capital development board two thousand and twelve january she signed the contract contract specifically was approved by the board set for all of those terms she performed a contract she did everything required of her about seven months after she had begun drawing her pension she received some sort of notice cation from the capital development board which purportedly says that well when they had offered the contract somehow i thousand dollars and then to repay about eight thousand dollars that back was based upon the information that was iraq but now serves as the change pursuant to a contract the then our constitution article thirteen section five is fundamentally clear that you cannot diminish their pension that there's other information ssion pension code that basically says the same thing but doesn't specifically list in its ordinance the fact that you can't take pension benefits that's of no avail means nothing because you have a constitution that's specific precludes it so the arguments with respect to whether or not the comptroller statute the pension code came first really has no real play in this whole thing because  see that that question's a good question because the second argument there's nothing about correcting the pension benefit the state that has anything to do with the capital doubling or trying to get thirty thousand dollars back in a country so your question is a very good question it goes to the second portion of this does serve under the new mandate of the statute that was issued in august of two thousand and fourteen had the ability to correct state i submit to you may not agree you don't agree i'll probably lose that portion of the case but a mistake is not something that the capital development or can unilaterally decide well we should've entered into a contract with you if it's in  mistake if service provides the wrong from i'm sorry if accounting development or vice wrong information wrong employ wrong data they did something in the calculation absolutely i think that is clear but you cannot simply unilaterally say oh we should have given you the contract that we gave that you fully perform and then two years later we're going to come back and say that's a mistake this time states yours that they can stay in the calculation that given they decided unilaterally to direct the comptroller to go and get the money from jane for their contract damages really important chunder stand that contract damages the thirty thousand dollars they say we should have paid even though we signed on it we greeted you fully perform you know and again that the reason they did this in my humble opinion is that if they filed a lawsuit to try to collect this any trial judge would have probably granted it to six fifteen motions to dismiss you can't after the fact say well i made a mistake even though some employee fully performed we fully approved it it was a unilateral stay and then two years later back and say you know i shouldn't pay that much money to build my fence that's  benefits that one would receive for work i'm sure time periods things of that nature i would i never you know i receive some of the stuff i write try to read it from there actuarial perspective and i'm not going to profess to actually understood but it's something to do with the way they wanted to make payments to give certain benefits for people that work different shifts different hours something like that i've apologized but i read the stuff and i was a stay exactly what their plan was but how long was it just well they claimed it was from january of two thousand and twelve that was the date of the contract until she retired may of two thousand and fourteen so they're saying well we signed a contract you are or prove that every pension co they try to make some adjustments with respect how to get rid of these certain poise because it benefited them if they took early retirement so we're going to give you a kicker here you can get more of your pension no such comparable statement of fact is no such comparable statute this is simply a unilateral decision by catabolic board that says you know what when we when we gave you this contract we really should have thought it differently and we should have maybe given you some of these additional perks although we did and we jane accepted and jane performed and two and a half years later then they come back and say you know you can't do this so you relate to two separate issues here one funds for the materials or for some additional labor and then after he does it two years later thanks you know what i want to redo that contract and it's ridiculous to me and i don't think there's a judge in the world that would this would survive to six fifteen motion if we ever had a hearing of course there thousand dollars claim which if you agreed that this wasn't really a if this was a mistake that he thousand then if you follow logically ok it might be subject to coming back based upon the new pension statute but there's nothing to suggest they could ever men and pay thirty seven thousand dollars that had nothing to do with the pension calculation this had to do with very plain hey we should have entered into the contrary we perform we created and you perform  employment jobs would be and what additional in this problem allo the bowl consideration for this edition of time but she did everything that the contract with parker to do she did everything that they anticipated she would do she performed to fully she got paid fully and then two and half years later they say will you should let me suggest a hypothetical where you have a contract similar to what your client had here but included in the contract was a monthly stipend for travel to anchorage alaska she knows full well she does her job doesn't them in practice travel to alaska but there it is nonetheless and that's included in her pay and shouldn't servers be allowed to come back in and identify that mistake well she did because it again it's you saying that she earned it did she hurt i think so i mean again i don't think faction or hypothetical mass pax here i don't think there was like you suggested a stipend to go to alaska that you really never form i don't think those sort of conditions were separable in that sense she had a contract and i think perform