SIXTH DI VISI ON May 30, 2008

No. 1-07-2721 JOHN M. FI

ELDS, Plaintiff-Appellant

v. SCHAUMBURG FIREFI GHTERS’ PENSION BOARD, and Rog er Turk, Individually , as President of the Schaumburg Firefig hters’ Pension Board, Defend ants-App ellees. ) ) ) ) ) ) ) ) ) ) Appeal f

rom the Circu it Court of Cook County 04 CH 04436 Honorable James F. Henry, Judge Presiding PRESID ING

JUSTICE

McBRI DE delive

red the o pinion of t

he court : John M. Fiel ds, a for

mer fire captain of the Village of

Schaumbu

rg, fil ed an ac tion in March 2004 against the Schaumburg F irefighters’ Pension Fund and the pension board’ s president, Roger Turk, rega rding a village employ

ee’s miscalculation of Fields’ retirement pension be

nefits by almost 43% . Fields a

lleged the villag e employ

ee’s recalcula

tion of his benefits in 2003 to implement an annual cost-of-living increase w as a “final administrative decision” by the boa

rd. He further alleged he could retain the recalculation because the board was never given statutory authority to rescind a pe

nsion benefits “award” and lost any jurisdiction it might have had by fa iling to pursue the issue within the 35 day period provided by the Administrative Review Law. 735 I LCS 5/3-101 et seq. (West 2004 ); 40 I LCS 5/4 -139 (Wes t 2004). In addition to a declara tory judgment to that ef

fect, Fields sought an injunction preventing the board from meeting to reduce or withhold the 43% increase. Cross-motions for summary judgmen t were f iled and r esolved in favor o f the def ense. F ields app eals. An appeal involving undisputed facts and the interpretation of statutory provisions1-07-2701

2

present s a questi on of law we addr ess de novo

. Sola v. Ro selle Pol ice Pens ion Board , 342 I ll. App. 3d 22 7, 230, 794

N.E.2d 10 55, 1057 ( 2003); Shields v. Judges’ Retirement System of Illinois , 204 Ill. 2d 488, 491-92, 791 N.E.2d 516, 518 (2003). The standar d for reviewing the entry of summary

judgment is also de novo

. Financial Freedom v. Kirgis , 377 Ill. App. 3d 107, 130, 877 N.E.2d 24, 44 (2007). The following legal principles and undisputed fa cts are pertinent. The composition of the Schaumburg Firefighter s’ Pension Fund Board is specified by statute. See 40 IL

CS 5/4-121 (West 2004). Members of the board are deemed f iduciaries with respect to the pension fund or retirement system (40 I

LCS 5/1-101.2 (West 2004)), and may be held personally

liable for breach of any fiducia ry duty establish ed by the I llinois Pens ion Code. 4 0 IL CS 5/109, 1- 114 (West 2004). The board is charged with controlling and managing the pension fund, including any investmen

t expenditu

res and income and all pay ments to dis abled and retire d firefi ghters , their surviving spouses, and other dependents. 40 L CS 5/4-123 (West 2004). The Pension Code specifies how one becomes entitled to a disabled or retire d firefighter’s pension. See e.g. , 40 IL CS 5/4-107 (

West 2004) . The Pens ion Code a lso speci fies how c

reditab le servic e as a firefig hter of a municipa lity is to be ca

lculated (see 40 I LCS 5/4 -108 through 4-1 08.5 (West 2004), a nd how an individual ’s monthly base pen sion is be c alculated. 40 I LCS 5/4 -109 (Wes t 2004). The Pension Code further states that a monthly pension of a disabled or retired firefig hter is to be increased by

3% annually. 40 I

LCS 5/4-109.1 (West 2004). The languag e of the pension statutes is to be liberally construed in fa vor of the rights of the pensioner. Shields , 204 Ill. App. 3d at 494, 791 N.E.2d at 519.1-07-2721

3

In December

1991, Fields began receiving nonduty disability

benefits of $1,881.88 per month fro m the Villa

ge of Sc haumburg . The month

ly p ayments wer

e adjuste d to $2,201 .67 in January 1993. I

n April 1997, the payments we re recategorized as a r

etirement pension rather than a disability pension. I n April 2002, Fields’ $2,201.67 monthly pay ment was increased by 15% to $2,531.92 because Fields attained the ag e of 55 and five y ears had elapsed since he converted from disability to re tirement payments. On January 24, 2003, Keith Wendland, a villag e employee , sent Schaumburg pension recipie nts a lette r indica ting tha t due to “a

recent audit” there would be “ch anges in the way some of the amounts are calculated for incre ases due at January 1, 2003,” and that the annual recalculations would be delay ed by one month. Wendland did not state any specific dollar amount or percentage and he did not indicate the pension board was aware of the a udit or intended change in recalcula tion method. In Februar

y 2003, while rec alculating Fields’ monthly pension payment to include the 3%

annua l cost -of-l ivin g adjus tment he was s tatut orily ent itle d to as of Ja nuary 200 3, a vi llage employ ee err oneously determin ed the 15% increa se in Fields’ bene fits that w as impleme

nted in 2002 shoul d have been impleme nted in 199 2. There

fore, in stead of

increa sing Fie

lds’ monthl

y disbursement to $2,607.88, the employee inc reased the pay

ments nearly 43% to $3,609.92. The employee c ompounded the calculation error by cutting a check for $8,755.54 as a bac k payment for pension benefits that Fields was not actually owed. Village employee Patty Fisher sent the check t o Fiel ds wit h a let ter st ating:1-07-2721

