Board of Trustees of the City of Harvey Firefighters' Pension Fund v. City of Harvey

2017 IL App (1st) 153074 No. 1-15-3074 Fifth Division August 4, 2017

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) BOARD OF TRUSTEES OF THE CITY ) Appeal from the Circuit Court OF HARVEY FIREFIGHTERS’ PENSION FUND, ) of Cook County. ) Plaintiff-Appellee/Cross-Appellant, ) No. 10 CH 53364 ) v. ) The Honorable ) Mary L. Mikva, THE CITY OF HARVEY, ) Judge Presiding. ) Defendant-Appellant/Cross-Appellee. ) ) ______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Justice Lampkin specially concurred, with opinion.

OPINION

1 Defendant City of Harvey (Harvey) is a municipality with a population of approximately

25,000 residents, located south of the city of Chicago. Plaintiff, the Board of Trustees of the

City of Harvey Firefighters’ Pension Fund (Pension Board), is an administrative body created

pursuant to section 4-121 of the Illinois Pension Code (Code) (40 ILCS 5/4-121 (West 2014))

to oversee and manage the City of Harvey Firefighters’ Pension Fund (Pension Fund). 40

ILCS 5/4-120 to 4-129 (West 2014). The Pension Board filed suit, alleging that Harvey has  No. 1-15-3074

underfunded the Pension Fund and breached a 1996 settlement agreement in which Harvey

agreed to make certain contributions to the Pension Fund. The Pension Board sought a

declaratory judgment, a writ of mandamus, injunctive relief, and an order compelling

enforcement of the 1966 settlement agreement. After both parties filed motions for summary

judgment, the trial court granted the Pension Board’s motion for a declaratory judgment,

injunctive relief, and enforcement of the 1996 settlement agreement and denied summary

judgment for a writ of mandamus. The trial court found that Harvey violated the pension

statute but was not on the verge of default or imminent bankruptcy. The trial court denied

Harvey’s motion for summary judgment. Pursuant to this ruling, the trial court assessed

damages against Harvey for $15,071,089.15. The injunction that was issued required Harvey

to approve a line-item property tax levy specifically for the Pension Fund, which would be

sufficient to meet the annual actuarial requirements set forth in the Code. Harvey filed a

notice of appeal, and the Pension Board filed a notice of cross-appeal.

2 The parties argue on appeal about (1) whether the trial court correctly determined that

Harvey breached the 1996 settlement agreement; (2) whether the trial court correctly

calculated the damages; (3) whether the trial court correctly rejected Harvey’s affirmative

defenses of separation of powers and laches; (4) whether the trial court erred in making a

finding of violations of the Code and requiring certain monies to be paid into the Pension

Fund, without first finding that Harvey was on the verge of default or imminent bankruptcy;

and (5) whether the trial court erred in finding that Harvey is not on the verge of default or

imminent bankruptcy.

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3 BACKGROUND

4 I. THE 1993 COMPLAINT AND 1996 SETTLEMENT AGREEMENT

5 On February 17, 1993, the Pension Board filed a complaint for mandamus, declaratory

judgment and accounting, alleging that Harvey had failed to adequately fund the Pension

Fund between 1988 and 1994 and claiming that not all of the taxes levied and collected were

deposited into the Pension Fund as required by the Code. 40 ILCS 5/4-120 to 4-129 (West

2014).

6 On August 22, 1996, the parties entered into a settlement agreement that required Harvey

to “repay the amount due and owing to the [Pension Fund] *** which is approximately

$912,652.00 over a five (5) year period including [Harvey’s] annual tax levy an amount in

addition to the amount of levy requirements minus the allocation of personal property

replacement taxes, recommended by the Illinois Department of Insurance.”

7 Further, Harvey agreed that, “in the future,” it would “ensure property taxes levied or

personal property replacement taxes received on behalf of the [Pension Fund], which are

assessed, collected and remitted to the City of Harvey by the Cook County Treasurer’s

Office, shall be paid to the [Pension Fund] within 30 days of receipt by [Harvey] and not

used by [Harvey] for other corporate purposes.” In addition, the parties agreed that the trial

court retained jurisdiction over the matter to enforce the settlement agreement, providing:

“The Court hereby expressly retains jurisdiction of this matter for the purposes of enforcing

all of the terms and provisions of this Agreed Settlement Order.”

8 II. 2010 COMPLAINT

9 On December 17, 2010, 15 years after the execution of the settlement agreement, the

Pension Board filed a complaint stemming from Harvey’s alleged violations of section 4-118

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of the Code (40 ILCS 5/4-118 (West 2010)), commencing in the fiscal year 2005 and

continuing through fiscal year 2010. All of the evidence in this case concerned facts that

ended with the fiscal year 2014.

10 The Pension Board filed an amended complaint on September 29, 2011, which added

individual defendants Eric Kellogg, the mayor of Harvey; Maggie Britton, the Harvey

comptroller in 2010; and Charles Givines, Joseph Whittington, Daryle Crudup, Michael

Bowens, Donald Nesbit, and Keith Price, members of Harvey’s city council.

11 On November 18, 2011, Harvey moved to strike the individual defendants from the

Pension Board’s first amended complaint. Following the filing of this motion, the Pension

Board filed a second amended complaint on June 25, 2012, which asserted a count for breach

of fiduciary duty against the individual defendants. On July 25, 2012, Harvey filed a

combined section 2-615 and 2-619 motion to dismiss the second amended complaint with

prejudice or, alternatively, a section 2-615 motion to strike the individual defendants from

the second amended complaint. 735 ILCS 5/2-615(a), 2-619(a)(9) (West 2010).

12 On October 24, 2012, while Harvey’s motions were pending, the Pension Board filed an

emergency motion to compel Harvey to levy a tax in order to fund in “an amount at least

equal to the amount determined by an actuary for 2011 in the amount of $1,558,762.00.” On

October 26, 2012, Harvey filed a motion to strike the Pension Board’s emergency motion,

arguing that the emergency motion sought the same remedy that the Pension Board seeks in

its second amended complaint. On October 29, 2012, the trial court denied the Pension

Board’s emergency motion.

13 On November 5, 2012, the Pension Board filed its third amended complaint, adding

claims for mandamus and injunctive relief.

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14 III. PLAINTIFF’S FOURTH AMENDED COMPLAINT

15 On December 14, 2012, the Pension Board filed its fourth amended complaint, which is

the subject complaint in this appeal. Its four counts seek (1) a declaratory judgment that

Harvey must annually levy a tax to contribute to the Pension Fund and pay money damages,

(2) a writ of mandamus compelling Harvey to levy an annual tax for the Pension Fund or

otherwise annually contribute to the Pension Fund an amount that fulfills the annual actuarial

requirement, (3) injunctive relief ordering Harvey to levy an annual tax for the Pension Fund

or otherwise annually contribute to the Pension Fund an amount that meets the annual

actuarial requirement and to pay money damages, and (4) an order that finds that Harvey

breached the 1996 settlement agreement and an order compelling enforcement of that

agreement.

16 On January 15, 2013, Harvey filed a combined section 2-615 and 2-619 motion to

dismiss the Pension Board’s fourth amended complaint. 735 ILCS 5/2-615(a), 2-619(a)(9), 2-

619.1 (West 2012). Harvey’s motion addressed each count of the Pension Boards’ fourth

amended complaint as follows.

17 First, Harvey argues that an action for declaratory judgment is inappropriate because

declaratory judgment is a vehicle used to address a “controversy one step sooner than normal

after a dispute has arisen, but before steps are taken which would give rise to a claim for

damages or other relief.” Harvey also argues that declaratory judgment would be inadequate

because it cannot alter actions that the parties have already taken. Second, Harvey argues that

a writ of mandamus cannot force a legislative body to perform a discretionary act; therefore,

a writ is unable to “compel [Harvey] to make municipal pension fund contributions that meet

the annual actuarial requirement[.]” Third, Harvey argues that the Pension Fund had not

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sustained any damages that could not be adequately remedied with money damages;

therefore, injunctive relief is an inapplicable remedy. Finally, Harvey argues that the trial

court has no jurisdiction to enforce the 1996 settlement agreement because the agreement

explicitly agreed that the original court in the 1993 action retained jurisdiction to enforce the

agreement. That original court in 1993 was Calendar 12 of the Chancery Division in the

circuit court of Cook County. 1

18 In addition to its section 2-615 arguments, Harvey also moved to dismiss pursuant to

section 2-619(a)(9), claiming that the suit was barred by governmental immunity. 735 ILCS

5/2-615(a), 2-619(a)(9) (West 2010). Harvey argues that the Pension Board’s claims must

fail because “(a) [Harvey] is not liable for its council members’ negligence in performing

governmental functions; and (b) [Harvey] is not liable under the Local Governmental and

Governmental Employees Tort Immunity Act. [Tort Immunity Act] [745 ILCS 10/8-101(a)

(West 2010).]”

19 The trial court heard argument on May 24, 2013, and denied Harvey’s motion to dismiss

count I, for declaratory judgment; count II, for a writ of mandamus; and count III, for

injunctive relief. However, the trial court granted Harvey’s motion to dismiss count IV, for

breach of the 1996 settlement agreement, due to lack of jurisdiction, and cited in support the

provision of the settlement agreement allowing only the 1996 court to maintain jurisdiction

over enforcement of the agreement. However, after granting the motion to dismiss count IV,

the trial court allowed the Pension Board leave to re-plead before the original trial court that

had approved the 1996 settlement agreement (hereinafter, the 1996 court) and that matter was

transferred to the 1996 court.

1 The trial court in this matter was Calendar 6 of the Chancery Division in the circuit court of Cook County. 6  No. 1-15-3074

20 IV. MOTIONS TO COMPEL ENFORCEMENT AND CONSOLIDATE

21 On December 11, 2013, the trial court consolidated this case with the earlier case and

transferred the motion to compel enforcement of the 1996 settlement agreement to Calendar

12.

22 Following consolidation, both parties filed motions for summary judgment on October

14, 2014, with the Calendar 6 Court, which are the subject of this appeal. 735 ILCS 5/2-1005

(West 2012).

23 V. PENSION BOARD’S MOTION FOR SUMMARY JUDGMENT

24 The motions for summary judgment are described in depth with year-by-year financial

detail, which is necessary to understand the magnitude of the funding problem. In the

Pension Board’s motion for summary judgment, the Pension Board argues that Harvey must

be required to adequately contribute to the Pension Fund because the Pension Fund is on the

verge of default or imminent bankruptcy and will become insolvent without judicial

intervention.

25 A. OVERVIEW

26 To support its claims, the Pension Board attached to its motion for summary judgment 16

exhibits, including the complete transcripts of the discovery depositions of the following

individuals: (1) Gloria Morningstar, the Harvey City Treasurer; (2) Maggie Britton, a CPA

for Alli Financial and a Harvey City Assistant Comptroller; (3) Joseph Letke, a CPA and the

Harvey City Comptroller; (4) Sandor Goldstein, an actuary; (5) Calene Zabinski, the Pension

Fund’s auditor; (6) Jamie Wilkey, a CPA with Lauterbach & Amen; (7) James Ritchie, the

Pension Fund’s CPA; (8) Todd Schroeder; the Pension Fund’s actuary; (9) Jon Willhite, the

Pension Fund’s financial consultant; (10) Daniel Mumpher, the Director of the Local

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Government Division for the State Comptroller; and (11) Scott Brandt, an Illinois

Department of Insurance representative.

27 In addition, the Pension Board attached, as exhibits, the Illinois Department of Insurance

notice of noncompliance issued to Harvey, dated February 20, 2013, and the Securities and

Exchange Commission complaint filed against Harvey and Joseph Letke on June 24, 2014.

28 B. MISMANAGEMENT CLAIM

29 In its motion for summary judgment, the Pension Board argues that the Pension Fund

contributions are being mismanaged and underfunded by Harvey and the Pension Fund is

being underfunded. In support of this assertion, the Pension Board presented financial

information regarding the Pension Fund from fiscal year 2005 through fiscal year 2014. First,

the Pension Board presented the annual actuarial requirement as calculated by three different

actuaries. Section 4-118 of the Code explains what an annual actuarial requirement is:

“[T]he annual actuarial requirements of the pension fund are equal to (1) the

normal cost of the pension fund, or 17.5% of the salaries and wages to be paid to

firefighters for the year involved, whichever is greater, plus (2) an annual amount

sufficient to bring the total assets of the pension fund up to 90% of the total

actuarial liabilities of the pension fund by the end of municipal fiscal year 2040,

as annually updated and determined by an enrolled actuary ***.” 40 ILCS 5/4-

118(a) (West 2012).

30 In its motion, the Pension Board presented the calculations of three separate actuaries

concerning the annual actuarial requirements: Tim Sharpe; 2 Todd Schroeder; and Scott

Brandt, who represents the Illinois Department of Insurance. Second, the Pension Board

2 Tim Sharpe was not deposed; however, the information regarding his actuarial evaluations was introduced through the deposition of Jon Willhite. 8  No. 1-15-3074

attached the deposition transcript of Maggie Britton, who is the Harvey comptroller, and who

testified about the monies that Harvey appropriated for the Pension Fund and how the

appropriation ordinance was determined. Further, the Pension Board attached Britton’s

deposition exhibits, which set forth the amount appropriated by way of the ordinance and the

amount sought through a tax levy. Lastly, the Pension Board attached the depositions of

Jamie Wilkey, a CPA, and Calene Zabinski, the Pension Fund auditor. Through these

depositions and exhibits, the Pension Board established the amount that Harvey actually

contributed to the Pension Fund for each fiscal year.

31 The Pension Board presented various exhibits to provide the financial information for

fiscal years 2005 through 2014:

Year Annual Actuarial Levied for Pension Paid to Pension Requirement Fund Fund 2005 $876,692 (Brandt) $0 $9,885 $880,632 (Sharpe) 2006 $980,024 (Brandt) $0 $38,304 $945,580 (Sharpe) 2007 $1,060,727 (Brandt) $480,632 $615,407 $1,061,219 (Sharpe) 2008 $1,140,932 (Brandt) $1,061,219 $771,471 $1,077,837 (Sharpe) 2009 $1,294,791 (Brandt) $1,061,219 $18,181 2010 $1,574,792 (Brandt) $350,000 $5,143 2011 $1,611,369 (Brandt) $0 $0 $1,558,762 (Sharpe) 2012 $1,611,369 $0 $0 $1,558,762 2013 $1,531,760 (Schroeder) $0 $0 2014 $2,070,500 (Schroeder) $600,000 $600,000

32 In the motion for summary judgment, the Pension Board cited information provided in

the deposition of Sandor Goldstein, an actuary, who was retained by Harvey to calculate how

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much money Harvey owed the Pension Fund. Goldstein testified that he calculated the

contribution deficiency using the difference between the annual actuarial valuations and the

actual amount Harvey contributed to the Pension Fund between fiscal year 2005 and fiscal

year 2013. Goldstein opined that the total contribution deficiency up to the end of 2013 was

$8,077,602. Additionally, he calculated that the accumulated contribution deficiency, which

is the loss of revenue to the Pension Fund because Harvey did not properly contribute to the

Pension Fund, to be $10,009,403. Basically, Goldstein calculated that Harvey “deprived the

Pension Fund of $8 million in actual contributions and another $2 million in actual

investment gains on those contributions.” Lastly, the Pension Board cited the deposition of

Todd Schroeder, who calculated that the Pension Fund should have approximately $34

million in assets as of 2014 rather than the $11,180,962 in assets that the Pension Fund

actually had. As a result, the Pension Fund was deficient at the end of 2013 by approximately

$23 million.

33 C. ON THE VERGE OF DEFAULT OR IMMINENT BANKRUPTCY

34 In its motion for summary judgment, the Pension Board argues that the Pension Fund is

on the verge of default or imminent bankruptcy. The following deposition testimonies

provided the evidence to determine whether the Pension Fund is on the verge of default or

imminent bankruptcy.

35 (1) Gloria Morningstar

36 The deposition of Gloria Morningstar, Harvey’s treasurer, was attached to the motion for

summary judgment. Morningstar testified that, as treasurer for Harvey, she oversees its fiscal

monies, revenue, and disbursements and is responsible for preparing the annual financial

report submitted to the Illinois Comptroller’s Office, as required by statute. She testified that

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she had not completed the annual financial reports since the fiscal year of 2008 because she

never received the 2008 audit, which Harvey is yet to complete and which is necessary to

complete the report.

37 Morningstar testified that Harvey budgeted $458,400 in 2005 for retirement and pension

funds, but Harvey contributed only $9,885, while the employees contributed $204,149 to the

Pension Fund. However, the Pension Fund paid out $1,398,003 in benefits for that year.

38 Morningstar testified that Harvey’s total revenue for fiscal year 2006 was $20,446,917,

and that it contributed $38,304 to the Pension Fund, while the employees contributed

$245,146, and the Pension Fund paid $1,439,262 out in benefits.

39 For fiscal year 2007, Morningstar testified that Harvey collected $19,328,100 in revenue

and contributed $565,407 to the Pension Fund, while employees contributed $245,555.

However, the Pension Fund paid out $1,582,325 in benefits. Morningstar explained that

Harvey’s tax levy ordinance for fiscal year 2007 showed that Harvey had budgeted

$1,180,632 for the Pension Fund, but Morningstar was unable to explain why the amount

budgeted for the Pension Fund at the beginning of the year was greater than the amount

budgeted in the fiscal year end audit.

