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

ILLINOIS OFFICIAL REPORTS

Appellate Court

Howe v. Retirement Board of the Firemen’s Annuity & Benefit Fund,

2013 IL App (1st) 122446

Appellate Court PATRICK J. HOWE, Plaintiff-Appellant, v. THE RETIREMENT

Caption BOARD OF THE FIREMEN’S ANNUITY AND BENEFIT FUND OF

CHICAGO, Defendant-Appellee.

District & No. First District, First Division

Docket No. 1-12-2446

Filed September 9, 2013

Held In the absence of a valid final action by defendant retirement board in

(Note: This syllabus compliance with the requirements of the Open Meetings Act, the trial

constitutes no part of court’s judgment confirming the denial of plaintiff’s application for duty

the opinion of the court disability benefits for the injury he suffered in his position as a fireman

but has been prepared was reversed and the board’s decision was vacated and the cause was

by the Reporter of remanded to the Board with directions that it render a final administrative

Decisions for the decision according to the principles of the Act.

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-16641; the

Review Hon. Kathleen M. Pantle, Judge, presiding.

Judgment Circuit court judgment reversed; Board decision vacated; cause remanded

to the Board for further proceedings, with directions.

Counsel on Sugarman & Horwitz, of Chicago (Stephen B. Horwitz, of counsel), for

Appeal appellant.

Burke Burns & Pinelli, Ltd., of Chicago (Mary Patricia Burns and

Vincent D. Pinelli, of counsel), for appellee.

Panel JUSTICE DELORT delivered the judgment of the court, with opinion.

Presiding Justice Hoffman and Justice Rochford concurred in the

judgment and opinion.

OPINION

¶1 From the perspective of the parties, this administrative review case is about whether a

Chicago fire department (CFD) employee should receive a disability pension. From our

viewpoint, however, the disability issue must wait for another day, because the pension board

made several procedural errors which rendered its decision invalid.

¶2 Defendant, the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago

(Board), voted on a motion to grant the application of plaintiff, Patrick J. Howe, for a duty

disability benefit under section 6-151 of the Illinois Pension Code (Pension Code) (40 ILCS

5/6-151 (West 2010)). The motion failed, as five Board members voted “no” and only two

members voted “yes.” Thereafter, the Board never adopted, by majority affirmative vote, any

motion whatsoever disposing of the application and approving a written decision as required

by the Open Meetings Act (5 ILCS 120/1 et seq. (West 2010)). Nonetheless, the Board

thereafter issued a written decision denying Howe his application for a duty disability benefit.

The circuit court addressed the merits of the underlying claim and affirmed the Board’s

decision to deny benefits to Howe. Because we find the Board never validly took final action

on the application, we vacate its decision and remand this cause with instructions for the

Board to take valid final action by conducting a proper affirmative vote on a specific written

decision.

¶3 BACKGROUND

¶4 Because we do not reach the merits of the case, we will only briefly summarize the facts.

They are largely uncontested and are set forth in the administrative record. Howe became an

employee of the City of Chicago (City) on June 16, 1977. In 1996, after a series of

promotions, Howe accepted a CFD managerial position, commonly referred to as an “exempt

rank” position. In the new role, Howe worked on personnel and employee relations matters

in the department’s administrative services division. Howe negotiated contracts, performed

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grievance resolution, and developed department examinations. Eventually, he became deputy

district chief of employee relations.

¶5 In 2002, the CFD assigned Howe to work at its headquarters located at 10 West 35th

Street in Chicago. His regular working hours were from 8 a.m. to 4:30 p.m. As deputy

district chief of employee relations, his duties did not include mitigating any emergency in

the City nor commanding emergency incidents.

¶6 On February 25, 2002, Howe was serving his periodic turn as the CFD’s designated

media affairs officer. After leaving CFD headquarters at the end of his regular workday,

Howe proceeded on his route home, driving his CFD-issued vehicle southbound on the Dan

Ryan Expressway (Ryan). At approximately 5 p.m., a call came over the CFD radio in his

vehicle announcing that a man had fallen from a platform onto the rail tracks at the train

station located at 63rd Street and the Ryan.

