Village of Hanover Park v. Board of Trustees of the Village of Hanover Park Police Pension Fund

2021 IL App (2d) 200380

• Court: Appellate Court of Illinois
• Decided: May 28, 2021
• Docket: 2-20-0380
• Status: Published

Opinion

2021 IL App (2d) 200380 No. 2-20-0380 Opinion filed May 28, 2021 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE VILLAGE OF HANOVER PARK, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellant, ) ) v. ) No. 19-MR-1250 ) THE BOARD OF TRUSTEES OF THE ) VILLAGE OF HANOVER PARK ) POLICE PENSION FUND, THE ) METROPOLITAN ALLIANCE OF ) POLICE CHAPTER 102, RICK COLUCCI, ) ANTHONY KONECK, MICHAEL ) KOZENCZAK, CINDY LEON, and ) JENNIFER SMITH, ) Honorable ) Bonnie M. Wheaton, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Zenoff concurred in the judgment and opinion.

OPINION

¶1 This matter comes before us on administrative review from the circuit court of Du Page

County, which affirmed the decision of defendant the Board of Trustees of the Village of Hanover

Park Police Pension Fund (Board) that holiday pay under the collective bargaining agreement

(CBA) dated May 1, 2013, to April 30, 2016, between plaintiff, the Village of Hanover Park

(Village), and defendant the Metropolitan Alliance of Police Chapter 102 (MAP), is pensionable

salary for purposes of calculating pension benefits. Individual defendants Rick Colucci, Anthony 2021 IL App (2d) 200380

Koneck, Michael Kozenczak, Cindy Leon, and Jennifer Smith (collectively, retired officers), are

retired patrol officers of the Village’s police department, were members of MAP, and are

represented by MAP on appeal.

¶2 The Village now appeals, contending that the Board’s decision was clearly erroneous.

MAP, the Board, and the retired officers (collectively, defendants) have filed a joint brief in

opposition. Because the evidence before the Board conclusively established that holiday pay under

the CBA is not “fixed” compensation as defined in section 4402.30 of Title 50 of the Illinois

Administrative Code (Administrative Code) (50 Ill. Adm. Code 4402.30 (eff. Apr. 9, 1996)), we

reverse.

¶3 I. BACKGROUND

¶4 The Board is an administrative agency created under section 3-128 of the Illinois Pension

Code (Pension Code) (40 ILCS 5/3-128 (West 2018)). As authorized by section 3-132 of the

Pension Code (id. § 3-132), it controls and manages the Village of Hanover Park Police Pension

Fund (Pension Fund), and it administers retirement benefits to the Village’s retired police officers.

MAP represents the full-time police patrol officers below the rank of sergeant within the Village’s

police department.

¶5 The distribution of and eligibility for holiday pay for police patrol officers employed by

the Village is established in article 6 of the CBA. Section 6.1 of the CBA establishes a list of nine

days that “[a]ll police patrol officers covered by [the CBA] shall have *** considered as holidays.”

Section 6.2, in turn, generally governs how holiday pay is awarded to patrol officers. It provides,

pertinently:

“All police patrol officers shall receive eight (8) hours of holiday pay at their

straight time hourly rate whether the holiday is worked or is a regularly scheduled day off.

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Payment for the nine (9) holidays during a calendar year shall be made the first payroll

period of November. Payment shall be made in a “lump sum” and shall be included in the

officer’s regular payroll check. Payment shall be based on the straight time hourly rate at

the time of the holiday for each respective police patrol officer. Appropriate deductions

shall be withheld.”

¶6 Section 6.3 governs the eligibility requirements for police patrol officers to receive holiday

pay. Although the instant dispute concerns the CBA in effect from May 1, 2013, to April 30, 2016,

the parties agree that section 6.3 was utilized in the previous collective bargaining agreements

between them and that this section has remained unchanged since at least 2011. Section 6.3

provides:

“In order to be eligible for holiday pay, a police patrol officer must work his/her

last full scheduled working day preceding and the first full scheduled working day

immediately following the day observed as a holiday unless the employee’s total absence

from work is excused by his/her Department Head and is chargeable to an authorized paid

leave. Authorized paid leave shall include vacation, personal day, compensatory time,

employment disability leave of less than six months, or approved sick leave. Employees

who are off work due to illness, but have insufficient sick time to cover the illness, who

are suspended, who are on an off-duty disability or employment disability in excess of six

months, who are on pension, or any other inactive payroll status shall not be eligible for

holiday pay.”

¶7 For clarity, we outline in chronological order the pertinent bargaining history between the

parties, as well as the several instances when the Public Pension Division (Pension Division) of

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the Illinois Department of Insurance (Department) weighed in on the general issue presented in

this appeal.

¶8 A. Department Audit and the Village’s Response

¶9 Between 2009 and 2010, the Pension Fund underwent a compliance audit by its regulator,

the Pension Division. See 40 ILCS 5/1A-104 (West 2008) (“[t]he Division shall make periodic

examinations and investigations of all pension funds established under this [Pension] Code and

maintained for the benefit of employees and officers of governmental units in the State of Illinois”).

As part of its examination, the Pension Division “spot checked” pension deductions from the salary

of active participants of the Pension Fund under the then-current CBA, which was in effect from

November 1, 2005, to October 31, 2008.

¶ 10 In a written report dated February 22, 2010, the Pension Division concluded, pertinently,

that holiday pay under the then-current CBA was pensionable salary. 1 In reaching this

determination, the report quoted at length section 6.2 of the then-effective CBA, which it noted

provided all patrol officers with holiday pay for nine enumerated holidays. The report also noted

that section 6.2 stated that “appropriate deductions shall be withheld; however, police pension

deductions shall not be withheld.” The report found, however, that “in the above circumstances

this type of pay is considered salary, in accordance to [sic] Section 4402.30” of Title 50 of the

Administrative Code. The report concluded that holiday pay under the then-current CBA should

have been considered compensation for purposes of calculating pension contributions and pension

1 The written report contained several other findings and specific recommendations for the

Board to ensure compliance with the Pension Code, but those findings and recommendations are

not pertinent to the appeal.

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benefits. In a letter enclosed with the report, the Pension Division invited the Board to respond in

writing to indicate whether it agreed with the findings or, if it did not agree with the findings, the

Board could request a hearing prior to the report being made available to the public.

