IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT . WILL COUNTY, ILLINOIS VILLAGE OF MOKENA, a municipal Corporation, by the CHIEF OF POLICE, TIMOTHY MCCARTHY, iff, v. No. 20 MR 2850 BOARD OF FIRE AND POLICE COMMISSIONERS of the VILLAGE of MOKENA, BY RONALD BRANNAN, MICHAEL MORAN, and CHRISTOPHER SURDEL in their Capacities as COMMISSIONERS, and CHRISTOPHER CARLSON, individually, Judge John C. Anderson Defendant. This matter comes before the Court on (a) Plaintiffs’ complaint for administrative review; and (b) Christopher Carlson’s “motion to enforce,” filed March 7, 2022. The Court, having reviewed the record and the parties’ oral and written submissions, affirms the Commission’s final decision of November 13, 2020 in its entirety and grants the motion to enforce as forth herein. 1. PROCEDURAL HISTORY This matter comes before the Court on Plaintiff Village of Mokena (“the Village”) and Plaintiff former Village of Mokena Chief of Police Steven Vaccaro’s (“Chief Vaccaro”) Complaint for Administrative Review of the Village of Mokena’s Board of Fire & Police Commissioners’ (“the Commission”) November 13, 2020 final administrative decision affirming the appeal of Village of Mokena Commander of Police Christopher Carlson 1(“Commander Carlson”). Commissioners Ronald Brannan, Michael Moran and Christopher Surdel were named to confer jurisdiction over the Commission. Former Chief of Police Timothy McCarthy was substituted for Chief Vaccaro as Plaintiff following former Chief Vaccaro’s separation of employment with the Village of Mokena. On June 30, 2020, Chief Vaccaro terminated Commander Carlson’s employment with the Village. On July 2, 2020, Commander Carlson filed a written appeal of his termination with the Commission. On August 14, 2020, the Village filed an appearance and objection to the jurisdiction of the Commission. On August 18, 2020, the Commission heard oral arguments on Plaintiffs’ objection to jurisdiction. The Commission found it had jurisdiction to hear the appeal and denied the objection. On September 3, 2020, Plaintiffs filed a self-styled “Answer to the Appeal of Commander Carlson, an Objection to the Jurisdiction of the Commission and Counter Charge” against Commander Carlson. The Commission convened the hearing on Commander Carlson’s appeal on September 10, 2020, and concluded on September 24, 2020, when the Commission voted to affirm Carlson’s appeal. On November 13, 2020, the Commission served its written “Findings of Fact, Decision and Order” on counsel for the parties. The November 13, 2020 was the Commission's final administrative decision. On December 18, 2020, Plaintiffs filed a complaint for administrative review (“the Complaint”) before this Court. The parties filed several procedural motions in the Circuit Court. On December 17, 2020, Plaintiffs filed a mot n to stay enforcement of the underlying administrative decision. On January 12, 2021, Commander Carlson moved to dismiss the Complaint. On January 13, 2021, the Commission Defendants filed a separate motion to dismiss theComplaint. On February 24, 2021, Plaintiffs filed a motion for an order nunc-pro-tunc to deem the Complaint filed retroactively to December 18, 2020. On June 3, 2021, this Court denied Plaintiffs’ motion to stay and granted Plaintiffs’ motion for an order nunc pro tunc, which rendered moot the motions to dismiss. On June 30, 2021, the Commission Defendants filed the record on administrative review. On August 11, 2021, the Commission Defendants filed a motion to supplement the administrative record. On August 24, 2021, this Court granted the Commission Defendants’ motion to supplement the administrative record. On September 24, 2021, the Commission Defendants filed the supplemental administrative record on review. The parties then fully briefed the Complaint. On March 7, 2022, Commander Carlson filed a motion to enforce the Commission’s administrative decision. On March 10, 2022, the Court heard oral arguments on the Complaint and took the matter under advisement. On April 11, 2022, the Court heard oral arguments on Commander Carlson’s motion to enforce. Hl, FACTUAL BACKGROUND The following facts are taken from the administrative record on review. Commander Carlson was first appointed as a patrol officer with the Village of Mokena in 1993, At that time, the Village maintained a residency requirement for entry level patrol officers that required them to reside within 10 miles of the Village limits. It is undisputed that Commander Carlson lived approximately five miles from the Village limits at all times during his employment with the Village. AR 556 