¶7 Although Howe was not ordered by the CFD or the office of emergency management

communication to go to the scene of the incident, Howe chose to self-dispatch and exited the

Ryan at the off-ramp. According to Howe, he chose to respond because this type of an

incident “always attract[s] media attention,” and he thought it would be best to respond to

the dispatch. He also chose to respond because he is a licensed paramedic and wanted “to see

if [he] could help with this patient as well.”

¶8 Howe grabbed a “quick response bag” (QRB) from the trunk of his vehicle, which was

stocked with emergency supplies that a paramedic would carry as a first responder. He

observed that the Chicago Transit Authority (CTA) attendant was on the rail tracks assisting

the man who had fallen. Because the attendant was not nearby to open the ticket booth or

unlock the turnstile, Howe decided to leap over the turnstile in the same manner a gymnast

would leap over a vault. He pressed his hands down on either side of the turnstile and

boosted his body weight up, throwing his legs up and over the turnstile. At that point, Howe

felt a “pop” in his right shoulder with extreme pain. After the CTA incident was mitigated,

Howe drove himself to Little Company of Mary Hospital rather than call an ambulance

because he “knew there was no need for [him] to tie up an ambulance for an injured

shoulder.”

¶9 Howe returned to duty 8 to 10 days after sustaining the injury. He underwent physical

therapy and received steroid injections. When his shoulder failed to respond to treatment,

Howe underwent a magnetic resonance imaging (MRI) test, which revealed a torn rotator

cuff. Howe underwent shoulder surgery to repair the injury. He returned to duty on October

31, 2002 and continued to work at the CFD for the next six years. His shoulder continued to

bother him with increasing pain and weakness. He received injections for the pain.

¶ 10 In 2008, Howe underwent a second surgical procedure on his right shoulder. He returned

to duty in March 2009, but continued to have shoulder pain. In 2010, his shoulder was

operated on for the third time. According to Howe, the restrictions recommended by his

physician prevented him from performing all the physical requirements of a paramedic.

Howe testified that he could not return to work for the CFD unless he was able to perform

all the physical duties of a paramedic.

¶ 11 On December 8, 2010, Howe signed a City “End of Employment Form,” which is

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completed only if an employee is leaving City service. The form indicated that February 28,

2010 was the last day Howe worked for the CFD. The form also indicated Howe’s reason for

leaving employment as “Applying for Pension Benefits.”

¶ 12 Howe submitted his application for a duty disability benefit on December 15, 2010 and

underwent further examinations. On March 16, 2011, the Board conducted a formal

administrative hearing on his application for a duty disability benefit. At the hearing, medical

records were introduced into evidence, and Howe and others testified regarding his work

duties, physical condition, and medical history.

¶ 13 Immediately after the last witness’s testimony concluded, the Board adopted a motion

to recess into closed session.1 Following a break of unspecified length, the Board

reconvened. Board member Anthony Martin made a motion to grant Howe’s application.

The motion was seconded, but the motion lost on a 2 to 5 vote. Martin, the maker of the

motion, voted “no” on his own motion. According to the transcript, immediately after the last

member voted, the chairman announced: “Based on the Findings of Fact made by the

Trustees, the Trustees have voted to deny you the benefit you have requested. You will be

notified by mail of the Findings of Fact and the Board’s decision.”

¶ 14 The transcript indicates that no further proceedings were conducted on Howe’s

application on that date, and the Board advises us that the record is complete. The Board did

not adopt, by majority affirmative vote, any motion disposing of the application. However,

the Board issued a written decision, which is dated the same day as the hearing, March 16,

2011. The decision is signed only by the five Board members who voted against the motion

to grant the application. The written decision finds that Howe “did not present sufficient

evidence to meet his burden of proof to show that he was performing an act of duty as

defined under section 6-110 of the Illinois Pension Code [(40 ILCS 5/6-110 (West 2010))]

when he injured his right shoulder on February 25, 2002.” The Board also found Howe failed

“to prove that he was injured while on duty” and “meet his burden of proof to show that he

is disabled as defined under section 6-112 of the Illinois Pension Code [(40 ILCS 5/6-112

(West 2010))].” The Board transmitted the decision to Howe on April 4, 2011, along with

a cover letter stating that the Board had met on March 16, 2011. The Board’s cover letter

states that Howe would have 35 days from the date of mailing (April 4) to file a complaint

for administrative review.

