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THIRD DIVISION
August 29, 2001

The question in this case is whether a retired Chicago policeofficer is entitled to receive his annuity and pension benefitsdespite being convicted of two felony drug offenses. The answerrequires us to explore the relation or connection, if any,between the felonies and his service as a policeman. We concludethis former police officer is not entitled to benefits.

FACTS

Neither party disputes the underlying facts of this case.

In 1992, Chicago police officer Raymond Siwek was convictedof two counts of unlawful possession of a controlled substance. At trial, the State's evidence showed Siwek met with a friend,Brian Marchese, on May 6, 1992. Siwek gave Marchese $12,500 inorder to purchase narcotics. Marchese later met with Weiss, anundercover detective, and paid Weiss for cocaine. Marchese wasarrested.

Marchese then became an informant for the police. He agreedto participate in a trap to expose Siwek as the source of hisfunds. Marchese contacted Siwek and organized another drugpurchase. Siwek was arrested when he came to Marchese's houseand bought cocaine from Weiss.

During his criminal trial, Siwek testified he became aChicago police officer in 1968. In 1971, Siwek was assigned tothe "special operations group," a tactical unit assigned to highcrime areas in Chicago. After spending several years in thisunit, Siwek was transferred to the gang crimes unit. Siwektestified his work in the gang crimes unit included narcoticswork and "undercover buys." In 1980 or 1981, Siwek wastransferred to the organized crime division within the policedepartment. His work in that unit included arresting large-scaledrug dealers. Siwek testified he also made "undercover buys" aspart of his duties in this unit.

In early 1983, Siwek was promoted to the rank of detectiveand transferred to the violent crimes unit. Siwek's "specialty"within that division was in narcotic-related homicides. In 1987,Siwek was assigned to the narcotics section for the deputydirector of the U.S. Attorney's office.

In 1989, Siwek was transferred to the property crimes unitof the Chicago Police Department. Siwek testified he continuedto be involved in narcotic investigations. He said that over thecourse of his career, he was involved in at least 500 narcoticarrests, had made 50 to 75 "buys," and had made half a dozenarrests when he was not on-duty.

Siwek said he met Brian Marchese while they were in theIllinois Army National Guard. At some point, Siwek became awarethat Marchese had a drug and alcohol problem.

Siwek testified Marchese contacted him in early 1992 about a DUI charge that was pending against him. Marchese asked Siwekif someone from the Chicago police department could write him a"letter of consideration" to give to the judge who was handlingthe DUI charge. Marchese told Siwek he would give the departmentinformation on narcotic activity in exchange for the letter. Siwek introduced Marchese to a detective in the organized crimedivision of the Chicago police department and Marchese became aninformant for the department.

Siwek said Marchese contacted him several times after hebecame an informant. Marchese passed information to Siwek, whoin turn passed it on to another detective in the policedepartment. Siwek didn't know if anyone followed up on theinformation. Siwek eventually told Marchese to give theinformation to the detective who helped Marchese become aninformant.

Siwek's primary defense at trial was based on his claim thathe became involved in buying narcotics through Marchese as partof a "sting" operation. Siwek testified he never gave Marchese$12,500 to purchase narcotics. Siwek said he gave Marchese$2,500 after Marchese called and asked for a loan. Siwek saidMarchese gave him the title to his truck as collateral for theloan. Siwek said he did not know Marchese intended to purchasedrugs with the money he loaned him.

After Marchese picked up the money, Siwek received a phonecall from him. Marchese told Siwek he had been arrested. Thenext day, Marchese called Siwek again. Siwek said Marchese toldhim he was arrested for trying to buy a large amount of cocaine.Siwek assumed Marchese was arrested with the person who suppliedthe drugs. Marchese said he lost $10,000 that belonged to otherpeople when he was arrested. Siwek testified Marchese asked ifhe could borrow money. Siwek refused to loan Marchese any moremoney. Marchese asked for help with the charges against him.

