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Wendl v. Moline Police Pension Bd.

OPINION FILED MAY 28, 1981.

TERRENCE WENDL ET AL., PLAINTIFFS-APPELLEES,

v.

MOLINE POLICE PENSION BOARD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. ROBERT J. HORBERG, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

The Moline Police Pension Board (hereinafter Pension Board or Board) appeals from the judgment of the Circuit Court of Rock Island County in this administrative review action. The Board had ordered the termination of each plaintiff's disability pension, after hearing, and the circuit court reversed those orders and remanded the cases back to the Board. The basis for the reversal was the circuit court's finding that the plaintiffs had not received constitutionally adequate notice concerning the hearing, based upon applicable due process requirements. The court reinstated the pensions which had been terminated, on that basis, and it remanded so that proper notice could be given prior to any further proceedings by the Pension Board. The Pension Board argues on appeal that the notice of hearing given by it to the plaintiffs was sufficient to meet due process requirements in this case. Secondly, the Board argues that the reinstatement of the pensions was unwarranted, even assuming that the reversal was proper for inadequate notice. We affirm the decision in its entirety.

The record discloses the following facts pertinent to the issues on appeal. Plaintiffs Terrence Wendl and Randall Heaton had been police officers with the city of Moline. Heaton was injured in September 1974, while a police officer, and he was granted a full disability pension by the Pension Board in December 1974. Wendl was placed on full disability pension by the Board in March 1976. They continued to receive their pension benefits in the years following, although each at times was employed elsewhere during the ensuing years. Then, in 1979, the Pension Board sent a letter to each plaintiff, dated May 3, 1979. The letter stated that the Board would be annually reviewing the disability pensions, and it directed the plaintiffs-pensioners to obtain certificates concerning their physical conditions from the police physician. The letter also directed each man to appear before the Pension Board for the review. Two alternate dates for the "meeting" were offered, and the pensioners were permitted to choose either date to appear. The letter was signed by the secretary of the Pension Board, James Cunningham. On October 25, 1979, each plaintiff appeared for the hearing to review his disability pension. Neither man was represented by counsel at his hearing. At his hearing, Wendl was first questioned by the Pension Board's attorney and then by members of the Board. No other witnesses testified, nor were any exhibits introduced. Plaintiff Heaton's hearing was similar, questions from the Board's attorney and then Board members. Subsequent to the hearings, the Pension Board entered its orders terminating each man's disability pension. There is no need to set forth the substance of the evidence, or the basis of the Board's order, as there is no issue raised on this appeal at this stage of the proceeding as to the correctness of the Board's decision on the merits. The circuit court, in finding a lack of adequate notice, did not reach any issue concerning the merits of the terminations.

Following notice by the Board to plaintiffs that their pensions were to be terminated effective December 1, 1979, each man filed a complaint for administrative review of the Board's actions, pursuant to the Administrative Review Act. (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) Each complaint requested review over the Pension Board's action in terminating the pension, and each alleged that the decision of the Board was contrary to the law and to the manifest weight of the evidence. Each complaint also alleged that the Board had failed to observe the rules of evidence and its own rules (see Ill. Rev. Stat. 1979, ch. 108 1/2, par. 2-140) in arriving at its decision. The complaints sought reversals of the decision, and, also, each prayed that the decision to terminate be stayed, that the case be remanded for taking further evidence, and for any relief the court thought appropriate.

Thereafter, the defendant Pension Board filed answers in both cases. Each plaintiff then filed a "Petition to Stay Proceedings," accompanied by affidavit. In his petition, Mr. Wendl alleges that in the years prior to 1979, the Board had only required him to submit a letter from a physician on his then current physical condition. He alleged that he had annually done so, as requested. Wendl also alleges that he received a May 3 notice letter from the Board requiring him to appear to be examined by the police physician. The petition asserted that the notice letter of May 3 did not advise him: (1) that the Board would be considering termination of his pension; (2) that he would be entitled to present his own medical evidence; (3) that he could have witnesses produced and, also, cross-examine other witnesses; (4) that he could be represented by counsel at the hearing; and (5) that he would be permitted to contest the findings of the police physician.

The petition concluded by alleging that because of the lack of adequate notice, plaintiff Wendl had been denied due process and a fair hearing. An affidavit was filed in support of the allegations in the petition. A similar petition to stay was filed by plaintiff Heaton which alleged, in essence, that he was not properly advised concerning the hearing by the notice of May 3. Heaton, as Wendl, asserted his property interests in the pension and alleged that his interest had been taken from him without requisite due process protections. In his accompanying affidavit, Heaton recounted his accident, his disability, and his subsequent employment history. He also stated that from 1976 until 1979 he was asked by the Board to submit a letter from his physician concerning his condition. He submitted these letters annually, as requested, and these were all the Board required.

