dissenting:
I am unable to join with the majority in upholding the judgment of the trial court. I believe that both the majority and the trial court failed to give due consideration to the decision made by the Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago (the Board).
Undoubtedly, administrative agencies possess authority to interpret statutory provisions when making their decisions and determinations. (Illinois Federation of Teachers v. Board of Trustees (1989), 191 Ill. App. 3d 769, 774.) While a reviewing court is not bound by the agency’s interpretation, it must give great weight to the agency’s construction of the statute. (Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n (1987), 165 Ill. App. 3d 235, 247.) Deference should be given to the agency’s interpretation unless such interpretation is clearly erroneous, arbitrary, or unreasonable. (Board of Trustees, 191 Ill. App. 3d at 774.) In the present case, I remain unpersuaded that the agency’s interpretation of the statutory provisions involved here was clearly erroneous so as to warrant reversal.
As correctly noted by the majority, the preliminary question is whether section 5 — 136.1 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 1081/2, par. 5 — 136.1) (the Code) applies to plaintiff. However, the majority incorrectly concludes it does, despite the fact that plaintiff’s widow’s annuity had already been "fixed” prior to the effective date of section 5 — 136.1.
The record reveals that pursuant to section 5 — 128 of the Code, Mr. Toner’s annuity was fixed on December 5, 1985, when he reached 63 years of age. On that same date, plaintiff was granted an annuity, i.e., her widow’s benefits were fixed, and no further contributions were made to the annuity fund on behalf of Mr. Toner. The Board made this determination based on the statutory provisions in effect at the time of Mr. Toner’s 63rd birthday. See Ill. Rev. Stat. 1985, ch. 1081/2, pars. 5 — 128, 5 — 136, 5 — 143, 5 — 148, 5 — 169, 5 — 170 (all of which focus on the fixing of benefits as of the date the employee reaches age 63).
Section 5 — 136.1 did not become effective until January 1, 1986, after plaintiff's benefits had already been fixed. Hence, section 5 — 136.1 did not apply to plaintiff because the legislature did not make it retroactive to benefits which had become fixed prior to its effective date. Statutes may not be given retroactive application unless the legislature expressly intended such a result. Kapsalis v. Board of Fire & Police Commissioners (1986), 143 Ill. App. 3d 465, 473.
Based on the facts and law in effect at the time, the Board determined that plaintiff’s annuity was fixed on December 5, 1985. I cannot say that the Board’s determination was clearly arbitrary or erroneous. Therefore, I would reverse the judgment of the circuit court of Cook County.