                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court



                   People ex rel. Madigan v. Burge, 2012 IL App (1st) 112842




Appellate Court            THE PEOPLE ex rel. LISA MADIGAN, Attorney General State of
Caption                    Illinois, Plaintiff-Appellant, v. JON BURGE, in His Individual Capacity,
                           THE RETIREMENT BOARD OF THE POLICEMEN’S ANNUITY
                           AND BENEFIT FUND OF CHICAGO, and MICHAEL A. CONWAY,
                           KENNETH A. HAUSER, MICHAEL J. LAZZARO, STEVEN J. LUX,
                           JAMES P. MALONEY, STEPHANIE D. NEELY, GENE R. SAFFOLD,
                           MICHAEL K. SHIELDS, in Their Official Capacities as Trustees of the
                           Policemen’s Annuity and Benefit Fund of Chicago, Defendants-
                           Appellees.


District & No.             First District, Sixth Division
                           Docket No. 1-11-2842


Filed                      November 30, 2012
Rehearing denied           January 8, 2013


Held                       On appeal from the dismissal of the Attorney General’s complaint
(Note: This syllabus       seeking to enjoin defendant retirement board from continuing to pay
constitutes no part of     pension benefits to a retired police officer who was convicted of
the opinion of the court   obstruction of justice and perjury in connection with the alleged torture
but has been prepared      and abuse of suspects who were in custody while the officer was working,
by the Reporter of         the dismissal was reversed and the cause was remanded, since the board
Decisions for the          erred in determining that the board’s tie vote on the issue of whether the
convenience of the         officer’s convictions were related to his employment allowed the officer
reader.)
                           to continue to receive pension benefits, and the Attorney General had
                           standing to sue to recover funds paid in violation of the Pension Code.


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-CH-04366; the
Review                     Hon. Rita M. Novak, Judge, presiding.
Judgment                   Reversed and remanded with instructions.


Counsel on                 Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal                     Solicitor General, and Paul Berks, Assistant Attorney General, of
                           counsel), for appellant.

                           Michael H. Moirano and Claire Gorman Kenny, both of Nisen & Elliot,
                           LLC, of Chicago, for appellee Jon Burge.

                           David R. Kugler, of Retirement Board of Policemen’s Annuity and
                           Benefit Fund, of Chicago, for appellee Retirement Board of Policemen’s
                           Annuity and Benefit Fund.


Panel                      JUSTICE HALL delivered the judgment of the court, with opinion.
                           Justice Gordon concurred in the judgment and opinion.
                           Justice Garcia specially concurred, with opinion.




                                             OPINION

¶1          The Illinois Attorney General appeals from an order of the circuit court dismissing her
        complaint against defendants-appellees the Retirement Board of the Policemen’s Annuity
        and Benefit Fund of the City of Chicago, its board of trustees (Pension Board), and Jon
        Burge, a retired Chicago police officer. In the complaint, the Attorney General, acting on
        behalf of the People of the State of Illinois, sought declaratory and injunctive relief seeking
        to enjoin the Pension Board from making ongoing pension payments to Burge in light of his
        felony convictions. For the reasons that follow, we reverse and remand the matter to the
        circuit court for further proceedings.
¶2          Burge was a Chicago police officer from 1970 to 1993. During his tenure with the
        Chicago police department, Burge held the ranks of detective, sergeant, and eventually
        lieutenant, supervising detectives in the violent crime units in Area Two and Area Three.
        Burge is widely believed to have sanctioned and participated in the physical abuse and
        torture of arrestees in order to obtain confessions.
¶3          On June 28, 2010, following a jury trial, Burge was convicted of two counts of
        obstruction of justice in violation of 18 U.S.C. § 1512(c)(2), and one count of perjury in
        violation of 18 U.S.C. § 1621(1). The felony convictions were based upon charges brought
        by the federal government against Burge alleging that he gave false representations and