1 This is apparently a r

eference to Fields’ chang e in status from a disability pension recipient to a retirement pension recipient, which incre ased his entitlement by 15%. 4 “Due to th

e chang e in y our statu s, 1 a raise in your pension amount, was overlooked. This raise was due April 2002. I have included a retro check, in the amount of $8,755.74, for the 2002 amount due to you. Your F ebruary 2003 check includes the adjustments for January & February

. In March, y

our pension check will reflect the correct monthly amount of $3,609.92.” This was the full extent of Fisher’s letter to Fields and she ga ve no indication she was speaking on behalf of the board or that the board was a ware of the aty

pical recalculation. On July 11, 2003, Douglas Ellsworth, the village ’s director of finance, sent Fields an apologetic letter indicating that a recent review of pension records had disclosed “ some errors made in your monthly

retirement pension between January 1, 2003 and June 30, 2003.” Ellsworth indicated Fields’ monthly pension pa yment would be reduc ed to the amount he was entitled to, $2,607.88, effective July 2003. Ellsworth enclosed a spreadsheet and summarized that the net effect of the errors wa s overpayme nt totaling $14,768.22. He suggested that Fie lds not spend the recent lump-sum check because the boa rd had an obligation to collect

over pay ments“rec eive d due

to mis calculati ons,”intended t o add ress the sp ecif

ics a t its n ext meeting , and mig

ht demand

immediate

repay ment. On July

14, 2003, E

llsworth a gain

corres ponded wi

th Fields , indicat

ing that the boar d was re questing

repay ment of the

$8,756 lump1-07-2721

5

sum within 1 0 day s and woul d subsequ ently determine a repa

yme nt schedule for the

excess $6,012 inc luded in F

ields’ 20 03 monthly

pay ments. On July 23, 2003, Fields wrote to the finance director to request more information about the recent audit and so-called chang e in his “status.” On October 27, 2003, an attorney representing the pension fund sent Fields a letter which reiterated the substance of the finance director’s two letters. Counsel asked Fields to refund the lump-sum payment within 30 day s or prepare for lega l action. On November 25, 2003, Fields’ attorney refused to refund the overpay ment and demanded that the monthly pay ments be reinstated to $3,609.92. The attorney characterized the village employ ee’s correspondence on January 24, 2003, as a “decision” of the pension board regarding the amount of F ields’ benefits, and asserted that the pension board had only 35 subsequent days in which to “a lter, amend or modify”

its “decision” before it lost jurisdiction. On February

10, 2004, the board’s attorney sent Fields a letter indicating the board received and discussed Fields’ rec ent correspondence but was not persuade d by it. Furthermore , in lieu of a $14,768.22 lump-sum repay ment, the board would begin in March 2004 to deduct $600 from Fields’ monthly pension bene fits until the overpayment was r ecouped. On March 12, 2004, Fields filed the instant suit seeking declar atory and injunctive r

elief. Consistent with his prior correspondence, he made no mention of the village . Instead, he alleg ed the pension board “awarded” him a monthly pension of $3,609.92, tendered the lump sum back payment, and then la

cked any common law or statutory author ity to modify

or withhold the amount of pension benefits it had “awarded” or g ranted to a retiree. He further contended that1-07-2721

2 In his opening appellate brief, Fields states there is no statutory authority for the boa

rd to “order[] him to pay back past bene fits” or otherwise “recover [its] overpay ments [totaling $14,768.2 2].” I

n his repl y br ief, Fie lds statesthe defe

ndants “d o not have

any law or rule empower ing them to recou p [over]pa

yme nts.” The se statem

ents are only remark s made in passing, without supporting argument or citation to the rec ord and legal precedent. The y do not warrant a response from this court. We nonetheless re iterate that Fields’ complaint did not dispute the board’ s authority to demand a

lump-sum r

epay ment and i

ts announc ed intent

ion to deduct $600 per month from Fields’ monthly pension benefits payme

nts until the full $14,768.22

was rec ouped. Th

e board’ s right to

recove r the $14, 768.22 wa s never p ut at issue in the cir cuit court and is not properly

raised in this court of review.

6 the pension board’s only a venue of relief was to appeal its “final administrative decision” pursuant to the Administrative Review Law (40 I LCS 5/4-139 (West 2002), and that such review became time-barred 35 day s after the “decision” to increase his pension. We note, howe ver, that Fields did not allege the board lacked a uthority to make deductions from his monthly pension benefits until he had repaid the $14,768.22 overpay ment and that he sought no relief to that effec t. 2 The pension board and its president (hereinafter board) responded to Fields’ complaint with an answer deny

ing the material allegations and a motion to dismiss, to which it attached copies of some of the correspondence r egarding Fields’ bene

fits. The board did not provide the court with the initial correspondence from the village employees in January

and February

2003 which Fields was characterizing a s a decision of the board. After full briefing , the circuit court1-07-2721

7

denied the motion to dismiss, finding that the allegation “that the Board had a warded the increased pension at its January meeting” was not disputed by any exhibit with evidentiary value. The court suggested the issue could re solved “if the facts and circumstances surrounding the actions in January and July can be established.” The board subsequently

filed a motion for summary judg ment and again tendered some of the correspondence and an af fidavit from the village’s director of financ e, Ellsworth, restating the substantive content of the correspondence. Fie lds countered with a cross-motion for summary judgment, to which he attached copies of the January and February

correspondence he was characterizing

as a pens ion board

decision to incre ase his be

nefits. A fter co nsiderin g the pa

rties’ briefs and oral arguments, the circ uit court denied Fields’ motion and granted the board’ s motion. On appeal from that ruling, Fields arg ues an administrative agency such as the pension board has no inherent or common law powers and is empower ed to act only pursua

nt to the authority gr

anted by statute. He

finds support for this proposition in Rossler v. Morton Grove Police Pension Boar

d , 178 I ll. App. 3d

769, 773, 5 33 N.E.2d

927, 930 ( 1989), wh

ich also indicates that administrative actions which exceed the authority delegated are void actions. He contends there is no statute which expressly authorizes a firefighters’ pension board to re duce the amount of payments it has awa rded to a pensioner. He cites a trio of relate d cases, Shields , 204 Ill. 2d 488, 791 N.E.2d 516, Janata v. Police Pension Fund of the Village of Hillside , 140 I ll. App. 3d 925, 489 N.E.2d 498 (1986), and People ex rel

