Marconi v. The Chicago Heights Police Pension Board

Docket No. 101418.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

ANTHONY MARCONI, Appellee, v. THE CHICAGO HEIGHTS

POLICE PENSION BOARD et al., Appellants.

Opinion filed October 19, 2006.–Modified on denial of rehearing

May 29, 2007.

PER CURIAM

Justice Fitzgerald dissented, with opinion.

Justices Kilbride and Burke took no part in the decision.

OPINION

Plaintiff, Anthony Marconi, filed an application for a disability

pension with defendant Chicago Heights Police Pension Board

(Board). During the pendency of the Board’s review of plaintiff’s

application for a disability pension, plaintiff filed suit in the circuit

court of Cook County, requesting, inter alia, a declaratory judgment

that the Board did not timely complete review of his application.

While the declaratory action was pending in the circuit court, the

Board issued a decision denying plaintiff a disability pension.

Plaintiff thereafter filed an action for administrative review in the

circuit court of Cook County. The circuit court ultimately confirmed

the Board’s decision on administrative review. Soon thereafter, the

circuit court granted the Board summary judgment in the declaratory

action. On appeal, the appellate court affirmed the grant of summary

judgment in the declaratory action, reversed the circuit court’s

affirmance of the Board’s decision to deny plaintiff a disability

pension, and remanded this cause to the Board for further

proceedings. 361 Ill. App. 3d 1. In addition, the appellate court also

declared section 3–115 of the Illinois Pension Code (40 ILCS

5/3–115 (West 2002)) unconstitutional as applied to plaintiff.

On appeal to this court, the Board challenges only the appellate

court’s reversal of the Board’s denial of plaintiff’s disability pension

claim on administrative review, and the appellate court’s holding that

section 3–115 of the Pension Code (40 ILCS 5/3–115 (West 2002))

is unconstitutional as applied. For the reasons that follow, we reverse

the judgment of the appellate court with respect to plaintiff’s

administrative review action, and vacate that portion of the appellate

court’s opinion holding section 3–115 of the Pension Code

unconstitutional as applied to plaintiff.

BACKGROUND

Plaintiff became a sworn member of the Chicago Heights police

department (Department) on October 10, 1988, holding the rank of

patrol officer. On February 8, 1996, plaintiff was sent by the

Department to Dr. Carl Wahlstrom, the Department’s own

psychiatrist, to determine his fitness for duty. The Department

referred plaintiff to Dr. Wahlstrom after plaintiff’s colleagues had

reported to the Department’s then-chief of police, Carla Osantowski,

that plaintiff had threatened to commit suicide. During plaintiff’s

session with Dr. Wahlstrom, plaintiff admitted that he had

experienced thoughts of committing suicide and had expressed those

thoughts to fellow officers. However, plaintiff told Dr. Wahlstrom

that, at the time of the evaluation, he no longer felt suicidal. Dr.

Wahlstrom concluded that plaintiff was fit to return to duty.

Plaintiff was again sent by Chief Osantowski to Dr. Wahlstrom

for a fitness evaluation on July 24, 1996. Chief Osantowski

questioned plaintiff’s fitness for duty based upon incidents where

plaintiff had exhibited hostility towards others. As part of the

evaluation, Dr. Wahlstrom met with plaintiff for several sessions, and

spoke with Chief Osantowski as well as plaintiff’s longtime

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girlfriend, Sheila. Dr. Wahlstrom concluded that plaintiff was

suffering from major depression and stress related to work and

outside factors. Dr. Wahlstrom noted that these stressors included

several on-the-job shooting incidents and an FBI investigation of the

Department. Although Dr. Wahlstrom opined that plaintiff was fit to

resume duty, this recommendation was contingent on plaintiff

continuing in psychotherapy and taking prescribed psychotropic

medications. Accordingly, the Department arranged for plaintiff to

attend biweekly psychotherapy sessions with Dr. Wahlstrom. Plaintiff

also began taking three prescription medications: trazodone, an

antidepressant; Depakote, a mood-stabilizing medication; and

clozapine, an antianxiety medication.

On September 9, 1996, Dr. Wahlstrom faxed a letter to Chief

Osantowski informing her that plaintiff had made direct physical

threats of bodily harm against her, including a statement that plaintiff

wanted to “knock[ ] her out.” Dr. Wahlstrom also warned Chief

Osantowski that plaintiff was unable to exercise reasonable judgment

where she was concerned, and that plaintiff stated he was “85%

certain” that he would harm her “if he got within arms length of her.”

Dr. Wahlstrom diagnosed plaintiff with “major depression along with

stress, related both to work and his outside life circumstances,” and

wrote that plaintiff’s “perceptions relating to his work environment

[were] deteriorating and unstable.” Dr. Wahlstrom found plaintiff to

be “disabled by this condition” and, accordingly, declared plaintiff to

be unfit for duty. Dr. Wahlstrom further stated that he was “unable to

determine the recovery period for [plaintiff’s] condition at this time.”

Based upon Dr. Wahlstrom’s report, Chief Osantowski ordered

plaintiff to surrender his credentials. Plaintiff complied, and, at that

time, he ceased to be on active duty status. For the next year, plaintiff

was placed on disability leave and continued to receive his pay.

On April 22, 1997, plaintiff filed with the Board an application

for duty-related disability pension benefits. In correspondence dated

April 30, 1997, the Board acknowledged plaintiff’s application and

requested that plaintiff provide the Board with certain information,

including medical documentation and a statement of plaintiff’s injury.

In addition, the letter stated that the Board would require plaintiff to

be examined by three physicians selected by the Board in accordance

with section 3–115 of the Pension Code (40 ILCS 5/3–115 (West

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2002)), and that plaintiff would be notified by separate letter of the

date, time and location of the examinations. The Board’s letter further

stated that “[o]nce these examinations are complete and the medical

reports and Physician’s Certificate of Disability are received, the

Pension Board will schedule this matter for a hearing.”

In a letter dated September 24, 1997, plaintiff’s counsel

responded that he had contacted plaintiff’s treating psychiatrist, Dr.

Wahlstrom, concerning the cause of plaintiff’s disability. In addition,

plaintiff’s counsel wrote that it was his own “understanding” that “the

multiple shootings [plaintiff] was involved in while on the job greatly

contributed to his disability.” Plaintiff’s counsel also requested that

“a hearing be held as soon as possible.” On October 1, 1997, the

Board’s counsel wrote a letter to plaintiff’s counsel, enclosed copies

of plaintiff’s personnel records, and stated that the Board could now

schedule plaintiff to be examined by three physicians selected by the

Board. However, counsel for the Board also stated that the personnel

records did not show any shootings in which plaintiff was allegedly

involved. Counsel for the Board therefore requested plaintiff’s

counsel to forward copies of any documentation regarding plaintiff’s

involvement with any shootings, as the Board’s physicians would

“undoubtedly want to review those documents as well.” The Board’s

counsel concluded the correspondence by writing that “no hearing can

be held until such time as the Pension Board is in receipt of the

reports from its three psychiatrists.”

Plaintiff provided the Board with all requested information by

November 12, 1997. The Board then scheduled plaintiff to be

examined by three psychiatrists and one psychologist, all selected by

the Board in accordance with section 3–115 of the Pension Code.

Plaintiff’s psychiatric and psychological evaluations were conducted

on June 30, 1998, July 6, 1998, July 7, 1998, November 20, 1998, and

December 10, 1998.

On September 2, 1999, the Board held its first hearing on

plaintiff’s application. During this proceeding, plaintiff amended his

disability application to alternatively request a non-duty-related

disability pension in the event that the Board denied his request for a

disability pension that was duty-related. In addition, during this

proceeding the Board admitted various exhibits into evidence,

including plaintiff’s personnel records and the reports of the three

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psychiatrists and one psychologist selected by the Board to evaluate

plaintiff’s condition. Three of these four medical reports concluded

that plaintiff was disabled. We briefly overview each of these reports

seriatim.

Dr. Harley G. Rubens filed a physician’s certificate dated June 30,

1998, stating that he had examined plaintiff and certified plaintiff to

be disabled for service within the Department. This certificate

accompanied a psychiatric evaluation report from Dr. Rubens, dated

July 7, 1998. In the report, Dr. Rubens stated that he based his

opinion upon a 1½ hour interview with plaintiff conducted on June

30, 1998, as well as upon the following additional information: a

review of correspondence from Dr. Wahlstrom and Dr. Wahlstrom’s

progress notes; pertinent police reports from the Department; a list of

incidents involving plaintiff; and correspondence from plaintiff’s

attorney.

According to Dr. Rubens’ report, plaintiff stated that he was

removed from active duty and referred to Dr. Wahlstrom for

evaluation because the Department thought plaintiff “was a loaded

gun.” Plaintiff stated that during his nine years of active duty with the

Department, he was shot at four times. In his report, Dr. Rubens

provided details with respect to two of these incidents. Plaintiff

described the initial shooting incident to Dr. Rubens as a situation in

which another officer shot at a suspect who was escaping, and that at

the time the shot was fired the suspect had been standing between that

officer and plaintiff. Plaintiff stated that if the officer had missed the

suspect, plaintiff would have been shot. When plaintiff told his

supervisors about this incident, plaintiff stated that they responded

that he would “get used to getting shot at.” According to Dr. Rubens,

plaintiff expressed disillusion with the Department, not only because

he felt a lack of support, but also because the Department had recently

undergone a corruption investigation by the FBI, and plaintiff noted

that many of his former supervisors were currently in jail. Plaintiff

stated that he became very depressed in 1994 when FBI agents placed

him under surveillance as part of their investigation of the

Department. According to plaintiff, when the FBI was unable to find

that he had done anything wrong, the IRS then audited his tax returns.

Dr. Rubens also noted in his report that during the interview

plaintiff expressed a deep hatred for African-Americans, whom he

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referred to throughout the session by using a derogatory racist slur. In

his report, Dr. Rubens described a second shooting incident involving

plaintiff wherein plaintiff engaged in a chase of a stolen car and the

suspects started shooting at him. According to plaintiff, his partner,

an older African-American man, slept through the entire incident, and

plaintiff greatly resented it. Plaintiff told Dr. Rubens that he was last

shot at by a “gang member,” and that he had called dispatch for help

but that the paramedics arrived at the scene before his backup did.

Plaintiff told Dr. Rubens that “[w]hat goes on at the job now is

different. It used to be I cared about people–now if a[n] [African-

American] is laying on the street I’d just drive by.” Plaintiff related

to Dr. Rubens that he had nightmares several times a month about his

being shot at by “gang bangers” and would awaken from these

dreams drenched in sweat.

According to Dr. Rubens, plaintiff exhibited traits of paranoia

where African-Americans were concerned. Dr. Rubens stated that this

was exemplified by plaintiff’s statement that “my biggest fear is that

I might shoot somebody who didn’t do anything if I went back to

work as a police officer.” Plaintiff also stated to Dr. Rubens that “[i]f

I go back now I’ll shoot the [African-Americans]. I used to bust my

tail to make peace with the gangs and everyone else but no more.”

