Romano v. Municipal Employees Annuity and Benefit Fund of Chicago

• Court: Appellate Court of Illinois
• Decided: August 5, 2008
• Docket: 1-07-1132 Rel
• Status: Published

Opinion

SECOND DIVISION FILED: August 5, 2008

No. 1-07-1132

CHARLES ROMANO, ) APPEAL FROM THE ) CIRCUIT COURT OF Plaintiff-Appellant, ) COOK COUNTY ) v. ) ) THE MUNICIPAL EMPLOYEES ANNUITY AND ) BENEFIT FUND OF CHICAGO, THE BOARD OF ) TRUSTEES OF THE MUNICIPAL EMPLOYEES ) 06 CH 21717 ANNUITY AND BENEFIT FUND OF CHICAGO, ) PETER BREJNAK, JOSEPH M. MALATISTA, ) JUDITH C. RICE, STEVEN J. LUX, and ) JOHN K. GIBSON, President and Members ) the Board of Trustees of the Municipal ) Employees Annuity and Benefit Fund of ) Chicago, ) HONORABLE ) KATHLEEN M. PANTLE, Defendants-Appellees. ) JUDGE PRESIDING.

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Charles Romano, appeals from a judgment of the

Circuit Court of Cook County, confirming a decision of the Board of

Trustees of the Municipal Employees Annuity and Benefit Fund of

Chicago (Board) which found that, as a consequence of his

conviction of a felony "relating to or arising out of or in

connection with his service as a municipal employee," he forfeited

all benefits he may have had as a participant in the Municipal

Employees Annuity and Benefit Fund of Chicago (Fund). For the No. 1-07-1132

reasons which follow, we reverse the judgment of the circuit court,

reverse the decision of the Board, and remand this matter to the

Board for further proceedings.

The plaintiff, an operating engineer in the Department of

Water of the City of Chicago (City), pled guilty to a felony,

federal mail fraud, arising from his participation in a scheme to

pay bribes to Donald Tomczak, the First Deputy Commissioner of the

City’s Department of Water, in exchange for Tomczak directing

trucking business under the City’s Hired Truck Program (HTP) to

Garfield Trucking, Inc. (Garfield). The Plea Agreement entered

into between the plaintiff and the United States Attorney for the

Northern District of Illinois sets forth the following facts giving

rise to the plaintiff's indictment.

In or around late 2000, the plaintiff was asked by Michael

Harjung, a former employee of the City's Department of Water, to

participate in the formation and operation of Garfield, a trucking

business. Harjung told the plaintiff that, once formed, Garfield

would have a steady stream of business from the City's HTP because

he, Harjung, had an ongoing payment arrangement with Tomczak

involving another trucking company. Harjung told the plaintiff

that, in exchange for the payment of $75 per week, Tomczak would

select Garfield's truck for participation in the HTP. After

hearing Harjung describe his arrangement with Tomczak, the

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plaintiff agreed to participate in Garfield and made an initial

investment of $10,000 for the purpose of purchasing a truck that

would be used in the HTP by Garfield. As a City employee, the

plaintiff was prohibited from doing business with the City.

Garfield began receiving HTP business from the City's

Department of Water in April 2002. The business was arranged in

communications between Harjung and Tomczak. Between April 2002 and

January 2004, Garfield had one truck that worked exclusively and

regularly for the HTP.

The plaintiff never paid Tomczak any money directly, and he

never accompanied Harjung when Harjung paid Tomczak. The

plaintiff's principal operating role at Garfield was to pick up

mail, including City warrants sent to Garfield in payment for HTP

work, and to maintain the truck. The plaintiff invested an

additional $10,000 which was used by Garfield for operational

purposes.

The Plea Agreement provides that, in pleading guilty, the

plaintiff admitted the facts set forth in the agreement and that

those facts established the offense of mail fraud beyond a

reasonable doubt.

Following the plaintiff’s conviction, proceedings were

instituted before the Board to declare him ineligible for pension

benefits under article 8 of the Pension Code (Code) (40 ILCS 5/8-

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101 et seq. (West 2004)). The Fund filed a motion for summary

judgment supported by the plaintiff's felony conviction and the

admissions made in his Plea Agreement, arguing that, pursuant to

the provisions of section 8-251 of the Code (40 ILCS 5/8-251 (West

2004)), the plaintiff is ineligible to receive pension benefits

from the Fund. The Board granted the motion for summary judgment,

concluding that "[t]here is no issue of material fact that *** [the

plaintiff] was convicted of a felony relating to or arising out of

or in connection with his service as a municipal employee."

The plaintiff sought a review of the Board's decision in the

Circuit Court of Cook County pursuant to the Administrative Review

Law (735 ILCS 5/3-101 et seq. (West 2004)). The circuit court

confirmed the Board's decision, and this appeal followed.

