{ "id": 1208075, "name": "HOFFMAN ESTATES PROFESSIONAL FIREFIGHTERS ASSOCIATION et al., Plaintiffs-Appellees, v. THE VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellants", "name_abbreviation": "Hoffman Estates Professional Firefighters Ass'n v. Village of Hoffman Estates", "decision_date": "1999-03-31", "docket_number": "No. 1\u201498\u20140489", "first_page": "242", "last_page": "256", "citations": [ { "type": "official", "cite": "305 Ill. App. 3d 242" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "670 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 1088", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182686 ], "year": 1996, "pin_cites": [ { "page": "1099" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/1088-01" ] }, { "cite": "642 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333166 ], "year": 1994, "pin_cites": [ { "page": "926-27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0920-01" ] }, { "cite": "696 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "177 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317111 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "393" }, { "page": "393" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0389-01" ] }, { "cite": "688 N.E.2d 364", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847508 ], "year": 1997, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0414-01" ] }, { "cite": "664 N.E.2d 61", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "171 Ill. 2d 230", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57346 ], "year": 1996, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0230-01" ] }, { "cite": "668 N.E.2d 1012", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159524 ], "year": 1996, "pin_cites": [ { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0830-01" ] }, { "cite": "644 N.E.2d 186", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 981", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156861 ], "year": 1996, "pin_cites": [ { "page": "989" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0981-01" ] }, { "cite": "29 U.S.C. \u00a7 203", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "(e)(4)(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 949, "char_count": 33844, "ocr_confidence": 0.77, "pagerank": { "raw": 1.4279765551227057e-07, "percentile": 0.6503128174654198 }, "sha256": "201b61a7c671fb17552dee94757f4f516c914f80128d2a6dd2eeb9ccbcb0ae65", "simhash": "1:ef591f80af7a098b", "word_count": 5605 }, "last_updated": "2023-07-14T20:21:49.676413+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HOFFMAN ESTATES PROFESSIONAL FIREFIGHTERS ASSOCIATION et al., Plaintiffs-Appellees, v. THE VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nDefendants, the Village of Hoffman Estates, a municipal corporation, and the Village\u2019s mayor, trustees, manager, finance director, and clerk/treasurer (the Village) appeal from an order of the circuit court granting plaintiff Hoffman Estates Professional Firefighters Association (the Association) and its president Charles O\u2019Connor\u2019s motion for summary judgment and denying the Village\u2019s motion for summary judgment. The court\u2019s order required the Village to comply with section 11\u201410\u20142 of the Illinois Municipal Code (Code) (65 ILCS 5/11\u201410\u20142 (West 1996)) by creating a foreign fire insurance board (Board), and upon doing so, to turn over to the Board all foreign fire insurance tax proceeds authorized and collected by the Village pursuant to section 11\u201410\u20141 of the Code (65 ILCS 5/11\u201410\u20141 (West 1996)) \u201cfrom January 1, 1985, to the present.\u201d\nOn appeal, the Village argues that it was not subject to the requirements of section 11\u201410\u20142 to create the Board and fund it with the proceeds of the foreign fire insurance tax \u201cfrom January 1, 1985 to the present\u201d because the Village: (1) was not required by statute \u201cto create and fund the Board prior to 1990\u201d; (2) the State Mandates Act (30 ILCS 805/1 et seq. (West 1996)) relieved the Village from complianee with the statutory requirement to create and fund the Board with foreign fire insurance tax proceeds after the 1990 amendment; and (3) the collective bargaining agreement between the Village and the Association barred the Association from bringing a cause of action against the Village to make it pay the tax proceeds to the Association from 1990 to 1995. For the reasons set forth below, we reverse and remand.\nThe Association is a labor association affiliated with the International Association of Firefighters, AFL-CIO, CLC. The Association was organized to provide for the \u201cgeneral welfare\u201d of the Hoffman Estates firefighters and the Hoffman Estates fire department. The Village is an Illinois municipality which has an organized fire department. The Village\u2019s population is less than 50,000.