Court of Appeals of Illinois, First District, Sixth Division
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Appeal from the Circuit Court of Cook County. No. 12 CH 32548. Honorable Peter Flynn, Judge Presiding.
Decision of the Board confirmed; circuit court affirmed.
FOR APPELLANT: Barbara J. Bell, Esq., Berwyn, IL.
FOR APPELLEES: David R. Kugler, Esq., Chicago, IL.
JUSTICE HALL delivered the judgment of the court, with opinion. Justices Lampkin and Rochford concurred in the judgment and opinion.
[¶1] The plaintiff, Nail Majid, appeals from an order of the circuit court of Cook County affirming the decision of the defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (the Board), terminating the plaintiff's disability benefit. On appeal, the plaintiff contends that: (1) the
Board erred when it failed to consider whether the plaintiff's felony conviction arose out of or in connection with his service as a police officer; (2) the hearing in which his disability benefit was terminated violated his right to procedural due process under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), and article I, section 2, of the 1970 Illinois Constitution (Ill. Const. 1970, art. I, § 2); and (3) section 5-227 of the Illinois Pension Code (the Code) (40 ILCS 5/5-227 (West 2010)) violated his right to equal protection under the fourteenth amendment to the United States Constitution and article I, section 2, of the 1970 Illinois Constitution.
[¶2] The facts in this case are undisputed. The plaintiff served as a Chicago police officer from November 1999 until 2003 when he was injured and was awarded a line-of-duty disability benefit. Subsequently, the plaintiff relocated to Ohio. In 2010, he was indicted and charged with two counts of impersonating an agent of the Drug Enforcement Agency (18 U.S.C. § 912 (2006)) and one count of possession of an unregistered firearm (26 U.S.C. § 5861(d) (2006)); both offenses were felonies under federal law. Pursuant to a plea agreement, the plaintiff pleaded guilty to possession of an unregistered firearm. Although the offense carried a sentence of 18 to 24 months' imprisonment, the district court sentenced the plaintiff to 3 years' probation.
[¶3] Upon learning of the plaintiff's felony conviction, the Board suspended his disability benefit pending a hearing. See 40 ILCS 5/5-227 (West 2010) (providing for the termination of disability benefits to a police officer who commits any felony while receiving disability benefits). At the June 28, 2012, hearing before the Board on his application to lift the suspension, the plaintiff testified that while he was receiving a duty disability benefit, he was convicted of a felony in Ohio.
[¶4] At the plaintiff's request, the Board agreed to allow the following documents to be made part of the record: a copy of the plaintiff's federal indictment, transcripts of the guilty plea proceedings, documentation from the plaintiff regarding family information, correspondence from the district court judge explaining that the felony conviction was for a status offense, a petition, signed by over 1000 officers, in support of the plaintiff retaining his pension, and numerous e-mails from individuals in support of leniency for the plaintiff.
[¶5] Before the Board, the plaintiff argued that, in addition to invoking sympathy for him, the documentation demonstrated that section 5-227 was unconstitutional because of the disparity in treatment between a police officer on disability who loses his benefits when he is convicted of any felony, and a retired police officer who loses his benefits when he is convicted of any felony " relating to or arising out of or in connection with his service as a policeman." 40 ILCS 5/5-227 (West 2010). The plaintiff further argued that while he was " technically" convicted of a felony under the federal classification, the possession of an unregistered weapon charge should not be considered a " felony" for purposes of section 5-227. Finally, the plaintiff argued that section 5-227 was ambiguous.
[¶6] The Board pointed out that it was unable to address the plaintiff's constitutional issue or whether a " technical" felony was a felony for purposes of section 5-227. It rejected the plaintiff's argument that section 5-227 was ambiguous. The Board determined that there were only two issues to be decided: whether the plaintiff was convicted of a felony and whether he was receiving a disability benefit at the
time he was indicted and convicted of the felony. The Board found that it was undisputed that the plaintiff had been convicted of a felony while receiving disability benefits.
[¶7] On July 24, 2012, the Board issued its written order denying the plaintiff's application for the reinstatement of his duty disability benefit. Thereafter, the plaintiff filed his complaint for administrative review. Following a hearing, the circuit court affirmed the decision of the Board denying reinstatement of the plaintiff's disability benefit.
[¶8] The plaintiff appeals.
[¶10] I. Denial of Disability Benefit Based on Conviction of a Felony
[¶11] The plaintiff contends that in denying his application for reinstatement of his disability benefit, the Board failed to consider the provisions of section 5-227 as a whole and ignored the legislative intent that the felony conviction must have a nexus with his service as a police officer before disability benefits can be terminated.
[¶12] A. Standard of Review
[¶13] On an appeal from the circuit court's ruling on a complaint for administrative review, the court reviews the decision of the administrative agency, not the determination of the circuit court. Marconi v. Chicago Heights Police Pension Board, 225 Ill.2d 497, 531, 870 N.E.2d 273, 312 Ill.Dec. 208 (2006). The applicable standard of review determines the amount of deference we afford to the agency's decision and depends on the issue raised. Marconi, 225 Ill.2d at 532. In this case, where the salient facts are undisputed and the resolution of the issue before us turns on the construction of a statute, which is a question of law, our review ...