¶ 11 The Board thereafter disagreed with the findings of the report regarding holiday pay,

among other findings not relevant here. Specifically, the minutes from the Board’s April 20, 2010,

meeting, at which the Board discussed the report at length, state that the “[t]he [B]oard determined

holiday pay was not apart [sic] of base pay and was a contractual agreement the [V]illage pays to

police officers.” On May 24, 2010, Board president George Sullivan sent a letter to the Pension

Division documenting the Board’s disagreement with the report findings. Pertinently, the letter

stated, “[t]he Board discussed this with representatives from the Village Human Resource

Department and [MAP]. It was determined that Holiday Pay is a contractual obligation between

the Village *** and is not considered base pay.” Sullivan enclosed a copy of article 6 from the

then-current CBA with the letter.

¶ 12 On June 23, 2010, the Pension Division replied that it would place Sullivan’s letter “on

file,” but it stated that it denied several of Sullivan’s objections, including the Board’s objection

concerning holiday pay. It explained, “[t]he Board of Trustees of the Hanover Park Police Pension

Fund in conjunction with Illinois statutes should be the sole arbitrators as to what salary is

pensionable and what is not.” 2

2 The Village posits that this comment is responsive to the portion of Sullivan’s letter where

he stated that the Board discussed the matter with the Village’s human resources department and

MAP.

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¶ 13 Based on the Board’s determination that holiday pay was not pensionable, the Village

continued not to withhold pension contributions from holiday pay and calculated the pensions of

its retiring officers using salary figures that did not include holiday pay.

¶ 14 B. Negotiations Between the Village and MAP Leading to the CBA

¶ 15 In March 2013, the Village and MAP engaged in negotiations for a successor agreement to

the CBA that was in effect from 2011 to 2013. Using the prior agreement as a starting point, MAP

initially proposed, pertinently, that (1) the phrase “[h]owever, police pension deductions shall not

be withheld” be removed from section 6.2 and (2) section 6.3 be removed in its entirety. On

September 16, 2013, the parties executed a “tentative agreement,” wherein they agreed to remove

from section 6.2 the phrase “[h]owever, police pension deductions shall not be withheld.”

However, the parties agreed to leave section 6.3 in the agreement, unchanged. As such, under the

tentative agreement, the only revision to article 6 of the CBA was the removal of the prohibition

on the Village from withholding pension contributions from its officers’ holiday pay. The tentative

agreement was later incorporated into the ratified CBA.

¶ 16 To clarify and emphasize the agreed-upon amendment to section 6.2, we recite section 6.2

in its entirety as it appeared in the prior agreement, but we strike through the language that was

removed from the CBA:

“Section 6.2 All police patrol officers shall receive eight (8) hours of holiday pay

at their straight time hourly rate whether the holiday is worked or is a regularly

scheduled day off. Payment for the nine (9) holidays during a calendar year shall

be made the first payroll period of November. Payment shall be made in a ‘lump

sum’ and shall be included in the officer’s regular payroll check. Payment shall be

based on the straight time hourly rate at the time of the holiday for each respective

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police patrol officer. Appropriate deductions shall be withheld, however, police

pension deductions shall not be withheld. It is understood and agreed that any

officer terminating between the date this lump sum payment is made and the

following December 31st, shall have deducted from his/her final pay check any

payments already received for any Village holiday in November and December

which occurs after the effective date of the officer’s termination.”

¶ 17 MAP’s negotiator, Richard Reimer, later explained during arbitration proceedings that

MAP sought to modify section 6.2 to compel the Village to withhold pension contributions from

each officer’s holiday pay so that MAP could then seek a determination from the Board regarding

whether holiday pay under the CBA was pensionable. Reimer explained,

“All we want to do right now is we want to crawl before we can walk. We need to have the

[pension contribution] deductions right now. According to the language of [section] 6.2,

there [are] no deductions, so we had a long talk [during negotiations with the Village] about

that.”

He continued,

“I knew during these negotiations that I wasn’t going to hit a home run and get the Village

to say, ‘a-ha, it’s pensionable.’ All I wanted them to do was take the first step and withhold

the 9.91% [in statutory pension contributions per section 3-125.1 of the Pension Code (40

ILCS 5/3-125.1 (West 2012))]. That way, once I had a 9.91% withholding *** I could go

to the pension board. And if [the Board] didn’t agree to accept that [holiday pay] was

pensionable, what I would do then was file a declaratory judgment action against the

pension board.”

He further explained that

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“it was not the intention of this [March 2013] bargaining session to have this village agree

that holiday pay was pensionable. *** I understood that wasn’t what we were talking about.

I just communicated the first step we needed to address is that we need to have withholdings

because without the withholdings there can’t ever be any pensionable salary of holiday

pay.”

¶ 18 During negotiations, as found by the arbitrator, Village attorneys “made clear” statements

to MAP that the Village did not agree to make holiday pay pensionable, and they stated their belief

that holiday pay was not pensionable, because section 6.3 of the CBA had not changed. The Village

did not believe that the removal of the language from section 6.2 would achieve the result MAP

was seeking, because receipt of holiday pay remained conditioned on the officer meeting the

eligibility requirements in section 6.3 (which remained unchanged) and was therefore not

pensionable under the Pension Code.

¶ 19 On October 15, 2013, the Board unanimously entered into its minutes a letter drafted by

Sullivan to the Board concerning holiday pay. He wrote the letter “so that it can be reviewed and

placed into the minutes of the *** Board [m]eeting.” Sullivan wrote, pertinently:

“The *** Board[’]s [a]ccounting [f]irm *** advised the [holiday] pay was not pensionable

because *** section 6.3 of the current [CBA] allowed for management to deny an officer

holiday pay for certain criteria. The accounting firm’s decision was also verified by Scott

Brandt[,] Chief Administrator for [the Pension Division]. I immediately contact[ed]

[Brandt] on September 20, 2013, concerning this issue and advised him that the fund

received non-compliance *** for this same reason. I advised Mr. Brandt of my rebuttal

letter and he stated that it was his view that the examiner in 2009 did not completely view

*** Section 6.3. He further advised [that] if [section 6.3] was examined, the fund would

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never have been found non-compliant for holiday pay. Mr. Brandt advised he could not

reverse the earlier audit, but would make notation of our conversation in the file so that

future auditors would be aware of the correction, and that the 2009 audit finding would not

be used against the fund. *** I am very happy with this finding and that [the Board] ***

reviewed the *** audit thoroughly and made the proper decision when we rebuffed the

audit’s original findings.”

¶ 20 C. Pension Division’s January 2015 Advisory Opinion

¶ 21 On December 4, 2014, the Village sent to the Pension Division a letter requesting an

advisory opinion concerning “whether this annual [holiday pay] payment is pensionable or not.”

