Does a former Illinois state representative lose his General Assembly pension if he used his state office, state computers, and state-paid time to commit a federal child pornography felony?
Plain-English summary
Former Illinois State Representative Keith Farnham (43rd District, 2009 to March 2014) pled guilty in federal court in 2014 to one count of transportation of child pornography. The district court sentenced him in March 2015 to 96 months in prison and five years of supervised release. The federal sentencing memorandum laid out facts that mattered for the AG's analysis: Farnham used Yahoo email accounts at his Elgin district office, his Springfield office, and a Springfield hotel during House sessions to receive, trade, and distribute child pornography. Investigators recovered a hard drive under the driver's seat of his state-issued vehicle and a Dell tower in his office labeled "Property of the State of Illinois House of Representatives." Both contained images and videos of child pornography. Farnham, in the federal plea documents, admitted that he "actively possessed and traded child pornography using taxpayer-funded property and on government time."
The General Assembly Retirement System asked Attorney General Lisa Madigan whether section 2-156 of the Pension Code required forfeiture. The AG's answer was yes. Section 2-156 forfeits all benefits for any GARS member "convicted of any felony relating to or arising out of or in connection with his or her service as a member." Farnham's misuse of state computers, state internet access, his legislative district office, and state-paid time to commit the offense supplied a clear nexus between the felony and his official service. As with all the pension-forfeiture opinions, he kept the statutory right to a refund of his own contributions.
Currency note
This opinion was issued in 2015. 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: How is the legislator pension-forfeiture rule different from the one for state employees?
A: It applies to a different retirement system but uses parallel language. Article 2 of the Pension Code governs the General Assembly Retirement System, and section 2-156 provides that none of the benefits "shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his or her service as a member." Article 14 governs SERS and section 14-149 uses parallel "service as an employee" language.
Q: Why did the AG find the necessary 'nexus' here?
A: The federal plea agreement and sentencing memorandum laid it out. Farnham used state-owned computers, his legislative district office, his Springfield office, his state-issued vehicle, and state-paid time to commit the offense. As the AG put it, but for his membership in the General Assembly, "Farnham would not have been in a position to misuse State property to engage in this crime."
Q: Does the federal nature of the conviction matter?
A: No. Section 2-156 reaches "any felony" related to or arising out of service. The federal child pornography offense (18 U.S.C. § 2252A(a)(1)) is a felony under federal law (18 U.S.C. § 3559(a)). The Illinois forfeiture rule keys on the felony status of the conviction and the connection to service, not on whether the prosecution was state or federal.
Q: What does article VIII, section 1 of the Illinois Constitution have to do with this?
A: It provides that public funds and public property shall be used only for public purposes. The AG cited it to make the point that Farnham was under a constitutional duty as a legislator to use state property only for lawful public purposes, and that misusing state computers and offices for personal criminal conduct was a breach of that duty connected to his official service.
Q: Does Farnham keep anything?
A: His own contributions to the system. Per Shields v. Judges' Retirement System, 204 Ill. 2d 488 (2003), a forfeited member retains the right to a refund of his own deposits, but loses the employer-funded benefits and any accrued growth.
Background and statutory framework
The General Assembly Retirement System is governed by article 2 of the Illinois Pension Code, with the forfeiture rule in section 2-156. The structure mirrors the forfeiture rules in other articles of the Code (article 14 for SERS, etc.). The unifying test, confirmed in Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund, 199 Ill. 2d 414 (2002), is whether a nexus existed between the criminal wrongdoing and the performance of official duties.
The forfeiture provisions exist to "discourage official malfeasance 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 (2010); Kerner v. State Employees' Retirement System, 72 Ill. 2d 507 (1978)).
The Farnham case sits in a string of mid-2010s pension-forfeiture opinions involving high-profile Illinois public servants. In each, the AG applied the same nexus test and reached the same result when the conduct involved misuse of position or property. That consistency is itself part of the practical doctrine: the forfeiture rule is not just for theft from the state. It reaches any service-connected felony.
Citations and references
Statutes:
- Ill. Const. 1970, art. VIII, § 1
- 40 ILCS 5/2-156 (West 2012)
- 18 U.S.C. §§ 2252A(a)(1), (b)(1), 3559
Cases:
- Ryan v. Board of Trustees of the General Assembly Retirement System, 236 Ill. 2d 315 (2010)
- Kerner v. State Employees' Retirement System of Illinois, 72 Ill. 2d 507 (1978)
- Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund for the City of Chicago, 199 Ill. 2d 414 (2002)
- Shields v. Judges' Retirement System, 204 Ill. 2d 488 (2003)
- Shields v. State Employees Retirement System, 363 Ill. App. 3d 999 (2006)
Source
- Landing page: https://illinoisattorneygeneral.gov/opinions/
- Original PDF: https://illinoisattorneygeneral.gov/dA/9c6520c49f/2015%2015-003%20PENSIONS%20Felony%20Forfeiture%20of%20Pension%20Benefits.pdf
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
April 2, 2015
FILE NO. 15-003
PENSIONS:
Felony Forfeiture of Pension Benefits
Mr. Timothy Blair
Executive Secretary
General Assembly Retirement System
2101 South Veterans Parkway
P.O. Box 19255
Springfield, Illinois 62794-9255
Dear Mr. Blair:
I have your letter inquiring whether, pursuant to section 2-156 of the Illinois Pension Code (the Pension Code) (40 ILCS 5/2-156 (West 2012)), former Illinois State Representative Keith Farnham has forfeited his pension benefits under the General Assembly Retirement System as a result of his conviction of the offense of transportation of child pornography (18 U.S.C. §2252A(a)(1) (2012)). For the reasons stated below, it is my opinion that Keith Farnham's criminal conviction requires that he forfeit his pension benefits under section 2-156 of the Pension Code.
