2005-02-07 - Firefighter Pension Board - Agenda Packet Board orCommission: ❑ Fire Pension Board
Document Type: 0 A e
g nda ❑ Minutes
Meeting ate: 02/07/2005
Type of Meeting: ❑ Regular Meeting
C ..............................................................................................................................................................................................................................................................................................................................................................................................................................
Pension meeting notice 02-07-05.doc
BUFFALO GROVE FIRE DEPARTMENT
FIREFIGHTER'S PENSION FUND
REGULAR
MEETING NOTICE
Date: February 7, 2005
Fire Administrative Headquarters
1051 Highland Grove Drive
Buffalo Grove, Il 60089
6:00 P.M.
1. Call to Order
2. Roll Call
3. Minutes
4. Financial report
A.) Expenses Paid
5. New Business
A.) Discussion on interventions and votes
6. Adj ournment
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BUFFALO GROVE FIRE DEPARTMENT
FIREFIGHTER'S PENSION FUND
REGULAR
MEETING NOTICE
Date: February 7, 2005
Fire Administrative Headquarters
1051 Highland Grove Drive
Buffalo Grove, I160089
6:00 P.M.
1. Call to Order
2. Roll Call
3. Minutes
4. Financial report
A.) Expenses Paid
5. New Business
A.) Discussion on interventions and votes
6. Adjournment
The Village of Buffalo Grove, in compliance with the
Americans with Disabilities Act, requests that persons with
disabilities who require certain accommodations to allow
them to observe and/or participate in this meeting or have
questions about the accessibility of the meeting or
facilities contact the ADA Coordinator at 459-2518 to allow
the Village to make reasonable accommodations for those
persons .
Dinner will be provided for Trustees .
�
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BUFFALO GROVE FIRE DEPARTMENT
FIREFIGHTER'S PENSION FUND
SPECIAL
MEETING NOTICE
Date: FEBRUARY 10, 2005
Fire Administrative Headquarters
1051 Highland Grove Drive
Buffalo Grove, Il 60089
6:30 P.M.
1. Call to Order
2. Roll Call
3. Hearing on FF/PM Jeff Newkirk's Request for Disability
A.) Testimony/Questioning, Witnesses
B.) Deliberation/Findings
4. Adjournment
The Village of Buffalo Grove, in compliance with the
Americans With Disabilities Act, requests that persons with
disabilities who require certain accommodations to allow
them to observe and/or participate in this meeting or have
questions about the accessibility of the meeting or
facilities contact the ADA Coordinator at 459-2518 to allow
the Village to make reasonable accommodations for those
persons .
�� THE LAW FIRM OF �J
. � OTTOSEN TREVARTHEN BRITZ
� KELLY �z COOPER, LTD.
300 South County Farm Road•Third Floor•Wheaton, Illinois 60187
Telephone 630.682.0085•Facsimile 630.682.0788•E-mail ccliffordC�?otbkc.com
Carolyn Welch Clifford Direct Line 630.510.2290 Of Counsel
Anomey at�aw Anthony M. Peccarelli
William R. Penn
Via Overniaht Mail
January 26, 2005
Battalion Chief Joseph Wieser
Buffalo Grove Firefighters' Pension Fund
1051 Highland Grove Drive
Buffalo Grove IL 60089
RE: Memorandum of Law regarding the Village of Buffalo Grove's
Petition to Intervene (Smith Survivor's Pension Application)
Dear Joe:
Enclosed please find a "Memorandum of Law regarding the Village of Buffalo Grove's
Petition to Intervene" for your review. This memo reflects our analysis of the Village's
petition and the Petitioner's argument in opposition thereto. Please distribute copies of
this memo, along with the Village's petitio�n, Petitioner's response, and Village's reply on
this issue to each member of the Board for review.
As you recall, the Village and the Petitioner agreed that no oral argument would occur on
the petition and that the Board would make a decision as to whether the Village will be
allowed to intervene based on the briefs presented. Please have this issue listed on the
Board's meeting agenda for February 7, 2005 for determination.
In the meantime, I have faxed a letter to Michael Duggan and Rick Reimer regarding the
Village's request to intervene in the Newkirk matter (see enclosed). Since they are the
same attorneys involved in the Smith matter, and they have already briefed this issue, I
have asked them to quickly submit the Newkirk petition and reply. As we discussed, we
would like to have the Newkirk intervention matter listed on the February 7th agenda.
I will let you know what response I receive from Mike and Rick as soon as I hear from
them. In the meantime, if you have any questions, please feel free to contact me.