See 40 ILCS 5/1A-106 (West 2014) (which permits the Pension Division to “render advisory

services to the pension funds on all matters pertaining to their operations”). In the letter, the Village

stated that it “has always treated [holiday] pay as non-pensionable[,] and the pay has not been

calculated as part of the employee’s base wage.” The Village enclosed with the letter a copy of the

CBA, and it highlighted that section 6.3 set forth the “eligibility requirements” officers must meet

to receive holiday pay. As defendants noted before the Board and on appeal, the letter did not

disclose that the eligibility requirements in section 6.3 of the CBA “referencing work on the day

before and the day after a holiday” were not enforced from 2007 through 2014, as the parties later

stipulated at arbitration.

¶ 22 In a reply dated January 28, 2015, and drafted by Brandt, the Pension Division opined “that

the language in Article Six, Holidays, Section 6.3, of the [CBA] attached to your December 4,

2014 letter, disqualifies the holiday pay granted under Section 6.2 of the [CBA] from being

considered part of salary for pension purposes.” The Pension Division explained that “[s]ection

6.3 does not meet the definition of ‘[f]ixed’ ” under the Administrative Code because it “is not a

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predetermined amount which can be determined through an examination of the appropriation

ordinance, plans or agreements establishing salary.” See 50 Ill. Adm. Code 4402.30 (eff. Apr. 9,

1996). As such, in the Pension Division’s view, “holiday pay [under the CBA] is not to be

considered salary for pension purposes.” As highlighted by the Village on appeal, this advisory

opinion is consistent with Brandt’s earlier statements to Sullivan as memorialized in the memo

placed into the Board’s meeting minutes on October 15, 2013.

¶ 23 D. MAP Prevails at Arbitration

¶ 24 Following the ratification of the CBA, the Village did not deduct any pension contributions

from any officers’ holiday pay in November 2013, November 2014, or November 2015, and

several bargaining unit members filed near-identical grievances concerning this issue. These

grievances reflected MAP’s effort to compel the Village to withhold pension contributions from

holiday pay.

¶ 25 The parties agreed to consolidate the grievances, and an arbitration hearing was held on

May 19, 2016. The sole issue before the arbitrator was whether the removal from the CBA of the

prohibition against deducting pension contributions from holiday pay meant that the Village was

contractually required to deduct pension contributions from holiday pay. During arbitration, the

parties entered several stipulations. Pertinent here, the parties stipulated that, (1) “[f]rom 2007

through December 2, 2014, the portion of Section 6.3 referencing work on the day before and the

day after a holiday was not enforced and no deductions were made from holiday pay if an officer

failed to work the day before and/or after the holiday,” and (2) [s]ubsequent to December 2, 2014,

the amount of holiday pay paid has been dependent upon whether the officer worked the days

before and after the holiday.”

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¶ 26 On February 20, 2018, in a written award, the arbitrator found that the Village violated the

CBA by not withholding pension contributions from its police patrol officers’ holiday pay and he

concluded that the proper remedy was for the Village to retroactively withhold pension

contributions from holiday pay. Within the award, the arbitrator stated that he lacked the authority

to determine whether holiday pay under the CBA is pensionable under Illinois law. The Village

did not thereafter seek to vacate, modify, or correct the arbitration award pursuant to the Uniform

Arbitration Act (710 ILCS 5/1 et seq. (West 2018)).

¶ 27 E. The Board Hearing

¶ 28 On March 26, 2019, the Board conducted a hearing with respect to the treatment of holiday

pay as pensionable salary under the CBA. The hearing was the result of a joint request by the

Village and MAP following the Board’s receipt of near-identical letters from several retired

members of the Village’s police department, including the retired officers, requesting to have their

“pension payments *** adjusted to reflect the [arbitration] award along with all retroactive pay

being calculated and paid without delay.” One letter was read into the record during public

comment, but there was no further discussion of these individual retirees or their statuses in the

Pension Fund. Prior to the hearing, the Board trustees were provided with a joint exhibit package

prepared by the Village and MAP, which was entered into the record.

¶ 29 At the hearing, the Village urged the Board to conclude that holiday pay is not pensionable,

because holiday pay is not “fixed,” as that term is defined under the pertinent section of the

Administrative Code. The Village argued that a police patrol officer’s receipt of holiday pay is

wholly dependent on the officer meeting the eligibility requirements outlined in section 6.3. It

acknowledged that, between 2007 and 2014, it did not enforce the portion of section 6.3 that

precludes an officer from holiday pay eligibility if the officer did not “work his/her last full

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scheduled working day preceding and the first full scheduled working day immediately following

the day observed as a holiday unless the employee’s total absence from work is excused by his/her

Department Head and is chargeable to an authorized paid leave,” but it stressed that it had

rigorously enforced it since December 2014. In support, it highlighted multiple instances when

certain officers did not receive pay for particular holidays because they were ineligible under

section 6.3. The Village also argued that the period of nonenforcement of section 6.3 did not render

holiday pay under the CBA pensionable, and it noted that MAP had no argument as to why, after

2014, holiday pay should be deemed pensionable.

¶ 30 At the hearing, the Village relied heavily on the Pension Division’s advisory opinion

wherein it reviewed the CBA and concluded that section 6.3 disqualified holiday pay from being

considered part of salary for pension purposes. The Village stressed that the Board had to give

considerable deference to the Pension Division’s opinion, and it also pointed to similar opinions

the Pension Division issued to other cities within Illinois that involved similar contractual

provisions.

¶ 31 The Village also argued that, during negotiations prior to the ratification of the CBA, it

relied on section 6.3 for its position that holiday pay is not pensionable and it communicated that

position to MAP. Similarly, it stressed that MAP, during negotiations, abandoned its proposal to

eliminate section 6.3 from the CBA and that MAP understood that the Village did not believe that

holiday pay was pensionable.

¶ 32 The Village stressed that, for at least the prior 10 years, even the Board had maintained that

holiday pay is not pensionable. It noted that the Board entered into its meeting minutes both its

disagreement with the 2010 audit findings and the memo drafted by Sullivan summarizing his

September 2013 conversation with Brandt, who informed Sullivan that, in his view, the audit was

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flawed because the examiner failed to consider section 6.3 and, if he had, “the fund would never

have been found non-compliant for holiday pay.”

¶ 33 As a final matter, the Village asserted that the Board lacked jurisdiction to reconsider its

prior decisions concerning holiday pay, because the 35-day period for challenging those decisions

under the Administrative Review Law had lapsed.

