Romano v. Municipal Employees Annuity and Benefit Fund of Chicago ( 2010 )

SECOND DIVISION
FILED: June 29, 2010
No. 1-09-3595
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 ) 09 CH 26406
ANNUITY AND BENEFIT FUND OF CHICAGO, )
PETER BREJNAK, JOSEPH M. MALATISTA, )
STEPHANIE D. NEELY, STEVEN J. LUX, and )
JOHN K. GIBSON, President and Members )
of the Board of Trustees of the )
Municipal Employees Annuity and Benefit )
Fund of Chicago, ) HONORABLE
) STUART E. PALMER,
Defendants-Appellees. ) JUDGE PRESIDING.
JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, Charles Romano, again 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, federal mail fraud, 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. 1-09-3595
reasons which follow, we reverse the judgment of the circuit court
and the decision of the Board.
We set forth the majority of the facts relevant to the
disposition of this case in our prior decision. See Romano v.
Municipal Employees Annuity and Benefit Fund of Chicago, 384 Ill.
App. 3d 501, 501-503, 894 N.E.2d 151 (2008) (hereinafter referred
to as Romano I). We, again, restate those facts for the
convenience of the reader.
The plaintiff, an operating engineer in the employ 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). As we noted in Romano I, 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
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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 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
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No. 1-09-3595
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." Romano I, 384
Ill. App. 3d at 502.
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-
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, finding 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 the plaintiff appealed. Romano
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No. 1-09-3595
I, 384 Ill. App. 3d at 502-03. We reversed the circuit court’s
order and the summary judgment entered by the Board, and we
remanded the matter back to the Board for further proceedings.
Romano I, 384 Ill. App. 3d at 505.
On remand, the Board held a hearing at which the plaintiff was
the only witness, and his Plea Agreement was received in evidence.
In addition to the facts admitted by the plaintiff in his Plea
Agreement as set forth above, he testified that Mark LeBaron, his
supervisor, gave Harjung his phone number, and that it was Harjung
who contacted him and proposed that he participate in the formation
of Garfield. According to the plaintiff, he and Harjung had worked
together for the City 20 years earlier.
The plaintiff admitted that, in his duties for the City, he
would use trucks that were in the HTP on a daily basis. He denied,
however, that he ever had anything to do with ordering trucks from
the HTP or that the truck owned by Garfield was ever sent to any
job that he was working on. He also denied that, as part of his
duties for the City, he did anything whatever to assist Garfield in
getting business or in working for the City.
Following the hearing, the Board issued a written decision,
finding that the plaintiff had been convicted of a felony that is
"related to, arose out of, or was in connection with his employment
with the City of Chicago," and, as a consequence, the Board held
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No. 1-09-3595
that he had forfeited all benefits that he may have earned as a
participant in the Fund.
The plaintiff, again, sought a review of the Board's decision
in the Circuit Court of Cook County pursuant to the Administrative
Review Law. The circuit court confirmed the Board's decision, and
this appeal followed.
In urging reversal, the plaintiff argues that the Board's
decision is against the manifest weight of the evidence. He
contends that there is no evidence in the record supporting the
Board’s finding that the felony of which he was convicted is
"related to, arose out of, or was in connection with his employment
with the City." The plaintiff concludes, therefore, that, in the
absence of any nexus between his employment with the City and the
felony of which he was convicted, the Board erred in holding that
he forfeited the benefits which he earned as a participant in the
Fund.
We begin our analysis by articulating the standard of review.
As in any review of an administrative decision, we accept the
Board’s factual findings as prima facie true and correct (735 ILCS
5/3-110 (West 2008); City of Belvidere v. Illinois State Labor
Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998)), and
we will not reverse those findings unless they are against the
manifest weight of the evidence (Terrano v. Retirement Board of the
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No. 1-09-3595
Policemen’s Annuity and Benefit Fund of the City of Chicago, 315
Ill. App. 3d 270, 274, 733 N.E.2d 905 (2000)).
