People ex rel. Lisa Madigan v. Burge ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People ex rel. Madigan v. Burge, 2012 IL App (1st) 112842Appellate Court THE PEOPLE ex rel. LISA MADIGAN, Attorney General State of
Caption Illinois, Plaintiff-Appellant, v. JON BURGE, in His Individual Capacity,
THE RETIREMENT BOARD OF THE POLICEMEN’S ANNUITY
AND BENEFIT FUND OF CHICAGO, and MICHAEL A. CONWAY,
KENNETH A. HAUSER, MICHAEL J. LAZZARO, STEVEN J. LUX,
JAMES P. MALONEY, STEPHANIE D. NEELY, GENE R. SAFFOLD,
MICHAEL K. SHIELDS, in Their Official Capacities as Trustees of the
Policemen’s Annuity and Benefit Fund of Chicago, Defendants-
Appellees.
District & No. First District, Sixth Division
Docket No. 1-11-2842
Filed November 30, 2012
Rehearing denied January 8, 2013
Held On appeal from the dismissal of the Attorney General’s complaint
(Note: This syllabus seeking to enjoin defendant retirement board from continuing to pay
constitutes no part of pension benefits to a retired police officer who was convicted of
the opinion of the court obstruction of justice and perjury in connection with the alleged torture
but has been prepared and abuse of suspects who were in custody while the officer was working,
by the Reporter of the dismissal was reversed and the cause was remanded, since the board
Decisions for the erred in determining that the board’s tie vote on the issue of whether the
convenience of the officer’s convictions were related to his employment allowed the officer
reader.)
to continue to receive pension benefits, and the Attorney General had
standing to sue to recover funds paid in violation of the Pension Code.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-04366; the
Review Hon. Rita M. Novak, Judge, presiding.
Judgment Reversed and remanded with instructions.
Counsel on Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal Solicitor General, and Paul Berks, Assistant Attorney General, of
counsel), for appellant.
Michael H. Moirano and Claire Gorman Kenny, both of Nisen & Elliot,
LLC, of Chicago, for appellee Jon Burge.
David R. Kugler, of Retirement Board of Policemen’s Annuity and
Benefit Fund, of Chicago, for appellee Retirement Board of Policemen’s
Annuity and Benefit Fund.
Panel JUSTICE HALL delivered the judgment of the court, with opinion.
Justice Gordon concurred in the judgment and opinion.
Justice Garcia specially concurred, with opinion.
OPINION
¶1 The Illinois Attorney General appeals from an order of the circuit court dismissing her
complaint against defendants-appellees the Retirement Board of the Policemen’s Annuity
and Benefit Fund of the City of Chicago, its board of trustees (Pension Board), and Jon
Burge, a retired Chicago police officer. In the complaint, the Attorney General, acting on
behalf of the People of the State of Illinois, sought declaratory and injunctive relief seeking
to enjoin the Pension Board from making ongoing pension payments to Burge in light of his
felony convictions. For the reasons that follow, we reverse and remand the matter to the
circuit court for further proceedings.
¶2 Burge was a Chicago police officer from 1970 to 1993. During his tenure with the
Chicago police department, Burge held the ranks of detective, sergeant, and eventually
lieutenant, supervising detectives in the violent crime units in Area Two and Area Three.
Burge is widely believed to have sanctioned and participated in the physical abuse and
torture of arrestees in order to obtain confessions.
¶3 On June 28, 2010, following a jury trial, Burge was convicted of two counts of
obstruction of justice in violation of 18 U.S.C. § 1512(c)(2), and one count of perjury in
violation of 18 U.S.C. § 1621(1). The felony convictions were based upon charges brought
by the federal government against Burge alleging that he gave false representations and
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answers to written interrogatories in civil litigation regarding his knowledge of or
participation in the torture and abuse of suspects in his custody when he was employed by
the Chicago police department. See United States v. Burge, No. 08 CR 846, 2011 WL
167230 (N.D. Ill. Jan. 19, 2011); United States v. Burge, No. 08 CR 846, 2011 WL 13471(N.D. Ill. Jan. 3, 2011).
