{ "id": 5238433, "name": "FRED COLLINS et al., Indiv. and as Representatives of a Group of Individuals Similarly Situated, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee", "name_abbreviation": "Collins v. Board of Trustees", "decision_date": "1992-02-28", "docket_number": "No. 1\u201490\u20142082", "first_page": "316", "last_page": "321", "citations": [ { "type": "official", "cite": "226 Ill. App. 3d 316" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "359 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435082 ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0437-01" ] }, { "cite": "283 N.E.2d 282", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "5 Ill. App. 3d 249", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2529961 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0249-01" ] }, { "cite": "515 N.E.2d 1240", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1243" } ], "opinion_index": 0 }, { "cite": "118 Ill. 2d 436", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3187855 ], "weight": 2, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0436-01" ] }, { "cite": "521 N.E.2d 923", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. 2d 22", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549492 ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0022-01" ] }, { "cite": "390 N.E.2d 1281", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582712 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0833-01" ] } ], "analysis": { "cardinality": 568, "char_count": 12693, "ocr_confidence": 0.794, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30828496178734743 }, "sha256": "23e9d9f2a2abb7b3944391e4f4c9574a798361bc023bbc37dbf1ee8b1e373b72", "simhash": "1:6ec7ba03e2144493", "word_count": 2044 }, "last_updated": "2023-07-14T14:35:12.469333+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRED COLLINS et al., Indiv. and as Representatives of a Group of Individuals Similarly Situated, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE McNULTY\ndelivered the opinion of the court:\nThis is an appeal from the trial court\u2019s order granting the Board of Trustees of the Firemen\u2019s Annuity Benefit of Chicago\u2019s (Board\u2019s) motion to dismiss plaintiffs\u2019 complaint for declaratory judgment seeking to declare section 6 \u2014 210.1 of the Illinois Pension Code (Ill. Rev. Stat. 1989, ch. 108\u00bd, par. 6\u2014210.1) unconstitutional under article XIII, section 5, of the Illinois Constitution.\nPrior to July 1983, paramedics of the Emergency Medical Services Bureau of the Chicago Fire Department were members of the Municipal Employees\u2019, Officers\u2019 and Officials\u2019 Annuity and Benefit Fund of Chicago (Municipal Fund). On July 1, 1983, the fire department paramedics were eligible to become members of the Firemen\u2019s Annuity and Benefit Fund of Chicago (Firemen\u2019s Fund). Their acceptance into the Firemen\u2019s Fund was in anticipation of a statutory amendment to the definition of \u201cfiremen.\u201d The amendment, effective September 24, 1983, added fire department paramedics to the definition of firemen and therefore made paramedics eligible for membership in the Firemen\u2019s Fund. Ill. Rev. Stat. 1989, ch. 108\u00bd, par. 6\u2014106(a).\nAccording to the workings of the 1983 amendment, paramedics were no longer, after September 24, 1983, permitted to make additional contributions from their salary to the Municipal Fund nor were they provided reciprocity of membership whereby paramedics could transfer benefits from the Municipal Fund to the Firemen\u2019s Fund. Rather, plaintiffs were given the option to either (1) withdraw as a refund their contributions from the Municipal Fund, or (2) leave contributions in the Municipal Fund until retirement.\nOn September 1, 1989, the legislature again amended the Pension Code, by adding section 6 \u2014 210.1, which provides:\n\u201cAny fire paramedic who (1) was transferred from the pension fund established under Article 8 [the Municipal Fund] of this Code to this Fund by operation of Public Act 83 \u2014 780, and (2) had accumulated service credit in the Article 8 fund for service as a paramedic, and (3) has terminated such Article 8 service credit and received a refund of contributions therefor, may establish service credit in this Fund for such period of service as a fire paramedic under the Article 8 fund by making written application to the Board by January 1, 1992, and paying to this Fund (i) employee contributions based upon the actual salary received and the rates in effect for members of this Fund at the time of such service as a paramedic, plus (ii) interest thereon at 4% per annum, compounded annually, from the date of termination of such service to the date of payment. The employer shall not be responsible for making any employer contributions for any credit established under this Section.\u201d (Ill. Rev. Stat. 1989, ch. 108\u00bd, par. 6\u2014210.1.)\nPlaintiffs Fred Collins and Michael Spencer, representatives of a group of firemen previously classified as paramedics, challenge the constitutionality of section 6 \u2014 210.1, alleging that the enactment unconstitutionality diminished certain vested rights protected by article XIII, section 5, of the Illinois Constitution.