Opinion
No. 2-14-1070
05-26-2015
THE VILLAGE OF WESTMONT, Plaintiff-Appellant, v. ILLINOIS MUNICIPAL RETIREMENT FUND; ILLINOIS MUNICIPAL RETIREMENT BOARD OF TRUSTEES; and NATALIE COOPER, JOHN PIECHONCINSKI, WILLIAM STAFFORD, GWEN HENRY, JEFFREY STULIR, SHARON THOMPSON, SUE STANISH, and TOM KUEHNE, all in their official capacities as members of the Illinois Municipal Retirement Fund Board of Trustees, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Du Page County. No. 2014-MR-520 Honorable Bonnie M. Wheaton, Judge, Presiding. JUSTICE JORGENSEN delivered the judgment of the court.
Presiding Justice Schostok and Justice Birkett concurred in the judgment.
ORDER
¶ 1 Held: The IMRF Board and the circuit court correctly upheld the IMRF Staff's removal of Westmont's Group IV status, thereby requiring Westmont to enroll its part-time firefighters who worked 1,000-plus hours per year, for whom Westmont did not provide a local pension, in IMRF's pension fund. The reclassification was consistent with the Illinois Pension Code, and the prior classification, which had resulted in a coverage gap for the "part-time, 1000-plus" firefighters, had not been consistent with the Pension Code. Affirmed. ¶ 2 In 2013, it came to the attention of the Illinois Municipal Retirement Fund (IMRF) Staff that appellant, the Village of Westmont, had not enrolled its part-time firefighters who worked 1,000-plus hours per year in IMRF and did not otherwise provide them with a local pension fund. As such, IMRF Staff reclassified Westmont's "part-time, 1000-plus" firefighters from "IMRF Authorized Agent Manual Group IV Firefighters" (said firefighters being excluded from IMRF participation, because, under IMRF's reading, their employing municipalities do provide them with a local pension fund) to "IMRF Authorized Agent Manual Group VI Firefighters" (said firefighters being required to participate in IMRF, because, under IMRF's reading, their employing municipalities do not provide them with a local pension fund). The IMRF created each of these "Group" classifications in its IMRF Authorized Agent Manual (IMRF manual or, simply, manual), which set forth the IMRF's administrative rules, and which the IMRF had drafted to explain and carry out pertinent dictates of the Illinois Pension Code. 40 ILCS 5/1-101 et seq. (West 2014). ¶ 3 Westmont appealed the Staff's reclassification to the appellees, the IMRF Board of Trustees. It argued that, under a plain reading of the manual, its part-time, 1000-plus firefighters fit into Group IV, and that, in any case, IMRF Staff was estopped from reclassifying its part-time, 1000-plus firefighters. The Board affirmed the Staff's reclassification from Group IV to Group VI. It stated that allowing a Group IV classification conflicted with the requirement of the Pension Code that municipalities such as Westmont, who have not employed at least one full-time firefighter, and, therefore, have not provided a local pension for its firefighters (40 ILCS 5/4-101, 4-103 (West 2014)), must enroll its part-time, 1000-plus firefighters in the IMRF pension (40 ILCS 5/7-109, 7-137(a), (e) (West 2014)). Westmont appealed to the circuit court. The circuit court affirmed the Board. Westmont now appeals to this court, and, because we agree that allowing Westmont to remain a Group IV municipality would conflict with the Pension Code, we affirm the Board and the circuit court.
