a rehearing
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constituted a new action, and thus did not postpone the time for
filing a complaint for administrative review. Fredman Brothers
Furniture Co., 109 Ill. 2d at 212-13. Accordingly, the supreme
court affirmed the Department of Revenue's ruling where the
petitioner did not file a complaint for administrative review
until 87 days after the Department's final decision, which was
well outside the 35-day window. Fredman Brothers Furniture Co.,
109 Ill. 2d at 212-15.
We recognize that, unlike Fredman Brothers Furniture Co.,
the Board in the case at bar does not argue that the circuit
court lacked jurisdiction to rule on its August 27, 2001, ruling,
but that the Board lacked jurisdiction on March 11, 2002, to
review its August 27, 2001, ruling. As such, Fredman Brothers
Furniture Co., does not provide support for the Board's decision.
Nonetheless, we find that the Board properly concluded that
it had lost jurisdiction prior to March 11, 2002. We first
address plaintiff's contention that his April 3, 2001, motion was
still pending until the Board's March 11, 2002, ruling, because
the Board's August 21, 2001, order neglected to comment on his
April 3, 2001, motion to withdraw his September 1, 1998, motion
to withdraw his application. This court's March 14, 2001, Rule
23 order instructed the Board to grant plaintiff's September 1,
1998, motion to withdraw his application. Since the Board could
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only act within the bounds of this court's mandate (Allen v.
Young, 3 Ill. App. 3d 528, 530 (1972)), plaintiff's April 3,
2001, motion to withdraw his September 1, 1998, motion had no
effect. Moreover, the April 3, 2001, motion was filed nearly
three years after plaintiff filed his motion to withdraw his
application on September 1, 1998. Accordingly, the motion was no
longer pending following the Board's August 27, 2001, ruling.
Next, we address plaintiff's contention that the Board
erroneously interpreted the Pension Code to conclude that it
lacked jurisdiction to rule on his February 15, 2002, motion to
refile his application. In Robbins v. Board of Trustees of the
Carbondale Police Pension Fund, 177 Ill. 2d 533, 539 (1997), our
supreme court noted that the controlling principles in reviewing
statutory language are familiar when analyzing the Pension Code.
The court provided:
" 'The primary rule of statutory
interpretation is that a court
should ascertain and give effect to
the intention of the legislature.
The legislative intent should be
sought primarily from the language
used in the statute. [Citation.]
The statute should be evaluated as
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a whole; each provision should be
construed in connection with every
other section. [Citation.] "Where
the language of the act is certain
and unambiguous the only legitimate
function of the courts is to
enforce the law as enacted by the
legislature." [Citation.]' "
Robbins, 177 Ill. 2d at 539,
quoting Abrahamson v. Illinois
Department of Professional
Regulation, 153 Ill. 2d 76, 91
(1992).
Plaintiff at bar applied for pension benefits under sections
3-114.1 and 3-114.2 of the Pension Code, which both explicitly
state that a "police officer" may apply for disability pension
benefits. Section 3-114.1(a) states in pertinent part:
"If a police officer as the
result of sickness, accident or
injury incurred in or resulting
from the performance of an act of
duty, is found to be physically or
mentally disabled for service in
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the police department, so as to
render necessary his or her
suspension or retirement from the
police service, the police officer
shall be entitled to a disability
retirement pension equal to the
greatest of (1) 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, (2) the retirement
pension that the police officer
would be eligible to receive if he
or she retired (but not including
any automatic increase in that
retirement pension), or (3) the
pension provided under subsection
(d), if applicable." 40 ILCS 5/3-
114.1(a)(West 2004).
Section 3-114.2 provides in pertinent part:
"A police officer who becomes
disabled as a result of any cause
other than the performance of an
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act of duty, and who is found to be
physically or mentally disabled so
as to render necessary his or her
suspension or retirement from the
police service in the police
department, shall be entitled to a
disability pension of 50% of the
salary attached to the officer's
rank on the police force at the
date of suspension of duty or
retirement." 40 ILCS 5/3-114.2
(West 2004).
Pursuant to the language of these statutes, the Board contends
that plaintiff had to be a "police officer" when he filed his
application for disability pension benefits.
