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                                                                                  Date: 2017.03.06
                                                                                  12:36:56 -06'00'



                  Village of North Riverside v. Boron, 2016 IL App (1st) 152687



Appellate Court           THE VILLAGE OF NORTH RIVERSIDE, Plaintiff-Appellant, v.
Caption                   ANDREW BORON, in His Official Capacity as Director of
                          Insurance, and THE ILLINOIS DEPARTMENT OF INSURANCE,
                          Defendants-Appellees.



District & No.            First District, First Division
                          Docket No. 1-15-2687


Filed                     December 19, 2016



Decision Under            Appeal from the Circuit Court of Cook County, No. 14-CH-17951; the
Review                    Hon. Sophia H. Hall, Judge, presiding.



Judgment                  Affirmed.



Counsel on                Burton S. Odelson and Michael J. Hayes, Jr., of Odelson & Sterk, Ltd.,
Appeal                    of Evergreen Park, for appellant.

                          Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                          Solicitor General, and Richard S. Huszagh, Assistant Attorney
                          General, of counsel), for appellees.



Panel                     JUSTICE SIMON delivered the judgment of the court, with opinion.
                          Presiding Justice Connors and Justice Mikva concurred in the
                          judgment and opinion.
                                             OPINION

¶1       This case concerns the Village of North Riverside’s (Village) failure to meet its statutory
     contribution obligations to its police and firefighter pension funds. At an administrative
     hearing, the Village argued that its noncompliance should be excused because it had good
     and sufficient cause for failing to meet its obligations. The administrative hearing officer
     rejected the Village’s arguments, and the hearing officer’s recommendation was accepted by
     the Director of the Public Pension Division. The Village sought administrative review in the
     circuit court which affirmed the decision. The Village now seeks review here, and we
     confirm the administrative ruling and affirm the circuit court’s decision.

¶2                                         BACKGROUND
¶3        The Illinois Pension Code (40 ILCS 5/1-101 et seq. (West 2012)) requires municipalities
     to contribute to the police and firefighter pension funds. See 40 ILCS 5/3-125 (West 2012)
     (police); 40 ILCS 5/4-118 (West 2012) (firefighters). The municipalities are required to pay
     the amount to cover the “normal cost” that remains after the employees’ contributions are
     factored in. 40 ILCS 5/3-125, 4-118 (West 2012).
¶4        The General Assembly enacted legislation to create the Public Pension Division
     (Division), which is charged with administering and enforcing the provisions of the Pension
     Code. 40 ILCS 5/1A-101 (West 2012). Whenever the Division determines that a government
     unit has failed to comply with the law, the Director of the Division (Director) may hold a
     hearing where the government must show cause for its noncompliance. 40 ILCS
     5/1A-113(d)(3) (West 2012). If, at the conclusion of the hearing, the Director determines that
     “good and sufficient cause” for noncompliance has not been shown, the Director is entitled to
     order compliance and assess penalties. 40 ILCS 5/1A-113(d)(4)-(5) (West 2012). The
     General Assembly mandated that the Director develop standards and criteria to be used to
     administer the penalty provision set forth in section 1A-113. 40 ILCS 5/1A-113 (West 2012).
¶5        The Division used its rulemaking authority by issuing certain regulations. See 50 Ill.
     Adm. Code 4435.10 (1998). The relevant regulation in this case states that, at the hearing, in
     determining whether the government has met its burden of showing “good and sufficient
     cause” for noncompliance,
                  “the Director may consider, but is not limited to, the following:
                      1) Evidence that, due to no fault of the pension fund, governmental unit or
                  elected or appointed official of a governmental unit, there was an unforeseeable or
                  unexpected delay or occurrence;
                      2) Evidence of an uncontrollable circumstance; and
                      3) Evidence pertaining to Acts of God.” 50 Ill. Adm. Code 4435.80(c) (1998).
¶6        Defendant Illinois Department of Insurance determined that plaintiff Village violated the
     Illinois Pension Code when it failed to make full, actuarially designated annual contributions
     to its police pension fund from 2008 to 2012 and its firefighter pension fund from 2009 to
     2012. The Village acknowledged that it had not met its contribution obligations but asserted
     that there were mitigating circumstances and that it intended to take remedial action in the
     coming years. The Director called a hearing to give the Village an opportunity to show “good
     and sufficient cause” for its violations.

