{ "id": 4284912, "name": "ALAN KOSAKOWSKI, Plaintiff-Appellee, v. THE BOARD OF TRUSTEES OF THE CITY OF CALUMET CITY POLICE PENSION FUND, Defendant-Appellant", "name_abbreviation": "Kosakowski v. Board of Trustees", "decision_date": "2009-03-31", "docket_number": "No. 1-08-1898", "first_page": "381", "last_page": "387", "citations": [ { "type": "official", "cite": "389 Ill. App. 3d 381" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "510 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 158", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3544395 ], "year": 1987, "pin_cites": [ { "page": "165-66" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0158-01" ] }, { "cite": "776 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 485732 ], "year": 2002, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0792-01" ] }, { "cite": "421 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 482", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12135304 ], "year": 1981, "pin_cites": [ { "page": "486-87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0482-01" ] }, { "cite": "487 N.E.2d 937", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "109 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126692 ], "year": 1985, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0357-01" ] }, { "cite": "604 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "152 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5603320 ], "year": 1992, "pin_cites": [ { "page": "405-06" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0401-01" ] }, { "cite": "561 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "138 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576867 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "189" }, { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0178-01" ] }, { "cite": "794 N.E.2d 1055", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "342 Ill. App. 3d 227", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472448 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "231" }, { "page": "231", "parenthetical": "noting the reasoning of the Rossler court" }, { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0227-01" ] }, { "cite": "533 N.E.2d 927", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2431322 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "773" }, { "page": "774" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0769-01" ] } ], "analysis": { "cardinality": 664, "char_count": 17154, "ocr_confidence": 0.773, "pagerank": { "raw": 7.980573252194611e-08, "percentile": 0.46353590498905534 }, "sha256": "730c0cc7677ccb9d450af3302c8976a05e7fb5047a0e0105661bb4be6fb46cf8", "simhash": "1:4977efa6ec310ec8", "word_count": 2837 }, "last_updated": "2023-07-14T20:37:38.013620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALAN KOSAKOWSKI, Plaintiff-Appellee, v. THE BOARD OF TRUSTEES OF THE CITY OF CALUMET CITY POLICE PENSION FUND, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe Board of Trustees of the City of Calumet City Police Pension Fund (Board) appeals from a judgment of the circuit court of Cook County which reversed a decision of the Board that reduced the monthly benefit being paid to the plaintiff, Alan Kosakowski, as a consequence of a disability he sustained in the \u201cline of duty\u201d as a Calumet City police officer. For the reasons that follow, we affirm the judgment of the circuit court.\nThe facts of this case are undisputed. The plaintiff became a member of the Calumet City police department on April 23, 1990. On January 4, 2002, the plaintiff, while acting in his capacity as a Calumet City police officer, injured his back as he attempted to effectuate an arrest. As a result of the injuries which he sustained, the plaintiff is no longer able to perform the duties of a police officer.\nFor the period from January 5, 2002, through January 5, 2003, the plaintiff was paid his full salary pursuant to section 1 of the Public Employee Disability Act (PEDA) (5 ILCS 345/1 (West 2002)). Pension contributions due to the Calumet City Police Pension Fund were deducted from the plaintiffs salary during this period. From January 6, 2003, through April 19, 2004, the plaintiff received temporary total disability benefits under the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 2002)). No pension contributions were deducted from the plaintiffs workers\u2019 compensation benefits.\nThe plaintiff filed an application with the Board for a line-of-duty disability pension. Section 3 \u2014 114.1 of the Illinois Pension Code (Code) (40 ILCS 5/3 \u2014 114.1 (West 2002)) provides that, in circumstances such as the instant case, a police officer who becomes disabled by reason of an injury incurred in the line of duty is entitled to a disability pension equal to 65% of the salary attached to his rank \u201cat the date of suspension of duty or retirement.\u201d 40 ILCS 5/3 \u2014 114.1 (West 2002).