delivered the opinion of the court:
Plаintiff, Darren Williams, filed an application for a line-of-duty disability pension with defendant, the Board of Trustees of the Morton Grove Firefighters’ Pension Fund (Board), pursuant to section 4 — 110 of the Illinois Pension Code (the Pension Code) (40 ILCS 5/4— 110 (West 2006)). Plaintiff subsequently amended his application to include a claim for a not-in-duty disability pension pursuant to section 4 — 111 of the Pension Code. 40 ILCS 5/4 — 111 (West 2006). One day before the hearing on plaintiffs application, the Village of Morton Grove (Village) filed a petition to intervene in the hearing, which the Board granted. The hearing was conducted by the attorney for the Morton Grove Firefighters’ Pension Fund (Fund). The Board voted to deny plaintiff a line-of-duty pension, but granted him a not-in-duty disability pension pursuant to section 4 — 111. 40 ILCS 5/4 — 111 (West 2006).
Thereafter, plaintiff filеd a complaint for administrative review in the circuit court of Cook County. The circuit court affirmed the Board’s decision. Plaintiff filed this timely appeal in which he argues that: (1) the Board’s denial of a line-of-duty pension was against the manifest weight of the evidence; (2) allowing the four village representatives to participate in the adjudication of his application after the Village intervened violated his right to due process; and (3) the Board abused its discretion when it permitted the Village to intervene in plaintiffs pension hearing. For the following reasons, we reverse the decision of the Board and remand with instructions.
BACKGROUND
Plaintiff received his probationary appointment to the fire department of Morton Grove (Departmеnt) on July 19, 1989, with his regular appointment following on August 27, 1991. Plaintiff held the position of firefighter/paramedic. Plaintiff testified at the administrative hearing that he injured his right shoulder on the morning of September 27, 2003, while responding to an ambulance call during which he transferred a patient from an ambulance cot to the hospital gurney at Lutheran General Hospital. On September 29, plaintiff reported his injury to Lieutenant Thomas Durment, who sent him to Advocate Occupational Health (Advocate) for treatment and generated paperwork to document the incident.
Plaintiff was treated at Advocate by Dr. S. Joseph Maurice, who conducted a physical examination and diagnosed plaintiff with a right acromioclavicular (AC) joint strain. Plaintiff also recеived physical therapy at Advocate on September 29. Dr. Maurice’s records reflect that plaintiff had a follow-up visit on October 3, 2003, during which he informed Dr. Maurice that he had sought treatment from a private orthopedic surgeon and that he would discontinue his treatment at Advocate.
Dr. Steven Sclamberg (Dr. Sclamberg) testified that plaintiff was treated by his father, Dr. Edward Sclamberg, on October 1, He was diagnosed with a right shoulder AC joint sprain and injected with a steroid. Plaintiff had a follow-up visit with Dr. Edward Sclamberg on October 13, 2003. Plaintiff received a return-to-work slip stating that he could return to unrestricted active duty on October 14, 2003. Plaintiff testified that he returned to full, unrestricted duty on October 14.
Plaintiff was next examined by Dr. Sclamberg on February 24, 2004. Dr. Sclamberg took an X-ray of рlaintiffs shoulder and injected it with a steroid. On March 9, 2004, plaintiff spoke on the telephone with Dr. Sclamberg and reported that he had not received any relief from the injection. As a result, Dr. Sclamberg scheduled surgery for later that month.
Dr. Sclamberg performed arthroscopic surgery on plaintiffs right shoulder during which he found, and repaired, a superior labrum anterior to posterior (SLAP) tear. He also found AC osteoarthritis, rotator cuff tendinitis and inflammation of the bursa. Plaintiff had a postsurgical follow-up visit with Dr. Sclamberg on May 11, 2004. During this visit, Dr. Sclamberg taught plaintiff three range-of-motion exercises to perform at home and prescribed continued physical therapy.