\nSection 11\u201410\u20141 of the Code, prior to and since 1990, is entitled, \u201cForeign Fire Insurance Company Fees,\u201d and provides for the Village\u2019s collection of a tax, not to exceed 2% of the gross receipts from fire insurance, upon property situated within the Village where fire insurance is provided by an insurance company not incorporated under the laws of Illinois. 65 ILCS 5/11\u201410\u20141 (West 1996). The Village levied the tax from 1985 until 1997, collected the proceeds, and placed them in the firefighters\u2019 pension fund. According to the Village, the amount of taxes collected by it from 1985 through 1996, and the 1997 estimated amount, was $283,483.\nThe parties\u2019 dispute arose in 1996 when the Association requested that the Village transfer the foreign fire insurance tax proceeds to the Hoffman Estates\u2019 fire department pursuant to section 11\u201410\u20142 of the Code. The Village refused to transfer the funds to the fire department and continued to collect the tax. As a result, the Association filed a complaint for a writ of mandamus and declaratory judgment on February 18, 1997, to require the Village to create the Board and turn over to the Board all foreign fire insurance tax proceeds the Village collected pursuant to section 11\u201410\u20141 \u201cfrom January 1, 1985, to the present.\u201d The Association alleged in its complaint that the Village did not transfer the collected tax proceeds to the firefighters\u2019 pension fund or to the fire department, but instead transferred the tax proceeds into the Village\u2019s \u201cGeneral Fund.\u201d\nThe Village filed a motion for summary judgment, arguing that prior to the 1990 amendment of section 11\u201410\u20142 it had the option of paying the fire insurance tax proceeds to the fire department treasurer or to the firefighters\u2019 pension fund, and it opted to pay into the pension fund. The Village further argued that upon amendment of the statute and the elimination of the option to pay the tax proceeds to the firefighters\u2019 pension fund, it did not comply with section 11\u201410\u20142 because the statute \u201cis a violation of\u2019 the State Mandates Act (30 ILCS 805/1 et seq. (West 1996)). More specifically, the Village maintained that the creation of the Board, under the amended statute, created a personnel mandate within the meaning of the State Mandates Act because the Village would have to pay overtime wages to firefighter members elected to the Board for their service on the Board pursuant to the Fair Labor Standards Act (FLSA). 29 U.S.C. \u00a7 203(e)(4)(a) (1994). The Village therefore argued that since section 11\u201410\u20142 is a personnel mandate that is not exempted from reimbursement by the state to local governments under the State Mandates Act, the Village was not required to comply with the statute because no appropriation for reimbursement had been made by the General Assembly for additional costs that the Village alleged it would incur.\nIn response, the Association contended that section 11\u201410\u20142 prior to 1981, the effective date of the State Mandates Act, was not subject to the State Mandates Act because the Act only applies to legislation enacted after its effective date. The Association also argued that to the extent any amendments to section 11\u201410\u20142 after 1981 \u201cviolate\u201d the State Mandates Act, only the amendment is invalid and the statute would be left in force as it was prior to the amendment. Therefore, the Association maintained that the Village was required to \u201cenact an ordinance providing for the election of foreign fire insurance tax board officers\u201d and \u201cturn over to the [Association] *** all foreign fire insurance tax proceeds *** collected by [the Village] *** from January 1, 1985 until the present.\u201d The Association also claimed that the Village\u2019s position, that it was not until the 1990 amendment that its home rule unit authority was preempted, was \u201cbased upon a fundamental misapprehension of the nature of home rule unit authority.\u201d The Association maintained that \u201chome rule units must obey all laws which do not contain an express home rule preemption unless and until a conflicting ordinance is enacted\u201d and, since the Village never enacted an ordinance that in any way conflicted with the terms of section 11\u201410\u20142, the Village was at all times bound to obey the statute. The Association further argued that the FLSA was irrelevant to a violation of the State Mandates Act because the FLSA \u201cexcludes the [Board] officers from the definition of employees\u201d since the officers\u2019 services on the Board would not be the same services for which they are employed by the Village as firefighters. The Association also argued the FLSA was irrelevant to a \u201cviolation\u201d of the State Mandates Act because an employment relationship would not exist between the Village and the Board due to the fact that the Village would not have control of hiring and firing the members elected to the Board, control over the manner in which work is performed, fixing of wages, and maintaining of employment records.