Siwek testified he agreed to set up a "sting" operation withMarchese. Siwek said he told Marchese he would supply the moneyif Marchese would "set up" the person who supplied the cocaine. Marchese arranged the purchase. Siwek was arrested as he wasleaving Marchese's house after he bought cocaine from undercoverdetective Weiss.

Siwek testified he did not contact anyone in the policedepartment about the "sting" he was setting up with Marchese. Siwek said he was going to contact his supervisor after hereceived the cocaine.

The jury convicted Siwek on the narcotics charges and he wassentenced to 15 years in prison.

After Siwek was convicted and sentenced, he resigned fromthe police department. In 1998, Siwek and his wife applied tothe Retirement Board of the Policemen's Annuity and Benefit Fund(Board) for reinstatement of his annuity and pension benefits. The Board had been withholding these benefits based on Siwek'sconvictions.

The Board denied Siwek's petition. The Board's decisionincluded the following findings of fact:

"A. Siwek was an experienced 24 year veteran policeofficer, having at times been assigned to narcoticsinvestigations as well as to high profile criminalinvestigations.

B. Siwek was for many years acquainted with one of theparticipants in the criminal activity and knew thatindividual to be a drug dealer and addict.

C. This specific nature of Siwek's felonious conductand resulting convictions undermined the oath of officeSiwek took as a police officer to perform act [sic] andengage in services related to protecting the citizensof the City and to prevent crimes against the citizens.

D. Siwek's felony conviction related to, arose out ofand was in connection with his service as a policeman.

E. Pursuant to 40 ILCS 5/5-227 entitled felonyconviction, Siwek is not entitled following hisconviction to the receipt of any annuity benefit."

Siwek filed a petition for administrative review with thecircuit court. The circuit court reversed the Board's decision,finding Siwek's convictions were not related to his service as apolice officer. The court ordered the Board to restore Siwek'spension benefits and awarded Siwek pre-judgment interest. TheBoard appeals this order.

DECISION

Entitlement to Pension Benefits

The Board contends the circuit court erred in reversing it'sdecision denying reinstatement of Siwek's benefits. According tothe Board, under section 5-227 of the Pension Code (Code)(40 ILCS5/5-227 (West 1998)), Siwek is not entitled to benefits becausethe crimes for which he was convicted (two counts) were relatedto his service as a police officer. Siwek contends the Boardmisinterprets the statute in reaching that conclusion, and claimsthe circuit court's finding that the conviction was unrelated tohis service as an officer was correct.

Where a party appeals the circuit court's decision on acomplaint for administrative review, the appellate court's roleis to review the administrative decision rather than the circuitcourt's decision. Calabrese v. Chicago Park District, 294 Ill.App. 3d 1055, 1065, 691 N.E.2d 850 (1998). Although a reviewingcourt may not reverse findings of fact made by an administrativeagency unless they are contrary to the manifest weight of theevidence (Chicago Transit Authority v. Doherty, 291 Ill. App. 3d909, 912, 684 N.E.2d 867 (1997)), an issue of statutoryconstruction raises a question of law subject to de novo review. DiFiore v. Retirement Board, 313 Ill. App. 3d 546, 548, 729N.E.2d 878 (2000).

Section 5-227 of the Code says, in part:

"Felony conviction. None of the benefits providedfor in this Article shall be paid to any person who isconvicted of any felony relating to or arising out ofor in connection with his service as a policeman.

None of the benefits provided for in this Articleshall be paid to any person who is convicted of anyfelony while in receipt of disability benefits." 40ILCS 5/5-227 (West 1998).

Only the first paragraph of section 5-227 applies to thiscase.

Plaintiff contends the Board's construction of the statutemandated reversal because "[t]he Board has erroneously construedthis forfeiture statute so broadly that a conviction for anyfelony would cause a forfeiture of benefits." (Emphasis inoriginal). We do not agree.