¶ 34 MAP also offered oral argument at the hearing. Specifically, it asserted that the intent of

the parties’ agreement to revise section 6.2, as memorialized in the tentative agreement,

“obviously, was to make the officers’ nine holidays that they get *** part of the pension.” It argued

that said goal “had to be done in two steps,” the first of which was for the Village to deduct pension

contributions from holiday pay. 3

¶ 35 MAP agreed that, under Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546

(2009), the Board was required to give substantial weight to the Pension Division’s advisory

opinion unless its interpretation of the Pension Code was arbitrary, capricious, or manifestly

contrary to the statute. However, MAP argued that the Pension Division’s interpretation was

arbitrary, capricious, or manifestly contrary to the Pension Code because, in MAP’s view, the

opinion was premised on less than “full disclosure and complete evidence.” Specifically, MAP

3 MAP did not specify during argument before the Board what the second step was. We

note that, on administrative review, counsel explained the tentative agreement as follows:

“I was not successful [during negotiations leading to the CBA] in getting to what I refer to

as ‘step two.’ I wanted to get 6.3 out. But I felt *** if I could get *** 6.2 changed, I would

still have hope of maybe going before the *** Board and getting [the Board] to determine

whether or not this was pensionable salary.”

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stressed that, when the Village requested an advisory opinion from the Pension Division in

December 2014, it failed to disclose that it did not enforce, “[f]rom 2007 through December 2,

2014, the portion of [s]ection 6.3 referencing work on the day before and the day after a holiday[,]

*** and no deductions were made from holiday pay if an officer failed to work the day before

and/or after the holiday,” as the parties later stipulated at arbitration. MAP stressed that the Board

was similarly unaware of this fact when it concluded in 2010 that holiday pay was not pensionable.

¶ 36 In disputing the Pension Division’s conclusion in its advisory opinion that holiday pay

under the CBA is not “salary” for pension calculation purposes because section 6.3 does not meet

the definition of “fixed” under the Administrative Code, MAP argued, “[s]ure it’s fixed. All you’ve

got to do is look at section 6.2 and it will tell you that. And then look at the salary appendix of the

agreement—it will tell you the hourly rate of the officer. You can figure it out. It isn’t rocket

science.” MAP acknowledged that multiple police patrol officers did not receive holiday pay in

2015, 2016, 2017, and 2018, because they did not meet the eligibility requirements in section 6.3,

but it argued that the other officers should not be “punished” because some officers “didn’t live up

to the contract.”

¶ 37 Further, MAP argued that it is not difficult, administratively, to calculate the amount of

holiday pay for each officer—even “if an officer screws up and under 6.3 [is ineligible for holiday

pay due to an unexcused absence].” MAP suggested that, if an officer is ineligible for holiday pay

for a particular holiday, “[y]ou back that out. *** [It is] [e]asily ascertainable. You don’t have to

be a CPA.”

¶ 38 F. The Board’s Decision—Holiday Pay is Pensionable

¶ 39 After deliberating in a closed executive session, by a vote of 4 to 1, the Board concluded

that “holiday pay under the specific Collective Bargaining Agreement Dated May 1, 2013[,] to

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April 30, 2016[,] at issue is pensionable.” The Board issued its written decision on October 10,

2019, and it explicitly incorporated the joint exhibits and a transcript of the hearing, which it stated

were “part and parcel” of its written decision.

¶ 40 In support of its decision, the Board stated that it “accept[ed] the arguments of MAP that

the holiday pay component can be ascertained and treated as fixed and regular in light of the

specific facts and circumstances presented here.” Similarly, pointing to the definitions found in

section 4402.30 of Title 50 of the Administrative Code, the Board stated that, “under the specific

CBA at issue here, all elements have been established as to ‘Class,’ ‘Fixed,’ ‘Rank,’ ‘Regular,’

and ‘Salary.’ ” The Board specifically “took note of the prior practices of the Village” concerning

its nonenforcement of section 6.3 and concluded that “this holiday pay component was part of an

established police officer salary making it pensionable and thus requiring the Village to withhold

the necessary [pension] contribution.”

¶ 41 The Board was also persuaded by the fact that, during contract negotiations preceding the

ratification of the CBA, the parties agreed to strike from section 6.2 the phrase “[h]owever, police

pension deductions shall not be withheld,” such that the Village was no longer contractually

prohibited from withholding pension contributions from its officers’ holiday pay. In the Board’s

view, the removal of this language “reflected a bargained-for (or quid pro quo) term of the final

agreement between the Village and MAP,” and it represented “an enhancement to MAP’s

members.” Moreover, the Board “found significant and definitive” the conclusion of the arbitrator

that “the Village violated the *** [CBA] *** when it did not withhold the 9.91% pension

contribution from its Police Patrol Officers’ holiday pay,” and it noted that the Village did not

challenge the arbitration award.

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¶ 42 In discounting the Pension Division’s advisory opinion, the Board found that “[t]he

information provided to [the Pension Division] on the matters at issue was not complete[,] as

explained by MAP.” The Board did not specify what information it believed the Pension Division

was lacking when it issued the advisory opinion, but we presume that it was referring to the period

of nonenforcement of the portion of section 6.3 that would have made officers who failed to work

their last full scheduled working day before and after the observed holiday ineligible for holiday

pay unless the absence was excused. As noted, every officer under the CBA received full holiday

pay, regardless of whether they were eligible under section 6.3, as a result of this period of

nonenforcement. The Board’s written order concluded by stating that “this determination will

stand as its final order on this matter.”

¶ 43 G. Administrative Review

¶ 44 On November 7, 2019, the Village filed a timely petition for administrative review,

challenging the Board’s determination that “holiday pay under the specific Collective Bargaining

Agreement Dated May 1, 2013[,] to April 30, 2016[,] at issue is pensionable.” After briefing and

a hearing on June 11, 2020, the circuit court confirmed the Board’s decision. In announcing its

ruling from the bench, the circuit court acknowledged that “Department of Insurance rulings

should be given great weight,” but it noted that the instant controversy spawned several opinions

from the Pension Division, namely: the 2010 audit, Brandt’s opinion following the audit as

communicated to Sullivan, and the advisory opinion. The court stated that it would give the most

weight to the 2010 audit because it was “issued after a full and complete audit.” In addressing the

applicable language in the CBA, the court stated as follows:

“When [sections] 6.2 and 6.3 are read together, there is—it’s not entirely clear.

