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DiFiore v. Retirement board of The Policemen's Annuity

May 12, 2000

RALPH DIFIORE,
PLAINTIFF-APPELLANT,
V.
THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 98-CH-563 Honorable Aaron Jaffe, Judge Presiding.

The opinion of the court was delivered by: Justice Theis

Following a hearing, defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (Board), ruled that plaintiff Ralph DiFiore forfeited his pension benefits under the Illinois Pension Code (Code). 40 ILCS 5/5-227 (West 1994). On administrative review, the circuit court upheld the Board's decision. On appeal, plaintiff contends that the Board erred in determining that his pension benefits were forfeited because his aggravated criminal sexual assault conviction was unrelated to his duties as a Chicago police officer, and he was not in actual receipt of disability benefits at the time of the conviction. He further contends that the Board's ruling violated protections against double jeopardy. For the following reasons, we reverse and remand.

Plaintiff began work as an officer for the Chicago police department (CPD) in 1971. He was placed on ordinary disability in June 1993 and began to receive monthly checks. In December 1993, plaintiff was suspended from the CPD after being indicted for off-duty conduct relating to aggravated criminal sexual assault while a full-time active police officer. The indictment alleged that plaintiff engaged in sexual conduct with a minor, plaintiff's niece, from April 1991 through January 1992.

Plaintiff retired from the CPD in April 1994, and the Board suspended his disability benefits while it determined the effect of plaintiff's suspension and retirement. Plaintiff pleaded guilty to the charge in September 1994. In March 1996, having reached the age of 50, plaintiff applied for pension benefits but the Board denied his request. Plaintiff subsequently filed a petition for administrative review, and the circuit court confirmed the Board's decision.

Plaintiff contends that the Board erred in determining that section 5-227 of the Code precludes him from receiving pension benefits. 40 ILCS 5/5-227 (West 1994). This section, entitled "Felony conviction," states in relevant part:

"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.

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 the intentional and wrongful death of a police officer, either active or retired, through whom such person would become eligible to receive, or is receiving, an annuity under this Article." 40 ILCS 5/5-227 (West 1994).

The Board denied plaintiff's pension benefits under the second paragraph of section 5-227, but made no express findings regarding this provision. 40 ILCS 5/5-227 (West 1994). The Board also found that plaintiff was entitled to payment of the suspended disability benefits from April to September 1994 and a refund of his contributions, but provided no explanation for this finding.

On review, the findings of fact of an administrative agency are prima facie true and correct and will not be disturbed unless contrary to the manifest weight of the evidence. Chicago Transit Authority v. Doherty, 291 Ill. App. 3d 909, 912, 684 N.E.2d 867, 870 (1997); Barron v. Ward, 165 Ill. App. 3d 653, 659, 517 N.E.2d 591, 596 (1987). However, an issue of statutory construction raises a question of law subject to de novo review. Lucas v. Lakin, 175 Ill. 2d 166, 171, 676 N.E.2d 637, 640 (1997). An agency's interpretation of statutory language and application of undisputed facts to that language is generally given deference, because of the experience and expertise gained through enforcement of the statute involved. National School Bus Service, Inc. v. Department of Revenue, 302 Ill. App. 3d 820, 825, 706 N.E.2d 936, 940 (1998). Finally, we review the administrative decision rather than the circuit court's decision. Calabrese v. Chicago Park District, 294 Ill. App. 3d 1055, 1065, 691 N.E.2d 850, 857 (1998).

The Board does not argue that the first paragraph of section 5- 227 of the Code applies to plaintiff in the instant case. The Board specifically stated it was not making a finding regarding whether plaintiff's felony was "relating to or arising out of or in connection with his service as a policeman." 40 ILCS 5/5-227 (West 1994). The question before us, then, is whether the second paragraph, which denies benefits to a person "convicted of any felony while in receipt of disability benefits," applies to plaintiff. 40 ILCS 5/5-227 (West 1994).

Plaintiff initially contends that paragraph two only applies to the forfeiture of disability benefits and not to the forfeiture of annuity benefits, citing Cullen v. Retirement Board of Policeman's Annuity & Benefit Fund, 271 Ill. App. 3d 1105, 649 N.E.2d 454 (1995), in support. In Cullen, we primarily dealt with the issue of whether an officer's off-duty conduct was sufficiently related to his service as a policeman. While we addressed the distinction between "any felony" as expressed in paragraph two of the statute and a felony related to law enforcement duties as expressed in paragraph one, we were not asked to address the specific statutory construction of paragraph two which plaintiff now seeks to invoke. The plain language of paragraph two provides that "[n]one of the benefits provided for in this Article shall be paid." 40 ILCS 5/5-227 (West 1994). Annuity benefits are clearly among the types of benefits provided for in article 5 of the Code. 40 ILCS 5/5-123 (West 1994) . Therefore, they are among the types of benefits that can be forfeited under the conditions of section 5-227.

Plaintiff next contends that the Board erred in denying him pension benefits because, at the time of his conviction, he had retired, his disability benefits were suspended, and he was not receiving disability payments. The Board maintains that plaintiff had a legal right to ongoing ordinary disability benefits after his retirement up until the time of his conviction, citing Iwanski v. Streamwood Police Pension Board, 232 Ill. App. 3d 180, 189-90, 596 N.E.2d 691 (1992), Stec v. Oak Park Police Pension Board, 204 Ill. App. 3d 556, 561 N.E.2d 1234 (1990), and Hahn v. Police Pension Fund, 138 Ill. App. 3d 206, 485 N.E.2d 871 (1985) in support. Consequently, they argue that he was "in receipt of disability benefits" under the statute even though at the time of conviction his benefits were suspended and he was not receiving actual payments.

We find the Board's premise, that plaintiff was entitled to ordinary disability benefits after his retirement, not well taken. The cases cited by the Board in support of its contention address disability pensions under article 3 of the Code. Iwanski, 232 Ill. App. 3d at 185, 596 N.E.2d at 695; Stec, 204 Ill. App. 3d at 562-63, 561 N.E.2d at 1237- 38; Hahn, 138 Ill. App. 3d at 212, 485 N.E.2d at 875. Article 3 deals with the police pension fund for ...


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