Attorneys for Belleville fight for pensions

News-DemocratMay 3, 2014 

AP GRAPHICS

Two attorneys were cleared in April to receive retirement benefits for their work with St. Clair County, but their fight continues for benefits from the city of Belleville.

The Illinois Municipal Retirement Fund has yet to set a hearing date for Garrett Hoerner, city attorney for Belleville, and Brian Flynn, assistant city attorney.

IMRF manages the retirement plans of 2,977 municipalities statewide. Employees contribute 4.5 percent of their salaries and municipalities contribute on average 12.5 percent.

IMRF said Hoerner and Flynn should not get retirement benefits for their Belleville work after Belleville City Clerk Dallas Cook alerted the agency that Hoerner and Flynn do not meet the criteria, such as working the required hours.

In July, IMRF sent a letter to Hoerner and Flynn stating the two serve as independent contractors -- not employees -- and do not work the 1,000 hours needed to qualify for retirement benefits.

Hoerner said he and Flynn work much more than the hourly standard when handling litigation, consulting city officials, preparing legal documents, attending council meetings and other duties.

In December, Hoerner and Flynn each submitted 80-plus pages of documentation to IMRF as evidence the two should receive benefits. Both say they work on average more than 100 hours a month for Belleville.

"We've requested telephone conferences and in the absence of a response, sent a FOIA (Freedom of Information Act) request," Hoerner said. "We obtained some information, but notably there was an absence of information regarding evidence on which the denial was based. They provided nothing. Notably, they also never contacted me to inquire as to the nature and extent of the job, or obtain any evidence related to the job."

During a recent interview with the News-Democrat, IMRF Director Lou Kosiba said municipal attorneys face the same criteria as other professionals.

But attorneys are under more scrutiny because employers have more questions about whether attorneys qualify, Kosiba said. He also said IMRF sees more abuse with attorneys.

"By abuse I mean people are maybe not working the hourly standard but are enrolled in IMRF and there's a liability growing for that unit of government," Kosiba said.

Hoerner and Flynn, however, say IMRF is inconsistent in their scrutiny and determinations.

Typically, when employees are first hired or appointed, they are enrolled in IMRF if they are expected to work the minimum hours. The employee is then removed if there is evidence, after a year or two, that the employee does not work the minimum hours.

Hoerner and Flynn's case stands out because they were denied participation right away.

After the Belleville City Council appointed Hoerner and Flynn in April 2013, IMRF prevented Hoerner and Flynn from participation in May 2013.

Just a month earlier, the agency said Hoerner and Flynn's predecessors qualified for IMRF participation after a review.

Belleville's attorneys before Hoerner and Flynn were Robert Sprague and Flynn's father, Mike Flynn.

Sprague and Mike Flynn each represented the city for more than 30 years and now collect yearly pensions of $86,763 and $41,955, respectively.

"Whether a past attorney was enrolled is not the issue," Kosiba said. "The issue is whether the past attorney was properly enrolled. IMRF is not in a position to review history especially if that happened 10, 15 years ago simply because the people who had knowledge about it are no longer available. So there has to be a new determination. ...

"Just because someone participated in IMRF doesn't mean another person may participate if they appear to be working in the same position. The question always is: Is this person expected to work (the hourly standard)?"

Neither Hoerner, Flynn nor the city of Belleville have paid into the attorneys' retirement fund since they were denied participation in May. Participation would have cost the city about $20,000 per year for the two attorneys combined.

Hoerner and Flynn are qualified for participation through St. Clair County. They each work at least 600 hours for the county.

Any municipal employee who meets the hourly standard set for their employer must participate in IMRF. Elected officials may choose to participate.

Kosiba said his agency does not have policing authority and relies on local government to be honest.

"We know there is confusion out there," Kosiba said. "We know politics comes into play and to the extent we are put on notice we will work with that employer. But at the end of the day, IMRF is not a policing agency and IMRF doesn't have authority to dis-enroll a person if they have provided us with enough credible evidence showing they should be enrolled even if other people believe that's not true. When do you call a person a liar to their face?"

