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Rhoads v. Board of Trustees of the City of Calumet City Policemen's Pension Fund

May 20, 2004

[5] STEVEN A. RHOADS, PLAINTIFF-APPELLEE,
v.
THE BOARD OF TRUSTEES OF THE CITY OF CALUMET CITY POLICEMEN'S PENSION FUND, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. No. 02 CH 7479 Honorable Nancy J. Arnold, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Theis

[8]  Defendant Board of Trustees of the City of Calumet City Policemen's Pension Fund (the Board) appeals from an order of the circuit court which, on administrative review, reversed the Board's decision to revoke plaintiff Steven A. Rhoads' not-on-duty disability pension. On appeal, the Board argues that (1) the trial court lacked jurisdiction to review Rhoads' complaint when Rhoads failed to name parties of record as defendants under section 3-107(a) of the Administrative Review Law (735 ILCS 5/3-107(a) (West 2000)); and (2) the trial court erred in finding that Rhoads was entitled to a disability pension because his former position of chief of police was not available despite the fact that Rhoads was discharged from that position. For the following reasons, we reverse the decision of the circuit court and affirm the Board's ruling.

[9]  Rhoads received his appointment as chief of police of the City of Calumet City on May 24, 1988. On May 11, 1993, Rhoads submitted his application for a line-of-duty disability pension. On May 13, 1993, Rhoads was terminated from his position as police chief when a new mayor was elected. He did not contest his discharge. The City of Calumet City Police Pension Board denied his application for a line-of-duty disability pension, but granted Rhoads a not-on-duty disability pension under section 3-114.2 of the Illinois Pension Code (the Code) (40 ILCS 5/3-114.2 (West 1994)) on January 31, 1995, as a result of an injury to his left knee. Rhoads then filed a complaint for administrative review, and the circuit court reversed the Board's decision and granted Rhoads a line-of-duty disability pension. The Board appealed to this court, which reversed the decision of the circuit court and found that the Board's decision to grant Rhoads a not-on-duty pension was not against the manifest weight of the evidence. Rhoads v. Board of Trustees of the City of Calumet City Policemen's Pension Fund, 293 Ill. App. 3d 1070, 689 N.E.2d 266 (1997).

[10]   In 2001, the Board held administrative hearings under section 3-116 of the Code (40 ILCS 5/3-116 (West 2000)) to determine whether Rhoads continued to be disabled and, thus, could continue to receive a not-on-duty disability pension; or whether Rhoads had recovered sufficiently and was able to resume the duties of his position, necessitating the termination of his disability pension. Richard Cyr testified that the Board's attorney hired him as a private investigator to take video surveillance of Rhoads working as a rodeo clown in 1998. He stated that he videotaped Rhoads on five different occasions for a total of five hours. Cyr testified that he did not edit the film, but only taped portions of each rodeo when Rhoads was performing. He did not see any chiropractors at the rodeos and stated that Rhoads did not limp or have a problem climbing in and out of the barrel. Cyr identified Exhibit H as the videotape he took at the Danville rodeo on July 18, 1998, which was then offered into evidence and viewed by the Board.

[11]   Ray Cox testified for Rhoads that he owns a rodeo school. He stated that he hired Rhoads as a comic clown or a funny man, but testified that Rhoads could not be a bull fighter clown because he had bad knees. He did not have chiropractors at his rodeos. Rhoads worked for Cox approximately 25 to 28 times between 1998 and 2001. Cox saw Rhoads limp before and after performances and observed Rhoads ice his knees when they were swollen. The July 18, 1998 rodeo was not one of Cox's rodeos. Georgia Knotts testified for Rhoads that she was a nurse who provided ice to performers at rodeos. She saw Rhoads perform at a rodeo in 1998 and gave him ice for his knees, but never saw a chiropractor work on him. She stated that Rhoads did not perform during the entire rodeo and placed ice on his knees between performances. Knotts also observed him with a limp and stated that he wore braces on his knees during performances.

[12]   George Vallis, chief of police of the City of Calumet City police department, testified that he held that position since May 1995. In July or August of 2001, Vallis told Rhoads that there were no full-time or permanent light-duty positions available in the police department. He stated that the chief of police serves at the pleasure of the mayor and could be fired at any time. His position, for the most part, was executive, managerial and administrative. Vallis testified that the mission statement of the department stated that he must be able to perform the duties of a patrol officer. Vallis testified that Rhoads could not return as chief of police.

[13]   Rhoads testified that he started "Christian clowning" in 1989 and began working as a comedy clown in rodeos in 1993. He stated that his knees tightened up and he was in pain and used chiropractors when they were available at rodeos. He also iced his knees on a regular basis. In 1998, Rhoads was involved in between 20 and 25 rodeos. At the rodeos, he interacts with children, does Gospel magic tricks and entertains the crowd. He stated that he performed in fewer rodeos in 1999, 2000 and 2001 because he did not have the physical capacity to do that many shows. Rhoads stated that he could do light-duty work at the police department, but could not respond as a police officer because of his physical limitations. He stated he can no longer perform at rodeos as he did in the videotape due to his knee and back problems, but he admitted that he was on the videotapes.