at 79.Chief Vaccaro was appointed Chief of Police in the Village of Mokena 2014, AR 77. ‘On May 18, 2018, Vaccaro posted an opening at the rank of Commander. Def. Ex. 7; AR 552 at 61; AR 494, The rank of Commander is a classification provided for in Article IV, Section 2, of the Village of Mokena Board of Fire and Police Commissioners Rules and Regulations (“Rules and Regs”). Ex. 2(a) at 12. The position as posted required that the applicant “must live within the corporate limits of the Village of Mokena within one year of appointment.” Def. Ex. 7; AR 552 at 61; AR 494. At that time, promotions were governed by the Illinois Fire and Police Commission Act ("the Act”). With respect to residency requirements, section 65 ILCS 5/10-2.1-6(b) provided: “(b) Residency requirements in effect at the time an individual enters the fire or police service of a municipality (other than a municipality that has more than 1,000,000 inhabitants) cannot be made more restrictive for that individual during is period of service for that municipality, or be made a condition of promotion, except for the rank or position of Fire or Police Chief.” 65 ILCS 5/10-2.1-6; Def. Ex. 5. As explained more fully below, itis undisputed that the Village made Commander Carlson's residency more restrictive during his period of service for the Village. Chief Vaccaro was aware of Section 10-2.1-6 as far back as 2016. AR 549 at 51:18-52:24, Even 0, Chief Vaccaro conditioned promotion upon establishing residency in the Village. AR 555 at 73-74, On July 20, 2018, Commander Carlson was promoted to the rank of commander by way of appointment by Chief Vaccaro. Def. Ex. 11. Commander Carlson was not asked any questions about his financial condition during the interview process for promotion to commander. AR 586 at 200:16-202:5. The ge required Commander Carlson to move jing one year as a condition of his promotion to the rank of 4 within Village limitscommander. AR 655 at 39-401; Def. Ex. 11. During the underlying hearing, Chief Vaccaro testified that Commander Carlson’s promotion was “a very positive time in the police department” as the Village was “promoting from within somebody to the job of commander.” AR 571. Chief Vaccaro characterized Commander Carlson's job performance as “outstanding.” AR 548 at 46; 556 at 78; 560. ‘On March 1, 2019, Commander Carlson requested an extension of time to comply with the residency requirement due to the financial burden it would create for his family. Def. Exs. 13-14. On June 30, 2019, Chief Vaccaro extended the time for Commander Carlson to establish residency by one year, or until June 30, 2020. He memorialized the extension in a “residency extension” memorandum. Def. Ex. 15. The extension noted that Commander Carlson would be “terminated from employment” if he failed to establish residency by June 30, 2020. id. The residency extension of June 30, 2019, does not contain a clause, not could it, that would allow Chief Vaccaro to terminate Commander Carlson without first filing charges with the Board. Def. Ex. 15. The extension also irrevocably withdrew a 2.5% statutory pay increase for Commander Carlson until such time as he resided within the Village limits. Id. The record establishes that Commander Carlson did not execute the residency agreement voluntarily. Chief Vaccaro testified at the underlying hearing that Commander Carlson was warned that he'd be “fired on the spot” if he didn’t sign the 2019 residency extension. AR 558 at 86-88. Ultimately, Commander Carlson was unable to reside within the age limits by June 30, 2020. Def. Ex. 3; AR 579 at 170.Consequently, Commander Carlson was terminated on June 30, 2020. Chief Vaccaro testified that he terminated Commander Carlson by way of a memo for failing to establish residency within the Village. AR 4 ] 16; AR 47-48 at 41:22-45:11; AR 562 at 104-05; AR 481; AR 560 at 96; AR 562 at 104; AR 563 at 105; AR 579 at 169-70; AR 588 at 205 (“Q: Is it your testimony here today that you terminated Mr. Carlson? A: Yes, it is.”). Other Village officials confirmed that Commander Carlson was terminated for failing to establish residency as a condition of promotion to the rank of commander. AR 52 415; 52 4] 2; 64 at 15:9-15; AR 668 at 92-93; AR 653 at 32-33; AR 655 at 37-38; AR 593 at 226-27; 237-39; AR 603 at 268. Chief Vaccaro was unable to cite a statute or ordinance that permitted him to terminate Carlson without first filing charges before the Commission: ‘AR 548 at 47:10-48:1; AR 561 at 97. The Commission derives its authority to act from 65 ILCS § 5/10-2.1 (“the Act”). The Act vests the Commission with the sole authority to terminate a sworn officer. The statutory procedure to discharge a sworn police officer is found in Section 65 ILCS 5/10- 21-17: “Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. The hearing shall be as hereinafter provided, unless the employer and the labor organization representing the person have negotiated an alternative or supplemental form of due process based upon impartial arbitration asa term of a collective bargaining agreement. 