. Wright v. Board of Trustees of the Teachers’ Retirement System , 157 Ill. App. 3d 573, 510 N.E.2d 1283 (1987), as g eneral support for the p roposition

that if the

legisla ture inte nded to au

thorize a f

irefig hters’ p ension boa

rd to1-07-2721

8

reduce his pension, the legislature would have e xpressly grante d this power. In addition, he relies on the Pension Code (40 IL CS 5/3-148 (West 2004) for its indication that pension board decisions are subject to the Administrative Review L aw (735 IL CS 5/3-101 (West 2004)), and the po rtion of the Admi nist rativ e Revi ew Law sta ting:

“Every action to review a final ad ministrati ve decis ion shall be commenced by

the filing of a complaint and the issuance of summons within 35 days from the date that a c opy of the dec ision sought to be reviewed was served upon the pa rty affected by the decision.” 735 IL

CS 5/3-103 (West 2004). He further argues that in ac cordance with the principles of statutory construction that the legislature’s languag e is to be given its plain and ordinary meaning and enforced as wr itten ( Janata , 140 Ill. App. 3d at 927, 489 N.E.2d at 500), we must conclude that a local pension board has no jurisdiction after 35 day s to disturb its decision to award benefits, even if the board has made a mis take. F

inally , he arg

ues that Rossler

and Sola are analogous to his own case ( Rossler , 178 I ll. App. 3d

769, 533 N .E.2d 927; Sola , 342 Ill . App. 3d 227 , 794 N .E.2d 1055) , even thou gh they specific ally

concer n the polic e pension

fund, an d that the

y de monstrate the firefighte

rs’ pension board lost jurisdiction to address the alleged calculation mistake in Fields’ be nefits when the board failed to address its decision in a timely fashion. We do not accept the premise of Fields’ arg ument that the January and F ebruary 2003 errors in calculation that resulted in overpay ments to him were “an award of pension benef its” or a “fina l administr

ative de cision” b y the Schaumburg Fi refighters’ Pe

nsion Boa

rd. Fiel ds is1-07-2721

9

relying on correspondence from village e mployees indicating

the employees would r

ecalculate or had recalculated his monthly pension benefits for the 2003 calendar y ear. Although Fields alleged and has repeate dly arg ued the village’s letters were an “ award” by the pension board, the village employ ees were not members of the pension board, they did not purport to speak on behalf o f the pen sion boar d, and the y di d not sug gest in a

ny w ay that the b oard wa s aware of their change in calculation method or corre spondence to Fields. We find guidance in Sola , which analyzed whe ther a pension board rendered a decision within the meaning of the Administrative Review L aw to award a base pension amount and subsequent 3% annual cost-of-living increase s to the widow of a Roselle police officer. Sola , 342 Ill. App. 3 d 227, 794 N. E.2d 1 055. T he wid ow fil ed an ap plica tion in 19 93 wit h the V illa ge of Roselle Police Pension Board requesting benefits as a surviving spouse and sent a letter to the president of the board requesting an a nnual cost-of-living increase. Sola , 342 Ill. App. 3d at 229, 794 N.E.2 d at 1056. Late r, no one could loc ate a wr

itten dec ision ref

lecting the boar d’s awa rd in 1993 of a pension and 3% annual cost-of-living incre ases, but for the next seven ye ars, she received the pension benefits and annual 3% incr eases without question. Sola , 342 I ll. App. 3d

at 232, 794 N.E.2d at 1058. The board’s records definitively indicated it reviewed and approved an annual increase to her pension in 1996. Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 1059. Even so, in late 2001, following an audit by the Illinois Department of I nsurance and its advice that surviving spouses w ere not s tatutoril y e ntitled to c ost-of-l

iving inc reases , the Villa

ge of Ro selle notified the widow that it would not be increasing her pension benef its in 2002 beyond the 2001 level. Sola , 342 Ill. App. 3d at 229, 794 N.E.2d at 1056. I n addition, the pension board notified1-07-2721

10

her that her entitlement to the cost-of-living increase s would be addressed at an upcoming board meeting. Sola , 342 Ill. App. 3d at 229, 794 N.E.2d at 1057. At that point, the circuit court granted her request for declaratory and injunctive relief preventing the board f rom reconsidering her entitlement to the annual adjustments. Sola , 342 Ill. App. 3d at 229, 794 N.E.2d at 1056. On appeal, the board and the village a ttempted to capitalize on the lack of a written decision from 1993, by ar guing the board was not preclude d from holding a hearing in 2002 because it never actually

rendered an administrative decision on the widow’s reque st for a pension and 3% annual increases. Sola , 342 Ill. App. 3d at 231, 794 N.E.2d at 1058. Without an administrative decision, the board argued, the A dministrative Review Law and its 35-day limit, were inapplicable. Sola , 342 I ll. App. 3d