¶4 On January 21, 2011, Burge was sentenced to 54 months in prison. See Tillman v. Burge,
813 F. Supp. 2d 946, 955 (N.D. Ill. 2011). Burge began receiving pension benefits in 1997
and continues to receive pension benefits of approximately $3,000 per month.
¶5 The Pension Board subsequently held an evidentiary hearing to determine if section 5-
227 of the Illinois Pension Code (Pension Code) (40 ILCS 5/5-227 (West 2010)) applied to
cause Burge to forfeit his ongoing pension payments in light of his felony convictions.
Section 5-227 of the Pension Code states in relevant part that “[n]one 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.” 40 ILCS 5/5-
227 (West 2010).
¶6 At the hearing, counsel for Burge argued that Burge’s pension benefits were not forfeited
under section 5-227 of the Pension Code because his felony convictions were not related to
his conduct as a police officer but, rather, were related to giving false testimony in response
to written interrogatories in a civil suit filed years after he retired from the Chicago police
department. At the conclusion of the hearing, a Pension Board trustee made a motion to
terminate Burge’s monthly pension benefits on the ground that his felony convictions were
connected to his service as a police officer as provided for in section 5-227 of the Pension
Code. The motion was properly seconded and a vote was taken.
¶7 The Pension Board was comprised of eight trustees: four appointed by the City of
Chicago and four elected by police officer participants in the pension fund. See 40 ILCS 5/5-
178, 5-179 (West 2010). The Pension Board split 4 to 4 on the question as to whether
Burge’s felony convictions related to, arose out of, or were connected with his employment
as a Chicago police officer. The four city-appointed trustees all voted to terminate the
benefits, while the four officer-elected trustees all voted to continue the payments. The
Pension Board concluded that the tie vote meant that “Burge was allowed to continue to
receive his monthly pension benefits.” The Pension Board issued its written administrative
decision on January 31, 2011.
¶8 On February 7, 2011, the Attorney General filed the complaint at issue, alleging that the
Pension Board’s decision to allow Burge to continue to receive his monthly pension
payments violated section 5-227 of the Pension Code. The Attorney General sought a
preliminary and permanent injunction ordering the Pension Board to cease all pension
payments to Burge and an order requiring him to repay any benefits paid to him since his
felony convictions. The Attorney General brought the complaint pursuant to section 1-115(b)
of the Pension Code, which authorizes the Attorney General or a participant, beneficiary or
fiduciary, to bring a civil action to enjoin any act or practice which violates any provision of
the Pension Code. 40 ILCS 5/1-115(b) (West 2010).
¶9 In response, the Pension Board filed a motion to dismiss the complaint pursuant to
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sections 2-619(a)(1) and (a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-
619(a)(1), (a)(9) (West 2010)), alleging that the circuit court lacked subject matter
jurisdiction over the complaint because the Pension Board’s final administrative decision
was reviewable only under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West
2008)), and that the Attorney General never filed an action to review the decision under that
law.
¶ 10 Burge filed a motion to dismiss the complaint pursuant to section 2-619(a)(5) of the
Code, along with supporting memorandum. He argued that the circuit court lacked subject
matter jurisdiction over the complaint because the Pension Board’s final administrative
decision was reviewable only under the Administrative Review Law and that the Attorney
General failed to file an action to review the decision within the 35-day limit of section 3-103
of the Administrative Review Law. This section of the Administrative Review Law provides
in relevant part that “[e]very action to review a final administrative decision shall be
commenced by the filing of a complaint and the issuance of summons within 35 days from
the date that a copy of the decision sought to be reviewed was served upon the party affected
by the decision.” 735 ILCS 5/3-103 (West 2008).
¶ 11 On September 2, 2011, the circuit court issued a memorandum decision and order
dismissing the Attorney General’s complaint pursuant to section 2-619(a)(1) of the Code.
The circuit court determined that section 1-115 of the Pension Code did not vest it with
subject matter jurisdiction to rule on the merits of the Attorney General’s complaint where
section 5-189 of the Pension Code (40 ILCS 5/5-189 (West 2010))1 vested the Board with
exclusive original jurisdiction in all matters relating to or affecting the pension fund and
section 5-228 of the Pension Code (40 ILCS 5/5-228 (West 2010))2 provided that judicial
review of a pension board’s final administrative decision was governed by the Administrative
Review Law.
