Siwek v. RETIREMENT BD. OF POLICEMEN'S
| Decision Date | 29 August 2001 |
| Docket Number | No. 1-00-4147.,1-00-4147. |
| Citation | 258 Ill.Dec. 392,756 N.E.2d 374,324 Ill. App.3d 820 |
| Parties | Raymond SIWEK, Plaintiff-Appellee, v. The RETIREMENT BOARD OF the POLICEMEN'S ANNUITY & BENEFIT FUND, City of Chicago, et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
David R. Kugler, The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago, for Appellants.
Law Offices of Thomas J. Pleines, Chicago (Thomas J. Pleines, of counsel), for Appellee.
The question in this case is whether a retired Chicago police officer is entitled to receive his annuity and pension benefits despite being convicted of two felony drug offenses. The answer requires us to explore the relation or connection, if any, between the felonies and his service as a policeman. We conclude this former police officer is not entitled to benefits.
Neither party disputes the underlying facts of this case.
In 1992, Chicago police officer Raymond Siwek was convicted of two counts of unlawful possession of a controlled substance. At trial, the State's evidence showed Siwek met with a friend, Brian Marchese, on May 6, 1992. Siwek gave Marchese $12,500 in order to purchase narcotics. Marchese later met with Weiss, an undercover detective, and paid Weiss for cocaine. Marchese was arrested.
Marchese then became an informant for the police. He agreed to participate in a trap to expose Siwek as the source of his funds. Marchese contacted Siwek and organized another drug purchase. Siwek was arrested when he came to Marchese's house and bought cocaine from Weiss.
During his criminal trial, Siwek testified he became a Chicago police officer in 1968. In 1971, Siwek was assigned to the "special operations group," a tactical unit assigned to high crime areas in Chicago. After spending several years in this unit, Siwek was transferred to the gang crimes unit. Siwek testified his work in the gang crimes unit included narcotics work and "undercover buys." In 1980 or 1981, Siwek was transferred to the organized crime division within the police department. His work in that unit included arresting large-scale drug dealers. Siwek testified he also made "undercover buys" as part of his duties in this unit.
In early 1983, Siwek was promoted to the rank of detective and transferred to the violent crimes unit. Siwek's "specialty" within that division was in narcotic-related homicides. In 1987, Siwek was assigned to the narcotics section for the deputy director of the U.S. Attorney's office.
In 1989, Siwek was transferred to the property crimes unit of the Chicago Police Department. Siwek testified he continued to be involved in narcotic investigations. He said that over the course of his career, he was involved in at least 500 narcotic arrests, had made 50 to 75 "buys," and had made half a dozen arrests when he was not on-duty.
Siwek said he met Brian Marchese while they were in the Illinois Army National Guard. At some point, Siwek became aware that Marchese had a drug and alcohol problem.
Siwek testified Marchese contacted him in early 1992 about a DUI charge that was pending against him. Marchese asked Siwek if someone from the Chicago police department could write him a "letter of consideration" to give to the judge who was handling the DUI charge. Marchese told Siwek he would give the department information on narcotic activity in exchange for the letter. Siwek introduced Marchese to a detective in the organized crime division of the Chicago police department and Marchese became an informant for the department.
Siwek said Marchese contacted him several times after he became an informant. Marchese passed information to Siwek, who in turn passed it on to another detective in the police department. Siwek didn't know if anyone followed up on the information. Siwek eventually told Marchese to give the information to the detective who helped Marchese become an informant.
Siwek's primary defense at trial was based on his claim that he became involved in buying narcotics through Marchese as part of a "sting" operation. Siwek testified he never gave Marchese $12,500 to purchase narcotics. Siwek said he gave Marchese $2,500 after Marchese called and asked for a loan. Siwek said Marchese gave him the title to his truck as collateral for the loan. Siwek said he did not know Marchese intended to purchase drugs with the money he loaned him.
After Marchese picked up the money, Siwek received a phone call from him. Marchese told Siwek he had been arrested. The next day, Marchese called Siwek again. Siwek said Marchese told him he was arrested for trying to buy a large amount of cocaine. Siwek assumed Marchese was arrested with the person who supplied the drugs. Marchese said he lost $10,000 that belonged to other people when he was arrested. Siwek testified Marchese asked if he could borrow money. Siwek refused to loan Marchese any more money. Marchese asked for help with the charges against him.
Siwek testified he agreed to set up a "sting" operation with Marchese. Siwek said he told Marchese he would supply the money if Marchese would "set up" the person who supplied the cocaine. Marchese arranged the purchase. Siwek was arrested as he was leaving Marchese's house after he bought cocaine from undercover detective Weiss.
Siwek testified he did not contact anyone in the police department about the "sting" he was setting up with Marchese. Siwek said he was going to contact his supervisor after he received the cocaine.
The jury convicted Siwek on the narcotics charges and he was sentenced to 15 years in prison.
After Siwek was convicted and sentenced, he resigned from the police department. In 1998, Siwek and his wife applied to the Retirement Board of the Policemen's Annuity and Benefit Fund (Board) for reinstatement of his annuity and pension benefits. The Board had been withholding these benefits based on Siwek's convictions.
The Board denied Siwek's petition. The Board's decision included the following findings of fact:
Siwek filed a petition for administrative review with the circuit court. The circuit court reversed the Board's decision, finding Siwek's convictions were not related to his service as a police officer. The court ordered the Board to restore Siwek's pension benefits and awarded Siwek pre-judgment interest. The Board appeals this order.
The Board contends the circuit court erred in reversing it's decision denying reinstatement of Siwek's benefits. According to the Board, under section 5-227 of the Pension Code (Code) (40 ILCS 5/5-227 (West 1998)), Siwek is not entitled to benefits because the crimes for which he was convicted (two counts) were related to his service as a police officer. Siwek contends the Board misinterprets the statute in reaching that conclusion, and claims the circuit court's finding that the conviction was unrelated to his service as an officer was correct.
Where a party appeals the circuit court's decision on a complaint for administrative review, the appellate court's role is to review the administrative decision rather than the circuit court's decision. Calabrese v. Chicago Park District, 294 Ill.App.3d 1055, 1065, 229 Ill.Dec. 377, 691 N.E.2d 850 (1998). Although a reviewing court may not reverse findings of fact made by an administrative agency unless they are contrary to the manifest weight of the evidence (Chicago Transit Authority v. Doherty, 291 Ill.App.3d 909, 912, 225 Ill. Dec. 876, 684 N.E.2d 867 (1997)), an issue of statutory construction raises a question of law subject to de novo review. DiFiore v. Retirement Board, 313 Ill.App.3d 546, 548, 246 Ill.Dec. 227, 729 N.E.2d 878 (2000).
Section 5-227 of the Code says, in part:
Only the first paragraph of section 5-227 applies to this case.
Plaintiff contends the Board's construction of the statute mandated reversal because "[t]he Board has erroneously construed this forfeiture statute so broadly that a conviction for any felony would cause a forfeiture of benefits." (Emphasis in original). We do not agree.
There are a handful of opinions which construe the language in section 5-227 of the Code. They are not a model of consistency. In the first, Cullen v. Retirement Board of the Policeman's Annuity and Benefit Fund of the City of Chicago, 271 Ill.App.3d 1105, 208 Ill.Dec. 398, 649 N.E.2d 454 (1995), Cullen, a retired officer, shot and killed another motorist during an altercation after the motorist "cut off" Cullen in traffic. Cullen was not on duty when the crime occurred.
When the Board learned of Cullen's conviction, it stopped paying his pension benefits. Cullen sought to have his...
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