FIFTH DI VISI ON November 14, 2008

No. 1-07-2950

DANIEL KATALI

NIC, ) Appeal from the ) Circuit Court of Plaintiff -Appella nt, ) Co ok Co un ty. ) v. ) No. 07 CH 12890 ) THE BOA RD O F TR US TEE S O F TH E MU NICIP AL ) EMPLOYEES', OFF ICERS', AND OFF ICI ALS' ANNUI

TY AND ) BENEFIT F

UND, JOSEPH MALATESTA, STEVEN J. LUX, ) STEPHANIE D. NEEL

Y, PETER BREJNAK and JOHN K. ) GIB SON, in The ir Offic ial Capac ities, ) The Hono rable ) LeRoy

Martin, Jr., Defend ants-App ellees. ) Judge Presi ding.

PRESID ING

JUSTICE

FIT ZGERAL D SMITH deliver

ed the opi nion of the

court: Following an administrative hearing, def endants-appellees The Board of T rustees of the Municipa l Employ ees', Office

rs', an d Offici als' An

nuity and Benefit Fun

d (Fund) , and its members Joseph Malatesta, Steven J. Lux, Stephanie D. Neely , Peter Brejnak and John K. Gibson, in their official capacities (collectively, Board) held that plaintiff-appellant Daniel Katalinic (plaintiff) forfeited his annuity and other benefits from his municipal employ ment due to his felony c onviction . The tria l court a ffirmed

the Boa rd's de cision. Pla

intiff ap peals, contendi ng that, because

his conviction was no t connected to his e mploy ment, the Board l egally erred in ordering forfe iture. He asks that we reverse the dec isions of the Board and the trial court and reinstate his annuity. F or the following reasons, we affirm. BACKGROUND The following facts have been take n in large part from plaintiff's plea agreement in theNo. 1-07-2950

2

federal case pursued ag ainst him which underlies the instant matter. Plaintiff worked for the City of Chica go (City) f

or 33 year

s. Between 2000 and 2003, he was employed a s the deputy commissioner of stree t operations for the department of streets and sanitation. In 2000, upon the request of Robert Sorich, a ssistant to the director of the may or's office of intergovernmental affairs, plaintiff f ormed a political organization of coemploy ees to perform political tasks dur ing var ious election perio ds. As the head of t he org anization, which g

rew to over 200 streets and sanitation employ ees, plaintiff would obtain promotions for his members based on the amount of political work each performe d. Once job openings with the City were posted, plaintiff would submit prioritized lists of employees in the organization to Sorich for these positions, while giving lower priority to those not in his organization. Plaintiff knew that the names he submitted were to be rewarded f raudulently for political wor k with promotions and, indeed, that the people he included on lists for promotions routinely received them. Plaintiff retired in June 2003. In early 2004, City officials announce d new job openings, namely , for career service motor truck drivers. As he had done before, plaintiff c reated, prioritized and submitted a list of workers for these positions to Sorich, giving top billing to those within his organization. Ag ain, those wor kers pri oritized by

plaintiff receiv ed the pos itions. In 2005, following a fe deral investigation involving several people including Sorich, plaintiff was indicted by

a feder al gra nd jury for mail f

raud. Th e count that ultimate ly le d to his conviction charged that on July 15, 2004, plaintiff knowingly c aused mail delivery of a letter to aNo. 1-07-2950

1 In his plea agr

eement, plaintiff also stipulated to certain uncharge d bribery c onduct. Although he seemingly

makes this an issue in his brief on appeal, it is clear from the recor d, and plaintiff ultimately concede s, that the bribery c onduct neither formed the basis of his federal convicti on nor wa s ever me ntioned by

the Boa rd (or tr ial cour t) as a ba sis for the

forfeit ure of hi s pension. We

mention the

bribery conduct o

nly because plaintiff did so on ap

peal; it is otherwis e wholly irreleva

nt to the instant cause. 3 streets and sanitation employe e advising him of a promotion to a career ser vice motor truck driver position. Plaintiff entered into a plea agree ment on this charge and was convicted. 1 He was sente nced to f ederal imprisonme

nt. In la te 2006, the Fund mo ved to susp end plain tiff's a nnuity pay ments and

for lea ve to file a motion for summary judg ment. They asser

ted that plaintiff's guilty

plea disqualified him from receiving benefits under the I llinois Pension Code (Code) (40 IL CS 5/8-101 et seq. (West 2004)). The cause proceeded bef

ore the Board, which ultimately granted the motion for summary judgmen t. In i ts decision, the Bo ard cite d section 8-251 of t

he Code, w

hich state s in part: "None of the benefits provided for in this Article shall be pa id to any person who is convicted of any felony re lating to or arising out of or in connection with his service as a municipal employ ee." 40 IL