¶ 4 I. BACKGROUND
¶ 5 In 1938, Westmont formed a village fire department, and it utilized an all-volunteer force. In 1961, Westmont joined the IMRF. At that time, Westmont did not have any full-time firefighters, and, because it was not required, it had not formed a local fire pension fund under Article IV of the Illinois Pension Code. 40 ILCS 5/4-101 et seq. (West 2014). Article IV of the Pension Code requires municipalities between 5,000 and 500,000 in population having full-time paid firefighters to create their own local pension fund (as opposed to Article VII of the Pension Code, which covers the IMRF pension fund). 40 ILCS 5/4-101, 4-103(1) (West 2014). ¶ 6 The IMRF initially classified Westmont's fire department as a Group IV department. Group IV is a designation set forth by the IMRF manual. The manual states that Group IV departments are exempt from IMRF participation:
"These governmental units were under 5,000 in population at the time they came under Social Security by entering into an agreement with the State Social Security Unit, and they had not established a fire pension fund by referendum at the time. They now have a population of 5,000 or more, and/or have formed a fire pension fund.Thus, a municipality fits into the Group IV category if it crosses the 5,000 population threshold and/or it had formed a local pension fund (under Article IV, as opposed to participating in an Article VII IMRF pension fund). Westmont fit into Group IV solely because it crossed the 5,000 population threshold. Again, Westmont had not formed a local fire pension fund under Article IV, because it was exempted from forming an Article IV local fund where it did not have a single full-time paid firefighter on the force. ¶ 7 By the late 1980's to early 1990's, Westmont no longer had any volunteer firefighters on staff. Rather, its force consisted solely of part-time, paid employees. The force included firefighters who worked over 1,000 hours per year (i.e., averaging over 20 hours per week if one assumes two weeks of vacation time), but no firefighter carried full-time status (which, depending on differing representations in the record, is either 36 or 39 hours per week). Westmont was unsure whether it was required to participate in IMRF on behalf of this subgroup of firefighters, i.e., those who worked over 1,000 per year but were still classified as part-time. ¶ 8 On the one hand, Westmont knew that IMRF had given it a Group IV classification, and Group IV departments were not required to participate in IMRF. On the other hand, Westmont recognized that, collectively, subsections 7-137(a) and 7-137(e) of the Pension Code require all municipal employees who work 1,000 or more hours per year to participate in IMRF:
No firefighters (volunteers, part-time, etc.) in these governmental units are covered by IMRF even though they do not participate in your fire pension fund." (Emphasis added.)
"(a) The persons described in this paragraph (a) shall be included within and be subject to this Article and eligible to benefits from this fund, beginning upon the dates hereinafter specified:
1. Except as to the employees specifically excluded under the provisions of this Article, all persons who are employees of any municipality (or instrumentality thereof) or participating instrumentality on the effective date of participation of the municipality or participating instrumentality beginning upon such effective date.
(e) Any participating municipality or participating instrumentality, other than a school district or special education joint agreement created under Section 10-22.31 of the School Code, may, by a resolution or ordinance duly adopted by its governing body, elect to exclude from participation and eligibility for benefits all persons who are employed after the effective date of such resolution or ordinance and who occupy an office or are employed in a position normally requiring performance of duty for less than 1000 hours per year ***." (Emphases added) 40 ILCS 5/7-137(a), (e) (West 2014).In other words, while subsection (a) states that all employees of participating municipalities must participate in IMRF, subsection (e) allows for those municipalities to exclude employees working less than 1,000 hours per year from IMRF participation. There is no such exclusion for employees working 1,000-plus hours per year. ¶ 9 Westmont was also aware that section 7-109(2)(b) of the Pension Code set forth an exclusion to the general rule that the 1000-plus employees be enrolled in IMRF; that is, if the employing municipality is "required by law" to establish an Article IV local fund, by virtue of having at least one full-time firefighter, for example (40 ILCS 5/4-101, 103) (West 2014), then, IMRF coverage is not needed and the municipality need not participate in IMRF on behalf of its firefighters. 