by Vladimir Shuliga, Jr. (Winter 2016)
Articles 3, 4, 5, and 6 of the Illinois Pension Code govern all of the police and firefighter pension funds in Illinois. Article 3 applies to all downstate police pension funds, whereas Article 5 applies to the Policemen’s Annuity and Benefit Fund of the City of Chicago. Similarly, Article 4 applies to all downstate firefighters pension funds, and Article 6 applies to the corresponding firefighter pension fund for the City of Chicago. Each of these articles has a provision that discontinues benefit payments if a member is convicted of a felony related to or arising out of his or her service as a firefighter or police officer.
However, Article 5 of the Illinois Pension Code has an additional paragraph that discontinues disability benefits to a beneficiary who is convicted of any felony. Unlike the other articles, Article 5 draws a distinction between retirement benefits and disability benefits and how a felony conviction impacts one type of benefit versus the other. That distinction was the main issue in Majid v. Retirement Board of Policemen’s Annuity and Benefit Fund of City of Chicago, 2015 IL App (1st) 132182. Section 5-227 of the Illinois Pension Code provides in relevant part, “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)
In Majid, Nail Majid served as a police officer from 1999 until 2003 when he was injured and awarded line-of duty disability benefits. He relocated to Ohio and in 2010, was indicted for impersonating a Drug Enforcement Agency officer and possessing an unregistered firearm. He pled guilty to possession of an unregistered firearm and was sentenced to three years’ probation. The Board suspended his disability benefit pending a hearing on the matter. At the hearing, Majid admitted that he was convicted of a felony while receiving a duty disability benefit.
The Board heard Majid’s testimony and received various documents into evidence. Majid attempted to advance various constitutional arguments about the validity and alleged ambiguity of Section 5-227. The Board noted that the constitutional issues must be resolved by the courts rather than by the Board. With regard to any alleged ambiguity in the statute, the Board rejected Majid’s argument and found that there were only two issues that needed to be decided: 1) whether there was a felony; and 2) whether he received disability benefits during the indictment and conviction of the felony. The Board found both and denied the reinstatement of Majid’s disability benefits.
Majid filed a complaint for administrative review. The circuit court upheld the Board’s decision to terminate Majid’s benefits. Majid appealed, arguing that the Board was required to find a nexus between his service as a police officer and the felony of which he was convicted. Additionally, he argued that the statute was unconstitutional and that his procedural due process rights were violated. The appellate court rejected each of Majid’s arguments.
The court adopted the Board’s assessment that the statute had unambiguous terms. The Illinois General Assembly gave each paragraph its own definition, and if a connection between work as a police officer and the felony was necessary in both the first and second paragraph of Section 5-227, then the second paragraphs would be superfluous and the legislature could have put both in the same definition. The court did not discuss how the felony provision in Article 5 was different from the provisions in Articles 3, 4, and 6.
However, the court was clear: if the legislature wanted to take away pension benefits only when a felony conviction is related to service as a police officer, it could have done so. That is precisely what the legislature did in each of the other Articles. Article 5, on the other hand, has plain language stating that conviction of “any felony” would terminate disability pension benefits. The court chose to give that paragraph its plain meaning and upheld the Board’s decision to discontinue Majid’s disability pension benefits.
Further, the court rejected Majid’s due process arguments. Here, the Board only needed to decide if Majid was convicted of a felony, and if he was receiving disability benefits at the time. The court declined Majid’s argument that his due process was violated when he was not allowed to call certain witnesses. Majid wanted his wife and another witness to testify, but he only made that request after the Board had rendered its decision.
Although this case only analyzed Article 5 of the Illinois Pension Code, it provides guidance for both Article 3 and Article 4 pension funds with regard to a court’s perspective when addressing the felony provision of each Article. Unlike Article 5, both Article 3 and 4 require a “nexus” between the felony that a beneficiary is convicted of and service as either a firefighter or police officer.
Therefore, when an Article 3 or Article 4 pension fund conducts a hearing to determine whether pension benefits are to be terminated, the pension board will have three questions to answer: (1) was the beneficiary convicted of a felony; (2) was the beneficiary receiving pension benefits; and (3) was the felony relating to or arising out of or in connection with service as a firefighter or police officer.
Terminating a pension benefit often leads to litigation. It is important to work closely with legal counsel from the beginning of the process in order to position the fund in the strongest position when facing an appeal.