40 For fiscal year 2008, Morningstar testified that Harvey collected $19,585,131 in total

revenue and that the audit report showed that the annual required contribution to the Pension

Fund was $1,077,837. However, the actual contribution made by Harvey was only $468,365.

41 Morningstar testified that Harvey does have a statutory requirement to contribute to the

Pension Fund and that Harvey has not contributed as required by statute since 2005. At the

time of her deposition on February 28, 2014, Morningstar testified that Harvey had not made

any contributions to the Pension Fund since 2009.

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42 (2) Maggie Britton

43 Maggie Britton, a certified public accountant for Alli Financial and one of two

comptrollers for Harvey, provided deposition testimony that, as comptroller, her duties

include financial management, preparation of the annual budget, internal audits, and tracking

expenditures and revenue. Britton testified that she performs the day-to-day comptroller

duties, while Joseph Letke is the official comptroller for Harvey, which means that she

assists in the preparation of the annual financial reports, which are submitted to the Illinois

Comptroller’s Office. Britton testified that Harvey has not been completing the required

audits, so they are unable to complete the annual financial reports. Britton testified that

Harvey had not undergone an audit for fiscal years 2010, 2011, 2012, or 2013.

44 Britton next testified regarding personal property replacement taxes, which are taxes

disbursed by the State of Illinois to the municipalities eight times per year. Britton testified

that a portion of the personal property replacement taxes is statutorily required to be

contributed to the Pension Fund. Britton testified that Harvey received $805,674 in personal

property replacement taxes for 2007; $888,081 for 2008; $778,539 for 2009; $649,436.17

2010; and $797,445.69 for 2011. However, Harvey had not contributed any personal property

replacement taxes to the Pension Fund during these years. Additionally, Britton testified that

Harvey did not levy any money for either the fire or police pension funds for 2005 through

2010.

45 Britton testified that Harvey appropriated $300,000 in 2005, $300,000 in 2006,

$1,180,632 in 2007, $197,000 in 2008, $1,161,219 in 2009, $1,161,219 in 2010, $0 in 2011,

$480,000 in 2011, $450,000 in 2013, and $1,781,542 in 2014 for the Pension Fund.

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46 Britton testified that she knows there is a statute that requires contributions to be

transmitted to the Pension Fund every year and that Harvey should fund the Pension Fund,

based on the most recent actuarial calculations that provide the required amount of funding.

Specifically, Britton testified that “based on the rate of return for investments and employee

contributions, the [Pension Fund] could be facing a shortfall in [fewer than 10 years].”

47 (3) Joseph Letke

48 During his deposition, Joseph Letke, the official comptroller for Harvey starting in 2003,

invoked his Fifth Amendment privilege against self-incrimination 178 times and refused to

answer questions regarding (1) fraudulent and misleading bond offerings, (2) a developer

who collected bond proceedings from Harvey then fled to India, (3) the accusation that Letke

collected fees from both Harvey and the developer, who fled to India, (4) why each Harvey

alderman had an $80,000 unmonitored expense account, (5) why Harvey paid an alderman’s

son $325 an hour for snow removal, and (6) why Harvey paid the mayor’s son $88,000 to

develop a social media website.

49 Additionally, the Pension Board attached to its motion for summary judgment a

complaint filed by the Securities and Exchange Commission (SEC) against both Harvey and

Letke. The complaint alleges:

“[a] scheme by [Harvey] and Joseph T. Letke to misuse proceeds raised from

investors in municipal bonds issued by Harvey. From 2008 to present, Harvey and

its Comptroller, Letke, have engaged in a scheme to divert bond proceeds for

improper purposes, including undisclosed payments to Letke.”

Further, the complaint alleges that Harvey and Letke offered fraudulent bond offerings for $6

million in 2008, $3 million in 2009, and $3 million in 2010.

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50 The complaint alleges that these bond offerings were to provide funding for a “Holiday

Inn Hotel in Harvey” and:

“Thus, it was important to bond investors that money raised from the bond

offerings, consistent with the stated purpose, was actually used to fund the hotel

development, since the amount of funds to repay the bonds derived from tax

revenues would be materially affected by the funding and progress of the Hotel

Redevelopment Project.”

However, unknown to the bond investors and contrary to the representations made by Harvey

and Letke, “Harvey officials improperly diverted at least $1.7 million of bond proceeds from

these offerings into the general operation accounts of Harvey to pay [Harvey’s] operation

costs, including payroll. Letke *** also received approximately $269,000 in undisclosed

payments derived from bond proceeds[.]”

51 Due to these alleged misappropriations and misrepresentations, the SEC sought (1)

money damages against Letke, (2) a temporary restraining order prohibiting Harvey from

offering or selling its own municipal securities, (3) a permanent injunction prohibiting

Harvey from selling municipal securities for five years, unless an independent consultant

reviews and approves of its municipal security disclose policies and procedures, and (4) a

permanent injunction prohibiting Letke from participating in any capacity in a municipal

securities offering.

52 (4) Jon Willhite

53 Jon Willhite, the Pension Fund’s financial consultant since the 1980’s, testified in his

deposition regarding a calculation table showing his calculations for lost revenue between

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fiscal years 2005 and 2013. This table is a calculation for lost revenue based on the

recommended tax levy as opposed to the collected tax levy. The table appears as follows:

Fiscal Required Contribution Investment Shortfall Lost Revenue Cumulative Year Contribution Received Return 2005 $880,632 $9,885 4.18% $870,747 $888,963.37 $888,963 2006 $945,580 $38,304 7.80% $907,276 $942,661.93 $1,900,969 2007 $1,061,219 $615,407 10.17% $445,812 $468,476.94 $2,562,735 2008 $1,140,932 $771,471 3.06% $369,461 $375,115.17 $3,016,289 2009 $1,294,791 $18,181 -12.06% $1,276,610 $1,199,637.40 $3,852,195 2010 $1,574,792 $5,134 18.15% $1,569,658 $1,712,113.49 $6,263,527 2011 $1,611,369 $0 9.65% $1,611,369 $1,689,086.91 $8,556,806 2012 $1,611,369 $0 -2.05% $1,611,369 $1,594,812.58 $9,975,780 2013 $1,531,760 $0 7.07% $1,531,760 $1,585,940.72 $12,267,438

54 Willhite testified that he created this document to show the data that he examined in

calculating the cumulative loss in revenue to the Pension Fund. Based on his calculations,

Harvey’s lack of contributions to the Pension Fund has resulted in a cumulative lost revenue

of $12,267,438 from 2005 to 2013. Willhite testified that the cumulative total is the total lost

revenue plus the investment returns.

55 Willhite was asked, based on his experience as the Pension Fund’s financial consultant,

whether the Pension Fund is on the verge of default or imminent bankruptcy. Willhite

responded by testifying:

“we took on the plan in 2009 *** and the assets were at 17 million and some

change. We’ve had a positive annual rate of return in the 7s, I believe, over that

time frame compounding. I would have to go back and get the actual number, but

it’s been a fairly decent return. And [the Pension Fund has] gone from over 17

million to approximately $11.1 million as of the close two days ago.

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So that would tell me that if you were to take the monthly—or the monthly

outflows of over 300,000 a month going out and continue to expand upon that and

just take that annual number of $1.2 million and divide that by the 11 million,

yeah there’s going to be a time when there’s no money left in that plan; and it’s

shorter than the life expectancy of the retirees.”

56 Willhite further opined: “[a]t their current condition and the rate of money that’s going

out they will reach a time when there will be no money left in the [Pension Fund] as we

know it today.” Willhite further opined that if the tax levy is not reinstated, then the Pension

Fund is going to be in “dire, dire problems.” Willhite continued his opinion by stating that

the Pension Fund is being forced to sell assets to pay the beneficiaries. Willhite testified that

of all the pension funds he works with, Harvey’s Pension Fund is the worst funded.

57 Willhite opined that the Pension Fund would be insolvent in seven to nine years. He

based this opinion on the fact that, in 2009, the Pension Fund had over $17 million in assets;

however, it lost over $7 million in assets since that year without adequate contributions from

Harvey. Even more concerning to Willhite is that the Pension Fund has had a 9.75 percent

return over that same time frame, which, normally, would indicate a positive increase in

monies in the fund. However, that was not the case in Harvey because of inadequate

contributions by Harvey.

58 (5) Sandor Goldstein

59 Sandor Goldstein is an actuary who was hired by Harvey to review the calculations by

Jon Willhite, the actuary for the Pension Fund. Goldstein testified as follows at his

deposition.

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60 In reviewing the pertinent documentation, Goldstein opined that Willhite’s calculations

were deficient as to the total loss revenue for the Pension Fund due to the lack of

contributions from Harvey. Goldstein testified:

“Well, it was deficient because he basically just went to each year’s actuarial

valuation and considered the annual requirement for that year versus the employer

contribution for that year and added it all up over the full period from 2005 to

2013, and that doesn’t take into account that if there’s—if [Harvey] had actually

made those contributions in the early years, then those contributions would have

had some investment earnings and would have added to the assets, and therefore

the contributions in the later years would have been less, so in a way, when we

look at the deficiency in contributions in one year, we’ve already taken it into

account, but if we—and that affects the required contribution in the future year,

and if you don’t make that contribution, the required contribution in the future

year will be less also; so you’re counting the effect of these deficiencies in

contributions twice, first in the year when it’s not made and then also in the later

years where you’re contributing more, so I feel that once you’ve recorded a

deficiency in contributions you need to add it into the assets to calculate future

year deficiencies.”

61 Goldstein testified that, in his calculations for accumulated contribution deficiency, he

would assume that Harvey had actually contributed the annual actuarial requirement and that

the Pension Fund had the money invested at a particular rate of return for each fiscal year.

Based on this method of calculation, Goldstein provided the following chart, which lays out

all of his calculations:

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Fiscal Year Adjusted Employer Contribution Rate of Accumulated Annual Contribution Deficiency Return Contribution Actuarial Deficiency Requirements 2005 876,692 9,885 866,807 4.3381% 885,608 2006 857,500 38,304 819,196 8.0961% 1,809,666 2007 990,302 615,407 374,895 10.4075% 2,392,410 2008 1,042,696 771,471 271,225 3.1250% 2,742,636 2009 1,179,421 18,181 1,161,240 -12.6001% 3,485,142 2010 1,423,897 5,143 1,418,754 19.2365% 5,710,775 2011 1,190,734 0 1,190,734 10.1914% 7,544,193 2012 864,407 0 864,407 -2.1699% 8,235,520 2013 1,110,344 0 1,110,344 7.5482% 10,009,403 Total 9,535,993 1,458,391 8,077,602

62 Based on his accumulated contribution deficiency calculations, Goldstein opined that if

Harvey had been contributing pursuant to the requirements of the Code, that the Pension

Fund would have an additional $10,009,403 in assets, for a total of approximately $22

million on May 1, 2012.

63 (6) Calene Zabinski

64 Calene Zabinski, a CPA who works as a finance director and treasurer for various towns

and municipalities across the state, was hired to perform the year-end audit of the Pension

Fund for 2008 through 2013. As a result of conducting these audits, Zabinski testified

regarding the assets, annual actuarial requirement calculations, and the percentage of the

annual actuarial requirement Harvey had contributed. Additionally, Zabinski used that

information to establish the Pension Fund’s net change in assets and the percent it was

funded.

18  No. 1-15-3074

Year Annual Harvey % of AAR Net Change % Funded Actuarial Contribution Harvey in Assets (+/- Requirement contributed ) (AAR) 2008 $1,077,837 $771,471 71.58% -$185,866 59.16% 2009 $1,294,791 $18,181 1.4% -$3,619,875 50.79% 2010 $1,574,792 $5,143 0.33% +$955,176 38.28% 2011 $1,611,369 $0 0.0% -$156,474 40.46% 2012 N/A $0 0.0% -$1,860,149 N/A 2013 $2,036,497 $0 0.0% -$704,363 34.68%

65 Zabinski testified that, although it is rare for a municipality to have a fully funded

pension fund, she is concerned regarding the continued underfunding of the Pension Fund in

Harvey. She testified that “the continued underfunding, coupled with that increase in the rate

of pay higher than the actuarial assumption, eventually will get to the point where [Harvey] is

going to have to pay for the pensioners.” In other words, the underfunding will cause the

dissipation of the Pension Fund’s assets which will result in the fund having no assets,

thereby requiring Harvey itself to pay the pension benefits.

66 (7) Jamie Wilkey

67 Jamie Wilkey, an accountant with Lauterbach & Amen, an accounting firm that

specializes in the accounting of government entities, testified that his firm was hired to

perform an audit of the Pension Fund for fiscal years 2005, 2006, and 2007. She testified that

there were 113 plan members in the Harvey firefighter’s pension fund as of 2004, with 49

active plan members and 64 retirees and beneficiaries.

68 Wilkey testified that the Pension Fund had $16,699,170 in assets as of April 30, 2005,

that Harvey contributed $9,885 to the Pension Fund for that same year, and that the Pension

Fund paid out $1,398,003 in benefits for that year. Harvey was required to contribute 12.2%

of the Personal Property Replacement Tax (PPRT), but did not do so. 19  No. 1-15-3074

69 Based on the 2005 annual audit report, Wilkey testified that the Pension Fund, as of fiscal

year 2005, was 63.87% funded. She testified that the category entitled “annual pension cost”

is the number “that reflects the annual required contribution adjusted for the interest on the

outstanding net pension obligation as well as adjusted for the actuary’s calculation of retiring

the unfunded portion of the liability as well.” For fiscal year 2005, Wilkey testified that the

annual pension costs were $823,021 and that Harvey’s contribution of $9,885 to the Pension

Fund accounted for only 1.20% of the annual pension cost for 2005. There were 47 active

plan members and 71 retirees and beneficiaries drawing off the Harvey firefighter’s pension

fund as of April 30, 2005.

70 Wilkey testified that the Pension Fund had $16,782,216 in assets as of April 30, 2006,

and paid out $1,585,940 in benefits and refunds, while Harvey contributed only $38,304.

Using these numbers, Wilkey opined that the Pension Fund was 59.31% funded. Although

Harvey contributed $38,304 to the Pension Fund, the contribution accounted for only 3.91%

of the annual required contribution. As of April 30, 2006, there were 50 active plan members

and 66 retirees and beneficiaries; the percent funded of the firefighters’ pension fund was

57.82 percent for the 2006 year.

71 Wilkey testified that the Pension Fund had $17,715,906 in assets as of April 30, 2007.

For this same year, Harvey contributed $615,407 to the Pension Fund, and the Pension Fund

paid out $1,582,325 in benefits and refunds. Additionally, the Pension Fund was 57.8%

funded, and Harvey contributed 58.02% of the annual pension costs. Further, after examining

the annual financial report for fiscal year 2009, she testified that the net pension obligation

for Harvey was $4,539,179, and Harvey contributed only $18,181.

20  No. 1-15-3074

72 Wilkey testified that personal property replacement taxes are revenue transmitted to cities

within Illinois, which then contribute 12.2% of these taxes to the cities’ pension funds.

Wilkey opined that Harvey would owe the Pension Fund $125,773.33 in personal property

replacement taxes as of the time of her deposition on February 28, 2014.

73 (8) James Ritchie

74 James Ritchie, a CPA and client manager for Lauterbach & Amen, who worked directly

with the Pension Fund, testified to the Pension Fund’s financial condition and was concerned

for its financial viability. He testified:

“With statutorily required increases in benefits being paid out as well as the

expenses and then the lack of municipal funding that is coming in, it looks that the

assets are slowly being depleted to pay out benefits as required by statute.

Without municipal funding I would say, in an estimation, the [Pension Fund] will

begin to have difficulty paying out benefits by the end of this decade.”

75 Richie testified that the lack of cash assets or investments that are available for the

payment of benefits, combined with the increases in the cost of living, is going to create

problems in paying out benefits. Ritchie testified that, in his opinion, the Pension Fund is on

the verge of going insolvent and “has approximately five years before that’s a very real

possibility, of being completely insolvent.”

76 Based on his review of the fund’s statement of net position ending December 31, 2013,

Ritchie testified that Harvey has collected $469,637.06 on behalf of the Pension Fund, but

has not remitted any of it into the Pension Fund. Ritchie reviewed financial statements from

April 30, 2007, through April 30, 2013, and calculated the total amount of money that

Harvey had failed to contribute to the Pension Fund between fiscal years 2005 and 2013 as

21  No. 1-15-3074

approximately $10,190,000. However, Ritchie did not account for the loss of investment

opportunity in his calculations.

77 (9) Todd Schroeder

78 Todd Schroeder, an actuary with Lauterbach & Amen, was hired to conduct the actuarial

valuation for the Pension Fund for 2012 and 2013. Lauterbach & Amen then assigned this

task to Schroeder, who testified about what a contribution of zero dollars would do to a

pension fund:

“Contribution of zero dollars would increase the unfunded liability of a pension

fund. If you look at the current—the prior year recommended contribution,

whatever that dollar figure was, versus a contribution of zero, that difference is

what’s called unexpected unfunded accrued liability that comes in in the next

year. So that unexpected unfunded liability adds to whatever unfunded liability

already existed from last year to this year that we already knew was there.”

Schroeder further explained that a municipality that continues to make no contribution to a

pension fund would result in an increase of the annual required contribution going forward.

79 Schroeder explained why municipalities should contribute the annual actuarial

requirement every year:

“The idea behind contributing the annual actuarial requirement each year is that

you can—to some extent you can manage the increase in cost over time. So if you

set up, for example, an actuarial requirement that’s going to increase at four-and-

a-half or five percent per year, then you have some predictability as to those

contributions if those contributions are being made over time. If those

contributions are not made, then you have much more volatility and you see more

22  No. 1-15-3074

rapid increases in the contribution calculations and annual actuarial requirements

over time.”