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¶7         At the hearing, the Village offered evidence through its finance director, Sue Scarpiniti.
       Scarpiniti testified that North Riverside is a village with a small residential community, but
       that it has a relatively large commercial base. As a result, the Village has a larger police and
       firefighter force than most communities of similar population. Scarpiniti explained that the
       Village’s inability to meet its contribution obligations was a result of the recession occurring
       around 2009. The Village lost funds in sales tax receipts, property tax receipts, and shared
       revenue from the state during this period.
¶8         Scarpiniti testified that, in 2012, the Village lost its largest sales tax producer, a restaurant
       supply company, to another suburb in Du Page County. That business alone accounted for
       15% of the Village’s annual sales tax collections, and sales tax collections account for 60%
       of the Village’s total annual operating revenue. The Village also received less revenue from
       the state which is derived from income taxes and other taxes and fees the State collects.
       Scarpiniti testified that property tax receipts also decreased at this time because the assessed
       property values decreased during the economic downturn. Many property owners were
       successful in lowering their property taxes through appeals. The property tax revenue
       problem was compounded, Scarpiniti stated, by the fact that the Village is a “non-home rule”
       community and is bound by the Property Tax Extension Limitation Law (35 ILCS
       200/18-185 (West 2012)). That law caps the amount that a community can increase its
       property tax levy each year, so it prohibited the Village from making any significant
       increases in property taxes to cover the deficiencies it was experiencing.
¶9         The Village issued bonds in an attempt to attract new businesses, and it issued debt
       certificates to refinance a loan. The Village sold additional debt certificates to make up for
       the loss of the revenue resulting from the departed restaurant supply company. All of these
       issuances negatively affected the Village’s credit rating and it received three successive
       downgrades from 2001 to 2014.
¶ 10       On the other hand, the hearing also revealed that from 2000 to 2011, there were actually
       six years in which the Village did not make any contributions to the police or firefighter
       pension funds. Scarpiniti acknowledged that the Village’s failure to contribute over the years
       would mean it would need to contribute more in future years. Over the same period,
       however, the Village made the full required contribution to the Illinois Municipal Retirement
       Fund covering its other employees because that fund “had an enforcement provision.”
¶ 11       The evidence also showed that from 2000 to 2012, sales tax receipts actually increased as
       a result of two sales tax hikes, from $4,797,654 in 2000 to $8,479,401 in 2012. Scarpiniti
       testified that the Village subsidized garbage collection and water services for the residents
       even though other municipalities were passing along the cost increases for those services to
       their residents. Scarpiniti testified that whatever additional revenue streams the Village was
       able to create over the relevant period were used to fill the voids in the Village’s normal
       revenue lost as a result of the economic downturn.
¶ 12       The hearing officer issued a lengthy recommended order detailing his findings of fact and
       conclusions of law. In it, he found that the Village’s proffered reasons for noncompliance did
       not amount to good and sufficient cause for its failures to meet its pension contribution
       obligations. The Director adopted the findings of fact and conclusions of law submitted by
       the hearing officer and ordered the Village to comply with its obligations and submit
       evidence of that compliance within 30 days. The Village sought administrative review of that
       decision in the circuit court, and following oral argument, the circuit court affirmed the

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       administrative decision. The Village now seeks review here.

¶ 13                                            ANALYSIS
¶ 14        There is some disparity in the parties’ arguments concerning what standard of review we
       are supposed to apply, but it does not seem that their positions necessarily conflict. On
       appeal, the Village argues that the regulation purporting to define what constitutes “good and
       sufficient cause” (50 Ill. Adm. Code § 4435.80) is unconstitutional because it is too vague.
       So, on that question of law, our review is de novo. American Federation of State, County, &
       Municipal Employees (AFSCME), Council 31 v. State, 2015 IL App (1st) 133454, ¶ 11;
       People ex rel. Madigan v. Illinois Commerce Comm’n, 231 Ill. 2d 370, 380 (2008). But its
       other argument—that the Village actually did show good and sufficient cause—presents a
       mixed question of law and fact and, therefore, we will only overturn the agency’s decision if
       it is clearly erroneous. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d
       191, 205 (1998).
¶ 15        The Village argues that “good and sufficient cause” as it is used in the Illinois Pension
       Code and derivatively in the pension subchapter of the Illinois Administrative Code is too
       vague, and therefore, the regulation is unconstitutional. The Village contends that because
       the term is so undefined, it gives the hearing officer too much discretion and allows the
       interpretation of the regulation to vary wildly from case to case based on the “whims of
       different hearing officers who are charged with enforcing the rule.” The constitutionality of
       the regulation has apparently never been challenged.
¶ 16        The regulation states that the Director may consider: evidence of whether there was an
       unforeseeable or unexpected delay or occurrence, an uncontrollable circumstance, or any
       evidence pertaining to Acts of God. 50 Ill. Adm. Code 4435.80(c) (1998). The regulation
       also states that the Director is not limited to considering those factors and it leaves open
       ended what other considerations might be relevant. See id. The Village contends that the rule
       grants the Director unlimited discretion and is, thus, not appropriately tailored to the Illinois
       Administrative Procedure Act’s directive that “standards shall be stated as precisely and
       clearly as practicable.” 5 ILCS 100/5-20 (West 2012).
¶ 17        Contrary to the Village’s position, the regulation provides sufficiently-tailored standards
       from which the agency can render a decision as to whether the government has met its
       burden of showing good and sufficient cause for failing to meet its contribution obligations.
       The regulation sets out broad relevancy standards but, really, that should inure to the benefit
       of the government units. If anything, the argument that the regulation is too vague should
       belong to defendants. The regulation basically gave the Village free rein to present any
       convincing reason that it was unable to comply with its statutory obligations. Even with that
       wide latitude, the hearing officer found that the Village was unable to show good cause.
¶ 18        There are innumerable reasons why a municipality might not be able to meet a financial
       obligation at a given time. The agency cannot anticipate all of those reasons with much
       certainty. But the regulation here gives guidance to a hearing officer about the type of
       circumstances to look for to determine if a government unit’s failure to meet its obligations
       should be excused. That the regulation has broad relevancy standards makes sense and
       explains why we defer to agencies’ findings in cases like this because they are in a better
       position than the court to decide these matters because of their expertise in the given field.
       Ikpoh v. Department of Professional Regulation, 338 Ill. App. 3d 918, 924 (2003).