\nOn April 19, 2004, the Board issued a written decision, awarding the plaintiff a line-of-duty disability pension. Specifically, the Board found that the plaintiff \u201cis entitled to a disability pension \u2014 line of duty, based upon the rate of sixty-five percent (65%) of the salary attached to [his] *** rank as of January 4, 2002, which was $59,224.66 and that he is entitled to receive the sum of $3,208.00 per month.\u201d Neither the Board nor the plaintiff sought a judicial review of the Board\u2019s April 19, 2004, decision.\nOn July 11, 2007, the Board submitted an inquiry to the Division of Insurance of the Illinois Department of Financial and Professional Regulation (Department) requesting an opinion as to the appropriate salary to be used in computing a police officer\u2019s disability pension. On July 12, 2007, the Department responded to the inquiry, stating that the salary to be used is the salary that the officer was receiving when last on the payroll. According to the Department\u2019s response, if an officer receives PEDA benefits, the salary that should be used for pension purposes is the salary that the officer was receiving on the last day that pension contributions were withheld and creditable service was earned.\nOn August 10, 2007, the Board issued a letter to the plaintiff advising him that it had miscalculated the line-of-duty disability pension to which he was entitled. The letter states that the plaintiff\u2019s monthly pension was being reduced to $3,084.62 and that the Board intended to deduct $403.38 per month from his next 12 monthly pension payments in repayment of an alleged overpayment of $4,840.56 which he received through July 31, 2007.\nOn September 14, 2007, the plaintiff instituted the instant administrative review action, seeking a reversal of the Board\u2019s reduction of his pension benefits and demand for repayment of the alleged overpayment. The plaintiff also sought a reinstatement of his $3,208 monthly benefit.\nOn June 18, 2008, the circuit court entered a judgment, reversing the Board\u2019s recalculation of the plaintiffs pension. The circuit court found that, because more than 35 days had passed since the entry of its order of April 19, 2004, fixing the plaintiff\u2019s monthly pension benefit at $3,208, the Board lacked jurisdiction to modify his disability pension on August 10, 2007. This appeal followed.\nIn urging reversal of the circuit court\u2019s judgment, the Board asserts that it possesses the statutory authority to correct errors in overpayment of pension benefits (see 40 ILCS 5/3 \u2014 144.2 (West 2006)), without regard to the expiration of the 35-day period provided in section 3 \u2014 103 of the Administrative Review Law (735 ILCS 5/3 \u2014 103 (West 2002)) for appealing final administrative decisions. We agree with the Board\u2019s statement of the law in this regard; however, we disagree with its application of section 3 \u2014 144.2 of the Code to the facts of this case.\nThe Board is only empowered to act pursuant to the authority granted it by statute, and any action in excess of that authority is void. Rossler v. Morton Grove Police Pension Board, 178 Ill. App. 3d 769, 773, 533 N.E.2d 927 (1989). Article 3 of the Code regulates and establishes the powers of police pension boards in municipalities such as Calumet City whose populations are between 5,000 and 500,000 inhabitants. See 40 ILCS 5/3 \u2014 101 et seq. (West 2006).\nSection 3 \u2014 148 of the Code provides that \u201c[t]he provisions of the Administrative Review Law, and all amendments and modifications thereof and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the retirement board provided for under this Article.\u201d 40 ILCS 5/3 \u2014 148 (West 2006). Section 3 \u2014 103 of the Administrative Review Law states, in relevant part, that \u201c[ejvery action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision.\u201d 735 ILCS 5/3 \u2014 103 (West 2002). It has been held, therefore, that an administrative agency, such as the Board, lacks jurisdiction to reconsider its final decisions after the expiration of the 35-day period. Sola v. Roselle Police Pension Board, 342 Ill. App. 3d 227, 231, 794 N.E.2d 1055 (2003).\nOn April 19, 2004, the Board issued its final decision awarding the plaintiff a line-of-duty disability pension and fixing his monthly benefit at $3,208. As noted earlier, neither the Board nor the plaintiff filed a complaint for a review of that decision within the 35 days provided in section 3 \u2014 103 of the Administrative Review Law. Nevertheless, the Board argues that, regardless of the expiration of the 35-day period following the issuance of its decision on April 19, 2004, section 3 \u2014 144.2 of the Code (40 ILCS 5/3 \u2014 144.2 (West 2006)) grants it the authority to modify the plaintiffs pension. The Board asserts that it made an error in the initial calculation of the disability pension benefit to which the plaintiff is entitled. According to the Board, it calculated the $3,208 monthly benefit it awarded to the plaintiff in its decision of April 19, 2004, based upon his salary on April 19, 2004, the last date that he received workers\u2019 compensation benefits; whereas, it should have calculated the plaintiffs pension based upon his salary on January 5, 2003, the last day that he received PEDA benefits from which pension contributions were deducted. The Board contends that, had it properly calculated the plaintiffs disability pension benefit, he would have been awarded a monthly benefit of $3,084.62, and, as a consequence, the plaintiff has received an overpayment of $4,840.56 which it is entitled to recoup.