40 ILCS 5/7-109(2)(b) (West 2014). Here, of course, the section 2-109(2)(b) exception did not apply, as Westmont did not have at least one full-time firefighter and did not set up a local fund. Thus, while the manual excluded Westmont's fire department from IMRF participation through the Group IV classification, the Pension Code required its employees who worked 1,000-plus hours per year to participate through sections 7-137, 7-109(2)(b), 4-101, and 4-103. ¶ 10 As a result of this discrepancy, in 1992, Westmont's (then assistant) village manager, Ronald Searl, telephoned an IMRF field representative, Tecya Anderson, to determine whether Westmont was required to participate in IMRF on behalf of its part-time, 1000-plus firefighters. Searl believed he could trust Anderson's information, because the IMRF manual states that "IMRF Field Representatives are available to assist you and your members. Seven field representatives across the state are available to answer questions one-on-one, speak to groups about IMRF benefits and law, provide assistance with reporting errors, and much more." Anderson assured Searl that Westmont's part-time, 1000-plus firefighters were excluded from IMRF participation due to Westmont's correct Group IV classification in the manual. Searl requested written confirmation of this fact, and Anderson stated that the manual's description of a Group IV municipality provided all the written confirmation Westmont would need. Anderson further told Searl that the Group IV classification could not change. As a result of Anderson's oral representations, Westmont did not enroll its part-time, 1000-plus firefighters in IMRF. Westmont relied on Anderson's representations in structuring its fire department, which continues to be comprised solely of part-time, as opposed to full-time, paid firefighters, some of whom work 1000-plus hours per year but none of whom participate in the IMRF pension fund. ¶ 11 In 2013, Westmont became involved in an unrelated proceeding concerning the status of full-time administrators, not firefighters, within the fire department. Near the conclusion of that proceeding, apparently due to the scrutiny placed on Westmont's fire department, IMRF general counsel became aware that Westmont's part-time, 1000-plus firefighters were not covered by any pension plan, either a local fund or an IMRF pension plan. Westmont had not formed its own Article IV local pension fund for them, because sections 4-101 and 4-103 of the Code only required such a fund to be created if the municipality had a population of between 5,000 and 500,000 (which it did) and had at least one full-time paid firefighter (which it did not). 40 ILCS 5/4-101, 4-103 (West 2014). Likewise, by virtue of its Group IV manual status, Westmont did not participate in an Article VII IMRF pension fund. In IMRF's view, this coverage gap seemed particularly glaring where its manual specifies that Group III municipalities (i.e., those with populations of less than 5,000, who do not have an Article IV local pension fund) must enroll their part-time, 1000-plus firefighters in the IMRF pension fund. Hence, if small, Group III municipalities with fewer than 5,000 residents are expected to pay for IMRF coverage for its part-time, 1000-plus firefighters when a local fund does not exist, there would be no reason to allow a larger Group IV municipality, such as Westmont, to be exempt from providing IMRF coverage for its part-time, 1000-plus firefighters when a local fund does not exist. ¶ 12 Between March and August 2013, due to this gap in coverage, IMRF Staff unilaterally amended the IMRF manual to create a new group, Group VI. Group VI covered municipalities, like Westmont, that have a population of over 5,000 but do not have their own fire pension fund, because they do not employ at least one full-time firefighter, and, therefore, are not required by law to have their own fund. These municipalities must enroll their part-time firefighters who work 1,000-plus hours per year in IMRF. ¶ 13 IMRF sent Westmont at least two letters explaining the reclassification. One of these letters, dated March 18, 2013, stated that Westmont did not fit the IMRF manual's description of a Group IV municipality, because it did not both cross the 5,000 population threshold and provide its firefighters with a local pension. (Again, in actuality, the IMRF manual states that Group IV municipalities have crossed the 5,000 population threshold and/or provide its firefighters with a local pension.) A second letter, dated August 28, 2013, did not mention the IMRF manual and instead explained that the Pension Code required Westmont to enroll its part-time, 1000-plus firefighters in the IMRF pension. ¶ 14 In October 2013, Westmont appealed the IMRF Staff's reclassification to the IMRF Board of Trustees. Westmont was not happy with the reclassification, because it would incur a "high" corresponding cost for the covered firefighters' IMRF participation, and it had not budgeted or planned for those costs. It estimated that costs stemming from the reclassification to be in the multimillion dollar range. Westmont presented Searl's affidavit, who attested, as set forth above, that, as early as 1992, he asked IMRF representative Anderson whether Westmont's part-time firefighters who worked 1000-plus hours needed to participate in IMRF, particularly where they remained uncovered by a local pension fund. Anderson informed formed him that, as a Group IV municipality, Westmont's firefighters could not participate in IMRF. Anderson further informed him that the groups set forth in the manual could not change, and he