However, the holiday pay at their straight hourly rate is very clearly still in section 6.2 and

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it still says, ‘appropriate deductions shall be withheld.’ I don’t believe that the language of

[section] 6.3 renders that holiday pay to be—I’m searching for the right word—incapable

of being a regular workday. I’m still not finding the right word. But I believe that the

decision of the arbitrator did not rule on whether that holiday pay was pensionable. So, I

think that the Court has to refer back to the Department of Insurance audit report and

opinion which declares that holiday pay is pensionable. I think that the 35-day requirement,

it was not triggered until the appropriate time to bring—which was followed to bring this

before the Board.”

¶ 45 The Village timely filed a notice of appeal.

¶ 46 II. ANALYSIS

¶ 47 A. Jurisdiction

¶ 48 As a threshold matter, we must address the Village’s argument that the Board and, by

extension, this court lack jurisdiction to consider the instant controversy, because the 35-day

deadline for commencing an action to review a final administrative decision under the

Administrative Review Law has passed. See 735 ILCS 5/3-103 (West 2018); Bell v. Retirement

Board of Firemen’s Annuity & Benefit Fund, 398 Ill. App. 3d 758, 762-63 (2010). This argument

appears to be two-fold. First, the Village asserts that the Board lacks jurisdiction to revisit the

pension awards of the “individual defendants and other retirees,” because they did not file an action

for administrative review within 35 days of the Board’s initial determination of their pension

benefits. Second, pointing to the Board’s “formal action” on October 15, 2013, wherein it admitted

into its minutes Sullivan’s memorandum that concluded that holiday pay under the CBA “was not

pensionable,” the Village argues that the Board lacks “the jurisdictional ability to flip-flop on its

determination that holiday pay is not pensionable.” This jurisdictional question presents a question

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of law, and, as such, de novo review is appropriate. See Jelinek v. Retirement Board of the

Firemen’s Annuity & Benefit Fund, 392 Ill. App. 3d 372, 376 (2009).

¶ 49 Section 3-148 of the Pension Code (40 ILCS 5/3-148 (West 2018)), which applies to the

Board, provides that the Administrative Review Law governs the review of final pension board

decisions. See Sola v. Roselle Police Pension Board, 342 Ill. App. 3d 227, 230 (2003). “Because

the Pension Code provides that decisions of pension boards are subject to the Administrative

Review Law, the Board’s decision can be reviewed only pursuant to that law.” Id. (citing Rossler

v. Morton Grove Police Pension Board, 178 Ill. App. 3d 769, 773-74 (1989)). Section 3-103 of

the Administrative Review Law (735 ILCS 5/3-103 (West 2018)), which the Village relies on

exclusively in its jurisdictional argument, provides that “[e]very action to review a final

administrative decision shall be commenced by the filing of a complaint and the issuance of

summons within 35 days from the date that a copy of the decision sought to be reviewed was

served upon the party affected by the decision.” This 35-day limit is jurisdictional, and, as such,

pension boards lack the authority to reconsider final decisions beyond the expiration of the 35-day

period. Sola, 342 Ill. App. 3d at 230.

¶ 50 The term “administrative decision” or “decision” is defined in the Administrative Review

Law as “any decision, order or determination of any administrative agency rendered in a particular

case, which affects the legal rights, duties[,] or privileges of parties and which terminates the

proceedings before the administrative agency.” 735 ILCS 5/3-101 (West 2018). However, these

terms do not

“include rules, regulations, standards, or statements of policy of general application issued

by an administrative agency to implement, interpret, or make specific the legislation

enforced or administered by it unless such a rule, regulation, standard or statement of policy

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is involved in a proceeding before the agency and its applicability or validity is in issue in

such a proceeding.” Id.

¶ 51 At the outset, we note that the Village fails to identify anything in the record that

demonstrates precisely when the Board issued its final administrative decisions concerning the

pension applications of any individual defendant, namely, the retired officers. No formal written

decision memorializing the pension benefits for any of the retired officers appears in the record.

While we may deduce that the pension benefits awarded to the retired officers constitute final

administrative decisions by the Board (see Ray v. Beussink & Hickam, P.C., 2018 IL App (5th)

170274, ¶ 24), we simply have no idea when those benefits were awarded for purposes of

calculating the 35-day jurisdictional limit. The dates upon which the Board presumably awarded

pension benefits to the retired officers were not identified by any party during the hearing before

the Board or during oral argument before the circuit court on administrative review, and this

information is similarly absent from the Board’s written final decision and the Village’s petition

for administrative review. Because defendants have not argued otherwise, however, we assume

for the sake of argument that the 35-day deadline has passed for all five of the retired officers. Our

analysis of the Village’s 35-day jurisdictional argument does not end there, however.

¶ 52 As the First District recently stated in De Jesus v. Policemen’s Annuity & Benefit Fund,

2019 IL App (1st) 190486, ¶¶ 26-27, when pension or disability benefits are at issue, a party who

has not initiated timely administrative review may challenge a pension board’s action under two

limited circumstances: (1) when the party challenging the action was not a party to the underlying

administrative review action and the challenge is to a systematic miscalculation, as opposed to an

individual miscalculation, or (2) where the party challenging the systematic miscalculation can

point to a specific rule, regulation, standard, or statement of policy from the pension board itself.

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¶ 53 This case falls squarely within the second circumstance outlined in De Jesus. Put simply,

the instant controversy does not concern an individualized miscalculation, and the Village all but

concedes this point in arguing that the Board lacked jurisdiction to reevaluate “the annuity benefits

of the individual defendants and other retirees.” (Emphasis added.) The fact that the retired

officers were not the focus of the Board’s hearing is also highlighted by the Village’s appellate

brief. Specifically, the Village stressed that, during the hearing before the Board, “there was no

discussion whatsoever about these individuals or their status in the [Pension] Fund” beyond the

reading into the record of a letter drafted by a retired officer asking the Board to adjust their pension

benefits.

¶ 54 Instead, the matter before the Board represented a challenge by multiple officers, as well

as MAP (ostensibly on behalf of all of its member police officers), to convince the Board to, in the

Village’s words, “reverse its longstanding determination about the pensionablity of holiday pay.”

Under De Jesus, the Board’s systematic refusal to include holiday pay in its calculation of

pensionable salary based on its interpretation of the CBA represents “a specific rule, regulation,

standard, or statement of policy from the pension board itself.” The Village appears to concede

this point, too, because its argument that the Board took “formal action” on October 15, 2013, to

memorialize its interpretation of the CBA relative to holiday pay, if accepted, readily describes “a

specific rule, regulation, standard, or statement of policy from the pension board itself.” See De

Jesus, 2019 IL App (1st) 190486, ¶ 27.