and say well this is how we structure the salary and but we we should have done that we should have struck that i don't think you can do that but again i think it's far separate issue with respect to whether or not you development or paid her money based upon something that they should have done or something along those lines it's still based upon performance a mistake in this context in the cases that i've written because lousy case and other cases wrong agree they clearly sa is something of a consolation it's where the capital development board gives wrong information they gave proper information because the information based on a contract they wrote their board approved my client excepted and she performed there was no mistake there was no mathematical error there was nothing to suggest there's any mathematical error made nothing so again i think think about what they're really open up here would allow any i guess government agency to come back and say well you know what we really should've given you better additional benefit because when we think about it maybe you didn't perform that or maybe that's not what we really should have done maybe that's something that would have been reserved for some formula it would put people in jeopardy that any point the state command and of a sudden change deal that they perform i have strong views in this only because i think once someone in good faith who's not a not someone who's a member of or who has all the knowledge of how you arrive at formulas when you have a good faith you contract with someone and you except the contract and you say this is what i'm going to pay to do these tasks and i do all the tasks and contract they can come back and say you know what i really didn't calculate this right therefore all are you pay for everything you've built your house you really want another ten thousand dollars and that's really what i think you're saying can't get in their minds they miscalculated one was mandamus asking the judge to return the money that's not moot injunction might be moot because obviously the money's been take but it's certainly not moved from that perspective and then the argument of whether or not th relief they sought under those claims i want to emphasize that it's sort of easy to confuse all the different claims in all the different relief in all the different administrative proceedings in the legal theories that relate to the separate proceedings and even though they derive from a single factual currents which is the capital development boards miscalculation of her salary under her contract they continued for a little over two years it generated two categories of overpayments that lead to two administrative proceedings that are separate and what level was the issue of whether or not an error in the calculation of  at what level was that result it way that determination that there have been an error there are sort of several phases that first there was no unilateral action by the capital development or the illinois auditor general conducted an audit and said that the capital development board had been calculating skill pay which was part of a union contract amendment the memorandum of understanding to their basic collective bargaining agreement they've been correctly calculating it since two thousand and six but starting in the beginning of two thousand and twelve they erroneous lee included special skill pay in base pay with the result that that increase the cost of living adjustments in the long jeopardy pay all of this was personal it's two contracts that were entered into pursuant to collective bargaining i don't know whether the plaintiff was a member of the union or not but she was a member of the farming unit and the only contracts here are the collective bargaining agreement and the memorandum of understanding and the capital development board was advised by the water general that the cd be had been started had started making mistake and apparently it had to do with something in their payroll processing program where there wasn't a space to put the special skill pay in separately from base pay and so the calculations show they had a   page so as a sixty seven explains that this is a situation which she was given multiple opportunities to come up with a repayment plan should be fused all of them she asked for next year to try  and address the matter and she finally said no i'm not going to pay anything back i don't owe you anything there's no doubt that you provided valuable service to the capital development work for twenty years nobody disputes that well whatever level was she given an opportunity to dispute been here was made she was given that opportunity in front of the capital development board before it it submitted its offset requests to the comptroller she was given an opportunity to contest that in front of the comptroller which she did she submitted her papers to that effect this is all with respect to the offset regarding the recovery of the salary overpayment someone to deal with this pension clarification or modification separately and after the comptroller determined that the offset request by the catechetical development board was valid she still has an opportunity to seek the return of these monies in the court of claims that's what the attorney general's opinion referred to in our brief satis that you have to have some process before an offset request is made to the pound trailer she had that she had processed before the contrail or before determined whether to a paid the mon or to send them to the agency making the offset request and she has the right again to get process in front of the court of claims to determine whether if in fact she's right with respect to the suppose of contract that she could get that  three ways from sunday can you explain what the error was and can you then tell us why the capital development board shouldn't be held to  this is that the memorandum of understanding which is an amendment to the collective bargaining agreement entered through the union it says that the people who are have professional licenses and in the course of their functions for the capital development board use those professional licenses as part of their work they are entitled to special skill pay in addition to all of the other