2022 IL App (1st) 220288-U 

 THIRD DIVISION

November 30, 2022

No. 1-22-0288 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE 

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

KENNETH BRUCKI,

 Plaintiff-Appellant, 

v. 

ORLAND FIRE PROTECTION DISTRICT, ORLAND 

FIRE PROTECTION DISTRICT PENSION BOARD OF 

TRUSTEES, TRUSTEE GEORGE SCHICK, TRUSTEE 

NICK ANASTOS, TRUSTEE KEVIN KITCHEN,

TRUSTEE MICHAEL SCHOFIELD, and TRUSTEE JEFF 

RUCHNIEWICZ,

 Defendants-Appellees.

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Appeal from the

Circuit Court of

Cook County

No. 19 CH 7197

Honorable 

David B. Atkins, 

Judge Presiding.

____________________________________________________________________________ 

JUSTICE REYES delivered the judgment of the court.

Presiding Justice McBride and Justice Gordon concurred in the judgment.

ORDER

¶ 1 Held: Reversing the judgment of a pension board regarding the effect of a former fire 

chief’s paid administrative leave on the calculation of his pension benefits. 

¶ 2 This appeal involves a dispute between a firefighters’ pension fund and a former fire 

chief regarding the calculation of the chief’s pension. Kenneth Brucki (Brucki), the former fire 

chief of the Orland Fire Protection District (District), contends that a 4-1/2-month period that he 

was on paid administrative leave prior to his retirement should count toward the calculation of 
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his pensionable salary. He also asserts that an annual salary adjustment – which increased his 

salary by 3% shortly before his retirement date – should be included in the pensionable salary 

calculation. After conducting hearings and obtaining an advisory opinion from the Illinois 

Department of Insurance, the Orland Fire Protection District Pension Board of Trustees (Board) 

found that Brucki’s final date of service was August 20, 2015 – prior to his administrative leave 

– and that his annual pensionable salary was $181,200, i.e., the 3% adjustment was not included. 

¶ 3 Brucki filed a complaint for administrative review under the Administrative Review Law

(735 ILCS 5/3-101 et seq. (West 2018)), and the circuit court of Cook County affirmed the 

judgment of the Board. In the instant appeal, Brucki challenges the Board’s calculation of his 

pension benefits and contends that the Board proceedings violated his due process rights. 

As discussed herein, we reverse the decision of the Board and the circuit court and remand with 

instructions to recalculate and award pension benefits to Brucki based on a final date of service 

of January 4, 2016, and an annual salary amount which includes the 3% adjustment – $186,449. 

¶ 4 BACKGROUND

¶ 5 Employment Contract and Retirement Agreement

¶ 6 The District and Brucki entered into a three-year employment contract on June 1, 2013, 

whereby Brucki was retained as the “chief/administrator” (chief). The contract provided for an 

annual salary adjustment of 3% or the cost of living, whichever is greater. The contract also 

delineated bases for termination, including (a) by mutual written agreement of Brucki and the 

board of trustees of the District and (b) for “cause,” as defined in the contract.

¶ 7 Brucki was placed on paid administrative leave on August 21, 2015. After negotiations, 

on October 14, 2015, Brucki and the District executed a retirement agreement and general 

release (retirement agreement), which was intended to resolve any disagreements, e.g., relating 
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3 

to Brucki’s employment with the District, without any admission of liability or wrongdoing. The 

retirement agreement provided that he would continue to be on paid administrative leave through 

January 4, 2016 – his deferred retirement date and the date of his termination of employment. 

Brucki agreed to pay $12,500 as reimbursement for charges on the District’s credit cards.

¶ 8 The retirement agreement stated that Brucki was to remain in his appointed rank of chief 

during his leave and was entitled to compensation in accordance with the District’s policies and 

“existing agreements.” The District agreed not to take action prior to his retirement which would 

diminish “any current monetary employment benefit,” other than discontinuing his right to use 

the District’s property, including cell phones and vehicles. The retirement agreement further 

stated that Brucki would continue to receive his compensation “through regular payroll processes 

during his paid leave, less all applicable withholdings calculated at his current rate of pay.” 