A factual finding of an administrative agency is against the
manifest weight of the evidence only if an opposite conclusion is
clearly evident. Abrahamson v. Illinois Department of Professional
Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992). The fact
that a conclusion opposite that reached by the agency is reasonable
or that a reviewing court might have ruled differently will not
justify reversing the findings of an administrative agency.
Abrahamson, 153 Ill. 2d at 88. When, however, the decision of an
administrative agency is against the manifest weight of the
evidence, it is the court’s duty to reverse it. Zien v. Retirement
Board of the Firemen’s Annuity & Benefit Fund of Chicago, 236 Ill.
App. 3d 499, 507, 603 N.E.2d 777 (1992).
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).
In Devoney v. Retirement Board of the Policemen’s Annuity &
Benefit Fund for the City of Chicago, 199 Ill. 2d 414, 419, 769
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No. 1-09-3595
N.E.2d 932 (2002), our supreme court held that, 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. Breach of duty to the municipality is not what triggers
disqualification; rather, it is the existence of a connection
between the actual felony conviction and the employee's duties.
Devoney, 199 Ill. 2d at 419. That is to say, 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).
The supreme court in Devoney found that the nexus requirement
was satisfied because "but for the fact that Devoney was a Police
Officer of high rank, he would not have been in a position or
selected to participate in the scheme to defraud." Devoney, 199
Ill. 2d at 423. In this case, the Board argues that the evidence
of record supports its finding that, "[b]ecause of *** [the
plaintiff’s] position as a City employee, he was asked by Harjung
to participate with him in Garfield, a company that they formed to
obtain HTP business," and as consequence, the nexus between the
felony of which the plaintiff was convicted and his employment
necessary to support a forfeiture of his right to any benefits as
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No. 1-09-3595
a participant in the Fund was satisfied. The Board also points to
other facts which it contends establish that nexus, namely: that
the plaintiff’s job with the City gave him access to the HTP, the
knowledge of whom to bribe, and information as to the scope of the
HTP program; that he used HTP trucks on a daily basis in his City
employment; and that LeBaron, a co-City worker with the plaintiff,
supplied Harjung with the plaintiff’s telephone number.
We have reviewed the Plea Agreement and the plaintiff’s
testimony before the Board, and we do not believe that the evidence
establishes a clear and specific connection between the felony of
which the plaintiff was convicted and his municipal employment.
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 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. In his
testimony before the Board, the plaintiff stated that, from the
time that he was first contacted by Harjung and throughout the
entire scheme, no one ever suggested that he had been asked to
participate in Garfield because he was a City employee. The fact
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No. 1-09-3595
that the plaintiff and Harjung worked together for the City some 20
years before the events giving rise to the plaintiff’s conviction
explains how they came to be acquainted, it does not explain why
the plaintiff was asked by Harjung to participate in a scheme to
bribe Tomczak or establish that his status as a City employee was
in any way relevant to his participation in the felonious scheme.
The notion that whatever relationship the plaintiff and Harjung
developed when they worked together for the City some 20 years
earlier constitutes a substantial connection between the
plaintiff’s service for the City and his felony conviction or that
the relationship satisfies the requisite nexus necessary to a
forfeiture of benefits under section 8-251 of the Code is pure
sophistry. Further, the fact that LeBaron, the plaintiff’s
supervisor, gave Harjung the plaintiff's phone number explains how
Harjung located the plaintiff; but, again, it does not explain why
the plaintiff was asked by Harjung to participate in the felonious
scheme.
There is no disputing the fact that, while employed by the
City, the plaintiff participated in a scheme with Harjung, a former
City employee, pursuant to which Tomczak, the First Deputy
Commissioner of the Water Department, was paid bribes for directing
HTP business to Garfield. However, there is no evidence, either in
the admissions contained in the Plea Agreement or in the
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No. 1-09-3595
plaintiff’s testimony, which could support the conclusion that the
felonious 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. The plaintiff admitted that he regularly
used trucks that were retained by the City as part of the HTP in
his work, but he denied that he had anything to do with ordering
those trucks. He also denied that the truck owned by Garfield was
ever used on a job where he was working. The plaintiff’s testimony
in this regard was unrebutted.