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     answers to written interrogatories in civil litigation regarding his knowledge of or
     participation in the torture and abuse of suspects in his custody when he was employed by
     the Chicago police department. See United States v. Burge, No. 08 CR 846, 2011 WL
     167230 (N.D. Ill. Jan. 19, 2011); United States v. Burge, No. 08 CR 846, 2011 WL 13471
     (N.D. Ill. Jan. 3, 2011).
¶4       On January 21, 2011, Burge was sentenced to 54 months in prison. See Tillman v. Burge,
     813 F. Supp. 2d 946, 955 (N.D. Ill. 2011). Burge began receiving pension benefits in 1997
     and continues to receive pension benefits of approximately $3,000 per month.
¶5       The Pension Board subsequently held an evidentiary hearing to determine if section 5-
     227 of the Illinois Pension Code (Pension Code) (40 ILCS 5/5-227 (West 2010)) applied to
     cause Burge to forfeit his ongoing pension payments in light of his felony convictions.
     Section 5-227 of the Pension Code states in relevant part that “[n]one of the benefits
     provided for in this Article 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 policeman.” 40 ILCS 5/5-
     227 (West 2010).
¶6       At the hearing, counsel for Burge argued that Burge’s pension benefits were not forfeited
     under section 5-227 of the Pension Code because his felony convictions were not related to
     his conduct as a police officer but, rather, were related to giving false testimony in response
     to written interrogatories in a civil suit filed years after he retired from the Chicago police
     department. At the conclusion of the hearing, a Pension Board trustee made a motion to
     terminate Burge’s monthly pension benefits on the ground that his felony convictions were
     connected to his service as a police officer as provided for in section 5-227 of the Pension
     Code. The motion was properly seconded and a vote was taken.
¶7       The Pension Board was comprised of eight trustees: four appointed by the City of
     Chicago and four elected by police officer participants in the pension fund. See 40 ILCS 5/5-
     178, 5-179 (West 2010). The Pension Board split 4 to 4 on the question as to whether
     Burge’s felony convictions related to, arose out of, or were connected with his employment
     as a Chicago police officer. The four city-appointed trustees all voted to terminate the
     benefits, while the four officer-elected trustees all voted to continue the payments. The
     Pension Board concluded that the tie vote meant that “Burge was allowed to continue to
     receive his monthly pension benefits.” The Pension Board issued its written administrative
     decision on January 31, 2011.
¶8       On February 7, 2011, the Attorney General filed the complaint at issue, alleging that the
     Pension Board’s decision to allow Burge to continue to receive his monthly pension
     payments violated section 5-227 of the Pension Code. The Attorney General sought a
     preliminary and permanent injunction ordering the Pension Board to cease all pension
     payments to Burge and an order requiring him to repay any benefits paid to him since his
     felony convictions. The Attorney General brought the complaint pursuant to section 1-115(b)
     of the Pension Code, which authorizes the Attorney General or a participant, beneficiary or
     fiduciary, to bring a civil action to enjoin any act or practice which violates any provision of
     the Pension Code. 40 ILCS 5/1-115(b) (West 2010).
¶9       In response, the Pension Board filed a motion to dismiss the complaint pursuant to


