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08/28/87 Lenden J. Donnells, v. the Woodridge Police

August 28, 1987

LENDEN J. DONNELLS, PLAINTIFF-APPELLEE

v.

THE WOODRIDGE POLICE PENSION BOARD, DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

512 N.E.2d 1082, 159 Ill. App. 3d 735, 111 Ill. Dec. 541 1987.IL.1258

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. HOPF and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendants, the Woodridge Police Pension Board and its members (board), appeal from an order of the circuit court of Du Page County, which, on administrative review, reversed the decision of the board. The trial court determined that plaintiff, Lenden Donnells, was eligible to participate in the pension system. The board contends that the court improperly relied on a liberal construction of sections 3-106 and 3-109 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1985, ch. 108 1/2, pars. 3-106, 3-109) and that the trial court's decision to reverse the board's decision was against the manifest weight of the evidence.

Donnells joined the Woodridge police force on May 1, 1968. Under the existing law at that time, Donnells was ineligible to participate in the pension fund because he was over 35 years old. In consideration for obtaining his position with the force, Donnells executed a waiver of any rights he may have had to receive a pension, but the village of Woodridge purchased an annuity policy for his benefit.

In 1976, Donnells received a letter informing him of his eligibility to participate in the pension fund provided he apply and pay back contributions in the amount of $8,088.81 prior to July 1, 1976. At the hearing before the board, Donnells claimed that the board informed him of this opportunity while he was still hospitalized due to a motorcycle accident. The board had not afforded him adequate notice to raise the money. The board concluded from the testimony at the hearings that plaintiff had been warned on at least two occasions prior to the deadline and that Donnells had executed a letter indicating that he did not wish to participate in the pension system.

Donnells remained on a medical leave of absence from June 10, 1976, the date of his accident, until February 4, 1980. In the interim, Donnells requested to return to work on "inside duty." The director denied his request in a letter dated June 28, 1977, suggesting that plaintiff "please continue to seek medical assistance and when you are totally able to perform all duties your reinstatement will be considered." In December 1977, Donnells received a letter indicating that he had become eligible for a police pension provided he could pass the physical and bring his contributions up-to-date by July 1, 1978. No response is included in the record. However, the record reveals that Donnells received notice of a physical examination scheduled for March 2, 1979, to which he replied that he would be unable to pass the examination due to his disability.

Donnells returned to work in February 1980. On March 20, 1980, plaintiff applied to the board for acceptance to participate in the pension fund. The board denied plaintiff admission on the basis of an opinion letter by the Illinois Department of Insurance which indicated that plaintiff was ineligible because he missed the application deadline of July 1, 1976. The board conducted hearings on the issue of plaintiff's eligibility.

Donnells filed an addendum to his application while the hearings were still in progress. The addendum alleged that plaintiff was entitled to entry into the pension fund as he applied within 90 days from his reinstatement in compliance with section 3-106 of the Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 3-106). During this time, he received longevity pay. The amount was based in part on the time plaintiff was on a medical leave of absence. The board's findings of fact include:

"1. LENDEN J. DONNELLS was ineligible to become a member of the Pension Fund when he was hired in 1968 because he was older than 35 years old.

2. That he executed a Waiver of Pension Fund Rights in consideration of his being hired as a police officer and that the Village of Woodridge purchased an annuity for his benefit.

3. That in 1975, a change in the Illinois Revised Statutes, Public Acts 79 -- 1165, allowed Mr. Donnells to enter the Fund if he paid the ...


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