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

JUSTICE QUINN, specially concurring:

I concur that, under the plain language of section 5 — 227, plaintiffs pension benefits must be reinstated. This is because plaintiff was not “in receipt of disability benefits” at the time of his conviction. However, I do not believe that recipients of disability benefits are subject to forfeiture of their right to pension benefits only if they are convicted of a felony relating to their law enforcement duties. The majority’s analysis of this issue relies on the holding in Kerner v. State Employees’ Retirement System, 72 Ill. 2d 507 , 382 N.E.2d 243 (1978). Governor Kerner was convicted of felonies which came within the ambit of section 14 — 199 of the Illinois Pension Code. This section provided “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 service as an employee.” Ill. Rev. Stat. 1975, ch. IO8V2, par. 14 — 199.

In the instant case, plaintiffs pension benefits were terminated under the second sentence of section 5 — 227: “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 1994). This language does not require that the felony conviction be for an offense “relating to or arising out of or in connection with” the recipient’s service as a policeman. Therefore, we should not read into the language of the second sentence of 5 — 227 any such limiting language. Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 95 Ill. 2d 211, 220 , 447 N.E.2d 394 (1983).

I agree with this court’s interpretation of the second sentence of section 5 — 227 as enunciated in Cullen v. Retirement Board of the Policeman’s Annuity & Benefit Fund, 271 Ill. App. 3d 1105, 1109 , 649 N.E.2d 454 (1995). There, we interpreted the sentence as not requiring circumstances relating to, arising out of or in connection with police service attendant to a felony conviction in order to disqualify an officer from receiving disability benefits. However, I also believe that the second sentence of section 5 — 227 provides for the termination of pension benefits, not merely disability benefits.

I believe this interpretation is supported by the fact that section 6 — 221 of the Illinois Pension Code, relating to the Firemen’s Annuity Fund, provides for the termination of pension benefits only upon conviction of a felony “relating to or arising out of or in connection with his service as a fireman.” 40 ILCS 5/6 — 221 (West 1994). The fact that the General Assembly employed a different standard for denying pension benefits to firemen than for policemen raises the inference that the legislature intended to treat the recipients differently. Davis v. Retirement Board of Policemen’s Annuity Fund, 30 Ill. App. 3d 318 , 332 N.E.2d 446 (1975).

Plaintiff decries interpreting the second sentence of section 5 — 227 as permitting the termination of pension rights of recipients of disability benefits for all felony convictions, whether related to that recipient’s duties as a police officer or not. Similarly, the Board asserts that any interpretation of section 5 — 227 which results in the reinstatement of plaintiffs pension rights is contrary to the intent of the legislature. I agree with the majority that the language of section 5 — 227 is clear. The concerns of the parties as to how this decision will affect other recipients of disability benefits are best addressed by the legislature.