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SIXTH DIVISION

June 14, 2002

Nos. 1-01-3150 & 1-01-3631; Cons.

JUSTICE O'BRIEN delivered the opinion of the court:

The Police Pension Board of the City of Des Plaines (the Board) appeals the order of the circuitcourt reversing the Board's order terminating the disability pension of plaintiff, Mark Martino. TheBoard also appeals the order of the circuit court awarding prejudgment interest on plaintiff's pensionaward. On appeal, the Board argues that plaintiff is no longer disabled for purposes of receiving adisability pension, as evidenced by the fact that plaintiff currently works full-time for another policedepartment. We affirm.

The relevant facts are undisputed. Plaintiff became a police officer in the Des Plaines policedepartment in January 1996. A few months later, plaintiff ruptured two disks in his lower back anddeveloped a symptom called foot drop that prevents him from running. Plaintiff applied for a not-on-duty disability pension pursuant to section 3-114.2 of the Illinois Pension Code (40 ILCS 5/3-114.2(West 1996)).

On July 9, 1996, the Board entered an order granting plaintiff his disability pension in theamount of 50% of his salary as a police officer. In its order, the Board made the following findings:

"(2) [Plaintiff] suffers from weakness of the lower extremities related to a decompressivelaminectomy of the spine, and neurogenic bladder and bowel, and a right foot drop requiringa brace and wheelchair. He is currently confined to Marianjoy Rehabilitation Hospital forrehabilitation. These conditions prevent him from performing the duties of a police officerbecause of the lack of ambulatory ability.

(3) Doctors Steiner, Craig and Uteg, three practicing physicians selected by the Board, havesigned certificates of disability, essentially following the Board's findings in paragraph (2) above."

In December 1996, the Des Plaines police department terminated plaintiff because of his physicaldisability.

In December 1998, plaintiff applied for a position as a full-time police officer in Lake Villa, amunicipality with a population of about 2,300. Lake Villa hired plaintiff effective June 1, 1999.

After learning that plaintiff was working full-time as a police officer for Lake Villa, the Boardordered plaintiff to show cause why his pension should not be revoked. During the show cause hearing,plaintiff introduced into evidence two physician's certificates. The first certificate was from DoctorKhan, dated October 27, 1997. In the October 1997 certificate of disability, Doctor Khan stated:

"[Plaintiff] has right foot drop as a result of spinal stenosis and herniated disk. [Plaintiff]has difficulty running and wears a brace on his right leg."

The second certificate was from Doctor McNaughton dated July 23, 1999. In the July 1999certificate of disability, Doctor McNaughton stated:

"[Plaintiff] has right foot drop from right pernial nerve palsy that occurred as acomplication of previous spinal stenosis and herniated discs. He cannot run at any speed ordistance due to his right foot brace. His injury and disability is permanent."

The Board presented no contrary medical evidence indicating that plaintiff was not disabled.

Plaintiff testified at the hearing as follows:

"Q. Would you please describe to the members of the Board what, if any, limitations youhave upon your physical well-being?

A. I have a dropped--I have to wear a brace on my right leg. When I remove the brace,my foot--I cannot flex it forward and back. It just drops and hangs. So the brace enables my legto stay in a natural position where I'm able to walk.

Q. What physical limitations are on you because of your situation?

A. Well, obviously, I can't run long distances. I could never get out and run a mile anda half or I couldn't go for a jog. I mean I just can't run.

Q. Did you receive a position with the Lake Villa police department?

A. Yes, sir, I did.

Q. Are you currently employed there?

A. Yes, sir.

Q. And what is your capacity, the capacity of your employment?

A. I work there full-time as a patrolman.

Q. Prior to your appointment at the Lake Villa police department, did you inform themof any physical limitations that you may have?

