1-07-0483

                                              FIRST DIVISION
                                              February 11, 2008




No. 1-07-0483


GRAHAM F. THOMPSON,                     )     Appeal from the
                                        )     Circuit Court of
          Plaintiff-Appellant,          )     Cook County.
                                        )
     v.                                 )     No.   05 CH 01592
                                        )
THE RETIREMENT BOARD OF THE POLICEMEN’S )
ANNUITY AND BENEFIT FUND OF THE CITY OF )
CHICAGO, TIMOTHY J. BROPHY, Recording   )
Secretary; JOHN J. GALLAGER, Acting     )
Executive Director,                     )     The Honorable
                                        )     Thomas P. Quinn,
          Defendants-Appellees.         )     Judge Presiding.


     JUSTICE GARCIA delivered the opinion of the court.

     The plaintiff in this case, Graham Thompson, filed a

petition for administrative review, seeking review of an annuity

determination by the Retirement Board of the Policemen's Annuity

and Benefit Fund of the City of Chicago (Retirement Board).

Thompson alleges the Retirement Board erred by denying him

benefits pursuant to section 5-129.1(a) of the Illinois Pension

Code (Pension Code) (40 ILCS 5/5-129.1(a) (West 2006)) and said

denial resulted in Thompson's benefits being diminished and

impaired.   The trial court denied Thompson's petition for review,

finding the Retirement Board did not apply section 5-129.1(a)
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because that section was not applicable to Thompson and, thus, no

diminishment or impairment occurred.       For the reasons that

follow, we affirm.

                            BACKGROUND

     Some history on the imposition of a mandatory retirement age

to Chicago police officers is in order.       Prior to 1983, the

mandatory retirement age for Chicago police officers was 63.       In

1983, the Age Discrimination in Employment Act of 1967 (ADEA) (29

U.S.C. §621 (1982)) was applied to state law enforcement

officials (Equal Employment Opportunity Comm'n v. Wyoming, 460

U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983)).       See Miller

v. Retirement Board of Policemen's Annuity & Benefit Fund of the

City of Chicago, 329 Ill. App. 3d 589, 592 (2001).       As a result,

the mandatory retirement age for Chicago police officers rose to

70 years of age, the maximum age to which ADEA protection applied

at that time.   See Minch v. City of Chicago, 363 F.3d 615, 618

(7th Cir. 2004); Miller, 329 Ill. App. 3d at 592.       In 1986, the

United States Congress amended the ADEA to allow state and local

governments to reinstitute a mandatory retirement age (1986

federal legislation).   29 U.S.C. §623(j) (Supp. 1991); see

Miller, 329 Ill. App. 3d at 592.       In response, in 1988 Chicago

reinstituted a mandatory retirement age of 63 years for police

officers.   Miller, 329 Ill. App. 3d at 592.      Pursuant to a sunset


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provision in the 1986 federal legislation, the exemption

permitting the reinstatement of a mandatory retirement at the age

of 63 expired in 1993.   See Minch, 363 F.3d at 619; Age

Discrimination in Employment Amendments of 1986, Pub. L. No. 99-

592, §3(b), 100 Stat. 3342, 3342 (October 31, 1986).   As a

result, the City of Chicago was compelled to drop the mandatory

retirement age of 63, imposed on police officers.    Minch, 363

F.3d at 619.   In 1996, Congress reinstated the exemption

provision regarding a mandatory retirement age, with no sunset

clause, and made it retroactive to the expiration of the 1986

federal legislation.   See Minch, 363 F.3d at 619.   On May 17,

2000, the Chicago city council adopted a mandatory retirement

ordinance reinstating the mandatory retirement age of 63 years

for its uniformed police officers, effective December 31, 2000.

See Minch, 363 F.3d at 620-21.

     In June 1995, Graham Thompson began his career as a patrol

officer at the age of approximately 53½ years.

     The Policemen's Annuity and Benefit Fund of the City of

Chicago is created by the Pension Code (40 ILCS 5/5-101 et seq.