Section 3-106 defines a police officer as:
"Any person who (1) is
appointed to the police force of a
police department and sworn and
commissioned to perform police
duties; and (2) within 3 months
after receiving his or her first
appointment and, if reappointed,
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within 3 months thereafter, or as
otherwise provided in Section 3-
109, makes written application to
the board to come under the
provisions of this Article.
Police officers serving
initial probationary periods, if
otherwise eligible, shall be police
officers within the meaning of this
Section." 40 ILCS 5/3-106 (West
2004).
The record clearly shows that when plaintiff filed his motion to
refile his application for disability pension benefits on
February 15, 2002, he was no longer employed as a police officer
by the Department. As such, the Board argues that it had no
jurisdiction to consider his refiled application.
Plaintiff counters, in part, that this court's previous
ruling rendered the Board's November 1, 1998, ruling on his
initial application void and, thus, his subsequent motions were
timely filed and the Board retained jurisdiction. Plaintiff,
however, fails to comprehend that although this court's ruling
rendered the Board's November 1, 1998, ruling void, it also
instructed the Board to grant plaintiff's September 1, 1998,
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motion to withdraw. Thus, plaintiff's motion to refile his
application constituted an attempt to file a second application,
which he clearly sought to do five years after he was discharged.
Plaintiff further argues that Di Falco v. Board of Trustees
of the Firemen's Pension Fund of the Wood Dale Fire Protection
District No. One, 122 Ill. 2d 22 (1988), provides guidance in the
analysis of this case. Although plaintiff recognizes that the
holding in Di Falco contradicts his argument, he relies on the
supreme court's analysis to support his contention in the case at
bar.
In Di Falco, our supreme court affirmed the ruling of the
board of trustees of the Firemen's Pension Fund of Wood Dale Fire
Protection District No. One (board), which dismissed a
firefighter's application for pension benefits as untimely where
the plaintiff filed the application one year after his discharge
from the fire department. Similar to the police officer
provisions' use of "police officer" in the Pension Code, the
firefighter pension provisions of the Pension Code use the term
"fireman" when discussing rights to pension benefits. See 40
ILCS 5/4-110 (West 2004).1 The supreme court found section 4-110
of the Pension Code to be ambiguous on its face when defining
"fireman" for determination of employment. Di Falco, 122 Ill. 2d
1
Formerly Ill. Rev. Stat. 1981, ch. 108½, par. 4-110.
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at 27. The supreme court, however, determined that other
sections of the Pension Code established that the plaintiff
therein was not entitled to disability benefits. Di Falco, 122.
Ill. 2d at 33.
Plaintiff at bar contends that if we similarly find sections
3-114.1 and 3-114.2 to be ambiguous, unlike Di Falco, we would
find that he was entitled to pension benefits based on other
provisions of the Pension Code. We disagree.
We initially recognize that the other cases plaintiff cites
to support his argument, Hahn v. Police Pension Fund of City of
Woodstock, 138 Ill. App. 3d 206 (1985) (officer who filed for
benefits and then submitted resignation did not forego benefits
due to resignation), Pierce v. Board of Trustees of the Police
Pension Fund of the City of Waukegan, 177 Ill. App. 3d 915 (1988)
(appellate court reversed Board's denial of off duty benefits in
case where police officer filed application for benefits prior to
his discharge), Stec v. Oak Park Police Pension Board, 204 Ill.
App. 3d 556 (1990) (police officer's resignation subsequent to
his application for pension benefits did not disqualify his
application ), and Greenan v. Board of Trustees of the Police
Pension Fund of Springfield, 213 Ill. App. 3d 179 (1991) (as in
Hahn, the plaintiff's resignation subsequent to his application
for pension benefits did not disqualify his right to benefits),
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concerned police officers who resigned or were discharged after
they filed their applications for pension benefits. As such, we
find those cases inapposite.
Next, a review of the statutory language in sections 3-114.1
and 3-114.2 establishes that pension benefits are only made
available for police officers as defined in section 3-106 of the
Pension Code. As such, for purposes of sections 3-114.1 and 3-
114.2, police officers are those "appointed to a police force of
a police department and sworn and commissioned to perform police
duties" (40 ILCS 5/3-106 (West 2004)). We find this language
clearly indicates that the disability pension benefits are for
those actively employed as police officers. Thus, where
plaintiff was no longer employed as a "police officer" at the
time he filed his second application, he was not entitled to
disability benefits under the Pension Code.