Sincerely,
OTTOSEN TREVARTHEN BRITZ KELLY&COOPER, LTD.
. ��Vl����.
Carolyn W h Clifford
Enclosures
Data/Pen/B uffaloG rove/Sm ith/W ieserltr.012605
Elburn Joliet Wootlstock
630.365.6441 � 815.723.0601 � 815.338.8011
�/ �
BEFORE THE BOARD OF TRUSTEES OF THE
BUFFALO GROVE FIREFIGHTERS' PENSION FUND
in the Matter of the Request by Rebecca S. Smith )
for the Survivorship Benefits of ) January, 2005
FF/PM Matthew J. Smith (Deceased) )
MEMORANDUM OF LAW REGARDING THE
VILLAGE OF BUFFALO GROVE'S PETITION TO INTERVENE
The Village of Buffalo Grove has filed a petition to intervene in this matter,
seeking to participate in the spousal benefits hearing to be conducted by the Board of
Trustees of the Buffalo Grove Firefighters' Pension Fund. The issue of whether the
Board should allow the Village to intervene is twofold. First, a village may have a right to
intervene at a pension hearing if it has a substantial interest in the expenditure of
pension funds. Peterson v. Board of Trustees of the Firemen's Pension Fund of the City
of Des Plaines, 5 III.App.3d 180, 281 N.E.2d 368 (1St Dist. 1972). Second, a pension
board has the power to allow such intervention, in whole or in part, provided that it
exercises such discretion with care. Village of Stickney v. Board of Trustees of the
Police Pension Fund of the Village of Stickney, 347 III.App.3d 845, 807 N.E.2d 1078,
1083 (1S` Dist. 2004).
I. Villaae's Riqht to Intervene in General
In general, only parties to an administrative proceeding whose rights, privileges,
or duties are affected by the decision of the administrative agency may seek review of
the agency's decision. Further, the parties seeking review must allege and prove that
the decision of the agency affects them adversely (Peterson at 183). The court in
Peterson further stated:
The number of firemen given disability pensions directly affects the duty
of the City to provide its proportion of funds to enable the pension system
to function. The City, therefore, has the right to appeal the [circuit] court's
decision. (Peterson at 183)
The Fifth District narrowed the First District's decision in Peterson by cautioning
that the pension board's decision must impact a duty or interest of the municipality.
Karfs v. City of Belleville, 329 III.App.3d 1198, 1204, 770 N.E.2d 256, 261 (5`h Dist.
2002). Moreover, the court in Karfs stated: "A municipality will not have an interest in
and standing to seek review of each individual case that comes before the pension
board." (emphasis added)
These decisions are supported by the Illinois Supreme Court, which has held that
interested parties, including a city, have the right to cross-examine adverse witnesses at
a joint hearing procedure involving a special use request. People ex rel. Klaeren v.
Village of Lisle, 202 I11.2d 164, 781 N.E.2d 223 (2002).
�./ U
However, both Peterson and Karfs involved whether or not a municipality may
seek administrative review of a pension board's decision. But the court in the Peterson
decision stated that, "Since the city had a substantial interest in the expenditure of
pension funds, it had a right to be represented at the hearing." (Peterson at 185). The
court in Karfs gave an example of a situation where municipal intervention would be
appropriate:
If, for example, in deciding a firefighter's pension benefit,
the pension board uses or approves a method of
calculation that is prohibited by the Code or violates the
labor contract, that decision may be deemed to have a
direct impact on a municipality's duty to levy taxes in
sufficient proportions to enable the pension system to
function, because it is reasonably likely that the pension
board would continue to use an improper method to
calculate other pensions, resulting in a depletion of the
fund. Under those facts, the municipality could seek a
review of the agency's decision because the decision
potentially impacts the municipality's duty to provide a
sufficient sum to meet the requirements of the pension
fund. (Karfs at 1204.)
Although each of the above cases includes language that would suggest a village
has standing to seek intervention in each hearing, there is no rule or holding which
specifically grants such intervention.
Alternatively, in Stickney, the First District specifically held that the village does
not have an absolute right to intervene in a disability pension hearing. The village in
Stickney argued that it had a right to intervene based on the holdings in Peterson and
Karfs, and that it was a "party in interest" as described in 40 ILCS 5/1-101.3. The court
found that both Peterson and Karfs applied only to the right of a municipality to seek
administrative review, and not to its right to intervene in the hearing itself. Furthermore,
the court determined that the term party in interest on►y applied to limited sections of
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the Illinois Pension Code, and not to a municipality's right to intervene.
