JOHN O’CONNELL, Plaintiff-Appellant, v. THE COUNTY OF COOK and THE BOARD OF TRUSTEES OF THE COUNTY EMPLOYEES’ AND OFFICERS’ ANNUITY AND BENEFIT FUND OF COOK COUNTY, Defendants-Appellees.
No. 1-20-1031
Appellate Court of Illinois, First District, Fifth Division
June 30, 2021
July 22, 2021
2021 IL App (1st) 201031
Hon. Neil H. Cohen, Judge, presiding.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-CH-288. Judgment: Reversed and remanded.
Michael L. Shakman, Mary Eileen Cunniff Wells, and Rachel Ellen Simon, of Miller Shakman Levine & Feldman LLP, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein, Mona E. Lawton, and Colleen M. Harvey, Assistant State’s Attorneys, of counsel), for appellee County of Cook.
Vincent D. Pinelli and Sarah A. Boeckman, of Burke Burns & Pinelli, Ltd., of Chicago, for other appellee.
Justices Hoffman and Rochford concurred in the judgment and opinion.
OPINION
BACKGROUND
¶ 1 ¶ 2 John O’Connell, a longtime Cook County employee, developed multiple sclerosis and obtained ordinary disability benefits (disability benefits)1 from defendant-appellant Board of Trustees of the County Employees’ and Officers’ Annuity and Benefit Fund of Cook County (pension board). While he was receiving disability benefits, Cook County terminated him from employment because he was unable
FACTS
¶ 3 ¶ 4 The following recitation of facts is taken from the pleadings and exhibits of record. In 1999, O’Connell began working for Cook County and became a participant in the pension fund. The county deducted a portion of O’Connell’s salary each month and transmitted those monies to the pension fund as his employee contribution. O’Connell was diagnosed with multiple sclerosis in 2001 but was still able to work, with accommodations, until 2016. In January 2017, he applied to the pension board for disability benefits, and the board granted his application. As required by section 9-158 of the Code (
¶ 5 On May 16, 2019, Cook County sent O’Connell a letter requiring him to submit medical documentation with an expected return-to-work date by May 29, 2019. If he failed to do so, the letter warned, he would be fired. The pension board then told him that, if he were fired, his disability benefits would stop. O’Connell responded, stating that he was still medically unable to return to work.
¶ 6 The county terminated O’Connell from employment on July 1, 2019. The termination letter left no doubt as to the reason. It stated: “The Bureau of Human Resources has not received medical documentation indicating a projected return to work date. Nor has the Bureau of Human Resources received an authorization returning you to work with or without a reasonable accommodation. You have been separated from your position effective July 1, 2019.” At that point, the county also stopped making contributions on his behalf to the pension fund, as it had been doing all along during his disability.
¶ 7 The pension board then terminated O’Connell’s disability benefits without providing any hearing, on the stated basis that he was no longer a county employee. Because the county terminated O’Connell’s employment before he reached the end of his disability benefit eligibility period, he also lost his ability to keep earning sufficient credits to maximize his retirement benefits by invoking a “credit purchase option” or “early annuity option” as provided by sections 9-174 and 9-160 of the Code (
¶ 9 Both defendants filed a combined motion to dismiss the complaint pursuant to section 2-619.1 of the Code of Civil Procedure (
¶ 10 The circuit court’s memorandum and order first addressed Cook County’s motion to dismiss. The court dismissed count I as to Cook County pursuant to section 2-615.
¶ 11 As to the pension board, the circuit court dismissed counts I and III pursuant to section 2-619 on the basis that a former employee was not entitled to receive disability benefits under the Code. It also dismissed counts I and III pursuant to section 2-615 because, based on its interpretation
ANALYSIS
¶ 12 ¶ 13 On appeal, O’Connell contends that the circuit court erred in dismissing counts I, III, and V. He offers no arguments regarding the dismissal of counts II and IV.
¶ 14 Section 2-619.1 of the Code of Civil Procedure (
¶ 15 We review denial of a section 2-619 motion to dismiss de novo. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Section 2-619(a)(9) allows dismissal if “the claim asserted against defendant is barred by other affirmative matter.”
