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03/10/87 the Board of Trustees of v. John Washburn

March 10, 1987

THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE VILLAGE OF PARK FOREST, PLAINTIFF-APPELLEE

v.

JOHN WASHBURN, DIRECTOR, DEPARTMENT OF INSURANCE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

505 N.E.2d 1209, 153 Ill. App. 3d 482, 106 Ill. Dec. 418 1987.IL.273

Appeal from the Circuit Court of Cook County; the Hon. Charles Freeman, Judge, presiding.

APPELLATE Judges:

Justice Stamos delivered the opinion of the court. Hartman and Bilandic, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Plaintiff, board of trustees (board), prevailed in an action for declaratory judgment against defendant Washburn, Director of the Illinois Department of Insurance, seeking a determination that defendant did not have authority to review individual board decisions or to order the board to comply with the provisions of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 1-101 et seq.). Defendant appeals.

The instant case stems from plaintiff's refusal to award a fund beneficiary, Milan Plavic, benefits to which he alleges he was entitled, totaling $32,314.61. Plavic, a member of the Park Forest police department for almost 12 years, was first granted a disability pension on February 28, 1963. The amount of such pension was based upon one-half of the salary of his rank for the preceding 12-month period. Plavic elected to retire on December 26, 1971, at which time he was 50 years old and had accrued total service time of 20 years and 5 months. From that date until May 1980, Plavic received a retirement pension, the amount of which was based on one-half the salary of his rank for the 12-month period preceding the disability pension award. On May 1, 1980, upon Plavic's request that plaintiff review the amount of his retirement pension, such pension was increased to a sum one-half the salary of his rank for the 12-month period preceding his election to retire.

Thereafter, in September 1980, Plavic's attorney requested that plaintiff make such increased benefits retroactive to the date Plavic began his retirement. On November 13, 1980, plaintiff met to consider Plavic's request for a recalculation of his retirement benefits and for retroactive benefits. Plaintiff voted to increase Plavic's pension as of May 1980 to one-half the salary of his rank for the 12-month period preceding his election to retire but found that it had no statutory authority to make this increase in benefits retroactive to the date of Plavic's retirement. Plavic did not seek judicial review of plaintiff's decision.

On May 24, 1983, defendant conducted an examination of the Police Pension Fund of the village of Park Forest; such examination covered a five-year period ending June 30, 1982. As a result of the examination, defendant discovered that plaintiff had violated section 3 -- 132 and 3 -- 133 of the Illinois Pension Code by failing to make retroactive payment of retirement benefits to Plavic from the time he elected to retire on December 26, 1971, until the new pension was granted on May 1, 1980. Accordingly, defendant instructed plaintiff to remit to Plavic these retroactive retirement benefits in the amount of $32,314.61. Plaintiff responded that it would not award retirement benefits to Plavic because it believed it was without statutory authority to do so.

On August 9, 1984, defendant issued a notice of hearing for non-compliance due to plaintiff's failure to correct its violations. Plaintiff instituted the instant action by filing a complaint against defendant, seeking declaratory relief. Plaintiff alleged that defendant lacked statutory authority to review, reverse, modify, or challenge its administrative decision regarding Plavic's benefits. Plaintiff thereafter filed a motion for summary judgment in which it maintained that defendant lacked subject matter jurisdiction to review plaintiff's decision regarding Plavic's retirement benefits as Plavic did not seek judicial review of its decision. Defendant asserted in a cross-motion for summary judgment that he had express authority to order plaintiff to comply with provisions of the Illinois Pension Code. The circuit court thereafter entered summary judgment in favor of plaintiff, finding that defendant had no statutory authority or subject matter jurisdiction to review plaintiff's decisions.

Defendant's first contention on appeal is that the circuit court erred in granting judgment for plaintiff because defendant acted in accordance with the authority vested in him by the Illinois Pension Code in reviewing plaintiff's decision and in ordering plaintiff to comply with the provisions of the Illinois Pension Code. Plaintiff maintains in reply that defendant lacked subject matter jurisdiction to reverse plaintiff's administrative decisions.

An administrative agency has no inherent or common law powers, but is empowered to act only according to authority properly conferred upon the agency by law. (Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App. 3d 579, 315 N.E.2d 573.) Administrative actions which extend beyond the authority delegated to the agency by law are void. Waupoose v. Kusper (1972), 8 Ill. App. 3d 668, 290 N.E.2d 903.

Plaintiff maintains that the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) alone defines its powers. Section 3-148 of the Illinois Pension Code states in relevant part:

"Administrative review. The provisions of the Administrative Review Law, and all amendments and modifications thereof and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the retirement board provided for under this Article. The term "administrative decision" is as defined in ...


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