Plaintiff also told Dr. Rubens, “I would like to be a cop but I know

that I can’t.” Yet, Dr. Rubens also reported that plaintiff told him that

although plaintiff did not work the first year after he was removed

from full duty and placed on temporary disability, plaintiff “felt that

he could have worked.”

Dr. Rubens also found it notable that plaintiff’s judgment

“seemed intact except in his dramatic descriptions of how he would

shoot a[n] [African-American] if he had a gun and was on duty and

saw one.” In Dr. Rubens’ view, plaintiff’s statements “seemed to be

somewhat dramatized and its doubtful that he would, in fact, do so

but it is possible.” Dr. Rubens also wrote in his report that he found

it “interesting” that plaintiff carried a gun to the interview, “despite

the fears of what he might do.”

In addition, Dr. Rubens also noted that, at the time of the

interview, plaintiff was “pleased and satisfied” with his relationship

with his girlfriend, Sheila, and her children. According to Dr. Rubens,

plaintiff described to him “feeling uplifted and excited every day

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when he wakes up,” and Dr. Rubens concluded that it was therefore

“unlikely that there is any form of psychiatric care treatment that

would enable [plaintiff] or motivate him to return to full-unrestricted

police duties, where he might risk his life.”

Based upon his interview of plaintiff and review of other pertinent

information, Dr. Rubens diagnosed plaintiff as suffering from the

following psychological disorders: “1. Major depression by history,

resolved. 2. Acute stress disorder in the past, resolved. 3. Adjustment

disorder with mixed anxiety and depression. 4. Personality disorder

NOS.” In support of his diagnosis, Dr. Rubens wrote in his report that

“plaintiff underwent traumatic situations while working in the

Chicago Heights Police Department,” and that plaintiff was also

angered by the fact that nobody listened to him and provided backup

support for him. Dr. Rubens noted that plaintiff “has a history of

acting impulsively and later regretting it,” and “if he were to return to

police work, [plaintiff] might do something foolish to prove the point

that he is too infirm and too damaged to be a police officer.”

Accordingly, Dr. Rubens found plaintiff to be disabled for police

work as a result of a psychological disability.

The second psychiatrist requested by the Board to examine

plaintiff was Dr. Henry Conroe. Dr. Conroe filed a physician’s

certificate dated September 29, 1998, stating that he had examined

plaintiff and certified plaintiff to be disabled for service within the

Department. This certificate accompanied a psychiatric evaluation

report from Dr. Conroe dated September 28, 1998. Dr. Conroe wrote

that he based his opinions upon a two-hour examination of plaintiff

on July 6, 1998, and also upon the following evidence:

correspondence from plaintiff’s attorney and Dr. Wahlstrom; a phone

conversation with Dr. Wahlstrom; plaintiff’s personnel and medical

records; and police reports of the shooting incidents.

At the time of the interview, plaintiff was working part-time as a

“car jockey” at an automobile dealership. Dr. Conroe found plaintiff’s

mood to be predominantly angry, much of it directed towards

African-Americans, to whom plaintiff referred to throughout the

interview by using a derogatory racist slur. However, according to Dr.

Conroe, plaintiff exhibited “little anxiety or sadness” during the

interview.

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Plaintiff stated to Dr. Conroe that his work-related problems

started at the time of the first shooting incident. Plaintiff then

described to Dr. Conroe four shooting incidents in which plaintiff was

involved. According to Dr. Conroe’s report, plaintiff described the

events occurring during the first two incidents just as they were

related by Dr. Rubens in his report: when a fellow officer shot at an

offender who was positioned between the other officer and plaintiff;

and when plaintiff pursed a stolen auto and the offenders began

shooting at him while his partner remained asleep. Dr. Conroe

provided additional details in his report with respect to the other two

shooting incidents involving plaintiff. Plaintiff stated that one

incident occurred when suspects were shooting at cars driving toward

plaintiff, and the windows of the other cars were shot out. According

to plaintiff, the other incident occurred in approximately July 1996,

when plaintiff observed two gangs shooting at each other, during

which a male positioned near plaintiff was wounded by gunfire.

During this incident, plaintiff called for backup, but the paramedics

arrived before his fellow officers did. Plaintiff stated to Dr. Conroe

that after the last shooting incident he told his superiors that he no

longer wanted to be shot at. According to plaintiff, soon thereafter the

Department referred him to see Dr. Wahlstrom for a fitness

evaluation.

Dr. Conroe further noted in his report that plaintiff stated that he

had previously been sent by the Department to Dr. Wahlstrom for a

fitness examination because plaintiff had made comments to his

colleagues about committing suicide. Plaintiff explained that he made

these comments because he had problems at home and was also being

followed by the FBI as part of its corruption investigation of the

Department. However, by the time of the interview with Dr. Conroe,

plaintiff stated that he no longer had ideations of suicide. Dr. Conroe

noted that, nevertheless, plaintiff remained disillusioned with the

Department and harbored resentment that although he had been

honest, he had been treated during the FBI investigation as being

dishonest.

At the time Dr. Conroe interviewed plaintiff, plaintiff stated that

he often experienced dreams of being shot at, and that he would

awaken from these dreams soaked in sweat. Plaintiff also had gained

60 pounds. Because of his employment situation, plaintiff was forced

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to sell his belongings and give up his hobbies. Dr. Conroe noted that

plaintiff was still authorized to carry a weapon and he brought it to

the interview. Plaintiff stated to Dr. Conroe that he carried the gun

everywhere and trusted no one. According to plaintiff, being shot at

changed his mind about African-Americans, causing him to have

great animosity against them. Plaintiff stated that he loves his work

and would love to return to the force, but his hatred of African-

Americans prevented him from doing so.

Dr. Conroe also asked plaintiff about his difficulties with Chief

Osantowski. Plaintiff responded that he had problems with the police

chief because the chief and his girlfriend did not get along. Plaintiff

believed that his work life and personal life should be kept separate,

and it angered him that the chief discussed his home life at work.

However, at the time of the interview, Dr. Conroe wrote that plaintiff

“praised” Chief Osantowski and stated that “he felt that she is doing

a fine job.”

Based upon his interview with plaintiff and other relevant

information, Dr. Conroe diagnosed plaintiff as suffering from a

“Major Depressive Episode in Partial Remission,” and found that

plaintiff was therefore disabled for full unrestricted duties in the

Department. Dr. Conroe explained that, in his view, plaintiff lacked

the ability to interact safely with the public and plaintiff’s capacity to

respond appropriately to the demands of his job would be severely

impaired. Dr. Conroe was of the opinion that plaintiff’s disability was

“to a large degree caused by the unique job duties of a police officer

not shared by an ordinary citizen,” and that the “major stressors were

his disillusionment relating to the investigation of prominent Chicago

Heights officials and their convictions for corruption and the shooting

incidents while on duty.”

The third medical professional who evaluated plaintiff at the

request of the Board and found plaintiff to be disabled was Dr.

Ronald Ganellen, a neuropsychologist. Dr. Ganellen submitted a

psychological evaluation dated December 10, 1998, in which he

opined that plaintiff was disabled for service in the Department. Dr.

Ganellen, however, did not initially file a certificate of disability with

his report. As will be discussed later in this opinion, Dr. Ganellen

filed a certificate in February 2004, stating that plaintiff was disabled

for service in the Department.

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Dr. Ganellen conducted a psychological evaluation of plaintiff on

December 10, 1998. In addition to interviewing plaintiff, Dr.

Ganellen also administered several psychological tests to plaintiff and

reviewed Dr. Wahlstrom’s notes. Dr. Ganellen began his report by

observing that the Department had placed plaintiff on a leave of

absence in September 1996, because of his emotional condition, and

that plaintiff claimed that he had been unable to handle the

responsibilities of his job in a safe manner as the result of work-

related stress.

Plaintiff stated to Dr. Ganellen that, earlier in his career, plaintiff

had been given a number of plaques and awards for his job

performance. However, plaintiff began to experience considerable

job-related stress as a result of the FBI investigation of the

Department and his being placed under surveillance. In addition,

plaintiff also informed Dr. Ganellen that he had encountered

undercover FBI agents while on patrol. Plaintiff further stated to Dr.

Ganelllen that he changed over time in that he developed a temper

and became intolerant of African-Americans, referring to them by a

derogatory racist slur. According to plaintiff, his attitudes changed as

a result of the crime scenes he observed and the four shooting

incidents in which he was involved. These were the same shooting

incidents described in the reports submitted by Dr. Rubens and Dr.

Conroe.

According to Dr. Ganellen, plaintiff was also upset about the way

that he was treated by the Department. Plaintiff acknowledged that he

had stated to a coworker that plaintiff wanted to “put a gun in [his]

mouth and blow [his] brains out,” but he then thought about the harm

that would befall his family as a result of that action, and he knew he

could not do it. Plaintiff also told Dr. Ganellen that he was

“offended” when the Department instructed him to see Dr.

Wahlstrom for a fitness evaluation as a result of his talk of suicide.

Dr. Ganellen also wrote in his report that plaintiff stated that he

became embroiled in a conflict with Chief Osantowski when she

made comments about plaintiff’s relationship with his girlfriend.

Although plaintiff told the chief to leave his personal business alone,

she reportedly continued to make comments, and plaintiff had words

with her. Thereafter, plaintiff stated that he was once again referred

by the Department to Dr. Wahlstrom, and has not returned to work

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ever since. Dr. Ganellen noted, however, that at the time of his

interview with plaintiff, plaintiff expressed no anger against Chief

Osantowski and held no grudges against her.

When Dr. Ganellen inquired of plaintiff whether he was ready to

return to work as a police officer, plaintiff stated that he could not

safely return to work because of his angry reactions to African-

Americans and his tendency to act before thinking. Dr. Ganellen

wrote that plaintiff “believes either he would kill someone if he

perceived himself as being in danger, or that he might get killed if he

hesitated.” Dr. Ganellen noted that plaintiff carried a gun with him

and that he slept with it by his side. Plaintiff stated to Dr. Ganellen

that he experienced nightmares about the shooting incidents, and

would wake up in a sweat.

However, when Dr. Ganellen asked plaintiff about his mood at

the time of the interview, plaintiff responded that he was not

depressed. Plaintiff was pleased that he had found employment, and

Dr. Ganellen described plaintiff’s level of energy, interest in activities

and ability to enjoy himself as “normal.” In addition, Dr. Ganellen

noted that plaintiff had not had any difficulties with concentration and

was not troubled by self-critical thoughts or guilt.

Upon completion of his evaluation, Dr. Ganellen diagnosed

plaintiff with paranoid features and wrote that, in his opinion,

plaintiff “is not able to return to work as a police officer at the present

time as he may present a risk to public safety as well as to his own

safety.” Dr. Ganellen found that plaintiff’s “psychological functioning

revolves to a large extent around efforts to contain anger and

resentment,” and that plaintiff’s anger “can cloud his judgment to

such [an extent] that he may react to a situation in an unplanned,

unpredictable manner to protect himself or to get back at the person

he perceives hurt him without first thinking about the possible

consequences of his actions.”

