Does an Illinois Department of Corrections employee lose his pension if he is convicted of having sexual contact with a person in his prison's custody?
Plain-English summary
Michael L. Cole was a correctional officer at the Department of Corrections' Logan Correctional Center. In 2014, prosecutors filed a two-count Information charging that, in January and February of 2014, while he was employed by IDOC, he "knowingly engaged in sexual penetration with * * * a person who was in [the] custody of [the] Logan Correction[al] Center." Cole pled guilty to one count of custodial sexual misconduct, a Class 3 felony, and the court sentenced him to 30 months of probation and 200 hours of public-service work.
The State Employees' Retirement System asked the AG whether section 14-149 of the Illinois Pension Code required forfeiture. AG Lisa Madigan said yes. The custodial-sexual-misconduct statute, 720 ILCS 5/11-9.2, defines the crime by reference to the employee-employer relationship: it requires that the actor be an employee of a penal system and that the victim be a person in the same penal system's custody. The crime cannot be committed without that employment status. The nexus between the felony and Cole's official service was therefore inherent in the elements of the conviction, and section 14-149 required forfeiture. Cole retained the 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 does custodial sexual misconduct differ from ordinary sexual offenses?
A: At the time of the opinion, 720 ILCS 5/11-9.2(a)(1) defined the offense as occurring where an employee of a penal system commits an act of sexual conduct or sexual penetration with a person in the custody of that same penal system. The status of both the actor and the victim is part of the offense itself. Cole's conviction therefore could not have happened without his being an IDOC employee.
Q: Why does that simplify the AG's nexus analysis?
A: In other forfeiture cases, the AG has to look at whether the criminal conduct used the employee's position, access, or authority. Here, the answer is built into the conviction. The statute the defendant violated requires him to be a state employee. There is no version of the offense that occurs outside the employment relationship.
Q: What does Cole keep and what does he lose?
A: He loses all benefits payable under section 14-149 of SERS, which means his employer-funded pension and accrued benefits. He keeps the right to a refund of his own contributions to the system, per the Shields line of Illinois cases.
Q: Is the result different because Cole's sentence was probation rather than prison?
A: No. The forfeiture statute keys on the conviction of a service-related felony, not on the severity of the sentence. The conviction is the operative event.
Background and statutory framework
Article 14 of the Illinois Pension Code governs the State Employees' Retirement System. Section 14-149 forfeits all benefits for a member "convicted of any felony relating to or arising out of or in connection with his service as an employee." The same forfeiture pattern appears throughout the Pension Code (article 2 for GARS, article 8 for municipal employees, etc.), with parallel "service" language.
Custodial sexual misconduct, 720 ILCS 5/11-9.2, is one of a series of Illinois offenses that exist to protect persons in state custody from abuse by the state actors who control them. The statute deliberately couples the elements of the crime with the employment relationship. That coupling is what the AG relied on when she described the conviction as predicated on the employment.
The general nexus test (drawn from Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund, 199 Ill. 2d 414 (2002), and Bauer v. State Employees' Retirement System, 366 Ill. App. 3d 1007 (2006)) asks whether the criminal wrongdoing was connected to the performance of official duties. Where the offense itself requires the actor to be a public employee in a particular role, that connection is automatic.
Citations and references
Statutes:
- 40 ILCS 5/14-149 (West 2012)
- 720 ILCS 5/11-9.2(a)(1), (c) (West 2013 Supp.)
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)
- 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
- Landing page: https://illinoisattorneygeneral.gov/opinions/
- Original PDF: https://illinoisattorneygeneral.gov/dA/4d19529563/2015%2015-004%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
August 24, 2015
FILE NO. 15-004
PENSIONS:
Felony Forfeiture of Pension Benefits
Mr. Timothy B. Blair
Executive Secretary
State Employees' Retirement System
2101 South Veterans Parkway
P.O. Box 19255
Springfield, Illinois 62794-9255
Dear Mr. Blair:
I have your letter inquiring whether Michael L. Cole, a member of the State Employees' Retirement System, has forfeited his pension benefits as a result of his conviction of the offense of custodial sexual misconduct (720 ILCS 5/11-9.2(a)(1) (West 2013 Supp.)). For the reasons stated below, it is my opinion that Michael L. Cole's criminal conviction requires the forfeiture of his pension benefits.
BACKGROUND
According to the records of the Circuit Court of the Eleventh Judicial Circuit, on April 22, 2014, the State filed a two-count Information against Cole. Information, People v. Cole, Docket No. 14-CF-26 (Circuit Court, Logan County). Cole subsequently pled guilty to one count of custodial sexual misconduct, a Class 3 felony under Illinois law (see 720 ILCS 5/11-9.2(c) (West 2013 Supp.)). The court sentenced Cole to 30 months probation and 200 hours of public service work.
Count One of the Information, pursuant to which the guilty plea and conviction were entered, alleged that, on or between January 2014 through February 2014, while Cole was employed by the Illinois Department of Corrections at the Department's Logan Correctional Center, he "knowingly engaged in sexual penetration with * * * a person who was in [the] custody of [the] Logan Correction[al] Center."
ANALYSIS
Section 14-149 of the Pension Code requires the forfeiture of a participant's retirement annuities and other pension benefits upon his 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 service as an employee.
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).
Cole's conviction of custodial sexual misconduct clearly related to, arose out of, or was in connection with his service as an employee of the Illinois Department of Corrections. Indeed, the offense of custodial sexual misconduct is predicated, among other things, on the commission of an act of sexual penetration by an employee of a penal system with a person who is in the custody of the same penal system. At the time of the offense, Cole was employed by the Department of Corrections, a penal system, as a correctional officer assigned to the Logan Correctional Center. He engaged in an act of "sexual penetration with * * * a person who was in [the] custody of [the] Logan Correction[al] Center[,]" a facility operated by the Department of Corrections. Accordingly, were it not for his employment by the Department of Corrections, Cole would not have been in a position to commit the offense for which he was convicted. This is precisely the type of reprehensible misconduct that section 14-149 of the Pension Code was designed to discourage.
CONCLUSION
Based on the records of the Circuit Court of the Eleventh Judicial Circuit, it is my opinion that Michael L. Cole 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