\nOn July 11, 1990, the trial court granted the Firemen\u2019s Fund\u2019s motion to dismiss the complaint, holding that section 6 \u2014 210.1 did not diminish any vested rights but, rather, created an opportunity for paramedics to participate in greater pension benefits. It is from this order of dismissal that the plaintiffs appeal.\nSection 5 of the Illinois Constitution provides that membership in a local government\u2019s pension or retirement system is an enforceable contractual relationship, the benefits of which may not be diminished or impaired. (Ill. Const. 1970, art. XIII, \u00a75.) An employee\u2019s contractual right in his pension plan vests at the time he becomes a member of the system. (Kraus v. Board of Trustees of the Police Pension Fund (1979), 72 Ill. App. 3d 833, 390 N.E.2d 1281.) The terms of this contractual relationship are governed by the version of the Pension Code in effect at the time the employee became a member of the system. Di Falco v. Board of Trustees of the Firemen\u2019s Pension Fund of the Wood Dale Fire Protection District No. One (1988), 122 Ill. 2d 22, 521 N.E.2d 923.\nPlaintiffs claim that their vested rights to receive pension benefits were diminished by section 6 \u2014 210.1. Defendant, in contrast, contends that section 6 \u2014 210.1 did not diminish but, rather, enhanced plaintiffs\u2019 rights, because before the enactment of section 6 \u2014 210.1, a paramedic could not transfer his refund to the Firemen\u2019s Fund or reinstate his pension credit in the Firemen\u2019s Fund by repayment of his Municipal Fund refund. Defendant maintains that the legislature remedied this situation when it enacted section 6 \u2014 210.1, which now provides paramedics with the opportunity to reinstate the pension credits earned in the Municipal Fund as pension credits in the Firemen\u2019s Fund. For the following reasons, we agree with plaintiffs that section 6 \u2014 210.1 diminished their vested pension rights.\nSection 6 \u2014 209 provides:\n\u201cIn computing the service rendered by a fireman on and after the effective date, the following periods shall be counted, in addition to all periods during which he performed the duties of his position, as periods of service for annuity purposes only: All periods of (a) vacation, (b) leave of absence with whole or part pay, *** (d) leave of absence during which he was engaged in the military or naval service of the United States of America.\u201d (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 108\u00bd, par. 6\u2014209.)\nThis provision was construed by our supreme court in Herhold v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund (1987), 118 Ill. 2d 436, 515 N.E.2d 1240, in considering whether the amendment to the Firemen\u2019s Fund adding \u201cfire paramedic\u201d to the definition of \u201cfireman\u201d provided that the entire time a paramedic had been employed in that capacity be recognized in determining his status for the purpose of disability benefits or only the time the paramedic began making contributions into the Firemen\u2019s Fund. The court stated that once the words \u201cfire paramedic\u201d were incorporated in the definition of \u201cfireman\u201d paramedics were entitled to be recognized as firemen from the beginning of their service as paramedics. The words \u201cthe service rendered by a fireman\u201d and \u201cperiods during which he performed the duties of his position\u201d appearing in section 6 \u2014 209 refer to a person\u2019s service and performance of his duties both before and after the amendment to the definition of \u201cfireman\u201d which made paramedics eligible to become members of the Firemen\u2019s Fund. In determining that the paramedic should receive benefits computed on the length of his entire time served as a paramedic, the court stated:\n\u201cThe Board argues that this interpretation of the statutes gives Herhold a windfall because he received a refund of his contributions to the Municipal Fund while at the same time he was not required to compensate the Firemen\u2019s Fund for the period he was a participant in the former fund. The Firemen\u2019s Fund refused, however, to accept a transfer of Herhold\u2019s contribution to the Municipal Fund because the Firemen\u2019s Fund had not accepted the Retirement Systems Reciprocal Act [citation]. *** [T]here was no procedure trader which Herhold, had he wished to do so, could have transferred to the Firemen\u2019s Fund his contributions previously made to the Municipal Fund. At the same time, the Municipal Fund refunded the contributions Herhold had previously made to it based on its position that an employee could not simultaneously participate in that fund and the Firemen\u2019s Fund. There is no justification for penalizing Herhold for the manner in which these two pension funds operated because he had no control over their procedures. Moreover, we find incredible the suggestion that it was the intention of the legislature in conferring upon paramedics the advantage of joining the Firemen\u2019s Fund to leave them at the same time without benefits for the service they accrued as paramedics before the legislature offered them the opportunity to join that fund.