october seventeenth of two thousand and six in the email mr niehaus says therefore you will receive a retroactive paycheck for the two weeks you were on the payroll in early january better yet your retirement salary for pension purposes will be changed salary of record was eighty five thousand dollars and meeting with other commanders tomorrow they will be receiving different wages increase based upon their years in the position i am not sure how well this will go over we will have to see and finally he says  niehaus manager says stop pinch yourself once you get off the ground please give me a call the have any questions after that again that was not known to the board until after october of two thousand and six and may seventh only to say it is not known that would have prevented the board from finding out more information why should it fall on why why should the board have to be responsible for failing to look into it or failing to confirm the representations that were made  different but here's what was done prior to the may seventeenth two thousand and six in which the pension board held a meeting not a hearing increasing the plaintiff's pension benefits before the pension board meeting the president of the pension board tried to do a number of things pension board spoke to the village treasurer to try to verify the amount he was told the salary was ninety four thousand five hundred forty seven he was also told that all the other commanders to other would receive the same amount of increase as the attempted to verify that information in addition he also spoke individually to the two hundred commanders to verify what their salary would be the commanders would not tell them that information would not divulge the amount to confirm that there would be retroactive salary increases are you saying that basically the board did everything within his power to find out that simply the information simply wasn't real no i think i believe that the information was deliberately nack tendered to the pension board i think the board did what the practice was at the time which is to take the villages in the village officials word for what the salary increases are were i remember when a police officer retires it happens all the time typically what happens is there's documents they take it at face value i guess the point your honor is stet that the board had no reason to suspect at this time there was anything possibly improper with the amount of the salary oh let's let's get on to the some of the legal issues and i know you lack of jurisdiction on the board to reconsider its decision and i mean we get around a lack of jurisdiction to the extent that both cases so whole well i think i really believe that you're correct that both the what happened is that rustler did not involve any allegation of fraud or misrepresentation russell was basically the board allegedly made an arithmetical error in his if you recall or said in consequence he had we just often said that  what happened there was that they improperly grafted the term care with medical care or in the definition of three one forty four point two the provision that's at issue here now similarly nowhere in three one forty four point two of the  code is there any requirement that only the claimant has to be guilty of fraud misrepresentation station or error so i think it's follow the logic as a koski i think it follows that there was no way at the time for the board to possibly know that there was possibly something going wrong with your i don't mean to stop miss a that there was no jurisdiction on the part of the word to reconsider ultimately he did i don't know how do we get around that assertion if that is the holding of that court i think i think i believe that's easy to do in light of the fact that if you look at that thirty five day time limit is not an absolute with all rules there's exceptions well then what did what the justices often meet when he says that there was no jurisdiction if he was referring to that thirty five  exception to the thirty five day rule and i think what the legislature intended for good always justice hawkman wrong in his assertion that the board did not have jurisdiction to reconsider not in the not in the casa koski case because they justice hot to look at the plain unmistakable language of the step i believe he did when he reached this conclusion but i think it's a different factual scenario have there we go if we go over well with the facts and that's what they're saying is that a legal question well yes it is and that i think that's why the standard of review here is knowable which allows you to to basically look at everything and look at the facts so again you know fair question how do you get around the thirty five day limitation administrative review i don't believe that  three one forty four limits i think i think three one forty four point two is the exception to that thirty five day rule and i think that if you look at it there's no other way that the pension board unless they do a full blown discovered within thirty five days for the board to rectify i believe that was in the efforts that the trial court made it is there any such support for such a holding there's i believe there is no support  at that thirty that the board has to conduct an investigation before granting a pensioner conducting a hearing or i don't think that i think that's what this case is all about does three one forty four point two limit the board at any if the board discovers fried the board ought to be able to go in if it's fraud it's not committed by the apple i think that's what the trial court did and that's what justice collins said is that the the limitation is the is there concern as well as to making it open ended on the other side in the board five years later decide that it made an error ten years later i thousand years later judge i think if the board if the board did its