¶ 9 The retirement agreement provided that it was the whole agreement between Brucki and 

the District and that it superseded any and all prior agreements between the parties, including his

employment contract, which was expressly voided by the retirement agreement. Nevertheless, in 

a letter dated February 23, 2016, the District stated that Brucki was entitled to payment for his 

unused vacation days in accordance with his employment contract. As Brucki apparently had 

not made the $12,500 payment required by the retirement agreement, such amount was deducted 

from checks sent by the District to Brucki relating to unused vacation and sick days.

¶ 10 Pension Application and Initial Board Proceedings

¶ 11 After his 50th birthday in October 2017, Brucki was entitled to a pension. In his pension 

application, he listed his last day worked as January 4, 2016, and his annual pensionable salary 

as $186,449, which included the 3% adjustment on January 1, 2016. The pension fund submitted 
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paperwork indicating that his last day was August 20, 2015, and his salary was $181,220.

¶ 12 During a meeting on December 6, 2017, the Board discussed the calculation of Brucki’s 

pension. The Board’s attorney, Cary Collins (Collins), expressed concern that there may have 

been an artificial “spike” in Brucki’s pensionable salary and that the Board was not consulted 

prior to the execution of the retirement agreement. 

¶ 13 Brucki was present without counsel; he was willing to answer the Board’s questions but 

not under oath. He stated that he agreed to the early expiration of his employment contract due 

to differences in management philosophy with the District. Brucki acknowledged he was asked 

to remain at home and to not report for duty after August 20, 2015. He maintained, however, 

that he had retired and was not “terminated.” He disagreed with Collins’ assessment that he had 

retired under a “void contract,” i.e., the employment contract. Brucki confirmed that he had been 

receiving a pension based on a pensionable salary of $181,220 and a final work date of 

August 20, 2015, but he argued that the calculation should have been based on a higher 

pensionable salary ($186,449) and a later final work date (January 4, 2016).

¶ 14 During the December 2017 session, Collins indicated that he wished to obtain an opinion 

from the Public Pension Division of the Illinois Department of Insurance (Department) regarding 

the calculation of Brucki’s pension. On May 7, 2018, Collins sent a letter to the Department 

requesting an opinion, as well as an explanatory memorandum and supporting materials. 

¶ 15 Advisory Opinion from the Department

¶ 16 In a letter dated August 21, 2018, the Department provided an advisory opinion regarding 

Brucki’s pension calculation, based on the information provided by Collins. The Department 

noted that while the Pension Code bars unpaid leave exceeding 30 days from being included in 

creditable service (40 ILCS 5/4-108(a) (West 2018)), the Pension Code does not specifically 
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address the treatment of paid leave. The Department found that it would be reasonable that a 

paid leave of absence would count toward creditable service – if the firefighter’s salary was paid 

and if contributions were taken on that salary – as the firefighter would still be a member of the 

fire department and “such conclusion is not otherwise barred by the Pension Code.” 

¶ 17 As to Brucki’s agreements with the District, the Department opined that the execution of 

the retirement agreement did not qualify as one of the delineated bases for terminating the 

employment contract. The Department thus found that the parties intended the retirement 

agreement to be a modification of the original employment contract. Based on language in the 

retirement agreement, the Department further found that the parties intended to maintain 

Brucki’s “current base salary” for the duration of his administrative leave. 

¶ 18 The Department then reviewed certain provisions of the Municipal Code (65 ILCS 5/10-

2.1-6.3(b) (West 2018)) and the Pension Code (40 ILCS 5/4-106(b) (West 2018)), including the 

definition of “firefighter.” The Department found that Brucki was not a “firefighter” pursuant to

the Pension Code during his paid administrative leave, as he was not expected to routinely 

perform firefighter duties during his leave; the Department opined that he served in a position 

similar to a reserve or paid-on-call firefighter. Although seemingly inconsistent with its 

characterization of the retirement agreement as a “modification” of the employment contract, the 

Department then stated that the retirement agreement voided Brucki’s employment contract, 

including the provision in the employment contract regarding the 3% annual salary adjustment. 