CS 5/8-251 (West 2004). The Board found that plaintiff's "f elonious conduct started with his City employ ment and continued into retirement." Accordingly , it held that there was no issue of material fact that he

was conv icted of a felony "rela ting to or arising out of or i

n connection with hi s servic e as a municipal employee," and, as the Code's felony forfeiture provision "is not limited to feloniesNo. 1-07-2950

2 On August 12, 2008, plaintiff filed a motion with this court to cite Romano as supplemental authority. With no response having been filed by the

Board, this court allowed plaintiff's motion. 4 that are committed prior to an individual's retirement," plaintiff' s conviction forfeited his pension. The Board ordered the forf eiture of his annuity and othe r benefits effective Decembe r 2006. The trial court affirmed the Board' s decision. ANA LYSIS On appea l, plaintif f conten ds that, be cause hi s felony convicti on was not

connec ted to his City employ

ment, the Board legally

erred in ordering pension forfe iture. He asserts that section 8-251 of the Code requires that there must be a connec tion or nexus between his conviction and his employment and, as his employ ment was not a necessary condition to his conviction, no such

connec tion existed . He fur ther ar gues tha t his politic al orga

nization, w

hich was the basis for his conviction, was independent of his public employ ment, he was not employed a t the time of conviction, and the conviction would have occurred re gardless of his employ ment. Relying principally on Roman o v. Mu nicip al Emp loyees An nuit y & Benefit F und of Chica go , No. 1-07- 1132 ( August 5, 200 8) (Hal l, J ., di ssent ing) 2 , and Cull en v. R etire ment B oard o f the P olice man's Annuity & B enefit Fund , 271 I ll. App. 3d 1105 (199 5), for h

is argu ments, an d attempti

ng to distinguish Devoney

v. Retire ment Boa rd of the Policeme n's Annu ity & Benef it Fund for the City of Chi cago , 199 Ill. 2d 414 (2002), Bauer v. State Em

ployees' Re

tirement Syst em of I llinois , 366 Ill. App. 3d 1007 (2006), and Bloom v. Municipal Employees' Annuity & B enefit Fund of Chica go , 339 I ll. App. 3d 807 (2003 ), plainti ff insists that the p ension sta

tute must be

liberall yNo. 1-07-2950

5

construed in his favor. As a threshold matter, we note that the parties disagr ee regarding the

appropriate standard of review in this cause. Plaintiff proposes a de novo standar d, arg uing tha t we are being a sked to interpret section 8-251 of the Code and, thus, a legal que stion is involved. The Board, meanwhile, cites general principles of a dministrative law, asserting that a manifest weight standard is required since an administrative body has already

made determinations of fact here. Both parties are partially

correct. In a

n appeal from a decision of the trial court on a complaint for administrative review, we review the de cision issued by the Boa rd rather than that of the trial court. See Bloom , 339 Ill. App. 3d at 811; accord Daniels v. Police Board , 338 I ll. App. 3d 851, 858 (2003). The Board's finding s of fact are considered to be prima faci e true and

correct, and we

may not reve rse thes e or the B oard' s decisio n on revie w unless they

are ag ainst the manifest weight of the evidence. See Abrahamson v. Illinois Department of Profe ssional Regulation , 153 Ill. 2d 76, 88 (1992). However, the issue before us is whether plaintiff's fede ral convicti on for ma

il fraud was a "f

elony relating to or aris ing out of

or in connection wi

th his service" as a municipal employ ee and, thus, required forfeiture of his bene fits under section 8- 251 of the Code. 40 IL CS 5/8-251 (West 2004). Interpretation of a statute is a question of law requi ring de novo review. See Bauer , 366 Ill. App. 3d at 1013. Moreover, as noted e arlier, the Board r esolved t his matter with the e

