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03/26/97 JAMES E. DVORAK v. RETIREMENT BOARD

March 26, 1997

JAMES E. DVORAK, PLAINTIFF-APPELLANT,
v.
THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY & BENEFIT FUND, CITY OF CHICAGO, BOARD MEMBERS WALTER E. KNORR, GARY B. HELMS, ROBERT F. REUSCHE, MIRIAM SANTOS, CHARLES R. LOFTUS, JOHN J. THULIS, KENNETH A. HAUSER, AND RICHARD J. JONES, AND EXECUTIVE DIRECTOR JAMES B. WATERS, JR., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT COOK COUNTY. No. 94 CH 8902. THE HONORABLE, MICHAEL B. GETTY, JUDGE PRESIDING.

Released for Publication May 12, 1997.

Presiding Justice Cousins delivered the opinion of the court. Cahill, J., concurs. Gordon, J., dissents.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Defendants, The Retirement Board of the Policemen's Annuity & Benefit Fund, City of Chicago, and individually named board members Walter E. Knorr, Gary B. Helms, Robert F. Reusche, Miriam Santos, Charles R. Loftus, John J. Thulis, Kenneth A. Hauser, Richard J. Jones, and executive director James B. Waters, Jr. (collectively, the Board), revoked plaintiff James E. Dvorak's (Dvorak's) pension benefits after he was convicted of two felony counts in federal district court. The trial court affirmed the administrative order in favor of the defendant and this appeal followed. On appeal, plaintiff argues that the Board erred in denying him his pension benefits because he was not a policeman with the Chicago police department as defined by the Illinois Pension Code (the Code) (40 ILCS 5/1--101)(West 1994)) at the time that he committed the felonies and, therefore, his felonies were not relating to or arising out of or in connection with his service as a policeman for the Chicago police department.

BACKGROUND

Plaintiff was appointed to the Chicago police department on March 28, 1966. During 1986, he applied for and was granted authority to take a leave of absence for the purpose of serving as undersheriff in the Cook County sheriff's office.

On April 9, 1987, while still on a leave of absence and working as undersheriff, plaintiff applied to the Board seeking the right to contribute to his pension fund with the Chicago police department, pursuant to section 5--214(c) of the Pension Code (40 ILCS 5/5--214(c)(West 1994), on the basis that his job included "performing safety or investigative work for the county in which [Chicago] is principally located." Section 5--2l4, entitled "Credit for other service" provides in pertinent part:

"Credit for other service. Any participant in this fund (other than a member of the fire department of the city) who has rendered service as a member of the police department of the city for a period of 3 years or more is entitled to credit for the various purposes of this Article for service rendered prior to becoming a member or subsequent thereto for the following periods:

(c) While performing safety or investigative work for the county is which such city is principally located or for the State of Illinois or for the federal government, on leave of absence from the department of police, or while performing investigative work for the department as a civilian employee of the department." 40 ILCS 5/5--214 (West 1994).

The Board granted plaintiff authority to make contributions during his employment as undersheriff.

As of March 12, 1990, plaintiff was no longer employed as undersheriff and began to receive his retirement pension from the pension fund. On April 28, 1994, after he had already retired and was receiving his pension, Dvorak pled guilty and was convicted of two felony counts in federal district court. Both convictions related to plaintiff's conduct while he was employed as the undersheriff. One count involved tax fraud and the other count charged that plaintiff had participated in and accepted bribes in the procurement of certain contracts. Upon learning of the convictions, the Board terminated Dvorak's pension benefits pursuant to section 5--227 of the Pension Code. Section 5--227, entitled "Felony Conviction" provides in pertinent part:

"Felony conviction. None of the benefits provided for 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 a policeman.

None of the benefits provided for in this Article shall be paid to any person who is convicted of any felony while in receipt of disability benefits.

All future entrants entering service subsequent to July 11, 1955, shall be deemed to have consented to the provisions of this Section as a condition of coverage. 40 ILCS 5/5--227 (West 1994).

Plaintiff petitioned for reinstatement of his benefits, and on July 28, 1994, the Board held a hearing to review the issue. Thereafter, on September 22, 1994, the Board denied plaintiff's application for reinstatement of his pension benefits. In its order, the Board cited sections 5--214 and 5--227 and concluded, in pertinent part:

"(a) *** DVORAK was contributing to the fund the amounts he would have contributed had he remained an active member of the police department; (b) *** he was granted service credit during the period he served as under-sheriff as he was performing safety and investigative work in the County in which this City is principally located, and (c) * * * as a contributing member of this Fund, he was bound by all of the provisions thereof."

Plaintiff then filed a timely complaint for administrative review in the circuit court.

On August 2, 1995, the trial court found that, as a matter of law, Dvorak was subject to section 5--227 at the time of the acts and convictions involved, but that the Board had not made sufficient findings of fact regarding whether the criminal activities for which Dvorak was convicted were, in fact, related to or arose out of or in connection with his service as a policeman and thus fit ...


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