In an appeal from a decision of the circuit court on a

complaint for administrative review, we review the administrative

decision rather than the circuit court's decision. Bloom v.

Municipal Employees' Annuity and Benefit Fund of Chicago, 339 Ill.

App. 3d 807, 811, 791 N.E.2d 1254 (2003). The Fund asserts that

the Board’s findings of fact are deemed true and correct (see City

of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d

191, 204, 692 N.E.2d 295 (1998)), and that those factual findings

should not be reversed on review unless they are against the

manifest weight of the evidence (Terrano v. Retirement Board of the

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Policemen’s Annuity and Benefit Fund, 315 Ill. App. 3d 270, 274,

733 N.E.2d 905 (2000)). However, as noted earlier, the Board

resolved this matter with the entry of a summary judgment. The

purpose of a summary judgment proceeding is not to resolve issues

of fact, but rather to determine if they exist. Addison v.

Whittenberg, 124 Ill. 2d 287, 294, 529 N.E.2d 552 (1988). Summary

judgment is appropriate if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d

307, 315, 821 N.E.2d 269 (2004). In determining whether a genuine

issue of material fact exists, the evidentiary material of record

must be construed strictly against the movant and liberally in

favor of the non-moving party. Happel v. Wal-Mart Stores, 199 Ill.

2d 179, 186, 766 N.E.2d 1118 (2002). We review a decision granting

a motion for summary judgment de novo. Malmloff v. Kerr, 227 Ill.

2d 118, 123, 879 N.E.2d 870 (2007).

Section 8-251 of the Code provides, in relevant part, as

follows:

"None of the benefits provided for in this Article

[Article 8] 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 municipal employee." 40

ILCS 5/8-251 (West 2004).

5 No. 1-07-1132

In applying a pension disqualification statute such as this, the

pivotal inquiry is whether there is a nexus between the felony of

which the employee has been convicted and the performance of his

official duties. Devoney v. Retirement Board of the Policemen's

Annuity & Benefit Fund for the City of Chicago, 199 Ill. 2d 414,

419, 769 N.E.2d 932 (2002). Mere conviction of a felony while one

is a municipal employee is insufficient to justify a forfeiture of

pension benefits. There must be a "clear and specific connection

between the felony committed and the participant’s employment" to

justify such a forfeiture. Taddeo v. Board of Trustees of the

Illinois Municipal Retirement Fund, 216 Ill. 2d 590, 597, 837

N.E.2d 876 (2005).

In determining whether the requisite nexus exists between the

felony of which the participant has been convicted and his official

duties, the supreme court has applied a "but for" test. Devoney,

199 Ill. 2d at 423; see also Taddeo, 216 Ill. 2d at 597. In

Devoney, the supreme court concluded that, "but for the fact that

[he] was a Police Officer of high rank," Devoney would not have

been in a position to participate in the felonious scheme of which

he was convicted and, thus, the nexus requirement justifying a

forfeiture of his pension benefits was satisfied. Devoney, 199

Ill. 2d at 423.

In this case, the Board found that "[b]ecause of *** [the

6 No. 1-07-1132

plaintiff’s] position as a City employee, he was selected to

participate in Garfield, a company that was formed to obtain HTP

business." Put another way, the plaintiff would not have been

selected to participate in the felonious scheme "but for" his

status as a City employee. The Board’s finding in this regard

appears to have been made to satisfy the nexus requirement

articulated by the court in Devoney. However, there is no

evidentiary support for such a finding in the record.

The only evidentiary material before the Board when it entered

summary judgment in this matter was the plaintiff’s Plea Agreement.

Nothing in that Plea Agreement speaks to the reason why the

plaintiff was asked by Harjung to participate in Garfield. Nor

are there any facts in the Plea Agreement which would support an

inference that the relationship between the plaintiff and Harjung

or any of the other co-conspirators was cultivated because the

plaintiff was an employee of the City’s Water Department or that

he had ever used his position as a City employee for the benefit of

Harjung or the other co-conspirators. See Devoney, 199 Ill. 2d at

423.

The most that can be said based upon the facts set forth in

the Plea Agreement is that, while employed in the City’s Water

Department, the plaintiff participated in a felonious scheme with

Harjung, a former employee of the Water Department, pursuant to

7 No. 1-07-1132

which Tomczak, the First Deputy Commissioner of the Water

Department, was paid bribes for directing HTP business to Garfield.