¶ 12 The circuit court also determined that the complaint could not be construed as a
complaint seeking administrative review of the Pension Board’s decision since the Attorney
General admitted that she was not seeking to challenge the Pension Board’s decision but,
instead, the Pension Board’s continued pension payments to Burge. The circuit court further
determined that the complaint could not be construed as a complaint under the
Administrative Review Law because it contained no features of an action for administrative
review where it failed to allege that the Attorney General was a party of record in the
administrative proceedings and there was no indication that the Attorney General sought to
1
Section 5-189 of the Pension Code provides in part that “[t]he Board shall have exclusive
original jurisdiction in all matters relating to or affecting the fund, including, in addition to all other
matters, all claims for annuities, pensions, benefits or refunds.” 40 ILCS 5/5-189 (West 2010).
2
Section 5-228 of the Pension Code provides in part that “[t]he provisions of the
Administrative Review Law, and all amendments and modifications thereof and the rules adopted
pursuant thereto, shall apply to and govern all proceedings for the judicial review of final
administrative decisions of the retirement board provided for under this Article.” 40 ILCS 5/5-228
(West 2010).
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intervene in the proceedings. This appeal followed.
¶ 13 ANALYSIS
¶ 14 The circuit court dismissed the Attorney General’s complaint pursuant to section 2-
619(a)(1) of the Code, based upon its finding that it lacked subject matter jurisdiction over
the complaint. Our review of a dismissal under this section of the Code is de novo.
Consolidated Freightways Corp. of Delaware v. Human Rights Comm’n, 305 Ill. App. 3d
934, 938 (1999).
¶ 15 In reviewing the grant of a section 2-619 motion, we interpret the pleadings and
supporting materials in a light most favorable to the plaintiff. Shirley v. Harmon, 405 Ill.
App. 3d 86, 90 (2010). A section 2-619 motion admits all well-pleaded facts in the complaint
and all reasonable inferences that may be drawn therefrom, but it does not admit conclusions
of law or fact unsupported by specific allegations. Jackson v. Moreno, 278 Ill. App. 3d 503,
505 (1996); Rajcan v. Donald Garvey & Associates, Ltd., 347 Ill. App. 3d 403, 407 (2004).
¶ 16 Reviewing a section 2-619 dismissal is similar to reviewing a grant of a motion for
summary judgment in that we must determine whether a genuine issue of material fact should
have precluded the dismissal or, absent such an issue of fact, whether dismissal was proper
as a matter of law. Shirley, 405 Ill. App. 3d at 90. In this case, there are no disputed issues
of material fact so our review is confined to whether dismissal was proper as a matter of law.
Consolidated, 305 Ill. App. 3d at 938; Millennium Park Joint Venture, LLC v. Houlihan, 241
Ill. 2d 281, 294 (2010) (“An argument challenging the subject matter jurisdiction of the
circuit court presents a question of law ***.”).
¶ 17 “Subject matter jurisdiction refers to a court’s power to adjudicate the general question
involved and to grant the relief requested.” In re Estate of Pellico, 394 Ill. App. 3d 1052,
1064 (2009). A circuit court’s subject matter jurisdiction is conferred by our state
constitution. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334
(2002).
¶ 18 Article VI, section 9, of the Illinois Constitution of 1970 provides that “Circuit Courts
shall have original jurisdiction of all justiciable matters except when the Supreme Court has
original and exclusive jurisdiction relating to redistricting of the General Assembly and to
the ability of the Governor to serve or resume office. Circuit Courts shall have such power
to review administrative action as provided by law.” Ill. Const. 1970, art. VI, § 9. As the
language of article VI, section 9, indicates, circuit courts have original jurisdiction over all
justiciable matters except those explicitly assigned to the supreme court and those arising out
of administrative proceedings.
