Ryan v. Board of Trustees of the General Assembly Retirement System

JUSTICE BURKE

dissenting:

Today a majority of this court reverses the appellate court judgment and reinstates the decision of the Board of Trustees of the General Assembly Retirement System (Board) to deny former Governor George H. Ryan, Sr., all of the pension benefits he would have received as a result of his contributions to the System as a member of the General Assembly, as Lieutenant Governor, as Secretary of State, and as Governor. I believe, however, that the majority incorrectly construes the forfeiture provision at issue here, section 2 — 156 of the Illinois Pension Code (40 ILCS 5/2 — 156 (West 2006)). In so doing, the majority ignores principles of stare decisis and implicitly overturns our decision in Taddeo v. Board of Trustees of the Illinois Municipal Retirement Fund, 216 Ill. 2d 590 (2005). For these reasons, I respectfully must dissent from the majority opinion.

Section 2 — 156 of the Pension Code provides:

“None of the benefits herein provided for shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his or her service as a member.” 40 ILCS 5/2 — 156 (West 2006).

The Code also defines the term “member” as:

“Members of the General Assembly of this State including persons who enter military service while a member of the General Assembly and any person serving as Governor, Lieutenant Governor, Secretary of State, Treasurer, Comptroller, or Attorney General for the period of service in such office.” 40 ILCS 5/2 — 105 (West 2006).

Interpreting this forfeiture provision, the majority concludes that section 2 — 156 is “clear and unambiguous” (236 Ill. 2d at 320) and

“under the Code’s plain language, any person who is convicted of any felony relating to his or her service as Governor or Secretary of State shall receive none of the benefits provided for under the System. Here, there is no dispute that Ryan was convicted of multiple federal felonies relating to his service as both Governor and Secretary of State. Accordingly, section 2 — 156 plainly mandates that none of the benefits provided for under the System shall be paid to Ryan. The forfeiture, in other words, is total. Ryan gets nothing.” (Emphases in original.) 236 Ill. 2d at 320.

The majority also finds that “[tjhis result is consistent not only with the plain language of the governing statutes, but also with this court’s most recent pension forfeiture decision,” Taddeo v. Board of Trustees of the Illinois Municipal Retirement Fund, 216 Ill. 2d 590 (2005). 236 Ill. 2d at 320. The majority is incorrect.

In the majority’s view, it is irrelevant that the felonies for which Ryan was convicted were related to, arose out of or were in connection with his service as Secretary of State and Governor, but that he was guilty of no wrongdoing while he served in the office of Lieutenant Governor or as a member of the General Assembly. For the majority, all that is required to establish complete forfeiture of all of the benefits is that a felony be committed by a person while that person was serving in any one position which falls within the definition of “member” under the statute. In Taddeo, however, we rejected the identical statutory analysis.

In Taddeo, we addressed the forfeiture of pension benefits under section 7 — 219 of the Illinois Municipal Retirement Fund. This forfeiture provision, which parallels exactly the forfeiture provision at issue here, states:

“None 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 an employee.” (Emphases added.) 40 ILCS 5/7 — 219 (West 2002).

In Taddeo, the Pension Board argued the plain language of section 7- — 219 required us to find that “none of the benefits provided for” in the relevant article of the Pension Code may be paid if the participant commits “any felony relating to or arising out of or in connection with his service as an employee” and that “as an employee” should be interpreted to mean “as an employee of any IMRF employer.” (Emphases in original.) Taddeo, 216 Ill. 2d at 596. Stated differently, the Board argued that if a participant commits a felony related to only one position of employment, he should receive “none of the benefits.” This is the same statutory argument that the majority adopts today.

In Taddeo, however, we rejected this argument, concluding that the plain language of the statute simply “does not speak” (Taddeo, 216 Ill. 2d at 598) to those situations where a person is a participant in a pension fund as a result of more than one position. Having rejected the Board’s “plain language” interpretation, we concluded that the statutory language was susceptible to more than one interpretation, so that legislative intent had to be ascertained by considering “ ‘the entire act, its nature, its object, and the consequences resulting from different constructions.’ ” Taddeo, 216 Ill. 2d at 595-96, quoting Shields v. Judges’ Retirement System, 204 Ill. 2d 488, 494 (2003), citing Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 96 (1990). We also noted that pension statutes are to be “liberally construed in favor of the rights of the pensioner.” Shields, 204 Ill. 2d at 494, citing Matsuda v. Cook County Employees’ & Officers’ Annuity & Benefit Fund, 178 Ill. 2d 360, 365-66 (1997).

