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Braun v. Retirement Board

OPINION FILED JUNE 15, 1984.

WALTER BRAUN, PLAINTIFF-APPELLEE,

v.

RETIREMENT BOARD OF THE FIREMEN'S ANNUITY & BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLANT (THE CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2, ET AL., INTERVENORS-APPELLANTS).



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff sought administrative review of a decision rendered by the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (Retirement Board) which denied his request to have his pension benefits computed on his actual exempt rank *fn1 salary as deputy fire commissioner of the Chicago fire department rather than on the salary appropriated to the highest civil or career service *fn2 rank he had attained. The trial court reversed the Retirement Board's decision and stayed enforcement of the order pending a determination on appeal.

The Retirement Board, the Chicago Fire Fighters Union, Local No. 2, International Association of Fire Fighters, AFL-CIO (the Union), and four elected trustees of the Retirement Board appeal the trial court's decision, contending that pursuant to article 6 of the Illinois Pension Code (the Pension Code) (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 6-101 et seq.), the basis for computation of plaintiff's pension benefits is the current annual salary appropriated to the highest career service rank he had held prior to his exempt appointment. In his cross-appeal, plaintiff asserts that the appeal should be dismissed on the ground that neither defendant Retirement Board nor intervenors has standing to sue. For the reasons stated below, we find that the intervenor appellants have standing to sue, and we reverse the judgment of the circuit court.

Pertinent to this appeal are the following:

Plaintiff was hired by the Chicago fire department as a firefighter, a career service position, on May 10, 1948, and remained in the career service ranks in various capacities until January 1, 1972, at which time he was promoted to his first exempt rank position, chief of personnel, plans and training. From January 1, 1972, to the present, he has continued to serve in various exempt rank positions, the last of which as deputy fire commissioner.

While working within the career service ranks, plaintiff's pension contributions and deductions were computed on his actual annual salary, and increased proportionately with his salary, but when he was promoted above the highest career service rank to the exempt ranks, his pension deductions were not increased concomitantly with his salary. *fn3 Instead, they continued to be computed upon the salary appropriated to his highest career service rank. As a result of this practice, on September 20, 1977, while serving as chief of personnel, plaintiff sent a demand letter to the Retirement Board requesting that all future pension deductions be based on his actual salary rather than on his highest career service salary. In addition, he requested a statement from the Retirement Board as to the amount of money he owed to the retirement fund so as to bring his contributions current with the higher computation base. When he received no response, plaintiff sent a follow-up letter to the Retirement Board on December 5, 1977, stating that if no action were taken on his request by January 1, 1978, plaintiff would demand a formal hearing. When the Retirement Board failed to reply by August 11, 1978, plaintiff issued a formal demand for a hearing, followed by a second formal demand on December 19, 1978, and a third on April 25, 1979. Finally, after filing a suit seeking a writ of mandamus demanding that he be given a formal hearing, plaintiff was granted a hearing before the Retirement Board in February and April 1982.

At the February hearing, plaintiff characterized his current position of deputy fire commissioner as "permanent exempt" and argued that because it is a permanent, not a temporary position, he is entitled to have pension deductions computed on his actual salary. The Corporation Counsel of Chicago (Corporation Counsel), acting as the Retirement Board's legal representative, concurred with plaintiff and relied on Quinn v. Retirement Board (1972), 7 Ill. App.3d 791, 289 N.E.2d 117 (Quinn), as dispositive of the issue in plaintiff's favor. *fn4

At the April hearing, the union was present for the first time and argued extensively against plaintiff's position, claiming that plaintiff's current exempt position is not permanent, thus, his pension is properly computed on the salary appropriated to the highest permanent career service rank he has held. As support for its argument that the designation "permanent" applies only to career service positions and the exempt position of fire commissioner, the Union relied on section 6-163 and 6-211 of the Illinois Pension Code and their interrelationship with the 1981 Municipal Code of Chicago (Municipal Code) and the 1977 and 1982 Revised Chicago Personnel Rules (Personnel Rules). In response, plaintiff reiterated his reliance on Quinn and urged the trial court to adopt the opinion of the Corporation Counsel expressed at the February hearing.

When the Retirement Board denied his request, plaintiff filed a complaint for administrative review in the circuit court, alleging, inter alia, that the Retirement Board's decision was erroneous and illegal in law and in fact and against the manifest weight of the evidence. Subsequently, the trial court granted the motion to intervene filed by the Union and certain individual pension trustees and granted plaintiff leave to file a two-count amended complaint wherein plaintiff sought, individually and on behalf of all annuitants of the Firemen's Annuity and Benefit Fund of Chicago similarly situated, administrative review of the Retirement Board's decision (count I); and class certification and injunctive relief (count II). Count II was subsequently severed and continued until such time as a decision was rendered on count I.

Following extensive arguments by plaintiff and intervenors, the trial court found Quinn dispositive of the issue, reversed the Retirement Board's decision, and ordered the defendant Retirement Board to compute plaintiff's pension and the pensions of others similarly situated on the basis of their actual exempt salaries. The court also stayed enforcement of the order pending appeal.

OPINION

• 1 We first address plaintiff's contention on cross-appeal that appellants lacked standing to prosecute this appeal. Specifically, plaintiff contends that: (1) the Retirement Board and its individual members are exceeding their statutory authority by prosecuting this appeal; and (2) the city of Chicago, represented by the Corporation Counsel, is the only party with standing to appeal and it has not elected to do so. We disagree and find Quinn dispositive of this issue.

In Quinn, plaintiff, the fire commissioner of the Chicago fire department, filed a complaint for administrative review of the Retirement Board's denial of his request that his pension benefits be computed on his actual exempt rank salary. At trial, the Corporation Counsel, acting as legal representative of the Retirement Board, urged the circuit court to reverse the Retirement Board's decision, which the court ultimately did. Subsequently, the individual members of the Retirement Board who had voted against plaintiff's request *fn5 retained private counsel and appealed the circuit court's decision. Plaintiff and the Corporation Counsel each filed motions to dismiss the appeal on the ground that appellants lacked standing to sue. Recognizing that the individual Retirement Board members who had voted against plaintiff's request had a special interest which was directly and materially affected by the circuit court's decision and that the ends of justice would not be served by foreclosing their opportunity to obtain a review of that decision, the Quinn court denied the motions to dismiss.

Similarly, in the present case, the Corporation Counsel, acting as the Retirement Board's legal representative, adopted plaintiff's adversarial position at both the hearing and at trial, leaving the Retirement Board no alternative but to retain private counsel in order to protect its interests. Contrary to plaintiff's contention, this action by the Retirement Board is statutorily authorized (Ill. Rev. Stat. 1983, ch. 108 1/2, par 6-190) and is further justified by the Retirement Board's need to protect its fiduciary obligations as administrator of the retirement fund. (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 6-174.) With respect to the Union, we find that their right to appeal arises directly from ...


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