oprah firefighters pension fund the two funds split this benefit proportionally so the relationship resembles a seesaw when one share increases the other decreases so when the oprah fund increased its share of crime homes benefit six months after it was originally granted her chair should have decreased but it didn't likely because no one ever told the lockport fund about oprah's modification until it was discovered in tw home enjoying the benefit of the oprah funds upward correction and lockhart's original payout for years but when the lockport fun found out and stopped overpaying him he objected and filed this administrative review action he wants to keep both sides of the seesaw up in the air should overrule holmes objections to the law court funds correction and affirm its decision for at least the following reasons st there's no constitutional problem with correcting over made benefits second there is no can problem with correcting overpaid pensions either nor is there any retroactivity problem with the correction statute used by the law court and finally there is no statute of limitations issue either beginning st with the constitutional  concerns home is simply wrong to assert that the pension protection clause of the illinois constitution protects his overpayments that notion was conclusively dispelled in the recent city of countryside case cited in our brief there the courier the court reaffirmed that familiar principle that the general assembly can't pass a law that diminishes vested benefits that existed at the time a member enters the retirement system to do otherwise would violate the contract between the member and the pension fund but over payments are not vested benefits and therefore not protected by the constitution as the countryside current recent pensioners can only contract or benefits a lot by law and by their very nature overpayments exceed the level of law by law they are a deviation from a level allowed by law and therefore home simply has no constitutional claim to continued overpayment nd there's also no contractual problem here either and they fail for similar reasons as the constitutional arguments for one only new legislative attempts to diminish vested benefits are prohibited and as the countryside case demonstrates correction doesn't take away anything from home is entitle to to the contrary it ensures he's getting what he's bargained for no more no less more fundamentally benefit correction has always been part of the contract between crown hall and the lockport fund and that's especially made clear by the fact that crown home had  no issue with the correcting his benefit upwards even at that time there was no correction statute in place and also fundamentally the pension code isn't fixed at the time that the member service pension which he retired on wasn't even yet in existence that came in in two thousand and four yet uncrowned home still was able to have the benefit of that when he retired in two thousand  although home may not like to admit it the correction statute actually benefits him as well as the fund in its other participants without the ability to correct an overpaid benefit the lockport fund could face potential plan disqualification by the i that's for failure to abide by the exclusive benefit rules set by federal statute as well as i r s regulations prohibiting overpayments know the consequences of disqualification and we go over this in detail in our brief but they are very very dire for one participants would have to report the municipal contributions made on their behalf is taxable income and that sizable second of all participants cannot make their or mandatory statutory contributions on a pretext basis currently that's nine point four five five percent of the firefighter salary which is almost a ten percent increase in the amount of tax bill income they would have and rd the fund would have to pay taxes on its holdings and each dollar of taxes it spends on taxes will detract from the payment of bonafide pension benefits or from the pool of investment funds that it could be using to gain money for pet pensioners down the line so in all the pension corrections to you provides a benefit in is indeed needed to avoided those out to avoid those outcomes and that's what her home contract is for at the outset membership in a functioning firefighters pension fund when he joined in one thousand and eighty he didn't contract to be a part of a male functioning pension system he wanted the benefits of a full fledged fully qualified plan under the i r s statutes and the internal revenue code  correction statutes also clearly a benefit to members because it allows underpaid pensioners to be made whole in the absence of that language of firefighters pension fund wouldn't have any statutory power to accomplish that goal so you take the goose with the there is no country actual problem with the board's decision to stop overpaying krumholz you are moving now to retroactivity there's a few steps to retrieve activity but at the outset i would like to mention that we believe retroactivity is a red herring in this case like part fund did not apply the correct true correction statute retroactively it only said from this point forward we are paying you what you are owed that action occurred in the present and in the future it makes no reference to the past at most it relied on antecedent facts namely the mistake that happened in the past but as our supreme court has noted reliance on the antecedent facts alone doesn't make a statute impermissibly retroactive all there's really no need to reach ritual activity in the st place now the elephant in the room here is