Auditors with IMRF recently completed a review of St. Clair County and accepted certifications from 30 other attorneys attesting they work enough hours to receive benefits.

IMRF removed retirement benefits for six civil attorneys, two assistant state's attorneys, a public defender, three members with the East St. Louis Election Commission and three jury commissioners working for the county.

Cook said he wants to testify at Hoerner and Flynn's hearing to explain why the two attorneys do not meet the requirements for IMRF benefits.

"We do have city attorneys we keep very busy," Cook said. "But they are employed by many entities. They have offices at their own private practices, not here at City Hall. They don't get sick time or vacation time. They don't use city supplies or the service of clerks here. That's plenty for IMRF to think about."

So should IMRF or municipalities require employees to keep track of their hours? Cook thinks so but IMRF has not asked for that.

"You don't want to be overbearing," Kosiba said. "IMRF doesn't have policing authority. A lot of attorneys are legitimately in IMRF. I suppose you could craft rules for those other than full-time attorneys. Maybe you can ask for documents. We haven't done that yet."

Hoerner's private firm is Becker, Paulson, Hoerner & Thompson.

According to the firm's website, Hoerner is legal counsel for the city of Belleville, Southwestern Illinois College, East St. Louis School District 189, Central School District 104, Smithton School District 130, Belle Valley School District 119, Wood River-Hartford School District 15 and the St. Clair County Regional Office of Education.

Hoerner also handles certain legal matters for East St. Louis Township and the East St. Louis Park District.

As for Flynn, aside from his work with Belleville, he works for the county as an assistant public defender and for the Village of Fairmont City, Village of Millstadt and Belleville Township on an as needed basis. Flynn's private firm is Flynn, Guymon & Garavalia.

"A man only has so much time," Cook said. "I think the common man will look at this and use common sense and say this is obviously a farce. I can't fathom him spending 1,000 hours (for Belleville) and meet all his other obligations."

Hoerner said his law firm has eight lawyers that work on the government entities for which he is responsible, in addition to other municipalities.

"Certainly what we're talking about here is a 1,000 hour threshold which I've exceeded well before the year is out as far as Belleville goes," Hoerner said. "I work a lot more than 40 hours a week. It's just my nature. So rest assured I put in a lot more time than 1,000 hours annually for Belleville. In our profession, it's an all day, all evening job, when you start early in the morning and end late at night."

Cook wants IMRF and the state to change the pension code so that municipal employees only qualify for retirement benefits from their full-time job.

"This is an extra job for them," Cook said. "Is this your full-time income and is this what you're relying on for retirement?"

Hoerner and Flynn have the option of working for multiple entities whereas a typical Belleville employee is locked to a 40-hour a week job and cannot easily work elsewhere, too, Cook said.

Belleville annually pays Hoerner $109,647 and Brian Flynn $53,613.

Benefits are based upon years of service and the average salary during the highest-paying four years of an employee's past 10 years of service. Benefits range from 13 percent of salary after 8 years of service to 75 percent of salary after 40 years of service.

Unlike some other state pension plans, Kosiba said IMRF is nearly fully paid with about a 97 percentlevel at the end of 2013. The fund is primarily dependent on investment returns and does not include money from the state.

IMRF serves as a resource for municipalities to help understand the pension code, he added.

"We try and explain and ensure people know exactly what they're doing," Kosiba said. "But at the end of the day, it's going to be up to the local unit of government to determine who participates in IMRF. As you can imagine with 173,000 active members and 2,900 employers, and IMRF has a staff of about 180, we are not in a position to go over each and every employment unit of record."

Contact reporter Daniel Kelley at dkelley@bnd.com or 618-239-2501. Contact reporter Jacqueline Lee at jlee@bnd.com or 618-239-2655. Follow her on Twitter at https://twitter.com/BNDJLee.

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