Cook County Record

Friday, December 6, 2019

Appeals panel says retired Chicago cops missed deadline by years to claim their pensions were shorted

Lawsuits

By Scott Holland | Nov 23, 2019

Chicago police parking in no parking space 2013 04 11 23 48

CHICAGO – A state appeals panel says three retired Chicago police officers waited years too long to lodge their claims their pension fund shortchanged their pension payouts by miscalculating their salaries.

Steve DeJesus, Sabrina Johnson and Maria Kouzoukas sued the Policemen’s Annuity and Benefit Fund of the City of Chicago in May 2018 alleging a duty availability allowance wasn’t used to calculate their salaries as part of benefits administration. Cook County Judge Raymond Mitchell dismissed the complaint, finding the plaintiffs didn’t follow Administrative Review Law procedures.

The plaintiffs, represented by Paul Geiger and Ronald Dahms, of Northfield, appealed to the Illinois First District Appellate Court, arguing they weren’t challenging an administrative decision but a systematic miscalculation. As such, they said, they weren’t bound by Administrative Review Law rules. 

Justice Eileen Burke wrote the panel’s opinion, issued Nov. 14. Justices Bertina Lampkin and Jesse Reyes concurred.

In its initial motion for dismissal, through the Chicago firm of David R. Kugler & Associates, as well as Justin Kugler, the pension fund said the law places a five year limit on benefit complaints and further that retirees are given 35 days to initiate an administrative review of their disability benefits. The three plaintiffs, the fund argued, waited between nine and 20 years to file the lawsuit.       

The panel said the plaintiffs acknowledged the 35-day window and their failure to initiate administrative review but pointed to three earlier state appeals panel decisions in which a party was allowed to challenge a pension board’s action outside that process. Burke wrote those cases concerned “limited circumstances” that don’t apply to these retirees, such as when the challenger wasn’t party to the underlying action or if the challenge is to a miscalculation determined to be systematic and not individual.

In this case, Burke wrote, the plaintiffs didn’t “point to a specific rule, regulation, standard or statement of policy from the pension board itself.” And unlike a situation where a city challenges a pension fund’s ruling, here the former police officers “clearly had interest in and standing to seek the review of their individual disability award before the pension board.”

The panel said the pension fund relied on the city’s salary information, specifically whether an officer was removed from the payroll before or after the 15th of a given month, to determine whether the $9,000 quarterly duty availability allowance should be factored into that officer's salary before calculating benefits.

“Although plaintiffs posit that perhaps the city accounted for the duty availability allowance on a monthly basis and this accounting practice may have caused the monthly paycheck discrepancy at issue in this appeal, that does not change the fact that defendant was calculating an officer’s salary using the salary information provided by the city,” Burke wrote. “Thus, it cannot be said that defendant itself had a specific rule, regulation, standard or statement of policy to exclude the duty availability allowance as part of the disability benefit awards.”

That lack of a pension fund rule undercuts the retirees’ ability to claim a systematic miscalculation, the panel determined. So long as the workers had the required 35 days to contest their initial benefits calculations statement, any subsequent claims are time barred. The panel said the fund provided the retirees – and submitted as evidence – the letters detailing salary at time of retirement as well as the resulting monthly disability payment.

The workers, Burke wrote, “could have consulted their own salary records and determined whether the listed salary provided in the letter included the duty availability allowance or was simply mirroring their ordinary base pay.”

The panel affirmed Mitchell’s opinion.

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