There are a handful of opinions which construe the languagein section 5-227 of the Code. They are not a model ofconsistency. In the first, Cullen v. Retirement Board of thePoliceman's Annuity and Benefit Fund of the City of Chicago, 271Ill. App. 3d 1105, 649 N.E.2d 454 (1995), Cullen, a retiredofficer, shot and killed another motorist during an altercationafter the motorist "cut off" Cullen in traffic. Cullen was noton duty when the crime occurred.

When the Board learned of Cullen's conviction, it stoppedpaying his pension benefits. Cullen sought to have his pensionbenefits restored. After a hearing, the Board denied Cullenreinstatement of his benefits. This court reversed the Board'sdecision:

"The first paragraph of section 5-227 uses thephrase 'any felony relating to or arising out of or inconnection with his service as a policeman.'[Citation.] Thus, the statute clearly contemplates theexistence of situations where a police officer couldcommit a felony unrelated to his law enforcementduties.

Moreover, legislative intent must be garnered froma review of the entire statutory plan. [Citation.] Thesecond paragraph of section 5-227 provides that no'benefits *** shall be paid to any person who isconvicted of any felony while in receipt of disabilitybenefits.' [Citation.] Here, the General Assembly didnot require circumstances relating to, arising out ofor in connection with police service attendant to afelony conviction in order to disqualify an officerfrom receiving disability benefits. Rather, all thatis required is the commission of 'any felony.' ***

*** [A]s there is no evidence demonstrating thatplaintiff's criminal actions were in any way related toor arose out of or in connection with his service as aChicago police officer, we reverse the judgment of thecircuit court and remand this cause to it withinstructions that it enter an order reinstatingplaintiff's pension benefits." Cullen, 271 Ill. App.3d at 1109.

After Cullen was decided, this court examined section 5-227again in Dvorak v. The Retirement Board of the Policeman'sAnnuity and Benefit Fund, 287 Ill. App. 3d 399, 678 N.E.2d 677(1997). Dvorak had taken a leave of absence from the departmentto work as an "undersheriff" for the Cook County sheriff'soffice, but continued to contribute to his pension fund with thepolice department during his leave of absence. Dvorak wasconvicted, in part, for having taken bribes in relation to hisservice as an undersheriff. After he was convicted, the Boarddenied Dvorak pension benefits. The circuit court affirmed theBoard's decision.

On appeal, the issue was not whether, given the facts of theunderlying conviction, the felony itself was "related to" serviceas an officer. Instead, Dvorak claimed the Board could not denyhim pension benefits under section 5-227 because he was on aleave of absence from the police department when he committed thefelonies and was not serving as a Chicago police officer. Thiscourt affirmed the Board's denial of benefits in a divideddecision, finding Dvorak still was a Chicago police officerduring his leave of absence and therefore fell under theproscription of section 5-227. This court also found:

"[T]he specific nature of plaintiff's felonious conductand resulting convictions undermined the oath of officeplaintiff took as a policeman to perform acts andengage in services related to protecting the citizensof the city and county and to prevent crimes againstthe citizens. These facts are particularly persuasivein finding that plaintiff remained within the purviewof the Code even as an inactive police officer." Dvorak, 287 Ill. App. 3d at 406.

We again examined the forfeiture of pension benefits undersection 5-227 in DiFiore v. The Retirement Board of thePolicemen's Annuity and Benefit Fund of the City of Chicago, 313Ill. App. 3d 546, 729 N.E.2d 878 (2000). However, in DiFiore,the Board's decision denying benefits was based on the secondparagraph of section 5-227, which says that an officer will notreceive any benefits if he is convicted of "any felony" while inreceipt of disability benefits. 40 ILCS 5/5-227 (West 1998).

