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Braun v. Retirement Board

OPINION FILED JULY 17, 1985.

WALTER BRAUN, APPELLANT,

v.

THE RETIREMENT BOARD OF THE FIREMEN'S ANNUITY & BENEFIT FUND OF CHICAGO ET AL., APPELLEES.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. James C. Murray, Judge, presiding.

JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 27, 1985.

Walter Braun, deputy fire commissioner of the city of Chicago, brought this action to determine the appropriate salary on which to base the computation of his pension contributions and benefits in the Firemen's Annuity and Benefit Fund of Chicago. Until 1972, Braun served in the Chicago fire department in ranks classified under civil service; since then, he has held a number of higher paying, unclassified positions. Rather than base the computation of Braun's pension contributions and benefits on the higher salaries attached to those positions, however, the retirement board of the fund has chosen a lower basis instead and has continued to use the salary corresponding to the highest civil service rank attained by Braun.

The retirement board denied Braun's request to have his pension contributions and benefits computed on the basis of the actual salary that he earned in those unclassified positions. That decision, made April 21, 1982, was unanimous; one member of the board was absent, and Braun, the eighth member, did not cast a vote on the matter. Braun then filed a complaint for administrative review, and he later amended that complaint by adding a second count, which sought relief for a class of similarly situated participants in the fund. The circuit court ruled in Braun's favor, holding that Braun's pension contributions and benefits were to be computed on the basis of the actual salary that he earned in the various unclassified positions. Both the retirement board and the intervenors, comprising the Chicago Firefighters Union and the four elected trustees of the fund, appealed the circuit court's decision. The appellate court reversed the circuit court and reinstated the decision of the retirement board. (125 Ill. App.3d 132.) We allowed Braun's petition for leave to appeal (94 Ill.2d R. 315(a)) and now affirm the appellate court's judgment.

Braun began his career with the Chicago fire department in May 1948. He worked continuously in ranks classified under civil service until January 1, 1972, when he was promoted to a higher ranking, unclassified position, chief of personnel, plans, and training. Since that time, he has served only in unclassified positions. As the basis for computing Braun's pension contributions and benefits, the retirement board has used the highest civil service rank that Braun attained, division fire marshal, later known as deputy district chief, rather than the various unclassified positions. That has been consistent with the board's practice since the early 1960's. From the record before us, it appears that beginning in 1976 the term "exempt" has been the formal designation for positions like the ones that Braun has occupied since 1972. The city's new personnel code, which took effect in 1976, replaced the term "civil service" with the term "career service." Also, it made all positions in the fire department above battalion chief exempt, or outside career service. Firefighters who held any of the four civil service ranks above battalion chief continued in those ranks, and their pension contributions and benefits were continued to be computed on that basis. For a person of Braun's age and years of service, the minimum annuity to which he will be entitled upon retirement will be half the average salary for the four highest consecutive years of his last 10 years of service. See Ill. Rev. Stat. 1983, ch. 108 1/2, par. 6-128.

The dispute here centers on three provisions found in the Illinois Pension Code (Ill. Rev. Stat. 1983, ch. 108 1/2, pars. 1-101 through 24-108). Article 6 of the Code (Ill. Rev. Stat. 1983, ch. 108 1/2, pars. 6-101 through 6-225) establishes and governs the Firemen's Annuity and Benefit Fund of Chicago, the pension system for eligible members of the Chicago fire department. Section 6-111 defines "salary" and, at the time of the circuit court's decision here, provided in pertinent part:

"Salary. `Salary': Annual salary of a fireman, as follows:

(a) For age and service annuity, minimum annuity and disability benefits, the actual amount of the annual salary * * *." (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 6-111.)

Section 6-163 of the Code provided:

"For age and service annuity, the minimum annuities prescribed in Sections 6-123 and 6-128 and for disability benefits, salary as defined in Section 6-111 shall be the basis of computation. For disability pension and duty disability benefit under this Article, it shall be assumed that the annual salary of a fireman is the amount set out and appropriated for the rank or grade held by him in the annual budget or appropriation of the city * * *." (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 6-163.)

Finally, at the time of the circuit court's decision, section 6-211 provided:

"When annuity or benefit not payable. No annuity, pension or other benefit shall be paid to a fireman or widow, under this Article, based upon any salary paid by virtue of a temporary appointment. All contributions, annuities and benefits shall be related to the salary which attaches to the permanent position of fireman. Any fireman temporarily serving in a position or rank other than that to which he has received permanent appointment shall be considered, while so serving, as though he were in his permanent position or rank, except that no increase in any pension, annuity or other benefit hereunder shall accrue to him by virtue of any service performed by him subsequent to attaining the compulsory retirement age provided by law or ordinance. This section shall not apply to any person certified to the fire department by the civil service commission of the city, during the period of probationary service." Ill. Rev. Stat. 1981, ch. 108 1/2, par. 6-211.

Significantly, sections 6-211 and 6-111 were amended after the circuit judge rendered his decision here and while the case was pending in the appellate court. Public Act 83-16, effective July 7, 1983, added a paragraph to section 6-211; it provided:

"A fireman who holds a position at the will of the Fire Commissioner or other appointing authority, whether or not such position is an `exempt' position, shall be deemed to hold a temporary position, and such employee's contributions and benefits shall be based upon the employee's permanent career service salary. The provisions of this paragraph ...


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