¶ 55 It is well established that “[a] systemic miscalculation falls outside the definition of an

‘administrative decision’ under the review law. It is not a ‘decision, order or determination of any

administrative agency rendered in a particular case,’ but a ‘rule[ ], regulation[ ], standard[ ] or

statement[ ] of policy.’ ” Board of Education of the City of Chicago v. Board of Trustees of the

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Public Schools Teachers’ Pension & Retirement Fund, 395 Ill. App. 3d 735, 744 (2009) (quoting

735 ILCS 5/3-101 (West 2006)). Accordingly, the 35-day window for reviewing a final

administrative decision under the Administrative Review Law did not impede the jurisdiction of

the Board, nor does it impede our jurisdiction on appeal, because the controversy is rooted in a

theory of a systematic miscalculation by the Board stemming from a specific rule, regulation,

standard, or policy whose applicability or validity was not previously at issue before the Board.

We now turn to the merits.

¶ 56 B. Our Resolution

¶ 57 We begin by addressing the appropriate standard of review for the underlying controversy.

Section 3-148 of the Pension Code makes clear that judicial review of a decision by a police

pension board is governed by the Administrative Review Law (735 ILCS 5/3-101 et seq. (West

2018)). Our role in an administrative review case is to review the decision of the administrative

agency—not the determination of the circuit court. Marconi v. Chicago Heights Police Pension

Board, 225 Ill. 2d 497, 531 (2006). The applicable standard of review depends on whether the

question presented is one of law, one of fact, or a mixed question of law and fact. Id. at 532.

Rulings on questions of fact will be reversed only if they are against the manifest weight of the

evidence, questions of law are reviewed de novo, and mixed questions of law and fact are reviewed

under the “clearly erroneous” standard. Id. Regardless of the standard of review, a plaintiff to an

administrative proceeding bears the burden of proof, and relief will be denied if he or she fails to

sustain that burden. Id. at 532-33.

¶ 58 Notwithstanding the Village’s reliance on the deference that is afforded to advisory

opinions issued by the Pension Division, the parties appear to agree that this issue involves a mixed

question of law and fact such that the Board’s decision is subject to the “clearly erroneous”

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standard. As our supreme court has observed, this standard is “between a manifest weight of the

evidence standard and a de novo standard so as to provide some deference to the [agency’s]

experience and expertise.” City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d

191, 205 (1998). A decision is clearly erroneous “where the reviewing court, on the entire record,

is ‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger

Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001) (quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Although the “clearly erroneous”

standard is deferential, we will not “blindly defer” to the Board’s decision. AFM Messenger

Service, Inc., 198 Ill. 2d at 395.

¶ 59 The crux of the issue on appeal is whether holiday pay under article 6 of the CBA is “fixed”

compensation. This threshold question is paramount because, as explained below, the applicable

statutory and regulatory authority make clear that if police officer compensation is not “fixed,” it

is not “salary” for pension purposes.

¶ 60 As noted, the Board determined in its written decision that “holiday pay under the [CBA]

at issue is pensionable,” in part, because it found that “the holiday pay component [of the CBA]

can be ascertained and treated as fixed and regular in light of the specific facts and circumstances

presented.” This vague “finding of fact” lacks factual and legal support in the administrative

record. As such, we agree with the Village that the Board’s written decision was clearly erroneous

such that reversal is appropriate. In reaching this conclusion, we are guided by the straightforward

application of the underlying facts (which are largely uncontested) to the pertinent statutory

framework provided by the Pension Code as expounded in the Administrative Code.

¶ 61 Section 3-125.1 of the Pension Code governs pension contributions by police officers. It

requires each police officer to “contribute to the pension fund the following percentages of salary

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for the periods stated: *** beginning January 1, 2001, 9.91%. Such sums shall be paid or deducted

monthly.” 40 ILCS 5/3-125.1 (West 2018). This section goes on to define salary as

“the annual salary, including longevity, attached to the police officer’s rank, as established

by the municipality’s appropriation ordinance, including any compensation for overtime

which is included in the salary so established, but excluding any ‘overtime pay’, ‘holiday

pay’, ‘bonus pay,’ ‘merit pay’, or any other cash benefit not included in the salary so

established.” Id.

¶ 62 Pursuant to the authority granted in section 1A-103 of the Pension Code (40 ILCS 5/1A-

103 (West 2018)), the Department has promulgated rules for the administration and enforcement

of the Pension Code (50 Ill. Adm. Code 4402.10 (eff. Aug. 7, 1998)). As part of its rulemaking

authority, the Department has promulgated part 4402 of Title 50 of the Illinois Administrative

Code “to define the word ‘salary’ as used in Section 3-125 *** of the *** Pension Code as it

applies to pension funds formed pursuant to Article[ ] 3 *** of the *** Pension Code.” 50 Ill.

Adm. Code 4402.20 (eff. Aug. 7, 1998).

¶ 63 Pertinently, the Administrative Code defines salary for pension purposes as

“any fixed compensation received by an employee of a municipality that participates in one

of the pension funds established under Article 3 *** of the Illinois Pension Code, which

has been approved through an appropriations ordinance of the municipality. Salary is

received regularly and is attached to the rank or class to which the *** police officer is

assigned.” (Emphasis added.) 50 Ill. Adm. Code 4402.30 (eff. Apr. 9, 1996).

In turn, this section of the Administrative Code defines “fixed” as

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“payment in a predetermined amount which can be determined through an examination of

the appropriation ordinance, plans or agreements establishing salary.” (Emphasis added.)

Id.

The appellate court has similarly held that compensation must be “fixed” to constitute salary for

pension purposes. See Holland v. City of Chicago, 289 Ill. App. 3d 682, 689 (1997) (holding that

fringe benefits, such as holiday pay and health insurance, are not “fixed” and, thus, are not “salary”

under article 5 of the Pension Code, which governs police pension funds in cities of more than

500,000 inhabitants); Jahn v. City of Woodstock, 99 Ill. App. 3d 206, 209 (1981) (noting that

“salary” as used in article 3 of the Pension Code generally means a fixed annual or periodic

payment and does not include fringe benefits).