                                                   -4-
¶ 19        The Village does not complain that the hearing officer actually relied on irrelevant
       evidence—evidence outside the scope of the regulation’s good cause criteria. And it is not as
       if the hearing officer precluded the Village from presenting certain evidence that it suggests
       could have led to a different outcome. The Village has not said what other theory it might
       have relied upon to show good cause but could not because of the regulation. Especially in
       these circumstances, the language of the regulation did not result in an arbitrary or
       discriminatory result. In fact, even if we accepted the premise that the regulation is too
       vague, the Village could not show any prejudice at all.
¶ 20        What transpired at the hearing also belies the Village’s position. Its strategy was to assert
       that the economic downturn around 2009 was the cause of its inability to pay. That position
       fits squarely within the unforeseeable occurrence or uncontrollable circumstance criteria that
       the regulation calls for. A statute is not unconstitutionally vague if it is explicit enough to
       serve as a guide to those who must comply with it. General Motors Corp. v. Illinois State
       Motor Vehicle Review Board, 224 Ill. 2d 1, 24 (2007). The Village relied on its unexpected
       drop in sales tax, property tax, and shared revenue from the State and on its deteriorating
       credit and financial position to justify its failures to fund the pensions. That was a reasonable
       strategy to take under the regulation and is exactly the type of “cause” the regulation calls
       for—the Village was just simply unsuccessful in meeting its burden.
¶ 21        The Village also argues that the agency erred because it applied an overly restrictive and
       incomplete standard to the evidence, resulting in an arbitrary and erroneous decision.
       However, there is no indication that the hearing officer failed to consider certain evidence. In
       fact, the hearing officer’s detailed recommended order has 102 specific findings of fact that
       touch on all of the Village’s evidence. Again, the Village does not point to anything that
       should have been considered but was affirmatively omitted from consideration, and this
       argument is really just a corollary to its next challenge—whether “good and sufficient cause”
       was established.
¶ 22        Whether the Village met its evidentiary burden to show good and sufficient cause for
       failing to meet its contribution obligations is a mixed question of law and fact. An
       administrative agency’s decision is a question of mixed law and fact will be found to be
       clearly erroneous only where a reviewing court is left, on the entire record, with a definite
       and firm conviction that a mistake has been committed. Id. at 18. That is not the case here.
¶ 23        The Village presented evidence that its revenue receipts mirrored the recession. It lost
       revenue in the form of sales tax, property tax, and shared revenue from the state. But the
       hearing officer, and thereafter the Director by ratification, heard all the evidence and found
       that the Village had simply made choices to allocate funds elsewhere in derogation of its
       statutory duties. The evidence showed that there were ways in which the Village could have
       raised additional funds. The hearing also revealed that the Village in fact not only missed
       payments late in the decade as they were charged with doing, but in fact made no annual
       contribution six times between 2000 and 2011 and made less than the full contribution in
       three of the other years. Most of the violations were before the recession on which the
       Village based its whole case.
¶ 24        Also, Scarpiniti testified that the Village fully funded the Illinois Municipal Retirement
       Fund covering its other employees because that fund had an enforcement provision. That
       admission shows a conscious choice in the Village’s allocation of resources and
       acknowledges a deliberate effort to allocate resources in places other than the police and

                                                   -5-
       firefighter pension funds. Even when the Village raised the sales tax and realized an increase
       in sales tax revenue, the money was not given to the pension funds but was instead directed
       to other areas hit by the recession. Even when other similar municipalities were raising costs
       for garbage removal and water services, the Village chose to subsidize those things rather
       than collect more money. The Village, as all government units, has to make choices where to
       spend money. And here there was evidence that the Village spent its money on discretionary
       endeavors it prioritized more than contributing to the police and firefighter pensions. That is
       a violation of the Illinois Pension Code, and the Director’s decision was not clearly
       erroneous.

¶ 25                                    CONCLUSION
¶ 26      Accordingly, we confirm the administrative ruling and affirm the decision of the circuit
       court.

¶ 27      Affirmed.




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