40 ILCS 5/7-109
2021 Illinois Compiled Statutes|Chapter 40 - PENSIONS|40 ILCS 5/ - Illinois Pension Code.|Article 7 - Illinois Municipal Retirement Fund

 (from Ch. 108 1/2, par. 7-109)(Text of Section from P.A. 102-15)Sec. 7-109. Employee.(1) "Employee" means any person who:(a) 1. Receives earnings as payment for the     performance of personal services or official duties out of the general fund of a municipality, or out of any special fund or funds controlled by a municipality, or by an instrumentality thereof, or a participating instrumentality, including, in counties, the fees or earnings of any county fee office; and2.  Under the usual common law rules applicable in     determining the employer-employee relationship, has the status of an employee with a municipality, or any instrumentality thereof, or a participating instrumentality, including alderpersons, county supervisors and other persons (excepting those employed as independent contractors) who are paid compensation, fees, allowances or other emolument for official duties, and, in counties, the several county fee offices.(b) Serves as a township treasurer appointed under     the School Code, as heretofore or hereafter amended, and who receives for such services regular compensation as distinguished from per diem compensation, and any regular employee in the office of any township treasurer whether or not his earnings are paid from the income of the permanent township fund or from funds subject to distribution to the several school districts and parts of school districts as provided in the School Code, or from both such sources; or is the chief executive officer, chief educational officer, chief fiscal officer, or other employee of a Financial Oversight Panel established pursuant to Article 1H of the School Code, other than a superintendent or certified school business official, except that such person shall not be treated as an employee under this Section if that person has negotiated with the Financial Oversight Panel, in conjunction with the school district, a contractual agreement for exclusion from this Section.(c) Holds an elective office in a municipality,     instrumentality thereof or participating instrumentality.(2) "Employee" does not include persons who:(a) Are eligible for inclusion under any of the     following laws:1. "An Act in relation to an Illinois State         Teachers' Pension and Retirement Fund", approved May 27, 1915, as amended;2. Articles 15 and 16 of this Code.However, such persons shall be included as employees     to the extent of earnings that are not eligible for inclusion under the foregoing laws for services not of an instructional nature of any kind.However, any member of the armed forces who is     employed as a teacher of subjects in the Reserve Officers Training Corps of any school and who is not certified under the law governing the certification of teachers shall be included as an employee.(b) Are designated by the governing body of a     municipality in which a pension fund is required by law to be established for policemen or firemen, respectively, as performing police or fire protection duties, except that when such persons are the heads of the police or fire department and are not eligible to be included within any such pension fund, they shall be included within this Article; provided, that such persons shall not be excluded to the extent of concurrent service and earnings not designated as being for police or fire protection duties. However, (i) any head of a police department who was a participant under this Article immediately before October 1, 1977 and did not elect, under Section 3-109 of this Act, to participate in a police pension fund shall be an "employee", and (ii) any chief of police who became a participating employee under this Article before January 1, 2019 and who elects to participate in this Fund under Section 3-109.1 of this Code, regardless of whether such person continues to be employed as chief of police or is employed in some other rank or capacity within the police department, shall be an employee under this Article for so long as such person is employed to perform police duties by a participating municipality and has not lawfully rescinded that election.(b-5) Were not participating employees under this     Article before the effective date of this amendatory Act of the 100th General Assembly and  participated as a chief of police in a fund under Article 3 and return to work in any capacity with the police department, with any oversight of the police department, or in an advisory capacity for the police department with the same municipality with which that pension was earned, regardless of whether they are considered an employee of the police department or are eligible for inclusion in the municipality's Article 3 fund.(c) Are contributors to or eligible to contribute to     a Taft-Hartley pension plan to which the participating municipality is required to contribute as the person's employer based on earnings from the municipality.  Nothing in this paragraph shall affect service credit or creditable service for any period of service prior to the effective date of this amendatory Act of the 98th General Assembly, and this paragraph shall not apply to individuals who are participating in the Fund prior to the effective date of this amendatory Act of the 98th General Assembly.(d) Become an employee of any of the following     participating instrumentalities on or after the effective date of this amendatory Act of the 99th General Assembly: the Illinois Municipal League; the Illinois Association of Park Districts; the Illinois Supervisors, County Commissioners and Superintendents of Highways Association; an association, or not-for-profit corporation, membership in which is authorized under Section 85-15 of the Township Code; the United Counties Council; or the Will County Governmental League.(3) All persons, including, without limitation, public defenders and  probation officers, who receive earnings from general or special funds  of a county for performance of personal services or official duties  within the territorial limits of the county, are employees of the county  (unless excluded by subsection (2) of this Section) notwithstanding that  they may be appointed by and are subject to the direction of a person or  persons other than a county board or a county officer.  It is hereby  established that an employer-employee relationship under the usual  common law rules exists between such employees and the county paying  their salaries by reason of the fact that the county boards fix their  rates of compensation, appropriate funds for payment of their earnings  and otherwise exercise control over them.  This finding and this  amendatory Act shall apply to all such employees from the date of  appointment whether such date is prior to or after the effective date of  this amendatory Act and is intended to clarify existing law pertaining  to their status as participating employees in the Fund.  (Source: P.A. 102-15, eff. 6-17-21.)(Text of Section from P.A. 102-637)Sec. 7-109. Employee.