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Barba v. Village of Bensenville

Court of Appeals of Illinois, Second District

March 25, 2015

JACK BARBA, Plaintiff-Appellant and Cross-Appellee,
THE VILLAGE OF BENSENVILLE, Defendant-Appellee and Cross-Appellant (Bensenville Fire Protection District No. 2, Defendant-Appellee)

Page 1188

Appeal from the Circuit Court of Du Page County. No. 10-L-29. Honorable Patrick J. Leston, Judge, Presiding.

Stephen A. Yokich, of Cornfield & Feldman, of Chicago, for appellant.

Sean P. Conway, Patrick K. Bond, and Mary E. Dickson, all of Bond, Dickson & Associates, P.C., of Wheaton, for appellee Village of Bensenville.

Melinda S. Kollross and Joseph J. Ferrini, both of Clausen Miller P.C., of Chicago, for appellee Bensenville Fire Protection District No. 2.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.


Page 1189


[¶1] Plaintiff, Jack Barba, appeals from the trial court's order dismissing his claims for breach of contract, granting him summary judgment for promissory estoppel but with a limited damages award of $322 (we round all amounts to the nearest dollar or thousand dollars), and granting him partial attorney fees against defendants, the Village of Bensenville (the Village) and Bensenville Fire Protection District No. 2 (the District). The Village cross-appeals the $322 award as well as the award of attorney fees. For the reasons that follow, we affirm in part, reverse in part, and remand.


[¶3] This case comes before us on both defendants' motions to dismiss and Barba's motion for summary judgment. The determinations made by the trial court at summary judgment--namely, that the Village made an enforceable promise to Barba and that he relied on that promise when he retired--do not affect our review of the dismissed breach-of-contract claims. We set forth the facts as follows.

[¶4] Barba began his service as a firefighter for the Village in February 1978. Over the years, Barba rose to the position of lieutenant and eventually became the chief of the department in 1994. After a departmental reorganization in 2005, Barba became " Chief of the Fire Prevention Bureau" (essentially, the Village fire marshal). In this new position, Barba continued to receive the same compensation and benefits with no limit on his accrued vacation and sick time. Throughout his employment, Barba participated in the firefighters' pension fund, which was managed by the Village.

Page 1190

[¶5] In November 2006, the citizens of Bensenville voted for a referendum to abolish the Village fire department and to replace it with their membership in a municipal fire protection district. This led to the creation of the District as a unit of municipal government. Following the vote, the Village and the District began work on an intergovernmental agreement (IGA) under which the District would absorb the Village fire department's personnel, equipment, and responsibilities, beginning May 1, 2007. Under the terms of the IGA and section 4-106.1(b) of the Illinois Pension Code (the Pension Code) (40 ILCS 5/4-106.1(b) (West 2010)), on that date the District would also assume responsibility for the management of the Village's firefighters' pension fund.

[¶6] With the transition in the offing, Barba, who was 52 years old and eligible for retirement (40 ILCS 5/4-109(a) (West 2010) (age 50 or more)), told the Village manager that he intended to retire with 30 years' service credit toward his pension. However, at that point in 2007, he had only 29 years of service. On February 9, 2007, Barba met with the Village manager and the Village's attorneys to discuss the boundaries of the new fire protection district. At some point, one of the attorneys told Barba that his retirement would be " covered" because a provision in the final IGA would protect his 30-year pension.

[¶7] On February 16, 2007, Barba gave notice to the Village that he intended to work for several months and then use a portion of his accrued time so that he could retire with 30 years' credit in February 2008. On February 22, 2007, Barba was invited to attend a meeting of the District's board to discuss his retirement. The chief of the Village fire department, Michael Spain, was also present. At that meeting, the attorney for the District, Karl Ottosen, informed Barba that, if he elected to remain with the fire department after the transition, the District would employ him, but only at a lieutenant's rank and at a lieutenant's salary. Barba declined, in part because this option would negatively impact his firefighter's pension, which would be determined by his salary " at the date of retirement" (40 ILCS 5/4-109(a) (West 2010)). Ottosen then recommended that, in view of Barba's many years of loyal public service, the Village should simply raise Barba's salary during his final month of employment and then Barba could retire when the District assumed operations on May 1. The raise would enable Barba to retire at a chief's salary with his " full 30," including a cost-of-living increase for his final year of service (see 40 ILCS 5/4-109.1 (West 2010)).

[¶8] Thereafter, Barba hired an attorney and, throughout April and May, Barba's counsel wrote letters to the Village outlining the agreement between Barba, the Village, and the District. The agreement was as follows. With respect to his pension, Barba's salary during the year prior to his retirement was $88,000. As noted, he was due for a cost-of-living increase for his final year, which would have raised his salary to $92,000. However, because Barba was retiring with less than 30 years of service, the multiplier for his pension formula would have been calculated at 72.5% rather than 75% (see 40 ILCS 5/4-109(c) (West 2010)). Accordingly, to ensure that Barba retired with his " full 30," his salary would be raised to $96,000 on the date of his retirement to offset the difference for the purpose of calculating his pension ($88,000 x 0.75 ≈ $96,000 x 0.725). This would result in a one-time increase of $322 to Barba's final paycheck as an active firefighter. In addition, the Village would pay Barba approximately $84,000 for his accumulated vacation and sick time and would continue his insurance coverage through February 2008.

Page 1191

[¶9] On April 30, 2007, the Village and the District executed the final IGA. Section 6 of the IGA provided that all Village fire department personnel would become employees of the ...

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