¶ 19 In the area of administrative review, a circuit court’s power to adjudicate is controlled
by the legislature. Belleville Toyota, Inc., 199 Ill. 2d at 336. The legislature generally has no
authority to limit or preclude a circuit court’s jurisdiction to hear a matter, except for
administrative review of agency decisions where such review is mandated by the agency’s
enabling statute. Our courts have determined that “[w]here the legislature enacts a
comprehensive statutory scheme, creating rights and duties which have no counterpart in
common law or equity, the legislature may define the ‘justiciable matter’ in such a way as
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to preclude or limit the jurisdiction of the circuit courts.” Board of Education of Warren
Township High School District 121 v. Warren Township High School Federation of
Teachers, Local 504, 128 Ill. 2d 155, 165-66 (1989).
¶ 20 In other words, because the legislature establishes administrative agencies and statutorily
empowers them, it may vest exclusive original jurisdiction in an administrative agency.
Village of Itasca v. Village of Lisle, 352 Ill. App. 3d 847, 852 (2004). However, in order for
a legislative enactment to divest circuit courts of their original jurisdiction through a
comprehensive statutory scheme, it must do so explicitly. Employers Mutual Cos. v. Skilling,
163 Ill. 2d 284, 287 (1994).
¶ 21 Statutory interpretation is necessary to determine if the legislature intended to divest the
circuit court of subject matter jurisdiction. Crossroads Ford Truck Sales, Inc. v. Sterling
Truck Corp., 2011 IL 111611, ¶ 27. The primary rule of statutory construction is to ascertain
and give effect to the intent of the legislature. Croissant v. Joliet Park District, 141 Ill. 2d
449, 455 (1990). The best evidence of this intent is the language of the statute itself, which
must be given its plain and ordinary meaning. Krautsack v. Anderson, 223 Ill. 2d 541, 553
(2006).
¶ 22 In this case, the circuit court determined that section 5-189 of the Pension Code divested
it of subject matter jurisdiction to consider the merits of the Attorney General’s complaint.
Section 5-189 of the Pension Code is entitled “To authorize payments” and provides as
follows:
“To authorize payments. To authorize the payment of any annuity, pension, or benefit
under this Article or under any other Act relating to police pensions, heretofore in effect
in the city which has been superseded by this Article; to increase, reduce, or suspend any
such annuity, pension, or benefit whenever any part thereof was secured or granted or the
amount thereof fixed, as the result of misrepresentation, fraud, or error; provided, the
annuitant, pensioner or beneficiary concerned shall be notified and given an opportunity
to be heard concerning such proposed action.
The Board shall have exclusive original jurisdiction in all matters relating to or
affecting the fund, including, in addition to all other matters, all claims for annuities,
pensions, benefits or refunds.” 40 ILCS 5/5-189 (West 2010).
¶ 23 The circuit court interpreted the last sentence of section 5-189 as divesting it of subject
matter jurisdiction to consider the merits of the Attorney General’s complaint on the ground
that this section of the Pension Code vested the Board with exclusive original jurisdiction
in all matters relating to or affecting the pension fund. However, it is well settled that in
construing a statute, a court must not be guided by a single sentence or by an isolated
provision but must view the statute as a whole. In re Consensual Overhear, 323 Ill. App. 3d
236, 240 (2001).
¶ 24 Section 5-189 of the Pension Code grants the Board the power to authorize, increase,
reduce, or suspend any annuity, pension, or benefit that was secured or granted as the result
of misrepresentation, fraud, or error–provided that the annuitant, pensioner or beneficiary
was given due process protection concerning such proposed action. 40 ILCS 5/5-189 (West
2010). But the Board’s authority under section 5-189 of the Pension Code does not include
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the authority to bring civil actions to enjoin acts or practices allegedly violating provisions
of the Pension Code. Rather, such authority is granted to the Attorney General pursuant to
section 1-115(b) of the Pension Code. This section of the Pension Code, entitled “Civil
Enforcement,” provides in relevant part that a “civil action may be brought by the Attorney
General or by a participant, beneficiary or fiduciary in order to: *** (b) Enjoin any act or
practice which violates any provision of this Code.” 40 ILCS 5/1-115(b) (West 2010).
