Rossler v. Morton Grove Police Pension Bd.

• Decision Date: 09 January 1989
• Docket Number: No. 88-0240,88-0240
• Parties: , 127 Ill.Dec. 845 Gerald R. ROSSLER, Plaintiff-Appellant, v. MORTON GROVE POLICE PENSION BOARD, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 927

533 N.E.2d 927

178 Ill.App.3d 769, 127 Ill.Dec. 845

Gerald R. ROSSLER, Plaintiff-Appellant, v. MORTON GROVE POLICE PENSION BOARD, Defendant-Appellee.

No. 88-0240.

Appellate Court of Illinois First District, First Division.

Jan. 9, 1989.

Randall, Gayle & Patt, Jeffrey M. Randall and Naomi Braude, Glenview, for plaintiff-appellant.

Doss, Puchalski & Keenan, Ltd., Richard J. Puchalski, Chicago, for defendant-appellee.

Justice O'CONNOR delivered the opinion of the court:

This is an appeal from an order granting summary judgment in favor of defendant, the Morton Grove Police Pension Board. Plaintiff raises the following issues on appeal: (1) whether the Pension Board lacks jurisdiction to conduct the proposed administrative rehearing; and (2) whether the Pension Board is estopped from conducting an administrative rehearing regarding pen sion benefits awarded 2 1/2 years prior to the scheduled rehearing. We reverse.

Plaintiff, Gerald Rossler, was deputy chief of police for the Morton Grove police department prior to his retirement on January 14, 1985. Between January 1965 and January 1985, he contributed bi-weekly to the police pension fund which was managed by the Morton Grove Police Pension Board (the Pension Board) pursuant to Ill.Rev.Stat.1987, ch. 108 1/2, par. 3-101, et seq.

In February 1984, Rossler sought a five-month leave of absence from the police department in order to act as a security consultant for the 1984 Olympic Games in Los Angeles. Copies of his request for leave of absence were sent to the Pension Board, the Morton Grove village attorney, the chief of police for Morton Grove, a trustee of the Police and Fire Commission and the mayor of Morton Grove.

It was agreed between the Chief of Police and Rossler that sick days, vacation days and personal days would be applied toward Rossler's creditable service time for pension purposes. The Pension Board approved the requested leave of absence on February 23, 1984, and agreed that the leave would be counted as creditable time toward Rossler's pension provided that he maintain his contributions during the leave of absence. Approval under the same conditions also was granted by the President of the Pension Board and the chairman of the Morton Grove Fire and Police Commission. The village administrator similarly approved and notified the president of the Pension Board that the village would accept Rossler's bi-weekly contributions to the pension fund in his absence.

Having received the approval and authorizations of the above named entities, Rossler took the leave of absence beginning March 5, 1984. On October 29, 1984, he returned to the payroll of the Morton Grove Police Department. On December 8, 1984, Rossler was notified that he had accumulated 20 years and seven days of creditable service toward retirement. He subsequently wrote to the Pension Board stating his intention to retire from the police force on January 11, 1985, and applied for a pension. In response, the village finance director-treasurer wrote a letter to the Pension Board stating the Rossler had made all required contributions to the fund.

Rossler's request for a pension was granted unanimously by the Pension Board and on July 16, 1985, the Board notified Rossler that his pension of $19,256.95 per year was to commence on his 50th birthday.

In about August 1986, 1 1/2 years after the Board had notified Rossler that he would receive his pension, the Board notified him that the Illinois Department of Insurance had determined that the amount had been inaccurately computed as there was a five-month error in the creditable service time. Despite this determination by the Department of Insurance, the village attorney, acting as the attorney for the Board, notified the Board that Rossler was entitled to a pension based on 20 years of service and that the Board lacked jurisdiction to modify its decision because it had failed to file an action to review its decision within 35 days, as required by the Administrative Review Law. Ill.Rev.Stat.1985, ch. 110, par. 3-101 et seq.