¶ 15 On May 6, 2011, Howe filed his complaint for administrative review in the circuit court.

Howe argued that the Board’s findings were against the manifest weight of the evidence and

that the shoulder injury he sustained was incurred in and resulting from an act of duty, but

did not raise any issues regarding the method by which the Board adopted its written

1

The motion did not, as strictly required by section 2(a) of the Open Meetings Act (5 ILCS

120/2(a) (West 2010)), state the specific statutory exemption under which the Board could meet in

closed session. Presumably, it was to deliberate on the evidence presented before a quasi-

adjudicative body as permitted by section 2(c)(4) of the Open Meetings Act (5 ILCS 120/2(c)(4)

(West 2010)). We do not find this apparent violation to be material, but point it out to illustrate

another problem in the manner in which the Board conducted the hearing.

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decision. Howe sought a reversal of the Board’s determination. On July 31, 2012, the circuit

court issued a detailed and thorough written opinion affirming the Board’s decision on the

merits. This timely appeal followed.

¶ 16 Upon review of the briefs, we asked the parties for supplemental memoranda addressing

two questions: (1) whether the Board took valid final action on the application when it never

adopted any motion on the application with a majority of “yes” votes; and (2) whether the

Board’s decision was invalid in light of Lawrence v. Williams, 2013 IL App (1st) 130757,

¶ 23, because it was never adopted by a public vote as required by the Open Meetings Act.

Both the Board and Howe filed supplemental memoranda arguing that the Board validly

conducted the proceedings below.

¶ 17 ANALYSIS

¶ 18 The Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)) governs our

review of the Board’s decision. “The scope of our review extends to all questions of law and

fact presented by the record.” Village of Broadview v. Illinois Labor Relations Board, 402

Ill. App. 3d 503, 505 (2010) (citing 735 ILCS 5/3-110 (West 2008)).

¶ 19 It is elementary that the decision of an administrative agency must be in writing. Many

deadlines and requirements in the Administrative Review Law are triggered by the service

or issuance of a “copy” of the decision upon the parties. See, e.g., 735 ILCS 5/3-103 (West

2010) (“a decision shall be deemed to have been served either when a copy of the decision

is personally delivered or when a copy of the decision is deposited in the United States

mail”). Additionally, the Board has imposed upon itself a requirement that its decisions be

in writing. See Procedural Rules Established Pursuant to 40 ILCS 5/6-191 Governing

Applications for and Administrative Hearings Upon Applications for Duty, Occupational

Disease or Ordinary Disability Benefits, Rule 67 (Nov. 2009),

www.fabf.org/PDF_Files/DisabilityProcedures.pdf (last visited Aug. 7, 2013) (“Final

administrative decisions of the Board shall be in writing and shall be issued to the applicant

within sixty (60) days from the last Hearing date of the Administrative Hearing.”).

¶ 20 The Board’s own cover letter told Howe that he had 35 days from April 4 to seek

administrative review, which indicates that the Board itself intended that April 4, not March

16, was the date of its final order. See 735 ILCS 5/3-103 (West 2010) (providing that the

effective date of an administrative order for appeal purposes is the date it was personally

delivered or mailed). Nothing in the administrative record reveals that the Board ever met

again to approve the written decision in open session.

¶ 21 Pertinent to our discussion here, section 6-178 of the Pension Code provides:

“A majority of the members shall constitute a quorum for the transaction of business at

any meeting; provided, that no pension, annuity, or benefit shall be allowed or granted

and no money shall be paid out of the fund unless ordered by the affirmative vote of a

majority of the total membership of the board as shown by roll call entered upon the

official record of proceedings of the meeting at which such action is taken.” (Emphasis

added.) 40 ILCS 5/6-178 (West 2010).