¶ 25 Viewing the statute as a whole, we find no explicit language in the statute expressing a
legislative intent to divest circuit courts of the subject matter jurisdiction to hear civil actions
brought by the Attorney General under section 1-115(b) of the Pension Code. As a result, we
find that the circuit court erred in interpreting section 5-189 of the Pension Code as divesting
it of the subject matter jurisdiction to address the Attorney General’s claims. We find that
section 1-115(b) gives the circuit court concurrent subject matter jurisdiction with the
Pension Board to hear the disputed pension issues presented in the Attorney General’s
complaint. “Where a circuit court and an administrative agency both have jurisdiction over
a matter, they are said to have concurrent jurisdiction.” Village of Itasca v. Village of Lisle,
352 Ill. App. 3d 847, 853 (2004).
¶ 26 When a matter falls both within the circuit court’s jurisdiction and the Pension Board’s
jurisdiction, the prudent course generally is to allow the Pension Board the opportunity to
address the matter first. See, e.g., Village of Itasca, 352 Ill. App. 3d at 853 (the doctrine of
primary jurisdiction provides that in some instances when a circuit court and an
administrative agency have concurrent jurisdiction over the subject matter of a dispute, the
court should stay judicial proceedings pending referral of the controversy, or a portion of it,
to the agency having expertise in the area). This approach allows the Pension Board to bring
its experience and expertise to bear in resolving issues arising under the Pension Code, while
at the same time preserving the Attorney General’s ability to fulfill her statutory
responsibility under section 1-115(b) to enjoin violations of the Code.
¶ 27 In this case, the Pension Board split 4 to 4 on the question as to whether Burge’s felony
convictions related to, or arose out of, or were connected with his employment as a Chicago
police officer. The Pension Board then determined that this tie vote effectively allowed
Burge to continue to receive his monthly pension benefits. Consequently, the Pension
Board’s decision allowing Burge to continue to receive his pension payments was not
approved by a majority of the members of the Pension Board as required by section 5-182
of the Pension Code. A “majority” is generally defined as “ ‘[t]he number greater than half
of any total.’ ” County of Kankakee v. Anthony, 304 Ill. App. 3d 1040, 1047 (1999) (quoting
Black’s Law Dictionary 955 (6th ed. 1990)).
¶ 28 Section 5-182 of the Pension Code provides in relevant part that “no pension, annuity,
or benefit shall be allowed or granted and no money shall be paid out of the fund unless
ordered by a vote of the majority of the members of the board.” 40 ILCS 5/5-182 (West
2010). This section of the Pension Code requires approval by a majority of the “members of
the board.” See Village of Oak Park v. Village of Oak Park Firefighters Pension Board, 362
Ill. App. 3d 357, 369 (2005).
¶ 29 As a creature of statute, the Pension Board may exercise only those powers conferred
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upon it by statute. See, e.g., Nader v. Illinois State Board of Elections, 354 Ill. App. 3d 335,
340 (2004). Here, the Pension Board had the statutory authority to conduct a vote on the
question as to whether Burge’s felony convictions related to, or arose out of, or were
connected with his service as a Chicago police officer. See 40 ILCS 5/5-227 (West 2010).
Based upon the outcome of that vote, the Pension Board possessed the statutory authority to
determine whether Burge should continue to receive his monthly pension benefits. See 40
ILCS 5/5-189 (West 2010).
¶ 30 However, the Pension Board erred in violation of section 5-182 of the Pension Code
when it concluded that a tie vote meant that “Burge was allowed to continue to receive his
monthly pension benefits.” When an administrative agency has jurisdiction over the parties
and the subject matter in question, but makes an erroneous decision, the decision is voidable.
See Wabash County v. Illinois Municipal Retirement Fund, 408 Ill. App. 3d 924, 930 (2011);
Board of Education of the City of Chicago v. Board of Trustees of the Public Schools
Teachers’ Pension & Retirement Fund, 395 Ill. App. 3d 735, 739-41 (2009). In the instant
case, the Pension Board’s decision that a tie vote meant that “Burge was allowed to continue
to receive his monthly pension benefits” was erroneous in violation of section 5-182 of the
Pension Code, rendering the decision voidable and subject to review by the circuit court.