\nSection 3 \u2014 144.2 of the Code provides that \u201c[t]he amount of any overpayment, due to fraud, misrepresentation or error, of any pension or benefit granted under this Article may be deducted from future payments to the recipient of such pension or benefit.\u201d 40 ILCS 5/3\u2014 144.2 (West 2006). Based upon this statutory provision, the Board argues that it had the authority to enter its order of August 10, 2007, recalculating the plaintiffs monthly benefit and providing for repayment of the alleged overpayment which he had received.\nThe Board makes no claim that the pension it awarded to the plaintiff on April 19, 2004, was the product of fraud or misrepresentation on his part. We are faced with the question of whether the Board\u2019s original calculation of the disability pension benefits to which the plaintiff is entitled qualifies as an \u201cerror\u201d within the meaning of section 3 \u2014 144.2 of the Code.\nIn construing a statute, our function is to ascertain and give effect to the intent and meaning of the legislature. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656 (1990). Legislative intent is best evidenced by the language used by the legislature, and, where the language of a statute is clear and unambiguous, we must interpret the statute according to its terms. Heck v. Central Illinois Light Co., 152 Ill. 2d 401, 405-06, 604 N.E.2d 939 (1992).\nWhen, as in this case, a statutory term is not specifically defined, it must be given its ordinarily and popularly understood meaning in light of the statute\u2019s purpose. Niven v. Siqueira, 109 Ill. 2d 357, 366, 487 N.E.2d 937 (1985). The word \u201cerror\u201d is commonly defined as \u201can act involving an unintentional deviation from truth or accuracy: a mistake in perception, reasoning, recollection, or expression ***: an act that through ignorance, deficiency, or accident departs from or fails to achieve what should be done.\u201d Webster\u2019s Third New International Dictionary 772 (1981). Black\u2019s Law Dictionary defines \u201cerror\u201d as a mistake. Black\u2019s Law Dictionary 582 (8th ed. 2004).\nIn Rossler v. Morton Grove Police Pension Board, 178 Ill. App. 3d 769, 533 N.E.2d 927 (1989), the court appears to have limited the errors entitling a police pension board to readjust pension payments and recoup overpayments to cases involving a board\u2019s inadvertent arithmetical error in calculating a pension. Rossler, 178 Ill. App. 3d at 774; see also Sola, 342 Ill. App. 3d at 231 (noting the reasoning of the Rossler court). In this case, the Board makes no argument that the disability pension which it awarded to the plaintiff on April 19, 2004, was the result of any arithmetical error made in calculating his pension. However, we believe that the Rossler court engrafted a limitation upon the term \u201cerror\u201d in section 3 \u2014 144.2 that the legislature did not express. Had the legislature intended to limit a police pension board\u2019s authority to recalculate a disability pension and recoup the overpayment of benefits to cases involving arithmetical errors in calculating the benefit, it could have so provided. It did not, and we are not at liberty to read into the statute a limitation that the legislature did not express. Kraft, 138 Ill. 2d at 189. Although we decline to adopt the Rossler court\u2019s limited interpretation of the term \u201cerror\u201d in section 3 \u2014 144.2 of the Code, our analysis continues as we must still determine whether the Board in this case made an error within the meaning of the statute when, on April 19, 2004, it calculated the disability pension to which the plaintiff is entitled.\nThe Board asserts in its brief that, in its original decision, the monthly benefit awarded to the plaintiff was computed based upon his salary on April 19, 2004, \u201cthe date he last received workers\u2019 compensation.\u201d However, the Board\u2019s assertion in this regard is contrary to the text of its April 19, 2004, decision which states that the plaintiffs $3,208 monthly disability pension was computed based upon \u201cthe salary attached to [his] *** rank as of January 4, 2002, which was $59,224.66.\u201d\nIn addition to the factual inaccuracy of the Board\u2019s argument, its entire claim of error is premised upon the Department\u2019s interpretation of section 3 \u2014 114.1 of the Code; specifically, the Department\u2019s opinion as to the appropriate salary to be used in calculating a disability pension. That opinion was rendered pursuant to section 1A\u2014 106 of the Code, which provides, in relevant part, that the Department shall render \u201cadvisory services\u201d to pension funds on all matters pertaining to their operations, and its \u201crecommendations\u201d may embrace all substantive legislative policies, including matters dealing with the payment of annuities and benefits. 