at 231, 79 4 N.E.2d a

t 1058. To r

esolve th is argument, the appellate court first looked to the def initions section of the Administrative Review Law, which indicated an “ ‘[a]dministrative decision’ ” or “ ‘decision ’ ” for purposes of the Act is “ ‘[a]ny decision, order or de termination of any a

dministrative agency

rendered in a particular case, which affects the leg al rights, duties or privileges of parties and whic h terminates the proceedings before the a

dministrative agency .’ ” Sola , 342 Ill. App. 3d at 231-32, 94 N.E2.d at 1058, quot

ing 735 I LCS 5/3 -101 (Wes t 2002). T he court also reli ed on pre

cedent indicatin g: “ ‘ “A final and binding decision by an administrative agency requires, at the very

least, that the agency

has taken some definitive action with regard to the application before it and that the applicant has been informed of the action.” ’ ” (Empha sis omitted.) Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 1058, quoting Key Outdo or,1-07-2721

11 Inc. v. Department of Transportation , 322 Ill. App. 3d 316, 324, 750 N.E.2d 709 (2001), quoting Illinois W ood Energ

y Partner s, L.P. v. County of Cook , 281 Ill. App. 3d 841, 851, 667 N.E.2d 477 (1995). The court indicated the “application” criterion wa s satisfied by the widow’s 1993 pe nsion application and contemporaneous letter to the board preside nt requesting cost-of-living increase s. Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 1058. The “definitive action with regard to the a pplication before [the board] and that the applicant has been informed of the action” wa s shown by a combination of (1) the widow’s subsequent receipt of pension benefits and annual cost-of -living increases, (2) the board’s 1996 approval of an annual increase in her pension, (3) the 2000 audit record stating the widow “ ‘w as granted a pension of $1596.59, effective May 10, 1993’ ” a nd that “ ‘annual increases have bee n granted since 1993,’ ” and (4) the board’s 2001 letter stating “ ‘in 1993 the Pension Board awarded [the widow] a 3% cost of living increase.’ ” Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 1059. Thus, Sola indicates for purposes of the Administrative Review Law, we should be looking f or commun

ication b etween

the pers on seekin g benefits and th e pension board. T he case also tells us that even when we lack the board’s specif ic response to the benefits applicant, we may deduce

the board’s action from its subsequent communication to the applicant. Nevertheless, at oral arguments, F ields cited Sola for the proposition that a pension pay ment alone is evidence of a pension board’s dec ision to award a certain amount of benefits. Sola , 3421-07-2721

12

Ill. App. 3d 227, 794 N.E.2d 1055. This interpretation of the ca se is incorrect, as it disregards the appellate court’s reliance on not only payments to the police off icer’s widow, but also numerous communications from the board regarding its decision to award her annual cost-of-living increases. See Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 1059. I t also completely disreg ards the application prong of a final administrative decision. Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 1058. The cas es Sola relied o n, such a s Key Outdoor , 322 Ill. App. 3d 316, 750 N.E.2d 709, further illustrate the components of a final administrative decision for purpose s of the statute. Key Outdo or concer

ned acc ess to com

mercial propert y ne ar the c orner of

44th Stree

t and U.S. Route 36 in

Decatu r, Illinois, whi ch, while

not land- locked, w as acce ssible only from a residential dead-end street. Sola , 342 I ll. App. 3d

at 232, 79 4 N.E.2d a

t 1058; Key Outdoor , 322 Ill. App. 3d at 318-19, 750 N.E.2d at 711. I n 1999, the 1.2-acre lot was vacant except for the property owne

r’s outdoor advertising sign. Key Outdoor , 322 Ill. App. 3d at 319, 750 N.E.2d at 711-12. The owner contracted to sell the lot to a commercia l car wash business, contingent upon the receipt of a commercial drivewa y permit onto 44th Street, and then wrote a letter to the Illinois Department of Transportation to reque st the permit. Key Outdoor , 322 Ill. App. 3d at 318-19, 7 50 N.E.2d

at 711-12 . The Dep artment r esponde d with a le

tter den yin g the pe

rmit request, and when the owner asked for a written explanation, the Department responded with a letter which included its reasoning for the denial. Key Outdoor , 322 Ill. App. 3d at 319-20, 750 N.E.2d a t 712. The

owner wr

ote back asking f or an expla

nation asto why

the Depa rtment would not grant a variance, and whe n a response was not forthcoming, he filed a c omplaint for1-07-2721

13

administrative review in the circuit court, arguing for the first time that the Administrative Review L aw and the Administ

rative Pr ocedure Act entit led him to a

formal he aring o n his commercial driveway

application. Key Outdoor , 322 Ill. App. 3d at 320, 750 N.E.2d at 712; 735 IL CS 5/3-101 through 3-113 (West 1998); 5 IL CS 100/1-1 through 15-10 (West 1998). The appellate court acknowledged tha t a final administrative decision “ usually follows [fr

om] some sort of adversarial process involving the par ties affected, a hearing

on the controverted facts, and an ultimate disposition rendered by a n impartial fact finder.” (Emphasis in original.) Key Outdoor , 322 I

ll. App. 3d

at 324, 75 0 N.E.2d a

t 716. I t determined, howe

ver, tha t so long a s “ ‘the agency

has taken some definitive action with regard to the a pplication before it and *** the applicant has been informed of the action,’ ” a hearing is not required. Key Outdoor , 322 I ll. App. 3 d at 32 4, 750 N.E.2 d at 71 6, quo ting Illinois W ood Energ

y Partner s , 281 Ill App. 3d at 851, 667 N.E.2d 477. Citing the owner’s written request for a c ommercial driveway permit and the agency ’s responsive letters stating its decision and its reasoning, the cour t concluded there had been a final administrative decision within the meaning of the Administrative Review Law. Key Outdoor , 322 Ill. App. 3d at 324, 750 N.E.2d at 716. Sola also relied on Illinois W ood Energ

y Partner s , 281 Ill. App. 3d 841, 667 N.E.2d 477, a case which emphasizes the need for direct interaction between an applicant and an administrative agency , instead of some other, affiliated person, before there can be a decision subject to the parameters of the Administrative Review L aw. Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 808. The case centered on the f act that the Cook County zoning administrator had the authority to issue certifica tes confirming the zoning classification of specific land pa rcels.1-07-2721