(1) "Employee" means any person who:(a) 1. Receives earnings as payment for the     performance of personal services or official duties out of the general fund of a municipality, or out of any special fund or funds controlled by a municipality, or by an instrumentality thereof, or a participating instrumentality, including, in counties, the fees or earnings of any county fee office; and2.  Under the usual common law rules applicable in     determining the employer-employee relationship, has the status of an employee with a municipality, or any instrumentality thereof, or a participating instrumentality, including aldermen, county supervisors and other persons (excepting those employed as independent contractors) who are paid compensation, fees, allowances or other emolument for official duties, and, in counties, the several county fee offices.(b) Serves as a township treasurer appointed under     the School Code, as heretofore or hereafter amended, and who receives for such services regular compensation as distinguished from per diem compensation, and any regular employee in the office of any township treasurer whether or not his earnings are paid from the income of the permanent township fund or from funds subject to distribution to the several school districts and parts of school districts as provided in the School Code, or from both such sources; or is the chief executive officer, chief educational officer, chief fiscal officer, or other employee of a Financial Oversight Panel established pursuant to Article 1H of the School Code, other than a superintendent or certified school business official, except that such person shall not be treated as an employee under this Section if that person has negotiated with the Financial Oversight Panel, in conjunction with the school district, a contractual agreement for exclusion from this Section.(c) Holds an elective office in a municipality,     instrumentality thereof or participating instrumentality.(2) "Employee" does not include persons who:(a) Are eligible for inclusion under any of the     following laws:1. "An Act in relation to an Illinois State         Teachers' Pension and Retirement Fund", approved May 27, 1915, as amended;2. Articles 15 and 16 of this Code.However, such persons shall be included as employees     to the extent of earnings that are not eligible for inclusion under the foregoing laws for services not of an instructional nature of any kind.However, any member of the armed forces who is     employed as a teacher of subjects in the Reserve Officers Training Corps of any school and who is not certified under the law governing the certification of teachers shall be included as an employee.(b) Are designated by the governing body of a     municipality in which a pension fund is required by law to be established for policemen or firemen, respectively, as performing police or fire protection duties, except that when such persons are the heads of the police or fire department and are not eligible to be included within any such pension fund, they shall be included within this Article; provided, that such persons shall not be excluded to the extent of concurrent service and earnings not designated as being for police or fire protection duties. However, (i) any head of a police department who was a participant under this Article immediately before October 1, 1977 and did not elect, under Section 3-109 of this Act, to participate in a police pension fund shall be an "employee", and (ii) any chief of police who became a participating employee under this Article before January 1, 2019 and who elects to participate in this Fund under Section 3-109.1 of this Code, regardless of whether such person continues to be employed as chief of police or is employed in some other rank or capacity within the police department, shall be an employee under this Article for so long as such person is employed to perform police duties by a participating municipality and has not lawfully rescinded that election.(b-5) Were not participating employees under this     Article before the effective date of this amendatory Act of the 100th General Assembly and  participated as a chief of police in a fund under Article 3 and return to work in any capacity with the police department, with any oversight of the police department, or in an advisory capacity for the police department with the same municipality with which that pension was earned, regardless of whether they are considered an employee of the police department or are eligible for inclusion in the municipality's Article 3 fund.(c) Are contributors to or eligible to contribute to     a Taft-Hartley pension plan to which the participating municipality is required to contribute as the person's employer based on earnings from the municipality.  Nothing in this paragraph shall affect service credit or creditable service for any period of service prior to the effective date of this amendatory Act of the 98th General Assembly, and this paragraph shall not apply to individuals who are participating in the Fund prior to the effective date of this amendatory Act of the 98th General Assembly.(d) Become an employee of any of the following     participating instrumentalities on or after the effective date of this amendatory Act of the 99th General Assembly: the Illinois Municipal League; the Illinois Association of Park Districts; the Illinois Supervisors, County Commissioners and Superintendents of Highways Association; an association, or not-for-profit corporation, membership in which is authorized under Section 85-15 of the Township Code; the United Counties Council; or the Will County Governmental League.(e) Are members of the Board of Trustees of the     Firefighters' Pension Investment Fund, as created under Article 22C of this Code, in their capacity as members of the Board of Trustees of the Firefighters' Pension Investment Fund.(f) Are members of the Board of Trustees of the     Police Officers' Pension Investment Fund, as created under Article 22B of this Code, in their capacity as members of the Board of Trustees of the Police Officers' Pension Investment Fund.(3) All persons, including, without limitation, public defenders and  probation officers, who receive earnings from general or special funds  of a county for performance of personal services or official duties  within the territorial limits of the county, are employees of the county  (unless excluded by subsection (2) of this Section) notwithstanding that  they may be appointed by and are subject to the direction of a person or  persons other than a county board or a county officer.  It is hereby  established that an employer-employee relationship under the usual  common law rules exists between such employees and the county paying  their salaries by reason of the fact that the county boards fix their  rates of compensation, appropriate funds for payment of their earnings  and otherwise exercise control over them.  This finding and this  amendatory Act shall apply to all such employees from the date of  appointment whether such date is prior to or after the effective date of  this amendatory Act and is intended to clarify existing law pertaining  to their status as participating employees in the Fund.  (Source: P.A. 102-637, eff. 8-27-21.)