Plaintiff saw Dr. Sclamberg again on June 8, 2004. He recommended that plaintiff continue with his physicаl therapy. Plaintiff returned to Dr. Sclamberg on July 15, 2004. At this visit, plaintiff exhibited full strength in his right shoulder, with no tenderness or signs of impingement, but complained of pain on lifting. Dr. Sclamberg examined plaintiff again on August 10, 2004, ordered an X-ray and recommended that plaintiff continue with his physical therapy. Plaintiff next saw Dr. Sclamberg on August 19, 2004. During this visit, Dr. Sclamberg examined plaintiff and scheduled a second surgery on plaintiffs right shoulder for August 25, 2004.
During this second surgery, Dr. Sclamberg found and repaired a small rotator cuff tear and a SLAP tear. Plaintiff had his first postoperative visit with Dr. Sclamberg on October 7, 2004, and was told that he would be out of work for six weeks. Plaintiff had his second postoperative visit with Dr. Sclamberg on November 15, 2004, at which time he was cleared to return to light duty. Dr. Sclamberg next saw plaintiff on November 30, 2004, and ordered аn MRI because plaintiff reported that he had felt a “pop” during physical therapy. Plaintiff next saw Dr. Sclamberg on December 2, 2004, at which time he ordered another MRI. Plaintiff returned to Dr. Sclamberg on January 6, 2005, and was diagnosed with adhesive capsulitis, commonly referred to as a “frozen shoulder.”
Plaintiff filed an application for a line-of-duty disability pension, which he subsequently amended to add a claim for a not-in-duty disability pension. The Board held a hearing on plaintiffs pension application. Pursuant to section 4 — 121 of the Pension Code, as it existed in 2005, the Board consisted of three firefighters, the president of the Morton Grove Board of Trustees, the village clerk, the village corporate attorney, the village treasurer and the chief of the fire department. 40 ILCS 5/4 — 121 (West 2004). 1 The village mayor was also a member of the Board. The attorney for the Fund conducted the hearing.
The day before the first hearing session, the Village filed a petition to intervene in the hearing. Before hearing any evidence in this matter, the Board heard argument on the Village’s written petition to intervene and plaintiffs opposition. The Village argued that the Board had the discretion to allow the Village to intervene and that to fail to do so in this case would be an abuse of discretion. The Village offered three reasons that it should be permitted to intervene. First, the Village had an interest in “ensuring the proper expenditure of public funds by the pension board” and in making sure “those funds are expended appropriately only for those firefighters who are entitled to pension benefits.” Because the Village contributes money to the fund, it argued that it had “a very real interest” in the protection of the fund. Second, the Village argued that its interest in the potential award of health insurance benefits to plaintiff and his family under the Public Safety Employee Benefits Act (the Act) (820 ILCS 320/1 et seq. (West 2006)), supported its petition to intervene because the Village would be financially responsible if plaintiff received benefits under the Act. The Village explained, however, that it was not seeking to intervene “to advocate for or against PSEBA benefits for [plaintiff].” Finally, the Village asserted that it had an interest in developing a full evidentiary record on which the Board would base its decision. The Village stated that it would call witnesses to offer medical testimony regarding plaintiffs injury and alleged disability, cross-examine the witnesses, and obtain legible copies of certain documents and additional documents to supplement the exhibits prepared by the Board.
At the hearing, plaintiff argued that the Board had the discretion to permit the Village to intervene, but the Board must exercise its discretion with care. The Board would be abusing its discretion if it permitted the Village to intervene because the hearing would become an adversarial proceeding in which the Village’s own employees and agents would be sitting on the Board to decide plaintiffs application for a pension. Plaintiff also argued that introducing the idea of plaintiffs entitlement to health insurance benefits under the Act was a violation of the exclusive purpose rule (40 ILCS 5/1 — 109 (West 2006)).