compensation and the way that had been consistently applied for six years before the capital development board got it mixed up was that you take the base pay which has increased each year by any collective bargaining negotiations and then you add to that the cost of living adjustments each year of the annual acoss months and then you add to that longevity pay and if you have do not add special skill both those afterwards only after those calculations have been made and the error in this case she didn't do any extra work for us this was part of her regular responsibilities because she was a licensed architect she did no extra work but she was entitled to the special skill pay after all these calculations had been made on top of those by virtue of the fact that she was a licensed architect and was putting her architect seal on documents that were signed by her in that professional capacity and that's also in the separate appendix at page sixty six so she heard all the dollars that she was a no no no all she earned what she was entitled to be paid she received more than she was a title be paid how is it more if it's special skills he just said that that's why she got special skills should buy her to tim yeah but the error was not in giving her special skills pay the air was in the right why was she overpaid it's as if somebody put an extra zero with the end of her especially if it's a calculation mistake so let's say you're supposed these these personnel forms that show you're going to get an extra so many dollars per year per long right because a special skills pay she didn't deserve it she deserved most of the special skill pay that she she she deserve all the special skill pay she was entitled to but they miscalculated her total salary  party to yes that there was a memorandum of agreement by the way i did when it was the correct formula in that memorandum of agreement or was he in correct formula that your signing should not have been the formula includes that the memorandum of understanding which is the contract contains the correct formula it says that after all of her other salary is calculated she's entitled in addition to that special skill pay equal to five percent of her base so it's well that's correct right that would choose the month but that's no they gave her more than that because they included it in her base pay instead of giving it to or after her base pay so  the next year's pay period it would look like her salary was higher then it was supposed to be yes and that's last time she collected she was a title too she was a title for the first six years that she simply is should receive what she contracted for your signing what she contracted for was the correct formula but then when it of her pay it was calculated they didn't use the correct formula that have been agreed upon but some other formula that was in exactly right and i do want to correct my grief i made a mistake which is i said she signed  she never signs they were signed by the various personnel of the capitol development board i assume that the human resources person prepared them submitted in the normal process so that they reviewed and everybody you know could say that this is what understand she was an item to be paid they were wrong and no government official has the authority to authorize the payment to somebody of something that's inconsistent with what they're legally entitled i think that's well established as a matter of general law involving the government because this is arcane to me yes let me state something you tell me if it's at her salar to the base pay plus what are these extras that the longevity she was in fact wanted to have it for that's exactly right and that it was the capital development board made this mistake it was brought to their attention that they used to do it right for six years and then the auditor general said wait a minute now you're getting it wrong which apparently had to do something with their pay will processing software i don't understand more about that but it is included of an extensive description of this is included in the by adding a special skills page on top of the base correct because that would increase the value of the poll in each successive year exactly right and it increased longevity pay in each successive year and this continued for close to two and a were offered to her and she accepted that's not supported by the record that's factually incorrect but rather what she's working she's getting paid for years whether it's a written contract through a contract there is a contract memorandum of understanding is that contradict absolutely these reflected throw use calculation of what she was owed under that memorandum of understanding and that's a classic example of overpayment under a contract and so also a class contract or money or pay money that isn't owing to the person doesn't get to say oh i get to keep it i mean this is sort of like the classic law of restitution it's been around for centuries it goes back to roman times if you are paid something that isn't oh good there with a ship case of restitution to get it back by the person who painted to this its government isn't excluded from the u s supreme court has made it clear for the federal government if you pay a tax refund twice the taxpayer doesn't he doesn't get to keep the second refund the illinois supreme court has said the same thing if there's an know their terrible government should get it right the first time unfortunately it doesn't always do jack and nobody's going to dispute that there's this woman was receiving this payment including her pension per year of time and then gets this letter in this mail saying the auditor general said we made a mistake we overpaid you let's work out a repayment plan that she was dismayed an upset but did she have a legal right to keep the money absolutely not wall and how about if she ever spent the money well that would be a defense to up to a restitution claim but it's not a basis to go to court and say that that there's a violation of a statute that prohibits you from applying an offset to or her monthly annuities for the selling over payments the purpose of the court in this situation if there's a contract dispute like that or restitution dispute like that is not to decided if it's