Putting these ideas together, Schroeder, when asked whether Harvey’s failure to contribute at

least the minimum annual actuarial requirement to the Pension Fund was concerning to him,

testified:

“Yes. *** One thing that jumps out is that right now the cash flow out greatly

exceeds the cash flow that’s coming in. The benefit payments that are being paid

out of the [Pension Fund] are close to 20 percent of the [Pension Fund’s] assets.

So the dollars that are coming in from employees and investment income is not

enough to offset that, so we’re seeing a declining asset base each year.”

80 (10) Daniel Mumpher

81 Daniel Mumpher, the Director of Local Government in the Illinois Comptroller’s Office,

testified that he is in charge of managing the reporting process of local governments

throughout the State of Illinois. This includes the intake of annual financial reports, annual

audits, and tax increment reports. Mumpher testified that municipalities in Illinois are

required to submit annual financial reports to his office within six months of the end of their

respective fiscal years.

82 Mumpher testified that Harvey filed its annual financial report for 2005 on July 31, 2006,

its annual financial report for 2006 on July 6, 2007, its annual financial report for 2007 on

April 8, 2008, and its annual financial report for 2008 on November 15, 2011. He futher

testified that Harvey's annual financial reports for 2009, 2010, 2011, and 2012 were all filed

on November 1, 2013. However, Mumpher testified that he had not received an annual

financial report from Harvey for the year 2013 or after.

23  No. 1-15-3074

83 Additionally, Mumpher testified that, while he had received an annual audit for fiscal

year 2009, he did not receive it until December 16, 2013. However, Harvey has not filed an

annual audit for fiscal years 2010, 2011, 2012, or 2013. Mumpher testified that he is

concerned that Harvey has either not timely filed or has not filed at all the annual financial

reports and annual audits for several years. Both these reports are statutorily required;

however, Harvey has not timely filed for multiple years. Mumpher testified that Harvey is

one of approximately 20 municipalities that are multiple years behind on these reports.

84 Due to Harvey’s lack of filing, Mumpher testified that his office had issued several

requests for Harvey to file these reports with his office. As a result of the continued

delinquency of these reports, Mumpher’s office has issued multiple fines against Harvey. He

testified that he is unsure of the exact amount, but the total is more than $10,000 at this point.

85 Mumpher testified that Harvey reported that it paid $1,513,003 to the Pension Fund

during fiscal year 2005, $1,580,608 during fiscal year 2006, $0 in fiscal year 2007,

$1,761,830 during fiscal year 2009, $0 during fiscal year 2010, $0 during fiscal year 2011,

and $1,761,830 during fiscal year 2012.

86 (11) Scott Brandt

87 Scott Brandt, an actuary with the Illinois Department of Insurance, testified that he is

familiar with Article 4 of the Code, which establishes firefighter’s pension funds for

municipalities based on their population. Brandt testified that the Code:

“dictates a methodology in which the actuary is to use [when determining pension

contributions]. It dictates the time frame under which the unfunded is to be paid

off and the method in which that unfunded is to be calculated. It dictates that the

assets are to be smoothed over a five-year period. It dictates that the unfunded—

24  No. 1-15-3074

or the fund only needs to be funded to a 90 percent level by the end of period

dictated under the statute which is in 2040.”

88 Brandt then examined actuarial valuation reports produced by the Department of

Insurance for the Pension Fund for the fiscal years 2004 through 2010. The preparation of

these reports involves examining the documents submitted to his office by the Pension Fund.

Then, his department sends the report through an “electronic check” that ensures the

information is fairly accurate. This program then “computes the liability, the actual liabilities,

compares the two, comes up with a shortfall if that is the case.” The shortfall is then

amortized over a period to ensure it is paid off. Brandt further testified that his department

used a funding method called “entry age normal cost” for the earlier actuarial valuation

reports. However, the Code changed the calculation method to projected unit credit, which

“projects the liabilities in a different method.”

89 Examining an actuarial experience study from September 26, 2012, Brandt testified that

the Department of Insurance commissioned this report to determine the effects of the change

in Article 4 of the Code in 2011. This study was used to determine how the actuarial

assumptions needed to be reviewed and changed to be in line with the new law. The report

provided the Department of Insurance updated assumptions to use when conducting its

valuations.

90 Next, Brandt examined a biannual public pension report for the State of Illinois for years

2011 through 2013. Examining this report, Brandt testified that Illinois public pensions were

54.3% funded in 2011. However, the pension funds were only 49% funded in 2013 when the

report was published.

25  No. 1-15-3074

91 VI. HARVEY’S MOTION FOR SUMMARY JUDGMENT

92 In its motion for summary judgment, Harvey argued that the Pension Fund is not on the

verge of default or imminent bankruptcy and therefore, Harvey is not liable to the Pension

Board. In addition, Harvey argued that the Pension Board’s action is barred by laches and

separation of powers and that the Pension Board lacks the authority to sustain this lawsuit. 3

Additionally, Harvey argued that, even if the foregoing is incorrect, the Pension Board’s

claims for damages are still wholly unreasonable.

93 A. THE VERGE OF DEFAULT OR IMMINENT BANKRUPTCY

94 Harvey argued that the Pension Fund is not on the verge of default or imminent

bankruptcy. 4 In support, it attached the deposition transcript of Calene Zabinski, “who

performs annual audits for around 20 Illinois police and firefighters’ pension funds, and who

has knowledge of the state of other police and firefighters’ pensions[.]” Zabinski testified

that, in her experience, only in rare instances are pension funds fully funded.

95 B. REASONABLENESS OF DAMAGES

96 (1) THE MOST RECENT ACTUARIAL VALUATION

97 Harvey argues that, under the Code, municipalities are required only to levy “a sum

sufficient to meet the annual actuarial requirements of the pension fund.” 40 ILCS 5/4-118(a)

(West 2014). To achieve this goal, the Code provides a two-step process: (a) funding the

normal cost of the pension fund and (b) providing the annual amount required to bring the

total assets of the pension fund up to 90% by fiscal year 2040. 40 ILCS 5/4-118(a) (West

3 The affirmative defenses arguments for laches, separation of powers, and lack of authority made before this court are substantially similar to those made before the trial court. Therefore, these arguments will be discussed in the Analysis portion of this opinion. 4 Harvey’s argument that the Pension Board is not on the verge of default or imminent bankruptcy is the same in its motion for summary judgment as on appeal. Therefore, we will cover the majority of this argument in the Analysis section rather than here. Supra 172-205. 26  No. 1-15-3074

2014). Based on this, Harvey argued that the second portion of that formula, “an annual

amount sufficient to bring the total assets of the pension fund up to 90% of the total actuarial

liabilities *** by the end of [the] municipal fiscal year 2040,” takes into account

underfunding of the pension fund and changes based on the contributions of previous years.

40 ILCS 5/4-118(a) (West 2014).

98 To support this argument, Harvey attached the discovery deposition transcript of Todd

Schroeder, the Pension Fund’s actuary. Schroeder testified that actuarial valuations would be

different based on funding from prior years. Therefore, the underfunding of previous years is

taken into account when determining each year’s actuarial valuation. For this reason, Harvey

argued that the Code “only asks municipalities to contribute the recommended amount from

the most recent actuarial valuation, not the sum of prior actuarial valuations.”

99 Additionally, Harvey attached the discovery deposition transcript of Scott Brandt, a

representative of the Illinois Department of Insurance. Harvey cited the following exchange:

“Q. Does the Public Pension Division have a position on whether a

municipality that did not fund its Firefighters’ Pension Fund in the fiscal year

April 13, 2013, does it have a position on whether that municipality would owe

the recommended contribution for the fiscal year ending April 30th, 2014, or

whether it would owe that recommended contribution plus the prior recommended

contribution?

A. The Public Pension Division’s position would be that the municipality

would only need to fund the amount computed under a 2014 actuarial valuation.

Q. Why is that the Public Pension Division’s position?

27  No. 1-15-3074

A. Actuarially speaking, the 2013 nonfunded amount is taken into

consideration when calculating the 2014 liabilities and unfunded amounts.”

Harvey argued that, based on this interpretation of Article 4, even if the Pension Board had a

claim against Harvey for underfunding, Harvey was liable only for the most recent actuarial

valuation, not all prior valuations combined.

100 (2) RECOVERY FOR 2009, 2010, OR 2012

101 Harvey argued that the Code requires an enrolled actuary to calculate the annual actuarial

valuation every year; therefore, because an enrolled actuary did not perform a valuation for

years 2009, 2010, and 2012, the Pension Board cannot recover for those years. In its motion

for summary judgment, Harvey included the following table:

Fiscal Year Actuary 1 Actuarial Actuary Actuarial Source(s) Requirement 2 Requirement 2005 Scott $876,692 Tim $880,632 Pension Fund Brandt Sharpe Valuation 2005 2006 Scott $980,024 Tim $945,580 Pension Fund Brandt Sharpe Valuation 2006 2007 Scott $1,060,727 Tim $1,061,219 Pension Fund Brandt Sharpe Valuation 2007 2008 Scott $1,140,932 Tim $1,077,837 Pension Fund Brandt Sharpe Valuation 2008 2009 Scott $1,294,791 None Pension Fund Brandt Valuation 2009 2010 Scott $1,574,792 None Pension Fund Brandt Valuation 2010 2011 Scott $1,611,369 Tim $1,558,762 Pension Fund Brandt Sharpe Valuation 2011 2012 None None 2013 Biannual Pension Report 2013 Todd $1,531,760 None Pension Fund Schroeder Valuation 2013

28  No. 1-15-3074

102 Harvey argued that, in 2009 and 2010, only Brandt performed the actuarial valuation.

However, according to Brandt’s deposition testimony and a copy of a list compiled by the

Internal Revenue Service of Active Enrolled Actuaries, Brandt is not an enrolled actuary. 5

Harvey argued that no annual actuarial valuation was performed by an enrolled actuary for

2009 and 2010 as required by the Code, so therefore it cannot be liable for any damages

during these years. Additionally, no annual actuarial valuations took place during 2012.

Therefore Harvey argues that it cannot be liable for damages during 2012 either.

103 In support of its motion, Harvey attached the deposition transcript of Jon Willhite, the

Pension Fund’s financial consultant, who testified that the amount of damages should be

$12,267,438, based on his calculations. Harvey also attached the deposition transcript of

Sandor Goldstein, an actuary, who testified that Willhite’s calculations were deficient.

Harvey argued that, based on Goldstein’s calculations, the maximum amount of damages

should be $10,009,403.

104 C. PENSION BOARD’S MOTION TO COMPEL ENFORCEMENT OF THE

SETTLEMENT AGREEMENT

105 The parties disagreed as to whether Harvey violated the following clause of the 1996

settlement agreement:

“that in the future, any property taxes levied or personal property replacement

taxes received on behalf of the [Pension Fund], which are assessed, collected and

remitted to [Harvey] by the Cook County Treasurer’s Office, shall be paid to the

5 The Code states an enrolled actuary is an actuary “(1) who is a member of the Society of Actuaries or the American Academy of Actuaries; and (2) who is enrolled under Subtitle C of Title III of the Employee Retirement Income Security Act of 1974 [(29 U.S.C. § 1241 (2012))], or who has been engaged in providing actuarial services to one or more public retirement systems for a period of at least 3 years as of July 1, 1983.” 40 ILCS 5/4-118(e) (West 2014). 29  No. 1-15-3074

[Pension Fund] within 30 days of receipt by [Harvey], and not used by [Harvey]

for any other corporate purposes as required by [the Code].”

106 Harvey argues that it did not fail to remit levied funds to the Pension Fund because it

never collected the money levied for the funds. Harvey presented the following tables to

support this argument:

Fiscal Year Total General Total Pension Total Actually Shortfall Levy Fund Levy Collected 2005 $6,837,195 $0 - - 2006 $6,837,195 $0 - - 2007 $6,832,504 $480,632 $5,907,424 $925,080 2008 $7,952,086 $1,061,219 $5,208,438 $2,743,648 2009 $7,952,086 $1,061,219 $7,551,900 $400,186 2010 $8,759,841 $350,000 $7,834,933 $924,908 2011 $9,633,132 $0 - - 2012 $9,975,330 $0 - - 2013 $10,771,419 $0 - -

Fiscal Year Revenues Expenditures Deficit 2007 $30,260,000 $36,740,000 $5,360,000 2008 $31,540,000 $35,890,000 $4,350,000 2009 $34,849,798 $54,829,361 $19,979,563 2010 $33,218,986 $6,157,595 $6,157,595 Totals $129,868,784 $166,835,942 $36,967,158

Fiscal Year Personal Property Replacement Taxes Received 2005 $391,736 2006 $501,237 2007 $805,674 2008 $888,081 2009 $778,539 2010 $646,436 2011 $797,446 2012 $703,326

30  No. 1-15-3074

2013 $744,405 2014 $780,142

107 Based on this information, Harvey argued that between 2007 and 2010, the years the

Pension Board claims Harvey failed to remit the funds to the Pension Fund, “Harvey

specifically levied $2,953,070 to be paid to the Pension Fund as part of its general corporate

levy. [Citation.] However, during this same period, Harvey experienced a shortfall in its

collections and collected $4,993,822 less than it had levied.” For this reason, Harvey argued

that it never collected the funds intended for the Pension Fund and, therefore, Harvey could

not remit funds to the Pension Fund that it did not receive.

108 VII. RESPONSE TO THE MOTIONS FOR SUMMARY JUDGMENT

109 Following the filing of both parties’ motions for summary judgment, the trial court

ordered both parties to submit their responses and replies, which they did. Then, on March

18, 2015, Harvey moved to supplement its motion for summary judgment in order to attach

two settlement agreements, which Harvey felt impacted its financial status. Those settlement

agreements were from two cases involving Harvey: City of Chicago v. City of Harvey, No. 12

CH 44855 and SEC v. City of Harvey, No. 14-cv-7744. On April 14, 2015, the Pension Board

also sought to supplement its motion for summary judgment with five additional exhibits,

including (A) the actuarial valuation of the Pension Fund as of May 1, 2014, (B) the Pension

Fund’s UBS Asset Allocation Review as of March 4, 2015, (C) correspondence between the

Illinois Municipal Retirement Fund and the Illinois Department of Insurance dated March 17,

2015, (D) an April 3, 2015, Cook County Circuit Court Judgment Order assessing damages

for the Harvey Police Pension Fund against Harvey in the amount of $7,334,181.88, and (E)

Harvey’s mayor’s campaign brochure entitled “Re-Elect—A Lifetime of Commitment” in

31  No. 1-15-3074

which he states that Harvey is in better financial shape than it has ever been and that all

outstanding litigation has been settled.

110 In support of this motion, the Pension Board argued that the Pension Fund’s net present

assets have decreased since the last valuation: “As of March 4, 2015, the Pension Fund had

only $10,936,532.72 in assets. According to the most recent actuarial valuation, the Pension

Fund was only 27.18 percent funded as of May 1, 2014, and the Pension Fund’s unfunded

accrued liability has increased to nearly $30 million.” Additionally, the Pension Board

attached correspondence between the Illinois Municipal Retirement Fund and the Illinois

Department of Insurance regarding the change in the Code which allows a form of

‘enforcement provision’ relied on by Harvey in its motion for summary judgment.

Specifically, this letter shows that the State Comptroller is refusing to comply with the

statutory provision; therefore, the Pension Board argued that “the enforcement provision in

Article 4 is currently useless and it does not save the Pension Fund from default or

bankruptcy.”

111 The trial court granted both motions to supplement. Then, on June 5, 2015, the Pension

Board filed an emergency motion to supplement, in which it sought to attach: (1) the Illinois

Supreme Court decision of In re Pension Reform Litigation, 2015 IL 118585 (Heaton), and

(2) House Bill 3484 and Senate Amendment #1. 6

112 On June 9, 2015, the trial court granted the emergency motion to supplement.

6 Harvey argued that the Senate amendments to the Code would remove any enforcement rights the Pension Fund would have been given pursuant to the Code, and that the amendments would negate the lawsuit. 32  No. 1-15-3074

113 VIII. TRIAL COURT’S ORDER

114 On June 25, 2015, the trial court granted the Pension Board’s motion for summary

judgment as to count I for declaratory judgment and count III for injunctive relief and also

granted the Pension Board’s motion to compel enforcement of the settlement agreement.

However, the court denied count II for a writ of mandamus.

115 A. HARVEY’S PRELIMINARY DEFENSES

116 First, the trial court determined that the Pension Board had authority to bring the claim

and that laches, the statute of limitations, or separation of powers doctrine did not bar this

claim. The court found that the Pension Board is an administrative body, which is a “separate

and independent entity from the municipality in which it serves.” Therefore, the Pension

Board is not a branch of the Harvey government, and therefore, it can maintain a suit against

Harvey.

117 1. LACHES AND STATUTE OF LIMITATIONS

118 Harvey had argued that the Pension Board’s suit was barred by either laches or the statute

of limitations because the Pension Board waited to “bring suit for more than five years after

first learning of the behavior of which it complains.” Harvey argued that the Tort Immunity

Act, which has a one-year statute of limitations, applies in this case. 745 ILCS 10/8-101(a)

(West 2014). However, the trial court found that the Tort Immunity Act applies only to civil

tort actions, and was, therefore, not applicable in this case. Rather, the trial court determined

that the statute of limitations was five years in accordance with section 13-205 of the Code of

Civil Procedure. 735 ILCS 5/13-205 (West 2014). The trial court explained: “Due to the

interplay between the actuarial valuation, fiscal year, tax levy and Pension Code, the Board

could not have known of Harvey’s failure to properly levy or contribute to the Fund for fiscal

33  No. 1-15-3074

year 2005 until February 6, 2006. [Citations Omitted.] Thus, the board properly brought suit

within the applicable five year statute of limitations.”

