Appeal from the Circuit Court of Cook County; the Hon. James
L. Murray, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
The plaintiff, James R. Taylor, sought administrative review of defendant's initial determination to exclude him from the police pension fund and from its subsequent action of placing conditions on his continued membership in that fund. After a hearing, the trial court affirmed the decision to place conditions on plaintiff's continued membership in the fund. Plaintiff appeals, contending that he, as police chief, is not a part-time policeman as matter of law for police pension fund purposes even though he is also a public safety officer and the fire chief of Hoffman Estates.
Plaintiff filed his complaint for administrative review on August 10, 1982. That complaint alleged that plaintiff was the duly appointed police chief of the village of Hoffman Estates on August 18, 1980, and was also the duly appointed fire chief of that village on March 19, 1981; that plaintiff was accepted as a participant in the police pension fund in 1981; that plaintiff was terminated from that fund at a meeting of the board of trustees of the Hoffman Estates police pension fund on April 13, 1982, for the reason he also held the position of fire chief, and therefore was a part-time policeman; that on April 23, 1982, plaintiff requested a rehearing by defendant of the decision to terminate his membership; that on July 13, 1982, defendant granted a rehearing and advised plaintiff that he would be readmitted into the police pension fund if he resigned as fire chief or if he signed a waiver of claim to the police pension fund in the event he was injured or killed while performing duties as the fire chief; and that the decision of defendant to interpret the term "policeman" in an exclusive manner was erroneous. The complaint then requested that the court order defendant to readmit plaintiff to the police pension fund without any conditions. Attached to the complaint were minutes from the pension board meeting of July 13, 1982. Those minutes indicated that Mr. Manning, one of the trustees, made a motion to reaccept plaintiff into the police pension fund under the condition that the pension board receive from plaintiff a waiver of liability stating that if plaintiff was injured or killed acting as the fire chief, a police pension would not be granted to him. The minutes further indicate that the motion carried.
A memorandum of law filed by plaintiff in support of his complaint further alleged that he was accepted into the police pension fund prior to his appointment as fire chief; that, when he was appointed fire chief, no change in his salary was authorized for this additional appointment; and that subsequently he chose to remain in the police pension fund.
After a hearing on plaintiff's complaint on April 20, 1983, the trial court held that plaintiff's complaint for review of the order of April 13, 1982, was not timely filed. However, the court also held that the complaint was timely filed as to defendant's action of July 13, 1982, and that the action of the pension board on that date would be affirmed.
As stated above, plaintiff contends that he, as police chief, is not a part-time policeman as a matter of law for police pension fund purposes even though he simultaneously held the positions of public safety director and fire chief. He further maintains that his constitutional contractual rights to the pension fund have been impaired by defendant's actions.
Article XIII, section 5, of the Illinois Constitution of 1970 states:
"Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired."
Section 3-106 of the Illinois Pension Code defines a policeman as:
"Policeman, policemen, or member of the police force. * * * Any person who: (a) is heretofore or hereafter appointed to the police force of a police department and sworn and commissioned to perform police duties; and (b) is found upon examination of a duly licensed physician or physicians selected by the Board to be physically and mentally fit to perform the duties of a policeman; and (c) within 3 months after receiving his first appointment, and if reappointed, within 3 months thereafter, makes written application to the Board to come under the provision of this Article.
The `application within 3 months' requirement imposed by the first paragraph of this Section does not preclude the participation of any policeman who would have been ineligible to participate at the end of his 3 month period by reason of his age at that time if he elects to participate as provided in Section 3-109.
Policemen serving initial probationary periods, if otherwise eligible, shall be policemen within the meaning of this Section." Ill. Rev. Stat. 1983, ch. 108 1/2, par. 3-106.
Section 3-109 of the same statute defines persons excluded as:
"This Article shall not apply to the following persons: (a) Part-time policemen, special policemen, night watchmen, temporary employees, traffic guards or so-called auxiliary policemen specially appointed to aid or direct traffic at or near schools or public functions, or to aid in civil defense, municipal parking lot attendants, clerks or other civilian employees of a police department who perform clerical duties exclusively. (b) Any policeman who fails ...