40 ILCS 5/1A \u2014 106 (West 2006). The statute authorizes the Department to render advisory services and make recommendations to pension funds; it does not mandate that pension boards follow or adopt those recommendations.\nIn its decision of April 19, 2004, the Board found that the annual salary which attached to the plaintiffs rank on January 4, 2002, the last day that he worked, was $59,224.66. As with any finding of fact or conclusion by an administrative agency, the Board\u2019s finding in this regard is prima facie true and correct. 735 ILCS 5/3 \u2014 110 (West 2002). As noted earlier, section 3 \u2014 114.1 of the Code provides that, in circumstances such as in the instant case, a police officer disabled in the line of duty is entitled to a disability pension in the amount of 65% of the salary attached to his rank \u201cat the date of suspension of duty or retirement.\u201d 40 ILCS 5/3 \u2014 114.1 (West 2002). In its decision of April 19, 2004, the Board awarded the plaintiff a monthly disability pension of $3,208. Annualized, that benefit is equal to 65% of the salary which the Board found attached to the plaintiffs rank on the last day that he worked.\nIn computing the benefit to which the plaintiff is entitled, the Board obviously interpreted the phrase \u201cat the date of suspension of duty\u201d in section 3 \u2014 114.1 to mean the last day that the plaintiff worked. However, based upon the Department\u2019s opinion, the Board has now changed its interpretation of section 3 \u2014 114.1 and contends that the plaintiffs pension should be calculated based upon his salary on January 5, 2003, the last day that he received PEDA benefits from which pension contributions were deducted.\nWe do not believe that the Board\u2019s April 19, 2004, calculation of the disability pension to which the plaintiff is entitled qualifies as an error within the meaning of section 3 \u2014 144.2 of the Code allowing the Board to modify the plaintiff\u2019s pension. In its decision of April 19, 2004, the Board awarded the plaintiff exactly what it intended to award him; a disability pension equal to 65% of the salary which the Board found attached to the plaintiffs rank on the last date that he worked. The Board made no arithmetical error in its calculation. Nor is there any competent evidence in the record that the Board erred in its finding as to the salary which attached to the plaintiffs rank on the last day that he worked. Finally, there is no evidence that the plaintiff was paid more than the monthly benefit of $3,208 to which the Board originally found that he was entitled. Rather, the Board\u2019s entire claim of error is based upon its reinterpretation of section 3 \u2014 114.1 of the Code following the recommendation of the Department. However, the Board\u2019s change in interpretation of the Code based upon a recommendation of the Department does not qualify as an error within the meaning of section 3 \u2014 144.2 authorizing it to modify the plaintiffs pension benefits. Sola, 342 Ill. App. 3d at 231.\nAbsent an error within the meaning of section 3 \u2014 144.2, the Board was without jurisdiction on August 10, 2007, to modify the disability pension which it awarded the plaintiff on April 19, 2004. For this reason, we affirm the judgment of the circuit court.\nAlthough not necessary to our resolution of this appeal, we feel compelled to comment on the procedure used by the Board in its attempt to modify the plaintiffs pension benefits. The receipt of a disability pension is a property right which cannot be diminished without procedural due process. Wendl v. Moline Police Pension Board, 96 Ill. App. 3d 482, 486-87, 421 N.E.2d 584 (1981). \u201cThe essence of procedural due process is meaningful notice and a meaningful opportunity to be heard.\u201d Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 799, 776 N.E.2d 840 (2002). In this case, the Board afforded the plaintiff neither. Without notice and without a hearing, the Board unilaterally attempted to modify the disability pension which it had previously awarded to the plaintiff. As a matter of due process, the Board should have provided the plaintiff with notice and an opportunity to be heard before modifying his pension. Moore v. Board of Trustees of the Sanitary District Employees\u2019 & Trustees\u2019 Annuity & Benefit Fund, 157 Ill. App. 3d 158, 165-66, 510 N.E.2d 87 (1987).\nAffirmed.\nKARNEZIS, EJ., and SOUTH, J., concur.", "type": "majority", "author": "JUSTICE HOFFMAN" } ], "attorneys": [ "Atwell & Atwell Law Offices, of Aurora (Charles H. Atwell, of counsel), for appellant.", "Stanley H. Jakala, of Berwyn, for appellee." ], "corrections": "", "head_matter": "ALAN KOSAKOWSKI, Plaintiff-Appellee, v. THE BOARD OF TRUSTEES OF THE CITY OF CALUMET CITY POLICE PENSION FUND, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201408\u20141898\nOpinion filed March 31, 2009.\nAtwell & Atwell Law Offices, of Aurora (Charles H. Atwell, of counsel), for appellant.\nStanley H. Jakala, of Berwyn, for appellee." }, "file_name": "0381-01", "first_page_order": 397, "last_page_order": 403 }