14

Illinois W ood Energ

y Partner s , 342 Ill. App. 3d at 848, 667 N.E.2d at 481. I n the event the administrator’s determination was adverse, a party could appeal the administrator’s ruling to the Cook County Zoning B oard of Appeals, which would in turn conduct a public hearing on the proper zoning classification and issue a decision subject to the Administrative Review L aw . Illinois W ood Energ

y Partner s , 342 Ill. App. 3d at 848, 667 N.E.2d at 481. A developer wanted a zoning c ertific ate indic ating th at a prop osed fac ility in Sauk Vill age, I

llinois, wo

uld qualif y a s a wood-burning power plant, which was a pe rmitted use, instead of a solid waste incinerator, which would require a special use permit. Illinois W ood Energ

y Partner s , 281 Ill. App. 3d at 844, 667 N.E.2d at 479. The developer sent a letter to the zoning administrator re questing the zoning certificate and also stating, “ ‘We would we lcome the opportunity to present the me rits of our [interpretation of the zoning ordinance] to the Cook County Z oning Board of Appeals which is charged with the responsibility for interpreting the Cook County Zoning Ordinance.’ ”Illinois Wood Energy P

artners , 281 Ill. App. 3d at 844, 667 N.E.2d at 479. The zoning administrator wrote to the board, outlining the developer’s reque st for a favorable zoning certificate and willingness to address the board on this subject, and the matter was then c onsidered by the zoning board at two executive sessions. Illinois W ood Energ

y Partner s , 281 Ill. App. 3d at 844- 45, 667 N.E.2d at 479. Following these executive sessions, the board sent a letter to the zoning admin istr ator r egardin g her request that the board consider how the ordinance applied to the developer’s proposed facility

. Illinois W ood Energ

y Partner s , 281 Ill. App. 3d at 845, 667 N.E.2d at 479-80. Although the board’s letter was addr essed only to the zoning administrator, the developer somehow obtained a copy , and based on the board’s conclusion that the proposed1-07-2721

15

facility was a

power plant and not an incinerator, the developer began the process of obtaining federal, state, and local reg ulatory authorization for the project. Illinois Wood Energy , 281 I ll. App. 3d at 845, 667 N.E.2d at 480. The zoning administrator never responded to the de veloper’s request for a zoning certificate. Illinois W ood Energ

y Partner s , 281 Ill. App. 3d at 848, 667 N.E.2d at 482. When Sauk Village opposed construction of the facility and refused to allow the developer to grade the proper ty without a special use c ertificate for an incinerator, the de veloper filed a complaint for a writ of mandamus to compel issuance of a grading permit, and then characterized the zoning board’s letter a s a final and binding administrative decision in the developer’s favor. Illinois Wood Energy , 281 Ill. App. 3d at 846-47, 667 N.E.2d at 480-81. While the circuit court found this persuasive, the appellate court did not, and found the letter amounted to nothing more than an internal communication expressing an advisory opinion to the administrator about the developer’s request to the administrator for a zoning certificate. Illinois Wood Energy P

artners , 281 Ill. App. 3d at 851, 667 N.E.2d at 483. As such, the board’ s letter did not fit within the established definition of a final administrative decision, which “requires, at the very lea st, that the [board] has taken some definitive action with regard to the application before it and that the applicant has been informed of the action.” Illinois W

ood Energ

y Partner s , 281 Ill. App. 3d at 851, 667 N.E.2d at 483. Applying this criter

ion to the present case, we conclude the record shows that in the 1990's, Fields applied to the pension board for a base pension and 3% annual cost-of-living increases. Although we lack a c opy of Fields’ or iginal application and the board’s response, like the court in Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 1058-59, we ca n deduce these facts from1-07-2721

16

Fields’ undisputed receipt of benefits and the letter wr itten to Fields by the board’ s attorney on October 27, 2003, indicating Fields’ pension benefits had been overpaid between Februa ry 2003 and June 2003 due to a recalculation dating back as f ar as 1992. Thus, we can deduce F ields applied f or a base pension a

nd 3% ann

ual cost- of-living

increa ses and th at the boa rd gra nted his application. There is no indication Fields challenged the pension board decision within the 35- day period ( see 735 IL

CS 5/3-103 (West 2004)), and Fields has not cited any subsequent application to the board to increase his benefits by nearly 43% in early 2003, instead of the usual 3%. In fact, Fie

lds has never contended that he is statutorily entitled to an award of the much higher amount he received for a few months in 2003. He is arguing that mere ly because

the village notified him it was recalculating his monthly payment (pursua

nt to the board’s existing pension award) and then notified him the village had re calculated his monthly pay ment, he became entitled to the recalculated amount. We find, howeve r, that there was no pension benefits “application” which could be considered by the defendant board in 2003 and result in an administr ative de cision sub

ject to the

Administra

tive Revie

w La w which increase d Fields’ monthly entitlement to $3,609.92. 735 I LCS 5/3-101 (West 2004). See Sola , 342 Ill. App. 3d at 232, 794 N.E.2d at 1058 (discussing need for surviving spouse to submit “applica tion” to the Roselle Police Pension Board before it could be said board awa rded a cost-of-living increase)