¶ 19 The Department ultimately found that Brucki’s pension should be calculated based on his 

salary on August 21, 2015 – the first day of his paid administrative leave – and that no creditable 

service should be awarded for the leave period. 
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¶ 20 Additional Proceedings and Board Decision

¶ 21 At a session on March 5, 2019, Collins (the Board’s attorney) indicated that the issue of 

the calculation of Brucki’s salary was “concluded” during an earlier Board meeting on 

December 6, 2018,1 based on the Department’s advisory opinion. According to Collins, 

Brucki’s attorney, Patrick Walsh (Walsh), subsequently requested “reconsideration” of the 

December 6 decision. Walsh disagreed with Collins’s characterization of his request for a 

hearing. Walsh maintained that the Board had not previously filed a decision, and thus there was 

nothing to “reconsider.” 

¶ 22 Walsh then raised a number of substantive arguments. He asserted that the memorandum 

from Collins requesting an advisory opinion from the Department was slanted against Brucki. 

Walsh challenged the Department’s analysis of the employment contract and the retirement 

agreement. He requested an opportunity to seek clarification from the Department as to whether 

the retirement agreement modified the employment contract or voided it in its entirety. Brucki 

then testified, in part, that all nonunion employees received the 3% pay increase. 

¶ 23 The Board agreed to permit Walsh to seek clarification from the Department. By that 

time, however, the Department had ceased its practice of providing advisory opinions. 

Following a vote on May 14, 2019, the Board entered a written decision which relied on the 

Department’s advisory opinion and awarded pension benefits at the rate Brucki already had been 

receiving, i.e., without the 3% salary increase or creditable service for the period of paid leave.

¶ 24 Circuit Court Proceedings

¶ 25 Brucki filed a complaint pursuant to the Administrative Review Law in the circuit court 

1 Collins referred to a November 6, 2018 meeting and a December 6, 2018 meeting. The correct 

date appears to be December 6, 2018; the record on appeal does not include a transcript of this meeting. 

Brucki did not attend the December 6, 2018 meeting, and he denied receiving notice thereof. 
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of Cook County against the District, the Board, and the individual trustees of the Board; the 

individual trustees were subsequently dismissed. In his brief, Brucki argued that the Board

violated his due process rights by, among other things, misrepresenting the procedural posture of 

the proceedings during the March 5, 2019 meeting. Brucki further asserted that the Board erred 

in its reliance on a “factually inaccurate” advisory opinion from the Department. Brucki also 

maintained that the parties did not intend for the retirement agreement to render the employment 

contract void. The Board challenged Brucki’s contentions, arguing in part that the Department’s 

interpretation of the law should be entitled to substantial deference.

¶ 26 In an order entered on January 27, 2022, the circuit court found that the case involved 

both a factual issue – i.e., whether Brucki was on call during the period of paid leave – and a 

legal issue – i.e., whether the paid leave was creditable service. Applying a “clearly erroneous” 

standard, the circuit court affirmed the judgment of the Board. Brucki filed a timely appeal.

¶ 27 ANALYSIS

¶ 28 Brucki raises two primary arguments on appeal: that the Board erred in its calculation of 

his pension benefits and, in the alternative, that he was denied a fair and impartial hearing. 

The Board challenges these contentions. As discussed below, we find the first issue (the pension 

calculation) to be dispositive, and we thus need not address Brucki’s alternative argument.

¶ 29 We begin our analysis with the applicable standard of review.

¶ 30 Standard of Review

¶ 31 Article 4 of the Pension Code addresses the firefighters’ pension fund for municipalities 

with a population of 500,000 or fewer people, as is the case herein. 40 ILCS 5/4-101 et seq.