(West 2002)) and provides benefits to retired Chicago police

officers.   See Miller v. Retirement Board of Policemen's Annuity

& Benefit Fund, 329 Ill. App. 3d 589, 592, 771 N.E.2d 431 (2002).

The Retirement Board is responsible for the administration of the


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fund.   Miller, 329 Ill. App. 3d at 592.

     Generally, an annuity for Chicago police officers is

determined through an application of the Pension Code to the

number of years an individual has been a Chicago police officer.

Section 5-128 of the Pension Code (40 ILCS 5/5-128 (West 2006))

provides:

                 "When a future entrant withdraws from

            service, his age and service annuity shall be

            fixed as of the date of withdrawal.   The

            annuity shall be that provided from the

            entire sum to his credit for age and service

            annuity on the date he withdraws from service."

     For those officers that became subject to mandatory

retirement under the Chicago ordinance passed on May 17, 2000,

section 5-129.1(a) of the Pension Code may determine the

calculation of their annuity:

                 "In lieu of any annuity provided in the

            other provisions of this Article, a policeman

            who is required to withdraw from service on or

            after January 1, 2000 due to attainment of

            mandatory retirement age and has at least 10

            but less than 20 years of service credit may

            elect to receive an annuity equal to 30% of


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            average salary for the first 10 years of

            service plus 2% of average salary for each

            completed year of service or fraction thereof

            in excess of 10, but not to exceed a maximum

            of 48% of average salary."    40 ILCS 5/5-129.1(a)

            (West 2006).

     As his sixty-third birthday approached, Thompson asked the

Retirement Board to consider calculating his annuity pursuant to

section 5-129.1(a) because when he was hired, neither the

mandatory retirement age nor section 5-129.1(a) existed.      The

Retirement Board did not apply section 5-129.1(a) to the

calculation of Thompson's annuity because he would not have at

least 10 years of service credit when he was forced to retire.

     Thompson turned 63 years old on November 3, 2004.      He

retired on that date.      At the time of his retirement, Thompson

had been a Chicago police officer for nine years and just shy of

five months.

     On December 6, 2004, Thompson filed a petition for

administrative review (No. 04 CH 20183) in the circuit court of

Cook County.    The petition alleged the Retirement Board failed to

apply the correct section of the Pension Code, specifically,

section 5-129.1, when it calculated Thompson's annuity.      The

petition also requested the transcript of the meeting in which


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Thompson's annuity was determined.

     On January 26, 2005, Thompson filed a second petition for

administrative review (No. 05 CH 01592) in the circuit court of

Cook County.   This petition requested the Retirement Board

prepare and file the complete transcript regarding its decisions

of December 23, 2004.    This petition also alleged the Retirement

Board failed to correctly apply section 5-129.1 of the Pension

Code to Thompson and failed to correctly calculate his annuity.

The two petitions were assigned to the same judge and moved

forward as one matter.

     On November 21, 2006, Thompson filed a memorandum in support

of his petition for administrative review.   The memorandum

alleged the Retirement Board failed to correctly calculate his

annuity, thereby denying him benefits guaranteed by section 5-

129.1 of the Pension Code.   Thompson alleged because he was

"forced" into retirement with less than 10 years as a police

officer, he should receive a special exemption and be granted the

same benefits as an officer who had achieved the 10-year

benchmark.

     In the alternative, Thompson requested that if the circuit

court affirmed the Retirement Board's decision, the Retirement

Board be ordered to define and set out the calculations it used

to arrive at the annuity Thompson was awarded.   Thompson believed


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that as his service as a Chicago police officer was approximately

94% of the 10-year benchmark, he should have been awarded an

annuity that was 94% of what he would have received had he

reached the 10-year benchmark.    Thompson's calculation of that

amount did not match the annuity calculated by the Retirement

Board.

     In a January 22, 2007, order, the trial court found section

5-129.1(a) of the Pension Code did not apply to Thompson because

he had not attained at least 10 years of service credit before

his retirement.   Consequently, the court found the Retirement

Board correctly applied section 5-128 of the Pension Code to

Thompson, as a police officer who retired with less than 10 years

of service credit.   The court ordered the Retirement Board to

produce documentation to Thompson describing how his annuity was

calculated.