The Board voted 5 to 3 to grant the Village’s petition to intervene and 6 to 2 to permit the Village to participate fully in the hearing. Plaintiffs counsel immediately made an oral request that the mayor, village corporate attorney, village clerk and village treasurer (but not the village fire chief) recuse themselves from participating in the hearing because once the Village was allowed to intervene, there was a per se conflict of interest for the Board members who were also Village officers. Plaintiff followed the oral motion with a written motion to recuse and the Village filed a response. The Fund’s attorney instructed the Board that it could not grant or deny the motion to recuse, but rather each Board member who was subject to the motion would be given the opportunity to address plaintiffs request with respect to his or her participation in the hearing. The Fund’s attorney questioned each of these four village officials regarding his or her response to plaintiffs request to recuse and his or her ability to sit as an impartial decisionmaker. Each official, including the village corporate attorney, Ms. Liston, responded that he or she would not voluntarily recuse him or herself and that he or she could be fair and impartial.
Liston, however, played an active role in the hearing. Fоr example, four days before the first session of the hearing, Liston provided a copy of the record to an outside attorney representing the Village, Ms. Leka. When explaining why she provided the record to Leka, Liston stated:
“I have a copy. And that’s our attorney. And the only way that the village can have a discussion as to whether or not there is a basis to intervene is by sharing those records. It’s not like you gave it to somebody off the street or your neighbor. The village’s attorney was given copies of those records.”
Liston further defended her unilateral decision to provide the record to outside counsel for the Village:
“[Cllearly they don’t intervene on [sic] every case, and it’s based on the facts and the circumstance of the case. And unless the village knows the facts and the circumstances of the case, unless pro forma the village is going to start intervening in every case and figure out later what the issues are, it seems to me you would have to know something about the case before you can form an opinion on should you intervene or shouldn’t you intervene.
* * *
But I think justice would require so that you have a full hearing, that the stake holders in the decision, the people that are impacted by the decision have the right to put on a full and possibly an adversarial hearing. And I don’t understand how the village can make a determination that it should participate in a hearing if they can’t be told what the facts are and what the issues are.”
Liston also objected repeatedly to evidence offered by plaintiff at the hearing. For example, during the questioning of Fire Chief Friel, Liston objected to a question asked by plaintiffs counsel. The following exchange took place:
“RADJA [Plaintiffs attorney]: On January 6th of ’05, did you have any reason to doubt [plaintiffs] statement that he wouldn’t be able to do anything with his arm?
LISTON: Objection. Same one. Are you asking his opinion or are you asking him if he was aware of anything else that would controvert [plaintiffs] statement?
RADJA: I think anything I ask him is his opinion. I am asking his opinion if on this particular day when he told him he couldn’t do any work—
LISTON: Why is his opinion relevant?
RADJA: Well, as the head of the fire department I think it’s extremely relevant.
LISTON: Because?
RADJA: He has the ability to question this officer further.
LEKA: But it doesn’t go to the ultimate issue here though about whether he is currently — his current condition is caused by — I meаn it doesn’t go to his current condition, one, or two what the causation factor is.
CLIFFORD [the Fund’s attorney]: Rephrase the question. If he took any action to investigate whether—
LEKA: Well, those have already been asked and answered, haven’t they?
RADJA: I will move on. It’s obvious I have two village attorneys objecting to my questioning of the witness.
LISTON: I was asking for clarification actually. And I am sitting here as a member of the board, not as the village attorney.”
During the next hearing session, after the Village’s counsel had questioned the relevance of a line of questioning by plaintiffs counsel and moved to strike one of plaintiff’s answers, Liston also objected and moved that the entire line of questioning be barred.
“CLIFFORD: Right. And I don’t think he’s asked to admit the exhibit yet. That would be a separate question. I think right now we’re just asking if the charge exists.
LEKA: What is the relevance of that?
LISTON: Excuse me, Miss Leka. The problem I have is [plaintiffs counsel] just stated there is no relevance. Why do we need to hear anything on it?
