# Board of Trustees of the Police Pension Fund v. City of Evanston

> Appellate Court of Illinois · June 20, 1996 · 281 Ill. App. 3d 1047

URL: https://www.frixlaw.com/law-library/cases/7027451

## Case

- **Full name:** BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE CITY OF EVANSTON v. THE CITY OF EVANSTON
- **Court:** Appellate Court of Illinois
- **Decided:** June 20, 1996
- **Citations:** 281 Ill. App. 3d 1047; 667 N.E.2d 657
- **Precedential status:** Published
- **Opinion:** Concurrence by Brien
- **Judges:** Brien, Cahill
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JUSTICE O’BRIEN, specially concurring:
While I concur with the result in the opinion of the learned majority, I disagree with its reliance on Rockford on one narrow issue: that acceptance of the amortization figure designated by the Board is discretionary. In so doing, the majority minimizes the difference between the language of the statute in the Rockford case and that in the case at bar. As the majority points out, the statute in force when Rockford was decided provided the council with the option of utilizing a $10,000 statutory baseline instead of the Board’s designated amortization figure. Ill. Rev. Stat. 1981, ch. 1081/2, par. 3 — 127. The legislature deleted this language in 1983.
The majority states, "Whatever the legislature intended when it deleted the requirement that the Board maintain a $10,000 minimum reserve, we cannot go beyond the plain meaning of the language it left behind.” 281 Ill. App. 3d at 1052. It concludes that, based upon the language left behind, the council is not required to levy a tax in any specific amount determined by the Board because the council "is not bound by the Board’s certified figure.” I agree with the premise, but find the majority’s analysis faulty in that it incorrectly lumps discretion regarding the Board’s "certified” tax levy figure together with discretion regarding the Board’s "designated” amortization figure.
Section 3 — 125 establishes a formula pursuant to which the council is directed to finance the fund. It states that the council "shall annually levy a tax,” at a rate necessary to produce an amount which, when added to the payroll deductions from police officer wages and other available revenues, equals a sum sufficient to meet the annual requirements of the fund. It further states, "The annual requirements to be provided by such tax levy are equal to (1) the normal cost of the pension fund for the year involved, plus (2) the amount necessary to amortize the fund’s unfunded accrued liabilities as provided in Section 3 — 127.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 1081/2, par. 3 — 125 (now 40 ILCS 5/3 — 125 (West 1994). Thus, the statutory financing formula is:
Tax Levy Payroll Deductions Other Revenues = Normal Cost Amortization Figure (hereafter, the Financing Formula).
The Financing Formula is thus comprised of at least five separate and very distinct components. Of these, section 3 — 143 requires the Board to report annually to the council and "certify” the fund’s current assets, payroll deductions, other revenues, normal cost and amortization figure as used by the Board in its calculation of the Financing Formula. Ill. Rev. Stat. 1991, ch. 1081/2, par. 3 — 143 (now 40 ILCS 5/3 — 143 (West 1994). Notably, however, section 3 — 127 further directs the Board to "designate” the amortization figure so the Fund accumulates reserves equal to its estimated total actuarial requirements. Ill. Rev. Stat. 1991, ch. 1081/2, par. 3 — 127 (now 40 ILCS 5/3 — 127 (West 1994).
In my view, the deletion of the $10,000-per-person statutory baseline option for the amortization figure (whether done in response to Rockford or not) eliminates the council’s entitlement to exercise its discretion regarding the value to be inserted as the amortization figure when it computes the funding formula. Indeed a plain reading of the language left behind requires the council to accept and utilize the Board’s "designated” amortization figure. To reiterate, section 3 — 125 states that the council "shall annually levy a tax” and:
"The annual requirements to be provided by such tax levy are equal to (1) the normal cost of the pension fund for the year involved, plus (2) the amount necessary to amortize the fund’s unfunded accrued liabilities as provided in Section 3 — 127.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 1081/2, par. 3 — 125.
Section 3 — 127 requires the Board to "designate” the amount necessary to amortize the fund’s unfunded accrued liabilities. Ill. Rev. Stat. 1991, ch. 1081/2, par. 3 — 127. These statutes, read together, admit of no modification. "Shall” means "shall,” not "maybe,” "perhaps,” "often,” "could,” "might,” or a host of others. The plain, mandatory language used by the legislature clearly requires the Board to "designate” the amortization figure to be used in the Financing Formula and the council to employ the amortization figure thus "provided” in its own calculation of the necessary Tax Levy.
This analysis stands to reason. In the Financing Formula, every component save the amount needed to amortize the fund’s unfunded accrued liabilities can be changed. Additional police officers can change the payroll deductions; administrative layoffs can change the normal cost of current operation of the fund for the year; property values can change the amounts provided by, a tax levy; other revenues can be received from the federal government. Only the amount needed to amortize the fund’s unfunded accrued liabilities — its ' established debts — is an unchanging figure. And it is a figure the Board is most capable of calculating accurately since it is the Board, not the council, that is charged by statute with "exclusive” power to control and manage the fund (Ill. Rev. Stat. 1991, ch. 1081/2, par. 3 — 132 (now 40 ILCS 5/3 — 132 (West 1994))) and that is vested with "responsibility” in its administration (Ill. Rev. Stat. 1991, ch. 1081/2, par 1 — 101.1(a) (now 40 ILCS 5/1 — 101.1(a) (West 1994))).
For the foregoing reasons, I agree with the majority and the ultimate holding of Rockford that the Pension Code does not require the council to impose a tax levy in the amount certified by the Board. However, I find the language in section 3 — 125 is nondiscretionary as it relates to the Board’s designated amortization figure. I believe the council must accept and utilize the Board’s amortization figure even if the council finds it necessary to alter the values plugged into the remaining components of the Financing Formula from those certified by the Board.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7027451. Public record. Not legal advice.