relied on this representation in structuring the fire department. ¶ 15 At hearing, in opening, Westmont explained, without later showing supporting evidence, that, it was not that it wished for its part-time firefighters to go without a pension; rather, it urged, most of its force consisted of firefighters from neighboring municipalities who had likely secured a pension through those municipalities. After opening remarks, Searl testified consistent with his affidavit. IMRF did not challenge Searl's recollection of his 1992 conversation with Anderson. Instead, IMRF asked Searl why he did not obtain further confirmation of Anderson's answer in writing, preferably from an attorney. Searl answered that he had requested written confirmation, but Anderson told him the IMRF manual was sufficient. Westmont's closing argument largely concerned estoppel and its purported reliance on Anderson's 1992 oral assurances. The IMRF Board denied Westmont's appeal. The Board acknowledged without discussion that Group IV included municipalities who had crossed the 5,000 population threshold and/or had formed a local pension for its firefighters. It stated, however, that allowing Westmont to remain in Group IV conflicted with the requirement of the Pension Code that municipalities such as Westmont, who have not employed at least one full-time firefighter, and, therefore, have not provided a local pension for its firefighters (40 ILCS 5/4-101, 4-103 (West 2014)), must enroll its part-time, 1000-plus firefighters in the IMRF pension (40 ILCS 5/7-109, 7-137(a), (e) (West 2014)). The circuit court affirmed, and this appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, Westmont argues that: (1) it fits into the IMRF manual's description of a Group IV municipality, and, therefore, it is not required to enroll its part-time, 1000-plus firefighters in the IMRF pension; (2) IMRF is estopped from removing Westmont from Group IV status, where, in 1992, when presented with this exact question, an IMRF representative orally assured Westmont that it would remain in Group IV and did not have to enroll its part-time, 1000-plus firefighters in the IMRF pension; and (3) allowing Westmont to remain in Group IV and abstain from enrolling its part-time, 1000-plus firefighters in IMRF, even though it has not established its own local pension fund, does not violate the Pension Code. For the reasons that follow, we agree that Westmont fits into the IMRF manual's description of a Group IV municipality. However, allowing Westmont to remain in Group IV violates the Pension Code, and, because the doctrine of estoppel cannot be invoked where the status quo violates statutory requirements, we must reject Westmont's estoppel argument. ¶ 18 Both Westmont's argument concerning how to read the IMRF manual and its argument concerning statutory compliance involve questions of construction and deference to the Board. The same rules of construction apply to administrative rules and regulations as are applied to statutes. Hetzer v. State Police Merit Board, 49 Ill. App. 3d 1045, 1047 (1977). When construing a statute, the primary objective is to give effect to the intent of the legislature. Chicago Teacher's Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 15. The language of the statute is the best indicator of legislative intent, and the language should be given its plain and ordinary meaning whenever possible. Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 552 (2009). Each word, clause, and sentence should be given effect so as not to be rendered superfluous. Chicago Teacher's Union, 2012 IL 112566, ¶ 15. Generally, we afford substantial deference to an agency's construction. Chamberlain v. Civil Service Commission of the Village of Gurnee, 2014 IL App (2d) 121251, ¶ 24. However, where an agency drastically departs from its own prior practice, an argument may be made that the reliability of the agency's construction has been compromised such that it should be entitled to less deference. See, e.g., Business & Professional People for the Public Interest v. Illinois Commerce Comm'n, 136 Ill. 2d 192, 228 (1989) (heightened degree of appellate scrutiny is appropriate where there is a drastic departure from past Commission practice); cf. Peoples Gas Light & Coke Co. v. Illinois Commerce Comm'n, 175 Ill. App. 3d 39, 51 (1988) (stating, in the context of a Commission case, that an agency is not bound by its prior handling of similar, or even the same, issues). Moreover, where the language of the statute is completely clear and unambiguous, deference is not necessary and a court may interpret the statute de novo, without resort to other aids of construction and without deference to the agency's decision. Boaden v. Department v. Law Enforcement, 171 Ill. 2d 230, 239 (1996) (declining to defer to the agency's interpretation where the statute was not ambiguous). Additionally, we keep in mind that, "[w]hen an appeal is taken to the appellate court following entry of judgment by the circuit court on administrative review, it is the decision of the administrative agency, not the judgment of the circuit court, which is under consideration." Provena Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368, 386 (2010).