119 The trial court found that to succeed on a claim of laches, “Harvey must show that it was

misled or prejudiced by such delay, or pursued ‘a course different from that which [it] would

otherwise have taken. [Citation.]’ ” The trial court found that Harvey was not unknowingly

accruing liability. Rather, Harvey was knowingly accruing liability, failed to utilize any

formula to determine its contributions to the fund, and failed to fulfill its duty according to

the Code. Additionally, the trial court cited to the fact that, even after the suit was filed in

2010, Harvey continued its course of failure to contribute to the Fund. Therefore Harvey was

not unknowingly accruing liability.

120 2. SEPARATION OF POWERS

121 The trial court partially agreed with Harvey’s argument regarding separation of powers.

The trial court acknowledged that the judiciary branch has always been cautious when

venturing into the world of taxation. However, the trial court found that, when a municipality

abuses its discretion in the enforcement of statutory provisions, the judiciary will step in to

enforce the law. Accordingly, the trial court denied the Pension Board’s claim for a writ of

mandamus. On all other counts, the court denied the affirmative defense of separation of

powers.

122 B. CONSTITUTIONAL, CONTRACTUAL, AND STATUTORY RIGHT TO

FUNDING

123 In reaching its finding, the trial court drew distinctions among (1) a constitutional right to

funding, (2) a contractual right to funding, and (3) a statutory right to funding. The trial court

34  No. 1-15-3074

found that article XIII, section 5 of the Illinois Constitution was the basis for both (1) a

constitutional and (2) a contractual right to funding:

“Membership in any pension or retirement system of the State, any unit of

local government or school district, or any agency or instrumentality thereof, shall

be an enforceable contractual relationship, the benefits of which shall not be

diminished or impaired.” (Emphasis added.) Ill. Const. 1970, art. XIII, § 5.

The trial court found that the Pension Fund must prove that it is on the verge of default or

imminent bankruptcy to maintain an underfunding claim based on a constitutional violation

under section 5. Ill. Const. 1970, art. XIII, § 5.

124 However, the trial court found that to determine whether a contractual right to funding

exists requires an additional step, in which a pension fund must prove that it has “vested

contractual rights to *** funding levels.” People ex rel. Sklodowski v. State, 182 Ill. 2d 220,

231 (1998). This level of proof requires “citing specific language in the [Code] that

demonstrates a legislative intent to establish a contractual right to funding.” Board of

Trustees of the Riverdale Police Pension Fund v. Village of Riverdale, 2014 IL App (1st)

130416, 38.

125 While the trial court found that both (1) a constitutional and (2) a contractual right were

based on the constitution, the trial court found that (3) a statutory right was derived directly

from the Code itself. The trial court specified that, even if a statute does not create vested

rights, the statute can still create a legal obligation that a party must follow.

126 1. CONSTITUTIONAL RIGHT TO FUNDING

127 The trial court focused on whether pension funds, in general, have a constitutional right

to funding, and found, based on Riverdale, 2014 IL App (1st) 130416, and Sklodowski, 182

35  No. 1-15-3074

Ill. 2d 220, that they do not have that right. Rather, the trial court found that pensioners have

a right to receive benefits from a pension fund once their interest vests. As a result, the trial

court found that a fund cannot demand funding unless the fund is “on the verge of default or

imminent bankruptcy *** such that pension benefits were being impaired.” (Internal

quotation marks omitted.) Riverdale, 2014 IL App (1st), 31. However, the trial court

observed that “by the time that a pension fund is on the verge of default, the deficiency in the

pension payments is certain to be quite large and the likelihood of the public employer’s

ability to pay is certain to be quite small.”

128 The trial court then attempted to determine whether this Pension Fund was or was not on

the verge of default or imminent bankruptcy but, in the end, the trial court left that decision

for a higher court 7 to determine because “[n]o court in this State ha[d] yet” made this ruling:

“In this case, [Harvey] is undoubtedly in a state of near crisis. The parties have

produced ample discovery and deposition testimony describing the deficient

payments by Harvey over the years. If Harvey continues to underfund and often

contribute zero or minimal dollars to the Fund, it will most certainly be at risk of

denying benefits within the next five to ten years. However, throughout Illinois,

municipalities, police and firefighters’ pension funds are underfunded. ***

Harvey points out that many other municipal pension funds are severely

underfunded. For example, as of fiscal year 2012, the Chicago Firefighters’

Pension was 24.4% funded, the Downstate Fire Pension was 55.5% funded, and

the Village of Stone Park’s Police Pension was 7% funded. No court in this State

has yet equated these funding deficiencies with a constitutional violation. Thus,

7 On January 11, 2016, the trial court stated: “hopefully the appellate court can consider it because may[be] this is the case in which the standard for *** [on the verge] is met.” 36  No. 1-15-3074

this Court concludes that the severe underfunding of the Fund in this case does

not equate with the ‘verge of default or imminent bankruptcy’ necessary to find a

constitutional violation.”

129 In addition, the trial court observed (1) that Joseph Letke is no longer Harvey’s

comptroller, (2) that the Harvey Police Pension Fund was recently awarded a $7 million

judgment against Harvey for underfunding, and (3) that the Code now includes a provision

that allows the Pension Board to bring an action to collect a portion of the deficiency directly

from the state. 40 ILCS 5/4-118(b-5) (West 2014). Taking these things together, the trial

court found that, although Harvey’s finances were “in sorry shape,” this evidence did not rise

to the level necessary to “meet this draconian ‘verge of default or imminent bankruptcy’

standard.”

130 2. CONTRACTUAL RIGHT TO FUNDING

131 The trial court found that the “Code itself does not create any contractual right to a

certain level of funding.” In reaching this finding, the trial court determined that it would

presume 8 that the law did not intend to create a contractual right, so that a plaintiff has the

burden of proving specific language within the Code, which establishes the legislature’s

intent to create a contractual right. Based on this presumption, the trial court found that the

Pension Board did not fulfill the high burden necessary to prove it had a contractual right to

funding based on the Code.

132 3. STATUTORY RIGHT TO FUNDING

133 The trial court found that the Code did provide an enforceable statutory right to funding.

In reaching this conclusion, the trial court drew a line between the state and the individual

8 The legal support for this presumption is discussed later in this opinion at infra 170. 37  No. 1-15-3074

municipalities. Citing Sklodowski, the trial court examined a situation where the state

legislature amended the funding requirements for an employee pension plan, as it is legally

allowed to do. 182 Ill. 2d at 231. The trial court explained that “[a]lthough one might wish

the legislature would acknowledge when it enacts legislation replacing previous statutory

funding requirements, absent some contractual right or constitutional prohibition, the

legislature retains the power to change such statutory policies by amendment.”

134 In contrast to the State legislature, the trial court found that a municipality does not have

the authority to amend or ignore a state statute. A city is required to levy “a tax at a rate

which will produce a sum sufficient to satisfy the annual requirements of the *** pension

fund.” People ex rel. Sweet v. Central Illinois Public Service Co., 48 Ill. 2d 145, 156-57

(1971). The trial court found that the state legislature did not intend to remove all discretion

from the municipality in setting the levy every year. However, the state legislature intended

for the municipality to set that levy in accordance with the Code. In sum, the trial court

concluded:

“while the statutory formula set forth in section 4-118(a) leaves Harvey some

discretion and the Illinois legislature retains the power to alter such a formula

through legislative action, Harvey must comply with the [Code] in effect for any

given year. There can be no dispute that Harvey has completely failed to do this

and that the discretion afforded [Harvey] has been completely abused.”

The trial court found that Harvey had not followed the statutory formula and provided

“absolutely no justification or formula to support the amount of its levy or its contribution for

any fiscal year at issue in this case.” For these reasons, the trial court found that Harvey

violated the Pension Fund’s statutory right as provided in the Code.

38  No. 1-15-3074

135 Based on the violation of the Pension Fund’s statutory rights, the trial court granted the

Pension Board’s request for declaratory judgment and injunctive relief. However, the trial

court denied its request for a writ of mandamus. In calculating damages, the trial court

determined “that, if Harvey had actually funded the full amount in any fiscal year, the

actuarial requirement in the following year would be lower because the unfunded liability

would be lower.” The trial court assessed damages of $10,009,403 against Harvey.

136 C. MOTION TO COMPEL ENFORCEMENT OF THE SETTLEMENT AGREEMENT

137 With respect to the settlement agreement, the trial court first examined Harvey’s

affirmative defenses, which included claims that the settlement agreement is void and that the

Pension Board waived its right to sue for enforcement of the settlement agreement. As to

whether the agreement is void, the trial court found that the settlement agreement was simply

a mirror of Harvey’s statutory obligations pursuant to the Code. Therefore, because there is

no illegal or unlawful purpose contained within it, the Pension Board has “every right to

enforce, enjoin or enter into an agreement on behalf of the [Pension] Fund to compel

Harvey’s compliance with the law.”

138 Next, Harvey argued that the Pension Board waived its right to enforce the settlement

agreement, in that the Pension Board “lulled” Harvey into a false sense that the Pension

Board would not be enforcing strict compliance with the settlement agreement. The trial

court determined that, because Harvey’s finances “were in complete disarray for much of the

period at issue,” that the Pension Board could not have known how much Harvey owed it

because Harvey did not even know how much it was collecting in property taxes each year.

Further, the trial court found that, “[g]iven the chaotic state of Harvey’s finances, the

39  No. 1-15-3074

[Pension] Board’s failure to take action prior to filing this lawsuit in 2010 comes nowhere

close to an intentional relinquishment of a known right.”

139 The trial court then examined Harvey’s argument that, because it collected less than it

levied in property taxes, it was justified in not contributing the money to the Pension Fund.

Harvey argues that it levied $2,953,070 for the Pension Fund, but that it collected $4,993,822

less than its total levy. As such, the trial court had to determine whether Harvey was allowed,

under the Code, to attribute the entirety of this deficiency to a single levy, namely the

Pension Fund. The trial court found that, “under the Settlement Agreement, Harvey is

entitled to attribute a proportionate amount of the deficiency in its collections to the Pension

Fund. It is required now to pay in damages the specific amounts levied for the Pension Fund

in fiscal years 2008, 2009 and 2010, less the percentage of that amount that represents the

deficiency in collections of taxes for that fiscal year and also less any amount already

contributed.”

140 Additionally, the trial court found that the settlement agreement required that a

percentage of the personal property replacement taxes that Harvey collected should have

been contributed to the Pension Fund. Therefore, Harvey owed the Pension Fund 12.2% of

all the personal property replacement taxes that Harvey received during the relevant years.

Therefore, the trial court found that Harvey owed the Pension Fund $809,892 in unpaid

personal property replacement taxes.

141 D. TRIAL COURT’S DAMAGE FINDING

142 The trial court entered a judgment against Harvey for $10,009,403 in damages, plus

$809,892 in unremitted personal property replacement taxes, plus an amount to be decided

for unlevied taxes for the Pension Fund for the fiscal years of 2008, 2009, and 2010.

40  No. 1-15-3074

Additionally, the trial court granted declaratory judgment and injunctive relief. The court set

a date to determine the exact terms of the damages and to discuss the language that would

control the injunction.

143 IX. MOTIONS TO CALCULATE DAMAGES AND DETERMINE INJUNCTION

LANGUAGE

144 Due to the complexity of the case, the trial court allowed each party to prepare a motion

regarding the total costs of the suit and the language of the injunction. The Pension Board

filed a motion seeking an additional award of costs for $12,526.46, plus five-percent pre-

judgment interest and six-percent postjudgment interest on the total damages. On August 17,

2015, Harvey filed its response to the motion.

145 On September 22, 2015, the trial court issued its final damages order. The trial court

found that the Pension Board was not entitled to pre-judgment interest in accordance with

section 2 of the Interest Act (815 ILCS 205/2 (West 2014)). However, the trial court did find

that the Pension Board “is entitled to judgment against [Harvey] in the amount of

$11,561,117.00 plus six percent (6%) postjudgment interest” in accordance with section 2-

1303 of the Code of Civil Procedure. 735 ILCS 5/2-1303 (West 2014). Additionally, the trial

court found that the Pension Board was entitled to an additional $2,694,000 “plus six percent

postjudgment interest as a lesser included amount of the $1,561,117.00 in damages due to the

Pension Board on its statutory claim and will only become relevant if the award of damages

on the statutory claim is disturbed on appeal.” See 735 ILCS 5/2-1303 (West 2014). Further,

the trial court found that the Pension Board was entitled to $809,892 plus six percent

postjudgment interest for unremitted personal property replacement taxes. See 735 ILCS 5/2-

1303 (West 2014).

41  No. 1-15-3074

146 Also on September 22, 2015, the trial court issued its final injunctive order. This

injunction required Harvey to “fully comply with the funding formula set forth in [section 4-

118(a) of the Code], as that provision may be amended from time to time.” Additionally, the

injunction requires that, starting with the May 1, 2015 fiscal year, and every fiscal year

thereafter, Harvey shall “annually approve a line-item property tax levy specifically for the

[Pension Fund] as part of its annual property tax levy ordinance that must be approved and

submitted to the Cook County Clerk’s Office on or before the last Tuesday in December of

each year.” Further, that line-item property tax for the Pension Fund “shall equal a sum

sufficient to meet the ‘annual actuarial requirements’” as provided for in the Code.

147 The trial court specifically found that the line-item property tax levy for the Pension Fund

must be listed on the annual property tax levy ordinance to ensure that the Cook County

Clerk’s Office remits the funds directly to the Pension Fund rather than to Harvey’s general

fund. If, however, the funds are remitted to Harvey’s general fund, Harvey shall remit those

funds to the Pension Fund within fourteen days of receipt.

148 Additionally, on January 11, 2016, the trial court, during its final hearing on the case

made the following statements:

“I will say for the record, for what it’s worth—I’ll say two things for the record.

One is I think this case is just tragic on both sides and sort of a microcosm of

what’s going on with the pensions throughout the state and, you know, sort of an

on steroids [sic] kind of way in terms of the inability of the municipality to meet

the requirements that—to meet its promises. And I completely believe you,

counsel, that it’s not like you’re spending money on frivolous things, you know.

And I—so I just think it’s tragic.

42  No. 1-15-3074

And I do think that, perhaps, and I don’t know, I mean, I’m glad you got this

stuff in the record and hopefully the appellate court can consider it because

may[be] this is the case in which the standard for *** [on the verge of bankruptcy

or imminent default] is met because everything that you predicted was going to

happen has, unsurprisingly, in fact, happened. And, you know, the reality of these

people ever getting paid under their pension is certainly at issue.

However, I think there was an obligation to make the funding even before then.

So let’s see what the appellate court has to say both about the stay and about the

merits, but I am not going to grant the stay because I just don’t think I have

jurisdiction.”

149 X. THE APPEAL

150 On October 22, 2015, Harvey filed a notice of appeal, seeking (1) partial reversal of the

May 24, 2013, order, (2) partial reversal of the August 23, 2013 order, (3) partial reversal of

the June 25, 2015, order and opinion, (4) reversal of the September 22, 2015, corrected

injunctive order, (5) reversal of the September 22, 2015, corrected damages order, and (6)

reversal of all other orders entered in the case and which resulted in the prior orders. In

response, on October 30, 2015, the Pension Board filed a notice of cross-appeal seeking (1)

partial reversal of the August 23, 2013, order denying the Pension Board’s motion to strike

affirmative defenses I and II, (2) partial reversal of the June 25, 2015, order and opinion

denying count II for a writ of mandamus and finding that the Pension Fund is not on the

verge of default or imminent bankruptcy, and (3) other relief the court deems necessary.

151 This appeal followed.

43  No. 1-15-3074

152 ANALYSIS

153 Both parties have presented multiple issues for this court’s determination on appeal. The

issues raised on appeal include (1) whether the trial court's determination that the Pension

Fund is not on the verge of default or imminent bankruptcy was correct, (2) whether the trial

court correctly determined that Harvey violated the Pension Fund’s statutory rights, (3)

whether the trial court correctly determined that Harvey breached the 1996 settlement

agreement, (4) whether the trial court correctly calculated the damages, and (5) whether the

trial court correctly rejected Harvey’s affirmative defenses of separation of powers and

laches.

154 For the following reasons, we affirm in part and reverse in part the trial court’s findings.

We affirm the trial court’s findings on issues (2), (3), (4), and (5) in finding that Harvey

violated the Pension Fund’s statutory rights, that Harvey did violate the 1996 settlement

agreement; that the trial court’s calculation of damages is correct, and that Harvey’s

affirmative defenses were correctly rejected. However, we reverse the trial court’s finding

that the Pension Fund is not on the verge of default due to the blatant disregard for financial

responsibility shown by Harvey towards the pension fund.

155 This court’s findings in this regard are discussed below.

156 I. THE PENSION FUND IS ON THE VERGE OF DEFAULT OR IMMINENT

BANKRUPTCY

157 The trial court specifically asked the appellate court to set the standard for what qualifies

as on the verge of default or imminent bankruptcy. There is very little case law or

interpretation as to what, exactly, the framers of the Illinois Constitution intended when they

used this phrase.

