Sola v. Roselle Police Pension Bd.

• Decision Date: 06 August 2003
• Docket Number: No. 2-02-0720., No. 2-02-0719
• Citation: 276 Ill.Dec. 805,794 N.E.2d 1055,342 Ill. App.3d 227
• Parties: Jeannette SOLA, Plaintiff-Appellee, v. The ROSELLE POLICE PENSION BOARD, Defendant-Appellant (The Village of Roselle, Intervenor). Jeannette Sola, Plaintiff-Appellee, v. The Roselle Police Pension Board, Defendant (The Village of Roselle, Intervenor-Appellant).
• Court: United States Appellate Court of Illinois

794 N.E.2d 1055

342 Ill. App.3d 227

276 Ill.Dec. 805

Jeannette SOLA, Plaintiff-Appellee, v. The ROSELLE POLICE PENSION BOARD, Defendant-Appellant (The Village of Roselle, Intervenor).

Jeannette Sola, Plaintiff-Appellee, v. The Roselle Police Pension Board, Defendant (The Village of Roselle, Intervenor-Appellant).

Nos. 2-02-0719, 2-02-0720.

Appellate Court of Illinois, Second District.

August 6, 2003.

John H. Kelly, Stephanie A. Benway, Ottosen Trevarthen Britz Kelly & Cooper, Ltd., Wheaton, for Village of Roselle.

Richard J. Reimer, Thomas S. Radja, Jr., Richard J. Reimer & Associates, L.L.C., Hinsdale, for Roselle Police Pension Board in No. 2-02-0719.

Jerome F. Marconi, Jerome F. Marconi & Associates, Chicago, for Jeannette Sola.

Richard J. Reimer, Thomas S. Radja, Jr., Richard J. Reimer & Associates, L.L.C., Hinsdale, for John Lawson, Roselle Police Pension Board in No. 2-02-0720.

Justice BYRNE delivered the opinion of the court:

Defendant, Roselle Police Pension Board (Board), and intervenor, Village of Roselle (Village), appeal the trial court's order of declaratory and injunctive relief, which enjoined the Board from holding a hearing to reconsider the pension benefits award it previously granted to plaintiff, Jeannette Sola. We affirm.

Plaintiff's husband, Lester Sola, a Roselle police officer, died on May 10, 1993. On May 26, 1993, plaintiff filed an application with the Board requesting pension benefits as a surviving spouse. She also sent a letter to the president of the Board requesting an annual cost-of-living increase. Shortly thereafter, she began to receive surviving spouse pension benefits and received such benefits along with an annual 3% cost-of-living increase until January 1, 2002. There is no written decision in the record memorializing the Board's grant of pension benefits to plaintiff in 1993. The minutes of a Board meeting held on January 23, 1996, reflect that the Board reviewed and approved a scheduled annual increase in Lester Sola's pension.

In June 2000, the Department of Insurance (Department) audited the pension fund for the period beginning May 1, 1998, and ending April 30, 2000. In its report, the Department found that plaintiff "was granted a pension of $1596.59, effective May 10, 1993." The Department further found that "annual increases have been granted since 1993." The increases set out in the report reflect an annual increase of 3%. The Department, without explanation, concluded that plaintiff's current pension of "$1963.60" was overstated.

On or about December 27, 2001, plaintiff received a letter from the Village stating that her pension benefits for 2002 would not increase beyond the 2001 level. On February 4, 2002, the Board's attorney sent a letter to plaintiff that stated: "As you are aware, in 1993 the Pension Board awarded you a 3% cost of living increase pursuant to 35/3-111.1 [sic] of the Illinois Pension Code." The letter then informed plaintiff of the Department's findings and stated:

"It would appear that this overpayment resulted from the Pension Boards [sic] granting you a cost of living increase. The Department of Insurance position is that surviving spouse's [sic] of Police Officers are not entitled to cost of living increases. * * * The Village of Roselle has also taken the position that you were not entitled to cost of living increases."

The letter then stated that the Village had petitioned to intervene in any proceedings to be held before the Board, that a hearing was scheduled on February 11, 2002, and that plaintiff's pension benefits may be affected. Plaintiff later received a notice that the hearing would be held on April 1, 2002.

On March 26, 2002, plaintiff filed a complaint for declaratory and injunctive relief and a motion for a temporary restraining order. Plaintiff argued that the Board was without jurisdiction to conduct a hearing to modify plaintiff's pension benefits because it did not timely review its original pension decision pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2002)). The court granted the Village's petition for leave to intervene and the Village filed a brief in opposition. The Board filed a motion for summary judgment.

The court granted plaintiff's request for declaratory and injunctive relief and enjoined the Board from conducting a hearing to review plaintiff's pension and annual 3% increase. The court also denied the Board's motion for summary judgment. The Village and the Board both appealed. We consolidated the appeals.

The Board argues (1) that it had jurisdiction to hold a hearing pursuant to the Illinois Pension Code (Pension Code) (40 ILCS 5/1-101 et seq. (West 2002)); (2) that it did not lose jurisdiction by failing to timely review its original award because it never rendered an administrative decision; and (3) plaintiff failed to exhaust her administrative remedies. The Village also argues that there was no administrative decision. The Village additionally argues that plaintiff, as a surviving spouse, is not entitled to cost-of-living increases in her pension.

We review the court's order de novo, as it is based on the construction of a statute. People ex rel. Devine v. $30,700.00 United States Currency, 199 Ill.2d 142, 148-49, 262 Ill.Dec. 781, 766 N.E.2d 1084 (2002). The Pension Code, which governs the Board, provides that review of pension board decisions shall be pursuant to the Administrative Review Law. 40 ILCS 5/3-148 (West 2002). The Administrative Review Law provides in 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 by the decision * * *." 735 ILCS 5/3-103 (West 2002).

Because the Pension Code provides that decisions of pension boards are subject to the Administrative Review Law, the Board's decisions can be reviewed only pursuant to that law. Rossler v. Morton Grove Police Pension Board, 178 Ill. App.3d 769, 773-74, 127 Ill.Dec. 845, 533 N.E.2d 927 (1989). The review of a decision under the Administrative Review Law, initiated either by an agency or an individual appearing before it, is limited to a 35-day period after the decision is issued. Rossler, 178 Ill.App.3d at 774,127 Ill.Dec. 845,533 N.E.2d 927. This limit is jurisdictional. Holmes v. Aurora Police Pension Fund Board of Trustees, 217 Ill. App.3d 338, 344, 160 Ill.Dec. 315, 577 N.E.2d 191 (1991). Although an administrative agency's procedural rules may allow for an extension of the 35-day review period, the Pension Code provides no such extension. See Holmes, 217 Ill.App.3d at 344-45,160 Ill.Dec. 315,577 N.E.2d 191. Accordingly, the Board lacks jurisdiction to reconsider decisions after the expiration of the 35-day period.

The Board first argues that, regardless of the 35-day review period, it nevertheless has the statutory authority to modify plaintiff's pension. The Board relies on section 3-144.2 of the Pension Code, which provides:

"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." 40 ILCS 5/3-144.2 (West 2002).

This argument was rejected by the court in Rossler, which held that section 3-144.2 is limited to "allowing the Board to readjust pension payments where a claimant has actively sought to misrepresent his entitlement to pension funds or where the Board has made some inadvertent arithmetical error in calculating pension benefits." Rossler, ...