{
  "id": 3032500,
  "name": "DR. JOHN WARGO, JR., et al., Plaintiffs-Appellees, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant; (THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Plaintiff-Appellee, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant.)",
  "name_abbreviation": "Wargo v. State Universities Retirement System",
  "decision_date": "1982-06-07",
  "docket_number": "No. 17358",
  "first_page": "930",
  "last_page": "934",
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  "last_updated": "2023-07-14T19:02:18.366242+00:00",
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  "casebody": {
    "judges": [],
    "parties": [
      "DR. JOHN WARGO, JR., et al., Plaintiffs-Appellees, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant.\u2014(THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Plaintiff-Appellee, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant.)"
    ],
    "opinions": [
      {
        "text": "JUSTICE LONDRIGAN\ndelivered the opinion of the court:\nThe Board of Trustees of the State Universities Retirement System (SURS) decided that the four personal plaintiffs, Wargo, Sledge, Sullivan, and Moomey, are not eligible to participate in that pension fund and ordered that their service and earnings credits be erased, that their contributions be refunded, and that no future contributions be accepted from them. Wargo, Sledge, Sullivan, Moomey, and their nominal employers, the University of Illinois and Illinois State University, sought administrative review. The circuit court reversed, holding that the Board did not have the authority to make those decisions, and ordered that the four be reinstated as participants in the fund. We affirm.\nThe four personal plaintiffs serve as directors of two organizations, the Illinois Association of School Administrators and the Illinois Principals Association, that have affiliated themselves with the University of Illinois and Illinois State University respectively. The directors hold positions on the university faculties. The universities pay their salaries arid provide their fringe benefits; all these costs are reimbursed by the associations. The Board decided that Wargo, Sledge, Sullivan, and Moomey are not eligible to participate in SURS because they work fulltime for their associations and their associations determine the compensation and term for each position and control the work.\nArticle 15 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 10812, pars. 15 \u2014 101 through 15 \u2014 196) is the statutory source of the State Universities Retirement System. Illinois State University, a regency university, and the University of Illinois are employers as defined by article 15. (Ill. Rev. Stat. 1979, ch. 108M, par. 15 \u2014 106.) The Board argues that Wargo, Sledge, Sullivan, and Moomey are not properly classifiable as employees because they devote all their time to association business rather than to teaching and other traditional faculty duties; the Board believes that its statutory powers include the authority to decide whether a person is an employee of an article 15 employer.\nSection 15 \u2014 107 (Ill. Rev. Stat. 1979, ch. 108/2, par. 15 \u2014 107) defines \u201cemployee\u201d and says in part:\n\u201c \u2018Employee\u2019: Any member of the educational, administrative, secretarial, clerical, mechanical, labor or other staff of an employer whose employment is permanent and continuous or who is employed at one-half time or more in a position in which services are expected to be rendered on a continuous basis for at least one school year, who (a) receives payment for the performance of personal services on a warrant issued pursuant to a payroll voucher certified by an employer and drawn by the State Comptroller upon the State Treasurer or by an employer upon trust, federal or other funds, or (b) is on a leave of absence without pay.\u201d\nSection 15 \u2014 107 goes on to list exceptions and qualifications to the quoted rule; none of them are relevant here.\nArticle 15 does not define \u201cemployment\u201d or \u201cpersonal services\u201d; \u201cservice\u201d is defined (Ill. Rev. Stat. 1979, ch. 108/2, par. 15 \u2014 113), but only with reference to calculating service credits and periods of employment.\nWargo, Sledge, Sullivan, and Moomey are paid their salaries by the universities. Illinois State University pays Sullivan and Moomey from a trust fund that was established by the agreement affiliating the Illinois Principals Association with that university; the University of Illinois follows the same approach, and the money is deposited by the Illinois Association of School Administrators in an account with the university. These procedures satisfy section 15 \u2014 107 on the method of paying employees. The contracts between the universities and the four association directors are renewed annually; the universities send them annual notices of their appointments to the faculties; the positions are fulltime although not permanent. This satisfies the clause in section 15 \u2014 107 regarding persons \u201cemployed at one-half time or more in a position in which services are expected to be rendered on a continuous basis for at least one school year.\u201d Wargo, Sledge, Sullivan, and Moomey are therefore employees within the meaning of section 15 \u2014 107.\nThe pension board relies on sections 15 \u2014 159, 15 \u2014 160, 15 \u2014 163, and 15 \u2014 168 (Ill. Rev. Stat. 1979, ch. 108M, pars. 15 \u2014 159, 15 \u2014 160, 15 \u2014 163, 15 \u2014 168) as granting it authority to determine who is eligible to participate in SURS. Section 15 \u2014 159 simply creates a board of trustees to govern the fund. Section 15 \u2014 160 grants the Board \u201cthe powers and duties stated in Sections 15 \u2014 161 to 15 \u2014 177, inclusive, in addition to the other powers and duties herein provided.\u201d Section 15 \u2014 163 says:\n\u201cTo consider and pass on all applications for annuities and benefits; to authorize the granting of annuities and benefits; and to limit or suspend any payment or payments, all in accordance with this Article.