¶ 19 A. IMRF Manual
¶ 20 Westmont first argues that a plain reading of the IMRF manual establishes that it belongs in Group IV, and is, therefore, not required to enroll its firefighters in the IMRF pension. Westmont appears to draw upon IMRF Staff's March 2013 written explanation as to why Westmont did not belong in Group IV. Again, that explanation stated that, unlike Westmont, Group IV municipalities have crossed the 5,000 population threshold and are required by law to have formed an Article IV pension. For the reasons that follow, we agree that, in March 2013, IMRF Staff did not provide Westmont with the correct explanation of why Westmont's part-time, 1000-plus firefighters must participate in IMRF, and that, indeed, the IMRF manual's description of Group IV municipalities reads to include municipalities such as Westmont. ¶ 21 Here, we find the plain language of the manual regulation to be clear and unambiguous. Therefore, even if deference to the IMRF's interpretation in the (rather unofficial) March 2013 letter were warranted, we would not be swayed. Again, the manual defines Group IV municipalities in pertinent part as those that "now have a population of 5,000 or more, and/or have formed a fire pension fund." Reading the manual as IMRF Staff set forth in its March 2013 explanations, i.e., those municipalities that "now have a population of 5,000 or more and have formed a fire pension fund," renders the word "or" superfluous. It is, therefore, incorrect to ignore the word, "or." See, e.g., Chicago Teacher's Union, 2012 IL 112566, ¶ 15. ¶ 22 "As used in its ordinary sense, the word 'or' marks an alternative indicating the various members of the sentence which it connects are to be taken separately." People v. Frieberg, 147 Ill. 2d 326, 349 (1992). As such, the IMRF manual defines Group IV municipalities as those who fit any one of the following patterns: (1) have crossed the 5,000 population threshold but have not formed an Article IV fire pension fund; (2) have not crossed the 5,000 population threshold but have formed an Article IV pension fund; or (3) have both crossed the 5,000 population threshold and have formed an Article IV pension fund. Westmont fits into the first pattern. It has crossed the 5,000 population threshold but has not formed an Article IV fire pension fund. A plain reading of the IMRF manual establishes that Westmont fits in Group IV. ¶ 23 While we agree with Westmont that a plain reading of the manual establishes that it fits in Group IV, we now must consider whether this reading of the manual conflicts with the Pension Code and, if it does not, whether IMRF is estopped from reclassifying Westmont as a Group VI municipality.
¶ 24 B. Estoppel and Statutory Compliance
¶ 25 Westmont next argues that the IMRF Staff was estopped from removing its Group IV status. Westmont contends that, in 1992, it expressly asked IMRF field representative Anderson whether it was required to enroll in IMRF its part-time firefighters who worked 1000-plus hours per year where it, Westmont, did not have an Article IV local pension fund. Anderson answered in the negative, and Westmont structured its fire force accordingly. Indeed, an agency's custom and practice in setting its rules may prohibit it from changing them. See, e.g., Holland v. Quinn, 67 Ill. App. 3d 571, 574 (1978). For example, in American Oil Company v. Mahin, 49 Ill. 2d 199, 204-06 (1971), the supreme court held that the Department of Revenue could not revise its own rule, where that rule had been consistently and uniformly applied for a substantial period of time and where that rule was consistent with the governing statute. ¶ 26 However, estoppel does not apply where the agency regulation upon which the plaintiff relied conflicts with a statute. Vestrup v. Du Page County Election Commission, 335 Ill. App. 3d 156, 166-67 (2002) (refusing to apply the doctrine of estoppel where it would prevent the enforcement of law). An administrative agency's mistaken interpretation of a statute cannot preclude a court from enforcing that statute. Id. Westmont concedes this principle. As such, first, we must decide whether allowing Westmont to remain a Group IV municipality under the IMRF manual conflicts with the Pension Code's requirement that part-time firefighters who work 1000-plus hours per year be enrolled in IMRF where the employing municipality does not provide a local fund. If we find that it does, we need not consider Westmont's estoppel argument any further. ¶ 27 Westmont implicitly concedes several points in its reply brief: (1) per statute, part-time firefighters who work more than 1,000 hours per year must participate in IMRF (40 ILCS 5/7-137(a)(1), (e) (West 2014)); (2) Section 7-109(2)(b) specifically excludes firefighters in "municipalit[ies] in which a [local] pension fund is required by law to be established for *** firefighters" (40 ILCS 5/7-109(2)(b) (West 