A. Yes, sir.

Q. What, if anything, did you tell them?

A. I told Chief Visconti that I wear a brace on my leg and that I was unable to run longdistances.

Q. Okay. Even with that revelation to them, did they employ you as a police officer?

A. Yes, sir, they did.

Q. What, if anything, has the Lake Villa police department indicated to you in regardto your performance to date?

A. They are--They seem to be very pleased with me.

Q. What, if any, physical limitations do you have as you perform the function of a ***member of the Lake Villa police department?

A. I still can't run.

Q. Okay. With your past experience on the Des Plaines police department, what, if any,differences can you tell this Board in regard to the exposure that you would have as a policeofficer between Des Plaines and Lake Villa?

A. Des Plaines has a higher, obviously a higher crime rate.

Q. And having a higher crime rate, what, if anything, would that mean to you as a policeofficer?

A. More experience, more danger to myself. Obviously there would be a greater chancethat I would have to get out and physically chase somebody or run after somebody.

Q. Okay. As you sit here today, can you perform the full and unlimited duties of a policeofficer as it would relate to the Des Plaines police department?

A. No, sir.

Q. When you were employed by the Des Plaines police department, did they indicateto you that you would have to be able to run as a function of your appointment?

A. Yes, sir."

Roger Visconti, Lake Villa's police chief, testified as follows regarding plaintiff's hiring:

"Q. Why would Lake Villa be interested in hiring a police officer that couldn't run?

A. Well, when I reviewed his background and the chairman of the police committee, welooked at the education that [plaintiff] had, more than just the physical. So a lot of that I believehad to do with the police committee and the mayor hiring [plaintiff] is his education andexperience ***.

Q. Your department does not care if he can run after a subject? You do not consider thatpart of what you hired him for?

A. I would consider that partially. I mean, the man isn't totally immobile. And with theother officers, it being a smaller department, you have more camaraderie. And I believe theofficers, they all know about it and they really haven't expressed any displeasure or concern fortheir safety. *** [U]sually there's a sergeant and another patrolman splitting districts where thesergeant is roaming and usually is there within minutes. And also coverage from othermunicipalities are usually right within a few minutes response time. So that was all taken inconsideration."

After hearing all the evidence, the Board revoked plaintiff's pension due to his employment asa full-time police officer for Lake Villa. On administrative review, the circuit court reversed the Board,ordered the reinstatement of plaintiff's pension, and awarded plaintiff prejudgment interest on the backpension award. The Board filed this timely appeal.

In reviewing a final decision under the Administrative Review Law (735 ILCS 5/3-101 et seq.(West 1996)), we review the agency's decision and not the circuit court's determination. XL DisposalCorp. v. Zehnder, 304 Ill. App. 3d 202 (1999). The agency's decisions on questions of fact are entitledto deference and are reversed only if they are against the manifest weight of the evidence. Abrahamsonv. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). Where the agency decidesa mixed question of fact and law, the decision is reversed only if it is clearly erroneous. City of Belviderev. Illinois State Labor Relations Board, 181 Ill. 2d 191 (1998). Where there is no question of fact, andthe issue is one of law only, the agency's decision is reviewed de novo. Envirite Corp. v. IllinoisEnvironmental Protection Agency, 158 Ill. 2d 210, 214 (1994).

The Board argues that the clearly erroneous standard of review, as set forth in City of Belvidere,applies here. The issue in City of Belvidere was whether the city's refusal to engage in collectivebargaining with the union over the city's decision to contract out paramedic services to a privateambulance company amounted to an unfair labor practice in violation of the Illinois Public LaborRelations Act (Act) (5 ILCS 315/1 et seq. (West 1994)). City of Belvidere, 181 Ill. 2d at 202. In resolvingthe issue, the court noted that the Illinois State Labor Relations Board (the agency) had made a factualdetermination that the city's decision affected wages, hours and other conditions of employmentpursuant to section 7 of the Act. City of Belvidere, 181 Ill. 2d at 201, 205. The court further noted thatthe agency's finding concerned a question of law because the phrase "wages, hours and other conditionsof employment" was a legal term that required interpretation. City of Belvidere, 181 Ill. 2d at 205. Therefore, the court held that the agency's determination was a mixed question of fact and law for whichthe clearly erroneous standard of review was appropriate. City of Belvidere, 181 Ill. 2d at 205.

