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Swibaker v. Bd of Tr. Fire. Pension Fund

OPINION FILED JANUARY 21, 1986.

DONALD SWIBAKER, PLAINTIFF-APPELLEE,

v.

BOARD OF TRUSTEES FIREMEN'S PENSION FUND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McLean County; the Hon. James A. Knecht, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The question presented by this case is whether a firefighter who is receiving a disability pension at the effective date of a statutory amendment providing that the amount of a firefighter's retirement pension converted from a disability pension is to be based on the salary attached to the firefighter's last position as of the date of the conversion, is entitled to convert his disability pension into a retirement pension calculated on the basis of the amendment.

The facts are simple and undisputed. In 1972, plaintiff Donald Swibaker (Swibaker) began receiving disability benefits after 22 years in active service as a firefighter. At that time, he was 50 years old and held the rank of captain.

On March 2, 1984, Swibaker filed a complaint for declaratory judgment against the defendant Board of Trustees of the Firemen's Pension Fund (Board), requesting a finding that he is entitled to a retirement pension based on the salary attached to the rank of captain as of the date of his retirement. In an order entered November 11, 1984, the circuit court found that (1) Swibaker was not permanently retired from the fire department as of January 1, 1982; (2) Swibaker was in service as a fire department employee on January 1, 1982; and (3) Swibaker is entitled to a retirement pension based on the salary attached to his rank at the time he elects to permanently retire. The Board appeals this order.

At the time that Swibaker began receiving his disability pension, the relevant statute provided:

"A fireman who completes 20 years of service and is age 50 or more, and who is on the disability pension roll under the foregoing sections, may, at his option, by written application to the Board, continue to receive, in lieu of any amounts which otherwise would be payable to him under Section 4-109 of this Article, a retirement pension for the remainder of his life, of 1/2 of his monthly salary at the date of his retirement on disability. A fireman electing to exercise such option shall be entitled as creditable service, in addition to the periods included in computing a fireman's service under such Section 4-109 for the time he was on disability. The exercise of such option shall render the fireman ineligible thereafter to receive any additional pension payments under any other provisions of this Article." (Ill. Rev. Stat. 1971, ch. 108 1/2, par. 4-113.)

This same provision was subsequently amended to read:

"A fireman who is on the disability pension rolls who has accumulated enough creditable service as defined in Section 4-108 to qualify for a service retirement pension and is age 50 or more may elect to permanently retire from the fire service at any time by submitting written application to the Board. The salary computation of such pension shall be based on the salary attached to the rank he held in the fire service at the date of his election to retire. All other conditions for pension computations shall be based upon the conditions of Section 4-109 of this Act which were applicable to the fireman while he was in service as an employee. A fireman electing to exercise such option shall be entitled to automatic increase benefits as provided in subdivision (a) of Section 4-109.1." (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-113(b) (effective January 1, 1982).)

Presently, this provision provides:

"A firefighter who is receiving a disability pension under this Article who has sufficient creditable service to qualify for a retirement pension and is age 50 or more may elect to permanently retire from the fire service at any time by submitting written application to the board. The salary to be used in the determination of such firefighter's pension shall be based on the salary attached to the rank held by the firefighter in the fire service at the date of the election to retire. All other conditions in the computation of the pension shall be based upon the provisions of Section 4-109 which were applicable to the firefighter while he or she was in active service as an employee. A firefighter electing to exercise such option shall be entitled to the automatic increase in pension provided under subsection (a) of Section 4-109.1." Ill. Rev. Stat., 1984 Supp., ch. 108 1/2, par. 4-113(b) (effective January 1, 1985).

• 1 The Board first contends that the 1982 and 1985 amended versions of section 4-113(b) of the Illinois Pension Code (Code) are inapplicable to Swibaker, and that the circuit court's order is thus erroneous, because of section 1-103.1 of the Code, which provides:

"Amendments to this Code which have been or may be enacted shall be applicable only to persons who, on or after the effective date thereof, are in service as an employee under the retirement system or pension fund covered by this Article which is amended, unless the amendatory Act specifies otherwise." (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 1-103.1.)

The Board asserts that Swibaker was not an in-service employee at the time of the 1982 and 1985 amendments to section 113-4 of the Code, and also asserts that those sections, as amended, do not specify that they are applicable to persons not in service at the time of the amendments thereto.

The Board's contention that Swibaker was not an in-service employee at the time of the 1982 and 1985 amendments to section 4-113 overlooks the language of the 1985 ...


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