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FOURTH DIVISION
May 20, 2004

No. 1-03-2012

JUSTICE THEIS delivered the opinion of the court:

Defendant Board of Trustees of the City of Calumet City Policemen's Pension Fund (theBoard) appeals from an order of the circuit court which, on administrative review, reversed theBoard's decision to revoke plaintiff Steven A. Rhoads' not-on-duty disability pension. On appeal,the Board argues that (1) the trial court lacked jurisdiction to review Rhoads' complaint whenRhoads failed to name parties of record as defendants under section 3-107(a) of theAdministrative Review Law (735 ILCS 5/3-107(a) (West 2000)); and (2) the trial court erred infinding that Rhoads was entitled to a disability pension because his former position of chief ofpolice was not available despite the fact that Rhoads was discharged from that position. For thefollowing reasons, we reverse the decision of the circuit court and affirm the Board's ruling.

Rhoads received his appointment as chief of police of the City of Calumet City on May 24,1988. On May 11, 1993, Rhoads submitted his application for a line-of-duty disability pension. On May 13, 1993, Rhoads was terminated from his position as police chief when a new mayorwas elected. He did not contest his discharge. The City of Calumet City Police Pension Boarddenied his application for a line-of-duty disability pension, but granted Rhoads a not-on-dutydisability pension under section 3-114.2 of the Illinois Pension Code (the Code) (40 ILCS 5/3-114.2 (West 1994)) on January 31, 1995, as a result of an injury to his left knee. Rhoads thenfiled a complaint for administrative review, and the circuit court reversed the Board's decision andgranted Rhoads a line-of-duty disability pension. The Board appealed to this court, whichreversed the decision of the circuit court and found that the Board's decision to grant Rhoads anot-on-duty pension was not against the manifest weight of the evidence. Rhoads v. Board ofTrustees of the City of Calumet City Policemen's Pension Fund, 293 Ill. App. 3d 1070, 689N.E.2d 266 (1997).

In 2001, the Board held administrative hearings under section 3-116 of the Code (40 ILCS5/3-116 (West 2000)) to determine whether Rhoads continued to be disabled and, thus, couldcontinue to receive a not-on-duty disability pension; or whether Rhoads had recovered sufficientlyand was able to resume the duties of his position, necessitating the termination of his disabilitypension. Richard Cyr testified that the Board's attorney hired him as a private investigator to takevideo surveillance of Rhoads working as a rodeo clown in 1998. He stated that he videotapedRhoads on five different occasions for a total of five hours. Cyr testified that he did not edit thefilm, but only taped portions of each rodeo when Rhoads was performing. He did not see anychiropractors at the rodeos and stated that Rhoads did not limp or have a problem climbing in andout of the barrel. Cyr identified Exhibit H as the videotape he took at the Danville rodeo on July18, 1998, which was then offered into evidence and viewed by the Board.

Ray Cox testified for Rhoads that he owns a rodeo school. He stated that he hired Rhoadsas a comic clown or a funny man, but testified that Rhoads could not be a bull fighter clownbecause he had bad knees. He did not have chiropractors at his rodeos. Rhoads worked for Coxapproximately 25 to 28 times between 1998 and 2001. Cox saw Rhoads limp before and afterperformances and observed Rhoads ice his knees when they were swollen. The July 18, 1998rodeo was not one of Cox's rodeos. Georgia Knotts testified for Rhoads that she was a nursewho provided ice to performers at rodeos. She saw Rhoads perform at a rodeo in 1998 and gavehim ice for his knees, but never saw a chiropractor work on him. She stated that Rhoads did notperform during the entire rodeo and placed ice on his knees between performances. Knotts alsoobserved him with a limp and stated that he wore braces on his knees during performances.

George Vallis, chief of police of the City of Calumet City police department, testified thathe held that position since May 1995. In July or August of 2001, Vallis told Rhoads that therewere no full-time or permanent light-duty positions available in the police department. He statedthat the chief of police serves at the pleasure of the mayor and could be fired at any time. Hisposition, for the most part, was executive, managerial and administrative. Vallis testified that themission statement of the department stated that he must be able to perform the duties of a patrolofficer. Vallis testified that Rhoads could not return as chief of police.