     A timely appeal was filed.

                             ANALYSIS

     Thompson alleges the Retirement Board erred in denying him

retirement benefits pursuant to section 5-129.1(a) of the Pension

Code because benefits should not be diminished or impaired and,

without elaborating, asserts section 5-129.1(a) as amended

diminished and impaired the benefits he would have otherwise

received.


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                       I.   Standard of Review

     We begin with the governing standard of review, an issue the

parties dispute.   Thompson asks this court to review the circuit

court's denial of his petition for administrative review for an

abuse of discretion.   The Retirement Board initially contends the

determination of Thompson's benefits involves a mixed question of

law and fact and should be reviewed for clear error.

     "When deciding an appeal from a judgment in an

administrative review proceeding, the appellate court reviews the

administrative agency's decision, not the trial court's

decision."    Roszak v. Kankakee Firefighters' Pension Board, 376

Ill. App. 3d 130, 138, 875 N.E.2d 1280 (2007).      A mixed question

of law and fact requires an examination of whether the

administrative agency properly applied facts to undisputed law

and is reviewed for clear error.       City of Belvidere v. Illinois

State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295

(1998).

     However, this case does not present a mixed question of law

and fact.    The parties agree as to the relevant facts: Thompson

was a Chicago police officer for less than 10 years and is

entitled to an annuity.     The parties also agree the Pension Code

governs the calculation of Thompson's annuity.

     Because the facts are not disputed and the Retirement Board


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is charged with interpreting the Pension Code, the issue on

appeal is whether the Retirement Board correctly interpreted the

relevant law, that is, whether section 5-128 or 5-129.1(a) of the

Pension Code controlled the outcome.   Because that determination

depends on statutory construction, we apply a de novo standard of

review, as the Retirement Board asserts in the alternative.

Gruchow v. White, 375 Ill. App. 3d 480, 482, 874 N.E.2d 921

(2007).

               II. Application of Section 5-129.1(a)

     "The primary object of statutory construction is to give

effect to the true intention of the legislature."      Holland v.

City of Chicago, 289 Ill. App. 3d 682, 685-86, 682 N.E.2d 323

(1997).   "Legislative intent is best determined from the language

of the statute itself, which if unambiguous, should be enforced

as written."   General Motors Corp. v. State of Illinois Motor

Vehicle Review Board, 224 Ill. 2d 1, 13, 862 N.E.2d 209 (2007).

"A statue is ambiguous if it is subject to two or more reasonable

interpretations."   General Motors Corp., 224 Ill. 2d at 13.        If

there is a reasonable debate as to the meaning of the statute,

this court will give deference to the Retirement Board's

interpretation, though its interpretation is not binding.     See

General Motors Corp., 224 Ill. 2d at 13 ("the construction of a

statute by an agency charged with its administration will be


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given deference where there is a reasonable debate about the

meaning of the statute").   "The language of the statue should be

examined as a whole, with each section considered in relation to

one another."   Metropolitan Water Reclamation District of Greater

Chicago v. Civil Service Board of the Metropolitan Water

Reclamation District of Greater Chicago, 358 Ill. App. 3d 347,

353, 832 N.E.2d 835 (2005).

     Section 5-129.1(a) of the Pension Code applies to police

officers who reach the mandatory retirement age and have "at

least 10 but less than 20 years of service credit."   We find no

ambiguity in the minimum service needed to trigger the

application of the section.   Though Thompson reached the

mandatory retirement age, he did not have "at least 10" years of

service credit at the time of his retirement.   Because Thompson

had less than 10 years of service credit upon retirement, the

Retirement Board did not apply section 5-129.1(a) in determining

Thompson's annuity.   The Retirement Board calculated Thompson's

annuity pursuant to section 5-128 of the Pension Code.