[14]   Dr. William Malik's report dated June 22, 1999, was admitted into evidence. In that report, Dr. Malik indicated that he evaluated Rhoads that day and found him to have chondromalacia of the left knee and degenerative disease in his back. Based on Rhoads' knee and back problems, he would be disabled from full-duty employment as a police officer. In a letter dated March 6, 2000, Dr. Malik amended his prior report and stated that Rhoads could return to full-duty employment as a supervising law enforcement officer, which would consist of medium workload activities. Rhoads could lift up to 50 pounds and could perform frequent lifting and carrying of up to 25 pounds. In his report dated March 29, 2001, Dr. Robert Miller diagnosed Rhoads with chondromalacia of the left knee and stated that he was disabled with respect to that knee. He stated that his disability was relative and prevented him from performing the duties of an ordinary police officer, but was not so severe as to preclude him from working in an administrative position in a police department or prevent him from functioning "perfectly well administratively as a police chief."

[15]   In its decision dated March 12, 2002, the Board made the following factual findings. By ordinance, the chief of police of the City of Calumet City is appointed and can be removed by the mayor. In 1998, an investigative firm took video surveillance of Rhoads performing as a rodeo clown on five different occasions in order to ascertain whether his employment and physical activities since receiving his disability pension were inconsistent with his receipt of the pension. The Board found Cyr's testimony relevant, probative and credible and determined that the video showed Rhoads running, jumping, climbing fences, dancing, running from bulls, leaping on top of and off a barrel, climbing into a barrel, carrying the barrel and being rammed by a bull while crouched inside the barrel. Rhoads did not dispute that he performed these activities and the Board found that these activities were "totally contradictory" to Rhoads' claim of continuing disability to his left knee and his claim that he was presently disabled from performing the duties and functions of chief of police. Dr. Malik's report indicated that Rhoads would be disabled from full-duty employment as a police officer, but Rhoads could return to full-duty employment as a supervisory law enforcement officer. Dr. Miller stated that Rhoads could function perfectly well administratively as a police chief. Rhoads did not introduce any current medical reports that would indicate he was still disabled and unable to perform the duties of the City of Calumet City police chief.

[16]   Cox testified that putting a clown in a barrel with a charging bull was a dangerous stunt and that the barrels weighed between 90 and 120 pounds. While Cox testified that Rhoads "gets into a barrel like an old man," the Board stated that it observed Rhoads jumping in and on top of these barrels as well as carrying these barrels with no apparent difficulty. The Board found that the videotape was not altered or edited and accurately portrayed Rhoads performing various rodeo activities. The Board was not persuaded by Rhoads' testimony and found his demeanor to be "unpersuasive, uncorroborated and not credible in light of the videotapes." The Board additionally found that the video "clearly demonstrate[d]" that Rhoads was not disabled from performing his duties as chief of police.

[17]   The Board concluded that the doctors who examined Rhoads indicated that he was physically able to perform the police duties that he previously performed which were administrative in nature and Rhoads offered no competent medical evidence to contradict these reports. The Board also found that "[w]hat position the City of Calumet City has for Steven A. Rhoads is not relevant to whether or not he is disabled." The Board terminated Rhoads' not-on-duty disability pension and ordered a certificate to issue stating that Rhoads was no longer disabled and was able to resume the duties of his position.

[18]   Rhoads filed a complaint for administrative review in the circuit court, naming as defendants the Board, the City of Calumet City and Vallis. Rhoads argued that the Board's decision was against the manifest weight of the evidence and that he should have been offered a light-duty position when the Board determined that he was fit for such work. All parties then filed motions to dismiss. The participants and beneficiaries of the pension fund also filed a motion to dismiss, which the Board adopted, contending that Rhoads failed to name them as defendants in the administrative review action and thus, pursuant to section 3-107(a) of the Administrative Review Law, Rhoads' complaint had to be dismissed. On October 31, 2002, the trial court dismissed the City of Calumet City and Vallis, but found that the participants and beneficiaries had no standing to bring a motion to dismiss and struck their motion. The court then denied the Board's motion to dismiss for failure to name the participants and beneficiaries of the pension fund.

[19]   Following a hearing, the court found that the Board's factual findings were explicit, appropriately related to Rhoads and adequately supported by the evidence and rejected Rhoads' argument that the decision terminating Rhoads' not-on-duty disability pension was against the manifest weight of the evidence. However, the trial court reversed the Board, finding that Rhoads should continue to receive a disability pension because his previous position of police chief had not been made available to him, despite the fact that he had been discharged from that position. The Board then filed this timely appeal.

[20]   The Board first argues that the trial court erred in denying its motion to dismiss Rhoads' complaint. It contends that the court lacked jurisdiction over the complaint when Rhoads failed to name the participants and beneficiaries of the pension fund as defendants under section 3-107(a). The Board cites several instances in the record where it indicated that Richard Puchalski was appointed special counsel to represent the interests of the participants and beneficiaries of the pension fund and, thus, argues ...


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