¶ 16 Our analysis begins with the operative statutes. Article 9 of the Code (
¶ 17 Section 9-157 of the Code is the key section regarding “ordinary” disability benefits such as those that O’Connell had received. The section is quite lengthy, so we only set out the clauses relevant to this appeal. The main provision regarding eligibility for disability benefits states:
“An employee *** regardless of age on or after January 1, 1987, who becomes disabled after becoming a contributor to the fund as the result of any cause other than injury incurred in the performance
of an act of duty is entitled to ordinary disability benefit during such disability, after the first 30 days thereof.” Id. § 9-157 .
The disability benefit is “50% of the employee’s salary at the date of disability.”
¶ 18 Section 9-157 elsewhere refers to an individual as an “employee” even though that person has been receiving ordinary disability payments for some time and is therefore no longer working as a county employee. For example, in the text listing five triggering events that require termination of disability benefits, the person receiving benefits is referred to as an employee. This provision states that a disability benefit
“shall cease when the first of the following dates shall occur and the employee, if still disabled, shall thereafter be entitled to such annuity as is otherwise provided in this Article:
(a) the date disability ceases.
(b) the date the disabled employee attains age 65 for disability commencing prior to January 1, 1979.
(c) the date the disabled employee attains 65 for disability commencing prior to attainment of age 60 in the service and after January 1, 1979.
(d) the date the disabled employee attains the age of 70 for disability commencing after attainment of age 60 in the service and after January 1, 1979.
(e) the date the payments of the benefit shall exceed in the aggregate, throughout the employee’s service, a period equal to 1/4 of the total service rendered prior to the date of disability but in no event more than 5 years. In computing such total service any period during which the employee received ordinary disability benefit and any period of absence from duty other than paid vacation shall be excluded.” (Emphases added.)
Id.
¶ 19 Section 9-159 of the Code also lists three additional triggering events, in addition to the five events listed in section 9-157, that require that disability benefits be terminated. They are, in summary: (a) refusal to submit to a medical examination ordered by the pension board, (b) working for a tax-supported employer, and (c) receipt of workers’ compensation benefits.
¶ 20 Section 9-157(e) delineates a “years of service credits” option and limits the length of time an employee may receive ordinary disability benefits based on the length of time the employee worked in regular service. It is undisputed that, at the time O’Connell was terminated, he was entitled to receive disability benefits until August 2021, based on his years of service credits, which would have been about 4 1/2 years after he left active service and began receiving disability benefits. As noted above, the pension board’s decision to stop his disability payments at the time of his termination on July 1, 2019, left a two-year gap between his termination and the exhaustion of his disability benefit period.
¶ 21 Other clauses in section 9-157 address Cook County’s obligation to continue making certain payments to the pension fund on behalf of disabled employees. These payments include a certain amount made through a payroll deduction from nondisabled employees’ salaries (the employee contribution) and an additional amount (the employer contribution), which Cook County makes from its own funds. O’Connell relies on these clauses as the basis for his claims against Cook County. The clauses provide that
“[i]nstead of all amounts ordinarily contributed by an employee *** the county shall contribute sums equal to such
amounts for any period during which the employee receives ordinary disability and such is deemed for annuity and refund purposes *** contributed by him. The county shall also contribute 1/2 of 1% salary deductions required as a contribution from the employee under Section 9-133.” Id. § 9-157 .
Similarly, section 9-181 of the Code requires the county to “contribute all amounts ordinarily contributed by it for annuity purposes” for an employee receiving ordinary disability benefits “as though he were in active discharge of his duties during such period of disability.”
¶ 22 Two other sections of article 9 establish mechanisms for disabled employees to convert their disability pensions into retirement pensions once their disability eligibility period has expired. Section 9-160 of the Code, the “early annuity option,” provides that
“[a]n employee whose disability continues after he has received ordinary disability benefit for the maximum period *** prescribed by this Article, and who withdraws before age 60 while still so disabled, is entitled to receive the annuity provided from the total sum accumulated to his credit from employee contributions and county contributions to be computed as of his age on the date of withdrawal.” (Emphasis added.)
Id. § 9-160 .
Section 9-174, the “credit purchase option,” also provides that disabled employees whose credit for ordinary benefit purposes has expired and who continue to be disabled have the right to continue contributing to the pension fund at the “current contribution rate” for a period not to exceed 12 months and to receive annuity credit for those periods so paid.