ntry of summar

y ju dgment i n favor o f the Fun

d and ag ainst plaintiff . We revie

w the gr ant of sum

mary judgmen t--which is prope

r when th e pleadi

ngs, af fi da vi ts , d ep os it io ns an d a dm is si on s o f r ec or d, co ns tr ue d s tr ic tl y ag ai ns t t he mo vi ng pa rt y, show that t

here is no genui

ne issue a s to any

materia l fact an d that the moving pa

rty is entitle d toNo. 1-07-2950

6

judgment as a matter of law--on a de novo basis. See Rich v. Principal Life I nsurance Co. , 226 Ill. 2 d 359, 370 (2007); Morris v. Margul is , 197 Ill. 2d 28, 35 (2001)

. That said, our agreement with plaintiff and his arg uments on appeal ends with the standard of review. Bauer , cited by

both part ies here , is, we be lieve, th e semina l case r egard ing publi c employ ment and p ension forfeitur e. I n addition

to the fa ct that Bauer

is directly on point with the instant matter, that case provides a thorough overview of pension forfeiture law based on a serie s of lega l prece dent orig

inating from our state supreme co

urt. In Bauer , the p laint iff wo rked as Inspect or Gene ral of the Illi nois Secret ary of Sta te's office. He pled guilty

to one count of federal felony obstruction of justice, was convicted and, later, w as held to

have for feited h is retire ment bene fits pursu

ant to a pr

ovision in the Code wit

h language identical to that involved here in. On appeal from that decision, the plaintiff argue d, as plaintiff does here, that his conviction did not relate to or arise out of, nor was it conne cted with, his employment. I

n Bauer's case, while he

was Inspector Ge

neral, a federal investigation beg an into the licensing process at the Secretary of State's office; internal memoranda we re exchanged between Bauer and other Sec retary of State employees. B auer then left his position as Inspector General. Nine months later, he spoke with his former secr etary who, unbe

knownst to Bauer, had been co operati

ng with f ederal prosecu tors. Ba uer told h is secre tary to destro y or

concea l certai n sensitive documents being sought by federal investigators. See Bauer , 366 Ill. App. 3d at 1009- 10. On appeal from an administrative finding that he forf eited his pension benefits because ofNo. 1-07-2950

7

his conviction, the Bauer

court affirm ed. No ting t hat th e issu e befor e it wa s whet her Bau er's conviction was a "felony

relating to or arising out of or in connection with his service" as Inspector Gener

al and, thus, required forfeiture of his pension under the Code , the court conducted an examination of prior cases to determine an appr opriate test for the cited phrase. See Bauer , 366 Ill. App. 3d at 1011. First, the Bauer

court loo ked at Devoney . There, a police lieutenant was convicted of federa l mail fra ud due to h

is involve ment in an

insuranc e scheme

that originated f

rom his friendship with a criminal. Though his conduct occurre d while he was off-duty , the police board terminated his pension benefits pursuant to the Code and languag e identical to that of section 8- 251. Our state supreme court upheld the termination. I n doing so, the Devoney

court reasoned that when a court applies pension termination statutes such as the provisions in the Code, "the pivotal inquiry is whether a ne xus exists between the employee's c riminal wrongdoing and the performance of h is official duties." Devoney , 199 Ill. 2d at 419. Factually , the supreme court observed that the criminal had developed a friendship with De voney, a lieutena

nt, because the criminal considered it advantageous to have suc h high-ranking police connections; that Devoney knew the man was a criminal and Devoney had used his position on the criminal's behalf before; and that, though Devoney was never identified as a police office r in his federal indictment, the circumst ances su rroundin g the cr ime showe d that the

offense was rela ted to Devoney

's work as a lieutenant. Ultimately, the Devoney court issued a "but-for" test, holding that the r equisite nexus for pension forfeiture exists if the facts and circumstance s establish that, but for the pension claimant's statu s as an em ployee, he w ould not ha

ve been in a position to commit t he felon y inNo. 1-07-2950

8

question. See Devoney , 199 Ill. 2d at 423 (ample support for board' s forfeiture finding existed where " 'but for the fa