The circumstances of this case are readily distinguishable
from those of the cases upon which the Board relies; the very facts
supporting the requisite nexus between the employees felony
convictions and their employment differ. In Devoney, the supreme
court found that the plaintiff’s participation in the fraudulent
scheme of which he was convicted was the product of his status as
a police officer. The court’s conclusion in this regard was based
upon its finding that he would not have been selected to
participate in the scheme "but for" the fact that he was a high
ranking police officer, as evidenced by the use of his position to
benefit his co-conspirator "in a variety of ways over a protracted
period of time." Devoney, 199 Ill. 2d at 423-24. In this case,
there is no evidence that the plaintiff had ever used his position
as a City employee to benefit Harjung, or any other co-conspirator,
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No. 1-09-3595
either before or after the time that he was solicited to
participate in Garfield and the scheme to bribe Tomczak, and there
is no evidence in the record that he was selected to participate in
the felonious scheme because of his position with the City.
In Bauer v. State Employees' Retirement System of Illinois,
366 Ill. App. 3d 1007, 852 N.E.2d 497 (2006), the court found that,
"but for" the plaintiff’s former position as the State’s Inspector
General, he would not have been in a position to attempt to
persuade his former secretary to conceal or destroy documents
relevant to a federal investigation; thus, establishing a nexus
between his felony conviction for obstruction of justice and his
employment. Bauer, 366 Ill. App. 3d at 1020. In contrast, there
is no evidence in this case that the plaintiff’s service as a
municipal employee made the bribery of Tomczak possible, or in any
way contributed to Garfield’s participation in the HTP. Rather,
the Plea Agreement reflects that, when he solicited the plaintiff’s
participation, Harjung told the plaintiff that he already had an
ongoing payment arrangement with Tomczak involving another trucking
company.
In Siwek v. Retirement Board of the Policemen’s Annuity and
Benefit Fund, 324 Ill. App. 3d 820, 756 N.E.2d 374 (2001), the
plaintiff, a police officer, was convicted of two felony drug
offenses. On appeal, this court found that Siwek’s specialized
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No. 1-09-3595
knowledge gained as a police officer and his relationship with a
police informant, which were used to set up the personal drug
transactions underlying his felony convictions, related to his
service as a police officer, justifying forfeiture of his pension
benefits. Siwek, 324 Ill. App. 3d at 829. In this case, the
plaintiff’s Plea Agreement plainly states that: it was Harjung who
devised the scheme to bribe Tomczak in exchange for selecting
Garfield for participation in the HTP; Garfield’s receipt of HTP
business was arranged between Harjung and Tomczak; and it was
Harjung who delivered the bribes to Tomczak, never the plaintiff.
Additionally, the plaintiff testified that, in the discharge of his
job duties, he never ordered trucks to a job site from the HTP, and
he never did anything as part of his job duties to assist Garfield
in getting City business. There is no contrary evidence in the
record. According to the Plea Agreement, other than providing
money to purchase a truck and for operating purposes, the
plaintiff’s principal role at Garfield was picking up mail and
maintaining the truck. Nothing in the record supports an inference
that any knowledge gained by the plaintiff as a City employee or
any of his activities as a City employee contributed to the
activities of Garfield, its participation in the HTP, or the
bribing of Tomczak.
In Bloom v. Municipal Employees’ Annuity and Benefit Fund of
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No. 1-09-3595
Chicago, 339 Ill. App. 3d 807, 791 N.E.2d 1254 (2003), a former
Chicago alderman pled guilty to filing a false federal tax return
in which he intentionally miscategorized funds paid to him for the
improper use of his public office. Bloom was denied pension
benefits under section 2-251 of the Code because his improper
receipt of payments for performing aldermanic services were
material and substantial factors in his resulting felony tax
conviction. Bloom, 339 Ill. App. 3d at 816.
