Dvorak v. Retirement Board of the Policemen's Annuity & Benefit Fund

JUSTICE GORDON,

dissenting:

I must respectfully disagree with the conclusion of the majority. I believe that the reasoning of the majority does not lend sufficient credence to the explicit language of the controlling statutory provisions.

The statutory provisions that are dispositive of the issues raised in this appeal are sections 5—227 and 5—109 of the Pension Code (40 ILCS 5/5—227, 5—109 (West 1992)).

As recited by the majority, section 5—227 provides, in pertinent part:

"Felony conviction. 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 a policeman.
None of the benefits provided for in this Article shall be paid to any person who is convicted of any felony while in receipt of disability benefits.” 40 ILCS 5/5—227 (West 1992).

Section 5—109(a) in pertinent part defines the term "policeman” as:

"[a]n employee in the regularly constituted police department of a city appointed and sworn or designated by law as a peace officer with the title of policeman ***.” 40 ILCS 5/5—109(a) (West 1992).

Under the first paragraph of section 5—227, a felony conviction will cause a forfeiture of a police pension only where the conviction relates to, arises out of or is connected with the claimant’s services as a policeman. Under section 5—109, the term "policeman” is defined as an employee in "the regularly constituted police department of a city.” 40 ILCS 5/5—109(a) (West 1992).

No one here has ventured to allege that plaintiffs employment as undersheriff of Cook County constituted "employment in a regularly constituted police department of a city” so as to satisfy that definition. Consequently, plaintiff could not have been performing any services as a policeman under the Act’s definition when he was serving as undersheriff of Cook County, which paid his salary while he was on leave of absence from the police department of the city. Those services that plaintiff was performing as undersheriff, no matter how analogous they might have been to that of a policeman, could not in fact have been those of a "policeman” as that term is defined by the Pension Code. Accordingly, the felony committed while county undersheriff cannot satisfy the provisions of section 5—227, which requires that the felonies arise from, relate to or be connected with the felon’s service as a "policeman.”

Under the controlling statutes, plaintiffs felony conviction while employed as undersheriff of Cook County cannot be considered any differently than would have been the case if he were convicted of a felony in connection with employment while on leave of absence from the police department as a security officer for a private entity or as a military policeman. In none of these contexts could he be deemed to have been convicted of a felony relating to, arising from, or connected with his employment as a "policeman” as expressly defined by section 5—109 of the Pension Code, namely, as "an employee in the regularly constituted police department of a city.”

The fact that plaintiff was earning credit towards his pension while acting as under sheriff pursuant to section 5—214 may well have made him a suitable candidate for pension forfeiture, had the legislature so provided. But, the gap left by the absence of such legislation, even if as a result of legislative oversight, must be remedied by the legislature itself and not by judicial fiat.

The case of Cullen v. Retirement Board of the Policeman’s Annuity & Benefit Fund, 271 Ill. App. 3d 1105, 649 N.E.2d 454 (1995), is wholly in point. There a policeman on active duty committed a felony after normal working hours which was held not to have been connected with his services as a policeman. The court correctly concluded that, under the Pension Code, a felony not committed in the context of one’s performance of his duties as a policeman cannot serve as a predicate for pension forfeiture, even though the plaintiff in Cullen was on active status at the time in question. Here, as in Cullen, the plaintiffs conviction resulted from conduct unconnected to his performance of any duties on behalf of the Chicago police department and, unlike the facts in Cullen, while he was under inactive status while on leave of absence from the Chicago police department. Hence, the services in which he was engaged at the time of his felonious conduct, no matter how analogous to those of a policeman, cannot be construed as those of a policeman as defined under section 5—109.

No amount of circumlocution can justify a result that would judicially redraft the applicable legislation in question. I do not question that pension forfeiture for the felonious conduct involved in this case would be most appropriate if the legislature would have so provided. However, no matter how seductive the result, maintaining the separation between the legislative and the judicial function still remains transcendent. See Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 95 Ill. 2d 211, 220, 447 N.E.2d 394 (1983), stating:

"When permissible under the Constitution, statutes should be interpreted and applied in the manner in which they are written. They should not be rewritten by a court to make them consistent with the court’s idea of orderliness and public policy. (In re Griffin (1982), 92 Ill. 2d 48, 52.) In People v. Wilcox (1908), 237 Ill. 421, 428, this court observed: 'It is not for the courts to pass upon what the *** laws ought to be, but to declare what they are.’ ”