                                                 SECOND DIVISION
                                                 FILED: June 29, 2010




No.   1-09-3595


CHARLES ROMANO,                         )             APPEAL FROM THE
                                        )             CIRCUIT COURT OF
          Plaintiff-Appellant,          )             COOK COUNTY
                                        )
                    v.                  )
                                        )
THE MUNICIPAL EMPLOYEES ANNUITY AND     )
BENEFIT FUND OF CHICAGO, THE BOARD OF   )
TRUSTEES OF THE MUNICIPAL EMPLOYEES     )             09 CH 26406
ANNUITY AND BENEFIT FUND OF CHICAGO,    )
PETER BREJNAK, JOSEPH M. MALATISTA,     )
STEPHANIE D. NEELY, STEVEN J. LUX, and )
JOHN K. GIBSON, President and Members   )
of the Board of Trustees of the         )
Municipal Employees Annuity and Benefit )
Fund of Chicago,                        )             HONORABLE
                                        )             STUART E. PALMER,
          Defendants-Appellees.         )             JUDGE PRESIDING.


      JUSTICE HOFFMAN delivered the opinion of the court:

      The plaintiff, Charles Romano, again appeals from a judgment

of the Circuit Court of Cook County, confirming a decision of the

Board of Trustees of the Municipal Employees Annuity and Benefit

Fund of Chicago (Board) which found that, as a consequence of his

conviction of a felony, federal mail fraud, he forfeited all

benefits   he   may   have   had   as   a   participant   in   the   Municipal

Employees Annuity and Benefit Fund of Chicago (Fund).                 For the
No. 1-09-3595

reasons which follow, we reverse the judgment of the circuit court

and the decision of the Board.

      We set forth the majority of the facts relevant to the

disposition of this case in our prior decision.                   See Romano v.

Municipal Employees Annuity and Benefit Fund of Chicago, 384 Ill.

App. 3d 501, 501-503, 894 N.E.2d 151 (2008) (hereinafter referred

to   as   Romano    I).       We,   again,   restate    those    facts   for   the

convenience of the reader.

      The plaintiff, an operating engineer in the employ of the City

of Chicago (City), pled guilty to a felony, federal mail fraud,

arising from his participation in a scheme to pay bribes to Donald

Tomczak, the First Deputy Commissioner of the City’s Department of

Water, in exchange for Tomczak directing trucking business under

the City’s Hired Truck Program (HTP) to Garfield Trucking, Inc.

(Garfield).     As we noted in Romano I, the Plea Agreement entered

into between the plaintiff and the United States Attorney for the

Northern District of Illinois sets forth the following facts giving

rise to the plaintiff's indictment.

            "In or around late 2000, the plaintiff was asked by

      Michael      Harjung,    a    former   employee    of     the   City's

      Department of Water, to participate in the formation and

      operation of Garfield, a trucking business. Harjung told

      the plaintiff that, once formed, Garfield would have a


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No. 1-09-3595

     steady stream of business from the City's HTP because he,

     Harjung, had an ongoing payment arrangement with Tomczak

     involving another trucking company.               Harjung told the

     plaintiff that, in exchange for the payment of $75 per

     week,      Tomczak        would   select   Garfield's       truck    for

     participation in the HTP. After hearing Harjung describe

     his arrangement with Tomczak, the plaintiff agreed to

     participate in Garfield and made an initial investment of

     $10,000 for the purpose of purchasing a truck that would

     be used in the HTP by Garfield.            As a City employee, the

     plaintiff was prohibited from doing business with the

     City.

             Garfield     began    receiving    HTP   business    from    the

     City's Department of Water in April 2002.               The business

     was   arranged       in    communications    between    Harjung      and

     Tomczak.     Between April 2002 and January 2004, Garfield

     had one truck that worked exclusively and regularly for

     the HTP.

             The plaintiff never paid Tomczak any money directly,

     and   he    never    accompanied     Harjung     when   Harjung     paid

     Tomczak.      The plaintiff's principal operating role at

     Garfield was to pick up mail, including City warrants

     sent to Garfield in payment for HTP work, and to maintain


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No. 1-09-3595

     the truck.   The plaintiff invested an additional $10,000

     which was used by Garfield for operational purposes.

          The    Plea   Agreement   provides   that,    in   pleading

     guilty, the plaintiff admitted the facts set forth in the

     agreement and that those facts established the offense of

     mail fraud beyond a reasonable doubt."            Romano I, 384

     Ill. App. 3d at 502.