\u201d (Herhold, 118 Ill. 2d at 440, 515 N.E.2d at 1243.)\nAccordingly, the Herhold court held that the disabled paramedic in computing service time was entitled to credit for all time employed as a paramedic, including the time when payments were made to the Municipal Fund.\nWe find no reason to rule otherwise here. When the Municipal Fund refunded the money in 1983, the Firemen\u2019s Fund refused to take it. Once plaintiffs received refunds from the Municipal Fund and became members of the Firemen\u2019s Fund, their contract with the Municipal Fund ceased to exist and they entered into a new contractual relationship with the Firemen\u2019s Fund in 1983. According to the terms of this new contractual relationship, plaintiffs received the rights to have their annuities computed on the basis of their years of completed service. They also received vested rights to the computation of service credits based upon the language of section 6 \u2014 209. As the Herhold court observed, according to the plain language of section 6 \u2014 209, service credits are to be computed on the basis of the entire time served, including years performing as a paramedic.\nNow the rule has changed, and according to the terms of section 6 \u2014 210.1, plaintiffs must tender to the Firemen\u2019s Fund their previously unwanted contributions with up to nine years\u2019 compounded interest before January 1, 1992, or they will lose service credits for their years serving as paramedics and contributing to the Municipal Fund. We recognize the principles that in construing a statute, there is a presumption that the legislature did not intend to create an unconstitutional statute (Wiseman v. Elward (1972), 5 Ill. App. 3d 249, 283 N.E.2d 282), and that where a statute is subject to two constructions, one which would render it unconstitutional, it should be construed so as to uphold its constitutionality if it can reasonably be done. (Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437, 359 N.E.2d 125.) However, while section 6 \u2014 210.1 enhances the rights of some by allowing them to now deposit their refunds from the Municipal Fund into the Firemen\u2019s Fund, we cannot ignore the fact for others this is an impossibility. For those who cannot come up with their refund money plus interest by January 1, 1992, the statute diminishes their vested rights to service credits based on their years of service including time served as a paramedic. To divest them of that right by the amendatory language of section 6 \u2014 210.1 is contrary to Illinois law and article XIII, section 5, of the Illinois Constitution.\nWhile defendant relies on section 20 \u2014 118 of the Retirement Systems Reciprocal Act (Reciprocal Act) to support the constitutionality of section 6 \u2014 210.1, we find the Reciprocal Act inapplicable. Section 20 \u2014 118 provides:\n\u201cAny employee who shall have waived, by the acceptance of a refund, his pension credit in any participating system, may have his pension credit reinstated by repayment of the refund, including interest from the date of refund to the date of repayment, provided (1) the system is authorized by law to receive the repayment, and (2) the employee has completed at least 2 years of service under a participating system subsequent to the date of the last refund.\u201d (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 108\u00bd, par. 20-118.)\nIn order to assert the statutory protections of the Reciprocal Act, a fund must become a \u201cparticipating\u201d fund by specifically adopting the Retirement Systems Reciprocal Act. (Ill. Rev. Stat. 1989, ch. 108\u00bd, par. 20 \u2014 129.) Although the Municipal Fund is a participating system, the Firemen\u2019s Fund is not. When plaintiffs became contributors to the Firemen\u2019s Fund, they became vested in that fund and gave up vested rights in the Municipal Fund. Because the Firemen\u2019s Fund has not accepted the provisions of the Reciprocal Act, it cannot claim that its members are bound by section 20 \u2014 118.\nAccordingly, for the reasons set forth above, we reverse the decision of the trial court and remand this cause for further proceedings.\nReversed and remanded.\nLORENZ and MURRAY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McNULTY" } ], "attorneys": [ "Terrance A. Hilliard, of Chicago, for appellants.", "Fagel & Haber, of Chicago (Steven J. Teplinsky, James A. Roth, and Maynard B. Russel, of counsel), for appellee." ], "corrections": "", "head_matter": "FRED COLLINS et al., Indiv. and as Representatives of a Group of Individuals Similarly Situated, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201490\u20142082\nOpinion filed February 28, 1992.\nTerrance A. Hilliard, of Chicago, for appellants.\nFagel & Haber, of Chicago (Steven J. Teplinsky, James A. Roth, and Maynard B. Russel, of counsel), for appellee." }, "file_name": "0316-01", "first_page_order": 340, "last_page_order": 345 }