. Furthermore, Fields fails to cite any minutes of Schaumburg Firefighter s’ Pension Board, other records of the board, or corr espondence to him reflecting that the board c onsidered and agreed his benefits should increa se by

43% in just o ne y ear, and then inf ormed him o f its decision. Although an adversarial hear ing is not essential, definitive action by the board and1-07-2721

17

communication of that decision is indispensable. Key Outdoor , 322 Ill. App. 3d at 324, 750 N.E.2d a t 716 (a f inal admin

istrative decision usually follows f rom some a

dversar ial proc ess involving the parties affected, a hea ring on controverted facts, and an ultimate disposition rendered by

an impartial fact finder, but a hearing is not required provided the agency has taken definitive action with regard to an application bef ore it and the applicant has been informed of the actio n). Fiel ds does no t argue the boar d even ha d prior kn owledg e of the village employ ees’ effort in 2003 to supposedly “c orrect [the] monthly amount of [his benefits to] $3,609.92.” The record indi cates t he boa rd lear ned of the in crease after t he fact , in J une 20 03, wh en the vill age informed the board of the village’s miscalculation and ove rpayment of be

nefits. The

corres ponde nce fro m the v illa ge to Fi elds i n Jan uary and Feb ruary 2003 indi catin g the vi llage would re calcula

te his benefits and

had rec alculated his benefits is not a substitute

for a le gally binding determination by the board which was communicated to Fields. The unsolicited

corres pondenc e from the

village is not indic ative of

“definitive acti on by

the boar d with reg ard to an application before the board” and it ca nnot be construed as an effort to inform an applicant of the action. See Sola , 342 I ll. App. 3d

at 232, 79 4 N.E.2d a

t 1058 (dis cussing

need for Roselle Police Pension Board to take definitive action with respect to application and to inform a pplicant of results). Thus, in the absence of an application and proceedings of some sort before the pension board in 2003, which resulted in a benefits determination which was communica ted to Fields, we find there was no “decision” or “administrative dec ision” by the board within the mea ning of the Administrative Review Law to increa se Fields’ pension benefits by nearly 43% in 2003. The1-07-2721

18

record does not substantiate that the board -- the only entity with statutory

authority to render pension de

cisions -- consider

ed and decided in 2 003 to dra maticall y increase Fields’ monthly check. The only

decision within the meaning of the Administrative Review L aw that we are aware of was the one awar ding Fields a base pension and 3% annual c ost-of-living increases, and th at de ci si on of

th e S ch au mb ur g F ir ef

ig ht er s’ Pe ns io n B oa rd wa s n ot ap pe al ed wi th in 35 da ys and could not be revisited by

the boar d in 2003. T

he villag e employ

ees’ er rors in 20 03 in implementing the existing decision of the board do not amount to a new award of benefits by the board entitling Fields to at least $3,609.92 per month. For thes e reaso ns, we re

ject the p remise of Fields’ appeal. His alleg ations an d argu ments regarding the board’ s failure to subsequently c omply with the Administrative Review L aw fall by the wayside. 735 I

LCS 5/3-103 (West 2002). In the a bsence of a “decision” subject to the

statu te, th e stat ute is not co ntrol ling. Furthermore, his reliance on Rossler and Sola is unavailing, as neither case is analog ous to his own. Rossler , 178 I ll. App. 3d

769, 533 N .E.2d 927; Sola , 342 Ill. App. 3d 227, 794 N.E.2d 1055. Again, the record indicates F ields applied to and was granted a base pe nsion and 3% annual cost-of-living increases by the board in the 1990's, and in 2003, without further input to or fro m the boar

d, villag e employ

ees err ed in imple

menting this decis ion. I

n contra st, in both Sola and Rossler , pension boards considered and grante d benefit applications but then attempted to review the substance of their decisions after the 35- day limit provided by statute. Rossler , 178 Ill. A pp. 3d 769, 533 N.E.2 d 927; Sola , 342 Ill. App. 3d 227, 794 N.E.2d 1055. As discussed above, Sola involved the Roselle Police Pension Board’s attempt to redetermine whether a police1-07-2721

19

officer’s widow was statutorily entitled to 3% annual adjustments, after she had been rec eiving the adjustments for nearly a decade. Sola , 342 I

ll. App. 3d

227, 794 N .E.2d 1055 . Similarly , in Rossler , the Morton Grove Police Pension Board attempted to redetermine w hether a retiree had accumul ated suf

ficient t ime towar

d a 20-y ear pen sion, aft

er (1) th e board a pproved his reque st for a five-month leave of absence from the force to act as a security consultant for the 1984 Olympic Games in L

os Angeles, (2) the board ag reed the five months would be counted as creditable time toward his Morton Grove pension, (3) the board notified the deputy police chie

f, upon his re

turn to the

local pa yr oll, that he

had accumulated

20 y ears an d 7 day s of cre ditable service toward retirement, and (4) the de puty police chief r

etired and moved to a different part of the country. Rossler , 178 Ill. App. 3d 769, 533 N.E.2d 927. I n addition to finding that the board had no authority to rec onsider the deputy police chief’s entitlement to a 20-y ear pension ( Rossler , 178 Ill. App. 3d at 776, 533 N.E.2d at 932), the court indica ted that pension recipients should be able to r ely on the judg

