APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
533 N.E.2d 927, 178 Ill. App. 3d 769, 127 Ill. Dec. 845 1989.IL.3
Appeal from the Circuit Court of Cook County; the Hon. Sophia H. Hall, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. MANNING, P.J., and QUINLAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
This is an appeal from an order granting summary judgment in favor of defendant, the Morton Grove Police Pension Board. Plaintiff raises the following issues on appeal: (1) whether the Pension Board lacks jurisdiction to conduct the proposed administrative rehearing; and (2) whether the Pension Board is estopped from conducting an administrative rehearing regarding pension benefits awarded 2 1/2 years prior to the scheduled rehearing. We reverse.
Plaintiff, Gerald Rossler, was deputy chief of police for the Morton Grove police department prior to his retirement on January 14, 1985. Between January 1965 and January 1985, he contributed biweekly to the police pension fund, which was managed by the Morton Grove Police Pension Board (the Pension Board or Board) pursuant to the Illinois Pension Code (Code) (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 3-101 et seq.).
In February 1984, Rossler sought a five-month leave of absence from the police department in order to act as a security consultant for the 1984 Olympic Games in Los Angeles. Copies of his request for leave of absence were sent to the Pension Board, the Morton Grove village attorney, the chief of police for Morton Grove, a trustee of the Police and Fire Commission and the mayor of Morton Grove.
It was agreed between the chief of police and Rossler that sick days, vacation days and personal days would be applied toward Rossler's creditable service time for pension purposes. The Pension Board approved the requested leave of absence on February 23, 1984, and agreed that the leave would be counted as creditable time toward Rossler's pension provided that he maintain his contributions during the leave of absence. Approval under the same conditions also was granted by the president of the Pension Board and the chairman of the Morton Grove Fire and Police Commission. The village administrator similarly approved and notified the president of the Pension Board that the Village would accept Rossler's biweekly contributions to the pension fund in his absence.
Having received the approval and authorizations of the above-named entities, Rossler took the leave of absence beginning March 5, 1984. On October 29, 1984, he returned to the payroll of the Morton Grove Police Department. On December 8, 1984, Rossler was notified that he had accumulated 20 years and 7 days of creditable service toward retirement. He subsequently wrote to the Pension Board stating his intention to retire from the police force on January 11, 1985, and applied for a pension. In response, the village finance director-treasurer wrote a letter to the Pension Board stating that Rossler had made all required contributions to the fund.
Rossler's request for a pension was granted unanimously by the Pension Board and on July 16, 1985, the Board notified Rossler that his pension of $19,256.95 per year was to commence on his fiftieth birthday.
In about August 1986, 1 1/2 years after the Board had notified Rossler that he would receive his pension, the Board notified him that the Illinois Department of Insurance had determined that the amount had been inaccurately computed as there was a five-month error in the creditable service time. Despite this determination by the Department of Insurance, the village attorney, acting as the attorney for the Board, notified the Board that Rossler was entitled to a pension based on 20 years of service and that the Board lacked jurisdiction to modify its decision because it had failed to file an action to review its decision within 35 days, as required by the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.).
In June 1987, more than 2 1/2 years after granting the pension, the Board notified Rossler that it had scheduled an administrative rehearing to hear evidence concerning modification of his pension. Rossler filed a motion for a preliminary injunction to enjoin the Pension Board's scheduled rehearing. Both parties filed cross-motions for summary judgment, and the trial court granted the Board's motion, finding that the Board had inherent authority under section 3-144.2 of the Pension Code (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 3-144.2) to conduct a rehearing. That motion was stayed pending the outcome of this appeal.
The first question we address is whether the Board has jurisdiction to conduct a rehearing concerning modification of Rossler's pension benefits some 2 1/2 years after the initial decision was made to grant the pension. The position of the Board is that it has either express authority, under the Pension Code (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 3-101 et seq.), or implied authority under Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill. App. 3d 341, 365 N.E.2d 667, appeal denied (1977), 66 Ill. 2d 631, to hold a rehearing to determine the extent of Rossler's entitlement to pension benefits. The Board cites section 3-135 of the Pension Code (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 3-135), which grants the Board power to control, manage and invest funds, and Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 323 N.E.2d 84, aff'd in part & rev'd in part (1976), 62 Ill. 2d 494, in which the court held that the grant of ...