DiFiore was on disability leave when he was indicted forcriminal sexual assault of a minor. The police departmentsuspended DiFiore, and the Board suspended his disabilitybenefits. When DiFiore applied for pension benefits, the Boarddenied his request, finding he was not entitled to benefits undersection 5-227 because he was convicted of a felony whilereceiving disability benefits.

This court reversed the Board's decision, finding DiFiorewas not receiving, and was not eligible to receive, disabilitybenefits at the time of his conviction.

Though DiFiore involved analysis under the second paragraphof section 5-227, rather than the first paragraph, once wedetermined the second paragraph did not apply to DiFiore, wediscussed the intent underlying section 5-227:

"We reject the Board's assertion that to allowplaintiff his pension would defeat the intent ofsection 5-227. The underlying rationale for thepension forfeiture statutes is to deter publicofficials from committing a breach of public trust suchthat public officials and their beneficiaries do notprofit from their wrongdoing. In Kerner v. StateEmployee's Retirement System, [citation], our supremecourt held that the underlying purpose of the felonyforfeiture provision is 'to discourage officialmalfeasance by denying the public servant convicted ofunfaithfulness to his trust the retirement benefits towhich he otherwise would have been entitled.' Thestatute presupposes a nexus between the wrongfulconduct and the receipt of state compensation orbenefits. Here, plaintiff was not receiving disabilitybenefits at the time he committed the felony or at thetime of his conviction, and the felony was not relatedto his law enforcement duties. Thus, denying plaintiffhis benefits does not further the intent of thelegislature because the nexus between the wrongfulconduct and the receipt of state benefits was notimplicated here." DiFiore, 313 Ill. App. 3d at 551,quoting Kerner v. State Employee's Retirement System,72 Ill. 2d 507, 513, 382 N.E.2d 243 (1978).

This focus on the need for a "nexus" between the wrongfulconduct, or "official malfeasance," and the receipt of statebenefits seems at odds with this court's recent opinion inDevoney v. The Retirement Board of the Policemen's Annuity andBenefit Fund of the City of Chicago, 321 Ill. App. 3d 1, 746N.E.2d 836 (2001), our last word on the subject until now.

In Devoney, Devoney pled guilty to mail fraud after he andtwo neighbors, Ballog and Raimondi, attempted to defraud aninsurance company by filing a bogus personal injury claim. Devoney used the U.S. Postal Service to mail evidence of wagelosses to the insurance company in an attempt to carry out hisscheme. When he applied for pension benefits the Board deniedhis request. This court affirmed the Board's decision:

"The indictment alleged that petitioner devisedand participated in a scheme with Ballog and Raimondito defraud an insurance company and used false andfraudulent pretenses. In his plea agreement and histestimony before the Board, petitioner admitted that he'conspired' with Ballog and Raimondi. Petitionerfurther testified that Ballog approached him with thescheme and that petitioner agreed to participate withBallog and Raimondi. At that point, petitioner did notarrest or report Ballog or Raimondi, but facilitated,allowed, encouraged, aided and abetted Ballog andRaimondi in committing a fraud against the insurancecompany. As a result of the scheme to defraud,petitioner collected $70,000 and split the money withBallog and Raimondi. Therefore, petitioner's conductof entering into a scheme to defraud with others andcarrying out the scheme went beyond a single act ofindividual, personal, criminal conduct while off duty.[Citation]. Petitioner's conduct involved the decisionto act in concert with others rather than by himselfand facilitate the criminal conduct of others.[Citation]. ***

***

*** By participating in a scheme to defraud withothers and concealing the scheme, petitioner breachedhis duty to report crime, which is a duty arising outof or in connection with his service as a policeman. The public demands faithfulness from police officers totheir duty to report and arrest others involved incriminal activity. The purpose of section 5-227 is todeter public officials from breaching the public trust.[Citation].