An opposite conclusion with respect to plaintiff’s disability was

reached by the fourth doctor to which plaintiff was referred by the

Board for evaluation, Dr. Richard Harris. Dr. Harris filed a

physician’s certificate dated December 11, 1998, stating that he had

examined plaintiff and certified that plaintiff was not disabled for

service within the Department. This certificate accompanied a

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psychiatric evaluation authored by Dr. Harris, dated December 9,

1998.

Dr. Harris’ evaluation was based upon two interviews he

conducted with plaintiff on July 7, 1998, and November 20, 1998, for

a period of nearly four hours. In addition to interviewing plaintiff, Dr.

Harris also relied on Dr. Wahlstrom’s notes and letters; phone

conversations with Dr. Wahlstrom, Chief Osantowski, and plaintiff’s

longtime girlfriend, Sheila; police reports of the shooting incidents;

and pertinent records from plaintiff’s personnel files. Dr. Harris’ 29-

page written report was by far the longest of the four reports

submitted to the Board.

Dr. Harris wrote that plaintiff began the first interview by stating

that he wanted to return to work but that “they don’t want me to

return.” Plaintiff told Dr. Harris that in February 1996, he was

referred to Dr. Wahlstrom by Chief Osantowski because of a

comment overheard by another officer that plaintiff thought that

suicide was better than what he had been going through. After seeing

Dr. Wahlstorm at that time, plaintiff was told that he did not need to

return for therapy. Plaintiff stated that he was then referred to Dr.

Wahlstrom a second time because of his hatred against African-

Americans, and Dr. Harris observed that plaintiff referred to African-

Americans throughout the interview by use of a derogatory racist slur.

Plaintiff told Dr. Harris that he was eventually removed from active

duty in September 1996 because “I guess they didn’t like my

attitude.” Plaintiff also reported to Dr. Harris that he had been

involved in several shooting incidents, and discussed with him the

same four incidents detailed in the reports authored by Drs. Rubens,

Conroe and Ganellen.

According to Dr. Harris, plaintiff stated that a conflict arose

between him and Chief Osantowski because she accused plaintiff of

not treating his girlfriend well. Plaintiff stated to Dr. Harris that Chief

Osantowski called him once per week at home, and had told

plaintiff–both privately and in public–that he did not love his

girlfriend. Plaintiff believed that the chief was too involved in his

personal life, and he resented this intrusion. However, at the time of

his interview with Dr. Harris, plaintiff stated that he no longer had

animosity toward the former chief, and, in fact, plaintiff believed that

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“she had done good work” and that the Department “had benefitted

from her approach to police administration.”

Dr. Harris noted in his report that plaintiff “was consistently

vague” about the reasons he was removed from active duty, and that

plaintiff seemed “at a loss to explain why his doctor would not release

him to return to work as a police officer.” At one point, plaintiff told

Dr. Harris that plaintiff was eventually removed from active duty

because Dr. Wahlstrom considered him to be a “loaded gun.” Plaintiff

told Dr. Harris during the second interview that if he returned to

active duty he would “hurt someone,” and that he would pull his gun

first and ask questions later. Plaintiff also stated to Dr. Harris that if

he returned to the force he would beat up African-Americans if they

gave him any trouble.

Dr. Harris further reported that plaintiff stated that although the

three psychotropic medications prescribed by Dr. Wahlstrom worked

to relax him, they took away neither his anger and hate against

African-Americans nor his nightmares of the shootings. Plaintiff

stated that in his nightmares he relived the shooting incidents and

woke up in a sweat.

Dr. Harris also interviewed the Department’s former chief of

police, Carla Osantowski. She stated that in February 1996, a

colleague of plaintiff’s came to her office and informed her that

plaintiff was depressed and was speaking of shooting himself. As a

result, she referred plaintiff to Dr. Wahlstrom for a fitness evaluation.

After Dr. Wahlstrom cleared plaintiff, he returned to work. However,

Chief Osantowski again referred plaintiff to Dr. Wahlstrom in July

1996, because plaintiff appeared to be depressed. Sometime

thereafter, Dr. Wahlstrom warned her that she may be in danger

because plaintiff had very angry feelings toward her.

In addition, as part of the evaluation, Dr. Harris also interviewed

Dr. Wahlstrom. According to Dr. Harris, Dr. Wahlstrom believed

plaintiff “was having a growing disillusionment with police work and

was ‘burned out.’ ” Further, Dr. Harris reported that Dr. Wahlstrom

stated that plaintiff “had improved enough to return to work,” but that

Dr. Wahlstrom did not believe plaintiff was capable of doing police

work because of “burn out.” According to Dr. Wahlstrom, plaintiff

also had difficulty controlling his anger and expressed hatred of

African-Americans. Dr. Harris found it notable that, according to Dr.

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Wahlstrom, plaintiff’s anger against African-Americans and his

discussion of the shooting incidents came after plaintiff had been in

treatment for nearly two years. Dr. Harris wrote that even Dr.

Wahlstrom found this to be unusual and “bizarre,” and that there was

no clear explanation as to why plaintiff suddenly began to express this

hatred.

According to Dr. Harris, Dr. Wahlstrom did not believe that

plaintiff was capable of doing police work and told Dr. Harris that he

removed plaintiff from active duty because he was concerned about

plaintiff’s potential for violence. Dr. Wahlstrom also told Dr. Harris

that when he warned Chief Osantowski about plaintiff’s threats, it

was only the second time in Dr. Wahlstrom’s career that he had to

warn someone that she was in danger. Dr. Wahlstrom also told Dr.

Harris that plaintiff had expressed anger on occasion during their

sessions.

Dr. Harris also reported that he had a conversation with plaintiff’s

girlfriend, Sheila. Sheila stated that plaintiff and Chief Osantowski

had a dispute over her. Sheila explained that plaintiff was angry with

the chief for getting involved in his personal affairs and resented the

chief for telling plaintiff that he did not love Sheila. According to Dr.

Harris, Sheila first stated that she had “no idea” why plaintiff had not

returned to work, but that it was possible that he did not go back

because he might hurt someone. Sheila stated, however, that she was

not aware of any instances in which plaintiff caused harm to another.

Sheila recalled that plaintiff’s personality and attitude began to

change in 1992 or 1993, and stated that now plaintiff is not as patient

as he once was and had started using a derogatory racist slur to refer

to African-Americans. Sheila informed Dr. Harris that plaintiff’s use

of the epithet was “getting worse especially because the pension is

pending,” and she wondered if plaintiff’s irritability increased

because he was not working.

Based upon the information he gathered in the course of

evaluating plaintiff, Dr. Harris wrote in his report that he found

plaintiff’s communication to be “confusing,” in that “it was very

difficult to get a clear picture of the nature of the problem.” From Dr.

Harris’ perspective, the differences in plaintiff’s demeanor in the two

interviews were notable. Dr. Harris wrote that during his first

interview with plaintiff, although plaintiff expressed animosity for

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African-Americans, used racial slurs, and stated he had recurrent

dreams of the shooting incidents, plaintiff was not able to clearly

communicate the reasons he was taken off duty. In addition, plaintiff

presented his story without much emotion.

In the second interview, however, Dr. Harris noted that plaintiff

kept coming back to his hatred for African-Americans, “like a record

that was stuck.” Dr. Harris stated that plaintiff “kept, in a manner of

speaking, coming at me with his hatred. He was unrelenting and it

soon began to feel like an assault.” Dr. Harris wrote that plaintiff’s

angry and aggressive behavior was in striking contrast to his manner

during a number of phone conversations he had previously had with

plaintiff about securing plaintiff’s medical records and scheduling

appointments. Dr. Harris stated that he told plaintiff “directly that I

was having difficulty determining the truth of the matter in regards to

his disability application,” and that “I saw my job as a duty to protect

the interest of the pension board/fund and those applicants deserving

of a disability benefit.” Dr. Harris wrote that this “frank

communication” brought about a change in interaction between them,

as plaintiff then “settled down,” and there was no further talk of

plaintiff’s hatred of African-Americans. Plaintiff then became very

emotional to the point of tears–an indication, in Dr. Harris’ view, of

“more genuine emotion.”

According to Dr. Harris, part of the confusion he experienced in

listening to plaintiff was due to “brief periods when his thinking was

disorganized,” and these periods occurred during plaintiff’s “hatred-

filled monologues” when plaintiff appeared “crazy” with rage. Dr.

Harris stated, “At some point I began to believe that he was making

a great effort to manipulate me, that is, my thinking about his

disability application. He was going out of his way to demonstrate his

impairment.” Along these lines, Dr. Harris stated that he had

reviewed the police records before the interview and told plaintiff that

“the police reports did not corroborate his account of the shootings,”

as the reports demonstrated neither that plaintiff was shot at nor that

he was in obvious danger. Dr. Harris wrote, however, that plaintiff

“always had an explanation for the discrepancy,” including that the

Department instructed officers not to record in the police reports that

shots were fired at them.

-15-

Dr. Harris also attributed his confusion in evaluating plaintiff to

his belief that plaintiff’s “story” did not fit together due to “the many

inconsistencies” in plaintiff’s account. Dr. Harris “question[ed] the

overall credibility of [plaintiff’s] account,” and noted that a close

examination of plaintiff’s case revealed “inconsistencies,

contradictory information, misrepresentation and information that just

doesn’t fit.” Dr. Harris wrote that, if he were to take plaintiff’s story

at “face value,” he could find that plaintiff would be eligible for a

duty-related disability pension, as plaintiff exhibited “overwhelming

aggressive feelings that he will not be able to control when

performing the normal duties of a police officer,” and this

aggressiveness would be due to plaintiff having been shot at on

numerous occasions and his experiences as a police officer working

in a town with a significant African-American population.

However, Dr. Harris rejected such a conclusion, based upon his

interview of plaintiff and the other information he gathered as part of

the evaluation process. Dr. Harris wrote that plaintiff “may very well

have reactions to various police experiences but there is no objective

evidence demonstrating a reaction of such severity as to constitute a

psychiatric disorder.” Dr. Harris noted with particular interest that

plaintiff’s anger towards African-Americans, as well as his references

to the shooting incidents, did not surface until almost two years after

he began treatment with Dr. Wahlstrom. According to Dr. Harris, a

review of Dr. Wahlstrom’s treatment notes revealed that plaintiff’s

prior references to African-Americans and the shooting incidents was

“scant” and became a central part of plaintiff’s discussions only after

plaintiff applied for a duty-related disability pension. Dr. Harris wrote

that, in his view, plaintiff was “too actively trying to convince me and

I felt manipulated,” and opined that plaintiff was engaging in a

“conscious attempt to depict himself as barely controlled and a threat

to blacks.”

