Romano v. Municipal Employees Annuity & Benefit Fund

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 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 than his employment in the water department. Like the “friendship” in Devoney, the plaintiffs participation in the bribery scheme had its origins in the plaintiffs status as a municipal employee.

Moreover, the undisputed evidence established that there was a “substantial connection” between the plaintiffs employment and his felony conviction. As a municipal employee, the plaintiff was not permitted to do business with the City. The plaintiffs 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.