FIRST DIVISION APRIL 28, 2014

No. 1-12-3769

DANIAL F. TAIYM, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) ) No. 11 CH 44017 THE RETIREMENT BOARD OF THE POLICEMEN'S ) ANNUITY AND BENEFIT FUND OF CITY OF CHICAGO, ) Honorable ) Mary Lane Mikva, Defendant-Appellee. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors concurred in the judgment and opinion. Justice Delort specially concurred, with opinion.

OPINION

¶1 This appeal arises from a November 28, 2012 order entered by the circuit court of Cook

County which affirmed the decision of defendant-appellee the Retirement Board of the

Policemen's Annuity and Benefit Fund of City of Chicago (Retirement Board) to deny the

petition of plaintiff-appellant Danial F. Taiym's (Taiym) to receive pension credit for previous

employment. On appeal, Taiym argues that: (1) the Retirement Board erred when it found that

Taiym did not qualify for pension credit under section 5-214(c) of the Illinois Pension Code

(Pension Code) (40 ILCS 5/5-214(c) (West 2010)); and (2) the Retirement Board erred when it

found that Taiym was not a temporary police officer pursuant to section 5-214(b) of the Pension

Code (40 ILCS 5/5-214(b) (West 2010)). For the following reasons, we affirm the judgment of

the circuit court of Cook County. 1-12-3769

¶2 BACKGROUND

¶3 On July 13, 2010, Taiym filed a petition with the Retirement Board to receive pension

credit for other service and from other prior employment (the petition). As of the date of the

petition, Taiym had been a police officer for the Chicago police department since April 30, 2001.

In the petition, Taiym requested that he be allowed to contribute and obtain police pension

service credit for his employment prior to becoming a police officer. Attached to the petition

were documents from the City of Chicago (the City) which verified Taiym's employment history

with the City. The documents established that from April 18, 1988 to August 15, 1990, Taiym

was employed as a watchman for the Chicago department of streets and sanitation. Taiym

described his duties while employed as a watchman as follows: "protecting and maintaining the

security and safety in and around city buildings and surrounding grounds; patrolling corridors,

grounds in order to protect premises from unauthorized entry, crime, vandalism, fire, and other

safety hazards." From August 16, 1990 to June 30, 1991, Taiym was employed as a laborer for

the department of streets and sanitation. Taiym described his duties while employed as a

laborer in the department of streets and sanitation as follows: "[a]ssists tradesmen in the layout

and painting of street markings; set up barricades to control the flow of traffic on the city street.

Applies chalk lines to streets; reapply or remove pavement markings; ensures that proper tools

and equipment are at hand and in good working order." From July 1, 1991 to April 29, 2001,

Taiym was employed as a laborer for the bureau of electricity in the Chicago department of

streets and sanitation, construction safety. Taiym described his duties while employed as a

laborer for the bureau of electricity as follows:

"Inspect work area and construction sites to ensure working

conditions are in compliance with occupational safety and health

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administration (OSHA) standards and municipal and state safety

regulations. Implement safe working practices including the use

of protective gear such as helmets, steel tipped shoes, safety

glasses and gloves, [sic]. Ensure that safety precautions, such as

sufficient lighting, warning signs and barricades are posted near

construction or hazardous sites. Conducted employee training

session on safety practices and arranges for product manufacturers

to train employees on the proper use of safety equipment and

gear."

¶4 On October 12, 2010, Taiym sent a letter to the Retirement Board which described in

greater detail his duties while employed as a laborer in the department of streets and sanitation,

in order to show that he was performing "safety work" prior to becoming a police officer

pursuant to section 5-214 of the Pension Code. On October 26, 2011, the Retirement Board

held a hearing on Taiym's petition requesting pension credit for the years in which he was

employed by a City of Chicago agency and performed safety duties within the meaning of the

statute. The statute at issue in the hearing was section 5-214 of the Pension Code, which states

in pertinent part, as follows:

"§ 5-214. Credit for other service. Any participant in this

fund (other than a member of the fire department of the city) who

has rendered service as a member of the police department of the

city for a period of 3 years or more is entitled to credit for the

various purposes of this Article for service rendered prior to

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becoming a member or subsequent thereto for the following

periods:

***

(b) As a temporary police officer in the city ***.