¶ 64 Here, holiday pay under article 6 of the CBA plainly is not “fixed,” because it is not “in a

predetermined amount which can be determined through an examination of the appropriation

ordinance, plans or agreements establishing salary.” Section 6.3 establishes the eligibility

requirements that a police patrol officer must meet to receive holiday pay for any of the nine

enumerated holidays listed in section 6.1. Again, section 6.3 states:

“In order to be eligible for holiday pay, a police patrol officer must work his/her

last full scheduled working day preceding and the first full scheduled working day

immediately following the day observed as a holiday unless the employee’s total absence

from work is excused by his/her Department Head and is chargeable to an authorized paid

leave. Authorized paid leave shall include vacation, personal day, compensatory time,

employment disability leave of less than six months, or approved sick leave. Employees

who are off work due to illness, but have insufficient sick time to cover the illness, who

are suspended, who are on an off-duty disability or employment disability in excess of six

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months, who are on pension, or any other inactive payroll status shall not be eligible for

Under a plain and ordinary reading of this section, unless the absence is excused and is chargeable

to an authorized paid leave, a police patrol officer is ineligible for holiday pay for a holiday if he

or she fails to work both (1) their last full scheduled workday before the observed holiday and

(2) their first full scheduled workday after the observed holiday. Moreover, police patrol officers

who are suspended, on a disability in excess of six months, or on a pension or other inactive payroll

status are ineligible to receive holiday pay.

¶ 65 The undisputed evidence presented to the Board established that, between 2015 and 2018,

approximately 12 police patrol officers did not receive holiday pay for certain holidays because

they were ineligible under section 6.3, in that the officers had an unexcused work absence on the

last full scheduled workday before and/or the first full scheduled workday after the observed

holiday. For example, the record demonstrates that five officers were ineligible for—and thus did

not receive—holiday pay for certain holidays in 2018, which represents more than 10% of the

officers covered by the CBA. Specifically, two officers did not receive holiday pay for President’s

Day, and three officers did not receive holiday pay for other holidays, namely: New Year’s Day,

Memorial Day, and Independence Day. These instances, where officers did not receive holiday

pay because they were ineligible under section 6.3 due to an unexcused work absence, conclusively

establish that this form of compensation is not “fixed,” because it is not “payment in a

predetermined amount.” Rather, the amount of holiday pay that an officer may receive under the

CBA varies based on the officer’s attendance record, among other factors. Of note, MAP stipulated

during arbitration that, “[s]ubsequent to December 2, 2014, the amount of holiday pay paid has

been dependent upon whether the officer worked the days before and after the holiday” and that

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an officer had recently received reduced holiday pay due to “an unpaid suspension [that was

served] on one holiday.”

¶ 66 During the hearing before the Board, MAP offered scant argument that holiday pay under

the CBA is “fixed.” Counsel stated, “[s]ure it’s fixed. All you’ve got to do is look at section 6.2

and it will tell you that. And then look at the salary appendix of the agreement—it will tell you the

hourly rate of the officer. You can figure it out. It isn’t rocket science.” This argument fails,

however, because it entirely disregards section 6.3 and the effect its operation has had on the

amount of holiday pay received by the patrol officers, as outlined above.

¶ 67 We also note that, during oral argument before the Board, counsel for MAP offered a line

of argument that, in fact, supports the conclusion that holiday pay under the CBA is not “fixed.”

Specifically, when counsel acknowledged that multiple officers did not receive holiday pay

between 2015 and 2018 because they were ineligible under section 6.3, rather than argue that

holiday pay is “fixed,” counsel argued that the other officers should not be “punished.” Counsel

asked, rhetorically,

“What about the other *** officers that were here? They got their holiday pay. Shouldn’t

they be entitled to *** have that count as [pensionable salary?] *** Are we going to

punish—because of one person [having an unexcused work absence]—are we going to turn

around and punish [the other officers]? That doesn’t make [holiday pay] conditional. ***

[All the officers] shouldn’t be punished because [some] didn’t live up to the contract.”

Defendants compound this error on appeal. For example, in their appellate brief, they state that

“[n]owhere in 6.3 is there a requirement that all 47 members of [MAP] had to meet the

requirements in order to receive holiday pay. In other words, what if only one person called in sick

during the calendar year[?] [D]oes that mean that the other 46 [MAP] members, who did not call

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in sick, should not receive their holiday pay added onto their base salary at the time of retirement

or disability?”

¶ 68 Counsel also argued before the Board that the amount of holiday pay for each patrol officer

can be easily determined, and he asked, rhetorically, “how hard is it, administratively, to figure

out what the benefit is, *** to determine who gets *** holiday pay and not?” Counsel continued,

“if an officer screws up, and under 6.3 doesn’t work it, [it is] real[ly] simple: You back that out.”

Counsel hypothesized, “[m]aybe he gets eight paid holidays. Easily ascertainable. You don’t have

to be a CPA.”

¶ 69 These arguments and hypothetical examples have the practical effect of affirmatively

demonstrating that holiday pay under the CBA is not fixed. Notwithstanding counsel’s arguments

regarding “punishment” and the ease with which holiday pay can be determined for individual

patrol officers, these arguments show that holiday pay is not fixed, because it is not in a

“predetermined amount which can be determined through an examination of the appropriation

ordinance, plans, or agreements establishing salary.” 50 Ill. Adm. Code 4402.30 (eff. Apr. 9,

1996). Defendants note in their brief that, if 1 member of the 47-person bargaining unit does not

receive holiday pay because they are ineligible, the remaining 46 officers, who are eligible, would

receive holiday pay. This example establishes that such pay is neither fixed nor predetermined.

Moreover, counsel’s argument that the amount of an individual officer’s holiday pay can be easily

determined by reviewing the officer’s work attendance history and other personnel records

reinforces the conclusion that such pay is not in a predetermined amount. There is no basis to treat

variable holiday pay as pensionable salary where, as is the case here, the parties agree that officers

were ineligible for such remuneration based on their work attendance and the straightforward

application of the CBA.

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¶ 70 On appeal, defendants similarly offer little argument that holiday pay under the CBA is

“fixed.” Rather, they repeatedly emphasize that the Board “accepted the arguments of [MAP] as

to how the holiday pay component could be ascertained and treated as fixed and regular in light of

the specific facts and circumstances presented.” This observation offers nothing in the way of an

affirmative argument that holiday pay is fixed—especially when one considers MAP’s unrobust

argument on this point before the Board.

¶ 71 Like the Board in its written decision, defendants improperly sidestep the threshold

question of whether holiday pay under the CBA is “fixed” by pointing to the Village’s seven-year

period of nonenforcement, from 2007 to 2014, pertaining to “the portion of Section 6.3 referencing

work on the day before and the day after a holiday.” 4 Specifically, defendants assert that the parties

“have a binding past practice of not enforcing section 6.3” such that this section “is a nullity and

not dispositive of this issue.” We note, however, that although MAP stressed the period of

nonenforcement during the hearing before the Board, the argument that section 6.3 is a “nullity”

appears to be a new argument on appeal. In any event, the argument fails for several reasons.