In June 1987, more than 2 1/2 years after granting the pension, the Board notified Rossler that it had scheduled an administrative rehearing to hear evidence concerning modification of his pension. Rossler filed a motion for a preliminary injunction to enjoin the Pension Board's scheduled rehearing. Both parties filed cross motions for summary judgment and the trial court granted the Board's motion, finding that the Board had inherent authority under section 3-144.2 of the Pension Code (Ill.Rev.Stat.1987, ch. 108 1/2, par. 3-144.2), to conduct a rehearing. That motion was stayed pending the outcome of this appeal.

The first question we address is whether the Board has jurisdiction to conduct a rehearing concerning modification of Rossler's pension benefits some 2 1/2 years after the initial decision was made to grant the pension. The position of the Board is that it has either express authority, under Ill.Rev.Stat.1987, ch. 108 1/2, par. 3-101, et seq. or implied authority under Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill.App.3d 341, 8 Ill.Dec. 429, 365 N.E.2d 667, appeal denied, 66 Ill.2d 631, to hold a rehearing to determine the extent of Rossler's entitlement to pension benefits. The Board cites section 3-135 of the Pension Code (Ill.Rev.Stat.1987, ch. 108 1/2, par. 3-135) which grants the Board power to control, manage and invest funds and Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill.App.3d 271, 323 N.E.2d 84, modified (1976), 62 Ill.2d 494, 343 N.E.2d 459, in which the court held that the grant of authority to an administrative agency carries with it the power to do what is reasonably necessary to perform the duties assigned to it. The Pension Board also relies on article 3 of the Pension Code, which provides in pertinent part as follows:

"The amount of any overpayment, due to fraud, misrepresentation or error, of any pension or benefit granted under this Article may be deducted from future payments to the recipient of such pension or benefit." Ill.Rev.Stat.1987, ch. 108 1/2, par. 3-144.2.

The Board contends that this provision necessarily permits a modification beyond the 35-day appeal period provided by the Administrative Review Law and that the legislature cannot have intended that the agency appeal its own decision within 35 days.

We believe that the limited appeal period under the Administrative Review Law and the directives of article 3 of the Pension Code are not inconsistent and that section 3-144.2 of the Code does not grant the Board inherent authority to hold a rehearing after the statutory review period has expired.

An administrative agency, such as the Pension Board, has no inherent or common law powers, but is empowered to act only pursuant to the authority it is granted by law. (Board of Trustees of Police Pension Fund of Park Forest v. Washburn (1987), 153 Ill.App.3d 482, 485, 106 Ill.Dec. 418, 505 N.E.2d 1209.) Administrative actions which exceed the authority delegated by law are void. Board of Trustees, 153 Ill.App.3d 482, 485, 106 Ill.Dec. 418, 505 N.E.2d 1209.

The Pension Board is governed by article 3 of the Illinois Pension Code (the Police Pension Code) which regulates and establishes the powers and duties of police pension boards in municipalities of between 5,000 and 50,000 residents, such as Morton Grove (See Ill.Rev.Stat.1987, ch. 108 1/2, par. 3-101 et seq.) Section 3-148 of the Code provides that review of Board orders shall be pursuant to the Administrative Review Law (Ill.Rev.Stat.1987, ch. 110, par. 3-103), which provides in pertinent part:

"Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby."

Where a statute provides that the decisions of an administrative agency are subject to the Administrative Review Law, the provisions of the Administrative Review Law provide the exclusive method of review. (Mason v. Board of Trustees of Southern Illinois University (1984), 125 Ill.App.3d 614, 617, 80 Ill.Dec. 913, 466 N.E.2d 365.) As section 3-148 of the Illinois Pension Code (Ill.Rev.Stat.1987, ch. 108 1/2, par. 3-148) expressly adopts the Administrative Review Law, the decisions of the Pension Board can be reviewed only pursuant to that law.

Review of orders under the Administrative Review Law either by an agency or an individual appearing before it is limited to a 35-day period after the decision is issued. (People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill.App.3d 1108, 1111, 51 Ill.Dec. 485, 420 N.E.2d 1043, appeal denied, 85 Ill.2d 574), and the 35-day limit is jurisdictional. (Hoffman v. Illinois Department of Registration & Education (1980), 87 Ill.App.3d 920, 924, 43 Ill.Dec. 291, 410 N.E.2d 291.)...