ct that Devoney

was a [p]olice [o]fficer of high rank,' " he " 'would not have be en in a pos ition or se lected to particip ate in the

scheme t o defra ud [leadin

g to his conviction]' "; his participation in the crime "was the product of his status as a law enforcement official"). The Bauer

court not ed that Devoney 's principles were further discussed in Bloom , another case cited by

both parties here. In Bloom , an alde rman ple aded g

uilty to filing a feder al income tax return for his private real estate business which falsely listed certain pay

ments as rental income. I n his plea , Bloom a

dmitted tha

t some of these pay

ments had

been g iven to him i

n exchange for the improper use of his name, of ficial position and influence as an alderman. On appeal from the forfeiture of his pension based on a Code provision identical to the one at issue, the Bloomcourt followed Devoney in its examination regarding whether a nexus existed between Bloom's wrongdoing and the pe rformance of his official duties. See Bloom , 339 Ill. App. 3d at 811. The Bloomcourt noted that an analy sis of the "relating to, arising out of or in conne ction with" language of the Code does not end with a showing that the felony does not call for proof of official misconduct, nor is the "but for" test mandated in eve ry such ana

lysis. See Bloom , 339 I ll. App. 3d at 812. Rather, the Bloomcourt em ployed a "su

bstantial factor " test as

an alter native to the "but for" test, holding that the necessa ry causa l link, or nexus, is established if the wrongdoing " 'was a material element and a substantial factor' in bringing about the subsequent occurrence." Bloom , 339 Ill . App. 3d at 8 15, qu otin g Thacker v. UNR Industrie s, Inc. , 151 Ill. 2d 343, 354-55 (1992) (finding nexus between felony of filing false return and public service afterNo. 1-07-2950

9

concluding that improper pay ments in exchange for using status as alderman wa s substantial factor in conviction). Finally, Bauer

noted a parallel approach in Goff v. Teachers' Retireme nt System , 305 I ll. App. 3d 190 (1999). There, the plaintiff, a retired school tea cher, pleaded guilty

to the aggravated cr

iminal sexual abuse of children attending his school. Although the conduct underlying

his convictions never took place on school property or at school events, his pension was revoked pursuant to, as in Devoney , Bloomand Bauer , language in the Code identical to that in the instant case. On appeal, the plaintiff argue d that his pension could only be revoke d if the felony had oc curred on school time or school property . Rejecting this, the Goff court held that this was too narrow a construction of the "relating to or arising out of or in connection with" language of the Code and, instea d, reasoned that as long as the conviction " ' is in some way connected with the employ ment so that there is a causal connection' " between the employ ment and the conviction, then the conviction can be said to arise out of employ ment, sufficient with the forfeiture provision. (Emphasis in original.) Goff , 305 Ill . App. 3d at 1 95, qu otin g Consolidated R. Corp. v. Liberty

Mutual Insurance Co. , 92 Ill. App. 3d 1066, 1068-69 (1981). After discussing these cases, the Bauer court applied their principles to the facts and circumstances surrounding Baue r's felony conviction for obstruction. First, under Devoney 's "but for" te st, the co

urt found that ther e was a c lear nexus betwee n the conv

iction and his employment, primarily

because Bauer' s obstruction was a product of his status as Inspec tor General: "but for the fact that B auer had been I nspector General, he would not have been in a positio n to obstr uct the federal investigati on of the Secr etary of State's office. " Bauer , 366 I ll.No. 1-07-2950

10

App. 3d at 1020. Next, under Bloom 's "substantial factor" test, the Bauer court found the requisite nexus under the "relating to or arising out of or in connection with" languag e of the Code when it reasoned that Bauer' s service as Inspec tor General was a material element a nd substantial factor in bringing about the obstruction. See Bauer , 366 Ill. App. 3d at 1023. And, under Goff