He acknowledged receipt of the May 3 notice letter from the Board. He stated, however, that at no time was he informed that he should be represented by counsel at the hearing. He stated furthermore that he did not understand that the hearing was an adversary proceeding at which evidence against him would be produced and elicited. He also stated that he was unaware of the procedural steps to be taken during the hearing and that he was inadequately prepared for the hearing. He alleges this to be a consequence of the lack of notice afforded him concerning the nature and purposes of the hearing. He stated that no evidentiary hearing had ever previously been conducted. Finally, in his affidavit, Heaton stated that upon receipt of the May 3 letter, he was informed by James Cunningham, secretary of the Board who signed the letter, that the hearing was merely an attempt to bring the Pension Board into compliance with the law.

The circuit court thereafter held a hearing on the plaintiffs' complaints and their petitions. The cases, because of their similarity, were considered together. The court found in favor of the plaintiffs solely on the basis of a denial of due process as a result of the inadequacy of the notice of May 3, 1979. The orders of the court found that the notice of May 3 "was not adequate to notify the plaintiff of the nature and scope of the subsequent hearing." The court, in deciding the case on this ground, did not reach the merits. It did order a reinstatement of the improperly terminated pensions benefits and remandment for new hearings after new and sufficient notice. From these decisions the Pension Board appeals.

• 1, 2 It is firmly established that administrative proceedings must conform to the constitutional requirements of due process of law. (Bruce v. Department of Registration & Education (1963), 26 Ill.2d 612, 187 N.E.2d 711; Flores v. Board of Review (1979), 74 Ill. App.3d 667, 393 N.E.2d 638; Distaola v. Department of Registration & Education (1979), 72 Ill. App.3d 977, 391 N.E.2d 489.) While the essence of procedural due process is meaningful notice and meaningful opportunity to be heard (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652; Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill.2d 556, 561, 224 N.E.2d 236), due process is a flexible concept and specific procedural requirements with respect to notice and opportunity to be heard vary, depending upon the character of the rights affected and the degree of deprivation. Pipe Trades, Inc. v. Rauch (1954), 2 Ill.2d 278, 118 N.E.2d 319; Elmhurst Stamping & Manufacturing Co. v. Amax Plating, Inc. (1978), 67 Ill. App.3d 257, 384 N.E.2d 839; Kraut v. Rachford (1977), 51 Ill. App.3d 206, 366 N.E.2d 497.

In the instant case, the rights affected are the plaintiffs' property interests in their disability pension benefits, which they have been receiving for a number of years, and the degree of deprivation of those interests is total, for it is termination of any benefits which was ordered. Both Wendl and Heaton had been receiving disability pension benefits since the mid-1970's, when both had established their entitlement to pension benefits under the applicable statutory provisions. Ill. Rev. Stat. 1979, ch. 108 1/2, par. 3-101 et seq.

• 3 While the pension awards were subject to review and potential termination by the Pension Board, nevertheless, until properly terminated, they were present property interests belonging to the plaintiffs. Each plaintiff had a right to continued pension payments, under the statute, so long as the disability was shown to exist. Thus, the interests at stake in the review proceedings are akin to benefits conferred under the welfare statutes, wherein significant pre-deprivation due process protections have been required before those previously conferred benefits can be terminated. (Goldberg v. Kelly (1970), 397 U.S. 254, 261-64, 25 L.Ed.2d 287, 295-97, 90 S.Ct. 1011, 1017-19.) The benefits in the instant case are thus distinctly different from the interests in other pension cases wherein the only asserted interest was in some future expectancy of pension benefits. Plaintiffs herein had shown their entitlement to the pension benefits, and their interests in those benefits, present and future, are sufficient to require significant due process protection when the State, herein the Pension Board, seeks to deprive the plaintiffs of them. Note that we do not mandate that the hearing must take the form of a judicial or quasi-judicial proceeding. What the Board must do, prior to terminating benefits, is to provide meaningful notice and a meaningful opportunity to be heard.

Perhaps the most essential due process protection is that of adequate notice concerning the actions contemplated. The Board does not contend that it could have terminated the pensions without any notice to the pensioners. If some notice is required, then, at a minimum, it must sufficiently apprise the person affected concerning the nature and purposes of any proceedings. As stated,

"The test of the adequacy of notice is whether it clearly apprises a defendant of the claims to be defended against and whether the defendant, on the basis of the notice given, could anticipate the possible effects of the proceeding." (Hyon Waste Management Services, Inc. v. City of Chicago (1977), 53 Ill. App.3d 1013, 1018, 369 N.E.2d 179, ...


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