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Officer Down

Monday, November 15, 2010

PENSION: What felony convictions require forfeiture of pension benefits?

OBKC&G

by Donald L. Potts

Article 3 and Article 4 of the Illinois Pension Code both provide that no pension benefits can be paid to a person who is convicted of any felony “relating to or arising out of or in connection with” his or her service as a police officer or firefighter. (40 ILCS 5/3-147, 4-138) Determining when a felony conviction relates to, arises out of or is in connection with a person’s public employment has long been an issue. In two recent opinions, the Attorney General has expanded the nexus between a felony and public employment.

The most famous recent case involving felony forfeiture of pension benefits is former Governor George Ryan. In that case, it was clear that his conviction was related to his public employment; the only issue was which of the public jobs he had held would be affected. In other words, the issue before the court was whether he would lose all, or only some, of his pension benefit. The trial court ruled that Ryan must forfeit his entire pension benefit, but the appellate court reversed the decision in 2009, holding that Ryan should only forfeit the pension benefit he earned as Secretary of State and Governor. Earlier this year, the Illinois Supreme Court reversed the appellate court decision and held that Ryan must forfeit his entire pension benefit. (Ryan v. The Board of Trustees of the General Assembly Retirement System et al., 236 Ill.2d 315 (2010))

In another recent case, the Cook County Circuit Court ruled that a Chicago firefighter, who was convicted of six counts of arson, could keep his pension because he set the fires while off duty, without the use of any fire department equipment, and the arsons did not relate to his service as a firefighter. It is unclear whether this case will be appealed.

In two other recent matters, the Illinois Attorney General has issued opinions slightly expanding the nexus between a felony conviction and public employment. Both cases involved employees of the Illinois Emergency Management Agency (“IEMA”) who were members of the State Employees’ Retirement System (“SERS”). SERS has a felony forfeiture provision similar to those in Articles 3 and 4 of the Illinois Pension Code.

Both employees were convicted of possession of child pornography. Additionally, one employee was convicted of distribution of child pornography and the other was convicted of official misconduct. All three offenses are felonies. In both cases, child pornography was found on the employee’s IEMA computer. With the exception of the official misconduct charge, neither employee’s conviction was related directly to the employee’s public duties. Rather, the only connection was that the employees committed the crimes using IEMA property while at work. The Attorney General opined that, even without an official misconduct conviction, there was sufficient connection to the employees’ public duties to warrant forfeiture of their pension benefits. The Attorney General reasoned that:

    As a State employee, Mr. Chambers was under a duty to use public property only for a lawful public purpose. In his position … Chambers misappropriated the State’s computers and property and improperly used State work time to commit the depraved act for which he was convicted. Were it not for his employment with IEMA, Chambers would not have been in a position to use State property to engage in this violation of the public trust. This is precisely the type of reprehensible misconduct which [the felony forfeiture provision] was intended to discourage.

When a member of a pension fund is convicted of a felony relating to, arising from or in connection with his or her service, the pension board must carefully examine the circumstances surrounding the conviction and the relevant section of the Illinois Pension Code to determine whether benefits must be terminated. It may not be immediately obvious whether a felony conviction warrants forfeiture of a person’s pension benefits. Based on the Attorney General’s opinions, even felony convictions that appear to have no connection to a person’s employment may be connected if the felony was committed on duty or with public resources.

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