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First Division
September 27, 2004

No. 1-03-2950

JUSTICE McBRIDE delivered the opinion of the court:

Defendants, the Board of Trustees of the Illinois Municipal Retirement Fund (the Board),appeal the trial court's reversal of its decision to deny plaintiff, C. August Taddeo, his pensionsfrom his employment as mayor of Melrose Park and as township supervisor for Proviso Townshipin accordance with section 7-219 of the Illinois Pension Code (Pension Code or Code) (40 ILCS5/7-219 (West 1998)). The Board had held that plaintiff forfeited his entire pension when he wasconvicted of a felony arising from his position as mayor of Melrose Park. Plaintiff soughtadministrative review in the circuit court. The court disagreed with the Board and ruled thatplaintiff was entitled to his pension from his position as Proviso Township supervisor.

The parties do not dispute the facts in this case.

In April 1969, plaintiff was elected township supervisor for Proviso Township, and he heldthat position until his retirement in July 1999. In 1972, plaintiff became the mayor of MelrosePark. Plaintiff's final term as mayor ended in April 1997. From May 1977 until April 1997,plaintiff earned concurrent service for his participation in the Illinois Municipal Retirement Fund(IMRF).

At the time of his retirement, plaintiff had a total of 30 years and 4 months of IMRFservice credits with 19 years and 9 months being concurrent service with the Village of MelrosePark and Proviso Township. Plaintiff's contributions were calculated separately for each IMRFposition. Plaintiff made employee contributions in the amount of $47,546.02 from his wages asmayor of Melrose Park and $38,455.71 from his wages as township supervisor for ProvisoTownship.

In August 1999, plaintiff entered into a plea agreement for the felony offenses of extortionunder the color of official right and making a false statement on a federal income tax return in theUnited States District Court for the Northern District of Illinois, Eastern Division. Plaintiffadmitted that during his service as mayor of Melrose Park, he appointed Nicholas Spina as villageattorney from 1988 to 1994 in exchange for periodic cash payments to plaintiff. Plaintiff alsoadmitted that he failed to report those payments as income on his federal income tax returns. Plaintiff received a sentence of 27 months in prison and a fine of $40,000. Plaintiff was orderedto repay to the government the $11,000 that he extorted from the Melrose Park village attorney. Plaintiff conceded that these felony convictions were "related to or arising out of or in connectionwith" his service as mayor of Melrose Park.

In December 1999, the IMRF notified plaintiff by letter that it was terminating his pensionbenefits for both positions as a result of plaintiff's conviction arising out of or in connection withhis employment as mayor of Melrose Park. No reference was made to any allegation ofmisconduct relating to plaintiff's employment as township supervisor.

In March 2002, plaintiff requested an appeal hearing before the Board as to thetermination of his pension benefits. At the December 2002 hearing, plaintiff challenged thedecision to terminate his pension benefits earned as township supervisor. Plaintiff asserted that anexus must exist between the criminal conduct, plaintiff's official duties, and the receipt of benefitsin order for the pension benefits to be terminated. The Board held that all of plaintiff's pensionbenefits were forfeited under its interpretation of section 7-219 and did not take intoconsideration that the convictions related to only one of plaintiff's IMRF positions.

Following the Board's decision, plaintiff filed a complaint for administrative review withthe circuit court. The parties filed cross-motions for summary judgment. The circuit courtrejected the Board's interpretation of section 7-219 and reinstated plaintiff's pension benefits fromhis township supervisor position. The circuit court interpreted section 7-219 to mean thatplaintiff's felony conviction only caused the forfeiture of his pension as mayor because no nexusexisted between the conviction and his service as Proviso Township supervisor. On appeal, theBoard argues that the circuit court's construction of section 7-219 contravenes the legislativeintent behind the forfeiture provisions of the Code because it ignored the plain language of thestatute.

When a party appeals the circuit court's decision on a complaint for administrative review,the appellate court's role is to review the administrative decision rather than the circuit court'sdecision. Siwek v. Retirement Board of the Policemen's Annuity & Benefit Fund, 324 Ill. App. 3d820, 824 (2001). Although a reviewing court may not reverse findings of fact made by anadministrative agency unless they are contrary to the manifest weight of the evidence, an issue ofstatutory construction raises a question of law subject to de novo review. Siwek, 324 Ill. App. 3dat 824.

Section 7-219 provides:

"None of the benefits provided for in this Article shall bepaid to any person who is convicted of any felony relating to orarising out of or in connection with his service as an employee." 40ILCS 5/7-219 (West 1998).

Statutory construction requires courts to ascertain and give effect to the intent of thelegislature. Shields v. Judges' Retirement System, 204 Ill. 2d 488, 493-94 (2003). Wherestatutory language is clear, it must be applied as written; however, if the language is susceptible tomore than one interpretation, the court may look beyond the language to consider the legislativepurpose. Shields, 204 Ill. 2d at 494. Legislative intent must be ascertained from a considerationof the entire act, its nature, its object, and the consequences resulting from different constructions. Shields, 204 Ill. 2d at 494. The language of pension statutes must also be liberally construed infavor of the rights of the pensioner. Shields, 204 Ill. 2d at 494.

The Board advocates a broad interpretation of section 7-219. In its view, "employee"should mean an employee of any IMRF employer rather than a specific IMRF employer. Underthis interpretation, plaintiff would lose both pensions without considering whether the convictionhad any connection to his employment with Proviso Township. The Board also emphasizes thewords "none" and "any" in the statutory language as an indication that the legislature meant todisqualify plaintiff's pension for concurrent employment.

The Board relies on Kerner v. State Employees' Retirement Systems, 72 Ill. 2d 507(1978), to support its literal interpretation. In Kerner, the supreme court stated that the languageof the Code is clear and unambiguous and that a literal interpretation advances the legislativeintent "to discourage official malfeasance by denying the public servant convicted ofunfaithfulness to his trust the retirement benefits to which he otherwise would have been entitled." Kerner, 72 Ill. 2d at 513. The question before the court in Kerner was whether "convicted of anyfelony" only referred to felonies under Illinois law or if the language included federal felonies. Kerner, 72 Ill. 2d at 512. The Kerner court construed "any felony" broadly to mean feloniesunder Illinois and federal law "so long as the offense was a 'felony relating to or arising out of orin connection with' " service as an employee. Kerner, 72 Ill. 2d at 513, quoting Ill. Rev. Stat.1975, ch. 108