(West 2018). See Philpott v. Board of Trustees of the City of Charleston Firefighters’ Pension 

Fund, 397 Ill. App. 3d 369, 373 (2010). Under the Pension Code, any proceeding for the judicial 
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review of a final decision of the Board is governed by the Administrative Review Law. See 

40 ILCS 5/4-139 (West 2018). “As in any proceeding for administrative review, our role in this 

case is to review the decision of the administrative agency, rather than that of the circuit court.” 

Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 551 (2009). Accord Marconi 

v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 531 (2006).

¶ 32 The applicable standard of review depends on whether the question is one of law, one of 

fact, or a mixed question of law and fact. Village of Hanover Park v. Board of Trustees of the 

Village of Hanover Park Police Pension Fund, 2021 IL App (2d) 200380, ¶ 57. Rulings on 

factual questions will be reversed only if they are against the manifest weight of the evidence, 

legal questions are reviewed de novo, and mixed questions of law and fact are reviewed under 

the “clearly erroneous” standard. Id. Accord Cronholm v. Board of Trustees of the Lockport 

Fire Protection District Firefighters’ Pension Fund, 2016 IL App (3d) 150122, ¶ 12. Regardless 

of the standard of review, a plaintiff in an administrative proceeding bears the burden of proof. 

Id.; Carrillo v. Park Ridge Firefighters’ Pension Fund, 2014 IL App (1st) 130656, ¶ 21.

¶ 33 The issue of Brucki’s pension calculation appears to present a mixed question of law and 

fact, subject to the clearly erroneous standard. A decision is clearly erroneous where we are left 

with the firm and definite conviction that a mistake has been made. Hanover Park Police 

Pension Fund, 2021 IL App (2d) 200380, ¶ 58. Accord Village of Chicago Ridge v. Chicago 

Ridge Firefighters’ Pension Board of Trustees, 2016 IL App (1st) 152089, ¶ 8. See also City of 

Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998) (noting the “clearly 

erroneous” standard is “between a manifest weight of the evidence standard and a de novo

standard”). Although the clearly erroneous standard is deferential, we will not blindly defer to 

the Board’s decision. Hanover Park Police Pension Fund, 2021 IL App (2d) 200380, ¶ 58.
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¶ 34 Board’s Calculation of Brucki’s Pension

¶ 35 Section 4-109(a) of the Pension Code provides, in part, as follows:

“A firefighter age 50 or more with 20 or more years of creditable service, 

who is no longer in service as a firefighter, shall receive a monthly pension of 1/2 

the monthly salary attached to the rank held by him or her in the fire service at the 

date of retirement.

The monthly pension shall be increased by 1/12 of 2.5% of such monthly 

salary for each additional month over 20 years of service through 30 years of 

service, to a maximum of 75% of such monthly salary.” 40 ILCS 5/4-109(a) 

(West 2018).

The parties agree that Brucki had more than 20 years of creditable service, as he was employed 

by the Pleasantview Fire Department for more than 17-1/2 years prior to joining the District. 

Rather, their disagreement centers on the “monthly salary attached to the rank held by him *** in 

the fire service at the date of retirement.” Id. The Board ultimately decided that Brucki “is 

entitled only to benefits as of the last date of August 20, 2015 at the salary attached to the rank of 

Fire Chief as of August 21, 2015.”

¶ 36 In reaching its decision, the Board expressly relied on the advisory opinion from the 

Department dated August 21, 2018, which was issued in accordance with section 1A-106 of the 

Pension Code. See 40 ILCS 5/1A-106 (West 2018). While we recognize that we must afford 

considerable deference to the Department’s interpretation of the Pension Code – as it was given 

the responsibility for providing advisory services to funds covered by the Pension Code “on all 

matters pertaining to their operations” (id.) – we are not bound to an administrative agency’s 

interpretation of the law, and we will not afford deference if the interpretation was arbitrary, 
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capricious, or manifestly contrary to the statute. Cronholm, 2016 IL App (3d) 150122, ¶ 14. 

See also Roselle Police Pension Board, 232 Ill. 2d at 559. 