Rhoads testified that he started "Christian clowning" in 1989 and began working as acomedy clown in rodeos in 1993. He stated that his knees tightened up and he was in pain andused chiropractors when they were available at rodeos. He also iced his knees on a regular basis. In 1998, Rhoads was involved in between 20 and 25 rodeos. At the rodeos, he interacts withchildren, does Gospel magic tricks and entertains the crowd. He stated that he performed infewer rodeos in 1999, 2000 and 2001 because he did not have the physical capacity to do thatmany shows. Rhoads stated that he could do light-duty work at the police department, but couldnot respond as a police officer because of his physical limitations. He stated he can no longerperform at rodeos as he did in the videotape due to his knee and back problems, but he admittedthat he was on the videotapes.

Dr. William Malik's report dated June 22, 1999, was admitted into evidence. In thatreport, Dr. Malik indicated that he evaluated Rhoads that day and found him to havechondromalacia of the left knee and degenerative disease in his back. Based on Rhoads' knee andback problems, he would be disabled from full-duty employment as a police officer. In a letterdated March 6, 2000, Dr. Malik amended his prior report and stated that Rhoads could return tofull-duty employment as a supervising law enforcement officer, which would consist of mediumworkload activities. Rhoads could lift up to 50 pounds and could perform frequent lifting andcarrying of up to 25 pounds. In his report dated March 29, 2001, Dr. Robert Miller diagnosedRhoads with chondromalacia of the left knee and stated that he was disabled with respect to thatknee. He stated that his disability was relative and prevented him from performing the duties ofan ordinary police officer, but was not so severe as to preclude him from working in anadministrative position in a police department or prevent him from functioning "perfectly welladministratively as a police chief."

In its decision dated March 12, 2002, the Board made the following factual findings. Byordinance, the chief of police of the City of Calumet City is appointed and can be removed by themayor. In 1998, an investigative firm took video surveillance of Rhoads performing as a rodeoclown on five different occasions in order to ascertain whether his employment and physicalactivities since receiving his disability pension were inconsistent with his receipt of the pension. The Board found Cyr's testimony relevant, probative and credible and determined that the videoshowed Rhoads running, jumping, climbing fences, dancing, running from bulls, leaping on top ofand off a barrel, climbing into a barrel, carrying the barrel and being rammed by a bull whilecrouched inside the barrel. Rhoads did not dispute that he performed these activities and theBoard found that these activities were "totally contradictory" to Rhoads' claim of continuingdisability to his left knee and his claim that he was presently disabled from performing the dutiesand functions of chief of police. Dr. Malik's report indicated that Rhoads would be disabled fromfull-duty employment as a police officer, but Rhoads could return to full-duty employment as asupervisory law enforcement officer. Dr. Miller stated that Rhoads could function perfectly welladministratively as a police chief. Rhoads did not introduce any current medical reports thatwould indicate he was still disabled and unable to perform the duties of the City of Calumet Citypolice chief.

Cox testified that putting a clown in a barrel with a charging bull was a dangerous stuntand that the barrels weighed between 90 and 120 pounds. While Cox testified that Rhoads "getsinto a barrel like an old man," the Board stated that it observed Rhoads jumping in and on top ofthese barrels as well as carrying these barrels with no apparent difficulty. The Board found thatthe videotape was not altered or edited and accurately portrayed Rhoads performing variousrodeo activities. The Board was not persuaded by Rhoads' testimony and found his demeanor tobe "unpersuasive, uncorroborated and not credible in light of the videotapes." The Boardadditionally found that the video "clearly demonstrate[d]" that Rhoads was not disabled fromperforming his duties as chief of police.

The Board concluded that the doctors who examined Rhoads indicated that he wasphysically able to perform the police duties that he previously performed which wereadministrative in nature and Rhoads offered no competent medical evidence to contradict thesereports. The Board also found that "[w]hat position the City of Calumet City has for Steven A.Rhoads is not relevant to whether or not he is disabled." The Board terminated Rhoads' not-on-duty disability pension and ordered a certificate to issue stating that Rhoads was no longerdisabled and was able to resume the duties of his position.