65 ILCS 5/10-2.1-17; Pl. Ex. 2 at 1 The Rules and Regs define a “Police Officer” as “any person, male or female, -e Department of the Village of Mokena.” Rules and holding a sworn position in the PRegs at Article |, Section 2, Commander Carlson fell within that definition. Article V, “Hearing of Charges, Suspensions and Discharges” provides: “In all cases a written complaint shall be filed with the Board in triplicate, setting forth a plain and concise statement of the facts upon which the complaint is based. The Board shall have the right to determine whether or not there is probable cause for a hearing on the complaint and may conduct such informal hearings as may be necessary for such purpose. Def. Ex. 2(a), Rules and Regs, at 16 (emphasis added). The Rules and Regs do not provide for exceptions to the Commissions’ exclusive authority to terminate a sworn police officer. Moreover, Commander Carlson was deprived of a probable cause hearing before the Commission. Def. Ex. 2(a) at 16; AR 595 at 234-237; AR 585. Article V, Section 2 B of the Rules and Regs only vested Chief Vaccaro with the authority to suspend Commander Carlson up to five (5) days without filing charges the Board. See Ex. 2(a) at 18. The Act at 65 ILCS § 5/10-2.1-17 mirrors Article V: “Nothing in this Section shall be construed to prevent the chief of the fire department or the chief of the police department from suspending without pay a member of his department for a period of not more than 5 calendar days, but he shall notify the board in writing of such suspension.” Chief Vaccaro also testified that the Act and Rules and Regs required that he file charges with the Board before a sworn officer could be terminated. AR 546 at 37:5-41:21; AR 455-56; AR 474; AR 3-4 41 15. Village Manager Jon Tomasoski (“Mr. Tomasoski") testified that the chief was required to file charges before the Commission if he wanted to fire a police officer. AR 595 at 235-36. Mr. Tomasoski was unable to identify a rule, regulation, ordinance or law that would allow Chief Vaccaro to terminate CommanderCarlson without first going before the Commission. AR 594 at 229. The Village's residency ordinance did not authorize Chief Vaccaro to terminate a sworn officer. AR 589 at 212. On July 2, 2020, Commander Carlson filed an appeal of his termination under 65 ILCS 5/10-2.1-17 and Article V, Section 2 B of the Rules and Regs. AR 1; AR 26-44; Def. Ex. 2{a) at 18. The Commission sustained the appeal, ordered “that Commander Carlson be reinstated to the position of Commander effective July 1, 2020, that he should be made whole with the salary and benefits of a 27 year veteran with 2 years in grade as a Commander including any and all backpay, that his health insurance benefits should be reinstated and that he should be repaid for any health insurance amounts he expended after the termination date and he should lose no departmental seniority or creditable service time.” MI ANALYSIS A. The Administrative Review Complaint 1. Standard of Review "The applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law." American Federation of State, County & Municipal Employees, Council 31 v, Illinois State Labor Relations Board, 216 II 2d 569, 577 (2005). In examining an admi rative agency's factual findings, a reviewing court does not weigh the evidence or substitute its judgment for that of the agency. Instead, a reviewing court is limited to ascertaining whether such findings of fact are ag st the manifest weight of the evidence. Cinkus v. Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). Mixed questions of factand law “are ‘questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated."” Cinkus, 228 Ill. 2d at 211. “[A]n examination of the legal effect of a given state of facts involves a mixed question of fact and law with a standard of review of “clearly erroneous." /d. 2. Discussion Plaintiffs submit four issues for review: (a) whether the Commission had subject matter jurisdiction to hear Commander Carlson’s appeal; (b) whether the Chief Vaccaro was required to comply with Section 5/10-2.1-6(b) in light of the “residency extension” with Commander Carlson; (c) whether the Commission's decision was erroneous if Commander Carlson resigned and retired, rather than was terminated; (d) whether the Commission exceeded its statutory authority. a, The Commission’s Ju Review of the Commission’s decision of whether the Commission had jurisdiction to hear Commander Carlson’s appeal presents mixed questions of law and fact, which this Court reviews under the “clearly erroneous” standard. Section 65 ILCS 5/10-2.1-17 of the jioners to review Act provides a statutory mechanism for boards of fire and police commi: disciplinary decisions of chiefs of police. in cases where a chief does not exceed his statutory authority, a chief may “suspend a member of the department without pay for a period of not more than 5 calendar days, but he shall notify the board in writing of such suspension.” 65 ILCS 5/10-2.1-17.‘A police officer may appeal the chief's discipline to the Board within 5 calendar days. Id. If a chief desires to discipline a member in excess of @ 5-day suspension, including termination, the chief is required to file charges with the Board and the member is entitled to a hearing before discipline is imposed by the Board. Id. In this way, the Act ensures that a member (1) is not subject to discipline of more than five days without a hearing and (2) is entitled to review of a chief’s disciplinary decision by the Board. In this case, Chief Vaccaro exceeded his statutory authority by terminating Commander Carlson without filing charges with the Commission and thereby denying Commander Carlson an opportunity to be heard before the Commission as the Act commands. Even where a chief exceeds his authority to discipline, the officer remains entitled to appeal the chief’s disciplinary decision. See Wilson v. University Park Board of Fire & Police Comm'rs, 2016 U.S. Dist. LEXIS 4333, at *4-5 (N.O. IN. Jan. 13, 2016) (Suspensions in excess of 5 days imposed by chief of police appealable to Board, but 5- day deadline to appeal did not apply). The purpose of Section 5/10-2.1-17 of the Act is to set parameters on a chief's otherwise unfettered authority to discipline, ensure a commission is able to review any disciplinary decision rendered unilaterally by a chief, to provide due process for disciplined officers, and to reserve the most serious disciplinary decisions to a commission. The Commission determined it had jurisdiction to hear Commander Carlson's appeal under Section 10-2.1-17 of the Act in part because Chief Vaccaro failed to file charges with the Commission before terminating Commander Carlson. AR 3; AR 67 at 25:15-27:6. Alternatively, the Commission found it had jurisdiction to hear the appeal 10because Article V, Section 2 B of the Rules and Regulations allowed it to entertain appeals of the chief's isciplinary actions. /d, Neither finding was clearly erroneous. b. Chief Vaccaro’s Compliance with 5/10-2.1-6(b) Review of the Commission's decision with respect to whether Chief Vaccaro was required to comply with 65 ILCS 5/10-2.1-6(b) presents mixed questions of law and fact, which this Court reviews pursuant to the “clearly erroneous” standard. Plaintiffs assert for various reasons that Chief Vaccaro was not required to comply with Section 2.1-6(b) and that any other finding was reversible. Plaintiffs are incorrect. Section 2.1-6(b) mandates: “(b) Residency requirements in effect at the time an individual enters the fire or police service of a municipality (other than a municipality that has more than 1,000,000 inhabitants) cannot be made more restrictive for that individual during his period of service for that municipality, or be made a condition of promotion, except for the rank or position of Fire or Police Chief.” 65 ILCS 5/10-2.1-6; Def. Ex. 5. Section 2.1-6(b) imposes two restrictions on the Village. The first is that it may not make residency more restrictive for an officer than it was on the first day of employment. Putting aside the promotion to commander, it is undisputed in record before this Court that the Village made Commander Carlson's residency more restrictive than it was on his first day ~ 10 miles. The second restriction imposed on the Village by Section 2.1-6(b) is that it may not make residency a condition of promotion. In this case, the Village did make residency a condition of promotion. Plaintiffs attempt to create a distinction between “promotion and “appointment” in the second clause of Section 6 where none exists. They assert “promotions” relate to the testing process and “appointments” are made by the chief. However, in the Rules and Regs, applicants for aoriginal appointment are “appointed” even