\nThe Association also filed a motion for summary judgment, arguing that the Village did not have a right to refuse to comply with section 11\u201410\u20142 to create the Board and pay to the Board the foreign fire tax proceeds collected by the Village since 1985. The Association also argued that section 11\u201410\u20142 did not violate the State Mandates Act. The Association further argued, as it had in its response to the Village\u2019s motion for summary judgment, that to the extent any post-1981 amendment to section 11\u201410\u20142 violated the State Mandates Act, the amendment is void, but the statute is still valid as it existed prior to any amendment. The Association also argued that the amendments to section 11\u201410\u20142 since 1981 constituted local government organization and structure mandates under section 3(c) of the State Mandates Act and, therefore, the state was not required to reimburse the Village at all for its implementation.\nIn response, the Village contended that \u201c[a]fter the approval of the Illinois Constitution of 1970, the provisions of the foreign fire insurance legislation were optional with home rule municipalities such as Hoffman Estates.\u201d Therefore, the Village argued that \u201cmunicipalities were no longer subject to legislative provisions without an express exclusivity statement from the General Assembly.\u201d The Village maintained that the first time section 11\u201410\u20142 applied to it was when the express language of home rule preemption was included in the 1990 amendment. The Village further argued that, after this amendment, the State Mandates Act clearly applied and that the \u201ccommand\u201d of section 11\u201410\u20142 was a personnel mandate and it was relieved from complying with the statute because, pursuant to the ELSA, it would incur overtime costs that were not funded by the General Assembly, but passed on to the municipalities in violation of the State Mandates Act. The Village also argued that the Association\u2019s April 17, 1990, collective bargaining agreement \u201cside letter,\u201d which permitted the Village to retain the foreign fire insurance tax proceeds and place them in the firefighters\u2019 pension fund, barred the Association from receiving the fire insurance tax proceeds from April 17, 1990, to April 30, 1993. The Village further argued that the contract remained in effect until August 14, 1995, when a new contract was executed by the Association. Attached to the Village\u2019s response was a sworn affidavit from the Village\u2019s finance director stating the tax amounts collected from 1985 through 1989 and the amounts placed into the pension fund for the same years. The Village claimed that it collected the tax in the amount of: $7,965 in 1985 and paid $500,000 into the firefighters\u2019 pension fund; $8,037 in 1986 and paid $500,000 into the pension fund; $12,230 in 1987 and paid $500,000 into the pension fund; $10,562 in 1988 and paid $95,025 into the pension fund; $12,333 in 1989 and paid $240,545 into the pension fund.\nAfter hearing arguments on the parties\u2019 motions, the trial court granted the Association\u2019s motion for summary judgment and denied the Village\u2019s. The court further ordered that the Village comply with section 11\u201410\u20142 and create the Board and, thereafter, turn over the foreign fire insurance tax proceeds \u201cfrom January 1, 1985, to the present\u201d to the Board. This appeal followed.\nA motion for summary judgment should be granted when the pleadings, depositions, admissions, and affidavits before the court establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2\u20141005 (West 1996); Brown v. Murphy, 278 Ill. App. 3d 981, 989, 644 N.E.2d 186 (1996). The review of a grant of summary judgment is de novo (Greenberg v. Orthosport, Inc., 282 Ill. App. 3d 830, 832, 668 N.E.2d 1012 (1996)), as is the construction of a statute, which is an issue of law (Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237, 664 N.E.2d 61 (1996)).\nPRE-1990 AMENDMENT\nIn the present case, the Village first argues it was in compliance with the pre-1990 section 11\u201410\u20142 (Ill. Rev. Stat. 1987, ch. 24, par. 11\u201410\u20142) because before the 1990 amendment, it had the option of paying the foreign fire insurance tax proceeds into the firefighters\u2019 pension fund instead of turning the proceeds over to the treasurer of the fire department.