Keeling v. Bd. of Trs. of the Forest Park Police Pension Fund, 1–17–0804

• Citation: 2017 IL App (1st) 170804,96 N.E.3d 492
• Decision Date: 27 December 2017
• Docket Number: No. 1–17–0804,1–17–0804
• Parties: Jason KEELING, Plaintiff–Appellee, v. The BOARD OF TRUSTEES OF the FOREST PARK POLICE PENSION FUND, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 170804

96 N.E.3d 492

Jason KEELING, Plaintiff–Appellee,

v.The BOARD OF TRUSTEES OF the FOREST PARK POLICE PENSION FUND, Defendant–Appellant.

No. 1–17–0804

Appellate Court of Illinois, First District, THIRD DIVISION.

December 27, 2017

Richard J. Reimer and Evan J. Haim, of Reimer Dobrovolny & Karlson LLC, of Hinsdale, for appellant.

Jerome F. Marconi, of Law Offices of Jerome F. Marconi, of Chicago, for appellee.

OPINION

JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 Following a hearing, the Board of Trustees of the Forest Park Police Pension Fund (Board) found that it lacked jurisdiction over Jason Keeling's application for a line-of-duty disability pension ( 40 ILCS 5/3–114.1 (West 2014) ) because he was no longer a police officer when he filed the application. The Board also rejected Keeling's assertion that equitable estoppel prevented the Board from denying the timeliness of his claim. Specifically, the Board found its actions did not lead Keeling to believe another document filed during his employment was sufficient to place his claim before the Board. On administrative review, the trial court found that equitable estoppel applied and reversed the Board's decision. We now reverse the court's decision and reinstate the decision of the Board.

¶ 2 I. BACKGROUND

¶ 3 On July 28, 2013, Keeling sustained injuries while working as an officer in the Village of Forest Park (Village). While Keeling was on disability leave, the Forest Park Police Department (Police Department) began an internal investigation into allegations against him. Keeling testified at a hearing before the Board that Kimkea Harris, the attorney for the Fraternal Order of Police (the Union), advised him to file an application for a disability pension. Harris also told Keeling that he needed to do so while still employed as a police officer. Keeling added that other officers similarly told him he needed to complete a disability application to ensure he was protected.

¶ 4 Keeling then contacted Officer Rob Bryant who was both president of the Union and a Board trustee. Keeling testified that he told Bryant what Harris had advised him to do. Additionally, Bryant testified that Keeling wanted to be sure he would have pension coverage if the Village terminated his position. Keeling testified that he met with Bryant in his capacity as Union president on April 2, 2014.

¶ 5 According to Keeling, Bryant brought a two-page document to their meeting. Bryant did not recall whether he had brought the document, which was titled, "Duty Disability/Occupational Disease Pension Benefit * * * Information Request Form" (information request form). After Keeling completed the document, both men signed it. Keeling testified, "I believed that that was the documentation I needed to submit to kind of lock myself in in case this injury became permanent."

¶ 6 Bryant testified that he told Keeling he thought the information request form "would start the ball rolling," but "was not totally sure of the official start." Bryant knew at the time that there was a separate application form but he did not know exactly how to start "the process." Bryant further testified he did not know that Keeling would have to fill out the designated application form to formally apply and, as far as Bryant knew, the information request form commenced the process before the Board.

¶ 7 According to Bryant, he told Keeling that he would give the information request form to the Board's attorney, who would in turn advise Keeling of anything that needed to be done to apply. Bryant also told Keeling he hoped to get him other materials if the information request form was insufficient. In addition, Keeling testified that Bryant said he would send additional documents after submitting the information request form. Bryant advised the Board at its next meeting that Keeling was going to seek disability benefits.

¶ 8 Keeling testified that meanwhile, he spoke to Harris, who said the information request form should be fine as long as both Bryant and Keeling had signed it. This apparently reinforced Keeling's belief that tendering the information request form constituted filing a disability application. Keeling acknowledged, however, that the Board did not send him any correspondence stating that the form was sufficient to preserve his right to apply for a disability pension.