44  No. 1-15-3074

158 To understand the meaning of ‘on the verge of default or imminent bankruptcy,’ a

historical review of the Illinois Constitutional Convention is necessary. First, pension

benefits are protected by article XIII, section 5 of the Illinois Constitution. This section

provides: “Membership in any pension or retirement system of the State, any unit of local

government or school district, or any agency or instrumentality thereof, shall be an

enforceable contractual relationship, the benefits of which shall not be diminished or

impaired.” Ill. Const. 1970, art. XIII, § 5.

159 In reviewing the record of the proceedings of the Sixth Illinois Constitutional

Convention, Delegate Kinney, who sponsored section 5, stated that the terms “enforceable”

and “impaired” should be interpreted as follows:

“To establish the record as to intent, I should just like to briefly say that the

word ‘enforceable’ is meant to provide that the rights so established shall be

subject to judicial proceedings and can be enforced through court action. The

word ‘impaired’ is meant to imply and to intend that if a pension fund would be

on the verge of default or imminent bankruptcy, a group action could be taken to

show that these rights should be preserved.” (Emphasis added.) 4 Record of

Proceedings, Sixth Illinois Constitutional Convention 2926 (hereinafter, Record

of Proceedings)..

Additionally, Delegate Kinney defined the word “diminished”:

“Benefits not being diminished really refers to this situation: If a police officer

accepted employment under a provision where he was entitled to retire at two-

thirds of his salary after twenty years of service, that could not subsequently be

changed to say he was entitled to only one-third of his salary after thirty years of

45  No. 1-15-3074

service, or perhaps entitled to nothing. That is the thrust of the word ‘diminished.’

It was not intended to require 100 percent funding or 50 percent or 30 percent

funding or get into any of those problems, aside from the very slim area where a

court might judicially determine that imminent bankruptcy would really be

impairment.” 4 Record of Proceedings 2929.

160 A. ILLINOIS SUPREME COURT CASES

161 (1) People ex rel. Illinois Federation of Teachers v. Lindberg, 1975

162 A few years after the new constitution was ratified, our Illinois Supreme Court

considered a case involving multiple class action lawsuits by members of several teachers’

pension funds (Teachers). People ex rel. Illinois Federation of Teachers v. Lindberg, 60 Ill.

2d 266, 268 (1975). The Teachers sought declaratory relief claiming that an appropriation

reduction by the governor of three pension funds that the Illinois General Assembly had

appropriated monies for was unconstitutional. Lindberg, 60 Ill. 2d at 268. The Governor had

reduced the total appropriation amount from $330,215,000 to $143,190,000. Lindberg, 60 Ill.

2d at 269.

163 The Teachers argued that section 5 of the Constitution “create[d] a contractual

relationship between the State and participants in the pension systems which the Governor

may not infringe by use of his power to reduce or veto appropriations.” Lindberg, 60 Ill. 2d at

271. In examining the debates of the constitutional convention, the supreme court determined

that the framers did not intend to “require a specific level of pension appropriations during a

fiscal period.” Lindberg, 60 Ill. 2d at 272. Specifically regarding whether the Teachers had a

contractual right to the initially appropriated monies, the supreme court found: “ ‘[i]t has

long been settled that compulsory participation in a statutory pension plan confers no vested

46  No. 1-15-3074

rights, thus permitting amendment, change or repeal as the legislature sees fit.’ ” Lindberg,

60 Ill. 2d at 273 (quoting Bergin v. Board of Trustees of the Teachers’ Retirement System, 31

Ill. 2d 566, 574 (1964)). For this reason, the supreme court determined that the Teachers

possessed no contractual right by statute to challenge appropriation reductions, and have only

contractual rights to their pension under the facts of that case. Lindberg, 60 Ill. 2d at 275.

164 (2) McNamee v. State, 1996

165 Twenty years later, in McNamee v. State, 173 Ill. 2d 433 (1996), our Illinois Supreme

Court examined an amendment to the Code, which changed the funding scheme for pension

funds. McNamee, 173 Ill. 2d at 435-36. The plaintiffs claimed that this amendment violated

section 5 of the constitution because “it will allow municipalities to contribute lower initial

annual contributions to the police pension funds, thereby making the funds less secure.”

McNamee, 173 Ill. 2d at 436-37. Relying on the constitutional convention transcript, the

defendant argued that section 5 “only protects pension benefits and does not require any

particular method of funding.” McNamee, 173 Ill. 2d at 437.

166 In a detailed analysis of the constitutional convention transcript, the supreme court found

that the framers intended “only to put state and municipal governments on notice that they

may not abandon their pension obligations on the belief that such payments were gratuities.

The clearly expressed intention of the framers was to protect public pension benefits, but not

to control funding.” McNamee, 173 Ill. 2d at 444. Based on this reasoning, the supreme court

reaffirmed its commitment to invalidate amendments to the Code only if the amendment

diminished benefits. McNamee, 173 Ill. 2d at 445. Since the amendment did not diminish the

plaintiff’s right to receive pension benefits and did not place the pension fund on the verge of

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default or imminent bankruptcy, the supreme court upheld the amendment. McNamee, 173

Ill. 2d at 446-47.

167 (3) People ex rel. Sklodowski v. State, 1998

168 A few years later, five plaintiffs from five separate state pension systems sued, alleging

that Illinois was not in compliance with the funding provisions contained in the Code. People

ex rel. Sklodowski v. State, 182 Ill. 2d at 223. The defendants moved to dismiss because the

claim required a judicial order to appropriate money to the pension fund which, the

defendants argued, would violate the separation of powers clause of the Illinois Constitution.

Skodowski, 182 Ill. 2d at 224.

169 Our supreme court found that there is a presumption that “laws do not create private

contractual or vested rights, but merely declare a policy to be pursued until the legislature

ordains otherwise.” Skodowski, 182 Ill. 2d at 231. Therefore, “[a] party asserting that a law

creates a contractual right bears the burden of overcoming this presumption.” Skodowski, 182

Ill. 2d at 232. As a result, the supreme court affirmed its holding in Lindberg, 60 Ill. 2d 266,

which found that the Code does not establish a vested contractual right to statutory funding

levels.

170 Next, the Skodowski plaintiffs argued that their benefits were at risk of being diminished.

Skodowski, 182 Ill. 2d at 232. The supreme court found that the plaintiffs had “alleged only

an opinion that present funding levels are insufficient, from a prudential standpoint, to meet

the accrued future obligations of the funds. The claims contain no factual allegations that

would support a finding that the funds at issue are ‘on the verge of default or imminent

bankruptcy’ such that benefits are in immediate danger of being diminished.” (Emphasis

added.) Skodowski, 182 Ill. 2d at 233. For these reasons, the supreme court determined that

48  No. 1-15-3074

the plaintiffs neither had a vested contractual right or a constitutional right to enforce

statutory funding levels under the facts of that case. Skodowski, 182 Ill. 2d at 233.

171 (4) In re Pension Reform Litigation (Heaton), 2015

172 In the Heaton case, our Illinois Supreme Court was asked to determine the

constitutionality of an amendment (Pub. Act 98-599 (eff. June 1, 2014)) to the Code. Heaton,

2015 IL 118585, 1. This amendment reduced the retirement annuity benefits for four of the

five main Illinois state-funded pension funds. Heaton, 2015 IL 118585, 1.

173 In discussing contributions, the supreme court highlighted Delegate Green’s comments

during the Illinois Constitutional Convention, in which he stated that section 5 protects public

pensions by mandating a contractual relationship between the employee and the employer

and ensuring that the state cannot impair or diminish pensioners’ right to receive their

benefits. Heaton, 2015 IL 118585, 15. However, the supreme court notes that Delegate

Green’s hope that this constitutional provision would induce the General Assembly to fund

the pensions was unfulfilled. Heaton, 2015 IL 118585, 17. In quoting a Securities and

Exchange Commission cease and desist action, the court found that Illinois has been funding

its pensions using an approach that had no relation to actuarial calculation of liability.

Heaton, 2015 IL 118585, 17.

174 Nonetheless, in 1995, the General Assembly passed a funding plan that “called for the

legislature to contribute sufficient funds each year to ensure that its contributions, along with

the contributions by or on behalf of members and other income, would meet the cost of

maintaining and administering the respective retirement systems on a 90% funded basis in

accordance with actuarial recommendations by the end of the 2045 fiscal year.” Heaton,

2015 IL 118585, 19. However, “[b]y the end of June 2013, the five State-funded retirement

49  No. 1-15-3074

systems contained a total of only 41.4% of the funding necessary to meet their accrued

liabilities based on the market value of fund assets.” Heaton, 2015 IL 118585, 21 (citing

Commission on Government Forecasting & Accountability, Illinois State Retirement

Systems: Financial Condition as of June 30, 2013, at 27 (Mar. 2014)).

175 Due to the problems facing the state-sponsored retirement systems, the General Assembly

passed an amendment to the Code, which was the subject of the appeal. Heaton, 2015 IL

118585, 25. Although there are many pieces to this amendment, the biggest section at issue

was a “comprehensive set of provisions designed to reduce annuity benefits for members ***

entitled to Tier 1 benefits, i.e., members who belonged to those systems prior to January 1,

2011.” Heaton, 2015 IL 118585, 27. As a result, the plaintiffs filed suit alleging that,

among other things, the amendment violated article XIII, section 5 of the Illinois

Constitution. Heaton, 2015 IL 118585, 35.

176 Our supreme court found that, under section 5, members of a pension have a “legally

enforceable right to receive the benefits they have been promised.” Heaton, 2015 IL 118585,

46. “[O]nce an individual begins work and becomes a member of a public retirement

system, any subsequent changes to the Pension Code that would diminish the benefits

conferred by membership in the retirement system cannot be applied to that individual.”

Heaton, 2015 IL 118585, 46. As such, the supreme court found that this amendment would

result in the diminishment of the pensioners’ pension benefits; therefore, it was in violation

of the Illinois Constitution. Heaton, 2015 IL 118585, 47. Hannigan v. Hoffmeister, 240 Ill.

App. 3d 1065 (1992); Kuhlmann v. Board of Trustees of Police Pension Fund of Maywood,

106 Ill. App. 3d 603 (1982); Thompson v. Retirement Board of Policemen's Annuity &

50  No. 1-15-3074

Benefit Fund of City of Chicago, 379 Ill. App. 3d 498 (2008); In re Marriage of Winter, 387

Ill. App. 3d 21 (2008).

177 B. “VERGE OF DEFAULT OR IMMINENT BANKRUPTCY”

178 As is apparent, neither the Illinois constitutional framers nor the Illinois Supreme Court

have completely defined what qualifies as “on the verge of default or imminent bankruptcy.”

The framers established the standard in reference to section 5, and the supreme court has

referenced the standard in multiple cases; however, the standard has never been applied to a

‘real-world’ case to find that a fund is on the verge of default or imminent bankruptcy. Nor,

as far as this court is aware, has any Illinois court ever found a pension fund to have fallen so

far as to have satisfied this “draconian” standard, as the trial court referred to it.

179 The best indication of a drafter’s intent is the language that he chose to use, as given its

plain and ordinary meaning. See People v. Davidson, 233 Ill. 2d 30, 40 (2009). When a

drafter uses terms that are otherwise undefined, “it is entirely appropriate to employ a

dictionary to ascertain the plain and ordinary meaning of those terms.” Davidson, 233 Ill. 2d

at 40. Therefore, in order for this court to determine what “on the verge of default or

imminent bankruptcy” means, we first look to the dictionary. “Verge” is defined as

“sink[ing] to a point.” Verge, Webster’s Third New International Dictionary, 2543 (1971).

“Default” means “to fail to fulfill an obligation,” and “imminent” means “ready to take

place.” Default, Webster’s Third New International Dictionary, 590 (1971).

180 The Pension Fund is not ready to file bankruptcy, nor are its beneficiaries ready to file

bankruptcy because they are still being paid. So in our analysis, we must determine whether

the subject pension fund is on the verge of default. In Skodowski, our supreme court

instructed that, to support a finding that the funds are on the verge of default (or imminent

51  No. 1-15-3074

bankruptcy), the benefits must be “in immediate danger of being diminished.” Skodowski,

182 Ill. 2d at 233. This court finds that the fund-supported benefits are already impaired and

shortly they will be diminished because the benefits are being supported primarily by the

contributions of the firefighters. In other words, when a firefighter makes a contribution to

the Pension Fund, that current firefighter expects that his money and the money contributed

by Harvey will be available to him at his retirement. Without Harvey's contribution, there

will be no pension for him in the future or his pension will be substantially diminished within

a short time. We look at certain factors in evidence in this case in making that determination.

181 First, we look at what the pension fund’s financial history reveals. We start that history in

2005 because the evidence in this case starts with figures from 2005. In 2005 and 2006,

Harvey did not levy for the Pension Fund but in 2005 paid $9,885.00 into the Fund and

$38,304.00 in 2006. However, what is revealing is that the Pension Fund paid out

$1,435,138.00 in 2005 and $1,502,894.00 in 2006.

182 In 2007, Harvey levied for $480,632.00 and paid into the Pension Fund $615,407.00,

while paying out $1,633,677.00. In 2008 and 2009, Harvey levied for $1,061,219.00 in each

year and paid $771,471.00 into the Pension Fund in 2008 and $18,181.00 in 2009, while

paying out $1,740,481.00 in 2008 and $1,761,830.00 in 2009. In 2010, Harvey levied

$350,000.00 and paid $5,143.00 into the Pension Fund, while paying out $1,812,963.00. In

2011, 2012, and 2013, Harvey failed to levy for the Pension Fund and paid in nothing each

year but paid out $1,827,420.00 in 2012 and $1,879,693.00 in 2013. 9

183 If this trend continues, the Pension Fund will be paying out increased benefits each year

and receiving nothing in contributions from Harvey. As noted, the Pension Fund is surviving

9 The briefs do not disclose what was paid out in 2011. 52  No. 1-15-3074

on the contributions paid into the plan by the firefighters and the interest and other money

received on the funds invested. Once the funds in the pension are diminished to a point, the

fund will not be able to pay benefits and that point can be in less than five years, and there

will be a point where the Fund will be so diminished that Harvey could never contribute

enough money to make the Fund a viable pension plan again.

184 Based on the expert testimony, we find that the Pension Fund is in a precarious position.

Jon Willhitte, the Pension Fund’s financial consultant since the 1980s, opined in his

testimony that the Pension Fund is being forced to sell assets to pay the beneficiary’s current

pension benefits. Willhitte testified that, if the tax levy is not reinstated, the Pension Fund is

going to experience “dire, dire problems.” Willhitte opined that the Pension Fund is being

forced to sell assets to pay the beneficiaries, and that the time when there is no money left in

the plan is shorter than the life expectancy of the retirees. Calene Zabinski, a CPA who works

as a financial director and treasurer for various municipalities across the state, testified that

“the continued underfunding, coupled with that increase in the rate of pay higher than

actuarial assumption, eventually will get to the point where [Harvey] is going to have to pay

for the pensioners.” James Ritchie, a CPA who worked directly with the Pension Fund, was

concerned for the Fund’s financial viability. He testified:

“With statutorily required increases in benefits being paid out as well as the

expenses and then the lack of municipal funding that is coming in, it looks that the

assets are slowly being depleted to pay out benefits as required by statute.

Without municipal funding I would say, in an estimation, the [Pension Fund] will

begin to have difficulty paying out benefits by the end of this decade.”

53  No. 1-15-3074

Ritchie testified that Harvey collected approximately $400,000 on behalf of the Pension Fund

but paid none of those funds between 2007 and 2013. As of March 4, 2015, the Pension Fund

had only $10,936,532.72 in assets. According to the most recent actuarial valuation, the

Pension Fund was only 27.18% funded as of May 1, 2014, and the Pension Fund’s unfunded

accrued liability has increased to nearly $30 million.

185 Second, we look at Harvey’s financial condition. The evidence has revealed that Harvey

has gone without an audit or the filing of an annual financial report for a number of years.

Specifically, Harvey has not undergone an audit for the fiscal years 2010, 2011, 2012, or

2013. Maggie Britton, one of the two comptrollers for Harvey, testified that, since Harvey

has not obtained audits, they cannot complete their annual financial reports. Britton further

testified that Harvey received $805,674.00 in personal property replacement taxes for 2007,

$888,081.00 for 2008, $778,539.00 for 2009, $649,436.17 for 2010, and $797,445.69 for

2011, but Harvey failed to contribute any of the personal property replacement tax revenue to

the pension fund during these years. In addition, Harvey appropriated monies for the Pension

Fund that were not paid: $300,000.00 annually in 2005 and 2006, $1,180.63 in 2007,

$197,000.00 in 2008, $1,161,219.00 in 2009, $1,161,219.00 in 20101, $0 in 2011,

$480,000.00 in 2012, $450,000.00 in 2013, and $1,781,542.00 in 2014.

186 The evidence further disclosed that Joseph Letke, the official comptroller for Harvey

since 2003, invoked his Fifth Amendment privilege against self-incrimination 178 times and

refused to answer questions concerning Harvey’s financial conditions regarding (1)

fraudulent and misleading bond offerings, (2) a developer who collected bond proceedings

from Harvey then fled to India, (3) the accusation that Letke collected fees from both Harvey

and the developer that fled to India, (4) why each Harvey alderman had an $80,000

54  No. 1-15-3074

unmonitored expense account, (5) why Harvey paid an alderman’s son $325 an hour for

snow removal, and (6) why Harvey paid the mayor’s son $88,000 to develop a social media

website. In addition, the U.S. Securities and Exchange Commission filed a complaint against

Harvey and Letke, claiming misuse of proceeds raised from investors in municipal bonds

issued by Harvey from 2008 to the present and that the bond money was used for a Holiday

Inn hotel in Harvey and not for a governmental purpose. The complaint further alleged that

“Harvey officials improperly diverted at least $1.7 million of bond proceeds from these

offerings into the general operation accounts of Harvey to pay [Harvey’s] operation costs,

including payroll.”