\nThe Association argues that because the pre-1990 section 11\u201410\u20142 had stated that municipalities \u201cshall\u201d enact an ordinance providing for the election of officers, and the tax proceeds \u201cshall\u201d be paid over by the municipality to the fire department (Ill. Rev. Stat. 1987, ch. 24, par. 11\u201410\u20142), the \u201c[u]se of the word \u2018shall\u2019 means a mandatory obligation to perform the acts enumerated.\u201d Accordingly, the Association contends that the Village was required to comply with the statute at that time to enact an ordinance for the election of officers and to pay the foreign fire insurance tax proceeds to the fire department. Contrary to its argument, however, the Association also stated during oral argument before this court that, while the Village was required to enact an ordinance to elect officers, after doing so, the Village could exercise the pre-1990 option to pay the tax proceeds into the pension fund. The Association further argues that during 1985 to 1989, section 4\u2014118 of the Illinois Pension Code \u201cmandated that *** [the Village] \u2018annually levy a tax\u2019 in an amount that when combined with firefighter contributions \u2018will equal a sum sufficient to meet the annual actuarial requirements of the pension fund\u201d (40 ILCS 5/4\u2014118 (West 1996)) and, \u201cbecause [the Village] made no express, specific appropriation of the foreign fire insurance tax proceeds to the Firefighters\u2019 Pension Fund[,] they failed to obey the terms of 65 ILCS 11\u201410\u20142.\u201d The Association alternatively contends that, while it does not dispute that the Village appropriated more money to the firefighters\u2019 pension fund than it collected in foreign fire insurance tax proceeds during 1985 to 1989, \u201cthe Record in this cause is insufficient to support [the Village\u2019s] assertion the foreign fire insurance tax proceeds were \u2018poured over\u2019 into the Firefighters Pension Fund, for the Record does not indicate what amounts were required to be appropriated thereto for the years 1985-1989 by virtue of 40 ILCS 5/4\u2014118,\u201d and \u201c[r]emand to the Circuit Court for consideration of this issue would be the proper course of action.\u201d The Association further maintains that the statute \u201cwas intended to be a means for municipalities, if they chose, to supplement the funding for their firefighters\u2019 pension funds. The statute was not intended to be used as a means for municipalities to decrease the amount of their contributions by the amount of the collected tax proceeds.\u201d (Emphasis added.) According to the Association, \u201c[t]he 1990 amendment to the statute which removed the option to pay the tax proceeds to firefighters\u2019 pension funds supports this conclusion.\u201d\nSection 11\u201410\u20142, enacted on July 1, 1961, governed how the funds received by the Village from the foreign fire insurance tax were to be used. In 1985, section 11\u201410\u20142 provided:\n\u201cThe corporate authorities of any municipality containing less than 50,000 inhabitants which has an organized fire department shall pass an ordinance providing for the election of officers of that department, by the members of the department. These officers shall include a treasurer, and they shall make all needful rules and regulations with respect to the department and the management of the money to be paid to the treasurer. In all such municipalities the municipal treasurer shall pay the sums received from the insurance companies specified in Section 11\u201410\u20141 to the treasurer of the fire department of the municipality in which it is collected. *** The treasurer of the fire department shall pay out the money upon the order of the fire department for the maintenance, use, and benefit of the department.\nHowever, in any municipality where a firemen\u2019s pension fund is or may be established under this Code or other laws of this state, all of the money paid to the municipal treasurer as provided in Section 11\u201410\u20141 may be set apart and appropriated by the municipality to the fund for the pensioning of disabled and superannuated members of the fire department, and of the surviving spouses and orphans of deceased members of the fire department.\u201d (Emphasis added.) Ill. Rev. Stat. 1987, ch. 24, par. 11\u201410\u20142.\nIt is well settled that the rules of statutory construction require a court to determine and follow the intent of the legislature using the language of the statute as the most reliable indicator of the legislature\u2019s intent. Polsky v. BDO Seidman, 293 Ill. App. 3d 414, 424, 688 N.E.2d 364 (1997). Whether a statutory provision is mandatory or merely directory depends upon the intent of its drafters. People v. Reed, 177 Ill. 2d 389, 393, 696 N.E.2d 584 (1997).