(c) While performing safety or investigative work

for the county in which such city is principally located or for

the State of Illinois or for the federal government, on leave

of absence from the department of police, or while

performing investigative work for the department as a

civilian employee of the department.

***

*** The period of service rendered by such policeman prior

to the date he became a member of the police department of the city

or while detailed, assigned or on leave of absence and employed in

any of the departments set forth hereinabove in this Section for

which such policeman has contributed to this fund shall be credited

to him as service for all the purposes of this Article ***." 40 ILCS

5/5-214 (West 2010).

¶5 At the hearing, Taiym and his counsel appeared on his behalf. The facts in Taiym's

petition and letter were reiterated. Taiym argued that he was entitled to pension credit under

section 5-214(c) of the Pension Code because his employment positions prior to becoming a

police officer all involved "safety work." The Retirement Board stated that even if it accepted

that Taiym's previous employment constituted safety work, Taiym would still not qualify under

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section 5-214(c) because he was not on a leave of absence from the police department during his

previous employment. In response, Taiym argued that in his interpretation, there are five

situations in which an officer could receive pension credit for prior employment: (1) performing

safety or investigative work for the county in which the city is principally located; (2)

performing safety or investigative work for the State of Illinois; (3) performing safety or

investigative work for the federal government; (4) performing safety or investigative work while

on a leave of absence from the police department; or (5) performing investigative work for the

department as a civilian employee of the department. The Retirement Board stated that its

interpretation of safety work did not align with the duties of Taiym's employment as a watchman

and a laborer. Further, the Retirement Board stated that in order to qualify for pension credit

under section 5-214(c) a petitioner must have been on a leave of absence from the police

department during his prior employment. The Retirement Board then voted to deny Taiym's

petition.

¶6 Also on October 26, 2011, the Retirement Board issued a written order denying Taiym's

petition. In the order, the Retirement Board found that Taiym did not qualify for pension credit

under section 5-214(b) of the Pension Code because he was not a temporary police officer during

his prior employment. Further, the Retirement Board found that Taiym did not qualify for

pension credit under section 5-214(c) of the Pension Code because he did not show that his prior

employment duties were safety or investigative; and even if his prior duties were safety or

investigative, his prior employment was not performed while on a leave of absence from the

police department.

¶7 On December 27, 2011, Taiym filed a complaint for administrative review in the circuit

court of Cook County. On August 13, 2012, Taiym filed a brief in support of his complaint for

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administrative review. On September 17, 2012, the Retirement Board filed a memorandum in

support of its answer to Taiym's complaint. On October 3, 2012, Taiym filed a reply to the

Retirement Board's memorandum. On November 28, 2012, the trial court heard oral arguments

on Taiym's complaint for administrative review. The trial court held that the Retirement

Board's findings that (1) Taiym was not a temporary police officer pursuant to section 5-214(b)

of the Pension Code and (2) Taiym was not on a leave of absence from the police department

pursuant to section 5-214(c) of the Pension Code, were not clearly erroneous. Thus, the trial

court affirmed the Retirement Board's decision and denied Taiym's petition for administrative

review. On December 20, 2012, Taiym filed a timely notice of appeal. Therefore, this court

has jurisdiction to consider Taiym's arguments on appeal pursuant to Illinois Supreme Court

Rule 303 (eff. May 30, 2008).

¶8 ANALYSIS

¶9 On appeal, we determine whether the Retirement Board erred in finding that Taiym did

not qualify for pension credit under section 5-214(c) of the Pension Code for his prior

employment as a watchman and a laborer for the City of Chicago department of streets and

sanitation.

