Sarkis v. City of Des Plaines

882 N.E.2d 1268, 378 Ill. App. 3d 833
Appellate Court of Illinois·Decided February 8, 2008·No. 1-06-2069·Published·Cited by 22 cases

Opinion

JUSTICE GALLAGHER

delivered the opinion of the court:

This case involves the administrative review of the decision of the Des Plaines Police Pension Board (the Board) to deny plaintiff George Sarkis a line-of-duty disability pension after Sarkis injured his shoulder while lifting a malfunctioning railroad crossing gate. On appeal to the circuit court, that court reversed the Board’s decision and held that because Sarkis was dispatched to the scene and was acting for the public’s protection, the Board’s decision to deny Sarkis a line-of-duty pension was clearly erroneous. The Board, its members and the City of Des Plaines (collectively, defendants) now appeal that ruling. For the reasons stated below, we reverse the Board’s decision denying Sarkis a line-of-duty disability pension.

BACKGROUND

The facts are largely uncontroverted. Sarkis, a Des Plaines police officer, injured his left shoulder in October 1999. Sarkis was on duty as a patrol officer and was dispatched to a Des Plaines railroad crossing at which the gates were malfunctioning. Des Plaines has about 30 railroad crossings at which traffic is often disrupted when the crossing gates lower in the absence of an approaching train.

Sarkis lifted the railroad gate and inserted a wooden block to keep the gate up and allow traffic to proceed through the crossing. He and other officers keep the wood blocks in their squad cars for that purpose and were instructed how to block the gates in the upright position.

As Sarkis lifted the gate with his left hand, his foot slipped in mud, and the crossing gate dropped onto his left shoulder. Sarkis felt a “pop” in his shoulder, and his left arm became numb. In the following weeks, Sarkis sought medical treatment and was diagnosed with a torn rotator cuff. Sarkis completed one prescribed physical therapy session in December 1999. Sarkis returned to full duty and injured his left shoulder again in July 2000 while jumping over a chain-link fence in pursuit of a suspect. He had surgery on that shoulder in 2003.

The Board also heard the testimony of James Prandini, the Des Plaines chief of police, who stated that Des Plaines officers are often called to crossings to lift the gates when no trains are nearby. Because of the recurrent problem, a group of citizen volunteers known as “Citizens on Patrol” is trained to lift the gates and insert the wood blocks. Other emergency management personnel also lift and prop up the crossing gates and, in addition, Prandini has observed other people lifting the crossing gates, although he stated that they are “not supposed to” do so.

Regarding the incident in question, Prandini could not confirm that Sarkis was dispatched to the railroad crossing to raise the gate, stating that Sarkis may have encountered the downed gate on his own. Although Sarkis stated that he received instruction on how to prop up malfunctioning railroad gates, Prandini said officers are not shown how to use the wood blocks.

In 2003, Sarkis applied for a line-of-duty disability pension. In a written decision issued on September 14, 2004, the Board found that although Sarkis was injured in both the crossing gate incident and the suspect chase in 2000, his “present injury was caused by the 1999 railroad gate incident.” The Board found that Sarkis had a “recurrent, chronic left shoulder rotator cuff tear” that prevented him from performing his job as a police officer.

The Board noted that “non-sworn volunteers and ordinary citizens do frequently hold up railroad gates” and further noted Prandini’s testimony that police are not instructed how to raise the gates. The Board concluded that the railroad crossing gate incident did not occur “in the performance of an act of duty,” as defined in the Illinois Pension Code.

Sarkis sought administrative review of the Board’s decision. On June 7, 2005, the circuit court held that the Board’s determination that Sarkis’s disability arose from the 1999 railroad gate incident was not against the manifest weight of the evidence. However, the circuit court concluded that, contrary to the Board’s decision, Sarkis’s raising of the crossing gate constituted the performance of an “act of duty” and that Sarkis therefore was entitled to a line-of-duty disability pension. Defendants now appeal that order.

ANALYSIS

The Illinois Pension Code (40 ILCS 5/1 — 101 et seq. (West 2002)) provides different pension benefits depending on the circumstances of a police officer’s disability. An officer who is physically or mentally disabled “as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty” is entitled to a “line-of-duty” pension equal to 65% of the salary attached to his or her rank. 40 ILCS 5/3 — 114.1 (West 2002). An officer disabled “as a result of any cause other than the performance of an act of duty” is entitled to a disability pension of 50% of the applicable salary. 40 ILCS 5/3 — 114.2 (West 2002). Here, Sarkis filed an application for a “line-of-duty” pension under section 3 — 114.1 and requested, alternatively, that the Board award him an “off-duty” pension if it determined he was not eligible for the larger pension. The Board found that because Sarkis’s injury did not occur in the performance of his police duty, he should receive an “off-duty” disability pension under section 3 — 114.2.

The Board and the City of Des Plaines have filed separate briefs on appeal, and the City, in particular, argues at length that the circuit court applied an incorrect standard of review. However, in an appeal from a circuit court’s judgment in an administrative review proceeding, this court reviews the decision of the administrative agency, not the decision of the circuit court. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 531, 870 N.E.2d 273, 292 (2006).

Although the testimony of Sarkis and Prandini was slightly contradictory, the relevant facts are not in dispute. As to what standard of review this court should apply to the Board’s decision, defendants contend that this appeal presents a mixed question of law and fact, i.e., the legal effect of the facts presented regarding Sarkis’s injury, and that the Board’s decision is to be disturbed only if clearly erroneous. Sarkis responds that our review should be de novo because it involves the interpretation of the statutory term “act of duty.”

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Sarkis v. City of Des Plaines, 882 N.E.2d 1268, 378 Ill. App. 3d 833 (Ill. Ct. App. 2008).

882 N.E.2d 1268 (Sarkis v. City of Des Plaines) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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