¶ 72 First, the “nullity” argument appears at odds with other segments of defendants’ brief.

Specifically, after stressing the nonenforcement period, defendants clarify that they are not

4 Although we are cognizant that our role is to review the decision of the Board and not

that of the circuit court on administrative review (see Marconi, 225 Ill. 2d at 531), we observe that

the circuit court had similar difficulty in explaining its ruling, because it did not address the

threshold issue of whether holiday pay under the CBA is fixed. The circuit court stated, “I don’t

believe that the language of [section] 6.3 renders that holiday pay to be—I’m searching for the

right word—incapable of being a regular workday. I’m still not finding the right word.”

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“seeking to have this Court declare a ‘past practice.’ ” Rather, “[t]he sole purpose of highlighting

this fact is to demonstrate that the [Pension Division] was not made aware of this material fact”

when it issued the advisory opinion. Moreover, defendants acknowledge in their brief that,

following ratification of the tentative agreement, “[t]he provisions of [section] 6.3 of the CBA

remained in effect,” and they describe section 6.3 as governing the requirements “in order to be

eligible for holiday pay.” Their “nullity” argument is also inconsistent with their acknowledgment

that the Village has routinely enforced section 6.3 since December 2014 such that police patrol

officers did not receive holiday pay for particular holidays in 2015, 2016, 2017, and 2018 because

they did not meet the eligibility requirements in section 6.3, and there is no evidence that MAP or

any officer has grieved or otherwise complained about this enforcement. Second, defendants fail

to cite any pertinent authority to support their assertion that section 6.3 is a nullity based upon the

Village, in defendants’ words, “waiving section 6.3 of the CBA” in prior years. See Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020). Third, as stressed by the Village, defendants’ past practice argument

conflicts with express language in the CBA. Specifically, article 25 is titled “Entire Agreement,”

and it provides, pertinently, that “[t]his Agreement, upon ratification, supersedes all prior practices

and agreements, whether written or oral, *** and constitutes the complete and entire agreement

between the parties.” There is no basis to interpret the CBA as if section 6.3 is not included in it,

as defendants appear to advocate, notwithstanding the Village’s nonenforcement of this provision

in years past.

¶ 73 The conclusion that holiday pay under the CBA is not pensionable because it is not fixed

is further supported by the Pension Division’s advisory opinion. Under the Pension Code, the

Pension Division is authorized to “render advisory services to the pension funds on all matters

pertaining to their operations and shall recommend any corrective or clarifying legislation that it

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may deem necessary.” 40 ILCS 5/1A-106 (West 2018). “Where *** the legislature expressly or

implicitly delegates to an agency the authority to clarify and define a specific statutory provision,

administrative interpretations of such statutory provisions should be given substantial weight

unless they are arbitrary, capricious, or manifestly contrary to the statute.” Roselle, 232 Ill. 2d at

559.

¶ 74 At the request of the Village, the Pension Division interpreted the CBA and concluded that

“[s]ection 6.3 *** disqualifies the holiday pay granted under [s]ection 6.2 *** from being

considered part of salary for pension purposes for the Hanover Park police officers. Section 6.3

does not meet the definition of ‘[f]ixed’ ” under the Administrative Code because it “is not a

predetermined amount which can be determined through an examination of the appropriation

ordinance, plans or agreements establishing salary,” such that “holiday pay [under the CBA] is not

to be considered salary for pension purposes.”

¶ 75 Defendants make no argument in their brief that the Pension Division’s advisory opinion

is either arbitrary, capricious, or manifestly contrary to the statute. Instead, they assert that the

opinion was flawed because the Pension Division was unaware that a portion of section 6.3 was

not enforced from 2007 to 2014. This argument, too, fails because it is dependent on defendants’

unsupported assertion that the parties had a “binding past practice of not enforcing [s]ection 6.3 of

the CBA,” which is expressly refuted by article 25 of the CBA, which makes clear that the CBA

is the “[e]ntire [a]greement” between the parties and “supersedes all prior practices and

agreements.”

¶ 76 Defendants assert that, rather than deferring to the Pension Division’s advisory opinion—

prepared in January 2015—the outcome here should align with the findings included in the Pension

Division’s audit report—prepared in February 2010— wherein it concluded that holiday pay under

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the CBA is salary under section 4402.30 of the Administrative Code. This argument misses the

mark. As stressed by the Village, while the audit report quoted section 6.2 of the CBA at length,

the report bears no indication that the Pension Division considered, or was even aware of, section

6.3. Indeed, the Pension Division appeared to acknowledge this oversight when Brandt

communicated to Sullivan that, in his view, the examiner in 2009-10 did not completely consider

section 6.3 and that the Pension Fund would have not been found noncompliant regarding holiday

pay if section 6.3 had been considered. The Pension Division’s advisory opinion, in essence,

memorialized Brandt’s earlier statements to Sullivan and confirmed the view of the Pension

Division that holiday pay under the CBA is not pensionable. Put simply, there is no reasonable

basis to defer to the audit findings regarding holiday pay when those same findings were

subsequently rejected by the Penson Division, twice. In any event, there is no indication that the

Board was influenced by the audit because, apart from including it in the list of documents

contained in the joint exhibit package prepared by the parties, the Board neither mentioned nor

made findings pertaining to the audit in its written decision.

¶ 77 Because we conclude that holiday pay under the CBA is not “fixed” and thus is not

pensionable salary, we need not evaluate the Board’s additional findings that such holiday pay

meets “all elements *** as to ‘Class,’ *** ‘Rank,’ and ‘Regular’ ” under section 4402.30 of Title

50 of the Administrative Code.

¶ 78 III. CONCLUSION

¶ 79 For the reasons stated, the Board’s determination that “holiday pay under the specific

Collective Bargaining Agreement Dated May 1, 2013[,] to April 30, 2016[,] at issue is

pensionable” was clearly erroneous. Accordingly, we reverse the judgment of the circuit court of

Du Page County affirming the Board’s decision.

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¶ 80 Circuit court judgment reversed.

¶ 81 Board decision reversed.

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No. 2-20-0380

Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 19-MR- 1250; the Hon. Bonnie M. Wheaton, Judge, presiding.

Attorneys Robert J. Smith Jr. and Paul Denham, of Clark Baird Smith LLP, for of Rosemont, for appellant. Appellant:

Attorneys Robert M. Zelek, of Park Ridge, for appellee Board of Trustees of for the Village of Hanover Park Police Pension Fund. Appellee: Richard J. Reimer, of Reimer Dobrovolny & Labardi PC, of Hinsdale, for other appellees.

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