\nThe language of section 11\u201410\u20142, as it existed before the 1990 amendment and in effect while the Village was collecting the foreign fire insurance tax from 1985 until the 1990 amendment, stated that \u201call of the money paid to the municipal treasurer as provided in Section 11\u201410\u20141 may be set apart and appropriated by the municipality\u201d for payment to an established pension fund. (Emphasis added.) Ill. Rev. Stat. 1987, ch. 24, par. 11\u201410\u20142. The legislative use of the word \u201cmay\u201d is generally regarded as indicating a permissive reading. Reed, 177 Ill. 2d at 393. In the present case, because the pre-1990 statute provided that a municipality may pay the foreign fire insurance tax proceeds into an established pension fund, we find that the Village clearly had the option of placing the tax proceeds into the firefighters\u2019 pension fund. Des Plaines Firemen\u2019s Ass\u2019n v. City of Des Plaines, 267 Ill. App. 3d 920, 926-27, 642 N.E.2d 732 (1994) (\u201cPrior to the passage of the [1990] amendment, home rule units were allowed to levy the tax, and they had two options regarding the disposition of the funds received: they could be given to the treasurer of the fire department, or they could be used by the municipality for contributions to the firefighters\u2019 pension fund\u201d).\nNotwithstanding our holding, we find that a material question of fact existed as to the exact amount of the collected tax proceeds that were paid by the Village into the pension fund, as argued by the Association. The Village in its brief stated that it made the appropriation from the \u201cGeneral Fund, the same General Fund to which the \u2018fungible\u2019 foreign fire insurance tax proceeds were deposited.\u201d However, the record is silent as to what the Village\u2019s annual actuarial requirements were from 1985 to 1989 pursuant to section 4\u2014118 of the Illinois Pension Code. 40 ILCS 5/4\u2014118 (West 1996). Section 4\u2014118 provides:\n\u201c(a) The city council or the board of trustees of the municipality shall annually levy a tax upon all the taxable property of the municipality at the rate on the dollar which will produce an amount which, when added to the deductions from the salaries or wages of firefighters and revenues available from other sources, will equal a sum sufficient to meet the annual actuarial requirements of the pension fund.\u201d (Emphasis added.) 40 ILCS 5/4\u2014118(a) (West 1996).\nThe record in the present case only states the total amount paid by the Village into the pension fund for the years 1985 to 1989, without a breakdown of what portion of the total amount paid represented the tax proceeds. Therefore, a material question of fact existed as to whether the amounts paid by the Village into the pension fund prior to 1990 included the actual amounts of the tax proceeds collected. Accordingly, we hold that the trial court erred in granting summary judgment in favor of the Association.\nWe briefly note that pre-1990 section 11\u201410\u20142 contained no language which prohibited the Village from using the tax proceeds to decrease its annual actuarial contribution to the pension fund. Nor does the Association cite to any authority regarding its argument that the 1990 amendment\u2019s elimination of a municipality\u2019s option to pay the tax proceeds into the pension fund supports the conclusion that the tax proceeds were not intended to be used by the Village to decrease the amount of its contribution to the pension fund. Further, upon researching this issue, we found no legislative history regarding section 11\u201410\u20142 available because transcripts of the legislature\u2019s debates only became available in 1971 and the statute was enacted in 1961. On the other hand, while the legislative debates concerning the 1990 amended section 11\u201410\u20142 discussed the pre-1990 section, the opinions recorded in those debates regarding the intended use of the foreign fire insurance tax proceeds prior to 1990 appear to be in contradiction of the pre-1990 statutory language and, therefore, unhelpful. For example, a proponent of the 1990 amendment stated: \u201cToday as the law stands, these monies [foreign fire insurance tax proceeds] are used for pension funds and the monies go into the general fund. *** The original intent of this Bill when originally enacted 25 years ago, was to have these funds go into new fire equipment ***. *** The only question is, that these funds that were originally intended to be used for new fire fighting equipment, are not going for that. What they\u2019re going for, are pension funds and there\u2019s a separate code that takes care of that.