187 Third, we look at whether Harvey intends to correct the pension deficit in the future.

Harvey has provided no plan to correct its handling of this penson crisis. Harvey has a

complete lack of accountability now and in the past, and asserts that the Pension Fund’s

hemorrhaging of money is not in any way its fault.

188 Harvey relies heavily on the case of Riverdale to establish that the Pension Fund is not on

the verge of default or imminent bankruptcy. 2014 IL App (1st) 130416. The case at bar is

readily distinguishable from Riverdale, where the Riverdale Police Pension Fund (Police

Fund) filed a suit seeking a declaratory judgment that the Village of Riverdale (Riverdale)

had “breached its statutory funding obligations under [the Code] by failing to levy the

appropriate taxes for pension contributions from 2000 to 2010.” Riverdale, 2014 IL App (1st)

130416, 7. The Police Fund alleged that Riverdale had failed to follow the Illinois

Department of Insurance recommended tax amounts “necessary to meet the municipal

contribution requirements provided by the [Code].” Riverdale, 2014 IL App (1st) 130416,

8.

55  No. 1-15-3074

189 Riverdale admitted that it owed the Police Fund money and that, between 2003 and 2010,

it admitted that Riverdale did not follow the tax levy issued by the Illinois Department of

Insurance. Riverdale, 2014 IL App (1st) 130416, 9. Additionally, Riverdale admitted the

following: “(1) for 2003, the recommendation was $432,261 and the Village levied

$420,000; (2) for 2004, the recommendation was $473,860 and the Village levied $262,940;

(3) for 2005, the recommendation was $486,673 and the Village levied $262,940; (4) for

2006, the recommendation was $603,772 and the Village levied $280,000; (5) for 2007, the

recommendation was $651,990 and the Village levied $440,000; (6) in 2008, the

recommendation was $754,607 and the Village levied $440,000; (7) in 2009, the

recommendation was $849,300 and the Village levied $440,000; and (8) in 2010, the

recommendation was $1,018,396 and the Village levied $866,168.” Riverdale, 2014 IL App

(1st) 130416, 9.

190 Both the Police Fund and Riverdale filed motions for summary judgment. Riverdale,

2014 IL App (1st) 130416, 10-11. The trial court granted Riverdale’s motion for summary

judgment and the Police Fund appealed. Riverdale, 2014 IL App (1st) 130416, 13. On

appeal, this court, in a well-written opinion by Justice Lampkin, found that the Police Fund

“did not provide evidence, nor even allege, the Pension Fund was on the ‘verge of default or

imminent bankruptcy.’ ” Riverdale, 2014 IL App (1st) 130416, 40 (quoting McNamee, 173

Ill. 2d at 446-47).

191 An examination of the contributions to the Police Fund shed significant light on why

Riverdale is distinguishable from the case at bar. In Riverdale, it is undisputed that Riverdale

contributed the following to the Police Fund:

56 No. 1-15-3074

Year Annual Actuarial Contribution Percent of Annual Requirement Actuarial Requirement Contributed 2003 $432,261 $420,000 97.2% 2004 $473,860 $262,940 55.5% 2005 $486,673 $262,940 54.0% 2006 $603,772 $280,000 46.4% 2007 $651,990 $440,000 67.5% 2008 $754,607 $440,000 58.3% 2009 $849,300 $440,000 51.8% 2010 $1,018,396 $866,168 85.1%

Riverdale, 2014 IL App (1st) 130416, 9. By contrast, when we examine the amounts

contributed by Harvey to the Pension Fund, the differences are readily apparent:

Fiscal Year Annual Actuarial Contribution Percent of Annual Requirement Actuarial Requirement Contributed 2005 $876,692 $9,885 0.01% 2006 $980,024 $38,304 0.04% 2007 $1,060,727 $480,632 45.31% 2008 $1,077,837 $771,471 71.58% 2009 $1,294,791 $18,181 1.40% 2010 $1,574,792 $5,143 0.33% 2011 $1,611,369 $0 0.00% 2012 N/A $0 N/A 2013 $2,036,497 $0 0.00% 2014 $2,070,500 $600,000 28.98%

Although the Police Fund in Riverdale was underfunded, it was nowhere near the level of

underfunding exhibited in this case. Even if we remove 2012 because Harvey disputes the

annual actuary valuation for that year, Harvey still contributed less than ten percent of the

annual actuarial requirement six out of nine years.

57  No. 1-15-3074

192 Also, the Pension Board here presented the deposition testimony of experts in the field of

accounting and actuary science, who opined that the Pension Fund is well on its way to

insolvency. For example, Maggie Britton, one of Harvey’s comptrollers and a CPA, testified

that the Pension Fund would be facing a shortfall. Jon Willhite, the Pension Fund’s financial

consultant, testified that Harvey owes the Pension Fund more than $12 million; that, without

a tax levy contribution, the Pension Fund will experience “dire, dire problems”; and that the

Pension Fund is his worst funded pension fund client. James Ritchie, a CPA, testified that the

money going out significantly exceeds the money flowing back in. Therefore, it was his

belief that the Pension Fund has approximately five years before it could be “completely

insolvent.” Even Sandor Goldstein, the expert hired by Harvey, testified that Harvey owed

the Pension Fund over $10 million in accumulated contribution deficiency and provided no

evidence or testimony that the Pension Fund has any possibility of recovery from its

precarious position.

193 Harvey has presented no evidence that disproves that it is in financial disarray. Harvey

does point out that Joseph Letke, its past comptroller, is no longer employed by them.

However, Letke was employed for multiple years, allegedly issuing misleading and

fraudulent bonds in the name of Harvey and allowing developers to flee the country with

millions of Harvey’s dollars. Even after the public disclosures concerning Letke were

published, he still remained as Harvey’s comptroller. Aside from these two events directly

linked to Letke, his replacement has done nothing to put this court’s mind at ease because

there is still the alleged issues of Harvey aldermen’s $80,000 unregulated expense accounts,

paying the relatives of prominent city officials thousands of dollars for doing relatively

simple tasks such as creating a social media website and shoveling snow. Harvey has

58  No. 1-15-3074

presented no testimony and no evidence to demonstrate that it has the ability to manage its

finances and properly fund the Pension Fund.

194 Combining the ever-decreasing assets in the Pension Fund, the consistent lack of

contributions, and the lack of evidence to support a changing of financial habits by Harvey,

this court is convinced that the Pension Fund is on the verge of default. To be clear, it is not

merely the financial status of the Pension Fund that leads this court to this finding, and we

understand that we are the first court to find in this manner. However, the compounding

nature of the situation—including the precarious financial position of the Pension Fund based

on multiple experts in relevant fields, the constant declarations by Harvey that it has not

contributed to the Pension Fund’s poor financial condition, and the continued lack of

financial responsibility shown by Harvey over a significant period of time—has convinced

this court that this case is a perfect example of a fund on the verge of default.

195 Although it is true that pension funds do not have a right to a specific level of funding,

the framers of the Illinois Constitution intended to put the municipalities on notice that, if

they completely abandoned their pension obligations, then the pensioners would be able to

sustain a constitutional claim. McNamee, 173 Ill. 2d at 444. Therefore, if pensioners can

prove that their rights to receive pension benefits are “diminished or impaired” in a way that

places the pension fund on the verge of default, then an action alleging a violation of

constitutional rights will be sustained. Ill. Const. 1970, art. XIII, § 5; McNamee, 173 Ill. 2d at

446. In order to prove that a pension fund is on the verge of default, our supreme court has

found that the allegations must demonstrate more than “only an opinion that present funding

levels are insufficient *** to meet the accrued future obligations of the funds.” Skodowski,

182 Ill. 2d at 233. Rather, a plaintiff must prove that the benefits are in immediate danger of

59  No. 1-15-3074

being diminished or impaired. Skodowski, 182 Ill. 2d at 233; McNamee, 173 Ill. 2d at 444.

Based on the testimony from multiple witnesses, Harvey’s blatant disregard for the Pension

Fund over a long period of time, and the dwindling status of the Pension Fund assets, this

court finds that the Pension Fund is on the verge of default, which establishes a valid and

enforceable constitutional right to funding. Harvey has set up a collision course over a period

of many years where the beneficiaries of their firefighters’ Pension Fund are being paid

substantially out of the money that the firefighters have themselves contributed to the

Pension Fund and the money the Pension Fund earns from investments, causing an ever

increasing dissipation of the Pension Fund’s assets, which will result in the fund having no

assets to pay its beneficiaries or fulfill its obligations under the fund. In essence, Harvey is

robbing Peter to pay Paul, but what happens when Peter retires?

196 II. STATUTORY RIGHT TO FUNDING

197 The trial court found that the Code “does create a valid and enforceable statutory right” to

funding. We affirm the trial court’s finding that, although a municipality does retain

discretion in the application of the Code, it must do so within the statutory formula

determined by the Illinois legislature.

198 Illinois courts have made it clear that the Code does not create a contractual right to a

certain level of funding. A party asserting that a statute creates a contractual right has a high

burden of overcoming the presumption that laws do not create a contractual or vested right.

Skodowski, 182 Ill. 2d at 231. The Illinois Supreme Court and this court have determined that

neither the history nor the language of the Pension Code support a claim that the Code

establishes vested contractual rights to statutory funding levels. Skodowski, 182 Ill. 2d at 232;

Lindberg, 60 Ill. 2d at 274-75; Riverdale, 2014 IL App (1st) 130416, 38.

60  No. 1-15-3074

199 Section 4-118 of the Pension Code states:

“the municipality shall annually levy a tax upon all the taxable property of the

municipality at the rate on the dollar which will produce an amount which, when

added to the deductions from the salaries or wages of firefighters and revenues

available from other sources, will equal a sum sufficient to meet the annual actuarial

requirements of the pension fund, as determined by an enrolled actuary ***. ***

[T]he annual actuarial requirements of the pension fund are equal to (1) the normal

cost of the pension fund, or 17.5% of the salaries and wages to be paid to [the]

firefighters for the year involved, whichever is greater, plus (2) an annual amount

sufficient to bring the total assets of the pension fund up to 90% of the total actuarial

liabilities of the pension fund by the end of municipal fiscal year 2040[.]” (Emphasis

added.) 40 ILCS 5/4-118(a) (West 2014).

The word “shall” within the statute indicates that a municipality must levy a tax at a rate that

“will equal a sum sufficient to meet the annual actuarial requirements of the pension fund.”

40 ILCS 5/4-118(a) (West 2014). However, municipalities are allowed discretion in the

amount it must levy to contribute to the pension fund. Board of Trustees v. City of Rockford,

96 Ill. App. 3d 102, 108 (1981) (“While the finance and reserve sections of the [Code] are

clearly designed to ensure the financial integrity of these pension funds, we do not believe it

was [the legislature’s] purpose to remove all discretion from the city council in determining

the dollar amount to be levied for these funds in any particular year ***.”); Riverdale, 2014

IL App (1st) 130416, 36 (citing Rockford, 96 Ill. App. 3d at 108); Board of Trustees of the

Police Pension Fund v. City of Evanston, 281 Ill. App. 3d 1047, 1051-52 (1996) (citing

Rockford, 96 Ill. App. 3d at 108).

61  No. 1-15-3074

200 In Skodowski and the United States Supreme Court cases that it cites, the courts have

recognized that, where a statute does not create vested rights, it does create a legal obligation

that must be followed until it has been revised or repealed. National R.R. Passenger Corp. v.

Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 466 (1985). The trial court in the case at

bar made the following findings:

“A municipality, however, has no equivalent power to ignore or amend a state

statute. Indeed, the Illinois Supreme Court has long recognized that a city is

required ‘to levy a tax at a rate which will produce a sum sufficient to satisfy the

annual requirements of the … pension fund.’ People ex rel. Sweet v. Cent. Ill.

Pub. Serv. Co., 48 Ill. 2d 145, 156-57 (1971). In Evanston and Rockford, the

courts recognized that while the funding provisions of the Pension Code were not

intended to withdraw all discretion from local governments in determining the

necessary dollar amount to be levied for these funds in any particular fiscal year, a

municipality must comply with the requirements of the Pension Code in effect

when setting its levy. Evanston, 281 Ill. App. 3d at 1054; Rockford, 96 Ill. App.

3d at 106.

In short, while the statutory formula set forth in section 4-118(a) leaves

Harvey some discretion and the Illinois legislature retains the power to alter such

a formula through legislative action, Harvey must comply with the Pension Code

in effect for any given year. There can be no dispute that Harvey has completely

failed to do this and that the discretion afforded the City has been completely

abused.

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During fiscal years 2011 through 2013, Harvey failed to levy or contribute

any money whatsoever to the Fund in accordance with its obligations under

section 4-118 of the Code. [(Emphasis in original.)] For 2005 and 2006 the City

made some contributions but failed to specifically levy on behalf of the Pension

Fund. This was despite the fact that section 4-118(b) provides that the tax for the

Firefighters’ Pension Fund ‘shall be levied and collected in the same manner as

the general taxes of the municipality, *** and shall be in addition to the amount

authorized to be levied for general purposes ***.’ 40 ILCS 5/4-118(b).

In 2007, 2010 and 2014, Harvey imposed a specific levy but it was less than

half of the amount that the AAR calculation would have suggested. This cannot

possibly be a good faith attempt to meet the statutory requirements. In 2008 and

2009, although Harvey apparently levied a more significant amount on behalf of

the Fund, the testimony is devoid of any mention of the statutory formula

proscribed by the Code. [(Citation omitted.)] Harvey had provided absolutely no

justification or formula to support the amount of its levy or its contributions in

any fiscal year at issue in this case.

Moreover when Harvey did impose a specific levy, it failed to forward the

amounts collected to the treasurer of the Board within 30 business days of receipt

as required by 40 ILCS 5/4-118(b). While Plaintiffs acknowledge there may be

some difference between the amount collected and the amount levied, since taxes

are not collected at 100% of the amount levied, the figures above make clear that

there was no effort by Harvey to contribute to the Fund in accordance with the

specific levied amounts. Moreover, Harvey admitted to using such funds collected

63  No. 1-15-3074

on behalf of the Fund for other corporate purposes [(citation omitted)], which is

specifically prohibited under 40 ILCS 5/22-403. None of these facts are in

dispute.”

We agree.

201 While Harvey has discretion under the Code in the amount that it distributes to the

Pension Fund, Harvey’s conduct towards the Pension Fund has exceeded its discretionary

authority under the Code. Based on a review of the amounts levied and contributed to the

Pension Fund, this court fails to find any statutory formula, within the Code or otherwise,

that Harvey has followed in its contributions. Further, Harvey has, on multiple occasions

failed to contribute and failed to levy any money for the Pension Fund. No contributions have

been made in 2010, 2011, 2012, or 2013. Additionally, only once since 2003 has Harvey

contributed more than 50% of the annual actuarial requirement to the Pension Fund.

202 As explained by the trial court, “the figures *** make clear that there was no effort by

Harvey to contribute to the [Pension] Fund in accordance with the specific levied amounts,”

or any reasonable amounts whatsoever. (Emphasis added.) The fund is using the firefighters’

contributions and interest payments to pay its beneficiaries.

203 Therefore, we affirm the trial court’s finding that Harvey has exceeded its discretion

under the Code.

204 III. WHETHER HARVEY BREACHED THE 1996 SETTLEMENT AGREEMENT

205 The trial court found that Harvey was in breach of the 1996 settlement agreement in two

respects: (1) failure to remit property taxes levied specifically for the Pension Fund and (2)

failure to remit 12.2% of collected personal property replacement taxes to the Pension

64  No. 1-15-3074

Fund. 10 Additionally, the trial court found that the Pension Board had the authority to enforce

the agreement, that the agreement was not void, and that the Pension Board did not waive its

right to enforce the agreement. For the reasons that follow, we affirm the trial court’s

findings.

206 A. BREACH OF THE SETTLEMENT AGREEMENT

207 Harvey argues that People ex rel. Toman v. Chicago & Northwestern Ry. Co. supports its

argument that it is not in breach of the settlement agreement because it experienced a

shortfall and had to allocate its resources accordingly. 377 Ill. 547 (1941). In Toman, the city

approved a tax levy for corporate purposes of $106,970. Toman, 377 Ill. at 548. To collect

the full amount levied for, the city would have needed to tax at a rate significantly higher

than what was actually taxed. Toman, 377 Ill. at 548-49. For this reason, the city collected

only 28% of the amount levied. Toman, 377 Ill. at 549. The plaintiff argued that the levy was

in violation of the law because it did not specify the purpose for which the taxes were

appropriated. Toman, 377 Ill. at 549.

208 The supreme court explained: “The determination, annually, of the amounts necessary to

be raised by taxation for corporate purposes is committed to the municipal authorities. Their

judgment as to such amounts is final.” Toman, 377 Ill. at 550. Additionally, if a municipality

receives less than the amount levied, the Court found that the municipality officers should

faithfully discharge their duties to ensure the spending of monies is done in a way best suited

for that municipality. Toman, 377 Ill. at 551-52.

