Romano v. Municipal Employees Annuity and Benefit Fund of Chicago

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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No. 1-07-1132
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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No. 1-07-1132
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).
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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
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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
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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
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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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No. 1-07-1132
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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No. 1-07-1132
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
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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.
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