Although a village does not have an absolute right to intervene in a disability
pension hearing, the court in Stickney further found that a pension board does have the
power to allow, in whole or in part, village intervention in a pension hearing, provided
that it exercises such discretion with care. The court's ruling in Stickney distinguishes
past cases by noting that those cases discussed a village's standing to seek future
administrative review because of its financial interest in the outcome of the hearing (see
Peterson, supra; see also Karfs, supra.)
II. Petitioner's Araument
Petitioner objects to Village Intervention under four different theories. First,
Petitioner argues that it is unlawful for the Village to intervene because case law has
determined that the Code of Civil Procedure is not applicable to pension board
proceedings, specifically, the portion of that code which allows a party to intervene
where they will or may be bound by the order or judgment in the action. (735 ILCS 5/2-
408; also see Village of South Elgin v. Pollution Control Board, 64 III.App.3d 565, 381
2
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N.E.2d 778 (2"d Dist. 1978)). Petitioner is correct in his assertion; however, the Village
does not purport that the Illinois Code of Civil Procedure is controlling in this matter,
merely that it can serve as guidance that the Board may consider in determining whether
to allow the Village to intervene. This alone does not make intervention unlawful.
Secondly, Petitioner argues that the Village should not be allowed to intervene
for the purpose of protecting its interest in paying possible health insurance benefits in
the event of a finding for Petitioner because it would be an abuse of the Board's
discretion. Petitioner urges that the pension board is not the appropriate forum to
adjudicate the Petitioner's rights with respect to health insurance benefits, only benefits
provided under Article 4 of the Pension Code. In this respect, Petitioner is correct.
However, Petitioner fails to address the second part of the Village's basis for
intervention, that its ability to levy property taxes will be affected. Thus, the question is
whether granting intervention on either basis would be an abuse of the Board's
discretion. The dicta in Stickney and similar case law seem to suggest that intervention
may not be justified in each and every case. If the Board wishes to grant the Village's
Petition to Intervene, it may be wise to do so in light of the court's reasoning in Karfs.
For example, if it could be shown that a determination by the Board that the widow is
entitled to a full line-of-duty pension as a result of her husband's off-duty heart attack
would result in precedent that would put a significant financial burden on the Village in
the future, then it may decrease the chance that the Board's decision to allow
intervention was an abuse of discretion.
Next, Petitioner claims that permitting the Village to intervene violates the
"Exclusive Purpose Rule" set forth in Section 1-109(a) of the Pension Code (40 ILCS
5/1-109(a)). Section 1-109(a) provides that:
[A] fiduciary with respect to a retirement system or pension fund
established under this code shall discharge his or her duties with respect
to the retirement system or pension fund solely in the interest of the
participants and beneficiaries; and (a) For the exclusive purposes of: (1)
providing benefits to participants and their beneficiaries; and (2) defraying
reasonable expenses of administering the retirement system or pension
fund. (40 ILCS 5/1-109 (a))
Petitioner argues that the Village seeks to intervene not to protect the interests of
the participants and beneficiaries, but rather to protect the Village's own interests. In
response to this argument, the Village responds that its sole purpose for seeking
intervention is to "provide an adversarial test to the petitioner's assertion of eligibility."
(see "Village's Reply to Petitioner's Memorandum of Law in Opposition to the Village's
Petition to Intervene.") A better argument for the Village may have been that the Village
wished to intervene to protect other beneficiaries of the pension fund because a
determination of a certain eligibility may affect the Village's ability to pay future pensions.
In any case, Illinois case law has acknowledged that a municipality may be allowed to
intervene (see Stickney, supra, see also, Peterson, supra) in certain cases where the
municipality's ability to provide for the pension fund is significantly impacted. (see Karfs,
supra).
Finally, Petitioner argues that the Village has no right to intervene based upon
the impact of the expenditure of public funds. In support of his argument, Petitioner cites
3
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Stickney. In this respect, Petitioner is also correct. The case holds that a Village does
not have an absolufe right to intervene in pension hearings. However, it is clear that the
Village does not assert that it has a right to intervene at the hearing. Rather, the Village
requests the Pension Board to allow it to participate at the hearings, a determination
Stickney holds is a legitimate exercise of the pension board's power.