     Following    the   plaintiff’s     conviction,     proceedings     were

instituted before the Board to declare him ineligible for pension

benefits under Article 8 of the Pension Code (Code) (40 ILCS 5/8-

101 et seq. (West 2004)).      The Fund filed a motion for summary

judgment supported by the plaintiff's felony conviction and the

admissions made in his Plea Agreement, arguing that, pursuant to

the provisions of Section 8-251 of the Code (40 ILCS 5/8-251 (West

2004)), the plaintiff is ineligible to receive pension benefits

from the Fund. The Board granted the motion, finding that "[t]here

is no issue of material fact that *** [the plaintiff] was convicted

of a felony relating to or arising out of or in connection with his

service as a municipal employee."

     The plaintiff sought a review of the Board's decision in the

Circuit Court of Cook County pursuant to the Administrative Review

Law (735 ILCS 5/3-101 et seq. (West 2004)).            The circuit court

confirmed the Board's decision, and the plaintiff appealed. Romano


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No. 1-09-3595

I, 384 Ill. App. 3d at 502-03.       We reversed the circuit court’s

order and the summary judgment entered by the Board, and we

remanded the matter back to the Board for further proceedings.

Romano I, 384 Ill. App. 3d at 505.

     On remand, the Board held a hearing at which the plaintiff was

the only witness, and his Plea Agreement was received in evidence.

In addition to the facts admitted by the plaintiff in his Plea

Agreement as set forth above, he testified that Mark LeBaron, his

supervisor, gave Harjung his phone number, and that it was Harjung

who contacted him and proposed that he participate in the formation

of Garfield. According to the plaintiff, he and Harjung had worked

together for the City 20 years earlier.

     The plaintiff admitted that, in his duties for the City, he

would use trucks that were in the HTP on a daily basis. He denied,

however, that he ever had anything to do with ordering trucks from

the HTP or that the truck owned by Garfield was ever sent to any

job that he was working on.   He also denied that, as part of his

duties for the City, he did anything whatever to assist Garfield in

getting business or in working for the City.

     Following the hearing, the Board issued a written decision,

finding that the plaintiff had been convicted of a felony that is

"related to, arose out of, or was in connection with his employment

with the City of Chicago," and, as a consequence, the Board held


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No. 1-09-3595

that he had forfeited all benefits that he may have earned as a

participant in the Fund.

     The plaintiff, again, sought a review of the Board's decision

in the Circuit Court of Cook County pursuant to the Administrative

Review Law.   The circuit court confirmed the Board's decision, and

this appeal followed.

     In urging reversal, the plaintiff argues that the Board's

decision is against the manifest weight of the evidence.        He

contends that there is no evidence in the record supporting the

Board’s finding that the felony of which he was convicted is

"related to, arose out of, or was in connection with his employment

with the City."   The plaintiff concludes, therefore, that, in the

absence of any nexus between his employment with the City and the

felony of which he was convicted, the Board erred in holding that

he forfeited the benefits which he earned as a participant in the

Fund.

     We begin our analysis by articulating the standard of review.

As in any review of an administrative decision, we accept the

Board’s factual findings as prima facie true and correct (735 ILCS

5/3-110 (West 2008); City of Belvidere v. Illinois State Labor

Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998)), and

we will not reverse those findings unless they are against the

manifest weight of the evidence (Terrano v. Retirement Board of the


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No. 1-09-3595

Policemen’s Annuity and Benefit Fund of the City of Chicago, 315

Ill. App. 3d 270, 274, 733 N.E.2d 905 (2000)).

     A factual finding of an administrative agency is against the

manifest weight of the evidence only if an opposite conclusion is

clearly evident. Abrahamson v. Illinois Department of Professional

Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992).                   The fact

that a conclusion opposite that reached by the agency is reasonable

or that a reviewing court might have ruled differently will not

justify    reversing   the    findings      of   an    administrative      agency.

Abrahamson, 153 Ill. 2d at 88.        When, however, the decision of an

administrative   agency      is   against    the      manifest   weight    of   the

evidence, it is the court’s duty to reverse it.             Zien v. Retirement

Board of the Firemen’s Annuity & Benefit Fund of Chicago, 236 Ill.

App. 3d 499, 507, 603 N.E.2d 777 (1992).

     Section 8-251 of the Code provides, in relevant part, as

follows:

            "None of the benefits provided for in this Article

     [Article 8] 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 a municipal employee." 40

     ILCS 5/8-251 (West 2004).