Rhoads filed a complaint for administrative review in the circuit court, naming asdefendants the Board, the City of Calumet City and Vallis. Rhoads argued that the Board'sdecision was against the manifest weight of the evidence and that he should have been offered alight-duty position when the Board determined that he was fit for such work. All parties thenfiled motions to dismiss. The participants and beneficiaries of the pension fund also filed a motionto dismiss, which the Board adopted, contending that Rhoads failed to name them as defendantsin the administrative review action and thus, pursuant to section 3-107(a) of the AdministrativeReview Law, Rhoads' complaint had to be dismissed. On October 31, 2002, the trial courtdismissed the City of Calumet City and Vallis, but found that the participants and beneficiaries hadno standing to bring a motion to dismiss and struck their motion. The court then denied theBoard's motion to dismiss for failure to name the participants and beneficiaries of the pensionfund.

Following a hearing, the court found that the Board's factual findings were explicit,appropriately related to Rhoads and adequately supported by the evidence and rejected Rhoads'argument that the decision terminating Rhoads' not-on-duty disability pension was against themanifest weight of the evidence. However, the trial court reversed the Board, finding thatRhoads should continue to receive a disability pension because his previous position of policechief had not been made available to him, despite the fact that he had been discharged from thatposition. The Board then filed this timely appeal.

The Board first argues that the trial court erred in denying its motion to dismiss Rhoads'complaint. It contends that the court lacked jurisdiction over the complaint when Rhoads failedto name the participants and beneficiaries of the pension fund as defendants under section 3-107(a). The Board cites several instances in the record where it indicated that Richard Puchalskiwas appointed special counsel to represent the interests of the participants and beneficiaries of thepension fund and, thus, argues that they were parties of record to the proceedings before theadministrative agency and were required to be named in the complaint.

A motion to dismiss under section 2-619 of the Illinois Code of Civil Procedure (735ILCS 5/2-619 (West 2000)) admits the legal sufficiency of the plaintiff's claim, but asserts certaindefects or defenses outside the pleading that defeat the claim. Wallace v. Smyth, 203 Ill. 2d 441,447, 786 N.E.2d 980, 984 (2002). Our standard of review is de novo. Wallace, 203 Ill. 2d at447, 786 N.E.2d at 984.

Section 3-107(a) of the Administrative Review Law provides in relevant part:

"[I]n any action to review any final decision of an administrative agency,the administrative agency and all persons, other than the plaintiff, who were partiesof record to the proceedings before the administrative agency shall be madedefendants." 735 ILCS 5/3-107(a) (West 2000).

The consequence for a plaintiff's failure to name a party of record is the dismissal of his complaint. Veazey v. Baker, 322 Ill. App. 3d 599, 604, 749 N.E.2d 1060, 1063 (2001).

In this case, the participants and beneficiaries of the pension fund were not parties ofrecord to the administrative proceedings under section 3-107 and did not need to be named asdefendants. We find Thurow v. Police Pension Board, 180 Ill. App. 3d 683, 536 N.E.2d 155(1989), instructive. In Thurow, this court held that the pension board had the authority to appointindependent counsel to conduct the examination of witnesses and present evidence. The courtadditionally agreed with the pension board's practice of having one attorney to represent thepension board, another independent attorney to act as the prosecutor by examining witnesses andpresenting evidence and a third attorney to represent the police officer. Thurow, 180 Ill. App. 3dat 689, 536 N.E.2d at 159.

Here, while the administrative record occasionally states that Puchalski was appointed torepresent the participants and beneficiaries of the pension fund, Puchalski later explained the truenature of his role in the proceeding. By referencing this holding in Thurow, he explained that:

"I have been appointed special counsel to represent the Pension Board inthe presentation of evidence concerning the disability of Steven Rhoads.

Now, the Appellate Court has said that it is appropriate to have twoattorneys. I know on most Pension Board cases you don't, but it is appropriate tohave two attorneys in certain cases: one to advise the Board, which is what Mr.Pagorek will do, and one to present evidence and examine the witnesses, which ismy role in this proceeding today and tomorrow."