that there is a case of the rape case that suggests that the police pension correction statute which is identical to the one for firefighters and the one relied on by the law court found that says that the statue cannot be applied retroactively to be clear we can tend that rate was wrongly decided and for a host of reasons r wasn't counting the practice action that tangentially involved calculation of a pension benefit pension where there had no occasion to be a party in the parties that were there assumed that the modern police corrections statute applied and when i say modern i need to make a note that the modern police christian statute mimics almost exactly the firefighters direction statute that the lockport five used but unlike for firefighters the police already had  statute so the recall of court was called upon to decide which version of the correction statute applied the old version or the new version now without any briefing from the parties on that subject the court decided that the modern police correction statute do not apply over the earlier version to the contrary it concluded that there was an affirmative legislative expression to not have that modern statute apply quote and also that pension fund can recover arrears if that mistake is in get three years all the written in it isn't the result of fraud and if there's an under payment the pension fund has to make up the difference in a lump sum immediately and with interest that's giving all of them the record that the police correction statute was missing language about retroactivity and it came to that conclusion because it saw other correction mechanisms being installed in other pension systems for example the judge's retirement system the state employees retirement system and the general assembly retirement system those statutes expose expressly said that it applies on before and after and the record took that to mean zero of the police and fire don't have some similar language but that's incorrect for one the four corners of the statute do make reference to what happens in the past but even that aside the expression of retroactivity although in different terms is present in a neighboring statute in the case of the firefighter statute is literally the next provision that exams the correction from quote all time limitations under the administrative review law for benefit correction so both of those formulas are or formulations are different it doesn't mean that the legislature decided to leave any fourteen mistakes untracked for police in there by firefighters and it could not have meant that to do otherwise would be an absurd result now the recorder was also blind to the flip side of its holding as a result of ray underpaid because of a mistake predating two thousand and fourteen now don't have a way to be made whole pension statues are to be liberally construed in favor of the right participants and raise interpretation of the police corruption statute is anything but liberal the only cogent way to view the benefit correction statute both on the police side and on the fire side is that they reach pre n ekman errors and therefore are a should not control this case now with those issues disposed of the board rightly concluded that the correction statute applied and concluded there was a mistake within the meaning of the statute most prominently the oprah fund increasing its share after the benefit was c created by all funds and not informing the lockport fun in that crowd homes over payment resulting from a proxy increase had to be eliminated and if that wasn't done the overpayments would result  route home continuing to get benefits that he did not earn and were not allowed for by that at the time he joined the pension system now problem tries to say that the board's identified mistakes are excluded by the correction statute and that's not the case again the compression statute needs to be given a literal interpretation because it's a benefit the correction statute can cover actions taken by rd parties like the book and it's supported by the statutory t outset the statute gives an example of what constitutes a mistake to use the word includes and as we know the illinois supreme court says that when you see includes in a statute like that what follows is a representative list it's not exhaustive and then right after that in the statute it continues on to say what can not be a mistake and there is no mention of mistakes executed by a rd party or a rd party pension fund in that latter section holmes interpretation of that restrictive interpretation impermissibly reads in such a limitation and that should be regarded disregarded a final word i'm proud home statute of limitations arguments st there are waived you fail to assert that there was a statute of limitations problem before the board and case law makes absolutely no you cannot do so now an administrative review of the time to present arguments was to the board and he missed that window nor with the statute of limitations bar any correction anyway he can't some of the fact that the statute of limitations does not apply to governmental entities like  acting in its public capacity so there's no statute of limitations problem either in conclusion home is never disputed that he's been overpaid that overpayment would have never happened but for  increase of its share or of this proportional benefit from never objected to side of the equation going up you cannot complain now that lockhart's is going down correspondingly and as a result the  unilaterally determined that it was going to reduce its benefits based on an alleged quote unquote mistake that it's a collins has discovered