In   Devoney v. Retirement Board of the Policemen’s Annuity &

Benefit Fund for the City of Chicago, 199 Ill. 2d 414, 419, 769


                                      7
No. 1-09-3595

N.E.2d 932 (2002), our supreme court held that, in applying a

pension disqualification statute such as this, the pivotal inquiry

is whether there is a nexus between the felony of which the

employee has been convicted and the performance of his official

duties.   Breach of duty to the municipality is not what triggers

disqualification; rather, it is the existence of a connection

between the actual felony conviction and the employee's duties.

Devoney, 199 Ill. 2d at 419.         That is to say, there must be a

"clear and specific connection between the felony committed and the

participant’s employment" to justify such a forfeiture.            Taddeo v.

Board of Trustees of the Illinois Municipal Retirement Fund, 216

Ill. 2d 590, 597, 837 N.E.2d 876 (2005).

      The supreme court in Devoney found that the nexus requirement

was satisfied because "but for the fact that Devoney was a Police

Officer of high rank, he would not have been in a position or

selected to participate in the scheme to defraud."            Devoney, 199

Ill. 2d at 423.    In this case, the Board argues that the evidence

of   record   supports   its   finding   that,   "[b]ecause   of   ***   [the

plaintiff’s] position as a City employee, he was asked by Harjung

to participate with him in Garfield, a company that they formed to

obtain HTP business," and as consequence, the nexus between the

felony of which the plaintiff was convicted and his employment

necessary to support a forfeiture of his right to any benefits as


                                     8
No. 1-09-3595

a participant in the Fund was satisfied.   The Board also points to

other facts which it contends establish that nexus, namely: that

the plaintiff’s job with the City gave him access to the HTP, the

knowledge of whom to bribe, and information as to the scope of the

HTP program; that he used HTP trucks on a daily basis in his City

employment; and that LeBaron, a co-City worker with the plaintiff,

supplied Harjung with the plaintiff’s telephone number.

     We have reviewed the Plea Agreement and the plaintiff’s

testimony before the Board, and we do not believe that the evidence

establishes a clear and specific connection between the felony of

which the plaintiff was convicted and his municipal employment.

Nothing in that Plea Agreement speaks to the reason why the

plaintiff was asked by Harjung to participate in Garfield.     Nor

are there any facts in the Plea Agreement which would support an

inference that the relationship between the plaintiff and Harjung

or any of the other co-conspirators was cultivated because the

plaintiff was an employee of the City or that he had ever used his

position as a City employee for the benefit of Harjung or the other

co-conspirators.   See   Devoney, 199 Ill. 2d at 423.       In his

testimony before the Board, the plaintiff stated that, from the

time that he was first contacted by Harjung and throughout the

entire scheme, no one ever suggested that he had been asked to

participate in Garfield because he was a City employee.   The fact


                                 9
No. 1-09-3595

that the plaintiff and Harjung worked together for the City some 20

years before the events giving rise to the plaintiff’s conviction

explains how they came to be acquainted, it does not explain why

the plaintiff was asked by Harjung to participate in a scheme to

bribe Tomczak or establish that his status as a City employee was

in any way relevant to his participation in the felonious scheme.

The notion that whatever relationship the plaintiff and Harjung

developed when they worked together for the City some 20 years

earlier    constitutes     a     substantial        connection       between    the

plaintiff’s service for the City and his felony conviction or that

the relationship satisfies the requisite nexus necessary to a

forfeiture of benefits under section 8-251 of the Code is pure

sophistry.      Further,   the    fact       that   LeBaron,   the    plaintiff’s

supervisor, gave Harjung the plaintiff's phone number explains how

Harjung located the plaintiff; but, again, it does not explain why

the plaintiff was asked by Harjung to participate in the felonious

scheme.

       There is no disputing the fact that, while employed by the

City, the plaintiff participated in a scheme with Harjung, a former

City   employee,    pursuant     to    which    Tomczak,   the     First    Deputy

Commissioner of the Water Department, was paid bribes for directing

HTP business to Garfield. However, there is no evidence, either in

the    admissions   contained     in    the     Plea   Agreement      or   in   the


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No. 1-09-3595

plaintiff’s testimony, which could support the conclusion that the

felonious scheme was the product of the plaintiff’s status as a

City employee or that he used his position as a City employee to

facilitate the scheme.         The plaintiff admitted that he regularly

used trucks that were retained by the City as part of the HTP in

his work, but he denied that he had anything to do with ordering

those trucks.   He also denied that the truck owned by Garfield was

ever used on a job where he was working.           The plaintiff’s testimony

in this regard was unrebutted.