\u201d (Emphasis added.) 86th Ill. Gen. Assem., House of Representatives, Transcription Debate, at 24-25, 28. Clearly the statement that the original intent for the use of the tax proceeds was, apparently solely, to purchase new fire equipment conflicts with the express pre-1990 statutory language giving municipalities the option to pay the tax proceeds into an established pension fund. Therefore, we find this interpretation of the pre-1990 intended use of the tax proceeds flawed and, consequently, the Association\u2019s argument here, that the 1990 amendment\u2019s elimination of the option supports a conclusion that the tax proceeds were not intended to decrease the Village\u2019s pension obligation, unpersuasive. On the other hand, section 11\u201410\u20142, by using the word \u201cmay,\u201d clearly gave the Village the option to pay the tax proceeds into the firefighters\u2019 pension fund. Also, because the statute gave the Village this option, the fact that the Village did not elect a group of officers, presumably to be the repository for the tax proceeds, is not relevant since the election of officers was not necessary in light of the Village\u2019s exercise of the option to pay the tax proceeds into the pension fund, as discussed more fully below.\n1990 AMENDMENT\nThe Village next contends that section 8 of the State Mandates Act relieved it from complying with the 1990 amendment to section 11\u201410\u20142, requiring it to create and fund the Board, because section 11\u201410\u20142 was a personnel mandate. 30 ILCS 805/8 (West 1996). The Village argues that under amended section 11\u201410\u20142 it will incur additional costs in paying wages in the form of overtime to elected firefighters to the Board pursuant to the ELSA. The Village maintains that these additional costs fall under section 6(d) of the State Mandates Act and require reimbursement by the State for which no appropriation has been made by the Illinois General Assembly. 30 ILCS 805/6(d) (West 1996).\nThe Association argues that even if section 11\u201410\u20142 is an unfunded mandate, the alleged mandate is irrelevant because under the pre-1990 section 11\u201410\u20142 the Village was \u201calways\u201d required to elect officers and, therefore, since this requirement existed prior to the effective date of the State Mandates Act, the State Mandates Act is not applicable. The Association also argues that to the extent any amendment to section 11\u201410\u20142 is a state mandate, the mandate \u201cimposes additional duties of a nature which can be carried out by existing staff and procedures at no appreciable net cost increase\u201d and, therefore, it is not a reimbursable mandate under section 8(a)(2) of the State Mandates Act. 30 ILCS 805/8(a)(2) (West 1996). Alternatively, the Association argues that section 11\u201410\u20142 is a local government organization and structure mandate under section 3(c) of the State Mandates Act and that the mandate is exempt from reimbursement by the state under section 6(a) of the State Mandates Act. 30 ILCS 805/3(c), 6(a) (West 1996).\nIn 1990, section 11\u201410\u20142 was amended, and it currently provides:\n\u201cThe corporate authorities of any municipality containing less than 250,000 inhabitants which has an organized fire department shall pass an ordinance providing for the election of officers of the department foreign fire insurance board by the members of the department. *** These officers shall include a treasurer, and they shall make all needful rules and regulations with respect to the department foreign fire insurance board and the management of the money to be appropriated to the board. *** Ml of the money paid to the municipal treasurer as provided in Section 11\u201410\u20141 shall be set apart and shall be appropriated annually by the corporate authorities to the department foreign fire insurance board. *** The treasurer of the department foreign fire insurance board shall receive the appropriated money and shall pay out the money upon the order of the department foreign fire insurance board for the maintenance, use, and benefit of the department.\u201d (Emphasis added.) 65 ILCS 5/11\u201410\u20142 (West 1996).\nIn determining the intent of the legislature in enacting a statute, we look to the nature of the auxiliary verb it used. Legislative use of the word \u201cshall\u201d is generally considered to express a mandatory reading. Reed, 177 Ill. 2d at 393. The 1990 amendment to section 11\u201410\u20142 provided that \u201c[t]he corporate authorities of any municipality *** which has an organized fire department shall pass an ordinance providing for the election of officers of the department foreign fire insurance board by the members of the department.