By contrast, here we are not asked to review any factual findings made by the Board. Rather, theissue before us only involves a question of law, specifically, whether the Board properly terminatedplaintiff's disability pension under the Illinois Pension Code. Therefore, our standard of review is denovo.

The primary rule of statutory construction is to ascertain and give effect to the intent of thelegislature. Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 97 (1996). In determining legislativeintent, the court first should consider the statutory language. Somers, 278 Ill. App. 3d at 97. Where thestatutory language is clear, it will be given effect without resort to other aids for construction. Somers,278 Ill. App. 3d at 97.

Section 3-114.2 of the Illinois Pension Code entitles a police officer to a disability pension of 50% ofhis salary when he:

"becomes disabled as a result of any cause other than the performance of an actof duty, and [he] is found to be physically or mentally disabled so as to render necessaryhis *** suspension or retirement from police service in the police department." 40 ILCS5/3-114.2 (West 2000).

Section 3-115 of the Illinois Pension Code provides that a disability pension is not paid withouta certificate of disability "subscribed and sworn to by the police officer if not under legal disability, or bya representative if the officer is under legal disability, and by the police surgeon (if there be one) and 3practicing physicians selected by the board." 40 ILCS 5/3-115 (West 2000). In addition, "[m]edicalexamination of a police officer retired for disability shall be made at least once each year prior toattainment of age 50, as verification of the continuance of disability for service as a police officer." (Emphasis added.) 40 ILCS 5/3-115 (West 2000).

Thus, the officer's disability pension is contingent upon his continued disability; if he recoversfrom his disability, the Board may revoke his disability pension. Section 3-116 of the Illinois PensionCode sets forth the procedure for determining whether the officer has recovered from his disability and,thus, whether his disability pension may be revoked. Section 3-116 provides in relevant part:

"A police officer whose duty is suspended because of disability may besummoned to appear before the board, and to submit to an examination to determinefitness for duty. The officer shall abide by the board's decision. If a police officer retiredfor disability, * * * is found upon medical examination to have recovered from disability,the board shall certify to the chief of police that the member is no longer disabled andis able to resume the duties of his or her position." (Emphasis added.) 40 ILCS 5/3-116(West 2000).

Thus, just as the officer must establish his entitlement to a disability pension through "medicalexamination" verifying his continued disability (40 ILCS 5/3-115 (West 2000)), the officer's recoveryfrom disability must also be shown by "medical examination" (40 ILCS 5/3-116 (West 2000)).

Here, plaintiff introduced medical evidence from Doctors Khan and McNaughton showing thatplaintiff continues to suffer from his disability, i.e., the right foot drop occurring as a complication ofspinal stenosis and herniated disk. The Board offered no contrary medical evidence and, in fact,conceded during oral argument that plaintiff continues to suffer from his disability and that, as long hashe is so disabled, he will not be rehired by the Des Plaines police department. Since plaintiff has notrecovered from his disability, the Board erred in revoking his disability pension.

The parties dispute which side has the burden of proof at a disability termination hearing. TheBoard contends that the burden of proof is on the officer to show that he is still disabled; the plaintiffcontends that the burden of proof is on the Board to show that plaintiff is no longer disabled. We neednot address this issue, since, regardless of which party has the burden of proof, it is undisputed thatplaintiff is still disabled.

The Board next argues that plaintiff's receipt of a disability pension under the facts of this caseviolates public policy. While the term "public policy" lacks precise definition, it may be stated generallyas a legal principle that no one may do that which has a tendency to injure the public welfare. O'Harav. Ahlgren, Blumenfeld & Kempster, 127 Ill. 2d 333, 341 (1989). The public policy of this state isreflected in its constitution, its statutes, and its judicial decisions. O'Hara, 127 Ill. 2d at 341.