¶ 10 Taiym argues that the Retirement Board erred in finding that he did not qualify for

pension credit under section 5-214(c) of the Pension Code because his prior employment duties

constituted safety work. Taiym points out that in Illinois, pension statutes must be liberally

construed in favor of the beneficiaries of the statute. Taiym notes that the term "safety" is not

defined in section 5-214(c) of the Pension Code and he argues that the dictionary definition of

the word should apply. Taiym asserts that "safety" is defined as "the condition of being safe

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from undergoing or causing hurt, injury, or loss." Taiym contends that based on that definition, it

is abundantly clear that his previous employment duties qualified as "safety work."

¶ 11 Further, Taiym argues that, contrary to the Retirement Board's interpretation, section

5-214(c) of the Pension Code does not require a petitioner to have been on a leave of absence

from the police department during his prior employment in order to qualify for pension credit.

Taiym contends that under his interpretation of the Pension Code, there are five bases by which a

petitioner can qualify for pension credit under section 5-214(c): (1) performing safety or

investigative work for the county in which the city is principally located; (2) performing safety

or investigative work for the State of Illinois; (3) performing safety or investigative work for the

federal government; (4) performing safety or investigative work while on a leave of absence

from the police department; or (5) performing investigative work for the department as a civilian

employee of the department. Taiym notes that in Rosario v. Retirement Board of the

Policemen's Annuity & Benefit Fund,

(2008), this court has previously

addressed the issue of the effect of the phrase "on leave of absence from the department of

police" in section 5-214(c). Taiym urges this court to reassess its decision in Rosario, and

adopt his interpretation of section 5-214(c). Thus, Taiym argues that the Retirement Board

erred in finding that he did not qualify for pension credit under section 5-214(c) of the Pension

Code.

¶ 12 In response, the Retirement Board argues that it did not err in finding that Taiym did not

qualify for pension credit under section 5-214(c) of the Pension Code because Taiym's prior

employment duties did not constitute safety or investigative work. The Retirement Board

asserts that Taiym's employment duties as a watchman and laborer did not constitute safety or

investigative work because any tasks that had to do with safety or investigation were sporadic

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and incidental to his main job of working on the streets. Also, the Retirement Board argues that

Taiym did not qualify for pension credit under section 5-214(c) because during his prior

employment, Taiym was employed by the City. The Retirement Board claims that section

5-214(c) only affords pension credit to those police officers who were employed by the county,

state, or federal government. Further, the Retirement Board points out that under the Rosario

court's interpretation, if a petitioner was working for the State of Illinois or the federal

government during his prior employment, then he is required to have been on a leave of absence

from the police department in order to qualify for pension credit. Rosario,

. The Retirement Board asserts that if this court considers Taiym to have been an

employee of the state during his prior employment, then he does not qualify for pension credit

because it is clear that Taiym was never on a leave of absence from the police department.

Thus, the Retirement Board argues that it did not err in finding that Taiym did not qualify for

pension credit under section 5-214(c) of the Pension Code.

¶ 13 When this court reviews a final decision under the Administrative Review Law (735

ILCS 5/3-101 et seq. (West 2010)), it reviews the decision of the administrative agency and not

the circuit court's determination. Rosario,

. The standard of review

that this court applies depends on whether the issue presented is a question of law, fact, or a

mixed question of law and fact.

. "A mixed question of law and fact asks the legal

effect of a given set of facts."

This court reviews an agency's decision on a mixed

question of law and fact under the clear error standard of review.

Clear error review is

significantly deferential to an agency's familiarity with construing and applying the statutes that

it administers.

An agency's decision on a mixed question of law and fact is considered

clearly erroneous only where the reviewing court is left with the definite and firm conviction that

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a mistake has been made.

In the instant case, we are presented with a mixed question of

law and fact. Therefore, we apply the clear error standard to the Retirement Board's decision

that Taiym did not qualify for pension credit under section 5-214(c) of the Pension Code.

¶ 14 In interpreting a statute, this court must ascertain and give effect to the true intent of the

legislature. Paris v. Feder,

(1997). "The best evidence of legislative

intent is the language used in the statute itself, which must be given its plain and ordinary

meaning."

