by Ericka J. Thomas (Spring 2017)
Both the downstate police and fire pension articles (Articles 3 and 4) contain provisions that pension benefits shall not be paid to any person who is convicted of a felony relating to or arising out of the job of police officer or firefighter (40 ILCS 5/3-147 and 4-138). Although the concept behind these sections is relatively straight forward, the Third District Appellate Court issued an opinion recently that adds a new wrinkle for pension boards to consider.
In the case of Hendricks v. Board of Trustees of the City of Galesburg Police Pension Fund, 2015 IL App (3d) 140858, a twenty-three year veteran of the Galesburg Police Department resigned and retired in January 2007. A few months later, the officer was charged with three felony offenses based upon the officer having stolen drugs from the police evidence vault for his own personal use. The officer qualified for the “Treatment Alternatives to Street Crime” (TASC) program under the Alcoholism and other Drug Abuse and Dependency Act (20 ILCS 301/40-5), which is a rigorous probation program that permits a conviction to be vacated and dismissed upon successful completion of an intensive drug rehabilitation program, among other things. The officer pleaded guilty to two job-related felony offenses and successfully completed TASC probation.
Upon his successful completion, the officer filed a motion to vacate the conviction and to dismiss the criminal proceedings as permitted by the TASC statute. This was completed, by agreement, in December 2013. Thereafter, the officer applied for retirement pension benefits from the pension fund. The pension fund denied the officer’s application for benefits after finding that he was disqualified from receiving pension benefits due to his conviction for job-related felonies. The officer then filed a lawsuit seeking administrative review of the pension board’s determination. Both the trial court and the appellate court agreed with the officer that he was entitled to receive his retirement pension.
The Third District Appellate Court began its analysis by considering the wording of Section 3-147 of the Illinois Pension Code, which states that no pension benefits shall be paid to “…any person who is convicted of any felony relating to or arising out of…his or her service as a police officer.” (40 ILCS 5/3-147) The court stated that the purpose of Section 3-147 was to discourage official malfeasance by denying the convicted officer his pension benefits. In this case, there was no dispute that this officer had been convicted of a job-related felony that would have otherwise disqualified the officer from receiving pension benefits under Section 3-147. The question then turned to whether vacating the conviction under the TASC statute had any effect on the application of Section 3-147.
The court stated that the plain language of Section 3-147 only disqualifies an applicant if he or she stands convicted of a job-related felony. In this case, once the officer’s felony convictions were vacated, they no longer had the legal effect of a conviction and, therefore, did not disqualify the officer from collecting his retirement pension benefits. The court noted that there is no language in Section 3-147 or any other part of the Illinois Pension Code that would make the disqualification apply to a conviction that has been vacated. Although acknowledging the absurd result in this case, the appellate court stated that it could not read such additional language into the statute.
The criminal court’s vacation of the officer’s conviction in Hendricks clearly bound the pension board in its consideration of the officer’s application for retirement pension benefits. Although Hendricks presents an extraordinarily rare set of circumstances, it stands for the proposition that the courts will strictly construe the wording of the Illinois Pension Code in favor of the applicants.