's "some way

connected" test, the Bauer court found that the origin of Bauer' s felony was connected to his employ ment "so that there was a causal conne ction between the employment and th e felony." Bauer , 366 Ill. App. 3d at 1024. Just as the Bauer

court ultimately held that the conviction at issue wa s a felony " relating

to or ar is in g o ut of

or in co nn ec ti on wi th " B au er 's se rv ic e a nd em pl oym en t s uf fi ci en t t o s at is fy a decision of pension forfeiture, we too conclude the sa me with respect to plaintiff here. Plaintiff was the d

eputy commissioner of str

eet oper ations fo r the dep artment o f street s and sanitation for the City of Chicago. In his plea agr eement, he admitted that Sorich, an assistant to the dire ctor of the may or's of fice of interg overnme

ntal aff airs, as ked him to f

orm a political organization to help during elections. Plaintiff's org anization grew to over 200 people, and "almost a ll," he admi tted, "were St reets and San itation w orkers," i.e. , his own employees. Plaintiff further described that he would submit a list of workers "who we re seeking jobs and job promotions, as well as other assistance at the City ." Accordingly, plaintiff knew these workers and knew they

were looking for job promotions. Plaintiff further admitted that he prioritized the lists of workers he submitted and knew that, pursuant to the scheme, his workers would be g iven the promotions fraudulently and in dire ct violation of the law. Finally, pla intiff admitted that he mailed a prioritized list, therefore committing federal mail fraud.No. 1-07-2950

11

We find that there was a clear nexus between plaintiff' s conviction and his employment as required by

the Code's language . First, but for the fact that plaintiff was a deputy commissioner of the de partmen t of stree ts and san itation, he would not h ave bee

n in a posit

ion to bec ome involved in the hiring scheme and, ultimately , to commit mail fraud in relation thereto. Plaintiff admitted that someone from the may or's office of intergove

rnmental affairs approached him and asked him

to start th e orga

nization. We

are har d-press ed to assu

me, as pla

intiff wo uld have u s, that this would have occurred had plaintiff not been a municipal employ ee or, for that matter, had been in a lesser position at the department of streets and sanitation. Moreove r, as he admitted, "almost all" of the organization's 200 members were his own employe es. Just as with the relationship between the lieutenant and criminal in Devoney , it is clear to us that assistant director Sorich of the may or's office cultivated a relationship with plaintiff here because he consider ed it to be advanta geous to have co nnection s with the d eputy commissioner of the

streets and sanitation department who oversaw a multitude of municipal employ ees who, in turn, were prime candidates to become political workers looking to later be rewarded. I

n other words, but for the fact that plaintiff was a deputy commissioner of higher-than-avera ge rank, he would not have been in a position or selected by Sorich to participate in the scheme. Plaintiff's conviction, then, was clearly

a product of his status as deputy commissioner. In conjunction with this, we find that plaintiff's service was a materia l element and a substantial factor in bringing a bout the conduct u nderly ing his c onviction . Again , an ana lys is of the " relating

to or aris ing out of

or in connection with" language of the Code does not end with a showing that the felony did not require proof of official misconduct. See Bloom , 339 Ill. App. 3d at 812; accord Bauer , 366 I ll.No. 1-07-2950

12

App. 3d at 1024. Moreover, as we discussed, the orig ins of plaintiff's conviction were connected to his employment so that there was a causal connection between his employ ment and the felony.

As in Bauer , where

the emplo ye e had lef

t his post be fore he

committed

the acts underlying

his conviction, plaintiff's case here prese nts somewhat of a twist. Plaintiff makes much of the fact that when he committed the acts that led to his conviction, he was no long er serving as a munic ipal employe e (he wa s retire d). While th is fact is one that w as not pre sent in Devoney , Bloomor Goff , it does not, as the Bauer court fo und, render the principle s set fort h in those cases inapplicable. Rather, "neither the supreme court in Devoney nor the appellate court in Goff and Bloomstated that the passage of time between *** e mployment and the commission of a felony somehow negat es the poss ibility that a ne xus can ex ist between the two." Bauer , 366 Ill. A pp. 3d at 1 024. More over, no thing in t he plain l angua

ge of se ction 8-2 51 states that only those fe lonies whi ch are c ommitted wh ile the pe nsion cla imant is em

ployed may

relate t o or aris e out of or i n connection with hi s servic e as a em ployee, nor d

oes it stat e that a f elony cannot r elate to or arise out of or in connection with employ ment if the felony oc curs after the claimant has left that employment. See Bauer , 366 Ill. App. 3d at 1024-25 ("[t]he fact that Ba uer did not obstruct justice until after he left the office of the Secre tary of State doe s not mean the obstruction was not a 'felony

relating to or arising out of or in connection with his service as an employe e' "). Plaintiff 's mail f raud her e was dir ectly and inher

ently related to his serv

ice as de puty commissioner. His conduct of making and prioritizing lists of his own employ ees and submitting them to the mayor' s office began while he was e mployed as such and c ontinued after he retired.No. 1-07-2950