None of the admissions in the Plea Agreement support the conclusion

that the scheme was the product of the plaintiff’s status as a City

employee or that he used his position as a City employee to

facilitate the scheme. Even assuming that the relationship between

the plaintiff and Harjung had its origin when both men were Water

Department employees, that circumstance standing alone could never

satisfy the nexus requirement in Devoney. The fact that both men

worked at the Water Department explains how they came to know each

other, it does not explain why the plaintiff was asked by Harjung

to participate in a scheme to bribe Tomczak or that his status as

a City employee was in any way relevant to his participation.

In Bloom v. Municipal Employees' Annuity and Benefit Fund of

Chicago, 339 Ill. App. 3d 807, 791 N.E.2d 1254 (2003), this court

found the requisite nexus between the employee’s criminal

wrongdoing and the performance of his official duties to justify

the denial of pension benefits under circumstances where the manner

in which the employee used his official position constituted

"material elements and substantial factors" in his resulting felony

conviction. Bloom, 339 Ill. App. 3d at 816. In that case, Bloom,

a Chicago alderman, was convicted of filing a false federal tax

return, in part, because he falsely categorized on his tax return

8 No. 1-07-1132

sums that were paid to him in exchange for the improper use of his

public office. Bloom, 339 Ill. App. 3d at 809.

In the instant case, however, there was no evidence before the

Board that the manner in which the plaintiff discharged his duties

as a municipal employee was either a material element or a

substantial factor in his conviction for mail fraud. There is no

doubt that the plaintiff’s conviction involved his interest in a

company doing business with the City, something he was prohibited

from doing by reason of his status as a City employee. However,

nothing in the Plea Agreement establishes that the plaintiff used

his position with the City to facilitate the crime to which he pled

guilty or that his conviction was the result of a misuse of that

position.

We do not believe that the facts admitted to by the plaintiff

in his Plea Agreement establish a clear and specific connection

between the felony of which he was convicted and his municipal

employment. Consequently, we find that the Board erred when it

found no genuine issue of material fact on the question of whether

the plaintiff was convicted of a felony "relating to or arising out

of or in connection with his service a municipal employee" and in

entering summary judgment in favor of the Fund. For these reasons,

we reverse the judgment of circuit court, reverse the decision of

the Board, and remand this matter back to the Board for further

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proceedings consistent with this opinion.

Circuit court reversed, Board reversed, and cause remanded.

KARNEZIS, J., concurs.

HALL, J., dissents.

JUSTICE HALL, dissenting.

I respectfully disagree with the majority that a question of

fact exists as to whether the plaintiff was convicted of a felony

"'relating to or arising out of or in connection with his service

as a municipal employee.'" The undisputed evidence established the

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existence of a nexus between the plaintiff's municipal employment

and his felony conviction.

In Devoney, a former police lieutenant was convicted of a

felony based on his participation in an insurance fraud scheme with

David Ballog, Jr. Mr. Bellog, a career criminal, had cultivated a

relationship with Mr. Devoney, finding a friendship with a police

officer to be beneficial. The supreme court determined that the

circumstances surrounding the crime established that it was related

to Mr. Devoney's work as a police officer. Devoney, 199 Ill. 2d at

423. The fact that Mr. Devoney used his position on the police

force for the benefit of Mr. Ballog in a variety of ways over a

protracted period of time supported the finding that Mr. Devoney's

participation in the fraud scheme was the product of his status as

a police officer. Devoney, 199 Ill. 2d at 423.

In the present case, the evidence established that "but for"

his employment in the water department, the plaintiff "'would not

have been in the position or selected to participate in'" the

bribery scheme in this case. Devoney, 199 Ill. 2d at 423.

The plaintiff, a water department employee, was solicited by a

former employee of the water department to participate in a scheme

to bribe another employee of the same department. There is no

evidence that Mr. Harjung involved the plaintiff in the bribery

scheme for any reason other then his employment in the water

11 No. 1-07-1132

department. Like the "friendship" in Devoney, the plaintiff's

participation in the bribery scheme had its origins in the

plaintiff's status as a municipal employee.

Moreover, the undisputed evidence established that there was

a "substantial connection" between the plaintiff's employment and

his felony conviction. As a municipal employee, the plaintiff was

not permitted to do business with the City. The plaintiff's

participation in a scheme to bribe a fellow employee who could

secure City business for the trucking company the plaintiff

invested in provided the substantial connection between his

employment and his subsequent felony conviction based on that

scheme. That he knew from Mr. Harjung that Mr. Tomczak was

responsible for awarding the truck business does not negate the

connection to his employment. His position need not be the sole

cause of his crimes. See Goff v. Teachers' Retirement System, 305

Ill. App. 3d 190, 713 N.E.2d 578 (1999).

As there is no genuine issue of material fact, I would

conclude that the Board did not err in granting summary judgment to

the Fund. I would affirm the judgment of the circuit court.

Therefore, I respectfully dissent.