¶ 31 Finally, we reject the suggestion that the Attorney General lacked standing to assert the
claims set forth in her complaint. “The doctrine of standing requires that a party, either in an
individual or representative capacity, have a real interest in the action brought and in its
outcome.” In re Estate of Wellman, 174 Ill. 2d 335, 344 (1996). The purpose of standing is
to ensure that courts are deciding actual, specific controversies and not abstract questions or
moot issues. Id. Standing requires some injury in fact to a legally recognizable interest. Greer
v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988).
¶ 32 Article V, section 15, of the Illinois Constitution of 1970 provides that “The Attorney
General shall be the legal officer of the State, and shall have the duties and powers that may
be prescribed by law.” Ill. Const. 1970, art. V, § 15. “Our supreme court has interpreted this
provision to mean that the Illinois Attorney General is vested with those powers and duties
associated with the office of Attorney General at common law as well as with whatever
additional powers and duties for which the legislature provides.” People ex rel. Devine v.
Time Consumer Marketing, Inc., 336 Ill. App. 3d 74, 79-80 (2002).
¶ 33 Pursuant thereto, the Attorney General’s statutorily prescribed duties include, among
others, the duty to represent the people of the state in any litigation in which the people of
the state are interested; and to investigate alleged violations of the statutes which the
Attorney General has a duty to enforce. 15 ILCS 205/4 (West 2000). Here, the Attorney
General, as the representative of all the taxpayers of the state, has the standing under her
statutory powers to sue to recover funds3 disbursed in violation of section 5-227 of the
Pension Code.
3
Pursuant to statute, the City of Chicago maintains four pension funds, one of which is the
Policemen’s Annuity and Benefit Fund. See Ryan v. City of Chicago, 148 Ill. App. 3d 638, 639-40
(1986). This fund is financed part by the City of Chicago through special property taxes. Id.-8-
¶ 34 For the foregoing reasons, we reverse the judgment of the circuit court dismissing the
Attorney General’s complaint. We remand this cause for further proceedings consistent with
this opinion.
¶ 35 Reversed and remanded with instructions.
¶ 36 JUSTICE GARCIA, specially concurring.
¶ 37 I agree with Justice Hall that section 1-115(b) of the Pension Code, by its clear and
unambiguous language, can mean nothing other than the circuit court has jurisdiction to
entertain a civil action filed by the Illinois Attorney General to challenge pension benefits
paid to Burge since his federal conviction on June 28, 2010, as contrary to Illinois pension
law. Supra ¶ 25. “A civil action may be brought by the Attorney General *** to *** [e]njoin
any act or practice which violates any provision of this Code ***.” 40 ILCS 5/1-115(b)
(West 2010). However, the majority opinion goes too far (and unnecessarily) in decreeing
that the 4 to 4 vote by the Board constitutes a violation of section 5-182 of the Pension Code
because the “tie vote meant that ‘Burge was allowed to continue to receive his monthly
pension benefits.’ ” Supra ¶ 30. The tie vote meant nothing more than the status quo of
Burge receiving pension benefits would be maintained. With a Board membership of eight,
a tie vote seems hardly unexpected or unanticipated by the enabling legislation. More
fundamentally, I disagree with the suggestion that the four members of the Board that voted
in favor of continuing Burge’s pension benefits somehow violated a duty owed to the pension
fund based on the resulting tie vote. Supra ¶ 7.
¶ 38 The Attorney General contends section 5-182 serves as a mechanism to stop pension
benefits in the event of a tie vote: “Where, as here, a majority of the members did not support
payment, the pension should have been terminated.” I find the Attorney General’s assertion
that pension benefits may be terminated based on an event subsequent to the Board’s initial
grant of pension benefits, where the Board votes 4 to 4 on the question of termination of
pension benefits, to be unprecedented. Pension benefits may only be terminated in
compliance with due process. Kosakowski v. Board of Trustees of the City of Calumet City
Police Pension Fund, 389 Ill. App. 3d 381, 387 (2009) (“The receipt of a disability pension
is a property right which cannot be diminished without procedural due process.”). The
Attorney General offers no authority for her outlandish claim that a 4 to 4 vote means the
pension benefits a pensioner has been receiving for over a decade may cease simply because
a majority did not vote in favor of a continuation of the pension payments.