209 Harvey compared the situation in Toman to its situation. Harvey argues that between

2007 and 2010, “Harvey levied a total general corporate property tax of $31,496,517. That

10 Harvey’s arguments regarding personal property replacement taxes will be covered in the section discussing damages. Supra 233-34. 65  No. 1-15-3074

amount included a total of $2,953,070 levied as line items for the Pension Fund. During this

same period, Harvey collected only $26,502,965 in property taxes: a $4,993,822 deficit[.]

Nevertheless, Harvey still paid the Pension Fund $1,410,202.” Harvey argues that, although

it did levy money specified for the Pension Fund, the shortfall was allocated to the funds that

were to be collected for the Pension Fund. Because this money was uncollected, Harvey

argues that it did not breach the settlement agreement. Applying Toman, Harvey argues that

its city officials exercised their best judgment in allocation of the monies and that these

officials should be given a presumption “that they have done so faithfully.” Toman, 377 Ill. at

552.

210 However, Toman is inapplicable here. Toman does allow municipal officials to allocate

levied funds that are contributed to a general fund. Toman, 377 Ill. at 550. However, Toman

does not discuss contractual obligations pursuant to a settlement agreement, which is the

issue in this case. As the trial court found: “Toman does not speak to a specific levy or a

specific contractual and statutory obligation to impose a specific levy. Certainly nothing in

Toman suggests that Harvey was entitled to charge the entire collection deficiency to this

specific levy. While there may be no general prohibition on a general levy, the specific levy

utilized here, even if it was done as a part of a general levy, meant that Harvey was required

to remit all funds received which were attributable to that specific levy.” (Emphasis added.)

211 We agree with the reasoning of the trial court. Due to the shortfall in collections on the

levies, Harvey is entitled to charge a proportionate amount of the shortfall in 2008, 2009, and

2010 to the Pension Fund’s levy; however, under the settlement agreement, Harvey cannot

charge the entirety of the shortfall to the Pension Fund. As such, we affirm the lesser

included damages of $2,694,600 for unremitted property taxes.

66  No. 1-15-3074

212 B. WHETHER THE PENSION BOARD HAS THE AUTHORITY TO ENFORCE THE

AGREEMENT

213 Harvey argues that the Pension Board lacks the authority to seek enforcement of the

settlement agreement “because the legislature did not grant it the power to bring this

lawsuit.” To support its argument, Harvey cites sections 16-158.1 and 7-172.1 of the Code,

which allow members of the Teachers Retirement System of Illinois [40 ILCS 5/16-158.1

(West 2012)] and Illinois Municipal Retirement Fund [40 ILCS 5/7-172.1(a) (West 2012)]

the power to compel the Illinois State Comptroller to redirect delinquent payments from

funds intended for the municipality to the pension funds instead, unless there are no funds to

be remitted to the municipality; then it allows the fund to bring an action against the

municipality to recover the delinquent payment. 40 ILCS 5/16-158.1 (West 2014). However,

the Code does not provide a similar provision for the Pension Fund.

214 In response, the Pension Board argues that its authority to bring the claim lies in sections

1-101.2 and 1-115 of the Code. Section 1-115 allows a fiduciary to bring a claim for civil

enforcement to “[e]njoin any act or practice which violates any provision of this Code; or

*** [o]btain other appropriate equitable relief to redress any such violation or to enforce any

such provision.” (Emphases added.) 40 ILCS 5/1-115(b)-(c) (West 2014). Section 1-101.2

defines a fiduciary as one that “exercises any discretionary authority or discretionary control

respecting management of the pension fund *** or exercises any authority or control

respecting management or disposition of its assets; *** renders investment advice ***; or

*** has any discretionary authority or discretionary responsibility in the administration of the

pension fund.” 40 ILCS 5/1-101.2(1)-(3) (West 2014). Additionally, the Pension Board

argues that sections 16-158.1 and 7-172.1 of the Code are not comparable because they allow

67  No. 1-15-3074

the pension funds to collect delinquent payments from sources other than the municipality. In

contrast, the Pension Board is relying on section 1-115 and case law to bring a lawsuit

alleging it is on the verge of default or imminent bankruptcy.

215 Since the Pension Board is an administrative body that is in a fiduciary relationship with

the Pension Fund, we affirm the trial court and find that the Pension Board does have the

authority to maintain the suit against Harvey. It is readily apparent that the Pension Board is

a fiduciary of the Pension Fund; multiple deponents testified that the Pension Board exercises

discretional authority or control over its assets and ensures that it is adequately managed.

Therefore, pursuant to section 1-115(a), the Pension Board has the authority to bring an

action to “[e]njoin any act or practice which violates any provision of this Code.” (Emphases

added.) 40 ILCS 5/1-115(b) (West 2014).

216 Courts should attempt to give each word of a statute its reasonable meaning without

rendering any terms superfluous. People ex rel. the Department of Labor v. Sackville

Construction, Inc., 402 Ill. App. 3d 195, 198 (2010). Additionally, courts should “not read

into [a] statute exceptions, limitations or conditions that the legislature did not intend.”

Sackville Construction, 402 Ill. App. 3d at 198; People v. Roake, 334 Ill. App. 3d 504, 510

(2002). Applying these principles, section 1-115 is clear and allows the Pension Fund to

bring an action against a party who is conducting any act that violates any provision of the

Code. 40 ILCS 5/115(b) (West 2014). Therefore, we affirm the trial court’s finding.

217 C. WHETHER THE SETTLEMENT AGREEMENT WAS VOID

218 Harvey argues that the Pension Board lacked the authority to enter into the settlement

agreement in 1996; therefore, the settlement agreement is void ab initio and cannot be

enforced. To support its argument, Harvey cites the case of Elk Grove Township Rural Fire

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Protection District v. Village of Mount Prospect, 228 Ill. App. 3d 228 (1992). In this case,

Elk Grove entered into a contract with the Village of Mount Prospect to provide firefighting

services for the district for 10 years. Mount Prospect, 228 Ill App. 3d at 230. In exchange, the

District agreed to levy the maximum allowed amount, then turn over the revenues from that

tax to Mount Prospect. Mount Prospect, 228 Ill. App. 3d at 230. The trial court found that

this agreement was void ab initio because the municipality lacked the authority to enter into a

contract to execute a blanket tax for a long period. Mount Prospect, 228 Ill. App. 3d at 232.

219 Additionally, Harvey cites the case of Ad-Ex, Inc. v. City of Chicago, in which Chicago

had an ordinance that required signs to be set back 500 feet from expressways. 207 Ill. App.

3d 163, 165 (1990). Chicago entered into a settlement agreement with the plaintiff that

waived the 500-foot set back ordinance. Ad-Ex, 207 Ill. App. 3d at 166. The court, however,

declared the settlement agreement void ab initio because it essentially waived the notice and

hearing requirements, which Chicago could not legally do. Ad-Ex, 207 Ill. App. 3d at 172,

75.

220 Harvey’s reliance on Mount Prospect and Ad-Ex is misplaced. In both these cases, the

agreements the cities entered into were in violation of the law. The cities could not enter into

a legally binding contract because to do so would inherently make the contracts void ab

initio. However, this is not the case before this court. The settlement agreement between

Harvey and the Pension Board does not violate any law, nor is it in violation of the Pension

Code. As the trial court found: “the Settlement Agreement mirrored Harvey’s statutory

obligations. As an administrative body and fiduciary of the [Pension] Fund, the [Pension]

Board has every right to enforce, enjoin or enter into an agreement on behalf of the [Pension]

69  No. 1-15-3074

Fund to compel Harvey’s compliance with the law.” For these reasons, we affirm the finding

of the trial court.

221 D. WHETHER THE PENSION BOARD WAIVED ITS RIGHT TO ENFORCE THE

SETTLEMENT AGREEMENT

222 Harvey argues that the Pension Board waived its right to enforce the settlement

agreement. Waiver “ ‘is either an express or implied voluntary and intentional relinquishment

of a known and existing right.’ ” Midway Park Saver v. Sarco Putty Co., 2012 IL App (1st)

110849, 20 (quoting Whalen v. K mart Corp., 166 Ill. App. 3d 339, 343 (1988)).

Additionally, a party to a contract can waive enforcement of some provisions “by conduct

indicating that strict compliance with the contractual provisions will not be required.”

Midway Park Saver, 2012 IL App (1st) 1100849, 20; Downs v. Rosenthal Collins Group,

L.L.C., 2011 IL App (1st) 090970, 27.

223 Harvey argues that, based on the standards above, the Pension Board delayed suit, which

intentionally triggered a waiver of its right to bring suit under the settlement agreement.

Harvey argues:

“The Pension Board became aware that Harvey allegedly violated the levy

provision of the Settlement Agreement at the latest on April 30, 2008. The

Pension Board became aware that Harvey allegedly violated the [personal

property replacement tax] provision of the Settlement Agreement at the latest on

April 30, 2005. The Pension Board did not assert that Harvey breached the

Settlement Agreement until December 14, 2012: more than four years after it first

learned of Harvey’s alleged breach of the levy provision and more than seven

70  No. 1-15-3074

years after it first learned of Harvey’s alleged breach of the [personal property

replacement tax] provision.”

224 In response, the Pension Board asserts that Harvey has the burden to prove that the

Pension Board impliedly waived its right in a “clear, unequivocal, and decisive” manner.

Ryder v. Bank of Hickory Hills, 146 Ill. 2d 98, 105 (1991); Lavelle v. Dominick’s Finer

Foods, Inc., 227 Ill. App. 3d 764, 771 (1992) (“Waiver is the voluntary, intentional

relinquishment of a known right. *** There must be either an intention to waive which, while

unexpressed, can be clearly inferred from the circumstances, or where there is no such

intention, the conduct of one party must have misled another into acting on a reasonable

belief that waiver has occurred.”). Additionally, an appellate court should not disturb the

finding of the trial court unless that court’s finding is contrary to the manifest weight of the

evidence. Sexton v. Smith, 112 Ill. 2d 187, 194 (1986).

225 The trial court found:

“While certainly contract rights can be waived, [citations omitted.], such waiver

occurs where one party to a contract is clearly aware that the contract is being

violated, but accepts benefits of the contract and offers not a hint of protest. In

this case, Harvey’s finances were in complete disarray for much of the period at

issue. In the depositions in this case, [Harvey] officials acknowledged that they

were unable to determine how much money Harvey actually collected in property

taxes on behalf of the [Pension] Fund. Until the parties engaged in discovery in

this case, the Board did not know whether [Harvey’s] partial contributions to the

[Pension] Fund during certain years included the disbursement of [personal

property replacement taxes] received. Given the chaotic state of Harvey’s

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finances, the [Pension] Board’s failure to take action prior to filing this lawsuit in

2010 comes nowhere close to an intentional relinquishment of a known right.”

226 We find that the trial court’s finding regarding waiver was not against the manifest

weight of the evidence; therefore, we will not disturb its finding that Harvey’s claim of

waiver is without merit.

227 IV. WHETHER THE TRIAL COURT CORRECTLY CALCULATED THE DAMAGE

AWARD

228 Harvey argues that the trial court’s award of damages is too high because it does not

accurately reflect section 4-118 of the Code. In relevant part, this section reads:

“The city council or the board of trustees of the municipality shall annually levy a

tax upon all the taxable property of the municipality at the rate on the dollar

which will produce an amount which *** will equal a sum sufficient to meet the

annual actuarial requirements of the pension fund ***. *** For the purposes of

this Section, the annual actuarial requirements of the pension fund are equal to (1)

the normal cost of the pension fund, or 17.5% of the salaries and wages to be paid

to the firefighters for the year involved, whichever is greater, plus (2) an annual

amount sufficient to bring the total assets of the pension fund up to 90% of the

total actuarial liabilities of the pension fund by the end of municipal fiscal year

2040[.]” (Emphases added.) 40 ILCS 5/4-118(a) (West 2014).

Based on this section, Harvey argues that “prior underfunding is taken into account in

calculating the ‘sum sufficient to meet the annual actuarial requirements of the pension fund,’

municipalities must contribute each year only the recommended amount from the most recent

actuarial valuation, not the sum of prior actuarial valuations.” Therefore, rather than a

72  No. 1-15-3074

calculation of damages that combines the missed annual actuarial valuations, Harvey argues

that the monetary damages award should be based on only the most recent annual actuarial

valuation.

229 This court agrees with the trial court and the Pension Board. The inclusion of the word

“annually” within section 4-118(a) leads this court to believe that these contributions should

be made annually. 40 ILCS 5/4-118(a) (West 2014). Additionally, the trial court found “that

[the] damage figure reflects Harvey’s position that the damage recovery should include the

‘normal cost’ of the [Pension] Fund for each fiscal year plus the amount that the enrolled

actuary calculated *** as the contribution ‘sufficient to bring the total assets of the [Pension

Fund] up to 90% of the total actuarial liability of the [Pension Fund] by the end of municipal

fiscal year 2040[.]” The trial court continued, “if Harvey had actually funded the full amount

in any fiscal year, the actuarial requirement in the following year would be lower because the

unfunded liability would be lower.” Therefore, the trial court did not exceed its authority

under the Code to award monetary damages of $11,561,117, which is the accumulation of

damages for 2005 through 2014.

230 Additionally, Harvey argues that, because an enrolled actuary did not perform the annual

actuarial valuation for 2009, 2010 or 2012, Harvey was not required to levy for those years,

and the trial court should not have granted damages for those years. In response, the Pension

Board argues that many Illinois downstate pension funds rely on the annual actuarial

requirement provided by the Department of Insurance and presume that its calculations are

valid. Additionally, the Pension Board argues that Harvey was never required to accept the

calculations of the Department of Insurance and could have hired an actuary to perform the

calculations during these years. Nonetheless, the failure to do so should “not shield it from

73  No. 1-15-3074

liability particularly where the Pension Board did not know, and could not have known, that

the [Department of Insurance] was either (1) not using an enrolled actuary or (2) was not

going to prepare an actuarial valuation for 2012. Further, the Pension Board argues that

Harvey’s expert, Sandor Goldstein, prepared an updated annual actuarial valuation for 2009,

2010 and 2012.

231 The Code states that a municipality shall annually levy a tax that will meet the annual

actuarial requirements of a pension fund “as annually updated and determined by an enrolled

actuary employed by the Illinois Department of Insurance or by an enrolled actuary

employed by the pension fund or the municipality.” 40 ILCS 5/4-118(a) (West 2014).

Whether Scott Brandt is or is not an enrolled actuary does not matter because of his

employment by the Department of Insurance, who presumably, because it created the

calculations currently used to determine the annual actuary valuations, understands how to

calculate the annual actuarial valuations. As such, pension funds and municipalities across

Illinois rely on and use the Department of Insurance’s calculations every year. Additionally,

many of the deponents in this case, including Jon Willhite and Sandor Goldstein, testified

that these calculations were acceptable based on their knowledge and experience. Therefore,

the trial court did not exceed its authority in including the years 2009 and 2010 in its damage

calculation.

232 As for 2012, Harvey is correct that the Illinois Department of Insurance did not issue an

annual actuarial valuation for this year. However, the annual actuarial valuation for 2012 was

determined both by Sandor Goldstein, Harvey’s expert, and Jon Willhite. Goldstein

conducted the calculation retroactively, determining it was $864,407 for 2012. Willhite

testified that, traditionally, actuaries would take the previous years’ calculations and add five

74  No. 1-15-3074

to fifteen percent, then use that as the annual actuarial requirement. However, Willhite

testified that he used 2011’s calculations as 2012 calculations. Further, he testified that this is

common practice within the field.

233 Both Goldstein and Willhite are enrolled actuaries, and both determined an annual

actuarial requirement for 2012. Therefore, the trial court did not exceed its authority in

relying on the calculations of Willhite to determine damages for 2012. For these reasons, the

trial court’s damage calculation of $2,694,600, as a lesser included amount of the

$11,561,117 in damages, is affirmed.

234 Lastly, Harvey argues that the trial court incorrectly calculated the unremitted personal

property replacement taxes. It is undisputed that Harvey collected $7,067,022 in personal

property replacement taxes between 2005 and 2014. It is also undisputed that Harvey should

have remitted 12.2% of these funds to the Pension Fund, which would equal $858,516.68.

However, Harvey argues that the trial court “misinterpreted Comptroller Williams’s affidavit

as stating that Harvey has paid, in total, only $48,624 in [personal property replacement

taxes] from 2005 to 2013.” Therefore, Harvey asks this court to vacate the damage award

because it should be $537,727.44.

235 However, upon review of the record, this court finds that Harvey waived this issue on

appeal. The “primary purpose of the waiver rule is to ensure that the trial court has the

opportunity to correct any errors before they are raised on appeal.” First National Bank of

La Grange v. Lowrey, 375 Ill. App. 3d 181, 201 (2007); Moller v. Lipov, 368 Ill. App. 3d

333, 342 (2006) (“A primary purpose of the waiver rule is to ensure that the trial court has

the opportunity to correct the error. [Citation.] A trial court cannot correct the error and

prevent prejudice when the objection is not made as the error occurs.”). As such, the trial

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court was not provided an opportunity to correct the personal property replacement taxes if it

committed an error in its decision. However, Harvey had ample opportunity to raise the

issue. The trial court on June 25, 2015, found that “[t]here is no dispute that Harvey owes the

[Pension] Fund $809,892 in unremitted [personal property taxes].” Nonetheless, the trial

court asked the parties to submit an updated damage calculation before it entered a final

damages order. In its proposed damages argument, Harvey did not argue that the trial court’s

determination of $809,892 in unremitted personal property replacement taxes was incorrect.

Additionally, Harvey never presented any evidence that the personal property replacement

tax calculation was incorrect. Therefore, Harvey has waived this argument, and we affirm the

calculation of the trial court.