     We agree, as Thompson contends, that the Pension Code should

be liberally construed.   See Johnson v. Retirement Board of the

Policemen's Annuity and Benefit Fund, 114 Ill. 2d 518, 521, 502

N.E.2d 718 (1986) (where construction of a pension statute is

necessary, "the rule is that pension acts must be liberally


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construed in favor of the rights of the pensioner").     However,

the general rule favoring liberal construction does not permit

this court to depart from the plain meaning of the statute

itself.    See Holland, 289 Ill. App. 3d at 690 (the court is not

permitted "under the guise of statutory construction, to

substitute different provisions or otherwise depart from the

plain meaning of the words employed").

     There is no ambiguity in the language of section 5-129.1(a)

and thus no basis to construe the statute in the fashion Thompson

desires.    Section 5-129.1(a) applies to officers with at least 10

years of service credit at retirement.     Thompson's service credit

of nine years and five months is less than the required minimum.

The Retirement Board correctly did not apply section 5-129.1(a)

to Thompson when it calculated his annuity.

     In the alternative, Thompson asked the Retirement Board to

prorate his annuity utilizing the 30% figure from section 5-

129.1(a) and calculate his annuity based on how close to 10 years

of service he was at retirement.      However, there is no percentage

calculation in section 5-128.   Section 5-128 requires that

benefits "shall" be calculated based on the officer's "credit for

age and service" on the date he retires.     There is no support for

the formula Thompson seeks to apply based on the percentage set

out in section 5-129.1(a) as to officers with less than 10 years


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of service credit.   Section 5-128 does not reference section 5-

129.1(a);    neither section provides a distinct formula to apply

to calculate the benefits for officers with less than 10 years of

service credit.

     There is no authority for Thompson's contention that section

5-129.1(a) has application in calculating his annuity benefits.

               III. Diminishment or Impaired Benefits

     Next, Thompson alleges section 5-129.1(a) of the Pension

Code as amended diminished and impaired his benefits.      We find

not merit in this argument.   In fact, the intent behind section

5-129.1(a) is just the opposite.      The 2002 enactment of section

5-129.1(a) (40 ILCS 5/5-129.1(a) (West 2002)), and its 2004

amendment, would have enhanced Thompson's benefits, had he

reached 10 years of service as a Chicago police officer.

     Section 5 of article XIII of the Illinois Constitution

provides that "[m]embership in any pension or retirement system

of the State, *** shall be an enforceable contractual

relationship, the benefits of which shall not be diminished or

impaired."   Ill. Const. 1970, art. XIII, §5.    Pension rights vest

when a person enters the pension system or when the Illinois

Constitution of 1970 became effective in 1971, whichever is

later.   Hannigan v. Hoffmeister, 240 Ill. App. 3d 1065, 1073, 608

N.E.2d 396 (1992).    "The plain language of the pension protection


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clause makes participation in a public pension plan an

enforceable contractual relationship" and demands the benefits of

that relationship not be diminished or impaired.     People ex rel.

Sklodowski v. Illinois, 182 Ill. 2d 220, 228-29, 695 N.E.2d 374

(1998).   However, there is no prohibition regarding enhancements.

Hannigan, 240 Ill. App. 3d at 1073.

     Thompson entered and became vested in the pension system in

1995 when section 5-128 of the Pension Code provided the sole

basis for the calculation of his annuity benefits.    The addition

of section 5-129.1(a) to the Pension Code in 2002, and its

amendment in 2004, would only serve to enhance Thompson's annuity

should he reach at least 10 years of service credit.     Thompson's

nine years and five months of service did not entitle him to the

enhancement of benefits available to those officers that retire

with at least 10 years of service credit.

     Section 5-129.1(a) of the Pension Code as amended did not

diminish or impair Thompson's benefits.

                            CONCLUSION

     The Retirement Board correctly applied section 5-128 of the

Pension Code in calculating Thompson's retirement annuity.    The

decision of the circuit court is therefore affirmed.

     Affirmed.

     CAHILL, P.J., and WOLFSON, J., concur.


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