¶ 39 Section 5-182 is violated only when a “pension, annuity, or benefit” is approved by less
than the majority of the Board. 40 ILCS 5/5-182 (West 2010). The Board’s tie vote did not
approve a pension benefit for Burge. The pension benefits Burge had been receiving were
approved in 1997, long before the Board’s vote was taken in January 2011. Supra ¶ 4. That
no violation of section 5-182 occurred based on the tie vote is reinforced by the
uncontestable fact that had the Board not taken a vote to terminate Burge’s pension, the
pension payments would have continued. Under the Attorney General’s contention, it appears
that a nonvote would not have violated section 5-182, yet a tie vote does, though the end
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result under either scenario would be the same; that is, Burge would continue to receive his
pension benefits. The Board’s evenly split vote in January 2011 changed nothing. Nor can
the Attorney General deny that, had the Board voted 5 to 3 to allow the pension benefits to
continue (foreclosing a claim that section 5-182 was violated), the Attorney General still
would have pursued a civil action under section 1-115(b) in an effort to prove that Burge’s
federal felony convictions triggered a forfeiture of pension benefits under section 5-227. 40
ILCS 5/5-227 (West 2010). It is far-fetched to label a tie vote a violation of the Code simply
because the Board was precluded from altering the status quo.
¶ 40 If a violation of the Code occurred, it occurred because Burge’s federal felony
convictions were related to his employment as a Chicago police officer, which section 5-227
declares results in the forfeiture of benefits.4 See Devoney v. Retirement Board of the
Policemen’s Annuity & Benefit Fund, 199 Ill. 2d 414, 423-24 (2002) (claimant’s felony
conviction in federal court rendered him ineligible for his police pension benefits under
section 5-227 of the Pension Code). Such a violation has nothing to do with the Board’s
January 2011 decision and everything to do with the nature of Burge’s federal convictions.
See Romano v. Municipal Employees Annuity & Benefit Fund, 402 Ill. App. 3d 857, 861
(2010) (pension board’s decision declaring the plaintiff ineligible for pension benefits was
against the manifest weight of the evidence where there was no “clear and specific
connection between the felony of which the plaintiff was convicted and his municipal
employment”).
¶ 41 The procedure to address continued pension payments under the circumstances of this
case is precisely the action the Attorney General took–filing a civil action under section 1-
115. There is no basis to conclude that a violation of the Code occurred under section 5-182
simply because a decision to terminate the pension benefits Burge had been receiving since
1997 was not approved by a majority of the Board.
¶ 42 All this said, a remand to the circuit court is necessary to permit the Attorney General’s
section 1-115(b) civil action to go forward to a resolution On remand, if it is proved that
Burge’s felony convictions relate to, arise out of, or are connected “with his service as a
policeman” (40 ILCS 5/5-227 (West 2010)), then the Pension Board will be ordered to
terminate the pension benefits.5 Devoney, 199 Ill. 2d at 423-24. Burge may also be ordered
to repay the wrongfully received pension benefits since his federal felony convictions in June
4
It bears noting that the Attorney General’s section 1-115(b) civil action did not allege a
violation of section 5-182.
5
The real issue raised in the civil action by the Attorney General regarding an alleged
violation of section 5-227 also highlights the misguided notion that section 5-182 was violated by
the tie vote. We are not remanding to the Board to correct a purported violation of the Pension Code
based on the tie vote by the Board; we are remanding to the circuit court to allow the Attorney
General to pursue her civil action.
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2010.6
¶ 43 I specially concur in the judgment.
6
Notably, the purported violation of section 5-182 triggers no additional consequences as
to the pension benefits received by Burge since the Board’s decision of January 31, 2011, should a
violation of section 5-227 trigger a reimbursement of the pension benefits received since Burge’s
convictions in 2010.
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