                           No. 3--05--0736
                       Filed August 22, 2006.

                                IN THE

                     APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2006


DANIEL J. SEDLOCK, JR.,         )    Appeal from the Circuit Court
                                )    of the 13th Judicial Circuit,
     Petitioner-Appellant,      )    La Salle County, Illinois
                                )
          v.                    )    No.     04--MR--197
                                )
THE BOARD OF TRUSTEES OF THE    )

POLICE PENSION FUND OF THE      )
CITY OF OTTAWA,                 )
                                )    Honorable William Balestri,
     Respondent-Appellee.       )    Judge, Presiding.


PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:



     This is an appeal of the trial court's dismissal of

petitioner Daniel Sedlock's complaint for declaratory judgment.

Sedlock asked the circuit court of La Salle County to declare

that the Board of Trustees of the Police Pension Fund of the City

of Ottawa (PPF) does not have the authority to make a final

salary determination for Sedlock in any sum other than

$84,338.31.

                              BACKGROUND

     Sedlock retired as chief of police of the City of Ottawa on

September 8, 2003.   Sedlock's salary, as chief of police, was
$64,000 until the city council of the City of Ottawa amended his

employment agreement on August 5, 2003, to increase his annual

salary to $84,338.31.   The increase in his salary took effect on

September 1, 2003, one week before his retirement.   The PPF set a

public hearing to be held on October 26, 2004, to consider what

the final salary determination should be for calculating the

future retirement pension of Sedlock.

     Under section 3--111 of the Illinois Pension Code (the

Code), a police officer shall receive a pension of one-half of

the salary attached to the rank held on the last day of service.

 40 ILCS 5/3--111(a) (West 2004).    Pursuant to the Code, "salary"

means the annual salary, including longevity attached to the

police officer's rank, as established by the municipality's

appropriation ordinance, including any compensation for overtime

which is included in the salary established, but excluding any

"overtime pay," "holiday pay," "bonus pay," "merit pay," or any

other cash benefit not included in the salary so established.    40

ILCS 5/3--125.1 (West 2004).

     On October 5, 2004, Sedlock filed a complaint for

declaratory judgment, requesting that the court enter an order

finding that the PPF has no authority under the Code to make a

final annual salary determination in any sum other than the

amount of $84,338.31.   The PPF filed a motion to dismiss,

claiming that the circuit court did not have jurisdiction over


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the subject matter of the complaint because there was no actual

controversy between the parties since the PPF had not yet made a

determination as to what the salary was and no final appealable

decision by the PPF had been made.    Sedlock filed a motion to

strike the PPF's motion to dismiss.

     A hearing was held on both motions and, on May 31, 2005, the

court denied Sedlock's motion to strike and granted the PPF's

motion to dismiss.   First, the court found that it is the PPF's

fiduciary duty to determine a police officer's salary when

calculating his pension.   Then, the court found that dismissal

was appropriate because Sedlock was required to exhaust his

administrative remedies, if dissatisfied with any decision of the

PPF, before seeking judicial relief in court.

     There are two issues before this court.    First, whether the

PPF has the authority to determine what a police officer's

"salary" is under the Code for the purpose of calculating the

officer's pension benefit amount.    The second issue is whether,

after having answered the preceding question in the affirmative,

the trial court properly dismissed the declaratory judgment

action for lack of subject matter jurisdiction.

                             ANALYSIS

     We affirm the circuit court.    First, we address whether the

court has jurisdiction to decide whether the PPF has the

authority to determine Sedlock's salary.    Generally, a person


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with a claim from an administrative agency must exhaust his

