APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
F. BERG, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order by the circuit court of Cook County. The action below was brought for a declaratory judgment asking the court to reverse a decision of the Board of Trustees of the Illinois Municipal Retirement Fund (defendant) denying Michael Longo (plaintiff) creditable service for his retirement annuity computation for 42 months of military service. The circuit court entered a declaratory judgment for the plaintiff, finding he was entitled to the creditable service.
Submitted for review is the question of whether the Town of Cicero (hereinafter Cicero) was legally required to rehire plaintiff upon his discharge from military service pursuant to section 7-139 of the Illinois Pension Code (Ill. Rev. Stat. 1973, ch. 108 1/2, par. 7-139), thereby entitling the plaintiff to creditable service for his retirement annuity.
The matter was submitted to the circuit court on an agreed stipulation of facts.
Plaintiff, for a period from March 16, 1938, to June 16, 1938, and from May 1, 1939, to October 5, 1942, was employed by Cicero as a relief investigator for the Bureau of Public Welfare, as a clerk in the township assessor's office and as an assistant clerk in the township collector's office.
On October 5, 1942, plaintiff was drafted into the United States Army and served continuously in the United States Army for 42 months until his discharge on March 28, 1946. During that time, plaintiff honorably served in the European theater of operations in combat and was awarded battle decorations.
Upon his discharge from the armed forces of the United States, plaintiff returned to Cicero and immediately requested reemployment by Cicero.
Cicero failed and refused to reemploy plaintiff.
Plaintiff sought for four months to become reemployed by Cicero. He notified the Veterans Administration which unsuccessfully sought to have plaintiff returned to his former job. Cicero, however, consistently refused to reemploy him.
It was necessary, thereafter, for the plaintiff to seek other employment, which he obtained.
On March 1, 1958, plaintiff was again employed by Cicero and has been so employed continually since that date.
The defendants administer the Illinois Municipal Retirement Fund (IMRF) pursuant to article 7 of the Illinois Pension Code (Ill. Rev. Stat. 1975, ch. 108 1/2, par. 7-101 et seq.). Cicero became a participant in IMRF on January 1, 1951.
The statutes governing IMRF provide employees shall receive a month of creditable service for each month the employee works and has earnings (Ill. Rev. Stat. 1975, ch. 108 1/2, par. 7-139). Both employee and employer contribute to a retirement fund. The employee contributions are fixed by statute, presently at 4.5% of earnings (Ill. Rev. Stat. 1975, ch. 108 1/2, par. 7-173). The employer retirement contributions are established on an actuarial cost basis for each employer (Ill. Rev. Stat. 1975, ch. 108 1/2, par. 7-172). No employee contributions are required for service prior to the time the unit of government joined IMRF. The plaintiff has made contributions on his earnings and received credit for service from the date of reemployment by Cicero on March 1, 1958, to the present ...