In other words, section 6-178 of the Pension Code specifically mandates an affirmative

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majority vote by the total membership of the board in order to grant an applicant a duty

disability benefit. We recognize the Board intended to deny Howe his application for a duty

disability benefit, so one can argue that section 6-178’s “affirmative vote” requirement did

not apply. Even so, after the motion to grant the application failed, it would have been

preferable to adopt a motion specifically denying the application, along with a written

decision, by a majority “yes” vote.

¶ 22 Additionally, the Board chairman’s comment that the oral vote “denied” Howe’s benefits

becomes particularly inscrutable. On March 16, the Board chairman stated that the trustees

had “made” “Findings of Fact,” even though the written findings could not have been written

at that time because the last witness had just testified. More importantly to our procedural

conundrum, the chairman also stated that the board had “denied” the application, even

though the only action the Board took was to vote against a motion to grant the application.

¶ 23 In Howe’s supplemental brief, he argues that neither he nor the Board “ha[s] ever

suggested or concerned themselves with the possibility that any component of the hearing

or decision making process failed to comply” with the Open Meetings Act. According to

Howe, the Board went into closed session following the presentation of evidence,

reconvened in open session, “and in the presence of plaintiff and counsel, the Board’s

Trustees were polled, and voted to deny plaintiff a duty disability benefit.” Howe makes no

mention of the fact that the Board never voted in open session on its written decision to deny

him a duty disability benefit.

¶ 24 Similarly, the Board argues in its supplemental brief that the procedures it followed in

processing Howe’s administrative proceeding “were consistent with both Illinois law and

accepted parliamentary practices for the conduct of fair and orderly administrative board

hearings.” The Board then continues:

“The five (5) Board members who signed the decision on March 16, 2011, not April

4, 2011, effectively adopted the decision after voting to deny the motion that was made

to grant Howe’s application. Once it is understood that the Board’s majority voted no and

signed a written decision on March 16, 2011, there is no doubt that the Board reached a

final decision on that day.”

The Board thus clearly concedes that it never took an affirmative majority vote on its written

decision to deny Howe his application for a duty disability benefit.

¶ 25 We particularly emphasize that the written decision must be prepared and provided to

each board member at or before the time the Board votes to take final action on the

application. The Board’s only decision is the written version, since that is the decision setting

forth its findings of fact, reasoning, and analysis that judges consider during the

administrative review process.

¶ 26 In this case, the record belies the Board’s claim that it ever conducted a majority vote by

roll call to affirm its written decision. In light of the requirement of section 1 of the Open

Meetings Act (5 ILCS 120/1 (West 2010)) that public bodies vote openly, the Board’s

argument that the signatures of Board members in its written decision denying Howe his

application suffices hardly holds water. No public body in Illinois subject to the Open

Meetings Act can take final action by merely circulating some document for signature and

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not voting on it publicly. Imagine, for instance, the legal problems created if the Chicago city

council “adopted” ordinances by publicly voting on a concept that had never been reduced

to writing, directed a staff attorney to prepare it in a more detailed written form, circulated

the written final version around city hall for signatures of a majority of the 50 aldermen, and

then ordered the city clerk to publish it as if it were a valid legislative act.

¶ 27 Both the Board and Howe urge us to find the Board took valid final action. In particular,

the Board’s supplemental brief suggests that it was perfectly fine for it to handle Howe’s

application in the manner it did, because it could ignore the rest of the statutory requirements

as long as it “prepare[d] and ma[de] available for public inspection a written decision setting

forth its determinative reasoning.” 5 ILCS 120/2(c)(4) (West 2010). The Board’s brief also

rather brazenly contends there is no requirement “that the meeting thereafter be opened-up

[sic] for the purpose of polling the members of the administrative body to disclose their votes

on the question.” That interpretation bends the Open Meetings Act almost beyond

recognition.

¶ 28 The quoted provision regarding public inspection sets forth an exception to an exception.