There is no public policy preventing a disabled police officer from receiving a disability pensionfrom the municipality that formerly employed him as a policeman. Nor is there any public policypreventing a disabled officer from securing full-time police work in another municipality that is willingto accommodate his disability. The Board argues, though, that the combination of the two events (thereceipt of a disability pension from one municipality and the securing of full-time police work in asecond municipality) violates public policy. We would agree if the officer's work in the second policedepartment demonstrated his recovery from the disability that necessitated his termination from the firstpolice department. Under the unique facts of this case, though, plaintiff was hired by a second, smallerpolice department though he continues to suffer from the same disability that prevents him fromworking for the first police department. As discussed earlier in this opinion, the second policedepartment was aware of plaintiff's continued disability, but hired him anyway because of his educationand experience and because other officers were available to cover for him when necessary. Since plaintiffremains disabled from working for the first police department, his receipt of a disability pension fromthat department's municipality works no fraud or harm on the public welfare and thus is not violativeof public policy.

Further, the Board agrees that if plaintiff had found a job as, for example, a real estate agent, hewould still be entitled to his disability pension because his work as a real estate agent would not beinconsistent with his claim of disability. Similarly, here, plaintiff's work as a police officer in the secondpolice department is not inconsistent with his claim of disability, as all parties agree that plaintiff remainsdisabled from working for the first police department. Thus, for purposes of plaintiff's disability pension,his job as a police officer in the second police department is no different than if he had taken a job as areal estate agent; despite working for the second police department, he is still disabled according to therequirements of the first police department, and therefore he is still entitled to his disability pension.

The Board argues that Jagielnik v. Board of Trustees, 271 Ill. App. 3d 869 (1995), compels adifferent result. In Jagielnik, an officer sought a disability pension for the depression he suffered as aresult of a woman exposing his sexual misconduct against her. Jagielnik, 271 Ill. App. 3d at 871. TheJagielnik court held that as a matter of public policy, the police officer could not receive a disabilitypension because his disability was a result of the officer's intentional wrongdoing. Jagielnik, 271 Ill. App.3d at 877-78. Jagielnik is inapposite, as plaintiff here committed no crime, perpetrated no fraud, andengaged in no intentional wrongdoing necessitating the revocation of plaintiff's disability pension.

The Board also argues that public policy would be violated if plaintiff someday received a seconddisability pension from Lake Villa. Plaintiff has not applied for or received a disability pension fromLake Villa, and therefore that issue is not properly before us.

Next, the Board argues that the trial court erred in awarding plaintiff prejudgment interest undersection 2 of the Illinois Interest Act (the Interest Act) (815 ILCS 205/2 (West 2000)). Section 2 provides:

"Creditors shall be allowed to receive at the rate of five (5) per centum per annum for allmoneys after they become due on any bond, bill, promissory note, or other instrument of writing***." 815 ILCS 205/2 (West 2000).

In Fenton v. Board of Trustees, 203 Ill. App. 3d 714 (1990) and Barber v. Board of Trustees, 256Ill. App. 3d 814 (1993), the appellate court held that a pension agreement is an "other instrument ofwriting" under the Interest Act. The court reasoned that because the terms and conditions of the pensionfund are written in the Illinois Pension Code, they constitute a writing creating an indebtedness similarto bonds, bills or promissory notes. Fenton, 203 Ill. App. 3d at 723; Barber, 256 Ill. App. 3d at 819.Accordingly, the court held that prejudgment interest is a proper award under the Act. Fenton, 203 Ill.App. 3d at 723; Barber, 256 Ill. App. 3d at 819.

We follow the well reasoned opinions in Fenton and Barber and hold that the trial court did noterr in awarding plaintiff prejudgment interest.

For the foregoing reasons, we affirm the circuit court.

Affirmed.

GALLAGHER, P.J., and BUCKLEY, J., concur.