Dr. Harris then developed his own theory of what happened to

plaintiff. In Dr. Harris’ view, when plaintiff was first referred to Dr.

Wahlstrom in February 1996, he was voicing suicidal thoughts

because plaintiff had personal problems and financial worries. When

plaintiff was again referred to Dr. Wahlstrom in July 1996, it was

because he had anger against the chief for intrusion into his personal

life and blamed her for difficulties in the relationship with his

-16-

girlfriend. Plaintiff was not removed from the force until he made a

threatening statement against Chief Osantowski in September 1996.

According to Dr. Harris, this statement was precipitated by plaintiff’s

belief that the chief was the cause of his breakup with his girlfriend,

Sheila. Dr. Harris found that plaintiff’s relationship with Sheila was

the “most emotionally significant aspect” of plaintiff’s life and that

it caused plaintiff “some degree of depression,” although he believed

that the depression was not “severe.” Based upon the evidence he

reviewed, Dr. Harris opined that plaintiff’s anger at the time of his

removal from the Department was focused solely against the chief

and not related to any other aspects of police work. In fact, Dr. Harris

noted that there were references in the record which show that during

that time period plaintiff enjoyed police work.

In addition, Dr. Harris “question[ed] how dangerous [plaintiff]

was” at the time of his removal from the force, especially in light of

the fact that although Dr. Wahlstrom found that plaintiff could not

return to active duty due to his potential for violence, the doctor

“apparently did not seem too concerned about [plaintiff’s] carrying a

gun during the height of his purported dangerousness.” Dr. Harris

wrote that Dr. Wahlstrom’s “tolerance and/or implicit approval” of

plaintiff’s carrying a gun indicated that plaintiff “was not suffering

from a severe or even moderate psychiatric disturbance characterized

in part by barely controlled aggressiveness.” Dr. Harris stated that

“further evidence for the absence of a specific psychiatric disturbance

is that Dr. Wahlstrom had some question about the benefits of

therapy.” Dr. Harris opined that “little was accomplished” in

plaintiff’s therapy sessions with Dr. Wahlstrom because, in Dr.

Harris’ view, “there wasn’t a specific problem to treat.”

Accordingly, Dr. Harris wrote that he “questioned the severity of

[plaintiff’s] past reported psychiatric disorder” and, although plaintiff

may have experienced “a clear psychiatric disturbance warranting

time off from work,” Dr. Harris noted that plaintiff had a full year of

paid disability leave and opined that plaintiff had sufficient time to

recover from the problems he suffered in July-September 1996. Dr.

Harris further wrote that, in his opinion, any “psychiatric impairment”

that resulted in plaintiff’s taking medical leave from work ended well

before the conclusion of plaintiff’s period of temporary disability

payments in October 1997. Dr. Harris also found it notable that

-17-

plaintiff no longer harbored anger or resentment towards Chief

Osantowski.

Dr. Harris concluded his report by opining that although plaintiff

may have been “burned out” in his job as a police officer, burnout is

not a psychiatric disorder. Dr. Harris wrote that he did not believe that

plaintiff was a violent and unstable person, and, according to Dr.

Harris, there is no objective evidence that plaintiff suffers from a

psychiatric impairment which renders him unable to function as a

police officer. Dr. Harris concluded his report by diagnosing plaintiff

as having a “Major Depressive Disorder, Single Episode, in

remission.”

After admitting these four reports and three certificates into

evidence, the Board stated that its members would review these

documents prior to the next hearing, which was scheduled for

October 4, 1999. The Board then adjourned.

However, the Board’s next hearing on plaintiff’s application did

not occur until June 11, 2001. At that time, counsel for the Board

noted that “a lot of time has passed” since plaintiff’s application for

disability was previously considered by the Board, and indicated that

the delay was connected to the appointment of new Board members.

Counsel noted that because “two of the members are new and have

absolutely no knowledge basically of what the claim is,” the Board

decided to hear only the direct testimony of plaintiff and to defer

cross-examination of plaintiff to a later time.

Plaintiff testified that he was hired by the Department as a patrol

officer in October 1988, and he was first sent by the Department to

see Dr. Wahlstrom for a fitness evaluation in February 1996. At that

time, two officers had informed Chief Osantowski that plaintiff had

made statements that he was thinking of committing suicide. Plaintiff

stated that after his evaluation with Dr. Wahlstrom, he was sent back

to work without medication or therapy. Plaintiff testified, however,

that he was referred back to Dr. Wahlstrom in July 1996 by the

Department because it thought his work was declining and depression

was setting in. At that point, Dr. Wahlstrom prescribed plaintiff three

medications–trazodone, Depakote and clozapine–and returned

plaintiff to duty on the condition that he took his medication and

continued in biweekly psychotherapy with him.

-18-

Plaintiff testified, however, that soon thereafter he was removed

from duty. Plaintiff stated that at that time he did not want to be

around other people, he gained a great deal of weight, he gave up his

hobbies, and he did not sleep at night. In addition, plaintiff stated that

these feelings caused him to have difficulties in his longterm

relationship with his girlfriend, Sheila, and they separated for two

months.

According to plaintiff, when Chief Osantowski began inquiring

into his personal life it made him angry. Plaintiff stated that he

wanted the chief to mind her own business, and he believed that what

went on after work was his business. Plaintiff testified that, at that

time, he was “lashing out at everything and any authority figure that

even tried to tell [him] anything.” Plaintiff stated that he was aware

that his feelings towards, and comments about, Chief Osantowski led

to him being removed from the force, but that now he harbors no ill

will or anger towards her.

Plaintiff also spoke of the FBI investigation of the Department

and the negative effect that investigation had on him. Plaintiff stated

that he was placed under surveillance and that FBI officers routinely

sat in cars in front of his home. In addition, plaintiff stated that he

encountered undercover FBI agents on three occasions while he was

working. Plaintiff testified that this situation made him very

uncomfortable, as he believed that he was always being watched.

Subsequently, several officers that plaintiff worked with–and that he

described as “good friends”–were indicted and sent to jail. Plaintiff

stated that the FBI investigation and its outcome negatively affected

the way that he viewed police work because he did not know whom

to trust. Plaintiff also stated that it was his belief that the FBI

investigation led the IRS to subsequently audit his tax returns.

Plaintiff then testified with respect to four on-the-job shooting

incidents. These were the same shooting incidents described in the

reports submitted by Drs. Rubens, Conroe, Ganellen and Harris.

Plaintiff testified that these incidents bothered him a great deal and he

told his supervisors that he was tired of being shot at, to which they

responded that plaintiff could speak with a priest. Plaintiff testified

that he refused to meet with the priest, and stated that he did not seek

any other counseling. According to plaintiff, it was after the last

-19-

shooting incident in July 1996 that things became difficult with his

girlfriend, and he began having recurrent dreams about the shootings.

Plaintiff testified that the shooting incidents came up in the course

of his psychotherapy with Dr. Wahlstrom, but not in the beginning.

Plaintiff stated that, at the start of therapy, the focus was more on his

anger towards the chief and his difficulties with his girlfriend.

However, as his therapy continued, plaintiff stated that the trauma he

suffered in relation to the shootings began to surface. Plaintiff

believed that he had made progress in psychotherapy. However, at the

time of the hearing, plaintiff testified that he had not had sessions

with Dr. Wahlstrom for the prior six months, as he could no longer

afford to pay the costs. In addition, plaintiff stated that he was no

longer taking the psychotropic medications that had been prescribed

by Dr. Wahlstrom. Plaintiff further testified that at the time of the

hearing he would characterize himself as “normal,” and he stated that

he was employed by a car dealership as the head valet and worked

with African-Americans without incident.

The direct examination of plaintiff then concluded. During the

June 11, 2001, proceeding, the Board also admitted into evidence the

deposition testimony of Dr. Carl Wahlstrom, plaintiff’s treating

psychiatrist. Dr. Wahlstrom testified that the first time he saw

plaintiff was on February 8, 1996, when plaintiff was referred to him

by the Department for a fitness evaluation after he made comments

that he wanted to commit suicide. Because plaintiff had no prior

psychiatric treatment or hospitalizations, and because plaintiff stated

that he was not prone to suicidal tendencies at that time, Dr.

Wahlstrom allowed plaintiff to return to active duty.

Dr. Wahlstrom testified that plaintiff was again referred to him for

a fitness examination in July 1996, and he saw plaintiff on several

occasions. Dr. Wahlstrom stated that the police chief had referred

plaintiff for evaluation because plaintiff had expressed hostility

towards her. According to Dr. Wahlstrom, the examination disclosed

that plaintiff was suffering from a major depression and an anxiety

disorder not otherwise specified. Dr. Wahlstrom stated that plaintiff

was experiencing stress caused by the FBI investigation, as well as

the several shooting incidents in which he had been involved, and, as

a result, plaintiff had lost a great deal of idealism about being a police

officer. Although Dr. Wahlstrom did not find that plaintiff was

-20-

disabled by these conditions, Dr. Wahlstrom allowed plaintiff to

return to duty only on the condition that plaintiff begin taking

prescription psychotropic medications and attend biweekly

psychotherapy sessions.

By September 1996, however, plaintiff’s condition had

deteriorated and, Dr. Wahlstrom testified, he contacted Chief

Osantowski because plaintiff was making direct physical threats

against her safety. It was only the second time in Dr. Wahlstrom’s

career that he had to deliver such a warning. Dr. Wahlstrom stated

that plaintiff was very agitated and it was not the kind of situation

where he could reason with plaintiff, even though plaintiff was under

his care. Dr. Wahlstrom stated that plaintiff was angry, depressed and

consumed with hatred against the chief because he believed that her

interference in his personal life was causing the breakup of his

relationship with his girlfriend, Sheila. Dr. Wahlstrom testified that

plaintiff had become more unstable and that plaintiff’s perceptions

relating to his work environment were deteriorating. Upon plaintiff’s

suspension from the Department, he continued to undergo

psychotherapy with Dr. Wahlstrom, who opined that plaintiff “is

unable to return to work as a police officer, and that is secondary to

the nature and extent of his mental condition and the fact that he

himself, although wishing to return, does not feel that he can do so

safely.”

After hearing the direct testimony of plaintiff and admitting the

deposition of Dr. Wahlstrom into evidence, the Board then moved to

generally continue its review of plaintiff’s application for disability

pension and adjourned. No date was set by the Board for the next

hearing.

The Board reconvened and conducted the next hearing on

plaintiff’s application for disability pension on August 26, 2002. On

that date, the Board called several police officers to testify with

respect to the shooting incidents related by plaintiff during his

testimony and described in the reports of Drs. Rubens, Conroe,

Ganellen and Harris. Detective Sergeant Bryan Howard, retired

Officer Frank Cole, and Sergeant Michael Leuser offered testimony

that in some respects corroborated plaintiff’s version of the shooting

events, but in other respects contradicted plaintiff’s testimony.