III. Conclusion
The Board of Trustees of the Buffalo Grove Firefighters' Pension Fund is
permitted to exercise its discretion with care and lack of abuse to allow the Village to
intervene. The Board may also exercise its discretion with care and lack of abuse to
deny the Village to intervene. Furthermore, the Village of Buffalo Grove has no actual
right to intervene. Peterson and Karfs both discuss the possibility of allowing a Village to
seek future administrative review because the Board's decision could adversely affect
the financial interests of the Village or affect a duty or interest of the municipality,
whether or not the Village is allowed to intervene in the Board's hearing on this matter.
Respectfully submitted,
OTTOSEN TREVARTHEN BRITZ KELLY & COOPER, LTD.
B ���� �i`���r��/ , �
y.
One of ' s attorneys
Robert W. Trevarthen
Karl R. Ottosen
Carolyn Welch Clifford
OTTOSEN TREVARTHEN BRITZ KELLY & COOPER, LTD.
300 S. County Farm Road, Third Floor
Wheaton, Illinois 60187
Telephone: (630) 682-0085
Fax: (630) 682-0788
Data/Pen/BuffaloGrove/Smith/Memo of Law Jan 14 �
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10/26/2004 13:48 FAg 6a0 'S4 9676 RICHARD REIMER & A" �C. f�002
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' BEFORE THE BOARD OF TRUSTEES OF
TI�VII.,LAGE OF BUF�ALO GrROVE FTI2EFZGHTERS' PENSTON FUND
T�1'THE MATTER OF THE }
SURVIVIl�IG SPOUSE DIS,A,BXLITY )
APPLICATION OF: )
)
MRS. REBECCA SMITH, )
SURVMNG SPOUSE QF ) �
k'IItF�GHTER MATTHEW SM�TH )
)
Peribioz�er } �
�10TICE OF'FIL�1G
TO: lv�s, Carolyn Welch Cliffoxd Mr. iv�ichael J. Duggan
� ��n, Trevarthea�, Britz, Kelly Klein, Thorpe, and Jenkix�s,Ltd.
�,�u�;ooper, Ltd. 20�1. Wacker Drive, Suite Z 660
300 S. Couz�ty�arm Road, 3`�Fl. Chicago, Illinois 60606
Wheaton, Illinois 60Z$7
(By Telecopy&First Class Mail) (By Telecopy & Fi�rst Class Mail)
PLEASE TAK.E NQTICE that I on this 26`� day of October, 2004 filed Petitioners'
Memorandum in Opposition to Village of Buffa�o Cxrove's Petition to Intervene with the
attomey for the Firefighters' Pension Board, by First Class mail and by Facsvnile, on
behalf v�the Petitioner.
RIC J. �tE E AS CZATES, LLt;
By:
Ric ard J. Reiim
��QOF OF SER'V�CE
Richard J'. Reimer, being first duly sworn on oath, de�oses and states that he has
caused a copy o�the foregoing Notice to be served upoz� the individuals named above by
First Class mail az�dJor Facsimile, includuag pxoper postage pxepaid and depositing in the
Ma�l. Box located at 15 Spinnin� Whee1 Road, IL, th�is 25�' day of October,
2004. �
10/26/2004 1a:48 FAX 6�0 "'4 9676 RICHARD REIMER & Ac��C. f�003
, �./ �
BEFORE THE BOARD OF TRU'STEES OF
THE VILLAC'xE OF BIJF�ALO GROVE F�REFIGHTERS' PENSION FUND
IN THE MATTER pF THE )
SY7R'V'TVTNG SPOUSE DISABILITY )
APPLICATION OF: )
)
MRS. REBECCA.SMITH, )
SUR.VIVING SPOUSE OF )
FIRFIGHTER MAT"��EW S��TH )
)
Petitioner )
FETITIONERS' MEMORANDTJN�ANA 4PPOSITIQN TO T�E VII,LAGE OF
BU'FFALU GROYE'S PETYTTON TO Y1�iTERVEI�iE
NOW C�1V,[ES t�e Pet�tioz�ex, MItS. R.EBECC,A SN���'H, Surviving Spouse of
Firefighter Matthew Smith, by and through her attomeys, RICHARD 7. REIMER &
ASSOCTATES, T.LC, and in opposition to the Petition to Tntervene filed by the Village of
Buffalo t'rrove, and states as follows as the basis for where the Village should be allowed �
to intervene:
�. ST,ATEMEN'.�' 4�FACTS
The Petitioner in this case is 1V1RS. REBECCA SMITH, (kaereia�afier "the
Petifioner"}, tbe Swrviviaag Spouse o�Bu£�a�o Gxove Firefighter Matthew Smith. On or
about ,A.p�zl 30, 20Q4, the Petiti,oner filed an Application for Increased Survirring Spouse
Benefits, pursuant to §5/4-114(i) of the Illinois Pension Code. The Village of Buffalo
Gro�ve has fi�ed a Petiti.ort to T.ntexveza.e in the proceeding and a Supporiing Memorandum
of Law. in its NXemorandum,the'Vi�lage argues as follows:
10/26/2004 1a:48 FAg 6�0 '4 9676 RICHARD REIMER & ASr�^•. f�004
, . �' �
1) 'The decision of the Pension Board may have ax� impact on the V"illage's
property tax levy;