13

Though t his extende d bey

ond his per

iod of emp loy

ment, he w as attemp ting to f raudule ntly secure promotions and jobs for his employ ees who were still working in his department. See Bauer , 366 I ll. App. 3d

at 1025 (" the trust c itizens pla ce in publ ic employ

ees can in some circumstances extend bey ond the period of employme nt with respect to certain ty pes of conduct"). Cullen and Romano are distinguishable from the instant case and, thus, plaintiff' s reliance on them in support of his arguments is meritless. In Cullen , a police officer was convicted of first deg ree mur der whe n he shot a

nd killed a

man follow

ing a tr affic a ltercat ion, and h is retirement benefits were terminated. On a ppeal to reinstate his benefits, the Cullen court agreed with the plaintiff, finding that his criminal actions were not related to, nor ar ose out of nor were connected with, his service as a police office r. See Cullen , 271 Ill. App. 3d at 1109. However, the Cullen court ma

de clea r that the plaintiff was off- duty

at the time

of the sho oting, he

was in plain clo thes, he u sed a pist ol that wa s not his of

ficial se rvice we apon, he

did not ide

ntify himself as a police officer, and he had not plac ed or attempted to place the victim under arrest. See Cullen , 271 Ill. App. 3d at 1107. Simply because plaintiff in the instant case was "off -duty" doe s not render it similar to the facts presented in Cullen . There was no evidence demonstrating that Cullen's criminal actions leading to his conviction related to or ar ose out of or were connected with his em

ploy ment as a police of ficer. In c ontrast, plaintiff , though retired , intera

cted with his (former) employ

ees who were still working for the City to find out who was looking for promotions and used his (former) position to perpetuate the hiring scheme via his mailing of the list he created to the may

or's office. See, e.g. , Devoney , 199 Ill. 2d 414, Goff , 305 Ill. App. 3dNo. 1-07-2950

14

190 (finding that nexus existed and, thus, that forfeiture of benefits was proper e ven though the plaintiffs were not "on-duty " at time of conduct underly ing convictions). While the facts in Romano (Hall, J., dissenting) are more similar to the instant case than those of Cullen , we fi nd th at it is li kewis e dist ingui shabl e and u nsupp ortiv e of pl ainti ff's arguments. In Romano , the plai ntiff, an operati ng engineer in

the depa rtment of water of the City of Chicago, pleade d guilty to feder al mail fr aud due to

his partic ipation in a

bribery scheme t o obtain tru cking b usiness. Romano was

asked by a forme r employ ee of the departm ent of wa

ter to particip ate in the

formation and ope

ration of a trucki ng comp any

and, in exc

hange for a we ekly payment to the first deputy commissioner of the department of water, his company would be select ed by the C ity for it s "Hire d Truc k Progr am." Fo llow ing hi s conv icti on, t he pla inti ff's pension benefits were revoked pursuant to section 8-251 of the Code and he appealed. Recogn izin g Devoney 's "but for" test, the Romano majority noted that nothing in the plea agreement reveale d the reason why the plaintiff was asked to participate in the scheme, nor wa s there any evidence supporting an inferenc e that the relationship between the plaintiff and the other participants was cultivated because the plaintiff wa s a municipal employee or that his status was in any wa

y releva nt to his participation; the majority concluded that the e vidence showed simply that the relationship originate d between people who worked in the same depa rtment. Romano , slip op. at 6-7. However, a dissent was filed in Romano that disagreed with the majority 's insistence that the pl ainti ff's con victi on di d not relat e to or arise out o f his e mplo yment. Aga in, ci ting Devoney , the dissent noted that Romano was a water department employ ee who was solicited by

a formerNo. 1-07-2950

15

water department employ ee to participate in a scheme to bribe another water department employee. From this, it found that there was no evidence that the solicitor involved the plaintiff in the schem e "for any reason other than his emplo yment in the water dep artment." Romano , slip op. at 11 (Hall, J., dissenting). Because this "friendship" had its origins in the plaintiff's status as a municipal employee , there was a substantial connection between the plaintiff' s employment and his conviction, satisfying the ne xus requirement of section 8-251. Romano , slip op. at 10-11. Contrary to the majority