to diligently and somehow information was kept from them which are you saying well you know period of time today i believe a reasonable period of time i'm not that i don't think would be fair for me to say on open ended but again what's the point the point is anti fraud in this we all read in the paper about pension spikes and golden parachutes and things like that three one forty four who was there for a reason i think this is the reason i don't think the trial court was correct in limiting it to a case where it's fraud or misrepresentation of behalf of the claim nt this is a new case it's a case of first impression where the misrepresentation the fraud was we believe committed by another party secondly i think the court was wrong when the court said you have to have proof  ride before a hearing i think what that does is shift the burden and i knew and i think if you look at the setback case which is the third district case which is a pension spike case not a thirty five day ministry to review case with the settlement court says the proper pay place to determine what constitutes salary shouldn't be the course you don't want to be a super pension board otherwise you'll be faced with thousands of these i have to pending in this district right now involving engines fight cases which is this is what this is really about we think the best place and we are not asking this court and we're certainly not asking the trial court to make findings of fact as far as whether or not there was fraud we believe there was significant evidence that a try or fact if we had been allowed to hold a hearing that we could have possibly could have inferred a fraud play if salary was made retroactive to january first two thousand and six other commanders only got it retroactive through may first two thousand and six plaintiff received seven thousand dollars more and other commanders  the village manager we believe committed an ultra vires said he gave a pay raise a salary increase in violation of the salary ordinance salary ordinance states for both your isn't question salaries will be in conformance with the schedule i'm saying that the salary ordinance that govern plaintiff when he retired was violated by the village manager he exceeded the ordinance and longevity was part of that in that same document that establishes that there was something there that's limited the amount of money that that he could receive yes yes i believe so yes it was sad the village manager could not give him the top salary yes well yes i do it's the salary ordinance and their license to sell you ordinance which applies to all non bargaining unit employees including police commanders the budget that the budget document that the salary ordinance t official document by the village didn't get in wasn't in the acted prior but i'm sorry after commander left wasn't in it until early may of two thousand and six and in that document two important things one there's a salary the commander here got the salary range for the next budget year if you look at the previous budget year there was a provision for longevity and reserve the retroactive he did research and i don't have a dispute with that it's the amount of retroactivity if the village is allowed to do this and pick and choose this is the greater public policy argument if the villagers are allowed to pick and choose who's going to get what it's going to be chaos it's not fair point that certainly isn't purposes one is compensation for an extraordinary director up which meant nonrecurring in nature and secondly merit pay proper say compensation which is neither fixed an amount or determined by reviewing bargaining agreement or pay play in which we have here added the salary for determining future rages at his deposition the village manager said and admitted that he heaving the point it would not have gotten the same salary increase that he did if he hadn't retired you also need to look i s enjoy too much like here as if you are you with another case where ministry of hearing has been enjoying we're you know breeze in front of you i just want to respond to the argument raised by plaintiff seeking sanctions against myself under section three seventy five the illinois supreme court rules this is a case of first impression none cases in any of the briefs deal with facts involving commission of fraud or misrepresentation by a third party and i would also point out to the trial court's decision on april twenty first two thousand nine when counsel of ray's rule one thirty seven sanctions the court was very clear in its order that they could not impose saying he did that she did that believe that she could impose sanctions that this was a good faith basis for the defense but i think our argument was as well that it was legal your erroneous and i think we argued that it was arbitrary and capricious i just think we believe that the court misinterpreted section three one forty four point two as we said i don't quite frankly i don't think that that is something that the court the trial courts or you should have to do i think that's something that's properly at an administrative hearing to keep you from having to listen to me about arguments like that i think that i think that was  allow for and again i think and i'm glad that they did because it allowed us to develop the facts but i think more importantly the proper place to do that shouldn't be in front of you or the court i think the most expeditious way and efficient for judicial economy i think what was quite frankly after all the smoke cleared if we were allowed to hear that administrator hearing it's up to that five member board to decide whether or not there was fraud i don't think i think the court here by saying we had proof right ahead of time i think that puts the cart before the horse if you think let me address that point because  it seems to me that there is a tension between reviewing