BACKGROUND
On May 22, 2014, the United States filed a four-count Indictment against Farnham in the United States District Court for the Northern District of Illinois. Indictment, United States v. Farnham, No. 14 CR 237 (N.D. Ill. May 22, 2014). Farnham subsequently pled guilty to one count of transportation of child pornography. Plea Agreement, United States v. Farnham, No. 14 CR 237 (N.D. Ill. December 5, 2014). On March 19, 2015, the court sentenced him to a term of imprisonment of 96 months and a term of five years of supervised release. The court also ordered Farnham to pay a fine of $30,000.00. The offense of transportation of child pornography is a felony under Federal law. See 18 U.S.C. §§2252A(b)(1), 3559 (2012).
Count Three of the Indictment, pursuant to which the conviction was entered, indicates that, on or about November 25, 2013, in Elgin, Illinois, Farnham knowingly transported and caused to be transported two computer files containing child pornography. In the Plea Agreement, Farnham admits that, on or about November 25, 2013, he used two Yahoo! email addresses "to receive, trade, and distribute child pornography while at his [State legislative district] office and residence in Elgin, Illinois, among other locations." In addition, Farnham admits that he "possessed images and videos depicting child pornography on computers and electronic storage devices in his residence, car and offices[.]"
Farnham served as an Illinois State Representative for the 43rd District from January 2009 through March 19, 2014. His district office was located in Elgin, Illinois.
The Government's Sentencing Memorandum provides additional details regarding Farnham's conduct. Specifically, Farnham possessed, received, and distributed images of child pornography "from his home, his representative office in Elgin, his representative office in Springfield, and a hotel in Springfield, among other locations." Moreover, Farnham "actively possessed and traded child pornography using taxpayer-funded property and on government time." The Sentencing Memorandum contains additional details regarding how Farnham committed his acts:
[W]hen the Illinois House of Representatives was not in session, [Farnham]'s Yahoo! account was logged into from his residence or office in Elgin; but when the Illinois House of Representatives was in session, [Farnham]'s Yahoo! account was logged into from a hotel in Springfield, Illinois, or from a network used by a committee with the Illinois House of Representatives. Furthermore, during searches of [Farnham]'s residence and office, law enforcement recovered a hard drive under the driver's seat in [Farnham]'s government vehicle and a Dell Tower in his office labeled "Property of the State of Illinois House of Representatives," both of which contained images and videos depicting child pornography.
ANALYSIS
Section 2-156 of the Pension Code requires the forfeiture of a participant's retirement annuities and other pension benefits upon his or her conviction of a service-related felony:
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 or her service as a member.
The public unquestionably has the right to conscientious service from those in governmental positions. The purpose of the felony forfeiture provisions in the Pension Code is to enforce that right and discourage official malfeasance 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 of Illinois, 72 Ill. 2d 507, 513 (1978), cert. denied, 441 U.S. 923, 99 S. Ct. 2032 (1979). Accordingly, whether a felony is "relat[ed] to or ar[ose] out of or in connection with" public service necessarily turns on whether a nexus existed between the public servant's criminal wrongdoing and the performance of his or her official duties. Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund for the City of Chicago, 199 Ill. 2d 414, 419 (2002); Ill. Att'y Gen. Op. No. 11-003, issued December 8, 2011; Ill. Att'y Gen. Op. No. 06-002, issued September 12, 2006.
As detailed in the Indictment, the Plea Agreement, and the Sentencing Memorandum, Farnham's conviction for transportation of child pornography related to, arose out of, and was in connection with his service as a member of the Illinois General Assembly. As a member of the General Assembly, Farnham was under a duty to use public property only for lawful, public purposes. See generally Ill. Const. 1970, art. VIII, §1. While serving as a member of the Illinois General Assembly, however, Farnham clearly violated that duty by misappropriating the State's computers, the State's internet access system, his State legislative district office, and his State compensated time to engage in the reprehensible conduct which resulted in his conviction. If he were not a member of the Illinois General Assembly, Farnham would not have been in a position to misuse State property to engage in this crime. In these circumstances, section 2-156 of the Pension Code requires that Farnham forfeit his pension benefits.
CONCLUSION
Therefore, based on the records of the United States District Court for the Northern District of Illinois, it is my opinion that Keith Farnham's felony conviction requires forfeiture of his retirement benefits under the General Assembly Retirement System pursuant to section 2-156 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