ment of the

pension bo ard as to

their en titlement t

o benefi ts ( Rossler , 178 Ill. App. 3d at 775, 533 N.E.2d at 931), and that eve n if the board had jurisdiction to reopen the matter, it would be

equitabl y e stopped f

rom doing

so after the offic er had r

etired a nd reloc ated in reliance on the board’s decision. Rossler , 178 I ll. App. 3d

at 775, 53 3 N.E.2d a

t 931. I n contra st

to Sola and Rossler , howeve r, the Sch aumburg

Firefi ghters ’ Pension B oard did n ot attempt to revisit the substan

tive ques tion of whe

ther Fie lds was en

titled to a retirem ent pensi on. Field s’ right to pension benefits was never in jeopardy , nor was there any uncertainty a

bout his right to a 3% cost-of-living increase. I t was only y

ears after Fields was awa

rded a pension that an error was made during the routine calculation of a cost-of-living increase due in 2003. Moreove r,1-07-2721

20

althoug h Fields c ontended

at appellate arg

uments tha

t Rossler ’s equitable estoppel principles are pertinent here, they

are not. See Rossler , 178 Ill. App. 3d at 775, 533 N.E.2d at 931. Fields received overpay

ments in February , March, April, May , and June 2003, rather than for several years like D eputy Chief Rossler. Also, he neve r alleged or previously

contended that he took any action, s uch as De

puty Chief Ross ler’s re

tirement and relo cation to

another state, in r easonab le reliance on the 43% increase and tha t he would suffer substantial loss unless the increased amount was maintained. See Rossler , 178 Ill. App. 3d at 775, 533 N.E.2d at 931 (stating a nd applying the

principles of equitable estoppel doctrine). There is no appa rent factual basis for an equitable estoppel finding and raising the principle f or the first time on appeal is ineffective. We also re

ject Fie lds’ cont ention tha t Shields , 204 Ill. 2d 488, 791 N.E.2d 516, Janata , 140 Ill. App. 3d 925, 489 N.E.2d 498 , and Wright , 157 Ill. App. 3d 573, 510 N.E.2d 1283, justify a reversal. These cases conc ern the proper interpretation of statutes which have no bearing on Fields’ benefits. Each case involved a pe nsion recipient who was subsequently convicted of a felony, which trig gered a statute terminating their e ntitlement to a public servant’s pension and also severing any

connection between the pension sy stem and the pensioner by refunding all of the pensioner’s salary

contributions. See Shields , 204 Ill. 2d 488, 791 N.E.2d 516 (indicating the newly convicte d felon, a retired judge, was entitled to a full re fund of his salary c ontributions and that the r etireme nt board c ould not fi

rst deduct the amou

nt of pens ion benef

its paid pr ior to his convicti on); Janata , 140 I ll. App. 3d

925, 489 N .E.2d 498 (finding police of ficer’ s entitlem

ent to disability pension benefits did not terminate on date he committed felony; statute required an actual felony

conviction and did not allow for earlier termination of benefits or recoupment of1-07-2721

21

benefit s paid pri or to conv iction); Wright , 157 Ill. App. 3d 573, 510 N.E.2d 1283 (holding that statute specific to public school teachers who are “ convicted of any felony re lated to or arising out of or in connection with his or her service as a teac her” was not triggere d when public servant pled guilty to a fe

lony; formal judgme

nt of conviction and sentence were nece ssary bef ore he was “not entitled to re ceive be nefits fr om the [pen sion] sy stem”). T hese ca ses migh

t be pert inent if Fi el ds wa s c on vi ct ed of

a f el on y an d p ur ge d f

ro m t he fi re fi gh te rs ’ p en si on sys te m. Bu t p la in ly, such statutes have no application to his ongoing pension pay ments from the pension fund nor do they sugge st he is en

titled to the miscalc

ulation of a routine cost-of -living adjustmen

t. Having determined there was no new benefits award in 2003 subject to the Administrative Review Law (735 I LCS 5/3-303 (West 2004); 40 IL CS 5/3-148 (West 2004)), we now turn to the specific question of whether the circuit court prope rly gr anted the defense motion for summa

ry judgmen t on Field s’ compla

int. Fields c ontends th

is appea l is the review of a

n administr

ative de cision, wh

ich it is not , and cite s Lindsey v. Board of Education of the City of Chicago , 354 Ill. App. 3d 971, 978, 819 N.E.2d 11 61, 1167 ( 2004), fo r the pro position tha

t in an adm

inistrativ e revie w we are

limited to reviewing the decision of the ag ency, ra ther than the circuit court. I f Fields were correct, we would be unable to consider the affidavit attached to the de fendants’ motion for summary judgment, as this affidavit was created on Aug ust 28, 2006, for presentation to the trial judge. We have already

determined there is no administrative decision to review and now also point out that Fields’ complaint did not seek administrative review. I n his pleading Fields sought declar atory and i njun ctive relie f agains t the b oard t o prev ent it from “ condu cting a hearin g”1-07-2721