Plaintiff was then cross-examined by members of the Board, as well

-21-

as the Board’s counsel. Plaintiff’s testimony largely mirrored that

offered during his direct examination. The Board then adjourned the

hearing.

The Board’s next hearing occurred on September 16, 2002.

Plaintiff called Corporal Robert Price of the Park Forest police

department to testify with respect to one of the shooting incidents.

Price’s testimony largely corroborated plaintiff’s testimony. In

addition, the Board also admitted into evidence several documents

which referenced this particular shooting incident and which

supported plaintiff’s version of events. The Board then adjourned the

hearing.

The Board next convened on October 23, 2002. During this

proceeding, the Board issued its decision denying plaintiff’s

application for disability pension benefits. The Board began its

written ruling by acknowledging that although plaintiff’s application

had been pending before the Board “for some time,” the delay in

hearing plaintiff’s petition “was not the result of any animus of the

Board for the applicant.” Rather, the Board explained, the delay

“resulted from a combination of unfortunate factors,” including a

“misunderstanding that the applicant had abandoned his application

and the Board’s inability to communicate promptly with its former

attorneys.”

The Board then turned to the merits of plaintiff’s application. In

its decision, the Board wrote that plaintiff’s claim was complicated

not only by the fact that the medical practitioners disagreed with

respect to whether plaintiff suffered from a psychological disability

under the Pension Code, “but also by conflicting testimony which

casts doubt upon [plaintiff’s] version of key disability-triggering

events.”

In discussing plaintiff’s testimony, the Board found plaintiff to be

a “complex” person. The Board noted that although it was undisputed

that plaintiff had said inflammatory things in the past, this did not

necessarily mean that plaintiff was unable to perform as a police

officer. In addition, the Board noted that it was also uncontroverted

that plaintiff refused to seek counseling after the shooting incidents,

even though he stated that he was distressed by the events. In

addition, it was evident that the anger plaintiff had previously held for

Chief Osantowski had dissipated. Moreover, the Board noted that

-22-

plaintiff himself stated during his testimony that he was now

“normal” and that he was no longer under psychiatric treatment or

taking prescription psychotropic medications. The Board wrote that

it found “this particular testimony compelling, in light of the fact that

the most recent subjective appraisal of [plaintiff], by [plaintiff]

himself, supports the finding that he is not disturbed.”

The Board also noted in its decision that plaintiff’s repeated use

of a derogatory racist slur to refer to African-Americans during his

interviews was “considerably troubling,” especially as the city of

Chicago Heights has a large African-American population. However,

the Board was suspicious of plaintiff’s use of this term, and explained

its suspicions as follows:

“The Board must consider why [plaintiff] would feel free to

laden his psychological interviews with the constant use of

that word. [Plaintiff] knew that he was being examined to

determine if he suffered from a psychological disability.

Given his self-interest in achieving a favorable report, it

seems that plaintiff was using it to alarm the examining

physicians into believing he suffered from a psychological

impairment on the basis that only such a disabled person

would use the word so often in a professional setting.

*** [A]nother motivation could be to coerce this Board

into granting a pension so that [plaintiff] would not be able to

subject the City to possible liability, or subject this Board to

the unfavorable publicity of ‘putting a bigoted officer back on

the street.’ ”

In addition, the Board found that plaintiff’s testimony with respect

to the shooting incidents was “inconsistent in several areas or

rebutted by other witnesses.” The Board contrasted plaintiff’s

testimony with that of Officers Howard, Cole and Leuser, and wrote

that it “assign[ed] significant weight to the extent that th[e] testimony

[of the other officers] refutes [plaintiff’s] versions of the various

events.” The Board wrote that plaintiff’s “credibility was put directly

at issue by the testimony of other credible witnesses in this matter.”

In its decision, the Board also closely examined the medical

reports submitted by the four physicians, in addition to Dr.

Wahlstrom’s deposition testimony. The Board found that “of the four

-23-

medical reports, the report by Dr. Harris is the most lengthy and

thorough evaluation of [plaintiff],” and, therefore, the Board

determined Dr. Harris’ opinion “to be the most credible and

persuasive evaluation, and assigns it great weight.” The Board

favorably observed that Dr. Harris in his report had highlighted the

contradictions in plaintiff’s speech and behavior, and that Dr. Harris’

“sincere assessment of [plaintiff’s] inconsistent statements and

demeanor *** was exceedingly persuasive.” The Board agreed with

Dr. Harris’ opinion that plaintiff “manufactured a blend of behavior

and statements in order to obtain a disability pension that he is not

entitled to.”

In conclusion, the Board wrote:

“At worst, [plaintiff] has concocted an aggressively bigoted

persona and symptoms of a psychological disorder to

convince doctors that he cannot perform the duties of a police

officer. At best, it seems, [plaintiff] has some impediments,

but medical practitioners simply cannot agree if they rise to

the level necessary to qualify for a disability award under the

Pension Code. In either case, awarding [plaintiff] a pension

would violate this Board’s fiduciary responsibility to the fund

participants.”

Therefore, the Board found that plaintiff had failed to establish by a

preponderance of the evidence that he suffered from a disability

within the meaning of the Pension Code which would entitle him to

a disability pension.

On November 25, 2002, plaintiff filed in the circuit court of Cook

County a complaint for administrative review of the Board’s decision

(administrative review action). Plaintiff alleged that his rights to due

process had been violated as a result of the Board’s excessive delays

in hearing and ruling on his application for disability benefits. In

addition, plaintiff alleged that the Board’s decision to deny him

disability pension benefits was erroneous because the decision of the

Board was contrary to the majority of the opinions of the Board’s own

physicians finding him to be disabled and because the only medical

opinion relied upon by the Board–that of Dr. Harris–was not

competent due to the excessively long time it took for the doctor to

examine plaintiff and render his opinion.

-24-

On January 26, 2004, the circuit court entered a written order

denying plaintiff’s petition for administrative review and confirming

the decision of the Board denying plaintiff a disability pension. The

circuit court held that although plaintiff was evaluated by more than

three mental health professionals, he failed to submit three certificates

of disability as required under section 3–115 of the Pension Code (40

ILCS 5/3–115 (West 2002)). Because the circuit court confirmed the

Board’s decision on the basis of statutory construction, the court

declined to address plaintiff’s additional due process argument.

Plaintiff thereafter filed with the circuit court a motion for

reconsideration of its ruling in the administrative review action. The

circuit court granted plaintiff’s motion for reconsideration on

February 5, 2004, and vacated its January 22, 2004, order. The circuit

court remanded plaintiff’s cause to the Board to allow plaintiff to

obtain and present certificates of disability from Dr. Wahlstrom and

Dr. Ganellen. On February 25, 2004, Dr. Wahlstrom filed a

physician’s certificate with the Board certifying that plaintiff is

disabled for service in the police department. Dr. Ganellen filed a

similar certificate with the Board on February 27, 2004.

On April 2, 2004, the Board reconvened to consider plaintiff’s

application in light of the two additional certificates of disability filed

by Drs. Ganellen and Wahlstrom. The Board then issued an

“Amended Decision,” which again denied plaintiff’s application for

a disability pension. Counsel for the Board described the amended

decision as “exactly the same decision as the Board rendered before

with the exception that it references now we have the other

certificate.”

The matter then returned to the circuit court for administrative

review of the Board’s amended decision. On May 20, 2004, the

circuit court issued a written memorandum and order confirming the

Board’s amended decision to deny plaintiff a disability pension. The

circuit court agreed with the Board that there was competent evidence

in the record–both medical and nonmedical–which supported the

Board’s decision. Accordingly, the circuit court held that the Board’s

decision was not against the manifest weight of the evidence.

With respect to plaintiff’s due process claim, the circuit court

noted in its written ruling that there were several delays in the hearing

process and, despite the Board’s contention to the contrary, no clear

-25-

explanation for the delays was provided in the original record.

Nevertheless, the circuit court held that it was “not clear that the

delays resulted in a deprivation of plaintiff’s due process rights.” The

court concluded that plaintiff’s hearing was still held at a meaningful

time despite the delays, and that there was no indication that these

delays impacted the Board’s decision. Therefore, the circuit court

held, the delays did not deprive plaintiff of due process.

Plaintiff appealed. The appellate court reversed the circuit court’s

ruling confirming the Board’s decision to deny plaintiff a disability

pension. The panel held that plaintiff was entitled to a disability

pension retroactive to the time of his application, on the basis that “all

of the mental health professionals, including Dr. Harris, agreed that

at the time of his removal from active duty [plaintiff] was suffering

from a psychiatric impairment that rendered him unable to function

as a police officer.” 361 Ill. App. 3d at 17-18. Accordingly, the

appellate panel held that the Board erred in denying plaintiff a

disability pension in light of what the panel characterized as the

“unanimous” agreement of the medical evaluators that plaintiff was

disabled. The appellate court remanded the cause to the Board,

however, to determine whether plaintiff should receive a line-of-duty

disability pension or a nonduty disability pension.

The appellate court also held, however, that section 3–115 of the

Pension Code (40 ILCS 5/3–115 (West 2002)) is unconstitutional as

applied where, as in plaintiff’s case, one of the three doctors selected

by the Board to evaluate the pension applicant does not certify the

applicant’s disability. Specifically, the appellate court found that

plaintiff’s right to due process was violated by the three-doctor

certification requirement because it fails to provide the applicant with

any right to question the Board’s selection of doctors or to set aside

unfavorable certificates. According to the appellate panel, where the

Board’s doctors do not unanimously certify the applicant disabled ,

as in the instant cause, whatever meritorious arguments the applicant

may raise at a hearing have no bearing on the outcome of the case. In

other words, the appellate court concluded that under this scheme the

negative outcome of a hearing is predetermined, and, therefore, the

applicant has no hearing at all.

We granted the Board’s petition for leave to appeal. 210 Ill. 2d

Rs. 315, 317. As stated, the Board appeals only from the appellate

-26-

court’s ruling in the administrative review action, including the

holding that section 3–115 of the Pension Code is unconstitutional as

applied to plaintiff. We allowed the Illinois Municipal League leave

to file an amicus brief in support of the Board. The Illinois Public

Pension Advisory Committee was also allowed to file an amicus brief

in support of plaintiff.

ANALYSIS

In administrative cases, our role is to review the decision of the

administrative agency, not the determination of the circuit court.

Anderson v. Department of Professional Regulation, 348 Ill. App. 3d

554, 560 (2004); Board of Education of Round Lake Area Schools v.