¶ 37 As discussed below, we find the advisory opinion issued by the Department to be of 

limited value. The opinion was expressly based on the information provided in the 

memorandum prepared by Collins, the Board’s attorney. Although presumably unintended, the 

information submitted to the Department was less than neutral. The Department relied on such

information in crafting its advisory opinion, and then the Board circularly relied on the advisory 

opinion in reaching its decision. Based on our review, we reject the Board’s (and Department’s) 

interpretation of both the applicable statutory definitions and the language and effect of the 

agreements between the District and Brucki.

¶ 38 In his memorandum entitled “Facts” which was provided to the Department, Collins

employed language which was arguably slanted against Brucki, e.g., he referred to the retirement 

agreement as a “severance contract” and a “termination agreement,” and he attached a media 

article regarding Brucki being “under investigation.” Collins also relayed that the Board 

believed that the retirement agreement was “an effort to ‘spike’ Chief Brucki’s compensation.” 

The memorandum concluded with the Board’s request for “an opinion consistent with its belief 

that the pension calculations contained in Exhibit B” – which presumably were based on the 

earlier date and the lower salary – “are correct as to salary and creditable service.” 

¶ 39 The Department then issued an advisory opinion which was explicitly based on the 

assertions made by Collins and the information he had provided. The Department reviewed 

section 4-108(a) of the Pension Code, which provides: “In computing creditable service, *** 

leaves of absence without pay exceeding 30 days in any one year shall not be counted[.]” 

40 ILCS 5/4-108(a) (West 2018). The Department opined that it is “reasonable that paid leave(s) 
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of absence would count towards creditable service, if salary was paid and contributions were 

taken on that salary, because the firefighter is still a member of the department and such 

conclusion is not otherwise barred by the Pension Code.” 

¶ 40 At this point, our analysis diverges from that of the Department. The Department found 

that Brucki was not a “firefighter” under the applicable provisions of the Pension Code and 

Municipal Code during the time of his paid administrative leave. The Municipal Code defines 

“firefighter,” in pertinent part, as follows:

“[A]ny person who has been *** appointed to a fire department or fire protection 

district *** except that the following persons are not included: part-time 

firefighters; auxiliary, reserve, or voluntary firefighters, including paid-on-call 

firefighters; clerks and dispatchers or other civilian employees of a fire 

department or fire protection district who are not routinely expected to perform 

firefighter duties; and elected officials.” 65 ILCS 5/10-2.1-6.3 (West 2018). 

The applicable provision of the Pension Code defines “firefighter” as “any person employed by a 

city in its fire service as a firefighter, fire engineer, marine engineer, fire pilot, bomb technician, 

or scuba diver; and, in any of these positions whose duties include those of a firefighter and are 

certified in the same manner as a firefighter in that city.” 40 ILCS 5/4-106(b) (West 2018). 

¶ 41 Based on the foregoing definitions, the Department found that Brucki was not a 

firefighter during his paid administrative leave. Simply put, we reject this finding. Although the 

Department found that Brucki “was not expected to routinely perform firefighter duties” during 

his leave, such language in the Municipal Code definition only addresses “clerks and dispatchers 

or other civilian employees” of the District. 65 ILCS 5/10-2.1-6.3 (West 2018). Brucki – as the 

chief and as a certified firefighter – was not a civilian employee of the District. The 
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Department’s restrictive view is contrary to the principle that the provisions governing firemen’s 

pensions must be liberally construed in favor of the applicant (Evert v. Board of Trustees of the 

Firefighters’ Pension Fund of the City of Lake Forest, 180 Ill. App. 3d 656, 659 (1989)).

¶ 42 In its advisory opinion, the Department next discussed the definition of “salary.” 

Section 118.1(d) of the Pension Code defines salary as “the annual salary *** attached to the 

firefighter’s rank *** excluding any ‘overtime pay,’ ‘holiday pay,’ ‘bonus pay,’ ‘merit pay,’ or 

any other cash benefit not included in the salary so established.” 40 ILCS 5/4-118.1 (West 

2018). Although the Department initially characterized Brucki’s retirement agreement as a 

“modification” of his employment contract, the Department ultimately opined that the retirement 

agreement “voided” the employment contract, including the 3% annual salary adjustment 

provided therein. The Department found that the 3% increase was a “bonus” and thus not 

included in the definition of “salary” for purposes of Brucki’s pension calculation. 