¶ 23 This case presents a question of statutory interpretation. Two principles guide us. First, we follow the cardinal rule of statutory construction, which is to ascertain and give effect to the legislature’s intent, and the plain language of the statute is the best indication of that intent. Acme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 37-38 (2009). “The best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning.” Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 552 (2009). “The statute should be evaluated as a whole, with each provision construed in connection with every other section.” Id. If the statutory language at issue is clear and unambiguous, a reviewing court must interpret the statute according to its terms without resorting to aids of statutory construction. Branson v. Department of Revenue, 168 Ill. 2d 247, 254 (1995). Second, when there ” ‘is any question as to legislative intent and the clarity of the language of a pension statute, it must be liberally construed in favor of the rights of the pensioner.’ ” Kanerva v. Weems, 2014 IL 115811, ¶ 36 (quoting Prazen v. Shoop, 2013 IL 115035, ¶ 39); accord Carmichael v. Laborers’ & Retirement Board Employees’ Annuity & Benefit Fund, 2018 IL 122793, ¶ 24.
¶ 24 The parties’ arguments center on the temporal meaning of the word “employee” in section 9-157 and “employed” in section 9-108. O’Connell contends that section 9-157 does not require that the “employee *** who becomes disabled” continue to be an employee to receive disability benefits as long as the employee began receiving those benefits when he was an active employee. The defendants disagree, arguing that, under its common and ordinary meaning, the term “employed” plainly refers only to nonterminated employees. We disagree with the defendants. Applying the canons of liberal construction and the beneficial nature of pension laws, we find that the term “employed” is broad enough to encompass persons such as O’Connell who began receiving disability benefits when they were actively working. Nothing in the operative language suggests that the disabled employee must continue to be employed to remain eligible for disability benefits or for the county to be required to continue making contributions.
¶ 25 Even if we were to assume the terms “employed” or “employee” are ambiguous, the rules of statutory interpretation lead us to the same result.
¶ 26 We first examine article 9’s specific enumeration of eight events that trigger termination of disability benefits. Since O’Connell’s termination is not one of the eight listed triggering events under the Code, we may presume that the legislature did not intend to include termination as a triggering event under some other guise. When determining whether a listing in a statute is exclusive, courts use the rule of statutory construction known as expressio unius est exclusio alterius. The rule “is based on logic and common sense. It expresses the learning of common experience that when people say one thing they do not mean something else. The maxim is closely related to the plain language rule in that it emphasizes the statutory language as it is written.” Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 152 (1997) (citing 2A Norman J. Singer, Statutes and Statutory Construction §§ 47.24, 47.25, at 228, 234 (5th ed. 1992)). Simply put, “[w]here a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions, despite the lack of any negative words of limitation.” Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 442 (1992) (citing Department of Corrections v. Illinois Civil Service Comm’n, 187 Ill. App. 3d 304, 310 (1989)). Applying this rule supports O’Connell’s position.
¶ 27 It is also axiomatic that courts must construe statutes to avoid absurd results. In re Detention of Stanbridge, 2012 IL 112337, ¶ 70. The purpose of the Illinois pension laws is beneficial. Kozak v. Retirement Board of Firemen’s Annuity & Benefit Fund, 95 Ill. 2d 211, 217 (1983) (citing Colton v. Board of Trustees of the Firemen’s Pension Fund, 287 Ill. 56, 61 (1919)). The provisions cited above demonstrate a legislative intent to provide at least several years of benefits to disabled employees to ensure they have some income during their disability and to continue those benefits without a gap onwards into their retirement years, if need be. Under defendants’ interpretation, the beneficial purposes of the disability provisions of article 9 would be thwarted. The county could simply fire severely disabled employees even after a brief period of disability, thus saving the cost of its required contributions
¶ 28 Our reading of the pertinent statutory provisions is also supported by the doctrine of noscitur a sociis (“a word is known by its companions“). As explained above, we do not find the statute ambiguous. But even if it were, this tool allows us to ascertain the meaning of an ambiguous statute by relating them to words or phrases associated with them in the statutory context. Puritan Finance Corp. v. Bechstein Construction Corp., 2012 IL App (1st) 112261, ¶ 13. Article 9 often uses the term “employee” to refer to an individual who is receiving disability benefits. For example, section 9-135.1 (
¶ 29 We conclude that, under the Code, O’Connell was entitled to disability benefits and continued county contributions to the pension fund because he was employed at the time of his application for disability benefits. We further find that his termination was not a triggering event causing the cessation of his disability benefits and county contributions to the pension fund. We now examine the circuit court’s disposition of the various counts of the complaint in light of those findings. Only counts I, III, and V are at issue in this appeal. We again note that, since this appeal comes to us on dismissal pursuant to sections 2-615 and 2-619, we construe the allegations in the complaint as true.