¶ 9 Instead, Board attorney Richard Reimer wrote to Keeling on April 2, 2014, the same day that Keeling executed the information request form. Reimer's letter acknowledged Keeling's "request for an application for disability benefits" and provided instructions:

"In order for the Pension Board to begin to adjudicate your disability claim, the Pension Board will require you to fully complete the enclosed Application for Disability Pension Benefits. Please completely fill out the enclosed Application and return it to me at the above address." (Emphasis added.)

The letter detailed the Board's process, and advised Keeling that "no action can be taken until such time as you complete and submit the enclosed Application and the Pension Board obtains copies of the medical records from all of your treating/examining physicians." Attached was the "Forest Park Police Pension Board Application for Disability Pension Benefits" (designated application form).

¶ 10 Keeling conceded that he received this letter but testified that he did not immediately submit the designated application form because "it was too early in my treatment and I didn't know what the extent of my injuries would be." Keeling also testified that he had not compared Reimer's letter and the accompanying form to the documentation for his 2008 and 2012 disability pension claims.

¶ 11 On April 23, 2014, the Police Department terminated Keeling's employment and the Union filed a grievance on his behalf. Before an arbitration hearing could be held, Keeling agreed to resign. On July 8, 2015, he tendered a letter resigning his employment effective as of April 23, 2014. Keeling also completed the designated application form and filed it the next day, July 9, 2015. Keeling testified that he did so after his doctors determined he would not recover further.

¶ 12 At the end of July, Keeling entered into a written "Employment Separation and Release Agreement" (separation agreement) with the Village, which recited that Keeling had resigned effective retroactively to April 23, 2014. The general release clause stated:

"It is the intent of the Village and Employee that this be a full, complete and general release, except that this General Release shall not apply to Employee's claim for disability benefits pending before the Village of the Forest Park Police Pension Fund * * *, or the Employee's pending worker's compensation claims."

According to Keeling, he believed that he had already applied for a disability pension.

¶ 13 Given that Keeling's employment ended before he filed the designated application form, the Board held an evidentiary hearing to determine whether it had jurisdiction over his claim. Keeling and Bryant, the only witnesses, testified to the foregoing events. On behalf of Keeling, Attorney Jerome Marconi argued that the issues were whether Keeling's information request form was sufficient to commence procedures before the Board and whether Keeling detrimentally relied on actions of the Board indicating that said form was sufficient.

¶ 14 Marconi argued that Bryant and Keeling discussed filing an application and Bryant, a Board trustee, knew Keeling wanted to preserve his right to seek disability pension benefits. Bryant gave Keeling the information request form and Keeling detrimentally relied on it, believing that the form started the process. Moreover, Marconi argued that the Board lacked published rules and regulations to examine.

¶ 15 Referring to the information request form, Marconi stated, "I can see the title on it. I don't know why he wasn't given the actual application at that point. Apparently, it wasn't in the possession of the Board." We note that David Preiwisch, the Board's president, explained at the hearing that the Board's attorney, rather than the Board itself, was the investigative body and, consequently, Reimer was required to handle all legal aspects of disability applications.

¶ 16 Reimer argued that the information request form was not an application, that Keeling effectively resigned as an officer on April 23, 2014, and that Keeling did not file the designated application form until July 2015. Reimer acknowledged that the Board did not have rules and regulations, but argued that the Board's policy had always been the same: "You're sent an application, and what triggers the commencement of the disability process is receipt of the application."¹ Thus, it appears that the Board, at a minimum, had unpublished policies. Reimer also argued that Keeling understood the Board's process because he had properly applied for benefits in 2008 and 2012.

¶ 17 Keeling's post-hearing memorandum argued that his information request form was legally sufficient and, consequently, the Board had jurisdiction. Keeling further argued that the Board was equitably estopped from denying that it had jurisdiction to consider his claim.

¶ 18 On May 23, 2016, the Board dismissed Keeling's claim for lack of jurisdiction because he did not file his application for a disability pension while still employed as a police officer. The Board found that Harris advised Keeling to file an application before resigning. That being said, the information request form was not the designated application form. When Keeling tendered the completed information request form to Bryant, Bryant said the Board's attorney would tell Keeling what he needed to do to apply for a pension. Although Reimer wrote to Keeling, Keeling did not file his application until July 2015:

"The Applicant attempts to place blame on everyone but himself. First, Applicant disingenuously claims that he had ‘no idea how to perfect

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