though they go through a testing process. Def. Ex. 2(a) at 10-11. Article VI of the Rules and Regs govern “promotional appointments.” Def. Ex. 2(a) at 12. Section 2.1-6(b) characterizes a promotion as an increase in every rank, including the chief of police. Village Manager Tomasoski testified that the distinction between “appointment” and “promotion” to the rank of commander is a procedural one, AR 599 at 249-250. It was not clearly erroneous to determine that ‘Commander Carlson’s move from the rank of sergeant to the rank of commander was a promotion as defined in Section 10-2.1-6, AR 550 at 55:10-56:3. Moreover, the 2018 residency requirement and June 30, 2019 residency requirements were unenforceable as a matter of law because the Village is prohibited from executing contracts that violate state law. “A municipality is limited to those powers nit by constitution and statute and cannot be bound by a contract that does not ions for the exercise of the muni comply with the prescribed con ality's power Ekkert v. City of Lake Forest, 225 Ill. App. 3d 702, 705-06 (1992). “A contract that is legally prohibited is not merely voidable but void...” Ekkert, 225 Ill. App. 3d at 705-06. In this case, the Village was legally prohibited from executing a contract that made Commander ive than it was on his first day or conditioned his Carlson's residency more restri continued employment on a residency restriction. The ge contends, and not unreasonably, that Carlson waived the protections of 65 ILCS 5/10-2.1-6(b) in executing Agreement #1 on July 20, 2018, Indeed, “[s]tatutory and constitutional rights may be waived as long as the waiver is knowing, voluntary, and intentional.” See Dep't of Pub. Aid ex rel. Allen v. Dixson, 323 Ill. App. 3d 600, 603 (2001); 12see also In re Midway Indus. Contractors, Inc., 272 B.R. 651, 668 (Bankr. N.D. Ill. 2001); see also Meyer v. Meyer, 333 Ill. App. 450, 465 (1948) (“[i]t is a fundamental legal principle that parties may waive substantive rules of law, statutes and even constitutional provisions enacted for their benefit”). ‘The Court rejects Mokena’s waiver argument for three reasons, any one of which is independently sufficient to doom its position. (The Court's decision is driven primarily by the third reason, however, which is presented last because of the lengthy discussion that is required.) First, the statute at issue doesn’t read as though it is conveying a right. Rather, it reads as an absolute prohibition on a particular course of conduct by a municipality and/or its merit board. The Court is not sure that Mokena (especially being a non-home rule municipality) can contractually avoid an express statutory directive. That being the case, the residency component of the parties’ agreement is illegal and void. Second, while it is true that statutory and constitutional rights may be waived, there are some protections that cannot be contractually bargained away. Indeed, “{algreements involving waiver, which are contrary to public policy, for example, waiving a right in contravention of state policy or waiving illegality as a defense, are void.” See Marks v. Pope, 289 Ill. App. 558, 567 (1937), rev’d on other grounds, Marks v. Pope, 370 lll, $87 (1939). For example, in Stevens v. Rooks Pitts & Poust, 289 Ill. App. 3d 991, 1000 (1997), the court considered a claim that an attorney had waived the protections of Rule of Professional Conduct 5.6 wolving the right to practice and prohibiting noncompetes among attorneys). The court rejected the employer's argument, finding that such a 13waiver was contrary to public policy. See also Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 704-05, 65 S. Ct. 895, 900-01, 89 L. Ed, 1296 (1945) (stating “[iJt has been held in this and other courts that a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy” and “[w]here a private right is granted in the public interest to effectuate a legislative policy, waiver of a right so charged or colored with the public interest will not be allowed where it would thwart the legislative policy which it was designed to effectuate.”) Here, the policy considerations that underpin the overall statutory scheme that includes section 2.1-6(b) relate to the need to guarantee an orderly appointment and promotion of police officers based on public and competitive means, with eligibility for employment based on fair consideration of applicants’ qualifications, with due /, and good character. See Mueller v. Board of Fire and consideration given to merit, ab Police Com'rs of Village of Lake Zurich, 267 Ill App. 3d 726, 731-32 (1994). In other words, they are designed to elevate the best people for the job without regard to qualifications unrelated to ability. They also aim to depoliticize hiring and promotion. Third (and in the Court's view most importantly), “waiver arises from an affirmative act, is consensual, and consists of an intentional relinquishment of a known right.” Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007). That is, “[a] party may waive a statutory right as long as there was an intentional relinquishment of a known right.” (Emphasis added.) Village of Bellwood v. American National Bank and Trust Company of Chicago, 2011 IL App (1st) 093115, §] 25; In re Estate of Ferguson, 313 ll. App. 3d 931, 937, 14(2000) (waiver of statutory rights must be “knowing, voluntary, and intentional. [Citation.]”). Accordingly, Illinois courts have required contractual waivers of statutory rights to be explicit. The Illinois Supreme Court illustrated this point in Gallagher. In that case, plaintiff, was injured when his work truck collided with a work truck driven by an employee of another company. Id. at 211. Gallagher filed a workers’ compensation claim against his employer, which was settled. fd. at 212-13. The settlement agreement provided in part that his employer would pay $150,000 “‘in full and final settlement of all claims under the Workers' Compensation Act” for injuries resulting from the accident. Id. at 213. Further, Gallagher was to resign and that it was “intended to resolve in good faith any existing or potential disputes or claims arising out of (Gallagher's) relationship and separation” from the employer. id. at 213-14, Separately, Gallagher and his wife filed a personal injury lawsuit against the driver of the other vehicle and his employer, reaching a settlement in that case too. Id. at 214. Shortly thereafter, Gallagher's employer sought to intervene, asserting a lien against the settlement proceeds pursuant to section 5(b) of the Workers' Compensation Act. That section provides that an employer who has paid workers’ compensation to an employee may claim a lien upon “any award, judgment or fund out of which such employee might be compensated” by a third party for the injury. /d. at 215-16 (quoting 820 ILCS 305/Sb (West 2004)). In response to motion to intervene, Gallagher and the defendants argued that his employer had waived its statutory right to assert 2 workers’ compensation lien. Id. at 15216. The employer responded that the settlement contract contained “no specific waiver” of its right to assert a lien. Id, The Illinois Supreme Court rejected the waiver argument. First, the court declined to find a waiver in the settlement contract's language, which stated that the employer was “to pay Gallagher $150,000 ‘in full and final settlement of all claims under the Workers’ Compensation Act for injuries allegedly incurred.” Id. at 234. The court reasoned that: “{E]ven if the language of the settlement contract did constitute a general release, it would not be sufficiently explicit to waive (the employer's] workers’ compensation lien. Considering the integral role the workers’ compensation lien plays in the workers’ compensation scheme, we do not believe general language is sufficient to effect such a waiver. On the contrary, the waiver of a workers’ compensation lien must be explicitly stated. [Citation.] Here, the language of the settlement contract contains no mention of [the employer's] workers’ compensation lien and therefore is not sufficiently explicit to waive the lien.” Id. at 238. The Gallagher court concluded, “there must be something more than general waiver language before the lien can be considered waived.” Id. at 239. “[ijt is not uncommon to require the explicit waiver of certain rights. In various other contexts, where an important statutory right is at issue, an explicit manifestation of intent is required before the right in question can be deemed waived. (Citations.]” (Emphasis added.) Id. Our supreme court similarly found no waiver in the resignation agreement's, language that it was “/intended to resolve in good faith any existing or potential disputes or claims arising out of Employee’s relationship and separation with employer.” (Emphasis added by Gallagher court.) /d. at 242. The court found that, “like the language 16of the settlement contract, it contains no specific reference to [the employer's] workers’ compensation lien. As a result, itis not sufficiently explicit to effectuate the waiver of the lien.” Id.; see also Burgess v. Brooks, 376 lll. App. 3d 842, 846 (2007) (holding, pursuant to Gallagher, that a settlement agreement was insufficient