¶ 30 The circuit court’s dismissal of those counts was based entirely on its determination that O’Connell was no longer eligible for disability benefits and county contributions to the pension fund after the county terminated him. However, while the county may choose to terminate an employee who validly receives ordinary disability benefits, the pension board may not terminate the ordinary disability benefits solely because of that termination from employment, and the county may not refuse to make the required contributions to the pension fund in that instance. O’Connell seeks relief against the pension board for ordinary disability payments that would have been paid after his termination, relief against the county for contributions it should have made to the pension fund during the same period, and relief in that the payments and contributions continue according to the Code.
¶ 31 The elements of a declaratory judgment action are ” ‘(1) a plaintiff with a legal tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy between the parties concerning such interests.’ ” The Carle Foundation v. Cunningham Township, 2017 IL 120427, ¶ 26 (quoting Beahringer v. Page, 204 Ill. 2d 363, 372 (2003)). Based on our interpretation, O’Connell has a tangible pecuniary interest in his disability benefits and county contributions to the pension fund. Accordingly, the circuit court should not have dismissed O’Connell’s declaratory judgment action.
¶ 32 Count III sought relief in the form of mandamus against both defendants. A valid complaint for mandamus “must allege facts which establish a clear right to the relief requested, a clear duty
¶ 33 For the same reason, the circuit court should not have dismissed count III pursuant to section 2-619 on the basis of lack of standing. Standing is “some injury in fact to a legally recognized interest.” Glazewski v. Coronet Insurance Co., 108 Ill. 2d 243, 254 (1985). The claimed injury must be distinct and palpable, fairly traceable to the defendant’s actions, and substantially likely to be prevented or redressed by the grant of the requested relief. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492-93 (1988). Since O’Connell had the right to continuation of his disability benefits and county contributions to the pension fund after his termination from employment, and the relief in count III would have made him whole for his losses, he had standing to bring his claim.
¶ 34 The circuit court dismissed count V, a due process claim against the board only, on the basis that O’Connell had no protectable right to a continuation of his disability benefits. However, because he did have such a protectable right, count V stated a valid cause of action for violation of his due process rights, and we reverse the dismissal of that count, as well. Taking the allegations of the complaint before us as true, we find that the circuit court erred in dismissing count V because that count stated a valid cause of action and was otherwise sufficient to survive a motion to dismiss. As this court explained in Kosakowski v. Board of Trustees of the City of Calumet City Police Pension Fund, 389 Ill. App. 3d 381, 387 (2009):
“The receipt of a disability pension is a property right which cannot be diminished without procedural due process. [Citation.] The essence of procedural due process is meaningful notice and a meaningful opportunity to be heard. [Citation.] In this case, the Board afforded the plaintiff neither. Without notice and without a hearing, the Board unilaterally attempted to modify the disability pension which it had previously awarded to the plaintiff. As a matter of due process, the Board should have provided the plaintiff with notice and an opportunity to be heard before modifying his pension.” (Internal quotation marks omitted.)
¶ 35 This disposition renders it unnecessary for us to consider O’Connell’s arguments that the Illinois Constitution’s pension protection clause (
CONCLUSION
¶ 36 ¶ 37 Accordingly, we reverse the judgment of the circuit court of Cook County dismissing counts I, III, and V of the complaint and remand for further proceedings consistent with this opinion. Because O’Connell has presented no arguments on appeal regarding the dismissal of counts II and IV, those counts remain dismissed pursuant to the circuit court’s order.
¶ 38 Reversed and remanded.