2014) (emphasis added); and (3) Westmont is not "required by law" to establish a local pension fund, because it does not employ at least one full-time firefighter (40 ILCS 5/4-101, 103(1) (West 2014)), and, therefore, does not fall under the section 7-109(2)(b) exclusion. ¶ 28 Westmont argues that, even though its part-time firefighters who work more than 1,000 hours per year do not fall under the section 7-109(2)(b) statutory exception to IMRF participation, they do fall under the Group IV manual exception. We reject this argument. ¶ 29 We will not make this issue more difficult than it is. Section 7-137(a)(1) clearly states that those falling under the umbrella of IMRF participation may only be excluded as expressly provided by statute: "The persons described in this paragraph (a) shall be included within and be subject to this Article and eligible to benefits from this fund *** (1) except as to the employees specifically excluded under [Article VII]." 40 ILCS 7-137(a)(1) (West 2014). Even if a fair question could be raised as to the Board's authority to exclude certain groups from the legislature's mandate, and we do not believe one could, here, the statute expressly states that any exclusion must be set forth by statute ("except as to the employees specifically excluded under [Article VII])". As such, all exclusions to IMRF participation must be set forth in the statute. The statute does not allow for an independent, "second" exclusion under the manual. The statute does not allow for the manual's exclusion of Westmont's part-time, 1000-plus firefighters from IMRF participation. ¶ 30 In sum, Westmont's entire appeal seems to come down to whether the IMRF can, perhaps unintentionally, create and be bound by a non-statutory exclusion to the general rule that municipalities must enroll their part-time, 1000-plus firefighters in the IMRF pension where the municipality has not created an Article IV local pension. Because it cannot, the Group IV manual exclusion, as applied to Westmont, cannot have the force of law. Westmont cannot rely on the doctrine of estoppel to continue to receive an exemption that conflicts with the statute, and, therefore, we will not consider further Westmont's estoppel argument. ¶ 31 We do empathize to some degree with Westmont, in that, as early as 1992, it sought oral assurances from IMRF that, as a Group IV municipality, it would not have to enroll its part-time, 1000-plus firefighters in the IMRF pension, and, because it did not employ at least one full-time firefighter, it would not have to provide its firefighters with a local pension. As IMRF conceded at oral argument, the manual contained an unfortunate mistake. Still, it seems to us that a more apt characterization of the 1992 conversation is that, as a result, IMRF erroneously and temporarily allowed Westmont's coverage gap to go unnoticed. At this point, even if IMRF supported Westmont's interpretation, this court would still interpret the statute to require Westmont to provide IMRF coverage for its part-time, 1000-plus firefighters. Westmont argued at hearing that, most likely, its part-time firefighters had already secured a pension from a different employing municipality and were only picking up extra hours with Westmont. However, in a sense, the legislature has already hedged against Westmont's stated "most likely" odds, i.e., that a part-time employee would have secured another pension through employment elsewhere, by creating the 1000-hour cut-off. Westmont cannot be exempted from the statute's requirements.
In its opening brief, Westmont argued that section 7-109(2)(b) did exclude its part-time, 1000-plus firefighters from participation in IMRF. 40 ILCS 5/7-109(2)(b) (West 2014). Again, section 7-109(2)(b) excludes municipalities who are "required by law" to form an Article IV local pension. Id. However, section 4-103 plainly states that municipalities such as Westmont, that are between 5,000 and 500,000 in population are required by law to form an Article IV local fire pension if they hire at least one full-time firefighter. 40 ILCS 5/4-103(1) (West 2014). Westmont has not. Therefore, it is not required by law to form an Article IV fire pension, and its part-time, 1000-plus firefighters are not excluded under section 7-109(2)(b) from participation in IMRF. Westmont's citation to Holmes v. Illinois Municipal Retirement Fund, 185 Ill. App. 3d 282, 284 (1989), is off-point. That case concerned an individual policeman's eligibility for IMRF where his employing municipality had rejected him from its own Article III fund, whereas the instant case involves the coverage of an entire class of firefighters (part-time, 1000-plus) and a determination of whether those firefighters belong in an Article IV local fund or the Article VII IMRF fund.
¶ 32 III. CONCLUSION
¶ 33 For the aforementioned reasons, we affirm the judgments of the Board and circuit court. ¶ 34 Affirmed.