                                               -3-
       sections 2-619(a)(1) and (a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-
       619(a)(1), (a)(9) (West 2010)), alleging that the circuit court lacked subject matter
       jurisdiction over the complaint because the Pension Board’s final administrative decision
       was reviewable only under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West
       2008)), and that the Attorney General never filed an action to review the decision under that
       law.
¶ 10       Burge filed a motion to dismiss the complaint pursuant to section 2-619(a)(5) of the
       Code, along with supporting memorandum. He argued that the circuit court lacked subject
       matter jurisdiction over the complaint because the Pension Board’s final administrative
       decision was reviewable only under the Administrative Review Law and that the Attorney
       General failed to file an action to review the decision within the 35-day limit of section 3-103
       of the Administrative Review Law. This section of the Administrative Review Law provides
       in relevant part that “[e]very action to review a final administrative decision shall be
       commenced by the filing of a complaint and the issuance of summons within 35 days from
       the date that a copy of the decision sought to be reviewed was served upon the party affected
       by the decision.” 735 ILCS 5/3-103 (West 2008).
¶ 11       On September 2, 2011, the circuit court issued a memorandum decision and order
       dismissing the Attorney General’s complaint pursuant to section 2-619(a)(1) of the Code.
       The circuit court determined that section 1-115 of the Pension Code did not vest it with
       subject matter jurisdiction to rule on the merits of the Attorney General’s complaint where
       section 5-189 of the Pension Code (40 ILCS 5/5-189 (West 2010))1 vested the Board with
       exclusive original jurisdiction in all matters relating to or affecting the pension fund and
       section 5-228 of the Pension Code (40 ILCS 5/5-228 (West 2010))2 provided that judicial
       review of a pension board’s final administrative decision was governed by the Administrative
       Review Law.
¶ 12       The circuit court also determined that the complaint could not be construed as a
       complaint seeking administrative review of the Pension Board’s decision since the Attorney
       General admitted that she was not seeking to challenge the Pension Board’s decision but,
       instead, the Pension Board’s continued pension payments to Burge. The circuit court further
       determined that the complaint could not be construed as a complaint under the
       Administrative Review Law because it contained no features of an action for administrative
       review where it failed to allege that the Attorney General was a party of record in the
       administrative proceedings and there was no indication that the Attorney General sought to


               1
                 Section 5-189 of the Pension Code provides in part that “[t]he Board shall have exclusive
       original jurisdiction in all matters relating to or affecting the fund, including, in addition to all other
       matters, all claims for annuities, pensions, benefits or refunds.” 40 ILCS 5/5-189 (West 2010).
               2
               Section 5-228 of the Pension Code provides in part that “[t]he provisions of the
       Administrative Review Law, and all amendments and modifications thereof and the rules adopted
       pursuant thereto, shall apply to and govern all proceedings for the judicial review of final
       administrative decisions of the retirement board provided for under this Article.” 40 ILCS 5/5-228
       (West 2010).

                                                      -4-
       intervene in the proceedings. This appeal followed.

¶ 13                                          ANALYSIS
¶ 14        The circuit court dismissed the Attorney General’s complaint pursuant to section 2-
       619(a)(1) of the Code, based upon its finding that it lacked subject matter jurisdiction over
       the complaint. Our review of a dismissal under this section of the Code is de novo.
       Consolidated Freightways Corp. of Delaware v. Human Rights Comm’n, 305 Ill. App. 3d
       934, 938 (1999).
¶ 15        In reviewing the grant of a section 2-619 motion, we interpret the pleadings and
       supporting materials in a light most favorable to the plaintiff. Shirley v. Harmon, 405 Ill.
       App. 3d 86, 90 (2010). A section 2-619 motion admits all well-pleaded facts in the complaint
       and all reasonable inferences that may be drawn therefrom, but it does not admit conclusions
       of law or fact unsupported by specific allegations. Jackson v. Moreno, 278 Ill. App. 3d 503,
       505 (1996); Rajcan v. Donald Garvey & Associates, Ltd., 347 Ill. App. 3d 403, 407 (2004).
¶ 16        Reviewing a section 2-619 dismissal is similar to reviewing a grant of a motion for
       summary judgment in that we must determine whether a genuine issue of material fact should
       have precluded the dismissal or, absent such an issue of fact, whether dismissal was proper
       as a matter of law. Shirley, 405 Ill. App. 3d at 90. In this case, there are no disputed issues
       of material fact so our review is confined to whether dismissal was proper as a matter of law.
       Consolidated, 305 Ill. App. 3d at 938; Millennium Park Joint Venture, LLC v. Houlihan, 241
       Ill. 2d 281, 294 (2010) (“An argument challenging the subject matter jurisdiction of the
       circuit court presents a question of law ***.”).
¶ 17        “Subject matter jurisdiction refers to a court’s power to adjudicate the general question
       involved and to grant the relief requested.” In re Estate of Pellico, 394 Ill. App. 3d 1052,
       1064 (2009). A circuit court’s subject matter jurisdiction is conferred by our state
       constitution. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334
       (2002).
¶ 18        Article VI, section 9, of the Illinois Constitution of 1970 provides that “Circuit Courts
       shall have original jurisdiction of all justiciable matters except when the Supreme Court has
       original and exclusive jurisdiction relating to redistricting of the General Assembly and to
       the ability of the Governor to serve or resume office. Circuit Courts shall have such power
       to review administrative action as provided by law.” Ill. Const. 1970, art. VI, § 9. As the
       language of article VI, section 9, indicates, circuit courts have original jurisdiction over all
       justiciable matters except those explicitly assigned to the supreme court and those arising out
       of administrative proceedings.
¶ 19        In the area of administrative review, a circuit court’s power to adjudicate is controlled
       by the legislature. Belleville Toyota, Inc., 199 Ill. 2d at 336. The legislature generally has no
       authority to limit or preclude a circuit court’s jurisdiction to hear a matter, except for
       administrative review of agency decisions where such review is mandated by the agency’s
       enabling statute. Our courts have determined that “[w]here the legislature enacts a
       comprehensive statutory scheme, creating rights and duties which have no counterpart in
       common law or equity, the legislature may define the ‘justiciable matter’ in such a way as