Throughout the administrative hearing, Puchalski presented an opening statement, examinedwitnesses, offered exhibits, and submitted a posthearing brief while Pagorek directed theproceeding and provided legal guidance to the Board. Based on this record, we find thatPuchalski acted solely as this second attorney under Thurow to present evidence and examinewitnesses. Puchalski's participation did not add an additional party to the administrative hearingand did not convert the participants and beneficiaries of the pension fund into parties of record. Thus, Rhoads was not required under section 3-107(a) to name them as defendants in hiscomplaint for administrative review and the trial court properly denied the Board's motion todismiss.

Next, we review the Board's decision to terminate Rhoads' not-on-duty disability pension because he was no longer disabled. In reviewing a final decision under the Administrative ReviewLaw, we review the agency's decision and not the trial court's determination. Martino v. PolicePension Board, 331 Ill. App. 3d 975, 979, 772 N.E.2d 289, 293 (2002). The finding andconclusions of an administrative agency on questions of fact are deemed prima facie true andcorrect and will not be disturbed unless they are against the manifest weight of the evidence. Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 801, 776 N.E.2d 840, 849 (2002). Themere fact that an opposite conclusion is reasonable or that the reviewing court might have ruleddifferently will not justify reversal of the administrative findings. Trettenero, 333 Ill. App. 3d at801-02, 776 N.E.2d at 849. Additionally, it is not the function of the appellate court to reevaluatewitness credibility or resolve conflicting evidence. Ulysse v. Lumpkin, 335 Ill. App. 3d 886, 893,781 N.E.2d 415, 420 (2002). When the issue is one of law only, the agency's decision is reviewedde novo. Martino, 331 Ill. App. 3d at 980, 772 N.E.2d at 293.

An officer's disability pension is contingent on his continued disability, and if he recoversfrom the disability, the Board may revoke his disability pension. Martino, 331 Ill. App. 3d at 981,772 N.E.2d at 294. Section 3-116 of the Code provides the procedure for determining whetherthe officer has recovered from his disability and whether that pension may be revoked and statesin 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 todetermine fitness for duty. The officer shall abide by the board's decision. If apolice officer retired for disability, except one who voluntarily retires after 20years' service, is found upon medical examination to have recovered fromdisability, the board shall certify to the chief of police that the member is no longerdisabled and is able to resume the duties of his or her position." 40 ILCS 5/3-116(West 2000).

After reviewing the transcript of the hearings before the Board, watching the videotapeand examining the exhibits, we find that there was sufficient evidence to support the Board'sfactual findings and decision to terminate Rhoads' disability pension. Both Dr. Malik and Dr.Miller found that while Rhoads continued to be disabled and could not work as an ordinary policeofficer, his disability did not prevent him from functioning as a supervising law enforcementofficer in an administrative position within the police department, such as his former position ofpolice chief. Rhoads presented no contrary medical evidence to indicate that he was unable toperform the duties of chief of police. Additionally, the Board relied heavily on the videotape ofRhoads' activities as a rodeo clown, which the Board determined was not altered or edited. Weagree with the Board that the video shows Rhoads running, jumping, climbing fences, dancing,running from bulls, leaping on top of and off a barrel, climbing into a barrel, carrying the barreland being rammed by a bull while crouched inside the barrel. These activities were inconsistentwith his claim of continuing disability to his left knee. The Board made credibility determinationsfinding Cyr's testimony credible and determining that Rhoads' demeanor was "unpersuasive,uncorroborated and not credible in light of the videotapes" and that the doctors' reports andvideotape were more credible and persuasive than Rhoads' testimony.

Rhoads argues that he continues to be disabled and could not return to his position aspolice chief. He cites Vallis' testimony that the mission statement of the police department statesthat the police chief must be able to function as a police officer and Dr. Miller's and Dr. Malik'sstatements that Rhoads could not return to full duty as a police officer as a result of his disability. However, the Board cited the City of Calumet City's ordinance, which was offered into evidenceby Rhoads, describing the duties of the chief of police. See Calumet City Code