* * *
LISTON: I move that this line of questioning be barred for lack of relevance.”
The Board received extensive medical evidence and testimony regarding plaintiffs injury. Pursuant to section 4 — 112 of the Pension Code, the plaintiff was examined by three physicians selected by the Board. 40 ILCS 5/4 — 112 (West 2004). The Board also heard testimony from plaintiffs treating physician and an independent forensic medical examiner who was hired by the Village. The medical testimony and documentary evidence conflicted regarding the nature and cause of plaintiffs disability. The Board voted to deny plaintiff a line-of-duty disability pension, but granted him a not-in-duty disability pension. Plaintiff filed a timely complaint for administrative review in the circuit court of Cook County. The circuit court affirmed the Board’s decision and plaintiff timely appealed to this court.
ANALYSIS
Pursuant to section 4 — 139 of the Pension Code (40 ILCS 5/4 — 139 (West 2004)), judicial review of an administrative board’s decision is conducted in accordance with the Administrative Review Law (735 ILCS 5/3 — 101 et seq. (West 2006)). The court reviews the decision of the administrative agency, not the determination of the circuit court. Marconi v. Chicago Heights Police Pension Board,
The applicable standard of review turns on whether the question presented on appeal is a question of fact, a question of law, or a mixed question of law and fact. Marconi,
Plaintiff applied for a line-of-duty disability pension under section 4 — 110 of the Pension Code (40 ILCS 5/4 — 110 (West 2004)), or, alternatively, a not-in-duty disability pension under section 4 — 111 of the Pension Code (40 ILCS 5/4 — 111 (West 2004)). The Board denied plaintiffs application for a line-of-duty disability pension, but granted him a not-in-duty disability pension. Plaintiff argues that the Board’s finding that his disability was not a line-of-duty disability was against the manifest weight of the evidence. Because we are vacating the Board’s decision on other grounds and remanding for a new hearing, we do not address the Board’s findings regarding the nature of plaintiffs disability.
Plaintiff argues on appeal that the Board had discretion to permit the Village to intervene, but it abused that discretion because the Village did not have a legitimate reason to intervene. The parties have not cited a case in which a party challenged on appeal a pension board’s decision to permit or deny a municipality’s petition to intervene in a pension application hearing under Article 4 of the Pension Code. This court has, however, addressed a municipality’s right to intervene in a disability hearing under Article 3 of the Pension Code and held that the board had the “power to exercise its discretion in deciding whether to allow a party to intervene.” Village of Stickney v. Board of Trustees of the Police Pension Fund,
Although Article 3 of the Pension Code “is silent as to intervention in administrative hearings, the statute entrusts the Board with establishing and administering a police pension fund. [Citation.]” Village of Stickney,
“(1) the pension fund,
(2) investment expenditures and income, including interest dividends, capital gains and other distributions on the investments, and
(3) all money donated, paid, assessed, or provided by law for the pensioning of disabled and retired police officers, their surviving spouses, minor children, and dependent parents.” 40 ILCS 5/3— 132 (West 2006).
In Village of Stickney, the court concluded that the board had the authority to hold pension fund hearings and to establish proceedings for those hearings because the legislature intended to provide the board with “ ‘exclusive authority over issues of eligibility to participate in the police pension fund.’ ” Village of Stickney,
Absent controlling authority from the supreme court, the reasoning set forth in Village of Stickney is persuasive. See Village of Stickney,
“(1) the pension fund,
(2) investment expenditures and income, including interest dividends, capital gains and other distributions on the investments, and
(3) all money donated, paid, assessed, or provided by law for the pensioning of disabled and retired firefighters, their surviving spouses, minor children, and dependent parents.” 40 ILCS 5/4— 123 (West 2006).
