IL 13-001 September 16, 2013

Does an Illinois state employee lose his pension if he is convicted of a felony committed against someone in his agency's custody?

Q: How does an AG decide whether a felony "relates to" the employee's service?

The AG followed the test from *Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund*, 199 Ill. 2d 414 (2002): courts and AGs ask whether a nexus existed between the criminal wrongdoing and the performance of the employee's official duties. A crime committed entirely off duty, against a stranger, with no use of state resources, would not trigger forfeiture. A crime that depended on the employee's access, position, or authority typically does.

Q: Did the employee lose everything he had paid in?

No. Under Illinois case law cited in the opinion (*Shields v. Judges' Retirement System*, 204 Ill. 2d 488 (2003)), a forfeited member retains the right to a refund of his own contributions to the retirement system. He loses the employer-funded benefits and any growth, but his own deposits come back.

Short answer: Yes. Attorney General Lisa Madigan concluded that a former Department of Human Services forensic psychologist forfeited his State Employees' Retirement System pension after pleading guilty to sexual misconduct with a person in DHS custody, because the offense arose directly out of his state employment. He still kept the right to a refund of his own contributions.

Disclaimer: This is an official Illinois Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Illinois attorney for advice on your specific situation.

Plain-English summary

Robert J. Eizenga was a forensic psychologist with the Illinois Department of Human Services, assigned to the Tinley Park Mental Health Center. In 2013 he pled guilty to one count of sexual misconduct with a person with a disability, a Class 3 felony. The victim was a patient who had been admitted to the State-operated facility for care, and Eizenga's job was what put him in contact with her.

The State Employees' Retirement System asked Attorney General Lisa Madigan whether that conviction triggered the pension-forfeiture rule in section 14-149 of the Illinois Pension Code. The AG's answer was yes. Section 14-149 forfeits all benefits for any SERS member "convicted of any felony relating to or arising out of or in connection with his service as an employee," and Eizenga's offense fit that test squarely: the crime was predicated on his being a state employee with access to a person in state custody. The opinion noted that he kept the statutory right to a refund of his own contributions to the system.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does Illinois' pension-forfeiture statute actually say?
A: At the time of this opinion, section 14-149 of the Pension Code provided that "[n]one 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." That language applied to members of the State Employees' Retirement System, with parallel provisions in other articles of the Code covering other public retirement systems.

Q: How does an AG decide whether a felony "relates to" the employee's service?
A: The AG followed the test from Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund, 199 Ill. 2d 414 (2002): courts and AGs ask whether a nexus existed between the criminal wrongdoing and the performance of the employee's official duties. A crime committed entirely off duty, against a stranger, with no use of state resources, would not trigger forfeiture. A crime that depended on the employee's access, position, or authority typically does.

Q: Did the employee lose everything he had paid in?
A: No. Under Illinois case law cited in the opinion (Shields v. Judges' Retirement System, 204 Ill. 2d 488 (2003)), a forfeited member retains the right to a refund of his own contributions to the retirement system. He loses the employer-funded benefits and any growth, but his own deposits come back.

Q: Why does the state forfeit pensions for service-related felonies?
A: The opinion explained that the policy goal is to "discourage official misconduct and to implement the public's right to conscientious service from those in governmental positions by denying retirement benefits to public servants convicted of violating the public's trust" (citing Ryan v. Board of Trustees and Kerner v. State Employees' Retirement System).

Background and statutory framework

Illinois has a separate forfeiture provision in each article of the Pension Code that governs a particular public retirement system. Article 14 governs the State Employees' Retirement System. Section 14-149 is the article 14 forfeiture provision. The structure is the same across articles: a felony "relating to or arising out of or in connection with" public service triggers loss of benefits, but the member's own contributions remain refundable.

The opinion sat in a long line of similar AG analyses applying the nexus test. Where the conduct underlying the conviction itself depends on the employee being a public employee (custodial offenses, theft of state property, schemes that misuse legislative or agency authority), the AGs and courts have consistently found the forfeiture rule satisfied.