Nonetheless, even if we found sections 3-114.1 and 3-114.2
to be ambiguous on their face as to whether an applicant for
disability pension benefits had to be a "police officer" at the
time of application, or just at the time of disability, our
examination of other sections of the Pension Code support the
conclusion that the term "police officer" used in sections 3-
114.1 and 3-114.2 is operative at the time of disability and
application. Similar to section 4-113 of the Pension Code (Ill.
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Rev. Stat. 1981, ch. 108 ½, par. 4-113),2 as examined in Di
Falco, 122 Ill. 2d at 29-30, section 3-116 of the Pension Code
(40 ILCS 5/3-116.1 (West 2004)) provides a disability pension
option for disabled police officers who attain 50 years of age
and 20 years of active service when their period of disability is
added to years of active service. The option allows the police
officer to select that his retirement pension benefits be based
on his disability benefit pay upon filing for retirement. See 40
ILCS 5/3-116.1 (West 2004). Thus, as the supreme court
recognized in analyzing the disability pension option for a
fireman in Di Falco, 122 Ill. 2d at 29-30, since a discharged
police officer cannot elect to retire, the term "police officer"
in section 3-116.1 does not concern discharged officers. It
thereby follows that the term "police officer" in sections 3-
114.1 and 3-114.2 also do not include discharged police officers.
Accordingly, we conclude that the Board correctly held that it
did not have the authority to review plaintiff's second
application, which was filed nearly five years after plaintiff
was discharged as a police officer.
In reaching this conclusion, we dismiss any claims based on
equitable or due process principles. This court has previously
determined that pension benefits may be denied under the Pension
2
Now 40 ILCS 5/4-113 (West 2004).
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Code when the application for benefits is not filed in a timely
manner. See Donnells v. Woodridge Police Pension Board, 159 Ill.
App. 3d 735 (1987) (a police officer on medical leave, received
notice of an opportunity to file for participation in the police
pension fund where he previously had no rights due to his age at
the time of employment, but due to his failure to timely file for
benefits, the Board denied him participation in the pension
fund).
We note that this case does not involve a municipality
discharging a police officer for the purpose of denying him his
right to apply for disability benefits. To the contrary, the
record shows that the Board provided a hearing for plaintiff upon
the filing of his first application when he was still employed as
a police officer, and warned plaintiff that a withdrawal of his
initial application might result in its loss of jurisdiction over
a subsequent filing. In spite of this warning, plaintiff refused
to be examined by physicians and went to the extent of filing an
appeal to enforce his right to withdraw his application for
disability pension benefits.
In agreeing with plaintiff's position that he had a right to
withdraw his application, this court said, "While the Board's
finding regarding its prospective jurisdiction over a re-filing
may well be accurate, this issue was not ripe for determination
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and, accordingly, the Board was not in the position to pass on
that question." Tucker, slip op. at 9. The Board followed the
mandate of this court on August 27, 2001, when it granted
plaintiff's September 1, 1998, motion to withdraw his
application. The Board's concern that it would lose jurisdiction
over a refiled application indeed did prove to be accurate.
As previously explained, plaintiff's "motion to withdraw his
motion to withdraw" was ineffectual as being filed in an untimely
(albeit early) manner. Plaintiff's failure to take any action in
response to the Board's order of August 27, 2001, led to the
Board lacking jurisdiction to subsequently grant plaintiff the
relief he sought. As discussed above, plaintiff, as a discharged
employee, no longer had a right to file his second application
for pension benefits under the Pension Code. Thus, despite
plaintiff's claims to the contrary, there was no violation of an
"enforceable contractual relationship" as provided in section 5
of article XIII of the Illinois Constitution (Ill. Const. 1970,
Art. XIII, § 5).
CONCLUSION
For the foregoing reasons, we affirm the ruling of the
Board.
Affirmed.
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CAMPBELL and NEVILLE, JJ., concur.
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