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06/15/87 Thomas N. Moore, v. the Board of Trustees of

June 15, 1987

THOMAS N. MOORE, PLAINTIFF-APPELLEE

v.

THE BOARD OF TRUSTEES OF THE SANITARY DISTRICT EMPLOYEES' AND TRUSTEES' ANNUITY AND BENEFIT FUND, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

510 N.E.2d 87, 157 Ill. App. 3d 158, 109 Ill. Dec. 466 1987.IL.813

Appeal from the Circuit Court of Cook County; the Hon. Joseph M. Wosik, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The defendant board of trustees of the Sanitary District Employees' and Trustees' Annuity and Benefit Fund (board) appeals the trial court's decision which granted the plaintiff, Thomas N. Moore, a refund of monies he contributed to his pension fund during his 12 years' service at the Metropolitan Sanitary District. The board also appeals the denial of the board's counterclaim for a setoff of its payments to Moore's pension plan prior to Moore's felony conviction. Moore cross-appeals from that portion of the trial court's decision which affirmed the board's decision that Moore's pension benefits terminated automatically upon his felony conviction in United States v. Moore (N.D. Ill. 1985), 85 CR 161. The board in its appeal seeks a reversal of the trial court's orders or at least a reversal and remand regarding the question of whether plaintiff has any refund rights. Moore, on the other hand, in his appeal seeks a reversal of the trial court's decision affirming the termination of his pension benefits and requests reinstatement of his full pension benefits on the ground that he had left government service and had begun receiving his pension before his felony conviction.

Thomas Moore was an employee of the Metropolitan Sanitary District (District) from April 22, 1968, until March 21, 1980, when he retired. Mr. Moore made regular contributions to the pension annuities fund throughout his tenure with the District and was eligible to receive pension benefits when he completed 10 years' service, attained the age of 55 and retired from service. (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 13-134.) Plaintiff argues that his pension rights were, therefore, vested in 1978 when he was 55 years old and had served the District for 10 years. In fact, Mr. Moore received monthly pension annuities from May 1980 through July 1985.

On August 3, 1985, Thomas Moore was found guilty in the United States District Court of a felony in connection with his employment at the District. (United States v. Moore (N.D. Ill. 1985), 85 CR 162.) Mr. Moore filed post-trial motions which were ultimately denied on October 8, 1985. The district court then entered judgment against Moore on his felony conviction and imposed sentence on October 8, 1985.

In a letter dated August 30, 1985, the executive director of the board notified plaintiff that his pension benefits had been terminated at a meeting of the board on August 28, 1985, pursuant to section 13-221 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 13-221). The board did not give plaintiff advance notice of the meeting nor did it give him an opportunity to be heard before his benefits were terminated. On September 25, 1985, Moore filed a complaint in the circuit court seeking administrative review of the board's decision terminating his benefits.

On June 16, 1986, the trial court entered an order affirming the board's decision that had automatically terminated the plaintiff's benefits as of his conviction but ruled that "conviction" occurred as of the date of sentencing and not, as the board had determined, as of the date of the jury's verdict. Accordingly, the court ordered the board to pay plaintiff $1,807.65, which represented the benefits payable to the plaintiff through the date of sentencing, October 8, 1985. However, the trial court denied the plaintiff's further claim that he was entitled to a refund of the monies he had contributed to the pension fund and consequently denied defendant's counterclaim filed in response to plaintiff's claim for a refund, which requested a setoff against any refund for the monies the board had paid the plaintiff through October 8, 1985. The court ruled that the refund issue was not part of the administrative record presented to the court and, hence, could not be considered.

Thereafter, plaintiff filed a motion with the trial court to reconsider its order affirming the board's determination that his pension benefits were automatically terminated under the Pension Code and denying his claim to a refund. On June 24, 1986, the trial court denied plaintiff's motion as it concerned the termination of his pension benefits, but granted a rehearing concerning his right to a refund. The trial court then held that Moore was entitled to a refund of the funds he paid into the pension fund during his tenure with the District and ordered the District to return these monies.

The administrative record here consists only of the board's letter to plaintiff advising him that his pension benefits were terminated, a letter from a consulting actuary dated August 15, 1985, advising the board that it needed to address the issue of plaintiff's refund rights under the statute, and plaintiff's personnel file. However, this record did establish certain uncontradicted facts. There is no question that the plaintiff, Thomas Moore, was convicted of a felony in connection with his employment at the District. It is clear that the relevant portion of the Illinois Pension Code which governs the plaintiff's public employee pension funds and benefits, chapter 108 1/2, section 13 -- 221, provides:

"Felony conviction. None of the benefits provided in this Article shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as an employee.

This section shall not operate to impair any contract or vested right heretofore acquired under any law or laws continued in this Article, ...


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