Collins v. RET. BD. OF POL. ANN.

• Citation: 779 N.E.2d 253,268 Ill.Dec. 639,334 Ill. App.3d 909
• Decision Date: 18 June 2002
• Docket Number: No. 1-01-2018.,1-01-2018.
• Parties: James W. COLLINS, Plaintiff-Appellant, v. The RETIREMENT BOARD OF the POLICEMEN'S ANNUITY AND BENEFIT FUND—CITY OF CHICAGO; Miriam Santos, Walter K. Knorr, Robert I. Lund, Robert F. Reusche, Charles R. Loftus, James L. O'Neill, Kenneth A. Hatiser, and Richard J. Jones, members of the Retirement Board of the Policemen's Annuity and Benefit Fund—City of Chicago; James B. Waters, Jr., Executive Director of the Retirement Board of the Policemen's Annuity and Benefit Fund—City of Chicago, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

779 N.E.2d 253

334 Ill. App.3d 909

268 Ill.Dec. 639

James W. COLLINS, Plaintiff-Appellant, v. The RETIREMENT BOARD OF the POLICEMEN'S ANNUITY AND BENEFIT FUND—CITY OF CHICAGO; Miriam Santos, Walter K. Knorr, Robert I. Lund, Robert F. Reusche, Charles R. Loftus, James L. O'Neill, Kenneth A. Hatiser, and Richard J. Jones, members of the Retirement Board of the Policemen's Annuity and Benefit Fund—City of Chicago; James B. Waters, Jr., Executive Director of the Retirement Board of the Policemen's Annuity and Benefit Fund—City of Chicago, Defendants-Appellees.

No. 1-01-2018.

Appellate Court of Illinois, First District, Second Division.

June 18, 2002.

Rehearing Denied November 25, 2002.

Daniel J. Collins, Williams, Collins & Bax, P.C., Chicago, for Plaintiff-Appellant.

David R. Kugler, The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago, Chicago, for Defendants-Appellees.

Justice MCBRIDE delivered the opinion of the court:

On June 9, 1998, plaintiff James W. Collins filed a complaint for administrative review and other relief with the circuit court of Cook County from a decision by the Retirement Board of the Policemen's Annuity and Benefit Fund—City of Chicago (Board) denying Collins certain benefits under the Illinois Pension Code (40 ILCS 5/5-101 et seq. (West 2000)). On remand, the Board affirmed its decision. The circuit court then heard the matter on appeal from the administrative review. On May 9, 2001, the court affirmed the decision of the Board by written opinion and order. Collins now appeals to this court.

The following facts are not in dispute. James W. Collins joined the Chicago police department on January 9, 1961. On February 5, 1985, while on duty, Collins was seriously injured when a car crossed the center line and struck the squad car Collins was driving. At the time of the accident, Collins was assigned to Area 2 as a youth officer. Following the accident, Collins attempted to return to active duty but was unable. On August 14, 1987, Collins was informed by the Board in writing that he was placed on "duty disability." In the August 14 letter, the Board informed Collins that he was to be awarded 75% of his salary at the time of his award. Additionally, the Board advised Collins that while he was carried as a disability beneficiary, his "service and monetary credits for annuity purposes go on just as though [he were] performing active duty." The status of "duty disability" removed Collins from the City of Chicago payroll and made him subject to the compensation structure of the Illinois Pension Code. Collins remained on "duty disability" until his retirement on November 30, 1998.

At the time of his award, Collins was awarded 75% of the salary of an activeduty youth officer. Pursuant to the statute, an active police officer who becomes disabled is entitled to receive "duty disability" benefits "during any period of such disability for which he does not have a right to receive salary, equal to 75% of his salary, as salary is defined in this Article, at the time the disability is allowed." 40 ILCS 5/5-154 (West 2000). Beginning January 1, 1996, the statute was amended to provide that "no duty disability benefit that has been payable under this Section for at least 10 years shall be less than 50% of the current salary attached from time to time to the rank held by the policeman at the time of removal from the police department payroll." 40 ILCS 5/5-154 (West 2000). Therefore, starting in January 1998, Collins was awarded an amount equal to 50% of the current salary of an officer of similar rank, that amount being greater than 75% of Collins' salary at the time of his disability award.

The statute also provided Collins with a pension upon retirement based on life annuity credits while on "duty disability." Section 5-172 provides that "[i]n lieu of salary deductions for annuity purposes, the city shall contribute the required amounts for any period during which a policeman receives a duty disability benefit. The city shall also contribute all amounts ordinarily contributed by it for annuity purposes for the policeman as though he were in active discharge of his duties during such disability." 40 ILCS 5/5-172 (West 2000).

