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Board of Trustees v. Dept. of Insurance

OPINION FILED OCTOBER 1, 1976.

THE BOARD OF TRUSTEES OF THE POLICEMEN'S PENSION FUND OF THE VILLAGE OF OAK BROOK ET AL., PLAINTIFFS-APPELLEES,

v.

THE DEPARTMENT OF INSURANCE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. EDWIN L. DOUGLAS, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Board of Trustees of the Policemen's Pension Fund of the Village of Oak Brook and Board of Trustees of the Firemen's Pension Fund of the Village of Oak Brook instituted a complaint for declaratory judgments praying that salary increases granted under the Village of Oak Brook's Pay Plan be declared not to be excluded from withholding deductions by the pension plan provisions of sections 3-111, 3-125, 4-109 and 4-124 of the Illinois Pension Code (Ill. Rev. Stat. 1973, ch. 108 1/2, pars. 3-111, 3-125, 4-109 and 4-124). The Circuit Court of Du Page County entered judgment granting the prayer of the complaint. The defendant, Illinois Department of Insurance, appeals.

The Illinois Department of Insurance made audits of the Police Pension Fund and of the Firemen's Pension Fund of the Village of Oak Brook. The audit report of each noted that "the Fund is receiving erroneous salary deductions based on merit pay of members. Since the governing act calls for salary deductions on base earnings only, the erroneous deductions should be refunded to members."

The Pension Code of 1963 became effective July 1, 1963. The Code is incorporated in chapter 108 1/2 of the Illinois Revised Statutes. Article 3 of the Code (sections 3-101 et seq.) covers Policemen's Pension Fund for Municipalities 500,000 and under. Article 4 of the Code (sections 4-101 et seq.) covers Firemen's Pension Fund for Municipalities 500,000 and under.

The sections of the Code pertinent to this case are 3-111, 3-125 for police and 4-109 and 4-124 for firemen.

Sections 3-111 and 4-109, while not identical, then provided that upon certain conditions being met the pensioner shall have a pension of one-half the "salary attached to the rank."

Sections 3-125 (2) and 4-124 provide for partial financing of the pension funds by deductions from salary.

Section 3-125 (2) in pertinent part provides:

"For the purposes of this section, the word `salary' means the annual salary including longevity attached to the rank held by the policeman as established by the municipality's appropriation ordinance, but does not include `overtime pay', `holiday pay', `bonus pay', `merit pay', or any other cash benefit over and above the salary established by the appropriation ordinance; * * *."

Section 4-124 in pertinent part provides for withholding as follows:

"* * * of salary including longevity attached to the rank held by the fireman as established by the municipality appropriation ordinance, but does not include `overtime pay', `holiday pay', `bonus pay', `merit pay', or any other cash benefit over and above the salary established by the appropriation ordinance."

The Village of Oak Brook in 1971 adopted a comprehensive "Merit Pay Plan" for all its employees including the police and fire departments. The basic salary for a patrolman and a fireman was then $10,000; the maximum was $13,500. Merit increases were based on the recommendation of the employee's department head with review and approval by the village manager. The maximum merit increase was limited to 10% per year but could not exceed the maximum established for the position. When it was determined that an employee be given a pay increase under the plan the pay increase was added to the employee's former salary and that total was appropriated by ordinance as the annual salary for the employee. It merged into and became the employee's ordinary salary for the next year, was permanent and vested in the employee. Progression from the entrance minimum rate to the maximum rate was dependent upon the employee's level of performance, job attitude and other job related factors. Longevity increases were abolished by the plan. Increases were to be considered as merit adjustments, and not longevity increases or cost of living increases.

The trial judge found and we agree that the pay of the employee is salary attached to the rank held by that employee as established by the Oak Brook appropriation ordinance. The department, on appeal, contends that any increase under the Oak Brook plan is "merit pay" within the intent and meaning of the exclusions contained in two statutes involved. The Department refuses to concede that the definition of "salary" for computing deductions is contained only in those sections and is limited thereto. It argues that the pension articles must be construed in their entirety citing Boehne v. Board of Trustees, 313 Ill. App. 291, and Winfield Fire Protection District v. City of Wheaton, 29 Ill. App.3d 630.

We have no quarrel with the statement that the provisions of a pension act (or any other act for that matter) should be examined in their entirety to determine the legislative intent. It should be noted that in section 3-125(2) the language used by the legislature was, "For the purpose of this section" rather than ...


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