now and in reducing the benefits the pension and board in its decision or exclusively relies upon section four dash one hundred and thirty eight point one all of the you want to touch in code to give it your wrist action to reduce the benefit and it simply in this case does not have jurisdiction to nine years after awarded a benefit to reduce that that he was hired so the medical research you do have to look as to whether or not that would retroactively apply to a problem which we say doesn't that would get to that aspect of the case in a nd there's another reason the board does not have jurisdiction in this matter and that is it has a statue of limitations problem awarded benefits as i mentioned in two thousand and nine and then into two thousand eight hundred and nine years later it's claiming that there was a mistake and they need to reduce its benefit  as i mentioned in our brief the statue of limitations is a five year stitcher limitations for the statutory issue here searching to go back over nine years they were barred from having and is not required to be brought up before the agency to determine its own jurisdiction so that argument certainly has not been way if so for those two reasons we think that the circuit court got this case right reversing the  was not jurisdiction for the board to go back and try to amend its decision to made grant going to france in two thousand and nine now secondly the estate provision that the board utilizes to reduce the benefit doesn't almost directly on point with this case dealing with a police officer and under the police pension code dealt with the exact same provision the new provision that's in the firefighters pension go code when it deals with a mistake and that case the court indicated that they would have to reply the earlier version because the statute did not indicate that it was to be retroactively applied unlike the sr stance use for down state employees general assembly pension board tried to say well you don't have to get a retroactive application because we're applying we're adjusting a benefit in the future well st the pension board did attempt to seek overpayment from the pension and that's why he got counsel involved when they  twelve thousand dollars alleged overpayment then it was reduced to a two thousand dollars alleged overpayment and secondly when they when they tried to adjust the benefit it was it was clear that they didn't have any retroactive ability to do that the only passage to sion article thirteen section five indicates that pension benefits are contractual relationship in the terms of the pension plan in effect at the time the member becomes part of the action plan is the contractual terms that the member enjoys when mr cronon was hired by a lock for pension fund in may of two thousand and five there was no mistake provision  provided for in the pension co and when he retired in two thousand and nine a mistake provision didn't exist therefore it is illegal for the pension fund to attempt to use their permission to reduce a benefit when it certainly had the ability to do that through administrative review prior to the next minute of the state provision so i want to say we are adjusting in the future therefore there is no need to get your to retroactivity however in the rate case made it clear that the triggering event is the mistake itself and that is what the courts need to look at to determine whether or not it's should be retroactively apply here the alleged mistake occurred in two thousand and retroactivity two thousand and nine was the triggering event in this case therefore there is no retroactivity use of the mistake provision that the pension board tried to utilize in this case it if you were to disregard a jurisdictional arguments of the appellee in the constitutional argument that the contract in effect at the time of his hires which you apply and looked at the actual mistake provision and attempted to apply that to this pension fund neither of which the board alleges here they claim it's a mistake by a separate pension fund the oprah pension fund not themselves were the participant in not informing them secondly when you look at what what is excluded as to the calculation of the benefit and that's exactly what the board is is trying to claim is a mistake here it was the calculation of the celery and service credit of mr crown home by the oprah pension fund and the lack court's failure to notice correct recognize that alleged mistake and that went on notice forward at least seven years before the board try do anything about it in fact the board never recognizing the snake it was a new accounting firm that they had hired well mike a quick question for you sorry to interrupt but in two thousand and ten oprah changed the termination salary amount and they bumped it up by six hundred dollars which resulted in a miscalculation but that calculation benefited your client at that time your client didn't raise any objection to correcting the mistake that tells me this is just kind of the course that the stakes are are treated when they're there corrected and folks go on when oakbrook sound the determination of what his salary should have been and in those cases you know and when it benefits as counsel mentioned the standard response we live really construe to the benefit of the participant in in a case where a mistake would benefit them you know back in two thousand and nine there be making the same are immense unlikely rather because i don't think we'd be here if they were there when they're giving people money for taking money away we would certainly and that's why we are here that i mean but it's not just because