Although firefighters’ widows were entitled to pension increases based on current firefighters’ salary increases, they were not statutorily entitled to increases based on “duty availability pay” which came into existence after their husbands’ career-ending accidents.
Rehearing denied January 27, 2014
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Sebastian T. Patti, Judge, presiding.
Mary Patricia Burns, Edward J. Burke, Vincent D. Pinelli and Madeleine S. Podesta, of Burke Burns & Pinelli, Ltd., of Chicago, for appellant.
Martin O. Holland, of Evergreen Park, for appellees.
Chief Justice Garman and Justices Freeman, Thomas, and Karmeier concurred in the judgment and opinion. Justice Theis dissented, with opinion, joined by Justice Kilbride.
GARMAN CHIEF JUSTICE
¶ 1 Section 6-140(a) of the Illinois Pension Code (40 ILCS 5/6-140 (West 2008)) defines the terms of the annuity available to a widow of a fireman whose death was the result of a performance of an act of duty. The primary issue presented in this case is whether a form of fireman's compensation known as "duty availability pay" must be included in the calculation of that annuity, even if the fireman never received such compensation while working as a firefighter. The appellate court concluded that it must. 2012 IL App (1st) 111625. For the reasons that follow, we reverse.
¶ 2 Background
¶ 3 Plaintiffs Elaine Hooker and June Murphy were married to Chicago firefighters. Elaine's husband, Michael Hooker, joined the Chicago fire department in 1967. He suffered a duty-related injury and was awarded a duty disability benefit in 1989. Michael died in 2000. June's husband, James Murphy, joined the Chicago fire department in 1966. He also suffered a duty-related injury and was awarded a duty disability benefit in 1985. James died in 1998.
¶ 4 Following the deaths of their husbands, plaintiffs were both granted an ordinary widow's pension by the defendant, the Retirement Board of the Firemen's Annuity and Retirement Benefit Fund of Chicago (Board), pursuant to section 6-141.1 of the Pension Code (40 ILCS 5/6-141.1 (West 2008)). In February of 2003, plaintiffs filed a complaint for administrative review of that decision in the circuit court of Cook County.
¶ 5 In their complaint, plaintiffs alleged that they were entitled, under section 6-140(a) of the Pension Code (40 ILCS 5/6-140(a) (West 2008)), to the annuity which is awarded to the widow of a fireman who died in the line of duty. Relying on Bertucci v. Retirement Board of the Firemen's Annuity & Benefit Fund, 351 Ill.App.3d 368 (2004), the circuit court entered an agreed order that plaintiffs were entitled to the section 6-140(a) annuity because their husbands' duty-related injuries were permanent and had prevented them from ever returning to active duty. The cause was then remanded to the Board for a calculation of benefits due to plaintiffs. The Board awarded plaintiffs section 6-140(a) benefits retroactive to the date of the Bertucci decision.
¶ 6 In September of 2006, the circuit court granted plaintiffs leave to file a three-count, first amended complaint. Count I of the complaint sought administrative review of the Board's decision on remand and alleged that plaintiffs were entitled to benefits retroactive to the date of their husbands' deaths, rather than the date of the Bertucci decision. Count II sought certification of the class of all widows similarly situated.
¶ 7 Count III raised a different matter. In this count, plaintiffs alleged that the calculation of their widow's annuity under section 6-140(a) had to include a type of fireman's compensation known as duty availability pay. Plaintiffs acknowledged that duty availability pay was not in existence at the time their husbands were firemen and that neither husband had received such compensation while employed by the Chicago fire department. Nevertheless, plaintiffs maintained that the Board was required to include duty availability pay in the calculation of the annuities which they received under section 6-140(a). Count III also sought certification of the class of all widows who were receiving section 6-140(a) annuities but had not had duty availability pay included in the determination of their benefits.
¶ 8 The circuit court stayed proceedings on plaintiffs' amended complaint. Thereafter, in December of 2007, the court vacated the Board's decision from the original order on remand, and directed the Board to pay plaintiffs benefits retroactive to the date of the death of each plaintiff's spouse. The Board appealed that decision and the appellate court affirmed. See Hooker v. Retirement Board of the Firemen's Annuity & Benefit Fund, 391 Ill.App.3d 129 (2009). The Board subsequently ...