to constitute a waiver where it “fallfed] to specifically mention the employer's right to a lien pursuant to section 5(b) of the [Worker’s Compensation] Act.”). Other Illinois reviewing courts have similarly held. See, e.g., In re Marriage of Tutor, 2011 IL App (2d) 100187, 41 15 (quoting Gallagher, 226 Ill. 2d at 238, and stating “The explicit-waiver rule provides that, where an important right is at issue, “an explicit manifestation of intent is required before the right in question can be deemed waived”); Village of Bellwood v. American National Bank and Trust Company of Chicago, 2011 IL App (1st) 093115, 4] 25 ("The agreed orders made no reference to the statutory right to abandon or that Bellwood specifically waived that right. *** Had the parties intended for Bellwood to waive its statutory right to abandon, a provision stating such should have been included.”); Elsener v. Brown, 2013 IL App (2d) 120209, 41 85 (“[W]e assume that, if the parties had intended to preclude plaintiff from seeking attorney fees or interest, that intention would have been overtly expressed in the employment contract. No such manifestation of intent appears in the uniformly general language above"); In re Marriage of Kolesar, 2012 IL App (1st) 102448, 414] 20-21 (stating “[s]ince the Marriage Act requires that interest be paid on orders for child support, and the agreed orders at issue did not contain an explicit waiver by Kolessar of her right to the statutory interest, the trial court erred in failing to award interest on the arrearages,” and further holding “if a party 7intends to waive its statutory right a provision stating such should be included in the agreement”) Here, the July 20, 2018 agreement makes no reference whatsoever to section 2.1- 6{b). Consequently, the Court cannot conclude that Commander Carlson’s execution of that agreement entailed “an affirmative act, [that was] consensual, and consist(ed] of an intentional relinquishment of a known right” that included a “knowing, voluntary, and intentional” waiver of the statute. © Commander Carlson did not “Resign” or “Retire” Review of the Commission's decision with respect to whether Commander Carlson was “terminated” or “resigned and retired” presents a question of fact, which this Court reviews pursuant to the “manifest weight of the evidence” standard. Plaintiffs assert that the Commission’s decision was erroneous because it does not have jurisdiction over “resignations.” Pl. Memo. at 8-9. It is clearly established that a resignation by a police officer is irrevocable only when the notice of resignation is served on an official authorized to fill the vacancy created by his termination. Weber v. Board of Fire & Police Commissioners, 204 Ill. App. 34 358, 361 (1990). In this case, the Commission, or perhaps the chief, were the officials authorized to fill a vacancy at the rank of commander. There is no evidence in the record that Commander Carlson tendered his resignation to the commissioners or the chief. Plaintiffs assert alternatively that Commander Carlson's application for benefits to the pension board constituted an irrevocable resignation or retirement. It did not. 18Preliminarily, and for the reasons more fully set forth above, the Court agrees that Commander Carlson was terminated. Every witness that testified in the underlying hearing testified that Commander Carlson was terminated. The residency extension noted that Commander Carlson would be “terminated.” Commander Carlson did not retire when he applied for benefits effective the day after her termination. “The [Pension] Board's role is not to control the question of whether an officer remains on the service roles; rather, its relevant role is merely to review whether an applicant's employment status and other circumstances entitle him to pension benefits.” Swiatek v. Bensenville Police Pension Board, 205 Ill. App. 3d 85, 86-87 (1990). Likewise, the Village of Mokena Pension Board does not determine Commander Carlson’s employment status. The administrative record establishes that Commander Carlson filled out an application to receive pension benefits after his effective termination date. The Village informed Commander Carlson of his termination date a year prior. The administrative record is devoid of any evidence that Commander Carlson submitted a notice of resignation to the chief of police, the Commission, the Mayor or Board of Trustees. The Commission's finding that Commander Carlson was terminated was not against the manifest weight of the evidence presented. Moreover, the Court rejects any notion of a constructive resignation or an