A board’s exclusive authority to control the pension fund and disability payments includes the power to conduct the hearings and the discretion to decide who can participate in those hearings and to what extent. See Village of Stickney,
In Village of Stickney, the court determined that the board did not abuse its discretion when it denied a village’s request to participate in the hearing. The court noted that the board “must have believed it had some authority to allow Village participation” because it sent the village a letter informing the village that if it wanted to filе a petition to intervene, it had to do so before a certain date. Village of Stickney,
Here, the Village filed a petition to intervene one day before the first session of the administrative hearing. The Village argued that it was seeking to intervene to help provide a complete record through documents not contained in the Board’s preliminary book of exhibits, to ensure the proper expenditure of public funds by making sure that pension funds are paid to qualified firefighters, and to protect the Village’s financial interests that could be affected if plaintiff applied for health insurance benefits under the Act. The Board voted 5 to 3 to allow the Village to intervenе.
Whether the Board’s decision to permit the Village to intervene was an abuse of discretion is a close question and there is little case law for guidance. A village’s request to cross-examine a pension applicant and its desire to create a full administrative record, without more, were not sufficient to support the village’s request to participate in the administrative hearing in Village of Stickney. See Village of Stickney,
On the facts of this case, the Board did not abuse its discretion when it permitted the Village to intervene. Unlike the municipality in Village of Stickney, the Village filed its petition before the hearing started. See Village of Stickney,
Plaintiff argues that once the Village became a party, his due process right to a fair and impartial hearing was violated by the participation on the Board of cеrtain village officials. Specifically, he argues that: (1) allowing the village officials to remain on the Board after the Village intervened created a per se conflict; (2) the village officials on the Board violated the exclusive purpose rule; and (3) the corporate attorney for the Village was biased against the granting of plaintiffs application for a line-of-duty disability pension.
Plaintiff does not cite to any authority for his assertion that he has a due process right to a fair hearing. There are two possible sources of plaintiffs asserted right to due process — one constitutional and the other statutory. First, the constitutions of the United States and of Illinois provide a right to procedural due process and prohibit the deprivation of property without due process. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2; see also Mathews v. Eldridge,
Although a firefighter who already is receiving a disability pension has a protected property right in the continued receipt of his or her pension, it is an open question in Illinois whether a firefighter who has applied for a disability pension has a protected property interest in that disability pension before the administrative agency determines that the firefighter has satisfied the statutory requirements for receipt of such a pension. The United States Court of Appeals for the Seventh Circuit has examined this issue and stated that a disability pension “that is a matter of right, not of grace, is a property right within the meaning of the due process clause.” Schroeder,
Administrative hearings are “governed by the fundamental principles and requirements of due process of law.” Abrahamson v. Illinois Department of Professional Regulation,
Plaintiff argues that the participation on the Board by Village officials violated his right to an impartial tribunal because it created a per se conflict of interest. Section 4 — 121, as it existed at the time of plaintiff’s application, required that four village officials, including the village attorney, participate on the pension board. 40 ILCS 5/4 — 121 (West 2004). Although this section subsequently was amended to change the composition of pension boards, the stated purposes of the amendment were to make the composition of firefighter pension boards consistent with the police pension boards and to try to eliminate any advantage that the municipality or applicant may have had under the previous system. See 94th Ill. Gen. Assem., House Proceedings, March 10, 2005, at 22 (statements of Representative Smith). Under the new statutory scheme, the mayor of the village appoints two members of the pension board and there is no prohibition against appointing the attorney for the village or any other village official. 40 ILCS 5/4 — 121 (West 2006).
As discussed above, a board has the discretion to permit a municipality to intervene in a hearing. If plaintiff’s argument were correct, then еvery time a pension board permitted a municipality to intervene, any officials of the municipality who were appointed under the statute would have to recuse themselves from the board, thereby leaving only those three members of the board who were appointed by participants of the fund. This directly contradicts one of the stated purposes of the amendment. Plaintiff does not cite to any case in the civil context where a court found a per se conflict of interest in the composition of an administrative body nor does plaintiff challenge the constitutionality of section 4 — 121. The participation on the Board of the Village officials does not create a per se conflict of interest that requires reversal.
