dissenting:
The majority has determined that the involvement of Devoney with Ballog and Raimondi related to Devoney’s service as a policeman because he did not arrest them or report them to other officers but, instead, facilitated, allowed, encouraged, aided and abetted them in committing a fraud against the insurance company.
I cannot support the position of the majority that, if a policeman violates his statutory duties or his oath of office by failing to report a crime or arrest persons engaged in criminal conduct in which he was a participant, this constitutes a sufficient nexus between the crime and his service as a policeman to trigger the application of section 5—227 of the Pension Code. A policeman cannot commit any crime, felony or misdemeanor without violating his oath of office or his duties under section 107—16 of the Illinois Code of Criminal Procedure. 725 ILCS 5/107—16 (West 1998).
The majority attempts to distinguish Cullen, 271 Ill. App. 3d 1105, on the basis that Cullen acted alone, but Devoney acted in concert with others. Nothing in section 107—16 limits its application to crimes committed by others or otherwise supports the distinction the majority tries to draw. If Devoney’s conduct related to his service as a policeman because he violated his duty under section 107—16 when he failed to arrest Ballog after he saw Ballog commit a crime, then Cullen’s conduct equally related to his service as a policeman, because he violated the same duty when he failed to arrest himself after he saw himself commit a crime. The majority’s approach effectively overrules Cullen, and that well-reasoned opinion deserves a better fate.
As the majority concedes, there is little question that Devoney’s felonious act in furtherance of the scheme to defraud, the mailing of material relating to a false report of the circumstances of his wife’s accident, had nothing to do with his service as a policeman. His plea agreement contained no admission that he used his position as a police officer to facilitate the operation of the scheme. Under Cullen, the conviction is not related to Devoney’s service as a police officer, and therefore the Board committed clear error by deciding to terminate Devoney’s pension benefits.
If a policeman is convicted of a felony while receiving disability benefits under the Pension Code he forfeits them. 40 ILCS 5/5—227 (West 1998). If he commits a felony while receiving pension benefits he forfeits them only if the felony of which he was convicted related to or arose out of or in connection with his service as a policeman. 40 ILCS 5/5—227 (West 1998). A comparison of the two paragraphs in the section shows that the legislature contemplated situations in which a policeman could be convicted of a felony having no connection to his responsibilities as a police officer and still retain the right to receive pension benefits. Cullen, 271 Ill. App. 3d at 1109. If the legislature had intended to provide that pension benefits were subject to forfeiture in the same manner as disability benefits, it could have so provided. It did not. This court has struggled to define the circumstances under which a felony committed by a police officer is sufficiently connected with the performance of police duties that it triggers forfeiture of pension benefits, as the special concurrences and dissents in cases involving this issue amply demonstrate. See, e.g., Dvorak, 287 Ill. App. 3d at 406 (Gordon, J., dissenting); Pascente v. Retirement Board of the Policemen’s Annuity & Benefit Fund, No. 1—95—4367 (1997) (unpublished order under Supreme Court Rule 23) (Hoffman, J., specially concurring; South, J., dissenting).
Legislation specifically governs pension benefits and their forfeiture. The separation between the legislative and judicial function is vital to our system of government and judges should not redraft the law to bring felonious conduct within the forfeiture provisions of the statute when its plain language as written does not so provide. As our supreme court has stated: “It is not for courts to pass upon what the *** laws ought to be, but to declare what they are.” People v. Wilcox, 237 Ill. 421, 428 (1908).
Therefore, I respectfully dissent.