At issue in this dispute is the statutory definition of "salary." Under the statute, "salary" is the "annual salary of a policeman appropriated for members of his rank or grade in the city's annual budget or appropriation bill." 40 ILCS 5/5-114(d) (West 2000). Effective January 1, 1998, the Illinois legislature expanded the meaning of "salary": "Beginning January 1, 1998, the salary of a policeman, as calculated under subsection (d), shall include any duty availability allowance received by the policeman." 40 ILCS 5/5-114(f) (West 2000). We note the use of the word "shall." Under rules of statutory construction, we accept this as mandatory. Curtis Investment Firm, Ltd. Partnership v. Schuch, 321 Ill.App.3d 197, 254 Ill.Dec. 185, 746 N.E.2d 1233 (2001). Section 5-114 also provides an option to officers to apply this provision retroactively:

"An active or former policeman who (1) either retired between July 1, 1994 and December 31, 1997, both inclusive, or attained or will attain age 50 and 20 years of service between July 1, 1994 and January 1, 2002, both inclusive, and (2) received a duty availability allowance at any time after June 30, 1994 and before January 1, 1998 may elect to have that duty availability allowance included in the calculation of his or her salary under subsection (d) for all or any portion of that period for which the allowance was received, by applying in writing and paying to the Fund, no earlier than January 1, 1998 and no later than July 1, 1998, the corresponding employee contribution without interest. Thereafter the City shall make its corresponding contribution, without interest." 40 ILCS 5/5-114(f) (West 2000),

Collins does not dispute that the Board correctly calculated and awarded him his "duty disability" benefit prior to the amendment to section 5-114.

On April 13, 1998, Collins sent a letter to the Board requesting that his award be recalculated to include "duty availability allowance" pursuant to the January 1, 1998, amendment to section 5-114. He advised the Board that he wished to exercise his option to have the provision apply retroactively and, as such, enclosed a check for his past contributions. On May 1, 1998, the Board responded to Collins' request in writing. The Board denied Collins' request, stating that since he did not receive a "duty availability allowance" from the time he began receiving "duty disability" benefits to the present, he did not now qualify for this additional benefit. The Board returned his check.

On June 9, 1998, Collins filed an action for administrative review. After the filing, the Board requested that the matter be remanded to the Board for a de novo review. Collins agreed. After a hearing on September 23, 1999, the Board issued its decision in writing on July 27, 2000. In its decision, the Board affirmed its earlier ruling on the matter. Collins then appealed to the circuit court. On May 9, 2001, in a written opinion and order, the circuit court affirmed the decision of the Board.

Collins argues that we must reverse the Board's decision and define the word "salary" uniformly to both active and disabled police officers. Collins also asks us to reject the Board's effort to read the word "received" in isolation and instead give effect to the provisions of the Illinois Pension Code as a whole. Specifically, Collins asks us to determine that the Board failed to correctly calculate his "duty disability" benefits from January 1, 1998, to November 30, 1998, by not considering his "salary" to include the "duty availability allowance" pursuant to the section 5-114 amendment.

Under the Administrative Review Law, we review the final decision of the administrative agency and not the decision of the circuit court. 735 ILCS 5/3-101 et seq. (West 2000). We will defer to the agency's findings of fact, yet we conduct an independent review of its conclusions of law. Home Interiors & Gifts, Inc. v. Department of Revenue, 318 Ill.App.3d 205, 209, 251 Ill.Dec. 820, 741 N.E.2d 998 (2000). When deciding a mixed question of law and fact, we review the agency's decision under a clearly erroneous standard. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 205, 229 Ill.Dec. 522, 692 N.E.2d 295 (1998). When the issue on appeal involves no dispute of fact and is one of law only, we review the agency's decision de novo. Home Interiors & Gifts, Inc., 318 Ill. App.3d at 209, 251 Ill.Dec. 820, 741 N.E.2d 998. Here, the facts were uncontroverted and the Board was charged with interpreting the statute. Because these are issues of statutory interpretation, we will apply a de novo standard of review. White v. City of Aurora, 323 Ill.App.3d 733, 753 257 Ill.Dec. 618, 753 N.E.2d 1244 (2001).

It is not in dispute that when Collins was placed on "duty disability" in 1987, he was effectively removed from the City of Chicago payroll. This subjected him to the compensation structure of the Illinois Pension Code. 40 ILCS 5/5-101 et seq. (West 2000). It is also undisputed that but for the January 1, 1998, amendment to section 5-114, Collins would not be entitled to a "duty availability allowance" as part of his salary calculation for any time after he began receiving "duty disability" benefits. Thus, the controversy here is one of statutory construction and whether or not, under the statute's amendment, Collins is afforded the benefit of "duty availability allowance" as part of his "salary."

Collins correctly points out in his brief that the primary purpose of statutory construction is to give effect to the language and intent of the legislature. Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill.2d 141, 149, 227 Ill.Dec. 753, 688 N.E.2d 90 (1997). Advincula v. United Blood Services,...