it's you giving money or taking money away it's because the well how the board is trying to do it is simply impermissible under under the law they have no say the boards are governed by the statute as an administrative agency they only have that authority the statute provides them and they just simply don't have the statute doesn't give them the authority to reduce the benefit they're paying the same benefit now that they paid him in two thousand and nine other than regular  cost of living adjustments what they're really arguing is that well hey oprah decided to pay them a little more so we should get the benefit of oprah's adjustments and who they should really should be looking to take money back from should be  well i'm just thinking about the president that we are stab regina we decide the case the way you would like us to decide it and that would seem to be the what if your are mistak results in a decrease the board doesn't have jurisdiction to adjust it but if the mistake would result in an increase between twenty million ninety two thousand and thirteen then the board does have jurisdiction to adjust it and i'm just trying to reconcile that inconsistency and in my mind so judge i don't think you with this court to be setting any precedent because of the rate cases already indicated that the board has to have some statutory authority to make an adjustment to the pension code and it's very possible you're right that the adjustment by the oprah pension fund may not have been entirely statutorily permissible when they increased it by six hundred dollars having already decided that case in the thirty there is that mistake provision that that any pension fund could utilize so because the all the events occurred prior to two thousand and fourteen i don't think this court will be setting any far reaching precedent for any current cases that would come along as far as the i r s implications that council brought up st that wasn't never a basis for the board seeking to reduce benefits it's not any part of their decision in order it's a novel argument that they present for the  st time before the appellate court and there is in their whole basis for bringing that up is there has to be some ability for a board to correct a pension if there's a mistake committed there's always been the ability to do that one through administrative review  that that nobody sought in this case including the lockport pension fund and secondly now through the mistake provision that's it that's in the statute that can always be corrected unfortunately for the board years after after that benefit was awarded simply because like for wants to reduce the amount they pay him just isn't income in employment at the statue they don't have the legal ability to do it it's beyond the statute of limitations and for those reasons we feel that this court should affirm the circuit court's reversal of the pension board's reduction of benefits to as i have one last question for you you're measuring the retroactivity based on the date that the pension was set in two thousand and nine what about using the date that the mistake is discovered because this mistake was discovered i think in two thousand and six and the mistake statute had been in effect for two years at that point in time so was it surely being applied retroactively to that mistake yes recognized you know that you should go ahead and correct it and the mistake is really what the basis of the entire statute is about mitch i think the record got it right that that is the triggering event of it is what you should look at  ok maybe you maybe we need to talk about some kind of supplemental filing did we not just get a new case that was cited in this  difference is thirty dollars a month it's really not a big deal for them or is justice right pointed out the touchstone here really needs to be when the mistake is discovered st of all let's turn to the statute in in in question here the correction statute says you have to correct the benefit to the appropriate level as soon as practicable after the mistake is discovered so we're charged as the pension fund when we when we discover mistake we have to go and correct it notwithstanding whether it makes no difference when the mistake itself occurred if we see a mistake we have to go fix it and that's part of our fiduciary duties as well as the duty imposed by the statu e another follow up to justice rates question about the corresponding correction after oprah made its change so this is the output of that this is the part funds attempt to put things back in her money to put the seesaw back equal level after learning about the fact that oprah put its pension up without us knowing and furthermore just as a matter of as a matter of  equity here you can't have it both ways either we have jurisdiction to increase our benefit and decrease a benefit or we have no jurisdiction at all so there is no way to cogently say that back when there was no  correction statute and the thirty five day window on the administrative review law passed that the oprah fun could have put its benefit up the fact that there was done it's in stone it's set in stone it was forever ago we can't challenge that now but we can words now there are certain exclusions in that correction statute to be certain but they mostly deal with factors relating to a benefit known to the fund at the time of retirement there is no possible way that the lockport fun could have known that the opera fund was going to increase its benefit at the time of retirement that happened six months later and for that reason we don't think that this case falls within the exclusion we think this is purely