       The circumstances of this case are readily distinguishable

from those of the cases upon which the Board relies; the very facts

supporting    the   requisite     nexus     between    the   employees     felony

convictions and their employment differ.              In Devoney, the supreme

court found that the plaintiff’s participation in the fraudulent

scheme of which he was convicted was the product of his status as

a police officer.      The court’s conclusion in this regard was based

upon   its   finding    that    he   would   not   have      been    selected   to

participate in the scheme "but for" the fact that he was a high

ranking police officer, as evidenced by the use of his position to

benefit his co-conspirator "in a variety of ways over a protracted

period of time."       Devoney, 199 Ill. 2d at 423-24.              In this case,

there is no evidence that the plaintiff had ever used his position

as a City employee to benefit Harjung, or any other co-conspirator,


                                       11
No. 1-09-3595

either   before   or   after   the   time   that   he   was   solicited   to

participate in Garfield and the scheme to bribe Tomczak, and there

is no evidence in the record that he was selected to participate in

the felonious scheme because of his position with the City.

     In Bauer v. State Employees' Retirement System of Illinois,

366 Ill. App. 3d 1007, 852 N.E.2d 497 (2006), the court found that,

"but for" the plaintiff’s former position as the State’s Inspector

General, he would not have been in a position to attempt to

persuade his former secretary to conceal or destroy documents

relevant to a federal investigation; thus, establishing a nexus

between his felony conviction for obstruction of justice and his

employment.     Bauer, 366 Ill. App. 3d at 1020.        In contrast, there

is no evidence in this case that the plaintiff’s service as a

municipal employee made the bribery of Tomczak possible, or in any

way contributed to Garfield’s participation in the HTP.            Rather,

the Plea Agreement reflects that, when he solicited the plaintiff’s

participation, Harjung told the plaintiff that he already had an

ongoing payment arrangement with Tomczak involving another trucking

company.

     In Siwek v. Retirement Board of the Policemen’s Annuity and

Benefit Fund, 324 Ill. App. 3d 820, 756 N.E.2d 374 (2001), the

plaintiff, a police officer, was convicted of two felony drug

offenses.     On appeal, this court found that Siwek’s specialized


                                     12
No. 1-09-3595

knowledge gained as a police officer and his relationship with a

police informant, which were used to set up the personal drug

transactions underlying his felony convictions, related to his

service as a police officer, justifying forfeiture of his pension

benefits.     Siwek, 324 Ill. App. 3d at 829.          In this case, the

plaintiff’s Plea Agreement plainly states that: it was Harjung who

devised the scheme to bribe Tomczak in exchange for selecting

Garfield for participation in the HTP; Garfield’s receipt of HTP

business was arranged between Harjung and Tomczak; and it was

Harjung who delivered the bribes to Tomczak, never the plaintiff.

Additionally, the plaintiff testified that, in the discharge of his

job duties, he never ordered trucks to a job site from the HTP, and

he never did anything as part of his job duties to assist Garfield

in getting City business.        There is no contrary evidence in the

record.      According to the Plea Agreement, other than providing

money   to    purchase   a   truck   and   for   operating   purposes,   the

plaintiff’s principal role at Garfield was picking up mail and

maintaining the truck. Nothing in the record supports an inference

that any knowledge gained by the plaintiff as a City employee or

any of his activities as a City employee contributed to the

activities of Garfield, its participation in the HTP, or the

bribing of Tomczak.

     In Bloom v. Municipal Employees’ Annuity and Benefit Fund of


                                      13
No. 1-09-3595

Chicago, 339 Ill. App. 3d 807, 791 N.E.2d 1254 (2003), a former

Chicago alderman pled guilty to filing a false federal tax return

in which he intentionally miscategorized funds paid to him for the

improper use of his public office.                 Bloom was denied pension

benefits under section 2-251 of the Code because his improper

receipt   of     payments   for     performing    aldermanic       services    were

material and substantial factors in his resulting felony tax

conviction. Bloom, 339 Ill. App. 3d at 816.