State Board of Education, 292 Ill. App. 3d 101, 109 (1997). Under

the facts presented in the instant cause, therefore, our review is

focused solely upon the decision of the Board. Section 3–148 of the

Pension Code (40 ILCS 5/3–148 (West 2002)) provides that judicial

review of the decision of the Board is governed by the Administrative

Review Law (735 ILCS 5/3–101 et seq. (West 2002)). See also AFM

Messenger Service, Inc. v. Department of Employment Security, 198

Ill. 2d 380, 390 (2001); Robbins v. Board of Trustees of the

Carbondale Police Pension Fund, 177 Ill. 2d 533, 537 (1997). The

Administrative Review Law provides that our review extends to all

questions of fact and law presented by the entire record. 735 ILCS

5/3–110 (West 2002); International Union of Operating Engineers,

Local 148 v. Illinois Department of Employment Security, 215 Ill. 2d

37, 61 (2005). The statute, however, specifically limits judicial

review to the administrative record, and, therefore, we may not hear

new or additional evidence in support of, or in opposition to, the

decision of the administrative agency. 735 ILCS 5/3–110 (West

2002); Robbins, 177 Ill. 2d at 538.

The applicable standard of review–which determines the extent

of deference afforded to the administrative agency’s

decision–depends upon whether the question presented is a question

of fact, a question of law, or a mixed question of law and fact. AFM

Messenger, 198 Ill. 2d at 390; City of Belvidere v. Illinois State Labor

Relations Board, 181 Ill. 2d 191, 204-05 (1998). Rulings on questions

of fact will be reversed only if against the manifest weight of the

evidence. Comprehensive Community Solutions, Inc. v. Rockford

-27-

School District No. 205, 216 Ill. 2d 455, 471-72 (2005). In contrast,

questions of law are reviewed de novo (Branson v. Department of

Revenue, 168 Ill. 2d 247, 254 (1995)), and a mixed question of law

and fact is reviewed under the clearly erroneous standard (AFM

Messenger, 198 Ill. 2d at 391-95; City of Belvidere, 181 Ill. 2d at

205). We further note that, under any standard of review, a plaintiff

to an administrative proceeding bears the burden of proof, and relief

will be denied if he or she fails to sustain that burden. See Miller v.

Fulton County Zoning Board of Appeals, 337 Ill. App. 3d 210, 216

(2003); Iwanski v. Streamwood Police Pension Board, 232 Ill. App.

3d 180, 184 (1992).

In the instant appeal, the Board contends that the appellate court

erred in setting aside the Board’s decision denying plaintiff a

disability pension. According to the Board, plaintiff failed to meet his

burden of proof by presenting insufficient evidence to support his

claim that he is eligible for a disability pension. The Board first notes

that plaintiff proffered little evidence to support his claim for

disability apart from his own testimony, and that plaintiff’s testimony

was inconsistent and also contradicted by three witnesses with respect

to events plaintiff claimed were significant work-related stressors. In

addition, the Board further observes that, by plaintiff’s own testimony

at the hearings, plaintiff stated that he was “normal,” and informed

the Board that he was not currently receiving psychiatric treatment or

taking any prescription psychotropic medications. Finally, the Board

notes that there were numerous inconsistencies in the medical

testimony, and maintains, in its role as finder of fact, that it properly

assigned greater weight to Dr. Harris’ evaluation of plaintiff, as it

determined Dr. Harris’ report to be the most complete, thorough and

persuasive of the four medical evaluations.

In response, plaintiff contends that the appellate court correctly

set aside the decision of the Board and its judgment should be upheld.

According to plaintiff, the appellate court correctly interpreted Dr.

Harris’ report to contain the opinion that plaintiff suffered from a

psychiatric impairment at the time he was removed by the

Department from active service, and that this creates the inference

that had Dr. Harris examined plaintiff closer to the time plaintiff was

removed from active service, he would have certified that plaintiff

was disabled. Plaintiff therefore contends that the appellate court

-28-

correctly found that there were “unanimous” medical opinions that

plaintiff suffered from a disabling psychiatric impairment at the time

of his removal from active duty that rendered him unable to function

as a police officer. Accordingly, plaintiff asserts, the appellate court

correctly set aside the decision of the Board denying plaintiff a

disability pension. We disagree.

The instant appeal presents the question of whether the evidence

of record supports the Board’s denial of plaintiff’s application for a

disability pension. This is a question of fact. The principles which

guide our review of this matter are well settled. The Administrative

Review Law provides that the “findings and conclusions of the

administrative agency on questions of fact shall be held to be prima

facie true and correct.” 735 ILCS 5/3–110 (West 2002); Robbins, 177

Ill. 2d at 538. As stated, therefore, rulings on questions of fact will be

reversed only if against the manifest weight of the evidence.

International Union of Operating Engineers, Local 148, 215 Ill. 2d

at 61. “An administrative agency decision is against the manifest

weight of the evidence only if the opposite conclusion is clearly

evident.” Abrahamson v. Illinois Department of Professional

Regulation, 153 Ill. 2d 76, 88 (1992). Therefore, the “mere fact that

an opposite conclusion is reasonable or that the reviewing court might

have ruled differently will not justify reversal of the administrative

findings.” Abrahamson, 153 Ill. 2d at 88. We are also mindful that,

“[i]n examining an administrative agency’s factual findings, a

reviewing court does not weigh the evidence or substitute its

judgment for that of an administrative agency.” City of Belvidere, 181

Ill. 2d at 204. If the record contains evidence to support the agency’s

decision, that decision should be affirmed. Commonwealth Edison

Co. v. Property Tax Appeal Board, 102 Ill. 2d 443, 467 (1984).

In the matter before us, plaintiff applied to the Board for

consideration of an award of either a line-of-duty or nonduty

disability pension. Section 3–114.1 of the Pension Code provides for

a line-of-duty disability pension as follows:

“Disability pension–Line of duty.

(a) If a police officer as the result of sickness, accident or

injury incurred in or resulting from the performance of an act

of duty, is found to be physically or mentally disabled for

service in the police department, so as to render necessary his

-29-

or her suspension or retirement from the police service, the

police officer shall be entitled to a disability retirement

pension equal to the greatest of (1) 65% of the salary attached

to the rank on the police force held by the officer at the date

of suspension of duty or retirement, (2) the retirement pension

that the police officer would be eligible to receive if he or she

retired (but not including any automatic annual increase in

that retirement pension), or (3) the pension provided under

subsection (d), if applicable.

A police officer shall be considered ‘on duty’ while on

any assignment approved by the chief of the police

department of the municipality he or she serves, whether the

assignment is within or outside the municipality.” 40 ILCS

5/3–114.1(a) (West 2002).

In contrast, section 3–114.2 of the Pension Code provides for a

nonduty pension as follows:

“Disability pension–Not on duty. A police officer who

becomes disabled as a result of any cause other than the

performance of an act of duty, and who is found to be

physically or mentally disabled so as to render necessary his

or her suspension or retirement from police service in the

police department, shall be entitled to a disability pension of

50% of the salary attached to the officer’s rank on the police

force at the date of suspension of duty or retirement.” 40

ILCS 5/3–114.2 (West 2002).

Finally, section 3–115 of the Pension Code provides that in

considering an application for either a line-of-duty or nonduty

disability pension, certain procedures must be followed by a pension

board. Section 3–115 provides in relevant part:

“A disability pension shall not be paid unless there is filed

with the board certificates of the police officer’s disability,

subscribed and sworn to by the police officer if not under

legal disability, or by a representative if the officer is under

legal disability, and by the police surgeon (if there be one) and

3 practicing physicians selected by the board. The board may

require other evidence of disability.” 40 ILCS 5/3–115 (West

2002).

-30-

As the applicant for disability pension benefits, plaintiff had the

burden of proof to establish his entitlement to either a duty-related or

nonduty disability pension. After carefully considering the entire

record, we hold that the Board’s conclusion that plaintiff failed to

satisfy his burden of proof in establishing his eligibility for a

disability pension is not against the manifest weight of the evidence.

We therefore disagree with the appellate court’s reversal of the

Board’s decision.

Central to the appellate court’s reversal of the Board’s ruling is

the appellate panel’s interpretation of Dr. Harris’ report. According

to the panel, “all of the mental health professionals, including Dr.

Harris, agreed that at the time of his removal from active duty

[plaintiff] was suffering from a psychiatric impairment that rendered

him unable to function as a police officer.” 361 Ill. App. 3d at 17-18.

We disagree not only with the appellate court’s reading of Dr. Harris’

report, but also with the conclusions drawn by the panel from its

interpretation of that report.

A fair and accurate reading of Dr. Harris’ 29-page report reveals

that Dr. Harris had serious questions with respect to whether, and if

so, to what extent, plaintiff experienced psychiatric disturbances or

disorders at the time of his removal from active duty in September,

1996. For example, Dr. Harris writes in his report that he not only

“question[ed] the severity of the past reported psychiatric disorder,”

but also “question[ed] how dangerous [plaintiff] was” at the time of

his removal from the Department, especially in light of the fact that

although Dr. Wahlstrom found that plaintiff could not return to active

duty due to his potential for violence, the doctor “apparently did not

seem too concerned about [plaintiff] carrying a gun during the height

of his purported dangerousness.” Dr. Harris further wrote in his report

that, in his view, Dr. Wahlstrom’s “tolerance and/or implicit

approval” of plaintiff’s carrying a gun indicated that plaintiff “was

not suffering from a severe or even moderate psychiatric disturbance

characterized in part by barely controlled aggressiveness.” The overall

tenor of Dr. Harris’ lengthy report is that, even at the time plaintiff

was removed from duty, it is unlikely that he suffered from a

psychiatric disturbance of such severity that it prevented plaintiff

from functioning as a police officer. This reading of Dr. Harris’ report

is confirmed by Dr. Harris’ statement that “further evidence for the

-31-

absence of a specific psychiatric disturbance is that Dr. Wahlstrom

had some question about the benefits of therapy.” (Emphasis added.)

Indeed, Dr. Harris opined in his report that he believed that “little was

accomplished” in plaintiff’s therapy sessions with Dr. Wahlstrom

because, in Dr. Harris’ view, “there wasn’t a specific problem to

treat.”

It is with these statements made by Dr. Harris in mind that we

turn to the appellate court opinion below. In its opinion, the appellate

panel refers to a passage from Dr. Harris’ report, and relies upon this

sole statement to support its finding that “all” of the mental health

professionals who evaluated plaintiff “agreed” that he was disabled

by a psychiatric impairment at the time of his removal from the

Department in September 1996. In this passage, Dr. Harris writes:

“Given that [plaintiff] had a clear psychiatric disturbance

warranting time off from work, he had a full year of paid

[temporary] disability. This time off resulted in the reduction

of his angry feelings toward the chief. It was the threat to the

chief that prompted the medical leave from work. He has had

sufficient time to recover from the acute problems he

experienced in July-September 1996. He is no longer

suffering from a psychiatric disability.”

We find that the appellate court overstated the significance of this

passage from Dr. Harris’ report. First, this statement must be placed

in the proper positional context within Dr. Harris’ report. This

passage immediately follows Dr. Harris’ statement opining that not

only is there “no evidence that [plaintiff] is suffering from a

psychiatric disorder,” but also Dr. Harris’ “question[ing] [of] the

severity of the past reported psychiatric disorder.” Second, this

statement must also be viewed in light of the broader context of Dr.