236 V. WHETHER THE TRIAL COURT CORRECTLY RULED ON HARVEY’S

AFFIRMATIVE DEFENSES

237 A. SEPARATION OF POWERS

238 The trial court ruled 11 that the Pension Board’s claims were not barred by the separation

of powers clause of the Illinois Constitution. Ill. Const. 1970, art. II, § 1. The separation of

powers clause states: “The legislative, executive and judicial branches are separate. No

branch shall exercise powers properly belonging to another.” Ill. Const. 1970, art. II, § 1. The

trial court determined that, although the judiciary is cautious when choosing to venture into a

legislative branch’s powers, such as taxation, the judiciary will step in to enforce the law

when a municipality abuses its discretion under the law.

11 The trial court partially granted Harvey’s affirmative defense of separation of powers. The trial court denied the Pension Board’s motion for summary judgment for a writ of mandamus based on the separation of powers doctrine. However, because neither party appealed the trial court’s ruling regarding the writ of mandamus, we will not be discussing it here. 76  No. 1-15-3074

239 Harvey’s reliance on Diamond v. Board of Fire & Police Commissioners, as the appellate

court’s interpretation of the separation of powers doctrine, is misplaced. 115 Ill. App. 3d 437

(1983). The quotation provided by Harvey is about whether the district court had the

authority to compel Elk Grove to establish a special board on remand to hear the case of a

terminated officer. Diamond, 115 Ill. App. 3d at 445. The appellate court found that the trial

court could not force Elk Grove to establish this special board because that would require the

adoption of a city ordinance. Diamond, 115 Ill. App. 3d at 445. The appellate court

determined that a circuit court does not have the authority “to dictate that such an ordinance

be adopted.” Diamond, 115 Ill. App. 3d at 445. Therefore, the appellate court reversed the

trial court’s ruling. Diamond, 115 Ill. App. 3d at 445.

240 The case of Mathews v. City of Chicago, which is cited by both parties, is more

applicable to the current case. 342 Ill. 120 (1930). In Mathews, an Illinois taxpayer

challenged three laws passed by the General Assembly that allowed the creation and

maintenance of a “working cash fund” in cities, counties, and school districts that were over

a certain population. Mathews, 342 Ill. at 123. These cash funds authorized the city, county,

or school district to issue bonds without a referendum to fund the working cash funds.

Mathews, 342 Ill. at 123. Mathews argues that these three acts to create the funds and the

issuance of bonds were unconstitutional because “they attempt to authorize taxation which is

not needful and is for other than public or corporate purpose, in violation of [the Illinois

Constitution].” Mathews, 342 Ill. at 127.

241 In deciding the case, the Illinois Supreme Court found: “The amount of taxes and the rate

of taxation are exclusively for the General Assembly and may be increased or decreased at its

pleasure. The exercise of its discretion cannot be controlled by the court. *** The amount

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[to] be levied is left to the sound discretion and business judgment of the city council, the

county board or the board of education.” Mathews, 342 Ill. at 141. The supreme court

continued: “the courts have the authority to interfere and prevent a clear abuse by such

authorities of their discretionary powers.” Mathews, 342 Ill. at 141.

242 Therefore, although Harvey is correct in stating that it has the authority to set its levies, it

cannot abuse its discretionary powers pursuant to the Code. See Barrett v. Henry, 2013 IL

App (2d) 120829, 12-13. The Code explicitly states: “the municipality shall annually levy

a tax upon all the taxable property of the municipality at the rate on the dollar which will

produce an amount which *** will equal a sum sufficient to meet the annual actuarial

requirements of the pension fund.” 40 ILCS 5/4-118(a) (West 2014). Although Harvey is

allowed discretion by the Code, the General Assembly requires Harvey to enact a levy for the

Pension Fund, which Harvey has failed to do. Because Harvey has abused its discretion, this

court affirms the trial court’s ruling that the separation of powers doctrine does not bar the

Pension Board’s claim.

243 B. LACHES

244 When reviewing a trial court’s determination as to whether the affirmative defense of

laches applies to a case, an appellate court will reverse the decision only if the trial court’s

decision was “ ‘so clearly wrong as to constitute an abuse of discretion.’ ” Lozman v.

Putnam, 379 Ill. App. 3d 807, 822 (2008) (quoting Hannigan v. Hoffmeister, 240 Ill. App. 3d

1065, 1074 (1992)). An abuse of discretion standard is met when the trial court’s decision

was “ ‘palpably erroneous, contrary to the manifest weight of the evidence, or manifestly

unjust.’ ” Lozman, 379 Ill. App. 3d at 822 (quoting O’Brien v. Meyer, 281 Ill. App. 3d 832,

835 (1996)). A trial court’s decision is considered an abuse of discretion only when it is

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arbitrary, fanciful, or unreasonable or where no reasonable person would take the view

adopted by the trial court. People v. Dunmore, 389 Ill. App. 3d 1095, 1105 (2009).

245 To prevail on the affirmative defense of laches, defendants must prove (1) that there was

a lack of due diligence by plaintiffs in bringing suit and (2) that plaintiffs’ delay resulted in

prejudice to defendant. Lozman, 379 Ill. App. 3d at 822; see People v. McClure, 218 Ill. 2d

375, 389 (2006). Harvey claims that it has fulfilled these two requirements because the five-

year delay in bringing suit was due to a lack of diligence and this delay prejudiced Harvey.

Harvey has to prove that it was unknowingly accruing liability because the Pension Board

slept on its rights; however, as the trial court noted and this court can determine based on the

record, Harvey was knowingly accruing liability and this fact is clear from review of the

Pension Fund’s annual actuarial reports. Further, Harvey contributed well below the annual

actuarial requirement to the Pension Fund in 2009 and 2010 before the suit was filed and then

continued to contribute nothing to the Pension Fund for the three years after the filing of the

suit. There is nothing to suggest that Harvey was “unknowingly” accruing liability over the

period alleged by Harvey.

246 This court finds ample evidence to support the trial court’s finding that laches does not

apply; therefore, we affirm the ruling of the trial court, which found Harvey did not fulfill the

requirements to establish the affirmative defense of laches.

247 VI. MANDAMUS

248 In the Pension Board's cross-appeal, they seek a reversal of the trial court's denial of its

request for a writ of mandamus in Count II of its complaint. A writ of mandamus is issued to

force a defendant to perform a ministerial act that is not discretionary in character. Evanston,

281 Ill. App. 3d at 1052. In order for the Pension Board to be entitled to relief, it must show:

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(1) a clear right to the relief requested, (2) a clear duty of Harvey to act, and (3) clear

authority for Harvey to comply with the writ. Clarke v. Community Unit School District 303,

2012 IL App (2d) 110705, 24.

249 The Pension Board argues that section 4-118(a) of the Pension Code clearly mandates

that Harvey make annual contributions to the Fund according to an annual actuarial

evaluation. However, section 4-118(a) does not remove Harvey's discretion in making annual

contributions. The statute allows Harvey to base its levy on the AAR as calculated by any of

three different actuaries. In addition, Harvey can make a calculation as to the amount that it

must levy to “produce” an amount necessary to meet Harvey's required contribution to the

Fund. 40 ILCS 5/4-118(a) (West 2014). Taxes levied by Harvey are not collected at the rate

of 100% and, as a result, there is clearly some discretion required in order to make this

projection. As long as Harvey, within its discretion, is levying an amount that would be

enough to produce the AAR-mandated contribution, Harvey would be meeting its obligations

under the Pension Code. Harvey "is vested with the authority to take the final action:

adopting an ordinance levying the tax." Evanston, 281 Ill. App. 3d at 1053. Although Harvey

must meet the statutory funding requirements, the enactment of the pension tax levy is not a

mere ministerial act subject to a writ of mandamus. We affirm the trial court on its denial of

the issuance of a writ of mandamus.

250 VII. JUDICIAL NOTICE

251 “Upon the review by any court of appellate jurisdiction of a judgment or order of a circuit

court the court of appellate jurisdiction shall take judicial notice of all matters of which the

circuit court was required to take judicial notice, including all rules of practice adopted by the

circuit court.” 735 ILCS 5/8-1002 (West 2014).

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252 At oral arguments, this court invited the parties to request judicial notice of agreed facts

that have occurred after the conclusion of this case in the circuit court of Cook County.

253 This court takes judicial notice of the following facts that are undisputed by the parties.

However, the taking of judicial notice of these facts does not in any way affect this court’s

decision on this appeal:

(1) That between July 11, 2014, and December 31, 2016, the City of Harvey

contributed $2,177,319.31 to the Firefighter’s Pension Fund from tax revenue collected

from Harvey’s taxpayers during that period of time.

(2) That Harvey levied $800,000 for the Pension Fund for fiscal year 2015 (collected

in 2016). However, the statutory minimum annual actuarial requirement for the Pension

Fund for fiscal year 2015 was $1,950,025. Harvey contributed $750,764 and the Pension

Fund had net assets of $10,954,619 for fiscal year ended April 30, 2015. In accordance

with the trial court’s injunction entered in September 2015, the City levied the statutorily

required annual actuarial requirement for the Pension Fund of $2,083,797 for fiscal year

2016 (collected in 2017). However, the City did not levy the required amount on or

before the last Tuesday in December 2015 as required by the injunction but approved the

levy four months late. The Cook County Clerk agreed to accept the late levy. The

Pension Fund received $398,566 in City contributions and had net assets of $9,290,602

for the fiscal year ended April 30, 2016. The City did not levy on or before the last

Tuesday in December 2016 the annual actuarial requirement for the Pension Fund for

fiscal year 2017.

(3) That, as of May 3, 2017, the Pension Fund currently has $9,245,541.93 in assets.

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254 The monies that Harvey paid into the Pension Plan were a result of the trial court’s

injunction. Harvey’s compliance was not timely for the fiscal year of 2016, and Harvey did

not levy on or before the last Tuesday in December 2016 the annual actuarial requirement for

the Pension Fund for the fiscal year 2017. As of May 3, 2017, it is noted that the Pension

Fund’s assets have been depleted to $9,245,541.93.

255 CONCLUSION

256 The issues on appeal include (1) whether the trial court correctly determined that the

Pension Fund is not on the verge of default or imminent bankruptcy, (2) whether the trial

court correctly determined Harvey violated the Pension Fund’s statutory rights, (3) whether

the trial court correctly determined that Harvey breached the 1996 settlement agreement, (4)

whether the trial court correctly calculated the damages, and (5) whether the trial court

correctly rejected Harvey’s affirmative defenses of the separation of powers and laches.

257 For the reasons discussed above, we affirm in part and reverse in part the trial court’s

findings. We affirm the trial court’s ruling on issues (2), (3), (4), and (5) in finding that

Harvey violated the Pension Fund’s statutory rights; that Harvey did violate the 1996

settlement agreement; that the trial court’s calculation of damages is correct; and that

Harvey’s affirmative defenses were correctly rejected. However, as to issue (1), we reverse

the trial court’s finding and find that the Pension Fund is on the verge of default due to

Harvey’s blatant disregard of the Pension Fund for many years and the severe lack of any

financial responsibility shown by Harvey, which has substantially impaired the Fund to the

point that the firefighters' pension rights will be diminished in the near future.

258 Accordingly, we affirm the trial court’s damages award, injunctive order, and denial of

writ of mandamus.

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259 Affirmed in part, reversed in part.

260 JUSTICE LAMPKIN, specially concurring.

261 I agree with the majority’s conclusion that the pension fund benefits are already impaired

and soon will be diminished. I write separately to clarify why I believe the Pension Fund is

on the verge of default or imminent bankruptcy and the relevant factors considered in that

analysis.

262 The pension protection clause makes participation in a public pension plan an enforceable

contractual relationship and also demands that the “benefits” of that relationship “shall not be

diminished or impaired.” Ill. Const. 1970, art. XIII, § 5; see also Sklodowski, 182 Ill. 2d at

229. Although the clause does not create a contractual basis for participants to expect a

particular level of funding, it does create a contractual right for pension participants to

receive the money due to them at the time of their retirement. Sklodowski, 182 Ill. 2d at 230

(the General Assembly did not intend “to create any ‘vested’ contractual relationship in the

Pension Code that would allow participants to enforce funding provisions”). Furthermore,

pension beneficiaries do not have to “wait until benefits are actually diminished to bring suit

under the clause” because if benefits are impaired, i.e., if a pension fund is on the verge of

default or imminent bankruptcy, the beneficiaries could take a group action to show that their

rights should be preserved. Id. at 232, citing McNamee, 173 Ill. 2d at 446-47. There is a

distinction between diminishing a beneficiary’s right to receive pension benefits and

impairing that right. Benefit rights are diminished if they are abolished, lessened, or if the

terms are changed after the participant has vested. See 4 Record of Proceedings, Sixth Illinois

Constitutional Convention 2629, 2931-32 (comments of Delegate Kinney). Benefit rights are

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impaired when a pension fund is on the verge of default or imminent bankruptcy and the

rights need to be preserved. See id. at 2996 (comments of Delegate Kinney).

263 Here, Harvey is currently paying the Pension Fund beneficiaries their pensions, which

have not been reduced in anyway, so the benefit rights have not been diminished. However,

the evidence of several relevant factors clearly established that the benefit rights have been

impaired such that the fund is on the verge of default or imminent bankruptcy. These factors

include, first, the financial status of the Pension Fund primarily from 2005 through 2013,

except that the data about the fund’s 2011 financial status should be excluded due to

conflicting data. According to Jon Willhite, the Pension Fund’s financial consultant since the

1980’s, the actuarial recommended contributions for 2005 to 2013 were approximately $11.6

million. Harvey, however, contributed only $1.4 million to the Pension Fund during that time

period while that fund paid almost $13.6 million to beneficiaries. Accordingly, Harvey

contributed only about 12% of the actuarial recommendation and the Pension Fund paid, on

average, nine times more per year to its beneficiaries than Harvey had contributed to the

fund.

264 Second, the fast rate at which the Pension Fund is being depleted supports the finding that

it is on the verge of default or imminent bankruptcy. In his deposition, Sandor Goldstein,

Harvey’s retained actuary, stated that Harvey “deprived the Pension Fund of $8 million in

actual contributions and another $2 million in actual investment gains on those

contributions” because Harvey failed to make proper contributions to the Pension Fund from

2005 to 2013. Goldstein demonstrated Harvey’s depletion of the net assets of the Pension

Fund based on the following net asset balances over time: $17,530,040 in April 2008,

$12,848,718 in May 2012, $11,501,101 in December 2013, $11,180,962 in May 2014,

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$10,936,532 in March 2015, and $10,119,246 in October 2015. By April 30, 2015, the

Pension Fund was only 25% funded. The Pension Fund’s $17 million in assets in 2009 was

depleted by 2013 to approximately $11.1 million, which represented an over one-third

depletion of the fund in merely four years. Todd Schroeder, the Pension Fund’s retained

actuary, opined in his deposition that the Pension Fund should have had approximately $34

million in assets as of 2014 instead of its actual balance of $11,180,962 in assets, which left

the fund deficient at the end of 2013 by approximately $23 million.

265 Third, the revenue available to Harvey to support the city’s financial needs supports the

finding that the Pension Fund is on the verge of default or imminent bankruptcy. Harvey has

only 25,000 residents, and the evidence demonstrated that Harvey was not able to collect on

its tax levies to support the city’s general corporate obligations over the time period at issue

here. Additionally, as of May 2015, Harvey had 47 active firefighters and 67 retirees or

beneficiaries. In 2014, the Pension Fund paid approximately $157,000 a month to the

beneficiaries while contributions from the active firefighters were approximately only

$25,000 a month. The contributions of the active firefighters were being used to pay the

current beneficiaries instead of being invested for the active firefighters’ future pension

benefits. Also the evidence established that for several years the Pension Fund had to

liquidate invested assets every month in order to pay the monthly benefits, and the invested

assets have been declining at an alarming rate each year. Willhite opined that the Pension

Fund is unable to invest its way out of financial collapse based on its current allocation and

return projections relative to cash outflows. Specifically, Willhite stated that based on the

Pension Fund’s current condition and the rate that money has been going out of the fund, it

will “reach a time when there will be no money left in the [Pension Fund] as we know it

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today.” Willhite opined that the Fund will be insolvent in seven to nine years. Consistent

with Willhite’s opinion, actuary Schroeder accurately predicted that the Pension Fund would

pay out $2 million in fiscal year 2014. He also predicted that the payouts would increase in

2017 to $2.7 million due to statutory cost-of-living increases and additional retirements.

Further, he predicted that within five years from 2015 the Pension Fund will have to pay

$11.8 million in benefits and administrative costs—which amount is $1.7 million greater than

the Pension Fund’s October 2015 net assets.

266 Fourth, from 2007 through 2011, Harvey failed to contribute to the Pension Fund any of

the statutorily required amount of 12% of the personal property replacement taxes disbursed

by the State of Illinois.

267 Based on the foregoing evidence of Harvey’s failure over several years to contribute to

the Pension Fund any more than an average of about 12% of the actuarial recommendations,

the fast depletion rate of the fund, and the lack of revenue sources available to Harvey, the

Pension Board has shown that the Pension Fund is on the verge of default or imminent

bankruptcy such that the benefits are in immediate danger of being diminished. This is not

merely a matter of an underfunded pension plan. The severe fund deficiency and alarming

rate of asset depletion, and Harvey’s demonstrated inability to collect on its tax levies to

support its obligations establish that the Pension Fund’s ability to pay the beneficiaries will

be extinguished in the near future.

86