22

regarding the overpa

yment of benef

its, because, according to Fields, a decision was rendered and became unassailable with the passage of time. Therefore, we are not pre vented from considering the aff idavit. The purp ose of a s ummary judgmen t procee ding is no t to try

a questio n of fac t, but to determine whether one exists. In re Estate of Allen , 365 Ill. App. 3d 378, 385, 848 N.E.2d 202, 210 (2006). The circuit court’s task is to determine whether the c omplaint and answer, and any depositio n transc

ripts, ad missions, a

nd affid avits on f

ile, cons trued in th

e light mo st favor

able to the opponent, rev eal a g enuine is sue of ma terial f act and w hether t he moving

party is entitle d to judgment as a matter of law. Financial Freedom , 377 Ill. App. 3d at 130, 877 N.E.2d at 44. Even though the order on appeal does not disclose the c ourt’s specific reasoning for re solving the cross-motions for summary judg ment in favor of the board, and we were not given a transcript of the hearing from which we might disce rn the court’s reasoning, we proc eed without hesitation because the entry

of summary judg ment is to be reviewed on a de novo basis. Financial Freedom , 377 Ill. App. 3d at 130, 877 N.E.2d at 44. The entry of summary judg ment “has been called a ‘drastic measure,’ [but] it is an appropriate tool to employ in the expeditious disposition of a lawsuit in which ‘ “the right of the moving par ty is clear a

nd free from doubt.” ’ ” F.H. Paschen /S.N. Nielsen, Inc. v . Burnham Station, L.L. C. , 372 Ill. App. 3d 89, 94, 865 N.E.2d 228, 233 (2 007), quot ing Morris v. Margulis , 197 Ill. 2d 28, 35, 754 N.E.2d 314 (2001), quoting Purtill v. H

ess , 11 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). I f the party moving

for summary judgmen t supplies f

acts whic h, if not c ontradic ted, woul d entitle t he party to judgme

nt as a matter of law, the opposing party cannot rely on his plea

ding alone to create a g enuine issue of1-07-2721

23

material fact. Financial Freedom , 377 I ll. App. 3d

at 130-31 , 877 N.E. 2d at 44. T o resist a motion for

summary judgmen t, the oppo nent must p

rovide so me factu al basis th at would arguably entitle him to judgment. Financial Freedom , 377 Ill. App. 3d at 131, 877 N.E.2d at 44. Furthermore, a court must accept an a ffidavit as true if it is uncontradicted by counteraffidavit or other evidentiary

material. Financial Freedom , 377 Ill. App. 3d at 134, 877 N.E.2d at 46-47. In the affidavit at issue, Douglas Ellsworth, the village’s director of finance , set out the following facts: ( 1) Field s was enti tled to only

a 3% incr

ease in Ja nuary 2003, whic

h would increase his monthly re

tirement payment of $2,531.92 to $2,607.88; (2) due to the erroneous belief that the increase should have dated to 1992, Fie lds’ monthly pay

ments in early 2003 we

re increased to $3,609.92 and he was given a retroactive check for $8,755.00; (3) the sum of the village’s erroneous disbursements to Fields in 2003 was $14,768.28; and (4) the subsequent downward adjustment in his pension payme nts was “solely due to the discove ry of the e

rrors which had been made in the calculation of benef its, which errors were discovered upon a r eview of the pension records by the Village of Schaumburg.” F ields did not contradict these facts by way of a n affidavit or other evidentiary matter, and, therefore, these facts were admitted. The facts disclosed by

the correspondence to Fields and Ellsworth’s af fidavit undermine Fields’ allegations that “the Board *** a warded Plaintiff a monthly pe nsion of $3,609.92 and check of $8,755.00," that the board and its president we re “without legal authority and acting contrary to law and public policy of State of Illinois [by see

king to] modify pension benefits [the board] pr eviously grante d” and the

board ha d “no stat utory or common

authority to rescind /modify or withhol d pension b enefits i t previou sly

grante d to Plaintif

f.” The se statem

ents1-07-2721

24

are inc orrect

and Fields was no t entitled to the judicial decla

rations he sough

t. The re cord als o undermines Fields’ claim for the entry of a preliminary

and permanent injunction to prevent the board fr om “condu cting a

hearing to rescind/modify

or withhol d the pens ion benef its awar ded to Plaintiff on January 24, 2003." A pa rty seeking

preliminary injunction must plead fac ts which “clearly establish a right to injunctive relief.” Village of Lake in the

Hills v. Lai

dlaw W aste Systems, Inc. , 143 Ill. App. 3d 285, 291, 492 N.E.2d 969, 974 (1986). Alleg ations consisting of “mere opinion, conclusion or belief are not sufficient to support issuance of a writ.” Village of Lake in the

Hills , 143 Ill. App. 3d at 291, 492 N.E.2d at 974. “A party requesting a preliminary injunction must show: (1) that he possesses a clearly ascertainable right or interest which needs protection; (2) that he will suffer irreparable injury without protection; (3) that there is no adequate remedy

at law; (4) that there is a substantial likelihood of success on the merits; and (5) that in the absence of preliminary relief, he will suffer grea ter harm without the injunction than defendant will suffer if it is issued.” Village of Lake in the

Hills , 143 Ill. App. 3d at 291, 492 N.E.2d a t 974. Fie

lds faile d to meet e

ven the f irst of the se five necessa

ry elements . He fail ed to plead facts showing that he possessed “a c learly asc ertainable right or interest” in the village ’s overpayme

nt of pension benefits. Village of Lake in the

Hills , 143 Ill. App. 3d at 291, 492 N.E.2d at 974. Moreover, he failed to subsequently provide any f

acts during the summary judgment proceedings which would arg uably entitle him to injunctive relief. See Financial Freedom , 377 I

ll. App. 3d

at 131, 87 7 N.E.2d a

t 44 (to re sist a motio n for summa ry judgmen t, the opponent must provide some factual basis that would arguably entitle him to judgment). Because Fields was not entitled to declara tory or injunctive relief

, the circuit court’s denial of1-07-2721

25

Fields’ motion for summary judg ment and granting of the board’ s cross-motion for summary judgment was proper. According ly, we aff irm the judgment order of the circuit court of Cook Co un ty. Affirmed. J. GORDON and O’MALL EY, JJ., concur.