last two years of employment after she liked to retire are exempt from the additional contribution imposed upon school districts by virtue of public act ninety  four for teachers pensions are calculated based on the number of years of service and their final average salary their final average salary for purposes of pension calculation is the average of the highest four year salaries in the last ten consecutive years public act ninety four all form stated that if there were any salary increases provided to a retiring  an excess of six percent from the prior years salary that were used for purposes of the calculation for the retirement fund that family employing board would have to make an additional contribution to the teacher's retirement system contributions for the op any salary increases that were paid under contracts that were existing as of june one two thousand murray had a two thousand and one two thousand and six multi year employment agreement in addition to that the school district had in place a board policy of procedure procedure policy twenty four thirteen procedure twenty thirteen we're done with the second right yes they were pursuant to policy twenty four thirteen the issue is whether or not policy twenty four thirteen formed part of the the contract cannot be changed during the term of the contract without mutual agreement or mutual sat of course nor my opinion can the policy be changed in terms of the creation of the benefit the right to the benefit to the employee that comes under the odell case with which you would see where the supreme court specifically stated that if there's an employment policy that creates an employment right the employer cannot unilaterally make an alteration to that to to that benefit because there's no additional consideration what case think it's the marshal feel for them a case where the executive had an employment contract and there were also all representations and employment policy that the court held sensually contract part of a written contract between high officials such as support to schools the school district has to put forth the contract or week terms of the contract you're essentially arguing to us that well yeah as a general practice what you can employ the benefits are provided through employment policies for example if you look at the policy right here twenty or thirteen you'll see that they case is not in the mix because the undisputed facts in this case are very clear through dr murray's that the david and his america board's minutes except in her retirement and that is at the time that she entered into her employment contract she was aware of the policy she considered it as part of her twenty four thirty yes she was aware of it she relied on it and she considered a part of her contract i would also i just want to make this point because this was raised in the in the in the  certified staff and they took that terrorist simply says well that doesn't incorporate it because not all are certified staff get the benefits of policy twenty four thirteen therefore it's not incorporated by virtue of the expressed language of the collective or of her contract that's an error because that's a misinterpretation of that class as we point out she was provided to all other certified employees sensually means each and every other certified employ as the chief executive intention of that clause and that's borne out by her affidavit that's undisputed as well as the court action was that they intended that to be the case that the chief executive gets what's in her contract as well as any benefits that are given to any other certified staff they're arguing that it doesn't cover her it's not incorporat plate because it doesn't apply to all or certified staff well we really only have two groups of certified staff teachers under the collective bargaining agreement and administrators so the concept that that this clause meant that everyone else had to have the benefit would mean that she could not get the benefits of a collective bargaining agreement because they might not be provided to other administration and abets clearly erroneous what is meant by all other is essentially a most favored nation stipe clause a provision that gives other certified staff members of pain a benefit then she does now the odd part about this is to take it this way and say well that's affect the result of of of of what they're saying unless you want to say that yes the board had a contractual obligation to pay that money to her under her contract and i believe they did and i believe that's why it's fran bothered because the intention of the legislature was to simply say yes well if a school board has a contractual obligation to make these payments when somebody  elected to retire on april thirteenth two thousand and six still during her admittedly exempt contract who the school board of said no we're not paying you those two salary increases provided by other policy i don't think they could they had a contract allocation to do that arising from the policy that existed in the time she signed the contract and she relied upon and the incorporation clause paragraph twenty one so the board had the the they admit that that's an example contract over two zero zero six and they admit the policy that provides benefits they don't say whether they think we have a contract obligation to pay it or not but they simply say that the  didn't arise under the old one zero six exempt contract they were part and parcel of the old one well six contract because we had a contract obligations on that date if she elected to retire the argument that this could contract either way a conflict if if if the legislatures intent was to say we're not going to bind school boards to additional payments if they're already contracted to make them shine june one two thousand and five then that's to this particular provision as lies as facts it is important for you to understand sort of the background of the legislation that's passed under the teacher's retirement tension a teacher a member of the system may get credit for salary increase up to twenty percent for purposes of increasing their their retirement y and that basically what that said as mr barkley mentioned earlier that if a salary increase seen at six percent that the board of education employer would be charged for  whittling of retirement incentives above six percent it was designed to discourage employers from giving large retirement centers or if they chose to do so to ship that cost back to the employer that was subsequently amended in your later ad subsection to give some limited exceptions to that what we're dealing with here asked to do with contract work collective bargaining agreements retirement contracts five years that was an exempt contract if she had been paid for retirement incentives under that contract they would have been exempt but that's not what happened superintendent murray elected to retire and gave notice to the board of education in april of two thousand and six and her retirement date was the end of two thousand and seven thousand schools that exempt contract expired on june dash twenty one point four that in the case of the superintendent if notice of intent is not given to you prior to the one that there is a new