Harris’ entire 29-page report, which contains numerous references to

his questions about plaintiff’s past and present mental state. In

addition, the above-excerpted passage refers to Dr. Harris’ review and

discussion of plaintiff’s treatment with Dr. Wahlstrom, and it would

indeed be a strained reading of this passage to conclude that Dr.

Harris was making a specific finding or giving his opinion that

plaintiff actually suffered from a psychiatric disturbance which

prevented him from serving as a police officer. Because Dr. Harris’

report is replete with expressions of doubt with respect to whether

-32-

plaintiff suffered from a psychological or psychiatric disturbance–let

alone whether plaintiff was disabled–it was improper for the appellate

court below to ignore the factual dispute in the medical reports and

hold instead, based upon this isolated passage in Dr. Harris’ report,

that all doctors who examined plaintiff were of the unanimous

opinion that plaintiff suffered from a disabling psychiatric impairment

at the time he was removed from active service.

The dissenting justice in this matter, however, agrees with the

interpretation of Dr. Harris’ report made by the appellate panel below,

and asserts that we have proceeded on “the faulty premise that the

appellate court misread the record in this case.” Slip op. at 40

(Fitzgerald, J., dissenting). As an initial matter, we note that the

dissent’s opinion suffers from the identical infirmities as does the

appellate court’s decision below: it selects certain phrases from Dr.

Harris’ 29-page report, isolates them from the rest of the report, and

uses these isolated phrases to support its preferred interpretation of

Dr. Harris’ conclusions. As set forth in detail above, Dr. Harris’

report contains numerous expressions of doubt with respect to

plaintiff’s mental state from the time plaintiff first visited Dr.

Wahlstrom to the time that plaintiff engaged in interviews with Dr.

Harris. For example, as noted above, Dr. Harris stated that, at the time

plaintiff underwent therapy with Dr. Wahlstrom–which includes the

time during which plaintiff was removed from active duty–“further

evidence for the absence of a specific psychiatric disturbance is that

Dr. Wahlstrom had some question about the benefits of therapy.”

(Emphasis added.) In explanation, Dr. Harris wrote that “little was

accomplished” in plaintiff’s therapy sessions with Dr. Wahlstrom

because, in Dr. Harris’ view, “there wasn’t a specific problem to

treat.” The dissent ignores these–and all other–statements made by

Dr. Harris which refute its strained interpretation of his report, and

fails to address the remainder of Dr. Harris’ almost 30-page

report–which we have painstakingly reviewed and excerpted in great

detail above–that undermines the dissent’s preferred reading.

More fundamentally, we observe that the dissent has lost sight of

the fact that, in this action for administrative review, it is the decision

of the administrative agency–here, the Board–that is under review,

not the determination of the appellate court. See Anderson,348 Ill.

App. 3d at 560; Board of Education of Round Lake Area Schools, 292

-33-

Ill. App. 3d at 109. The dissent appears to be confused with respect

to which decision is before us for review. The dissenting justice’s

entire three-paragraph analysis of Dr. Harris’s 29-page report is

misfocused upon his belief that the appellate court’s interpretation of

Dr. Harris’ report is correct. Again, we emphasize that our role in this

administrative review action is to determine whether the evidence of

record supports the Board’s denial of plaintiff’s application for a

disability benefit, that this inquiry is a question of fact, and that the

Board’s determination on this issue may only be reversed if we

determine that it is against the manifest weight of the evidence. E.g.,

Abrahamson, 153 Ill. 2d at 88. Under this specific analytical

framework, it is not our task–contrary to the position taken by the

dissent–to review whether there is evidence to support the

conclusions drawn by the appellate court.

It is our holding that the record in this case reveals a factual

dispute as to plaintiff’s impairment and disability at the time that the

Board rendered its finding of facts and made its determination as to

plaintiff’s eligibility for a disability pension. The record contains

conflicting evidence–both medical and nonmedical–with respect to

plaintiff’s eligibility for a disability pension. Faced with this conflict

of evidence, it was the Board’s function, as the finder of fact, to

assess the credibility of the documentary information and the

testimony of the witnesses and to determine the appropriate weight to

be given the evidence. As stated, the findings of fact of an

administrative agency–such as the Board–are, by statute, held to be

prima facie true and correct (735 ILCS 5/3–110 (West 2002)) and

may only be reversed if they are against the manifest weight of the

evidence–a very high threshold to surmount. So long as the record

contains evidence supporting the agency’s decision, that decision

should be affirmed. Commonwealth Edison Co., 102 Ill. 2d at 467.

We hold that this is the case here.

The Board issued a comprehensive 11-page decision setting forth

with specificity the reasons for denying plaintiff’s claim for a

disability pension. In its decision, the Board stated that not only was

it presented with conflicting medical evidence with respect to whether

plaintiff suffered from a psychological disability, but also that it heard

conflicting testimony which cast doubt upon plaintiff’s version of key

disability-triggering events. The Board found it notable that plaintiff

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refused to seek counseling after each of the shooting incidents, even

though he claimed to be distressed by the events; that the anger that

he previously expressed against Chief Osantowski–and the direct

cause for his removal from active duty–had dissipated; and that

plaintiff described himself as “normal,” no longer under the care of

Dr. Wahlstrom or taking prescription psychotropic medications. The

Board also questioned the credibility of plaintiff’s account, based

upon the Board’s view that not only was plaintiff’s testimony

inconsistent, but also that it was rebutted on several key points by

other witnesses. The Board stated that it had assigned significant

weight to the extent that the testimony of the other witnesses refuted

plaintiff’s version of events.

The Board also assigned “great weight” to the report authored by

Dr. Harris and the opinions contained therein. The Board explained

that Dr. Harris’ report was “the most lengthy and thorough evaluation

of [plaintiff]” and, therefore, determined it to be the “most credible

and persuasive evaluation.” In its decision, the Board observed that

Dr. Harris had highlighted the contradictions in plaintiff’s speech and

behavior, and that the Board was persuaded by Dr. Harris’ “sincere

assessment of [plaintiff’s] inconsistent statements and demeanor.”

The Board also agreed with Dr. Harris’ suspicion that plaintiff’s

repeated use of a derogatory racist slur to refer to African-Americans

during the four medical interviews and plaintiff’s expressed hatred

toward African-Americans was “manufactured *** in order to obtain

a disability pension that [plaintiff] is not entitled to.” We also observe

that even Dr. Rubens, in his report finding plaintiff to be disabled,

found it notable that plaintiff’s judgment “seemed intact except in his

dramatic descriptions of how he would shoot a[n] [African-

American] if he had a gun and was on duty and saw one.” Dr. Rubens

wrote that he believed plaintiff’s statements “to be somewhat

dramatized and it is doubtful that he would, in fact, do so but it is

possible.” In addition, Dr. Rubens–like Dr. Harris–noted with interest

that plaintiff continued to carry a gun despite his own expressed fears

of what he might do as a result of his anger.

In its decision, the Board also focused on the observations made

by Dr. Harris in his report that plaintiff’s anger against African-

Americans and his discussion of the shooting incidents arose only

after plaintiff had been in treatment with Dr. Wahlstrom for nearly

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two years, at a time which coincided with plaintiff’s filing and

pursuing his application for a disability pension. Indeed, according to

Dr. Harris, even Dr. Wahlstrom found this sudden hostility to be

unusual and “bizarre,” and there was no clear explanation as to why

plaintiff suddenly began to express this hatred. We note that in

plaintiff’s own testimony before the Board, he confirmed that at the

start of his therapy with Dr. Wahlstrom, the focus was on his anger

toward Chief Osantowski and plaintiff’s difficulties with his

girlfriend, Sheila. Plaintiff testified that as his therapy continued, he

began to discuss the shootings with Dr. Wahlstrom, but offered no

explanation as to why there was a delay in these issues surfacing. We

also note that, although plaintiff expressed great hatred and animosity

toward African-Americans in his medical interviews, and that this

hostility led Drs. Rubens, Conroe and Ganellen to find plaintiff to be

disabled and unable to return to active duty, any discussion of

African-Americans and plaintiff’s hatred towards this group was

conspicuously absent from his testimony before the Board.

In addition, the Board also noted in its decision that although it

was undisputed that plaintiff had said inflammatory things in the past,

this did not necessarily mean that plaintiff was unable to perform his

duties as a police officer. Although the Board observed that the

doctors who evaluated plaintiff found that plaintiff had become

disillusioned with the Department as a result of the FBI investigation

and plaintiff’s perception that the Department was not supportive of

him, and that Dr. Wahlstrom had found plaintiff to be “burned out,”

the Board agreed with Dr. Harris that being disillusioned with one’s

job and being “burned out” did not constitute a psychiatric disorder.

In light of the above, we hold that the Board’s decision to deny

plaintiff a disability pension was not against the manifest weight of

the evidence. The record contains sufficient evidence to support the

Board’s decision, and we cannot say that it is clearly evident that the

Board should have reached the opposite conclusion and grant plaintiff

a disability pension.

In his brief to this court, however, plaintiff notes that under the

Pension Code, he is owed a fiduciary duty by the Board, and that this

militates in favor of our setting aside the decision of the Board

denying him a disability pension. We agree with plaintiff that the

Pension Code establishes that a pension board owes a fiduciary duty

-36-

toward its participants and beneficiaries. Board of Trustees of the

Barrington Police Pension Fund v. Village of Barrington Ethics

Board, 287 Ill. App. 3d 614, 616 (1997). Section 1–109 of the

Pension Code provides in relevant part that:

“A fiduciary with respect to a retirement system or

pension fund established under this Code shall discharge his

or her duties with respect to the retirement system or pension

fund solely in the interest of the participants and beneficiaries

and:

(a) For the exclusive purpose of:

(1) Providing benefits to participants and their

beneficiaries; and

(2) Defraying reasonable expenses of administering the

retirement system or pension fund;

(b) With the care, skill, prudence and diligence under the

circumstances then prevailing that a prudent man acting in a

like capacity and familiar with such matters would use in the

conduct of an enterprise of a like character with like aims.

***

(d) In accordance with the provisions of the Article of the

Pension Code governing the retirement system or pension

fund.” 40 ILCS 5/1–109 (West 2002).

This fiduciary duty, however, is owed to all participants in the

pension fund, not just plaintiff. Perhaps the most important function

of a pension board is to ensure adequate financial resources to cover

the Board’s obligations to pay current and future retirement and

disability benefits to those who qualify for such payments. An

important part of this responsibility involves the screening of

unqualified or fraudulent disability claims, so that funds are not

unfairly diverted to undeserving applicants. We believe that here, the

Board fulfilled its duty to oversee and screen plaintiff’s pension

application as required under the Pension Code.

We note that plaintiff, in his brief to this court, also presents a

short argument alleging that the delay by the Board in processing his

claim for disability benefits violates “his due process rights” and

serves as a “separate ground” for reversing the Board’s denial of his

disability pension benefits.

