specially concurring:
I agree with the result reached by the majority in this case, and I find no need to restate the facts giving rise to this appeal as they are adequately stated in the majority opinion. I write separately, however, to set forth the reasons why I too believe that the Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago (Board) properly denied the application of the plaintiff, Thomas Kaczka, for reinstatement of a widow’s annuity benefit.
The Board has the power to authorize the payment of any annuity, pension, or benefit granted under article 5 of the Illinois Pension Code (Code) (40 ILCS 5/5 — 101 et seq. (West 2008) (formerly Ill. Rev. Stat. 1991, ch. 108½, par. 5 — 101 et seq.)). Effective September 3, 1992, the Board awarded the plaintiff a widow’s annuity benefit pursuant to article 5 of the Code as a consequence of the death of his wife, Carole Kaczka, a Chicago police officer.
However, at all times relevant, section 5 — 146 of the Code provided that the widow of a police officer who dies in service has no right to an annuity if the marriage occurred less than one year prior to the police officer’s death. Ill. Rev. Stat. 1991, ch. 108½, par. 5 — 146 (now 40 ILCS 5/5 — 146(a) (West 2008)). And, it is undisputed that the plaintiff and Carole Kaczka had only been married 12 days before she died.
The Board has only the power given it by statute, and any order which it enters in excess of that statutory power is void and may be attacked at any time or in any forum, either directly or collaterally. Business & Professional People for the Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243-44, 555 N.E.2d 693 (1989); Kosakowski v. Board of Trustees of the City of Calumet City Police Pension Fund, 389 Ill. App. 3d 381, 383, 906 N.E.2d 689 (2009). Consequently, I agree with the Board’s argument that its order awarding the plaintiff a widow’s annuity benefit in the first instance exceeded the power conferred upon it by statute and was, as a consequence, void. It follows then that the Board also lacked the statutory authority to reinstate a benefit that it had no authority to grant in the first instance.
However, even assuming, for the sake of argument, that the Board’s original order awarding the plaintiff a widow’s annuity benefit was voidable, rather than void, I would still affirm the circuit court’s judgment in this case. Section 5 — 189 of the Code grants the Board the power to suspend any annuity, pension, or benefit that was granted as the result of an error. 40 ILCS 5/5 — 189 (West 2008). In its order of April 2, 2008, denying the plaintiffs application for a resumption of his widow’s annuity benefit, the Board specifically found that the annuity benefit awarded to the plaintiff in the first instance was the “result of a clerical error.” As with any factual finding of an administrative agency, that finding is held to be prima facie true and correct. 735 ILCS 5/3 — 110 (West 2008). If, as the Board has found, the original order awarding the plaintiff a widow’s annuity was the result of a clerical error, the Board had every right under section 5 — 189 of the Code to suspend any future payments of that annuity benefit, including by means of an order denying his application for reinstatement brought pursuant to section 5 — 147 of the Code (40 ILCS 5/5 — 147 (West 2008); see also Kosakowski, 389 Ill. App. 3d at 384-85 (interpreting a similar statutory provision in article 3 of the Code)).
Finally, for the reasons stated by the majority, I also believe that the circuit court properly dismissed count II of the plaintiffs amended complaint.