Municipal Pensions II: Do Survivors' Pensions Increase Whenever the Salary For the Position Does?


Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term continue with Hooker v. Retirement Fund of the Firemen's Annuity and Benefit Fund of Chicago, [pdf]. Hooker poses the question of whether the pensions for firefighter's survivors should be set for all time pursuant to the salary the firefighter was receiving at the time of his or her death.

Decedent #1 suffered a stroke while responding to a fire in 1985, and was awarded a duty disability benefit. After he died in 1998, his widow was awarded the widow's minimum annuity pursuant to the Pension Code. 40 ILCS 5/6-141.1. Decedent #2 was injured in 1988 while working for the fire department. He died in 2000, and his widow was awarded the widow's minimum annuity as well. Both women filed complaints for administrative review and won judgments requiring awards of line of duty benefits.

In 2004, the General Assembly amended the Pension Act to require an award of Duty Availability Pay (DAP) in salaries for some pension and annuity calculations. The widows amended their administrative complaints, arguing that (1) they should have been awarded line-of-duty benefits retroactively to the date of the decedents' deaths; and (2) they should have been awarded DAP in their pension calculations. Plaintiffs sought leave to bring the DAP claim as a class action, presenting a list of 100 widows who they alleged had the right to such benefits.

The Circuit Court permitted the plaintiffs' amendment, but stayed the class claims until the line-of-duty benefits claims were resolved. The Court reversed the Board, ordering an award of line-of-duty benefits retroactive to the date of death; the Appellate Court affirmed. On remand, the Board again refused to include DAP in its benefit calculation. The Circuit Court denied the motion to certify a class and granted the Board's motion for summary judgment.

The Appellate Court reversed. The Court held that under Section 6-140 of the Pension Code, 40 ILCS 5/6-140(a), the amount of a widow's annuity depended on the current annual salary attached to the decedent's position, whether or not the firefighter ever actually received that salary. Thus, the widow's annuity increased whenever the decedent's pay grade was increased. Accordingly, the Appellate Court held that the Board was required to include DAP in the salary calculation governing the plaintiffs' pensions.

The Appellate Court reversed the Circuit Court's denial of the motion to certify a class as well, holding that all of the factors governing certification were satisfied. Despite the limited powers of the Board, the Court held that a class complaint was a "rule[ ], regulation[ ], standard[ ], or statement[ ] of policy" within the meaning of the Appellate Court's decision in Board of Education of the City of Chicago v. Board of Trustees of the Public Schools Teachers' Pension & Retirement Fund, rather than a "decision, order or determination of any agency rendered in a particular case," and therefore, a class complaint was not outside the Board's powers pursuant to the Administrative Review Law.

The Court should decide Hooker within four to six months.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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