2) That the 'Vi�Zage may or will be required to provide the Petition.er with
insurance benefits under the Illinois Publitc Sa�ety Employee Beneiits Act,
820 ILCS §320/1 et seq.
Tn xesponse to the Village's Petition, the Petitioner submits the following
�emorandum. However, at the onset, the Petitioner wishes to make it cleax that sl�e Z►as
no intention of filing a claim foz �nsurance benefits under the Public Safety Ernployee
Benefits Act given the fact that hex busband's death did not meet the criteria under. §10(b)
of that.A.ct, eve�n thougk� the Petitioner believes that her husband's death qualifies her for
i�aczeased survivorship benefits under §5/4-114{i) of the Illinois Pension Code. Petitioner
hereby waves all potential claims under the Public Safety Ezn�loyee Benefits Act.
II. ISS[T�S PI.2ESENTED FOR REYIEW
(1) Whether the Village of Buffalo Grove has p�ovi.ded a valid reason to
"intervene" in this matter?
�
III. ARGUMENT ANb �AVV
A. �
THE VII.,LAGE SHOULD NOT��ALLOVI�ED TO YNTERVENE
IN THE DISABILITY PROCEEDING
1, �he Village Has No Right To Intervene As The Illinois Code �f Civil
Procednre Does Not Apply To Administratfve Proceedings And The V illage's
�teasons For Intervent�on Is Unlawful
2
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10/26/2004 13:49 FA% 6a0�4 9676 RICHARD REIMER & A��. �005
'�he Village cites to language in the Code a� Civil Procedure in suppor.t of its
claim o� inte�rvention. The Village fails, howevez�, to cite to Illinois case law �hat has
detennined that the Code o� Civil Procedure in not ap�licable to Pension Board
proceedings. �t is well established that the Code of Civil �tocedtue does not �pply to
administrative proceedings. Vi�lage of South El�in vs. Pollution Comb�ol Board, Fi4
Ill.App.3d 565 381 N.E.2d 778 (2� Dist. 1978); Desai vs 1vletropolitan Sani District,
125 I11.App.3d 1.031, 466 N.E.2d 1045 (ls= Dist. 1987) and McGowen vs. Board of Fire
anc� �'��';�P Commissioners of Ci of Blooz�ai.n on, 99 Il1.App.3d 986, �26 N.E.2d 328
(4�' Dist. 1981). In Village of South El�:t�t, cxfied su ra, fhE court specifically fo��nd that
there was no basis to suggest that the legi.slatuxe intended the Code of Civil Pxocedure to �
apply to proceedings be�oze adn-unistrative bodies of state or local government. 381
N.E.2d at 782. Cortsequently, the Village may not xe�y upQn the Intervention provisions
contai.zaed in the Code of Civil Procedure, because the foregoing cases make it quite clea�c
that the Code of Civil Pxocedure does not ap�ly to tb,ese administrative proceedings.
Z. Allowing the Village To �nterveue In Order To Protect �ts "Interest" In Not
payiing Health Insurance Would Be An Abuse Of Discretion Sy The Board
And Reversible Error
This claim by the Village should be moot because Petitioner has waved her right
to pursue sueh a clairn. Assuming Petitioner had not conceded that she is not entitled to
paid health care benefits under the Publxc Safety Employee Bene�ts Act, the Illinois
Fension Code does not give the Pension Board any authority to determine rights to health
insuramce benefits.
3
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10/26/2004 1�:49 FA% 6af�4 9676 RICHARD REIMER & A�C. �006
The sole issue before the Pez�sion Board is whether Petitioner's disal�ility is
entitled to Benefits under §5/4114(i) of the Illi�nois Pension Code. The Pensio�� Boazd
wi11 either grar►t or deny that claixz�. S�mply put, what more can the Village offer on tlaxs
issue? Nothing.