\u201d (Emphasis added.) 65 ILCS 5/11\u201410\u20142 (West 1996). The amendment further changed section 11\u201410\u20142 by adding that \u201c[a]ll of the money paid to the municipal treasurer as provided in Section 11\u201410\u20141 shall be set apart and shall be appropriated annually by the corporate authorities to the department foreign fire insurance board\u201d (65 ILCS 5/11\u201410\u20142 (West 1996)), and deleting the paragraph that had been in effect since the statute was enacted, and which we have determined above gave the Village the option to pay the fire insurance tax proceeds into the firefighters\u2019 pension fund. We therefore conclude that the language of amended section 11\u201410\u20142, requiring municipalities to pass an ordinance to elect a Board and to pay to the Board the tax proceeds collected by them pursuant to section 11\u201410\u20141, is mandatory.\nWe next consider the Village\u2019s argument that the State Mandates Act relieved it from complying with amended section 11\u201410\u20142 to create a Board and to pay the tax proceeds to the Board. The Association argues that the State Mandates Act is inapplicable because the requirements of 11\u201410\u20142, which was enacted in 1961, predated the State Mandates Act, which became, effective on January 1, 1981.\nThe purpose of the State Mandates Act is \u201cto enunciate policies, criteria and procedures to govern any future State-initiated specification of local government services, standards and employment conditions that has the effect of necessitating increased local government expenditures.\u201d (Emphasis added.) 30 ILCS 805/2(2) (West 1996). A \u201cState mandate,\u201d as defined in the State Mandates Act, is \u201cany State-initiated statutory or executive action that requires a local government to establish, expand or modify its activities in such a way as to necessitate additional expenditures from local revenues.\u201d (Emphasis added.) 30 ILCS 805/3(b) (West 1996). A \u201c[l]ocal government organization and structure mandate\u201d is \u201ca State mandate concerning such matters as (1) the form of local government and the adoption and revision of statutes on the organization of local government; *** and (5) the prescription of administrative practices and procedures for local governing bodies.\u201d 30 ILCS 805/3(c) (West 1996). A \u201c [personnel mandate\u201d is \u201ca State mandate concerning or affecting local government (1) salaries and wages; *** and (4) fringe benefits including insurance, health, medical care, retirement and other benefits.\u201d (Emphasis added.) 30 ILCS 805/3(h)(l), (h)(4) (West 1996). When a municipality\u2019s costs are increased by a mandate for which no funds have been appropriated, the municipality is relieved of the obligation to implement the mandate. 30 ILCS 805/8(a) (West 1996); Orr v. Edgar, 283 Ill. App. 3d 1088, 1099, 670 N.E.2d 1243 (1996). A mandate is excluded from reimbursement when it \u201cimposes additional duties of a nature which can be carried out by existing staff and procedures at no appreciable net cost increase.\u201d 30 ILCS 805/8(a)(2) (West 1996).\nWe interpret the pre-1990 section 11\u201410\u20142 as consisting of two separate provisions, complete within themselves, one mandatory and the other permissive. The section first mandatorily provided that a municipality \u201cshall pass an ordinance providing for the election of officers\u201d and the \u201cmunicipal treasurer shall pay the sums received from the insurance companies specified in Section 11\u201410\u20141 to the treasurer of the fire department.\u201d (Emphasis added.) Ill. Rev. Stat. 1987, ch. 24, par. 11\u2014\u00cd0\u20142. The section then provided for a permissive alternative to the preceding mandatory provision, i.e., \u201cHowever, in any municipality where a firemen\u2019s pension fund is or may be established ***, all of the money paid to the municipal treasurer *** may be set apart and appropriated by the municipality to the fund for the pensioning of *** members of the fire department.\u201d (Emphasis added.) Ill. Rev. Stat. 1987, ch. 24, par. 11\u201410\u20142. We conclude that because of the existence of the opposite mandatory and permissive language within the same section, the provisions can be properly interpreted as alternatives sufficient within themselves, i.e., if a municipality enacted an ordinance to elect officers, it was required to pay the tax proceeds to the fire department, but if a municipality exercised the option of paying the tax proceeds into a pension fund, the requirement of the first alternative, to elect officers, was not required as a result of the municipality\u2019s exercise of the second alternative option because electing the officers would have no operative effect on the municipality\u2019s exercise of the pension fund option, and, therefore, the election-of-officers provision pertained solely to the first alternative. To hold otherwise would result in an absurdity, i.e., requiring a municipality to elect officers with no function, since that function was being exercised by the municipality under the statutory option to pay the foreign fire insurance tax proceeds into an established pension fund. Accordingly, the Association\u2019s argument here, that the State Mandates Act is inapplicable because section 11\u201410\u20142 predates the Act and the Village was always required to comply with the pre1990 section 11\u201410\u20142 by enacting an ordinance to elect officers, fails.