abandonment of duties. d. The Commission Did Not Exceed its Statutory Authority Review of the Commission's decision with respect to whether the Commission exceeded its statutory authority presents a question of law, which this Court reviews de novo. Plaintiffs’ final argument asserts that the Commission lacked authority to make 19“statutory determinations and legal conclusions” or to “revers[e] the Mokena Pension Board without any legal basis.” They argue that Section 10-2.1-17 does not provide the Board with authority to hear appeals regarding r ements or voluntary resignations. As noted above, it was not clearly erroneous to determine that Commander Carlson was terminated. See Pl. Ex. 3; AR S79 at 170; AR 4 4] 16; AR 547-48 at 41:22-45:11; AR 562 at 104-05; AR 481; AR 560 at 96; AR 562 at 104; AR 563 at 105; AR 579 at 169-70; AR S88 at 205. Commander Carlson did not submit a notice of resignation to an official with authority to fill his vacancy. Even assuming, arguendo, the Commission determined Carlson had retired, the Commission was vested with the authority to reinstate Commander Carlson. Plaintiffs’ restatement of their arguments with respect to “appointments” versus “promotions” are unsupported by any citation to authority and thus unavailing, Notwithstanding, the record establishes that Commander Carlson was “promoted” to the rank of Commander by way of an “appointment” by the chief. It was well within the Commission’s purview to make factual and legal determinations on the facts presented and relevant law. The Commission did not exceed its statutory authority. B. The Motion to Enforce As previously mentioned, the Commission’s November 13, 2020 order required “that Commander Carlson be reinstated to the position of Commander effective July 1, 2020, that he should be made whole with the salary and benefits of a 27 year veteran with 2 years in grade as a Commander including any and all backpay, that his health insurance benefits should be reinstated and that he should be repaid for any health 20insurance amounts he expended after the termination date and he should lose no departmental seniority or creditable service time.” However, there are some minor disputes revolving around what would make Commander Carlson “whole” again. With regard to backpay, the Court agrees with Commander Carlson. He should be for backpay from July 1, 2020 through his reinstatement date at a rate of $61.5269 per hour. To the extent the Village seeks a setoff because Commander Carlson received pension benefits during that period, the Court agrees that neither side ought to be entitled to an improper windfall. Here, a windfall is arguably going to occur regardless of what the Court does. If The Court finds the Village must pay Carlson, and Carlson already collected from the pension fund, that is a windfall in Carlson’s favor. But, it is at the expense of the pension fund and not the Village. On the other hand, if the Court awards the requested setoff, that is a windfall in favor of the Village and at the expense of (again) the pension fund. In this case, money is owed by the Village to Commander Carlson; Carlson may indeed be obligated to pay money back to the pension fund, but the pension fund is not a party to this case and it will be up to the pension fund to pursue its remedies (to the extent it has any) against Commander Carlson. (Although Carlson seems to admit that he will need to reimburse the pension fund.) The Village's setoff request on this issue is denied. Regarding insurance premiums, Commander Carlson seeks $5,520.99 for health insurance premiums. However, the Court agrees that the Village is entitled to a $662 setoff for what would have been a 12% employee contribution. Accordingly, Commander Carlson is entitled to $4,858.99 for insurance premiums. 21On the issue of postjudgment interest, the Court agrees that Commander Carlson is entitled to it. Even though he emailed the Village in November 2021 asking them to not make such payments, the email is clearly based on an accounting concern, and is not a waiver of his right to postjudgment interest. Finally, the Court agrees with Commander Carlson and finds that the Village must credit Commander Carlson with 399.5 hours of sick time. IV, CONCLUSION With regard to the complaint for administrative review, the Commission's final administrative decision of November 13, 2020 is affirmed in its entirety, With regard to the motion to enforce, the motion is granted as set forth above. The Court thanks all counsel of record for an excellent presentation of the issues. Clerk to notify. ENTERED: Date: May 23, 2022 22