Plaintiff further argues that the participation of the corporate attorney for the Village violated his right to a fair and impartial hearing because she was biased against plaintiffs application and had a conflict of interest that infected the entire process. “An individual challenging the impartiality of an administrative tribunal must overcome a presumption that those serving in such tribunals are fair and honest.” Turcol v. Pension Board of Trustees of Matteson Police Pension Fund,
The determination of whether an administrative hearing was fair and impartial requires a fact-specific analysis of the conduct of the board members before and during the hearing. Danko,
Administrative proceedings are not judicial proceedings, but the parties are entitled to a fair hearing before a disinterested tribunal. See Bender v. Board of Fire & Police Commissioners,
Liston’s advocacy continued throughout the hearing as she repeatedly objected to questions asked by plaintiffs counsel. At one point, after an objection by Leka, Liston took it upon herself to further explain the basis for the objection.
“LEKA: What is the relevance of that?
LISTON: Excuse me, Miss Leka. The problem I have is he just stated there is no relevance. Why do we need to hear anything on it?”
She also moved to bar plaintiffs counsel from asking questions about and admitting an exhibit regarding a discrimination charge that plaintiff filed with the Equal Employment Opportunity Commission. Although Liston questioned the scope of the Village’s cross-examination of one witness, she ultimately agreed that the witness should testify regarding the issue and does not appear to have made any other objections to the admission of evidence or testimony offered by the Village. Regardless of the ultimate propriety of Liston’s objections and/or motion regarding evidence offered by plaintiff, her actions demonstrate that she was advocating on behalf of the Village rather than acting as a disinterested decisionmaker.
Further, Liston extensively questioned certain witnesses. For example, she asked 28 substantive questions, uninterrupted, of Dr. Samo, one of the three independent medical evaluators. She also asked 45 substantive questions, again uninterrupted, of Dr. Sclamberg, plaintiff’s treating physician. Although many of the other Board members asked quеstions during the hearing, not one of the other Board members conducted such a thorough and uninterrupted examination of any of the witnesses.
Liston’s active role during the hearing differed in kind from the mere objection to “detailed testimony” that was permitted in Batka. See Batka,
CONCLUSION
For the foregoing reasons, we reverse the Board’s decision and remand this case to the Board for a new hearing on plaintiffs application for a line-of-duty disability pension pursuant to section 4 — 110 or, alternatively, a not-in-duty disability pension pursuant to section 4 — 111. Because the statute governing the composition of the board of trustees has been amended since plaintiffs hearing, we determine which version of section 4 — 121 should be applied on remand.
The general rule is that an amended statute will not be applied retroactively if the amendment affects a party’s substantive rights or if application of the amended statute would deprive a party of a vested constitutionally-protected right. See Royal Imperial Group, Inc. v. Joseph Blumberg & Associates, Inc.,
Vacated; cause remanded with instructions.
CUNNINGHAM, EJ., and KARNEZIS, J., concur.
Notes
Section 4 — 121 was amended by Public Act 94 — 317 (Pub. Act 94 — 317, §5, eff. July 25, 2005). This act changed the composition of firefighter pension boards in municipalities with fewer than 500,000 residents by adding language terminating the terms of the existing board members as of the third Monday of April 2006 and adding the following language:
“Beginning on the 3rd Monday in April, 2006, the board for each municipality or fire protection district shall consist of 5 members. Two members of the hoard shall be appointed by the mayor or president of the board of trustees of the municipality or fire protection district involved. Two members of the board shall be active participants of the pension fund who are elected from the active participants of the fund. One member of the board shall be a person who is retired under the Firemen’s Pension Fund Act of 1919 or this Article who is elected from persons retired under the Firemen’s Pension Fund Act of 1919 or this Article.” Pub. Act 94 — 317, §5, eff. July 25, 2005.