-37-

The United States Supreme Court has held that due process

requires, inter alia, a hearing at a meaningful time. Cleveland Board

of Education v. Loudermill, 470 U.S. 532, 547, 84 L. Ed. 2d 494, 507,

105 S. Ct. 1487, 1496 (1985). Although the record before us reveals

lengthy delays in initiating and completing plaintiff’s hearing, it is not

clear that–and plaintiff does not explain how–the delays resulted in

a deprivation of plaintiff’s due process rights. Indeed, there is no

indication from the record that these delays impacted the Board’s

decision.

Further, in his brief, plaintiff cites to several cases which he

contends support his due process argument. However, plaintiff’s

reliance on Lyon v. Department of Children & Family Services, 335

Ill. App. 3d 376 (2003), Cavarretta v. Department of Children &

Family Services, 277 Ill. App. 3d 16 (1996), and Stull v. Department

of Children & Family Services, 239 Ill. App. 3d 325 (1992), is

misplaced, as these decisions are factually distinguishable from the

matter before us. In each of the cited cases, the Department of

Children and Family Services (DCFS) was held to have violated the

due process rights of the plaintiffs by failing to conduct

administrative proceedings within stated statutory deadlines for those

proceedings. As a result, DCFS was found to have unreasonably

delayed the proceedings. In the instant cause, no similar time

limitations are found within the pertinent sections of the Pension

Code.

In addition, we disagree with plaintiff’s entreaties both in his brief

to this court and also in his petition for rehearing requesting that this

court, in essence, declare a bright-line rule that once an agency’s

delay in processing a disability benefits claim passes a certain point

in time, that delay automatically violates due process. Not only are we

unwilling to impose such a mandatory deadline on municipal and

agency decisions, the United States Supreme Court has rejected such

reasoning. In Heckler v. Day, 467 U.S. 104, 81 L. Ed 2d 88, 104 S.

Ct. 2249 (1984), the plaintiffs filed a class action lawsuit seeking

declaratory and injunctive relief on behalf of individuals who sought

social security disability benefits and who had suffered substantial

delays in scheduling and issuance of decisions. The Court rejected the

arguments advanced by plaintiffs, noting that “Congress repeatedly

has been made aware of the long delays associated with resolution of

-38-

disputed disability claims and repeatedly has considered and

expressly rejected suggestions that mandatory deadlines be imposed

to cure that problem.” Heckler, 467 U.S. at 111, 81 L. Ed. 2d at 96,

104 S. Ct. at 2253. Recognizing that “in Congress the concern that

mandatory deadlines would jeopardize the quality and uniformity of

agency decisions has prevailed over consideration of timeliness”

(Heckler, 467 U.S. at 114, 81 L. Ed. 2d at 98, 104 S. Ct. at 2255), the

Court concluded that it had no authority to impose the very deadlines

that Congress had repeatedly rejected. Heckler, 467 U.S. at 118, 81

L. Ed. 2d at 100, 104 S. Ct. at 2257.

Although we agree with plaintiff in the matter at bar that a

disability claimant is entitled to a timely hearing and decision on his

or her application for benefits, we recognize–as did the Heckler

opinion–that the time required before a well-reasoned and sound

decision on such an application can be made will vary widely on a

case-by-case basis. Indeed, establishing strict or bright-line time

limits for these types of decisions could result in incorrect rulings

where the deciding body is pressured for time in complex or difficult

cases. Accordingly, a case-by-case assessment must be made to

determine whether, under the specific facts and circumstances

presented, the claimant was deprived of due process. In the matter at

bar, under the specific facts and circumstances detailed at length in

this opinion, we conclude that plaintiff’s due process claim fails.

Because we uphold the decision of the Board denying plaintiff’s

application for a disability pension on the basis that plaintiff failed to

satisfy his burden of proof that he was disabled, we need not address

the Board’s alternative argument with respect to the constitutionality

of section 3–115 of the Pension Code. It is well settled that “questions

regarding the constitutionality of statutes should be considered ‘only

where essential to the disposition of a case, i.e., where the case cannot

be determined on other grounds.’ ” Hearne v. Illinois State Board of

Education, 185 Ill. 2d 443, 454 (1999), quoting Bonaguro v. County

Officers Electoral Board, 158 Ill. 2d 391, 396 (1994); see also People

v. Lee, 214 Ill. 2d 476, 482 (2005); In re Detention of Swope, 213 Ill.

2d 210, 218 (2004), quoting In re S.G., 175 Ill. 2d 471, 479 (1997) (as

a general rule, courts avoid deciding constitutional questions when

other, nonconstitutional grounds exist for resolving the case).

-39-

Indeed, we recently addressed a factually analogous situation in

Turcol v. Pension Board of Trustees of the Matteson Police Pension

Fund, 214 Ill. 2d 521 (2005). In Turcol, the appellate court confirmed

the pension board’s decision in that case to deny the plaintiff a line-

of-duty disability pension. However, the appellate court then went on

to address the plaintiff’s argument that section 3–115 of the Pension

Code was unconstitutional and rejected it. We then granted the

plaintiff’s petition for leave to appeal in order to resolve a conflict

regarding the construction of the three-physician requirement

contained in section 3–115. We subsequently determined, however,

that leave to appeal in Turcol had been improvidently granted, as “[i]t

is fundamental that courts should consider the constitutionality of a

statute only when necessary to decide the case.” Turcol, 214 Ill. 2d at

524. We noted that the record revealed that the pension board in that

case had declined to award the plaintiff a disability pension on the

alternative ground that the plaintiff had failed to prove his disability.

Therefore, the appeal in Turcol was dismissed.

Accordingly, we vacate that portion of the appellate court’s

judgment holding that section 3–115 of the Pension Code is

unconstitutional as applied to plaintiff.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the

appellate court. We also vacate that portion of the appellate court’s

judgment holding section 3–115 of the Pension Code unconstitutional

as applied to plaintiff. The order of the circuit court of Cook County

is affirmed.

Appellate court judgment reversed

in part and vacated in part;

circuit court judgment affirmed.

JUSTICES KILBRIDE and BURKE took no part in the

consideration or decision of this case.

JUSTICE FITZGERALD, dissenting:

-40-

The majority opinion reverses the appellate court and upholds the

Board’s decision denying plaintiff a disability pension. Because the

majority opinion is based on the faulty premise that the appellate

court misread the record in this case, and because the majority

opinion fails to address the threshold issue raised on appeal, I dissent.

During the appellate court’s discussion of the background of this

case, the court summarized the medical evidence considered by the

Board, including Dr. Harris’ report. 361 Ill. App. 3d at 9-14. Later, in

its analysis of the issues, the appellate court concluded that “all of the

mental health professionals, including Dr. Harris, agreed that at the

time of his removal from active duty [plaintiff] was suffering from a

psychiatric impairment that rendered him unable to function as a

police officer.” 361 Ill. App. 3d at 17-18. According to the majority

opinion, the appellate court misread Dr. Harris’ report by failing to

place a certain passage from that report in the “proper positional

context.” Slip op. at 32. I disagree.

Although Dr. Harris’ report made plain his view that plaintiff was

not currently disabled, his report also repeatedly acknowledged

plaintiff’s past psychiatric disorder and disability. Dr. Harris stated:

“Given that [plaintiff] had a clear psychiatric disturbance

warranting time off from work, he had a full year of paid

disability. This time off resulted in the reduction of his angry

feelings toward the chief. It was the threat to the chief that

prompted the medical leave from work. He has had sufficient

time to recover from the acute problems he experienced in

July-September 1996. He is no longer suffering from a

psychiatric disability.

***

Officer Marconi is not presently and has not been

suffering (at least since 10/6/97) from a psychiatric disorder

interfering with his functioning.

***

The psychiatric impairment that resulted in medical leave

from work ended as far back as, and most likely well before

10/6/97.” (Emphases added.)

In addition, Dr. Harris’ stated diagnosis was “Major Depressive

Disorder, Single Episode, in Remission.” This diagnosis, together

-41-

with the foregoing passages, clearly support the appellate court’s

reading of Dr. Harris’ report. If the appellate court is to be reversed,

it must be on some other basis.

The majority asserts that I am “confused” and have “lost sight” of

the fact that “it is the decision of the administrative agency–here, the

Board–that is under review, not the determination of the appellate

court.” (Emphases original.) Slip op. at 33. I am fully cognizant of the

decision this court has been called upon to review. What is confusing,

however, is the difference between the majority’s analysis of the case

and its analysis of my dissent. According to the majority opinion, the

majority may scrutinize the appellate court’s reading of the record in

this case as part of its review of the Board’s decision (slip op. at 32-

33), but I am precluded from conducting the same analysis and

reaching a contrary conclusion.

In any event, even if I agreed with the majority that the appellate

court misread Dr. Harris’ report, I would nonetheless dissent because

the majority fails to consider the threshold issue in this case, namely,

whether the Board could properly consider evidence of plaintiff’s

current medical condition, as opposed to evidence of his condition at

the time he was removed from active duty or at the time he applied

for a disability pension. Relying on Hahn v. Police Pension Fund,

138 Ill. App. 3d 206 (1985), the appellate court concluded that

plaintiff’s medical condition at or near the time of his removal from

active duty was the only relevant medical evidence the Board should

consider in making its initial determination of eligibility for a

disability pension. Evidence of plaintiff’s condition at a later date,

which may indicate he improved with therapy, is inappropriate for

consideration at the initial eligibility determination. Rather, such

evidence is properly considered as part of the statutory process to

verify continuing eligibility. 361 Ill. App. 3d at 17. The appellate

court concluded that, under the authority of Hahn, the Board’s denial

of plaintiff’s application for a disability pension was clearly erroneous

in light of the medical evidence speaking to plaintiff’s condition “at

the time of his removal from active duty.” 361 Ill. App. 3d at 18. The

majority overlooks this part of the appellate court opinion,

notwithstanding the Board’s argument before this court that it should

not be restricted in the medical evidence it may review. Indeed, the

Board urges this court to overrule Hahn.

-42-

Significantly, the appellate court’s determination that the Board

may only consider evidence relevant to plaintiff’s medical condition

at the time of his removal from active duty, and that the evidence here

supported a finding of disability, compelled the appellate court to

consider the Board’s alternative argument for affirming the denial of

a disability pension–plaintiff’s failure to submit three certificates of

disability from Board-appointed physicians, pursuant to section

3–115 of the Illinois Pension Code (40 ILCS 5/3–115 (West 2002)).

After considering this issue, the appellate court held the statute

unconstitutional as applied to plaintiff. 361 Ill. App. 3d at 29.

Although consideration of the Hahn issue by this court would not

necessarily result in the court’s consideration of the constitutional

issue, the failure to consider the Hahn issue does remove any

possibility of reaching the constitutional question. I would address the

Hahn issue that the Board raises on appeal and let our disposition of

that issue dictate the direction the rest of the opinion should take. By

failing to address this issue, the lower courts are left to wonder

whether Hahn has been overruled by this court sub silentio or simply

ignored.

For these reasons, I dissent.

-43-