It first creates an exception to the normal rule of openness by allowing quasi-adjudicative

agencies which have held a formal evidentiary hearing to meet in closed session2 only to

deliberate on the evidence–not to issue decisions. Secondly, it allows the agency to do so

only if it actually later issues a written decision explaining its reasoning. Nothing in the

provision relied upon by the Board abrogates the strict requirement of the Open Meetings Act

that it must take final action openly. See 5 ILCS 120/1 (West 2010) (“In order that the people

shall be informed, the General Assembly finds and declares that it is the intent of this Act to

ensure that the actions of public bodies be taken openly and that their deliberations be

conducted openly.”).

¶ 29 As to the Board’s other contention that the members need not publicly disclose their

votes, we note that it has been long-established that secret ballots by public bodies violate

the Open Meetings Act. WSDR, Inc. v. Ogle County, 100 Ill. App. 3d 1008, 1011 (1981). We

do not know if any member of the public was able to view the signing of the decision at issue

here, and we realize that the signatures on the order are publicly available, but we know that

no one was able to hear the Board members, assembled as a meeting, vote on it. The Board’s

method of “voting” is just as “secret” as the balloting methodology invalidated in the WSDR

case.

¶ 30 In addition, we specifically reject the Board’s and Howe’s contentions that Open

Meetings Act violations are no longer at issue because the Act contains a 60-day limitation

period which has long passed. The limitation period, set forth in section 3 applies only to

new lawsuits specifically brought by persons seeking declaratory or injunctive relief against

a public body for an Open Meetings Act violation.

¶ 31 In Lawrence v. Williams, 2013 IL App (1st) 130757, we considered an appeal from a

2

Although the Board held a closed session to deliberate on the evidence, the Board clearly

did not execute, adopt, or issue its written decision with the intricate formalities the Open Meetings

Act requires to actually convene a “closed session.” 5 ILCS 120/2(c)(4) (West 2010).

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decision of a local electoral board. Although electoral board decisions are heard on “judicial

review” (10 ILCS 5/10-10.1 (West 2010)) and not administrative review pursuant to section

3-101 of the Code of Civil Procedure (735 ILCS 5/3-101 et seq. (West 2010)), as are pension

board decisions (40 ILCS 5/6-222 (West 2010)), the process is basically the same. In

Lawrence, we determined that two members of the three-member electoral board violated

the Act by drafting and circulating a decision for signature behind closed doors without ever

voting on it in an open session. Lawrence, 2013 IL App (1st) 130757, ¶¶ 21, 23. We

dismissed the Lawrence appeal for lack of jurisdiction, finding that the electoral board never

issued a valid final order. Id. Admittedly, unlike here, the losing party before the Lawrence

electoral board specifically raised the Open Meetings Act violation as a basis to invalidate

the electoral board’s adverse decision. Nonetheless, Lawrence strongly suggests that the

public’s interest in openness overrides the parties’ interest in expediency.

¶ 32 We understand the concern expressed by both the Board and Howe that reversing,

vacating, and remanding this appeal would unduly prolong the length of the appeal process.

However, the rationale they proffer to justify the legality of the Board’s proceedings creates

too much tension with universally recognized principles of parliamentary procedure, the

Pension Code, and the principles embodied in the Open Meetings Act. Accordingly, we

cannot blindly gloss over the Board’s error by granting an imprimatur to its decision. The

Board never took valid final action under the Open Meetings Act and, thus, we reverse the

circuit court’s judgment confirming the decision of the Board and vacate the Board’s

decision to deny Howe his application for a duty disability benefit, with instructions to the

Board to render a valid final action in this cause. See Rock v. Thompson, 85 Ill. 2d 410, 438

(1981) (Simon, J., concurring in the decision) (“[i]n other words, we told everybody to start

over and do it right”).

¶ 33 If, after the Board renders a valid final decision on the merits, the case reaches us again,

any party may file a motion asking to adopt the briefs already on file in this case as their

briefs in the subsequent appeal.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the order of the circuit court of Cook County is reversed, the

decision by the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago is

vacated, and this cause is remanded to the Board with instructions that it render a final

administrative decision with the principles set forth herein.

¶ 36 Circuit court judgment reversed; Board decision vacated; cause remanded to the Board

for further proceedings, with directions.

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