Holmes v. Aurora Police Pension Fund Bd. of Trustees

• Decision Date: 09 August 1991
• Docket Number: No. 2-90-1432,2-90-1432
• Citation: 217 Ill.App.3d 338,577 N.E.2d 191
• Parties: , 160 Ill.Dec. 315 Kevin HOLMES, Plaintiff-Appellee, v. AURORA POLICE PENSION FUND BOARD OF TRUSTEES et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 191

577 N.E.2d 191

217 Ill.App.3d 338, 160 Ill.Dec. 315

Kevin HOLMES, Plaintiff-Appellee, v. AURORA POLICE PENSION FUND BOARD OF TRUSTEES et al Defendants-Appellants.

No. 2-90-1432.

Appellate Court of Illinois Second District.

Aug. 9, 1991.

Charles H. Atwell, Jr. Atwell & Atwell, Aurora, for Aurora Police Pension Fund, William M. Messmer, Donald R. Lindo, Earl Paul Sr., Dr. William J. Weigel, Stephen W. Wennemacher.

Claudia Oney, Mark Rivera, Claudia Oney, P.C., Chicago, for Kevin Holmes.

Puchalski, Keenan and Reimer Chicago, Richard J. Reimer, Ill. Police Pension Fund Assoc., Des Plaines, for amicus curiae.

Justice INGLIS delivered the opinion of the court:

Plaintiff, Kevin Holmes, an Aurora police officer, filed a complaint in May 1988 for administrative review of a decision by defendant, the Aurora Police Pension Fund Board of Trustees (Pension Board or Board), denying his application for participation in the pension fund. The Pension Board denied plaintiff's application in July 1985 because plaintiff is a diabetic and also denied his request for a hearing on a subsequent application in April 1988 on the ground that the issue had already been decided.

The Pension Board responded to plaintiff's complaint for administrative review by filing a motion to strike and dismiss plaintiff's complaint, arguing that plaintiff had failed to file his complaint for administrative review within the statutory 35-day period from the receipt of notice denying his original application. (Ill.Rev.Stat.1987, ch. 110, par. 3-103.) The trial court denied defendant's motion on September 12, 1989. Defendant's application for leave to appeal that sole issue pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308) was denied by this court on December 14, 1989. A trial on the merits took place on November 26, 1990, after which the trial judge ordered the Pension Board to accept plaintiff as a member of the pension fund. The Board made a timely appeal and alleges two errors at trial. First, defendant argues that the trial court erred in denying defendant's motion to dismiss. Defendant contends that administrative review was barred because plaintiff failed to file his complaint within the proper time period. Alternatively, defendant argues that the trial court erred in ordering defendant to accept plaintiff as a member of the fund. We reach only the first issue raised and vacate the judgment of the trial court on that basis.

The Aurora Civil Service Commission (Commission) maintains a police officer eligibility list and appoints police officers from the list. The Pension Board admits or rejects applicants seeking membership in the Police Pension Fund. The two agencies operate independently.

On July 10, 1984, plaintiff filed an application with the Pension Board for admission into the Aurora Police Pension Fund. The application was apparently also sent to the Commission. At a meeting on August 16, 1984, the Commission unanimously voted to strike plaintiff's name from the eligibility list of police officers after reviewing medical reports that plaintiff had submitted. Thereafter on August 23, 1984, the Pension Board denied plaintiff's application because the medical reports revealed plaintiff to be an insulin-dependent diabetic.

On February 14, 1985, plaintiff submitted a second application to the Pension Board. The application was also apparently sent to the Commission. While that second application was pending before the Pension Board, the Commission reinstated plaintiff onto the police officer eligibility list and subsequently hired plaintiff as an Aurora police officer on April 1, 1985. On March 25, 1985, prior to being hired, plaintiff signed a statement prepared by the city which stated as follows:

"This will acknowledge that I have been duly advised that my employment as an Aurora police officer is contingent upon being found physically and mentally fit to perform the duties of a police officer and that final determination of my fitness has not yet been made by the Aurora Police Pension Board."

On July 2, 1985, the Pension Board denied plaintiff's February 1985 application for membership in the pension fund. The Board sent a letter by certified mail to plaintiff dated July 11, 1985, which reads as follows:

"Dear Mr. Holmes:

Your application for membership to the Aurora Police Pension Fund was unanimously denied by the Board of Trustees at the July 2, 1985 meeting.

Should you have any questions on this matter, please do not hesitate to contact me.