A review of the Village's Petition, makes it abundantly clear that the Village
hopes to t�y the issue of whether Petitioner will be entitled to health amsurar�ce benefits,
be�ore tk►e Pension Board, which is not a proper inquiry fox the Pemsion Board. �Clearly,
J'- '""' - _�-��*to intermingle tb�e i,ssues to be decided by the Pension Board would
p;c;judr�z �j�::;::.:�.r,��r. Allowiung the Village to interv�ene for the purpose of ad�•ocating
a�ains� '' � � - laim because o�'any potenhal affect on health insurance, would be
ar� abuse of discretion by the 1'ension Board. The Pension Board is not th� appropri.ate
forum to adjudicate the Petit�oz�ez's rights, if any, to benefits under a different state
Statute namely the Public Safety Employee Benefits ,Act. The Pension Board can only
award benefits under Article 4 of the Illinois Pez�s�an Code. Health insurance benefits are �
not provided for under Article 4.
3. Permitting The'Village To �ntervene Violates The Egclusive Puxpose�ule Set
�vrth In Sect�on S/1-109(a) of the Pension Code
Yet another compelling reaso�a wby the Pension Board must deny the Vil�age's
_ Petitiom ta Intervene in this case is that to do so, would be a violation of the Pension
:$oazd Trustees` "fiduciary duties." Specifically, granting the Vi��age's Petitioii woutd
violate the "exclusive puxpose rule" contained in §5/3-109(a) of the Pension Code.
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10/26/2004 13:49 FAX 63�54 9676 RICHARD REIMER & .�,JC. �007
This "exclusive purpose" ru�e contained in §5/1-109(a) of tl�e Pension Code
provides as follows:
"...a fiduciary must dxscharge his or her duties w�th z�espect to ;
fihe xerirernent system ar pension fund solely in the interest of
the participant a.t�d beneficiaries and:
(a) For t}ae exclusive purpose of
(1) Provxdi�ng benefits to pax�icipaz�ts and
beneficiaries;"
The exclusive purpose rule has been described by the courts as the duty to act with
complete and undivided loyalty to the �ersoans who are to benefit under the pension fund.
Fzeund vs. Marshall & Ilslev, 4$S F.Supp. 629 (W.D. 'VV'is. �979). A trustee's and
fiduciar�s decisions should be made with an eye single to the intexests of the plan
mexnbez�s. Donovan vs. Bierwirth, 680 F.2d 263 (2d Cir. 1982). A review of the Village's
Petition, di�scloses that the Village is encouraging the Pension Boa.rd'�'rustees to violate their
fiduciary duties. The Village is cleazl.y not seelang to intervene in this matter ta pr��tect the
interests of the participants and bez�e�iciaries,rather as set foxth in the Petition,the V'illage is
seelang to intervene to protect the interests of the "Vxllage."
As noble o�a goal as it may be, protect�on of the obligations to the Villagc and its
taxpayers, is not a consitderation that the Pension Board and its Trustees can lawfully
consider in adjudicating Petitioner's claim. The Village has alleged that the decision of
the Pension Board may affect the Village of Buffalo Crrove's finances by potential
payment of health insurance for Petitioner. This alleged concern by the Village, does not
relate to the duty of the Pension Board Trustees to discharge their duties �vith tl�e
"exclusive purpose" of pa�t�cipant and beneficiaries. The Trustees should be mindful of
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10/26/2004 1a:49 FAX 630�� 9676 RICHARD REIMER & A��'. �008
. ` .
t�eix dut�es and penalties provided for violation of these fxduciary duties under A.rticle 1 ;
i
of the Pension Code. Considering the i�ote�rests of the Village, which the �rillage's �
Petition is clearly designed to do, would cause the Trustees to violate the f�duciary duty ;
to act for the "exclusive purpose" of the Pe�nsion Fund participants and benefeciaries.
Accordingly, the Village's Petition xnust be denied.
4. The Village �-Yas No Right To Intervene Based on A.ny �mpact 4f
uExpenditures of Public Funds"
� Support of its petition the Village also asserts that the Village will be impacted
by the potential increase in the Public Fund�x�g, (ie: The property tax levy). The
Village's reason for intervention is an direct conflict with a recent Illinois .A.ppe�late Court
Decision, Sticknev v Stxckney Police Pension Fund 347 �1 App 3d 845, 807 �T.E. 2d
;
1078(1�` Dist. 2004). Yn Sticknev, the Illinois Appellate Court stated, "Whi1e the Code �
does assign the Village the duty to finance the Pension Fund by levying taxes, nothing ia
the Code suggests a municipality's duty gives Yt a right to interveme ,in pension
b�ean-ings." (Emphasis Supplied). Conver�iex�tly, the Village failed to state the Appe�late
Courts determinatian in its Petii�oza. Clearly, this belies any argux�ez�t the village mak�es
which suggests that expenditures of�ublic funds sorz�ehow entitles it to intervene in these
proceedings.