If a word or phrase within a statute is undefined, it is appropriate to employ a

dictionary to ascertain the meaning of the undefined word or phrase. Collins v. Retirement

Board of the Policemen's Annuity & Benefit Fund,

(2011). "The

language of pension statutes must *** be liberally construed in favor of the rights of the

pensioner." Shields v. Judges' Retirement System of Illinois,

(2003).

¶ 15 We disagree with Taiym's arguments. The dispositive issue in this case is whether

Taiym performed safety or investigative work for the county, state, or federal government prior

to being employed as a police officer. Although Taiym was employed by the City prior to

becoming a police officer, this does not constitute performing safety or investigative work for the

county, state or federal government. The legislature had an opportunity to include "the city" in

section 5-214(c) of the Pension Code, which describes the units of government by which an

applicant must be employed in order to qualify for pension credit. Taiym's arguments treat the

statutory language as though it refers to a geographic location. The better argument is that the

legislature intended that the provision should refer to a unit of government; i.e., county, state or

federal government. It would have been easy for the legislature to include "the city" in section

5-214(c). However, it did not do so and we cannot write in language where none exists.

Accordingly, even with a broad construction of the statute, we cannot provide language which

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the legislature saw fit to omit. Therefore, Taiym's arguments fail and the Retirement Board was

not clearly erroneous in finding that Taiym did not qualify for pension credit under section

5-214(c) of the Pension Code.

¶ 16 We note that the parties present arguments regarding whether the Retirement Board

correctly held that Taiym was not a temporary police officer pursuant to section 5-214(b) of the

Pension Code. However, those arguments do not affect our holding and need not be addressed.

¶ 17 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County

which affirmed the decision of the Retirement Board.

¶ 18 Affirmed.

¶ 19 JUSTICE DELORT, specially concurring.

¶ 20 I join the panel’s opinion in full, but write separately to note why we reach a different result

in this case than we did in Howe v. Retirement Board of the Firemen’s Annuity & Benefit Fund,

. In Howe, the Chicago firefighters’ pension board denied a disability

pension after entertaining only a single motion, which was a motion to grant the pension. The

motion to grant the pension failed, as it received more “no” votes than “yes” votes. Accordingly,

the legal result of the vote was that the status quo remained in place and the application remained

pending because the board had taken no action by majority affirmative vote. Nonetheless, the

board in Howe issued a written administrative decision denying the pension, complete with

signatures of board members and reasoning, a month later. We asked the board whether it had

actually met again to review and adopt the written administrative decision by open vote, and were

told that it had not. It appeared that rather than adopting the written decision in an open meeting,

it circulated a draft for signature by the board members who had voted against the motion to grant

the pension award. We remanded the case to the board for it to issue a valid administrative

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decision, holding: (1) the board never adopted a motion disposing of the application by a majority

affirmative vote; and (2) the board violated the Open Meetings Act (5 ILCS 120/1 et seq. (West

2010)) by circulating the draft decision for signature rather than reviewing it and adopting it by

majority vote. See also Lawrence v. Williams,

(invalidating electoral

board administrative decision adopted by circulating it for signatures without taking an open vote).

¶ 21 Here, the police pension board entertained a motion to deny the creditable service time to

Taiym. The board adopted that motion by a unanimous vote. We held in Howe that the board

cannot dispose of a pension application except by an open vote upon a specific written

administrative decision. The record here in this case only hints, but does not prove, that the police

board followed the same practice we found to be invalid in Howe. The board vote was taken on

October 26, but the written decision is dated November 23. We have no transcript of the

November 23 proceedings, but the decision is signed only by two board officers and a staff

member in a certification capacity, rather than a voting capacity. That being the case, and

because this board actually adopted a dispositive motion by affirmative majority vote, the record is

insufficient to justify vacating the board’s decision. Based on Howe, however, best practice

dictates not only that the board not only take final action on a pension application by voting on a

specific written administrative decision, not merely a motion, but that the record include the

transcript specifically demonstrating that the board did so.

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