     In   Goff    v.    Teachers'    Retirement    System     of    the    State   of

Illinois, 305 Ill. App. 3d 190, 713 N.E.2d 578 (1999), a retired

teacher pled guilty to the aggravated sexual abuse of children

attending the school in which he worked.                Although the conduct

underlying the convictions never took place on school property,

Goff used his position as a teacher to take sexual advantage of his

victims, and, as a consequence, the court found that he "used and

abused" his service as a teacher to perpetrate the felonies of

which   he   pled      guilty,   justifying      forfeiture    of    his    pension

benefits.      Goff, 305 Ill. App. 3d at 195-96.               Again, however,

unlike the facts in Bloom and Goff, nothing in the record supports

a conclusion that any activity on the part of the plaintiff as a

City employee contributed to the felonious scheme, perpetuated the

behavior of which he was convicted, or formed a factor in bringing

about that conviction.


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No. 1-09-3595

       Finally, in Katalinic v. Board of Trustees of the Municipal

Employees’, Officers', and Officials’ Annuity and Benefit Fund, 386

Ill. App. 3d 922, 898 N.E.2d 243 (2008), the count found that, "but

for" the plaintiff’s former job as a deputy commissioner of the

City’s department of streets and sanitation, he would not have been

in a position to become involved in the hiring and promotion scheme

which led to his conviction for mail fraud, and his employment with

the City was a substantial factor in bringing about the conduct

underlying his conviction. Katalinic, 386 Ill. App. at 929-30. In

this case, there is no evidence that the plaintiff’s position with

the City was a factor in his recruitment by Harjung, nor is there

any evidence that his position aided the furtherance of the scheme.

       As noted earlier, on review the Board’s factual findings are

to be accepted as prima facie true and correct. Nevertheless, they

must    still   be   supported   by    evidence,   either   direct   or

circumstantial.      As there is no direct evidence supporting the

Boards conclusion that the plaintiff was selected to participate in

the scheme giving rise to his conviction because of his position as

a City employee, it must be an inference based upon circumstantial

evidence.    The Board seemingly asserts that factors such as the

plaintiff and Hartung having work worked together for the City, and

LeBaron, the plaintiff’s supervisor, having given Hartung the

plaintiff’s telephone number constitute sufficient circumstantial


                                  15
No. 1-09-3595

evidence to support the inference it drew.         We disagree.

     To be sufficient to support an inference, circumstantial

evidence must show a probability of the existence of the fact to be

inferred. Pyne v. Witmer, 129 Ill. 2d 351, 369, 543 N.E.2d 1304

(1989).   Although the circumstantial evidence need not exclude all

other possible inferences, it must be of such a nature and so

related as to make the conclusion reached the more probable. Pyne,

129 Ill. 2d at 369.       Where from the proven facts the non-existence

of the fact to be inferred appears to be just as probable as its

existence, then the conclusion that it exists is a matter of

speculation, surmise, and conjecture.         Consolino v. Thompson, 127

Ill. App. 3d 31, 34, 468 N.E.2d 422 (1984).

     In this case, it is certainly possible that Harjung invited

the plaintiff to participate in the felonious scheme because of the

plaintiff's City employment, but it is not probable.               Before

inviting the plaintiff to participate in the scheme which led to

his conviction, Harjung already had an ongoing payment arrangement

with Tomczak for another trucking company involved in the HTP.

More importantly, there is no evidence in this record that the

plaintiff ever used his position with the City to further the

scheme.   The plaintiff invested money, picked up Garfield's mail,

and maintained the truck; nothing more.

     In   the   absence    of   sufficient   circumstantial   evidence   to


                                     16
No. 1-09-3595

support an inference that the plaintiff was chosen to participate

in the scheme giving rise to his conviction because of his position

as a City employee and the absence of any evidence that the

plaintiff used his position as a City employee to further the

scheme,   the    Board's   conclusion   that   the   plaintiff's   felony

conviction is "related to, arose out of, or was in connection with

his employment with the City of Chicago," is against the manifest

weight of the evidence.

     The question is not whether the plaintiff, a City employee,

was convicted of a felony; the question is whether the evidence

supports a finding that he was convicted of a felony "relating to

or arising out of or in connection with his service as a municipal

employee."   40 ILCS 5/8-251 (West 2004).      Based upon the foregoing

analysis, we find that the evidence before the Board does not

support such a finding.     As a consequence, we reverse the judgment

of the circuit court and the decision of the Board.

     Reversed.


     CUNNINGHAM, P.J., and KARNEZIS, J., concur.




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