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10/26/2004 13:50 FA% 6a0 � 9676 RICHARD REIMER & AS�. �009
IV. CONCLUSYON �
For the reasons set forth hezeaz�, the Petitioner asserts that the Village of Buffalo
Cxrove's Petifion to Intervene must be denied.
Respect�u��y Submitted,
�C . �MER&,ASSOCI.ATES, LLC
By: ,
Ric d J. Reimer, Attorney for Applicant
Mrs. R.ebecca Smith
Richard J. Reimer
RIG�ARD J. REIME�&ASSOCIATES, LLC
15 Spinning'VVheel Rd.
Suite 225
I-�insdale,IL 60521
(630) b549547
7
� u
BEFORE THE BOARD OF TRUSTEES OF THE
BUFFALO GROVE FIREFIGHTERS' PENSION FUND
In the Matter of )
Firefighter Matt Smith )
Petition for Surviving )
Spouse Benefit )
NOTICE OF FILING AND PROOF OF SERVICE
TO: See Attached Service List
PLEASE TAKE NOTICE that September 14,2004,I caused to be filed with Board Of Trustees Of
The Buffalo Grove Firefighters' Pension Fund, Village of Buffalo Grove, Village Hall, 50 Raupp
Blvd., Buffalo Grove, IL 60089, the VILLAGE OF BUFFALO GROVE'S PETITION TO
INTERVENE and MEMORANDUM OF LAW IN SUPPORT OF ITS PETITION TO
INTERVENE, a copy of which is enclosed herewith and served upon you.
�
PROOF OF SERVICE
I,Elena Tanta,being a non-attorney,on oath state that I mailed a copy of this Notice,together
with its attachment,to the individuals named on the Service List via facsimile and U.S.mail,proper
postage prepaid, on September 14, 2004, at or before 5:00 p.m.
����.� � �_
Michael J. Duggan
Klein, Thorpe and Jenkins, Ltd.
20 North Wacker Drive, Suite 1660
Chicago, Illinois 60606
(312) 984-6400
iManag� 134832 1
� � �
Via Facsimile• (630) 682-0788 and U.S. Mail
Ms. Carolyn Welch Clifford
Ottosen, Trevarthen, Britz, Kelly,
and Cooper, Ltd.
300 S. County Farm Road, 3rd Fl.
Wheaton, Illinois 60187
Via Facsimile• �630) 682-0788 and U.S. Mail
Mr. Robert W. Trevarthen
Ottosen,Trevarthen, Britz, Kelly,
and Cooper, Ltd.
300 S. County Farm Road, 3`d Fl.
Wheaton, Illinois 60187
Via F���'�� ''�-=� (630)654-9676 and U.S. Mail
Ric::�... �. :.c.iner
Richard J. Reimer& Associates
15 Spinning Wheel Road, suite 225
Hinsdale, Il. 60521
Mr. Arthur Malinowski
Director of Human Resources
Village of Buffalo Grove
Buffalo Grove, Il. 60089
50 Raupp Blvd.
Buffalo Grove, IL 60089
#139530v1<iManage>-Service List.Smith Matter
� �
BEFORE THE BOARD OF TRUSTEES OF THE
BUFFALO GROVE FIREFIGHTERS' PENSION FUND
In the Matter of )
Firefighter Matt Smith )
Petition for Surviving )
Spouse Benefit )
VILLAGE OF BUFFALO GROVE'S MEMORANDUM OF LAW IN SUPPORT OF ITS
PETITION TO INTERVENE
Now Comes the Village of Buffalo Grove, by and through Michael J. Duggan, Klein,
Thorpe and Jenkins, Ltd., and states as Follows in Support of its Petition to Intervene:
I. THE VILLAGE OF BUFFALO GROVE'S PETITION TO INTERVENE
SHOULD BE GRANTED IN THE INTERESTS OF PERMITTING THE VILLAGE TO
PARTICIPATE AS AN ADVOCATE IN THIS MATTER INVOLVING SUBSTANTIAL
INTERESTS OF THE VILLAGE.
