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Wargo v. State Universities Retirement Sys.

OPINION FILED JUNE 7, 1982.

DR. JOHN WARGO, JR., ET AL., PLAINTIFFS-APPELLEES,

v.

STATE UNIVERSITIES RETIREMENT SYSTEM, DEFENDANT-APPELLANT. — (THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

STATE UNIVERSITIES RETIREMENT SYSTEM, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.

JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:

The Board of Trustees of the State Universities Retirement System (SURS) decided that the four personal plaintiffs, Wargo, Sledge, Sullivan, and Moomey, are not eligible to participate in that pension fund and ordered that their service and earnings credits be erased, that their contributions be refunded, and that no future contributions be accepted from them. Wargo, Sledge, Sullivan, Moomey, and their nominal employers, the University of Illinois and Illinois State University, sought administrative review. The circuit court reversed, holding that the Board did not have the authority to make those decisions, and ordered that the four be reinstated as participants in the fund. We affirm.

The four personal plaintiffs serve as directors of two organizations, the Illinois Association of School Administrators and the Illinois Principals Association, that have affiliated themselves with the University of Illinois and Illinois State University respectively. The directors hold positions on the university faculties. The universities pay their salaries and provide their fringe benefits; all these costs are reimbursed by the associations. The Board decided that Wargo, Sledge, Sullivan, and Moomey are not eligible to participate in SURS because they work fulltime for their associations and their associations determine the compensation and term for each position and control the work.

Article 15 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108 1/2, pars. 15-101 through 15-196) is the statutory source of the State Universities Retirement System. Illinois State University, a regency university, and the University of Illinois are employers as defined by article 15. (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 15-106.) The Board argues that Wargo, Sledge, Sullivan, and Moomey are not properly classifiable as employees because they devote all their time to association business rather than to teaching and other traditional faculty duties; the Board believes that its statutory powers include the authority to decide whether a person is an employee of an article 15 employer.

Section 15-107 (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 15-107) defines "employee" and says in part:

"`Employee': Any member of the educational, administrative, secretarial, clerical, mechanical, labor or other staff of an employer whose employment is permanent and continuous or who is employed at one-half time or more in a position in which services are expected to be rendered on a continuous basis for at least one school year, who (a) receives payment for the performance of personal services on a warrant issued pursuant to a payroll voucher certified by an employer and drawn by the State Comptroller upon the State Treasurer or by an employer upon trust, federal or other funds, or (b) is on a leave of absence without pay."

Section 15-107 goes on to list exceptions and qualifications to the quoted rule; none of them are relevant here.

Article 15 does not define "employment" or "personal services"; "service" is defined (Ill. Rev. Stat. 1979, ch. 108 1/2, par. 15-113), but only with reference to calculating service credits and periods of employment.

Wargo, Sledge, Sullivan, and Moomey are paid their salaries by the universities. Illinois State University pays Sullivan and Moomey from a trust fund that was established by the agreement affiliating the Illinois Principals Association with that university; the University of Illinois follows the same approach, and the money is deposited by the Illinois Association of School Administrators in an account with the university. These procedures satisfy section 15-107 on the method of paying employees. The contracts between the universities and the four association directors are renewed annually; the universities send them annual notices of their appointments to the faculties; the positions are fulltime although not permanent. This satisfies the clause in section 15-107 regarding persons "employed at one-half time or more in a position in which services are expected to be rendered on a continuous basis for at least one school year." Wargo, Sledge, Sullivan, and Moomey are therefore employees within the meaning of section 15-107.

The pension board relies on sections 15-159, 15-160, 15-163, and 15-168 (Ill. Rev. Stat. 1979, ch. 108 1/2, pars. 15-159, 15-160, 15-163, 15-168) as granting it authority to determine who is eligible to participate in SURS. Section 15-159 simply creates a board of trustees to govern the fund. Section 15-160 grants the Board "the powers and duties stated in Sections 15-161 to 15-177, inclusive, in addition to the other powers and duties herein provided." Section 15-163 says:

"To consider and pass on all applications for annuities and benefits; to authorize the granting of annuities and benefits; and to limit or suspend any payment or payments, all in accordance with this Article."

Section 15-168 says:

"To require such information as shall be necessary for the proper operation of the system from any participant, beneficiary or from any officer, department head or other person or persons in authority, as the case may be, of any employer."

These sections do not address the problem here, the Board's power to decide whether a person is an employee. Section 15-163 pertains to the calculation of benefits and the disbursement of money; Wargo, Sledge, Sullivan, and Moomey, however, seek to contribute to the fund, not withdraw from it. Section 15-168 enables the Board to obtain information on salaries and periods of employment; we do not interpret it as expanding the Board's powers and duties beyond those expressly stated elsewhere in the article. Nowhere does article 15 say that the Board may decide whether a person is an employee; the ...


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