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11/30/94 ROBIN TRETTENERO v. POLICE PENSION FUND

November 30, 1994

ROBIN TRETTENERO, PLAINTIFF-APPELLANT,
v.
THE POLICE PENSION FUND OF THE CITY OF AURORA AND ITS BOARD OF TRUSTEES: KAREN SUCH, EARL PAUL SR., CHARLES LAWRENCE, WILLIAM WEIGEL, DAVID H. HIPP, AND RAUL MENENDEZ, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. No. 93-MR-0126. Honorable R. Peter Grometer, Judge, Presiding.

Justice Bowman delivered the opinion of the court: Geiger and Doyle, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Robin Trettenero, appeals an order affirming the decision of the Board of Trustees of the Police Pension Fund of Aurora denying her a line-of-duty disability pension and granting her a nonduty disability pension. We affirm in part and reverse in part.

Plaintiff makes two contentions on appeal. She first argues the trial court's decision to grant a motion to dismiss as defendants the individual trustees of the board of trustees of the police pension fund of Aurora (the Board) was erroneous. Second, she argues the Board's decision to deny her a line-of-duty pension and instead award her a nonduty pension was against the manifest weight of the evidence. Although we find erroneous the trial court's decision to dismiss as defendants the individual members of the Board, we affirm the Board's decision to award plaintiff a nonduty pension and to deny her a line-of-duty pension.

The following brief summary of the facts is taken from the record. Plaintiff joined the Aurora police department in 1985. She served without incident until 1989 when, by her account, she observed instances of abusive behavior by police officers toward prisoners in lockup. She reported these alleged abuses to a superior but no action was taken. In April 1990, she witnessed a violent assault by an officer on a prisoner in his cell. Plaintiff was disciplined for failing to make a written report of this incident to the chief of police and the news media depicted her as a "passive participant" in the beating. Following the incident, the prisoner sued the plaintiff, the other officer involved, and the City of Aurora. The other officer was ultimately convicted of battery and discharged from the police force. In the months following the beating, plaintiff increasingly experienced stress, depression, and anxiety which caused her job performance to suffer. In December 1991, she filed an application to the Board seeking a line-of-duty pension or, in the alternative, a nonduty pension. After a hearing, her application was granted as to the nondutypension and denied as to the line-of-duty pension. Plaintiff filed a complaint for administrative review, and the circuit court affirmed the Board's decision. This appeal ensued.

Plaintiff's first contention is that section 3-107(a) of the Administrative Review Law (735 ILCS 5/3-107(a) (West 1992)) clearly mandates that her complaint for administrative review name as defendants each member of the Board. At the time her complaint was filed and ruled upon, section 3-107(a) read as follows:

"Except as provided in subsection (b) [not applicable here], in any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants." 735 ILCS 5/3-107(a) (West 1992).

Plaintiff maintains that, based on the clear language of this section, she was required to name as defendants each of the Board's individual trustees because they were parties of record in the administrative proceeding. Defendant does not dispute that the trustees were parties to the administrative proceeding. Instead, it argues that under the Illinois Pension Code, the decision appealed from was an action of the Board, which is a distinct statutory entity, and not that of its individual members. Accordingly, defendant argues the Board should be the only named defendant.

In Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 140 Ill. Dec. 394, 549 N.E.2d 1266, our supreme court considered and rejected a similar argument. In Lockett, the Chicago police board, acting on a charge filed by the police superintendent, discharged a police officer for disciplinary violations. The officer filed a complaint for administrative review naming the police board and each of its individual members as defendants. He did not name the superintendent as a defendant. ( Lockett, 133 Ill. 2d at 351.) The police board filed a motion to dismiss based on the officer's failure to name the superintendent, who, along with each of the police board members, was a party to the administrative proceeding. The appellate court in Lockett held that since the decision being reviewed was that of the police board and not that of the superintendent, and their interests in the matter were identical, there was no need to name the superintendent as a defendant. Lockett, 133 Ill. 2d at 353.

The supreme court disagreed, holding that the clear, unambiguous language of the statute requires all parties of record in the administrative proceeding to be named as defendants. ( Lockett, 133 Ill. 2d at 354.) The court quoted the applicable statutory language: "the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants." (735 ILCS 5/3-107(a) (West 1992); Lockett, 133 Ill. 2d at 354.) This requirement "is mandatory and specific, and admits of no modification." Lockett, 133 Ill. 2d at 354.

There is no question that the individual trustees of the Board were parties of record in the administrative proceedings in the present case. The report of proceedings from the Board's hearing on plaintiff's pension application lists each trustee as a party of record, and each trustee signed the written decision adjudicating plaintiff's pension claim. Applying the plain meaning of section 3-107(a), we find that the trial court's decision to dismiss the individual trustees is in conflict with the statute as interpreted in Lockett and must be reversed.

Plaintiff's second contention is that the Board's decision to grant her a nonduty instead of a line-of-duty pension is against the manifest weight of the evidence. Article 3, section 3-114.1, of the Illinois Pension Code, which applies to municipalities having 500,000 or fewer inhabitants, states the requirements for a line-of-duty pension:

"Disability pension--Line of duty. If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension of 65% of the salary attached to the rank on the police force held by the officer at the date of suspension of duty or retirement. A police officer shall be considered "on duty", while on any assignment approved by the ...


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