's comments in Romano , and in line with its dissent, the evidence in the instant case demonstrates more than a simple relationship between coe mployees. We note that plaintiff and Sorich did not work in the same department; plaintiff worked in streets and sanitation and Sorich worked at the may or's office. Moreover, unlike the plaintiff in Romano , plaintiff here held a municipal position with status; he was the deputy commissioner, not an ordinar y e mploy ee. Tha t Sorich' s and plai

ntiff' s paths wo

uld have c

rossed, or that Sor

ich would have asked plaintiff to participate in the instant scheme, if plaintiff had not bee n employed in the position he held, is illogical. Moreover, plaintiff admitted in his plea agree ment that he knew which positions the City was posting as open a nd which of his employee s were actively seeking such promotions or jobs with the City. "Almost all" of the 200 pe ople in his organization were his stree ts and san itation em ployees, and

almost all

of those w

hose name s he submitt

ed in his prioritize d lists fra

udulently receiv ed promot

ions. He s tated in f

ederal court tha t "it was [his] understanding that [the may or's office] communicated with the Streets and Sanitation Commiss ioner's office ab out who wou ld be hired. " From all this, it is c lear to u s that, ba sed on the instant se

t of circ umstance s, the re quisiteNo. 1-07-2950

16

nexus between plaintiff's employ ment and his conviction was present to satisfy the "related to or arising out of or i

n connection with" langua ge of se ction 8-2 51 of the C ode. The refore , we hold that there is no genuine issue of material fac t and that the Board did not err in granting summary judgment to the Fund. CONCLUSIO N Accordingly , for the foregoing re asons, we affirm the judgment of the trial court upholding the Board's termination of plaintiff' s annuity and other be nefits from his municipal employment due to forfe iture pursuant to his felony convic tion. Affirmed. TULL Y and GALL

AGHER, JJ., concur.No. 1-07-2950

17 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

(Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form Daniel Katalinic, Plaintiff -Appella nt,

v. Board o f Truste es of the

Municipa

l Employ ees', Office

rs', an d Offici als' An

nuity and Benefit Fund, Joseph Malatesta, Steven J. Lux, Stephanie D. Neely , Peter Brejnak and John K. Gibson, in

Their Of ficial Ca pacities , Defend ants-App ellees.

_____________________________________________________________________________________________ No. 1-07-2950 Docket No. Appellate Court of Illinois COURT First District, FIFTH Division Opinion Filed November 14, 2008 (Give month, day and year)

__________________________________________________________________________________________

PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE MODIFIED OPINION OF THE COURT: JUSTICES TULLY and GALLAGHER, JJ., concur . Lower Court and Trial Judge(s) in form indicated in margin: APPEAL from the Circuit Court of Cook Appeal from the Circuit Court of Cook County. County; the Hon________ Judge Presiding. The Hon. LeROY MARTI N, JR., Judge pres iding.

__________________________________________________________________________________________________________________________ Indicate i f attorne

y repre sents A

PPELLANT S or APPELL EES and include

attorney 's of c ounsel. Indic ate the w ord or FOR APP ELLANTS NONE if not represe

nted. John Do e, of Chicago For APPELLE

ES, : APPELLA NT: MA RC MART

IN, LT D., Chicag

o, IL Marc

W. Marti n; KRAL OVEC MEENA

N, LLP, Chi cago, IL Michael J. Kralovec

_________________________________ __ Smith and Smith of Chicago , APPELLEES: FREDERICK P. HEISS and WILLIAM A. MAROVITZ, Chicago, IL Frederick P. Heiss and William A. Marov itz

__________________________________________________________________________________________________ ( Joseph Brown, of counsel ) Add attorne

ys for thirdparty a ppellants a

nd/or appellees.