The courts have instructed that a Village Pension Board has the discretion to permit
intervention by a Village in a pension application hearing. Peterson v. Board of Trustees of the
Firemens'Pension Fund of the City of Des Plaines, 5 Ill. App. 3d 180, 281 N.E.2d 368 ( 151 Dist.,
1972); Village of Stickney v. Board of Trustees of the Police Pension Fund of the Village of
Stickney, 2004 WL 626527 ( 1 S`Dist., 2004) The Code governing civil cases in Illinois confers
a right to intervene upon a party where, among other things, the representation of the party's
interest by existing parties is or may be inadequate and the party seeking to intervene will or may
be bound by an order or judgment in the action; or when the party seeking to intervene is so
situated as to be adversely affected by a distribution or other disposition of property in the
custody or subject to the control or disposition of the court or a court officer. (Code of Civil
Procedure Sec. 2-408 (a), 735 ILCS 5/2-408).
The Village will be bound by a judgment in the applicant's favor to a financial obligation
#139523v1<iManage>-Memo in suppor[of Intervention-Matt Smith -1
�./ �
to increase public funding(i.e.; the Property Tax levy) for the Fire Pension Fund as the liabilities
of the Fund increase. Additionally, the Village will be or may be bound by a ruling in the
applicant's favor in a subsequent request for the Village to provide insurance benefits under the
Illinois Public Safety Employees Benefits Act( 820 ILCS 320/1 see, Krohe v. City of Belleville,
204 Ill. 2d 392, 789 N.E. 2d 1211 ( 2003). Under the usual understandings as to when a party is
entitled to intervene, it is clear that the Village's petition to intervene should be granted and that
the Village of Buffalo Grove should be given the full rights of a party to participate in the
hearing.
CONCLUSION
For all of the forgoing reasons, the Village should be permitted to Intervene.
VILLAGE OF BUFFALO GROVE by
KLEIN, THORPE AND JENKINS, LTD,
Its attorneys
\
Michael J. Dugg n
Michael J. Duggan
KLEIN, THORPE AND JENKINS, LTD.
20 North Wacker Drive, Suite 1660
Chicago, Illinois 60606
(312) 984-6400
#139523v1<iManage>-Memo in support of Intervention-Matt Smith -2
� U
BEFORE THE BOARD OF TRUSTEES OF THE
BUFFALO GROVE FIREFIGHTERS' PENSION FUND
In the Matter of )
Firefighter Matt Smith )
Petition for Surviving )
Spouse Benefit )
VILLAGE OF BUFFALO GROVE'S PETITION TO INTERVENE
_., �'ILLAGE OF BLJFFALO GROVE, by and through KLEIN, THORPE
,� ��tvx�'��•. L T� , its attorneys, and move for leave to intervene in the above captioned
tnatter, anc� =:� �:•:�r=k�c.� ���:ts motion states as follows:
I. ___..._.,�._ . _._... _:�lief,Matt Smith has applied, through his representative, for Rebecca
�mith,widow of Firefighter,for increased survivorship benefits from the Buffalo Grove Fire
Pension Fund alleging that:
a. At all relevant times Matt Smith was a member of the Buffalo Grove Fire
Department;
b. At all relevant times Matt Smith was a member of the Buffalo Grove Fire Pension
Fund; and
c. His death was the direct result of an "occupational disease."
2. It is within the discretion of the Buffalo Grove Fire Pension Board to permit the Village to
intervene in the above matter to protect the interests of the Village.
3. In this case, the Village has a substantial interest in the outcome of this application because
the Illinois Supreme Court has ruled that a finding of an entitlement to increased survivorship
benefits on the basis sought here is tantamount to an entitlement to insurance benefits
pursuant to the Illinois Public Employee's Benefits Act, 820 ILCS 320/1, et. seq. ; Krohe v.
City of Bloomington, 204 Ill. 2d 392, 789 N.E.2d 1211 (2003).
4. The Village will also be directly affected in that line of duty disability pension will impose
additional financial obligations of the Village Buffalo Grove to increase public funding of
the Buffalo Grove Fire Pension Fund.
#139526v1<iManage>-Petition to Intervene-Smith
�,/ �--�
. WHEREFORE,The Village of Buffalo Grove requests that the Board grant the Village's
Petition to Intervene and participate as a party,with all of the rights of a party,in these proceedings.
VILLAGE OF BUFFALO GROVE by
KLEIN, THORPE AND JENKINS, LTD,
Its attorneys
Michael J. n
Michael J. Duggan
KLEIN, THORPE AND JENKINS, LTD.
20 North Wacker Drive, Suite 1660
Chicago, Illinois 60606
(312) 984-6400
#139526v1<iManage>-Petition to Intervene-Smith