Citations and references

Statutes (as cited in the opinion):
- 40 ILCS 5/14-149 (West 2012)
- 720 ILCS 5/11-9.5(b)(1) (West 2008)
- 720 ILCS 5/11-9.5(e) (West 2008)

Cases:
- Ryan v. Board of Trustees of the General Assembly Retirement System, 236 Ill. 2d 315 (2010)
- Kerner v. State Employees' Retirement System, 72 Ill. 2d 507 (1978), cert. denied, 441 U.S. 923 (1979)
- Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund for the City of Chicago, 199 Ill. 2d 414 (2002)
- Bauer v. State Employees' Retirement System, 366 Ill. App. 3d 1007 (2006)
- Shields v. Judges' Retirement System, 204 Ill. 2d 488 (2003)
- Shields v. State Employees Retirement System, 363 Ill. App. 3d 999 (2006)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

September 16, 2013

13-001
PENSIONS:
Felony Forfeiture of Pension Benefits

Mr. Timothy B. Blair
Executive Secretary
State Employees' Retirement System
2101 South Veterans Parkway
Post Office Box 19255
Springfield, Illinois 62794-9255

Dear Mr. Blair:

I have your letter inquiring whether, pursuant to section 14-149 of the Illinois Pension Code (the Pension Code) (40 ILCS 5/14-149 (West 2012)), Robert J. Eizenga, a member of the State Employees' Retirement System, has forfeited his pension benefits as a result of his conviction of the offense of sexual misconduct with a person with a disability (720 ILCS 5/11-9.5(b)(1) (West 2008)). For the reasons stated below, it is my opinion that Robert J. Eizenga's criminal conviction requires the forfeiture of his pension benefits.

BACKGROUND

On January 22, 2013, Robert J. Eizenga was convicted upon a plea of guilty of one count of sexual misconduct with a person with a disability, in violation of subsection 11-9.5(b)(1) of the Criminal Code of 1961 (the Criminal Code) (720 ILCS 5/11-9.5(b)(1) (West 2008)). People v. Eizenga, Docket No. 11-CR-2223 (Circuit Court, Cook County). The multi-count indictment, pursuant to which the conviction was entered, charged that, on or about April 25, 2010, and continuing through May 4, 2010, while Eizenga was employed as a forensic psychologist by the Illinois Department of Human Services (IDHS), he knowingly engaged in an act of sexual penetration with a person with a disability who was under the care and custody of IDHS at the Tinley Park Mental Health Center, a State-operated facility. Indictment, Count 2, People v. Eizenga, Docket No. 11-CR-2223 (Circuit Court, Cook County). The offense of sexual misconduct with a person with a disability is a Class 3 felony under Illinois law. See 720 ILCS 5/11-9.5(e) (West 2008).

ANALYSIS

Section 14-149 of the Pension Code provides, with respect to members of the State Employees' Retirement System:

Felony conviction. 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.

This Section shall not operate to impair any contract or vested right heretofore acquired under any law or laws continued in this Article nor to preclude the right to a refund.

All future entrants entering service subsequent to July 9, 1955 shall be deemed to have consented to the provisions of this section as a condition of coverage.

The purpose of the felony forfeiture provisions in the Pension Code is to discourage official misconduct and to implement the public's right to conscientious service from those in governmental positions by denying retirement benefits to public servants convicted of violating the public's trust. Ryan v. Board of Trustees of the General Assembly Retirement System, 236 Ill. 2d 315, 322 (2010); Kerner v. State Employees' Retirement System, 72 Ill. 2d 507, 513 (1978), cert. denied, 441 U.S. 923, 99 S. Ct. 2032 (1979). The critical inquiry in determining if a felony is "relat[ed] to or ar[ose] out of or in connection with" service as an employee is whether a nexus existed between the employee's criminal wrongdoing and the performance of his official duties. Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund for the City of Chicago, 199 Ill. 2d 414, 419 (2002); Bauer v. State Employees' Retirement System, 366 Ill. App. 3d 1007, 1015-16 (2006), appeal denied, 222 Ill. 2d 567 (2006).

Eizenga's conviction of sexual misconduct with a person with a disability clearly related to, arose out of, or was in connection with his service as an employee of IDHS. Indeed, the offense to which Eizenga pled guilty is predicated upon the fact that he was an employee of IDHS, and that the victim was under the care and custody of IDHS, when the offense occurred. Eizenga's employment with IDHS provided him with access to his victim. Further, as a forensic psychologist at the mental health facility, Eizenga was aware that his victim suffered from a condition that caused her to be admitted to the State-operated facility for appropriate care. Eizenga took advantage of his victim's vulnerable condition in committing this horrible crime. This is precisely the type of reprehensible misconduct which section 14-149 of the Pension Code was designed to discourage.

CONCLUSION

Based on the records of the Circuit Court of Cook County, it is my opinion that Robert J. Eizenga has forfeited his pension benefits pursuant to section 14-149 of the Pension Code. He does retain the right to a refund of his contributions to the system, however, pursuant to Illinois case law. Shields v. Judges' Retirement System, 204 Ill. 2d 488, 497 (2003); see also Shields v. State Employees Retirement System, 363 Ill. App. 3d 999 (2006), appeal denied, 219 Ill. 2d 598 (2006).

Very truly yours,

LISA MADIGAN
ATTORNEY GENERAL