contract by operational law at the end of the all six  seven school year they didn't give a notice of intent not to do so she had a new contract by operation walk roselli away she was paid second retirement incentive of twenty percent under that the the situation in this case is that the board of education argues that this administrative policy twenty four dash thirteen which old council do  that's the basis for paying for the retirement incentives was first of all incorporated in her two thousand and one two thousand and six i'm pretty clearly that's not the case there's nothing about retirement incentives in that exempt contract the argument by like counsel for board of education is that section twenty one of that contract incorporates it say well i'm going to read that what that says his the superintendent shall be allowed such other privileges leaves and fringe benefits not specifically in s are extended to all other certified course now as are extended to all other survived person now twenty four thirteen didn't give benefits to all other certified person out they were restricted to administrative person about that so clearly the policy was an incorporated by virtue of section twenty one because the administrative policy was restricted to administrative personnel the second view as we did that policy is part of the life contract even though it's not contained in the contract well that's really not any of our business because whether or not they had some obligation  regardless doesn't take it for within the section sixteen dash one fifty eight for several reasons that i'm going to mention one question you did ask earlier whether or not that policy change clearly that policy would have been changed by the board of education they weren't under any obligation to keep that policy certainly could have been changed before so so your answer to the question the policy  part of the contract it's part of the collective bargaining well it wasn't part of the individual employment contract or whether or not they had an independent opposition they were not really doesn't concern  the second argument made by counsel is that this is somehow a any chef stand alone policy but there are several problems with with that argument as it applies to these facts if you look at the language of sixteen dash one fifty eight it sam's contract in collective bargaining agreements entered into entered into the new or standard prior to june one thousand five it doesn't say anything about policies that certainly could have that applied to individual employment contracts and contracts by operational law and collective bargaining if you were to say that the policy was a standalone contract which was potentially exempt that would mean that in superintendent murray's case she had a seven year contract and that's  know that would be a ten year contract and that's what that's clearly contrary to the provisions in the school in addition to that teacher's retirement system did promulgate some fifty four eighty four and particularly subsection a subsection eight and that provides as follows we clearly have the authority to promulgate that regulation but when the ministr collective bargaining rights or employment system will accept employment policies as evidence of a contractual agreement under which salary increases  she clearly was covered under employment contract so this policy doesn't help her in in any respect quite to the contrary it makes clear that the policy regardless of what effect it might have had in the parties wasn't couldn't be exempt under sixty one sixty one fifty eight something that that i did not aggressive or anything i won't mention that are not covered by the collective bargain which clearly in this case would like superintendent murray will receive an exemption from employer contribution for the old five or six school even if somehow you say that this is a standalone contract it is an exam we have issued a policy dealing with reduced circumstances under which incentives paid under policies might be considered sam but even under our interpretation under policy it does not apply to superintend or i think for all of these reasons the after the expiration of a multi year contract under a new one year contracts most interpretation of what is meant by the under it is the right of the payment that arises and becomes a contract obligation under the exempt contract irrespective of whether or not that increased salary is going to be paid subsequent the expiration date of that contract it's very fact that happens all the time retirement insanities are provided under a an existing contract that says if you are right to retire permanently two years in the future then we will give you these benefits well of course that contract expires in there on another contract but the right to benefit arises under the exempt contract i also was taken by the fact that council mentioned again that whether or not we had an obligation a contract obligation to pay a concern or isn't part of it of course that is that's exactly what the legislature did you know in that exemption clause when they use the word contract they don't say a written contract contract by a policy  receive the payment on june one two thousand and five then those payments aren't sound even though they're made in the future in their retirement years as far as the idea of shifting the cost in the intention of this statu of the legislature could very well have simply said we want to allow any pension credits for salaries in excess of six percent know the teachers union while that they want twenty percent salary races they're fighting for this so what do they do they come in and they say well we'll allow salary increases for pension up to twenty percent but if you give more than six percent then the employer is going to have to pay this additional additional penalty leaving of course the employer's fight with the unions and the employees and everything else as to whether they're interested in the over six percent but aside from that that is it's the idea of the shifting yes it was a shift to the employers but there's an exemption to that shift and that's the grandfather clause and that applies when there was a contract obligation to pay contract obligation to see june one zero five and that's precisely what we have here whether you consider it imported into the contract which we certainly do of or you consider it a contract obligation that arose by a policy that was there and relied upon by the employee either way it's a contract obligation when you look at the language in one fifty eight g or out that says we exempt salary increases arising under contract the collective bargaining agreements existed for june one thousand five they're talking about contract it's global since you read it in its customary century don't say it only written contracts are only collective bargaining agreements now contract contracts contract so we believe that of the terrorists got it wrong here we know that they want the money we know that they're fighting for every dime they can get but we believe that the legal perspective we're fighting for every dime we can get to it run the five so i would ask the court to consider this i think it's covered in the briefs and thank you very much