The majority in the case at bar fails to acknowledge that we rejected the Board’s plain language argument in Taddeo and fails to offer any rationale for why that argument is now controlling. Ignoring the statutory analysis offered in Taddeo, the majority instead emphasizes the fact that, in Taddeo, the plaintiff had two employers. From this, the majority reasons that “Taddeo stands for the principle that the conviction of a job-related felony results in the forfeiture of all pension benefits earned in service of the public employer whose trust was betrayed.” (Emphasis added.) 236 Ill. 2d at 322. In this way, the majority reasons, Taddeo may be reconciled with its holding. The problem, however, is that this reasoning is not consistent with the majority’s own statutory analysis.

As noted above, according to the majority’s statutory analysis, a felony conviction plus one position which permits a person to be a “member” of the pension fund equals total forfeiture. By that same logic, the result in Taddeo should have been different — a felony conviction while Taddeo was an employee of one municipality which permitted him to participate in the pension fund should have meant total forfeiture. This was not the result reached. The majority’s reasoning in this case, and the result reached in Taddeo, are irreconcilable.

Because we concluded in Taddeo that the statutory provision did not cover the situation at hand, we looked to previous precedent, specifically, Devoney v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 199 Ill. 2d 414 (2002). In Devoney, we held “[w]hen applying the pension disqualification statutes, including section 5 — 227, the pivotal inquiry is whether a nexus exists between the employee’s criminal wrongdoing and the performance of his official duties.” Devoney, 199 Ill. 2d at 419. Thus, in Devoney, we concluded that without a connection between the wrongdoing and the performance of official duties, there could be no loss of benefits.

In Taddeo, we applied this rationale and concluded that Taddeo’s pension benefits could be forfeited only if there was a clear and specific connection between the felony he committed and his employment. Taddeo, 216 Ill. 2d at 597. Thus, in Taddeo, we found that, because there was a connection between the felony and Taddeo’s position as mayor, but no such connection between the felony and his position as township supervisor, there was no basis to disqualify Taddeo’s supervisor pension. Taddeo, 216 Ill. 2d at 598.

The nexus analysis was at the core of our decision in Taddeo. Applying that analysis to the facts of the case at bar, I would conclude there is a connection between the felonies and Ryan’s position as Governor and Secretary of State. But, as in Taddeo, there is no such connection between the felonies and Ryan’s position in the General Assembly or as Lieutenant Governor. Thus, under Taddeo, without such nexus, there is no basis to disqualify Ryan from receiving those benefits related to these positions.

I note that, in support of our conclusion in Taddeo, we found that Taddeo earned two completely separate pensions, one from each independent employer, which were severable. Thus, the Board was able to give Taddeo the pension he earned as a supervisor yet “still adhere to the mandates of section 7 — 219 by providing Taddeo with ‘none of the benefits’ derived from his employment which was related to or connected with his felony convictions.” (Emphasis omitted.) Taddeo, 216 Ill. 2d at 599. The same is true here. A “member” is only a member “for the period of service in such office.” 40 ILCS 5/2 — 105 (West 2006). This language indicates that each “membership” is distinct. Thus, as in Taddeo, Ryan can retain his pension benefits derived from his position in the General Assembly and as Lieutenant Governor, yet we can still adhere to the mandates of section 2 — 156 by providing Ryan with “[n]one of the benefits” derived from his membership in the fund as a result of his position as Secretary of State and as Governor — those positions which were connected with his felony convictions.

By my analysis, as set forth above, I do not intend to diminish in any way the seriousness of the criminal acts committed by the former Governor. Also, I understand the very human impulse to want to punish Ryan for his wrongdoings by depriving him of all of his pension benefits. However, while I sympathize with such impulses, our constitutional obligation is to follow the law, not our personal preferences. Taddeo clearly mandates that Ryan receive the pension benefits associated with his time in the General Assembly and as Lieutenant Governor. Despite this, the majority reaches a contrary conclusion and implicitly overrules Taddeo. This necessarily implicates stare decisis and the majority has not explained what good cause or compelling reasons dictate that we disregard our analysis in Taddeo.

Because the majority opinion is the result of an unjustified departure from precedent, I cannot join it. Accordingly, I respectfully dissent.