In Goff v. Teachers' Retirement System of the State of
Illinois, 305 Ill. App. 3d 190, 713 N.E.2d 578 (1999), a retired
teacher pled guilty to the aggravated sexual abuse of children
attending the school in which he worked. Although the conduct
underlying the convictions never took place on school property,
Goff used his position as a teacher to take sexual advantage of his
victims, and, as a consequence, the court found that he "used and
abused" his service as a teacher to perpetrate the felonies of
which he pled guilty, justifying forfeiture of his pension
benefits. Goff, 305 Ill. App. 3d at 195-96. Again, however,
unlike the facts in Bloom and Goff, nothing in the record supports
a conclusion that any activity on the part of the plaintiff as a
City employee contributed to the felonious scheme, perpetuated the
behavior of which he was convicted, or formed a factor in bringing
about that conviction.
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No. 1-09-3595
Finally, in Katalinic v. Board of Trustees of the Municipal
Employees’, Officers', and Officials’ Annuity and Benefit Fund, 386
Ill. App. 3d 922, 898 N.E.2d 243 (2008), the count found that, "but
for" the plaintiff’s former job as a deputy commissioner of the
City’s department of streets and sanitation, he would not have been
in a position to become involved in the hiring and promotion scheme
which led to his conviction for mail fraud, and his employment with
the City was a substantial factor in bringing about the conduct
underlying his conviction. Katalinic, 386 Ill. App. at 929-30. In
this case, there is no evidence that the plaintiff’s position with
the City was a factor in his recruitment by Harjung, nor is there
any evidence that his position aided the furtherance of the scheme.
As noted earlier, on review the Board’s factual findings are
to be accepted as prima facie true and correct. Nevertheless, they
must still be supported by evidence, either direct or
circumstantial. As there is no direct evidence supporting the
Boards conclusion that the plaintiff was selected to participate in
the scheme giving rise to his conviction because of his position as
a City employee, it must be an inference based upon circumstantial
evidence. The Board seemingly asserts that factors such as the
plaintiff and Hartung having work worked together for the City, and
LeBaron, the plaintiff’s supervisor, having given Hartung the
plaintiff’s telephone number constitute sufficient circumstantial
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No. 1-09-3595
evidence to support the inference it drew. We disagree.
To be sufficient to support an inference, circumstantial
evidence must show a probability of the existence of the fact to be
inferred. Pyne v. Witmer, 129 Ill. 2d 351, 369, 543 N.E.2d 1304
(1989). Although the circumstantial evidence need not exclude all
other possible inferences, it must be of such a nature and so
related as to make the conclusion reached the more probable. Pyne,
129 Ill. 2d at 369. Where from the proven facts the non-existence
of the fact to be inferred appears to be just as probable as its
existence, then the conclusion that it exists is a matter of
speculation, surmise, and conjecture. Consolino v. Thompson, 127
Ill. App. 3d 31, 34, 468 N.E.2d 422 (1984).
In this case, it is certainly possible that Harjung invited
the plaintiff to participate in the felonious scheme because of the
plaintiff's City employment, but it is not probable. Before
inviting the plaintiff to participate in the scheme which led to
his conviction, Harjung already had an ongoing payment arrangement
with Tomczak for another trucking company involved in the HTP.
More importantly, there is no evidence in this record that the
plaintiff ever used his position with the City to further the
scheme. The plaintiff invested money, picked up Garfield's mail,
and maintained the truck; nothing more.
In the absence of sufficient circumstantial evidence to
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No. 1-09-3595
support an inference that the plaintiff was chosen to participate
in the scheme giving rise to his conviction because of his position
as a City employee and the absence of any evidence that the
plaintiff used his position as a City employee to further the
scheme, the Board's conclusion that the plaintiff's felony
conviction is "related to, arose out of, or was in connection with
his employment with the City of Chicago," is against the manifest
weight of the evidence.
The question is not whether the plaintiff, a City employee,
was convicted of a felony; the question is whether the evidence
supports a finding that he was convicted of a felony "relating to
or arising out of or in connection with his service as a municipal
employee." 40 ILCS 5/8-251 (West 2004). Based upon the foregoing
analysis, we find that the evidence before the Board does not
support such a finding. As a consequence, we reverse the judgment
of the circuit court and the decision of the Board.
Reversed.
CUNNINGHAM, P.J., and KARNEZIS, J., concur.
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