this pulmonary and for this permanent injunction under normal civil procedure code and what and the administrative review law that the case originally started at under the administrative review laws we don't just review the circuit court all the review the agency and yet dear the agency was precluded from making any kind of finding think that the administrative review act that thirty five days is absolute carving granted i think the case law and i think that statute three one forty four point two contemplates exceptions and i agree that i that the lemma there you have to reconcile the two but i think that's why the court i'm sure that's why the legislature put in three one forty four point two to give us the ability to do findings of fact and make conclusions and then clearly the limitation the exception to the home rule in order to invoke review by the circuit court yes by interfax of one same exception but if there's any question about it they could file a complaint for administrative review they didn't have to when they two thousand and seven what what what what additional information do you think the poor was looking for if they didn't approve it if they got all the information and i've accepted as as true that they needed to make a decision why would they make that decision or you could say they could have put off that decision put it but put it off for one purpose to get more information but where were they get that information from that was out through the pension board but obviously they could have gone through the village manager because the village manager was the person in charge of this salad the study commissioned through and i knew that two thousand and six i'm sorry please so the treasurer gave information at the request of the pension board to the pension board and basically said to the best of his knowledge here's what it is now the pension program didn't of labor relations the bottom line is that the village i should say the pension board president could have gone to the manager they could disappear to the manager they could ask them questions but they didn't do any of those things  huffily a lack of informing them of everything until sometime in october when they found out that the other commanders had gotten significantly less than this to cause that and then they wanted to look that they have to do with i think my point is that it relates to judge garcia here position is that they have to discover something within thirty five days what else could they have done if their practice is to realign like a man does this to them and their that then once they discover something is wrong if they discovered in two or three months or four or five months years that they don't have the right go back and look when they may have been had something misrepresented to them and i say that because it doesn't say in the statute and any time with has been a misrepresentation of for ever and ever in effect that the pension board is asking  this court to do is to legislate that's a function obviously of the general assembly this rossley case that's been on the books for a number of years if there was any question about roslin being inappropriate improper administrative hearing to find out what happened here and what and who's at fault for where where the information should have come from as being one such per well as possibly correcting it there and why  shouldn't the pension board be allowed to pursue it administrative hearing for that very purpose to find out what happened to find out you know who'll misled who when and what we need to know to make sure it doesn't happen again why why should why should we think that in an enjoyment you don't take to enjoying it too to give an injunction what line is that the proper remedy in this case question as to whether or not there should be any relief put against the point we have a conflict between true portions of the pension code one question is that portion  before misrepresentation of the other portions of the pension code is that portion which is off the administrative review way once again i go back to the point that the pension bo and may didn't have to act in may on that which they had seen they could have done due diligence in the sense of trying to find out the rest of the information dealing with the n i step it's because of the failure of the bridge to file a complaint for administrative review within thirty five days with the circuit court of the administrative review act request under the administrative review acts there's a provision that says that ministry to agency to carry out its responsibility and to come up with certain facts and then allow the court at that point to either accept those facts or disregard i believe the circuit court based this decision review of a proceeding from the administration are under the ministry of review act no discovery would have suited the circuit court that is correct i think quite frankly the circuit court was doing its job and being very active the both all parties by saying to the pension board if you want to conduct you're asking me for permission to conduct discovery i give you that permission don't show it so she could have made this ruling without that you're saying  again the pension board made his decision to make a two thousand and seven and it wasn't until november and the question i ask is at what point will we stop on  pension if you time and pension is given to a police officer get some thirty years of service and after he gets the decision in may of two thousand and seven then the pension board says we want to open it up there was no misrepresentation by the village or anybody else everybody got all the commanders receive the same salary increase it was just spaced differently over a period of time and that whatever whatever you want to describe had been had the same starting date of may two thousand and six that the others no