APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 13, 1972.
This administrative review action was brought by Robert J. Quinn, Fire Commissioner of the City of Chicago, to compel the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago to accept his payment of $17,430.75 to the Fund so that his pension would be based upon his actual salary as Commissioner rather than that based on the salary appropriated for his civil service grade. The eight member Board of Trustees by a four to four vote refused to accept the payment. The trial court reversed that decision and directed the Board to accept payment from the plaintiff so that he would qualify for a pension based on his Commissioner's salary. The four members of the Board of Trustees who voted against accepting plaintiff's check prosecute this appeal. Plaintiff has filed a motion to dismiss the appeal, contending that the appellants have no standing to bring the appeal. Additionally, the Corporation Counsel of the City of Chicago, who by law, (Ill. Rev. Stat. 1967, ch. 108 1/2, par. 6-208), represents the Board of Trustees of the Fund, has also filed a motion to dismiss the appeal on the same grounds. Those motions to dismiss the appeal were taken by the court and will be considered in this opinion.
In 1957 the plaintiff was appointed Fire Commissioner by the Mayor of Chicago and confirmed by the City Council. He has held the position since that time. Through those years his pension deductions were computed upon the basis of his civil service rank of Division Fire Marshal. In 1967, the annual salary of Division Fire Marshal was about $14,000, while the salary of the Fire Commissioner was $30,000.
On March 1, 1968, plaintiff, citing a change in the Firemen's Pension Code, (Ill. Rev. Stat. 1967, ch. 108 1/2, par. 6-163), tendered the aforesaid check to the Secretary of the Fund with a statement that the money was to be credited to his age and service account so that his pension would be based on the Commissioner's salary. The first sentence of Section 6-163, after the 1967 amendment, reads as follows:
"For age and service annuity, the minimum annuities prescribed in Sections 6-123 and 6-128 and for disability benefits, salary as defined in Section 6-111 shall be the basis of computation."
Section 6-111 defines the salary of a fireman as "the actual amount of the annual salary". Prior to the amendment, Section 6-163 had read in part as follows:
"For the minimum annuity, disability pension and duty disability benefit under this Article, it shall be assumed that the amount set out and appropriated for the rank or grade held by him in the annual budget or appropriation of the city * * *."
Plaintiff's check was returned by the Secretary of the Fund with the explanation that the Board lacked the authority to accept it. On August 9, 1968, the check was resubmitted to the Fund by the Corporation Counsel of Chicago along with his written opinion that, because of the change in Section 6-163 of the Firemen's Pension Code, plaintiff was entitled to have his pension based on the Commissioner's salary. The Board voted four to four on the issue of accepting plaintiff's check, and as a result of the tie vote, the check was not accepted. Plaintiff then petitioned the Board for an administrative hearing in order that he might present evidence to support his claim. In response to plaintiff's request, the Board set a date for a hearing.
The Retirement Board of the Fireman's Fund was created by Statute. (Ill. Rev. Stat. 1967, ch. 108 1/2, par. 174.) The membership of the Board consists of the City Treasurer, the City Comptroller, the City Clerk, the Chief Fire Marshal of the Department, three firemen elected by firemen in active service and one fireman elected by the pensioned firemen. The statute makes no provision for a tie-breaking vote, but provides that no pension shall be granted and no money paid out of the Fund unless ordered by a majority of the members of the Board. The Board's decisions are reviewable under the Administrative Review Act. The following evidence was adduced at the instant Board hearing.
Doctor Charles A. Pounian, Personnel Director for the Chicago Civil Service Commission, testified for plaintiff as to the latter's career on the fire department. Plaintiff became a fireman in 1928, and after various promotions, attained his highest civil service rank, Division Fire Marshal, in 1953. Plaintiff subsequently became Deputy Fire Marshal and then assistant Fire Commissioner, both assignments described by Pounian as temporary. In 1957 plaintiff was named Fire Commissioner, an assignment which was characterized as exempt by Pounian.
Sidney R. Drebin, an assistant Corporation Counsel, testified for plaintiff with respect to the Corporation Counsel's written opinion on the matter. That opinion supported plaintiff's position. Drebin believed that, as a result of the 1967 amendment to Section 6-163 of the Pension Code, plaintiff's pension rights were based entirely on his annual salary as commissioner. Drebin stated that there might be a conflict between 6-163 and 6-211 of the Pension Code, but if there was a conflict, Section 6-163, which was enacted later, would take precedence. In preparing the opinion in support of plaintiff's petition, Drebin had not considered Section 23-101 of the Pension Code which provides that no greater benefits may be granted than those existing under the act prior to the effective date of the Code, unless the benefits are changed by specific amendment to the Code. Drebin believed that plaintiff occupied a permanent position in the fire department, and cited an earlier opinion of the Corporation Counsel in support of that position.
In addition to the written opinion of the Corporation Counsel, a written interpretation of the intent and meaning of the amendment to Section 6-163 was submitted to the Board by A.A. Weinberg, an actuary of the Fund. That interpretation also supported plaintiff's position. The intent of the amendment, in Weinberg's view, was to establish uniformity with respects to contributions and benefits for all firemen and members of the pension fund. In Weinberg's opinion, as a result of the amendment, contributions by the firemen and the rates of pension would be predicted on the actual salary rather than on a fictitious standard. Weinberg observed that the phrase "temporary appointment" was not defined in the pension law, but that its general meaning was service for a period of 60 to 90 days. In Weinberg's opinion, the amendment to Section 6-163 clearly revealed its intent that benefits and contributions by all participants in the fund would be based on their annual salary. Weinberg further indicated that unless that intent was recognized, the amendment was without any meaning.
Eleven members of the Chicago Fire Department, all of different ranks and positions, testified in behalf of plaintiff that as Commissioner he participated actively in fighting fires and that he assumed command of all fire department personnel upon his arrival at a fire. Plaintiff testified before the Board with respect to his activities as a fireman and also that he actively fought fires as Commissioner. Photographs were ...