¶ 43 Based on our review of the retirement agreement, we reject the Department’s analysis. 

When reviewing a contract, a court initially looks solely to the language of the contract. Air 

Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999). If the language is facially 

unambiguous, the contract is interpreted without the use of parol evidence. Id. If the language 

of the contract is susceptible to more than one meaning, then an ambiguity is present, and parol 

evidence may be used to assist the trier of fact in resolving the ambiguity. Id. at 462-63.

¶ 44 The retirement agreement provides that it is the whole agreement between Brucki and the 

District and that all prior agreements – including the employment contract – are voided. The 

retirement agreement also provides, however, that during Brucki’s leave, he “shall remain in his 

appointed rank of Fire Chief and shall be entitled to all benefits and compensation applicable to 

the rank of Fire Chief in accordance with the terms of [District] policies and existing 
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agreements.” (Emphasis added.) Reviewing the retirement agreement as a whole, we find it to 

be ambiguous as to the continued validity and import of the employment contract. Id. 

¶ 45 According to the Board, the District’s agreement not to take any action to diminish “any 

current monetary employment benefit” did not apply to the 3% increase, as it was not a “current” 

benefit given that the employment contract was “voided.” The record, however, does not 

support the Board’s interpretation. The employment contract provided for an annual salary 

adjustment of 3% or the cost of living, whichever was greater. While the Board contends that 

Brucki never received the higher salary (with the 3% adjustment), his final paycheck – issued on 

January 11, 2016 – appears to have included an increase. On February 23, 2016, the District sent 

Brucki three checks for his unused sick days and vacation days; the accompanying letter 

expressly referenced his employment contract. We also note that the amounts returned to Brucki 

for the sick and vacation days appear to include the 3% salary increase. The foregoing suggests 

that the employment contract – and the annual salary adjustment provided therein – was not 

negated by the retirement agreement.

¶ 46 We further observe that certain cases cited by the Board are distinguishable. A number 

of the cases address instances where additional compensation was paid to state or municipal 

employees with the express aim of increasing their final salaries in anticipation of retirement so 

as to enhance their pensions. Such efforts to manipulate retirement benefits have been roundly 

rejected. E.g., Chicago Ridge Firefighters’ Pension Board of Trustees, 2016 IL App (1st) 

152089, ¶ 18 (finding that a 20% buyout increase in a firefighter’s salary on his last day of work 

was not approved through an appropriations ordinance of the municipality and could not be 

included in the calculation of the firefighter’s pensionable salary); Sedlock v. Board of Trustees 

of the Police Pension Fund of the City of Ottawa, 367 Ill. App. 3d 526, 528 (2006) (addressing 
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an effort to raise a police chief’s salary from $64,000 to more than $84,000 one week prior to his 

retirement). Conversely, Brucki’s pay increase was not an unduly enhanced benefit; the annual 

increase was expressly provided for in his 2013 employment contract with the District.

¶ 47 In conclusion, while we recognize that the Board has a fiduciary obligation to all 

participants and beneficiaries of the pension fund – and that the Board cannot and should not pay 

a beneficiary more than that to which he is entitled (Philpott, 397 Ill. App. 3d at 372) – we are 

left with the firm and definite conviction that a mistake has been made in the instant case. 

We thus reverse the decision of the Board and the circuit court and remand with instructions to 

recalculate and award pension benefits to Brucki based on a final date of service of 

January 4, 2016, and an annual salary amount which includes the 3% adjustment – $186,449. In 

light of the foregoing, we need not address Brucki’s alternative argument regarding due process.

¶ 48 CONCLUSION

¶ 49 Circuit court judgment reversed; Board decision reversed; remanded with instructions.