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Bd. of Trustees of Police Pension Fund v. Mathias

OPINION FILED JANUARY 6, 1981.

THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF FAIRVIEW HEIGHTS, PLAINTIFF-APPELLANT,

v.

RICHARD L. MATHIAS, DIRECTOR OF INSURANCE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. DAVID W. COSTELLO, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Plaintiff Board of Trustees of the Police Pension Fund of Fairview Heights (hereinafter the board) appeals from the judgment of the Circuit Court of St. Clair County, which affirmed the order of the Director of Insurance in an administrative review proceeding. The Director of Insurance had determined that the board violated sections 3-109 and 3-124 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108 1/2, pars. 3-109 and 3-124) by failing to require a Fairview Heights police officer, as a prerequisite to his current inclusion in the police pension fund, to repay $3,000 of pension contributions refunded to the officer at the end of his earlier period of employment. The pension fund involved is the policemen's pension fund for municipalities of 500,000 and under, provided for in article 3 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 3-101 et seq.).

The parties stipulated that Patrick Prindable was formerly a member of the Fairview Heights police force for about 3 years. After resigning on November 15, 1975, he was refunded pension contributions of approximately $3,000 pursuant to section 3-124 of the Illinois Pension Code.

Subsequently, Prindable sought to rejoin the force. He requested that the board waive the written and oral testing required of new officers. The board refused. Prindable passed the tests and was placed on an eligibility list.

On June 16, 1977, he was hired as a probationary patrolman. He also requested that the board waive the 18-month probationary period for new patrolmen, but the board refused. Prindable received the starting salary of a probationary patrolman, which was substantially less than he would have received had he been reinstated at his previous grade.

The parties also stipulated that Prindable did not want pension credit for his earlier 3 years on the force. He had not repaid and would not repay the money he withdrew when he resigned. He sought readmission to the pension fund as a new patrolman, with the understanding that to be eligible for a service pension he would have to serve 20 years from June 16, 1977. The board did not enforce repayment of Prindable's refunded contributions and included him as a member of the pension fund.

The Director of Insurance found the board in violation of sections 3-109 and 3-124 of the pension code and ordered that the board immediately either enforce repayment of Prindable's refund or cease including him as a member of the pension fund for so long as the board failed to enforce repayment.

Sections 3-109 and 3-124 of the Illinois Pension Code provide in pertinent part as follows:

"§ 3-109. Persons excluded. This Article shall not apply to the following persons: * * * (b) Any policeman who fails to pay the salary payments or deductions hereinafter defined, computed (1) in the case of funds established prior to August 5, 1963, from the date the municipality established the fund or the date of a policeman's first appointment (including an appointment on probation), whichever is later, or (2) in the case of funds hereafter established, from the date, as determined from the statistics or census provided in Section 3-103, the municipality became subject to this Article by attaining the minimum population or by referendum, or the date of a policeman's first appointment (including an appointment on probation), whichever is later, and continuing during his entire service as a policeman. A policeman who is reappointed shall, before being declared eligible to participate in the pension fund, repay to the fund as required by Section 3-124 any refund received pursuant to said Section 3-124." Ill. Rev. Stat. 1979, ch. 108 1/2, par. 3-109.

"§ 3-124. Refund. If a policeman is separated from the police service after June 30, 1953, but before he has served 20 years, all contributions made by him to the police pension fund shall, upon his request, be refunded to him.

Acceptance of a refund shall bar the policeman and his dependents from any further participation in the benefits of this Article subject to restoration upon re-entry into service and repayment to the fund of the refund plus interest at 2% per annum from the date of refund until the date of repayment." Ill. Rev. Stat. 1979, ch. 108 1/2, par. 3-124.

The board contends that Prindable was not "reappointed" within the meaning of section 3-109 because he did not return to the same rank, pay grade, and seniority status in the police department, but rather started anew by undergoing the testing procedures, waiting period while on the eligibility list, and serving probationary status following appointment. The board contends that section 3-124 provides that the acceptance of a refund of pension contributions upon separation merely bars a police officer from claiming his former creditable service for pension purposes upon re-entry, unless he repays the amount refunded plus 2 percent interest from the date of the refund.

The board cites statutes concerning 17 other governmental retirement, pension, and annuity systems that appear to provide, with varying degrees of clarity, that an employee's failure to repay a refund only precludes credit for prior service in determining eligibility for benefits. (Ill. Rev. Stat. 1979, ch. 108 1/2, pars. 2-123, 4-116, 5-164, 7-169, 8-167, 9-163, 10-101, 11-163, 12-145, 13-165, 14-130, 15-154, 16-151, 17-126, 18-129, 19-105, 19-215.) The board concedes that one system, the fireman's annuity and benefit fund for cities over 500,000, appears to require that a fireman who receives a refund must repay it upon re-entry into the service in order to be eligible for any benefits. Ill. Rev. Stat. 1979, ch. 108 1/2, par. 6-159.

While recognizing that the State's pension law is to be given a liberal construction to effect its purpose, the Director of Insurance points out that our primary pursuit must be to determine the meaning of the provisions actually involved here. The Director contends that the board's interpretation of the word "reappointment" in section 3-109 is artificially narrow, and that reappointment simply means rehiring, whether at an entry level position, as in this case, or at a previously attained rank and seniority. The Director further contends that the plain meaning of section 3-124 is that a policeman who ...


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