already been extraordinary circumstances and it has to be you know detrimental reliance based upon a reasonable a reasonable reliance upon a misrepresentation by the government by somebody who had a thirty to make that commitment that's the patrick engineering case and that's the managers a pension fund case that the idea that government can somehow make a mistake and you automatically get to keep the money is not consistent with a law that state otherwise the government finances would be subject not to the decisions by the  lawmakers who determine how much you should be paid and by their authorized representatives who went through the collective bargaining agreement but they'd be subject to the whims and errors of of lower level public servants who make mistakes on these things that can't be the overpayment i don't think so with respect to the pension correction or modification she had a choice to make she could have gone to service and said this isn't a mistake i have a contract right there to receive this money and  she didn't do that she refused to participate as a result of which would respect to the pension modification she's left with a very limited argument which is that this statute that was passed recently following th authority to fix pensions in the event of a mistake and to recover over payments if it discovers those mistakes within three years that back stared she was intended to accomplish virtually nothing that when the legislature this court said listen this is a matter for the legislators make up of the service wants to fix pensions in the case of mistake let the legislature fix it and the legislature with almost lightning speed did exactly that and it said if there's a mistake in the calculation of a benefit so that it's for if i'm not in the calculation if there's a mistake in a pension determination resulting in an incorrect amount each element iot lee fixed the problem and the planners theory is that mistake should be given this exceedingly narrow interpretation based on a case that has been since repudiated inconsistent with the text of the statute inconsistent with the legislative history my brief i think address this at length with respect to the pension issue she had her chance to argue that this was a mistake that this was a contract right that she was entitled to receive she blew that off and as a result she can't now say oh well let's just rewrite the statute that was passed after the shark cage to give it essentially no effect that was intended to the extent that there is an issue on the salary overpayment separately now we're going to the comptroller's proceeding her theory is that the statute in the pension code that annuity payments from judgment execution garnishment attachment or other service by process prohibits state set offs or offsets under section ten point zero five of the state c those two address different things the one address is judicial action to enforce a judgment by a creditor or prejudge an attachment by a right or set off or offset is a self help remedy it is not it doesn't involve judicial and it doesn't involve dispossessing somebody of something they already had in this case the money was always in state coffers yes it was earmarked to pay her pensions but the offset said wait a minute if you will  the state money back then then we can offset that and send it to the state agency to whom you owe the money and she has the right to participate in that consular proceeding which she did the comptroller kept the money in a trust fund for sixty days until that issue was decided and she still has the right to go in front of the board of claims i do want to say one thing is the theory that these are somehow contracts that were separately negotiated with her that defies the public live relations she's saying she went outside of the union is the exclusive collective bargaining agent for the members in the bargaining unit and cut a side deal that's direct dealing  and by the publicly relations if they're to put that be any separate contract her outside the collective bargaining agreement and the amendments to that there were negotiated with the union all of this is a bunch of smoke and mirrors at the end of the day there was first of all with respect to the statute the statute cannot take the place of the constitution so whatever argument that you make with respect to this particular statute is irrelevant he's given you no argument frankly that permits this state come in and take twenty six thirty thousand dollars from her pension second this generic memorandum of understanding agreement apparently between the union and the or first of all i don't think there was any representation that she was a union member i don't know but i think this argument might hold more water if you if if the the actual personal action form signed an approved not specify the methodology that may be used to accomplish it but this isn't the same thing but the council is trying to get you to believe that hey there's a memorandum of understanding which now controls how we get paid you know each of these cases involves a personal contract calculation of pay but b amount of pay actually paid out didn't utilize that formula it utilized and in correct form so how is that not a mistake that can be remedied the pension to two different issues if the personal or some form which sets forth the actual amount of the contract i don't know how's incumbent upon my clients to know exactly how they arrived at that number well that's new to say that's not relevant it's still it's unfortunate that some same late but it's not relevant because it constitutes a mistake that under general contract law it would be irrelevant if i agree that you're going to pay me a lot of hundred eleven thousand dollars how you arrived at that how you calculated it is not something that should be followed meat that's the statute there's nothing i've heard at all nothing that any argument is rise to make them come in and take her pension for the contract play for the overpayment on the contract like our constitution is very clear this money which into i don't think she would ever be found then they can try to collect that money like any other creditor but they can't command and simply take her pension and again that is separate in the contract