administrative remedies before seeking relief from the judicial

system pursuant to the Illinois Administrative Review Law.        735

ILCS 5/3--101 et seq. (West 2004).       However, the court has

recognized several exceptions to the doctrine of exhaustion of

administrative remedies, including when the agency's jurisdiction

is attacked because a party claims that it is not authorized by

statute to do something it is attempting to do, as Sedlock claims

here.   Castaneda v. Illinois Human Rights Comm'n, 132 Ill. 2d

304, 309, 547 N.E.2d 437, 439 (1989); Wright v. Pucinski, 352

Ill. App. 3d 769, 773, 816 N.E.2d 808, 814 (2004).       Where an

administrative assertion of authority to hear or determine

certain matters is challenged on its face as not authorized by

the enabling legislation, such a facial attack does not implicate

the exhaustion doctrine and exhaustion is not required.         Wright

v. Pucinski, 352 Ill. App. 3d at 773, 816 N.E.2d at 814.        The

rationalization for this exception is that when an agency's

statutory authority to exercise jurisdiction is at issue, no

questions of fact are involved.       The agency's particular

expertise is not implicated in the necessary statutory

interpretation.    Wright v. Pucinski, 352 Ill. App. 3d at 774, 816

N.E.2d at 814.    Therefore, the trial court had jurisdiction to

decide whether the PPF had the authority to determine Sedlock's

salary for the purpose of calculating his pension under the Code.


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     Next, we consider whether the PPF has authority to determine

Sedlock's "salary."   We agree with the trial court's statutory

interpretation that the PPF has the authority to determine what

Sedlock's salary is under the Code for the purpose of calculating

his future pension. Section 3--132 of the Code provides that,

pursuant to section 3--131, police pension fund boards have the

exclusive control and management of the pension fund.       40 ILCS

5/3--132 (West 2004).   The fundamental purpose of a police

pension fund board is to determine eligibility to participate in

the fund.   Board of Trustees of the Police Pension Fund v. Human

Rights Comm'n, 141 Ill. App. 3d 447, 455, 490 N.E.2d 232, 238

(1986).   Additionally, the trustees of the fund are statutorily

designated as fiduciaries.   Section 1--101.2 of the Code provides

that any person who exercises any discretionary authority or

control over the money amount of a pension fund is a "fiduciary."

 40 ILCS 5/1--101.2 (West 2004).       As a fiduciary, each board

member is required to "discharge his or her duties with respect

to the *** pension fund solely in the interest of the

participants and beneficiaries and *** for the exclusive purpose

of *** providing benefits to participants and their

beneficiaries."   40 ILCS 5/1--109 (West 2004).

     We hold that the board's statutory duties include determing

what Sedlock's annual salary should be for the purpose of

calculating his retirement benefits.       Granting Sedlock's request


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could result in circuit courts being charged with making salary

determinations for thousands of public employees seeking

disability or retirement pensions each year.      This is not what

the legislature intended.   The board is in the best position to

determine whether Sedlock's most recent salary included overtime,

holiday, bonus, or merit pay.

     Next, we consider whether the court properly dismissed the

complaint for declaratory judgment.      Once the court properly

determined the scope of the PPF's authority, there was no actual

controversy between the parties since there had been no

determination by the PPF as to what the salary of Sedlock was or

what his retirement pension will be.      Under section 3--128 of the

Code, all final administrative decisions of the pension board are

judicially reviewable under the provisions of the Administrative

Review Law.   40 ILCS 5/3--128 (West 2004).     An administrative

decision is "any decision, order or determination of any

administrative agency rendered in a particular case, which

affects the legal rights, duties or privileges of [a party] and

which terminates the proceedings before the administrative

agency."   735 ILCS 5/3--101 (West 2004).     Until there is a final

appealable decision by the PPF, any action brought before the

court is premature and the court does not have subject matter

jurisdiction.   Judicial review can only be undertaken where there

is a final agency determination.       Taylor v. State Universities


                                   6
Retirement System, 159 Ill. App. 3d 372, 374, 512 N.E.2d 399, 401

(1987).

     Without a final decision from the PPF, there is simply

nothing for the circuit court to review.   The circuit court,

therefore, correctly determined that it had no subject matter

jurisdiction on the issue of what Sedlock's salary should be.

                           CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of La Salle County is affirmed.

     Affirmed.

     LYTTON and O'BRIEN, JJ., concur.




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