pension increase would have benefited him through because he had already been retired right it appears so and once again you have to keep in mind that when this saudi study magic came up very concerned he went to the pension board events of the manager it basically said if i be tired of it as of january first of two thousand and seven and that saudi increase goes into effect because this study has been dragging on for quite a while i'm going to get coal sacks immediately and the other fellows will catch up over a period of a possibly year when you when you say that the pension board could have delayed decision is to close that could have delayed his decision to retire until the matter was resolved in clear manner he could have delayed it until they study came back and then he would have known applied to my view time and pension and the answer from the pension board was yes the answer from the village manager was yes and only one of those to really control that decision that was the village manager not to mention work t the village manager decided that it would be effective january one two thousand and six as opposed to may two thousand and six for the other two and yes and he had that discretion because once again i and the question is whether he had that obligation boy but certainly once again what it came down to is lack of due diligence by the pension board in the sense of finding out what the devil's going on here why didn't they contact the manager why didn't they just say the hearing and i have to say that i'm a little with the stress by your place and a burden on the pension board to find out who are from the village manager what is the village manager that has that information then in the course of his carrying out his responsibilit information is presented that's my work like the village treasury bills i said you may be confusing us with the bill is treasurer who gave information to the pension ports in five days before and once again the pension  didn't go any further with that information and i might also add at this point that at that meeting in may where they increased my client's retirement pension petrol active there were two other problems with trying to do it and what prevented them from doing it was the village chief used to modify the checks but by by point is this in the best house he case which the court is aware of the mention the case of when gore versus city of moline of the many police pensions boy and not only did they stop it or tried to stop it but they also said the  is all hypothetical what if we were to dissolve the permanent injunction and simply say there's no reason to allow this permanent injunction to remain and let things out what time period applies to the section of three das one forty four point two as to whether or not that must occur if the discovery of such misrepresentation fraud or error must occur within thirty five well i mention about it asking this court's are in effect revive the statute in the circuit court decision the circuit court make reference to the supreme court of bell annoyed case of no that versus lock ninety eight illinois second for seventy eight or eighty three which stands obviously for the proposition that if a judicial decision has been on the books for a number of years so that so to speak and the legislature has not taken any action to correct it therefore that's  in affects adoption april of two thousand and six based upon that the decision was made by the manager to dealing with the salary of kosek and the other commanders and as a result of that in may of two thousand and six the pension board made this decision and that's why we're here and i thought i may just have a moment to see if i left out anything else i have awful lot of things a very quick us so it's a very good question what's the timeframe what's the time horizon here i think if you look with it at such and three one forty four point two what the statute says is the amount of any over paint might i don't think i have a case we we're dressed in the brief but you know recall as i recall statutory construction if you have a specific versus a general provision which the only code a civil procedure is in a pension code which is specific the specific that controls and specifically we're talking about three one forty four point two secondly what is the complaint if it is your opponent has said that within the  village manager to exceed the village ordinance which the and the ordinance is the salary document it sets range with the village manager did here unbeknownst to the pension board will sometime later is exceed the salary range for the given year he violated commanders were getting their raises or evaluations they received the range i don't know that they all got that same amount of money i don't know that i don't recall i also want to say remember here the board had a fiduciary duty and the board did everything it could reasonably ask and try to ascertain the correct information that sale restudy was not given to the board until after october in fact i believe the deposition testimony was the salary or the salary study by you had not actually been given to the pension board you know sure in hindsight what's going to happen here is words are going to read pensions they're going to have to do subpoenas and hold hearings and it's a shame because up until this point they followed the procedure  her off shore her in the present or did everything he reasonably could to try to get that information and then the board especially the choice put it off wait they tried to do the right thing again no good deed goes unpunished and now we have a situation where perhaps hundreds of thousand dollars will be overpaid we don't think that that's what the law intended we don't think that's what was contemplated here and if we believe that the remedy should be a vacation the permanent injunction to remain will develop the facts