\u201d\nSection 15 \u2014 168 says:\n\u201cTo require such information as shall be necessary for the proper operation of the system from any participant, beneficiary or from any officer, department head or other person or persons in authority, as the case may be, of any employer.\u201d\nThese sections do not address the problem here, the Board\u2019s power to decide whether a person is an employee. Section 15 \u2014 163 pertains to the calculation of benefits and the disbursement of money; Wargo, Sledge, Sullivan, and Moomey, however, seek to contribute to the fund, not withdraw from it. Section 15 \u2014 168 enables the Board to obtain information on salaries and periods of employment; we do not interpret it as expanding the Board\u2019s powers and duties beyond those expressly stated elsewhere in the article. Nowhere does article 15 say that the Board may decide whether a person is an employee; the general provisions in the Pension Code (Ill. Rev. Stat. 1979, ch. 10812, pars. 1 \u2014 101 through 1 \u2014 111, 23 \u2014 101 through 23 \u2014 103) are also silent on this question.\nThe provisions governing contributions to and participation in SURS do not support the Board\u2019s argument that it may decide who is an employee. An employer\u2019s duties are limited to supplying the Board with vouchers, in the case of persons paid by State money, or checks, in the case of persons paid from Federal or trust funds, for the necessary contributions. (Ill. Rev. Stat. 1979, ch. 108*2, par. 15 \u2014 181.) An employee must become a participant in SURS by the end of three years of employment; he may elect to participate when he begins his job or after his first or second year of work. (Ill. Rev. Stat. 1979, ch. 108/*2, par. 15 \u2014 134.) Section 15 \u2014 134 also says:\n\u201cA person who becomes a participant shall continue to be a participant until the date he becomes an annuitant, dies or accepts a refund of his contributions.\u201d\nNone of the three methods of ceasing participation authorized the Board\u2019s actions here. An annuitant is defined as \u201c[a] person receiving a retirement, reversionary, survivors or beneficiary annuity from this System\u201d (Ill. Rev. Stat. 1979, ch. 108M, par. 15 \u2014 119); none of the four personal plaintiffs are annuitants. Death too is inapplicable here. Section 15 \u2014 154 (Ill. Rev. Stat. 1979, ch. 108)2, par. 15 \u2014 154), regarding refunds, the third method of ceasing participation, says in part:\n\u201cA participant whose status as an employee is terminated, regardless of cause, or who has been on lay off status for more than 120 days, is entitled to a refund of contributions upon application therefor if he is not on leave of absence.\nA participant who terminates his status as an employee and elects to waive service credit under Section 15 \u2014 194, shall be entitled to a refund 0 \u201d\nWe construe the phrase, \u201cwhose status as an employee is terminated,\u201d to refer to action taken by the employer rather than by the Board. Thus, once a person becomes a participant in SURS the Board cannot interfere with his continued participation in the fund.\nIf the legislature had wanted the Board to have this power, the statutes would have expressed that. For example, article 4 of the Pension Code (Ill. Rev. Stat. 1979, ch. 108)2, pars. 4 \u2014 101 through 4 \u2014 143), on pension funds for firemen employed by cities of 500,000 or fewer persons, contains a provision on qualifications for participation in the funds. Article 15, SURS, does not contain a similar provision. In Gordan v. Board of Trustees (1966), 77 Ill. App. 2d 234, 222 N.E.2d 28, the Board denied the plaintiff\u2019s application for enrollment in the fund. The plaintiff had been appointed as a fireman by the Joliet fire department and argued that enrollment in the pension fund was a ministerial act. Then as now section 4 \u2014 107 said that applicants must \u201c[b]e found upon a medical examination by a duly licensed physician selected by the Board to be then physically and mentally fit to perform the duties of a fireman.\u201d (Ill. Rev. Stat. 1979, ch. 108)2, par. 4 \u2014 107(b)(3).) In Gordan the Board denied the plaintiff\u2019s application for enrollment on the basis of a doctor\u2019s report that the plaintiff had a weak back but was otherwise fit. In upholding the Board\u2019s decision the court said:\n\u201cThe power and duty of determining whether an applicant for enrollment in the Firemen\u2019s Pension Fund is qualified for enrollment is vested in the Board of Trustees of the Fund. The language of the Act does not confer the power of determining whether such applicant is so qualified on a physician selected by the Board but that determination is left to the Board itself.\u201d 77 Ill. App. 2d 234, 238, 222 N.E.2d 28, 30.\nUnder article 15, however, the employers decide who their employees are, and that decision determines eligibility to participate in the pension fund; we find no provision in the Pension Code granting that power to the Board of Trustees of SUES.\nAffirmed.\nWEBBER and MILLS, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE LONDRIGAN"
      }
    ],
    "attorneys": [
      "Tyrone C. Fahner, Attorney General, of Chicago (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant.",
      "Billington & Billington, of Springfield, Franklin, Flynn & Palmer, of Champaign, and James J. Costello, University Counsel for the University of Illinois, of Urbana (Charles L. Palmer, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "DR. JOHN WARGO, JR., et al., Plaintiffs-Appellees, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant.\u2014(THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Plaintiff-Appellee, v. STATE UNIVERSITIES RETIREMENT SYSTEM, Defendant-Appellant.)\nFourth District\nNo. 17358\nOpinion filed June 7, 1982.\nTyrone C. Fahner, Attorney General, of Chicago (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant.\nBillington & Billington, of Springfield, Franklin, Flynn & Palmer, of Champaign, and James J. Costello, University Counsel for the University of Illinois, of Urbana (Charles L. Palmer, of counsel), for appellees."
  },
  "file_name": "0930-01",
  "first_page_order": 952,
  "last_page_order": 956
}