Where an administrative agency seeks to impose a new rule, its ability to do so must arise expressly from a statute or by fair implication of a relevant statute.

The 1st District Appellate Court reversed and remanded a decision by Cook County Circuit Judge Kathleen M. Pantle.

Lori Levin was an employee of Cook County as an assistant state’s attorney from 1980 until July 31, 2003, making employee contributions to the County Employees’ and Officers’ Annuity and Benefit Fund of Cook County (Fund). In August of 2003, Levin took a job with the state of Illinois as the executive director of the Illinois Criminal Justice Information Authority, paying into the State Employees Retirement system. Levin resigned from her position there in June 2009. In December 2011 Levin applied for annuity benefits from the Retirement Board of the County Employees’ and Officers’ Annuity and Benefit Fund of Cook County (Board). Levin did not at the time apply for health insurance as she was covered under her husband’s plan. However, he left his job and they retained coverage via COBRA until 2016, when the coverage terminated.

Because Levin had not worked for the state for the required eight years, she could not receive insurance under their retiree plan. She requested from the Board permission to purchase health insurance under their plan for herself and her husband. The Board denied her request on the grounds that she was not last employed by Cook County or the Forest Preserve District in violation of the “last-employer” rule. Levin requested reconsideration, but the Board did not respond. Levin then filed suit, seeking administrative review of the Board’s order. The circuit court entered an agreed order remanding the case to the board for further proceedings, and the Board again rejected Levin’s request. She sought review with the circuit court, who affirmed the Board’s decision. Levin appealed.

On appeal, Levin argued that section 9-239 of the Illinois Pension Code (Code) required only that the applicant for insurance be an annuitant to the Fund, which Levin properly was. The Board imposed the “last-employer” rule in 2009 and has been using it to exclude applicants for health insurance since, citing authority under section 9-202 which grants the Board power “[t]o make rules and regulations necessary for the administration of the fund.” The Board argued it granted them authority to do so.

The appellate court disagreed, finding that the authority the Board claimed from section 9-202 would be overbroad, as the Board is “limited to the powers granted to it by the legislature, and any actions it takes must be authorized by statute.” The appellate court found that the Board’s interpretation of 9-202 granted themselves too much power to enforce rules that did not arise from their statutory authority. The appellate court reversed the Board’s decision and held that the last-employer rule is invalid and can no longer be enforced.

Justice Maureen E. Connors dissented, finding that the Board was within its authority to impose the last-employer rule, based on the wording of the medical plans and the Code.

Lori G. Levin v. The Retirement Board of the County Employees’ and Officers’ Annuity and Benefit Fund of Cook County
2019 IL App (1st) 181167
Writing for the court: Justice Sheldon A. Harris
Concurring: Justice Joy V. Cunningham
Dissenting: Justice Maureen E. Connors