Respectfully,

/s/ William Messmer

President

Board of Trustees

Police Pension Fund"

Plaintiff received the above letter on July 13, 1985. The record is silent as to how plaintiff proceeded, if at all, after he received the above letter until March 1988. Plaintiff retained his position as an Aurora police officer during this period, although he was not a member of the pension fund. On March 31, 1988, plaintiff's attorney delivered a letter to the Pension Board requesting a hearing on plaintiff's application to participate in the pension fund. The Pension Board denied plaintiff's request for a hearing on his application in a letter to plaintiff's attorney dated April 4, 1988. In the April 4 letter, the Board stated that "no further action is required" by the Pension Board because the application had previously been acted on, presumably referring to the Board's July 2, 1985, denial of plaintiff's application.

Plaintiff filed his complaint for administrative review on May 6, 1988, seeking to compel the Pension Board to grant plaintiff a hearing on his application for admission into the pension fund. Defendant responded with a motion to strike and dismiss plaintiff's complaint, arguing that plaintiff's March 31, 1988, letter to the Board was in essence a request for a rehearing on an issue previously decided in July 1985 by the Board. Defendant argued that the trial court was without jurisdiction properly to hear the cause because plaintiff failed to seek judicial review of the Board's July 2, 1985, action within 35 days of receiving notice as required by section 3-103 of the Administrative Review Law. (Ill.Rev.Stat.1987, ch. 110, par. 3-103). Plaintiff filed a response to defendant's motion and amended his complaint, arguing that the Pension Board's failure to advise plaintiff in its July 11, 1985, letter that he had 35 days to file a complaint for administrative review was a denial of plaintiff's constitutional guarantee of due process of law.

The trial judge entered an order on September 12, 1989, denying defendant's motion to strike and dismiss plaintiff's complaint. In a written letter opinion the trial judge initially found that the July 11, 1985, notice was "fatally defective" because the letter was not sent by "certified or registered mail or by personal service as required by Statute. (Ill.Rev.Stat.1985, ch. 127, par. 1010)." However, this court notes that the record contains a copy of the certified mail return postcard signed by plaintiff on July 13, 1985, and returned to the Pension Board. The trial judge then held that the 35-day statutory filing time requirement (Ill.Rev.Stat.1987, ch. 110, par. 3-103) was tolled because the July 11, 1985, letter did not properly apprise plaintiff of his right to appeal and thus denied plaintiff due process of law pursuant to the holding in Johnson v. State Employees Retirement System (1987), 155 Ill.App.3d 616, 108 Ill.Dec. 190, 508 N.E.2d 351.

The trial judge next considered and distinguished Nelson v. Board of Trustees of the Police Pension Fund (1986), 141 Ill.App.3d 411, 95 Ill.Dec. 743, 490 N.E.2d 216, where the appellate court held that a similarly situated plaintiff was not denied due process when the pension board denied him a hearing on his application, as being "a distinction without a difference." The trial judge's opinion then stated:

"The right to participation in a pension program is so much a part of the employment scene in this country as to be worthy of judicial notice. It is an important benefit which is hotly bargained for in employment agreements. It is a benefit of substantial importance to law enforcement personnel. The out of hand denial of that benefit, without opportunity of hearing, is a denial of due process."

The trial judge denied defendant's motion to dismiss, concluding that the Pension Board never properly addressed plaintiff's original February 1985 application.

After a trial on the merits, the trial court entered an order on November 26, 1990, ordering defendant to admit plaintiff as a member of the pension fund, retroactive to the date of his first application for membership in the fund if plaintiff makes appropriate payments. In a written letter opinion accompanying the order, the trial judge reviewed the evidence and concluded that the Pension Board's denial of plaintiff's application was contrary to the manifest weight of the evidence and arbitrary and capricious. Defendant made a timely appeal.

We have granted the Illinois Police Pension Fund Association (Association) leave to appeal as amicus curiae. The Association argues that an applicant for membership in a pension fund has no property interest in the fund and that an applicant whose application was previously denied is precluded from reapplying for admission into the fund at a later date.

The first issue for review is whether the trial court erred in denying defendant's motion to dismiss. Defendant argues that the trial court did not have jurisdiction to hear the action since plaintiff failed to file his complaint for administrative review within 35 days after receiving the July 11, 1985, certified letter from defendant denying his application. Plaintiff responds that the trial court properly denied defendant's motion based on the court's finding that the filing requirement was tolled because the Board's July 11 letter denied plaintiff due process.

Our disposition of this appeal is controlled by application...