*** Regardless of whether Devoney was on duty oroff duty, in uniform or not in uniform, the lawrequired Devoney to report crime and arrest personsengaged in criminal conduct. The requirement to reportcrime and arrest persons engaged in criminal conduct isdirectly related to Devoney's service as a policeman. The choice made by Devoney not to report or arrestBallog and Raimondi therefore was related to Devoney'sservice as a policeman." Devoney, 321 Ill. App. 3d at9-10.

The dissenting opinion in Devoney did not agree with thisfocus:

"I cannot support the position of the majoritythat, if a policeman violates his statutory duties orhis oath of office by failing to report a crime orarrest persons engaged in criminal conduct in which hewas a participant, this constitutes a significant nexusbetween the crime and his service as a policeman totrigger the application of section 5-227 of the PensionCode. A policeman cannot commit any crime, felony ormisdemeanor without violating his oath of office or hisduties under section 107-16 of the Illinois Code ofCriminal Procedure. [Citation]."

In Devoney, the majority focused on the violation of theofficer's oath or statutory duty as the "nexus" between hisconviction and his service as a police officer. The violationwas Devoney's failure to report the crimes of his co-conspiratorsand his failure to arrest them. In that way, the majoritydistinguished Cullen, where the off-duty officer acted alone. Itmay be a distinction, but it is not a persuasive difference.

We do not subscribe to the majority's reasoning. Every timea police officer is convicted of a felony he has violated hisoath of office. When a police officer is convicted of a crime,he has violated the law he has sworn to obey. The fact of afelony conviction, standing alone, cannot, within the plainmeaning of paragraph one of section 5-227, be enough to deprive apolice officer of his pension. To so hold would be to rewritethe statute, something we are not authorized to do.

The question in every paragraph one case is whether thefelony the officer was convicted of related to, or arose out of,or was in connection with, his service as a policeman. Eachphrase in the paragraph has a slightly different meaning, ofdegree, not kind. We are required to assume none of the languageused in a statute is superfluous. Niven v. Siqueira, 109 Ill. 2d357, 365, 487 N.E.2d 937 (1985).

Our inquiry in this case has to do with whether Siwek'sconviction was related to his service as a police officer. Thetwo possession counts did not occur in a vacuum. We do notanalyze the conviction solely on the basis of what happened onthe day of the arrest. That would be parsing the first paragraphof section 5-227 with too sharp a scalpel. We believe thelegislature's charge to us is to examine the conviction in a waythat deters police officers from violating the public trust whilerefraining from distorting the clear words of the statute. Welook to the circumstances that led to Siwek's conviction, and inparticular we examine the relationship between Siwek andMarchese, a necessary ingredient of the State's charges.

We agree with the Board that Siwek's conviction wasconnected to, or, at the very least, was related to his serviceas an officer. Siwek was a police officer who spent most of hiscareer specializing in narcotics violations. Logic compels us toconclude Siwek called upon the specialized knowledge he gained inhis service as a police officer when he committed the felony forwhich he was convicted.

Siwek used Marchese, a police informant, to set up a drugpurchase for him. Siwek knew Marchese was an informant who had anumber of connections with narcotics dealers. In fact, Siwekhelped Marchese become an informant after Marchese asked for hishelp in avoiding a DUI conviction. Marchese's knowledge as aninformant was meant to be used to aid the police department inarresting offenders. Siwek instead used it to set up personaltransactions for his own profit.

Siwek's knowledge as a narcotics specialist, his connectionwith Marchese as a police informant, and the relationshipMarchese had with the police department are all related toSiwek's service as a police officer. At the underlying criminaltrial, Siwek claimed he was acting as a police officer when hebought the cocaine.

Siwek's acts constitute the type of "official malfeasance"the DeFiore and Cullen courts found should result in a loss ofbenefits under section 5-227. We find Siwek is not entitled tobenefits under section 5-227 because his convictions were relatedto or connected with his service as an officer.

CONCLUSION

We reverse the judgment of the circuit court and affirm theBoard's decision.

Reversed.

CERDA, and BURKE, JJ., concur.