\nWith respect to the 1990 amended section 11\u201410\u20142, we conclude that since the amendment occurred after the enactment of the State Mandates Act, the Act would be applicable if section 11\u201410\u20142 is determined to be a personnel mandate.\nWe next observe that the practical effect of the 1990 amendment to section 11\u201410\u20142 is the elimination of the foreign fire insurance tax as a source of revenue to the Village to pay its mandatory contribution to the firefighters\u2019 pension fund. However, the requirement that the Village make the mandatory contribution of \u201ca sum sufficient to meet the annual actuarial requirements of the pension fund\u201d remains in place. 40 ILCS 5/4\u2014118(a) (West 1996). Because the 1990 amended section 11\u201410\u20142 mandatorily required the Village to turn the foreign fire insurance tax proceeds over to the Board, revenue previously paid into the firefighters\u2019 pension fund by the Village, material questions of fact existed as to the impact on the Village\u2019s mandatory contribution to the pension fund, which directly affects the fringe benefits, insurance and retirement benefits of the firefighter members, and whether amended section 11\u201410\u20142 constitutes a personnel mandate, necessitating additional local government expenditures for overtime wages to Board members pursuant to the FLSA, for which no appropriation has been made by the General Assembly, or some other nonreimbursable mandate. The record before us lacks the necessary Village budget information to find, as a matter of law, that earmarking the foreign fire insurance tax proceeds will not have the effect of necessitating increased local government expenditures. The amount of foreign fire insurance tax proceeds may not exceed the dollar amounts subject to the exclusion clause of section 8(a) of the State Mandates Act. 30 ILCS 805/8(a) (West 1996). On the other hand, the Village may be able to establish at trial that they do. Accordingly, because material questions of fact existed, we hold that the trial court erred in granting summary judgment to the Association, and we remand this cause for further proceedings.\nIn light of our remandment of this cause, we need not address the Village\u2019s remaining argument that the Association collectively bargained away its right to the tax proceeds pursuant to a \u201cSide Letter\u201d for the years 1990 through 1995.\nFor the reasons stated, the judgment of the circuit court is reversed and the cause is remanded for further proceedings.\nReversed and remanded.\nCAHILL, P.J., and McBRIDE, J., concur.\nPrior to June 30, 1995, section 11\u201410\u20142 of the Code had provided that a municipality \u201cshall pass an ordinance providing for the election of officers of that department.\u201d Pursuant to Public Act 89\u201463, section 11\u201410\u20142 was amended and currently designates the elected officers as the \u201cforeign fire insurance board.\u201d Pub. Act 89\u201463, \u00a7 5, eff. June 30, 1995.\nJustice McBride replaced Justice Leavitt as a panel member in this appeal, and she has reviewed the record and briefs and listened to the oral argument tape.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Richard N. Williams, Corporation Counsel, of Village of Hoffman Estates, of Hoffman Estates, for appellants.", "Thomas F. McGuire & Associates, Ltd., of Long Grove (Brian A. Schroeder, of counsel), for appellees." ], "corrections": "", "head_matter": "HOFFMAN ESTATES PROFESSIONAL FIREFIGHTERS ASSOCIATION et al., Plaintiffs-Appellees, v. THE VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellants.\nFirst District (3rd Division)\nNo. 1\u201498\u20140489\nOpinion filed March 31, 1999.\nRehearing denied June 18, 1999.\nModified opinion filed June 23, 1999, nunc pro tunc March 31, 1999.\nRichard N. Williams, Corporation Counsel, of Village of Hoffman Estates, of Hoffman Estates, for appellants.\nThomas F. McGuire & Associates, Ltd., of Long Grove (Brian A. Schroeder, of counsel), for appellees." }, "file_name": "0242-01", "first_page_order": 260, "last_page_order": 274 }