                                                 -5-
       to preclude or limit the jurisdiction of the circuit courts.” Board of Education of Warren
       Township High School District 121 v. Warren Township High School Federation of
       Teachers, Local 504, 128 Ill. 2d 155, 165-66 (1989).
¶ 20        In other words, because the legislature establishes administrative agencies and statutorily
       empowers them, it may vest exclusive original jurisdiction in an administrative agency.
       Village of Itasca v. Village of Lisle, 352 Ill. App. 3d 847, 852 (2004). However, in order for
       a legislative enactment to divest circuit courts of their original jurisdiction through a
       comprehensive statutory scheme, it must do so explicitly. Employers Mutual Cos. v. Skilling,
       163 Ill. 2d 284, 287 (1994).
¶ 21        Statutory interpretation is necessary to determine if the legislature intended to divest the
       circuit court of subject matter jurisdiction. Crossroads Ford Truck Sales, Inc. v. Sterling
       Truck Corp., 2011 IL 111611, ¶ 27. The primary rule of statutory construction is to ascertain
       and give effect to the intent of the legislature. Croissant v. Joliet Park District, 141 Ill. 2d
       449, 455 (1990). The best evidence of this intent is the language of the statute itself, which
       must be given its plain and ordinary meaning. Krautsack v. Anderson, 223 Ill. 2d 541, 553
       (2006).
¶ 22        In this case, the circuit court determined that section 5-189 of the Pension Code divested
       it of subject matter jurisdiction to consider the merits of the Attorney General’s complaint.
       Section 5-189 of the Pension Code is entitled “To authorize payments” and provides as
       follows:
            “To authorize payments. To authorize the payment of any annuity, pension, or benefit
            under this Article or under any other Act relating to police pensions, heretofore in effect
            in the city which has been superseded by this Article; to increase, reduce, or suspend any
            such annuity, pension, or benefit whenever any part thereof was secured or granted or the
            amount thereof fixed, as the result of misrepresentation, fraud, or error; provided, the
            annuitant, pensioner or beneficiary concerned shall be notified and given an opportunity
            to be heard concerning such proposed action.
                 The Board shall have exclusive original jurisdiction in all matters relating to or
            affecting the fund, including, in addition to all other matters, all claims for annuities,
            pensions, benefits or refunds.” 40 ILCS 5/5-189 (West 2010).
¶ 23        The circuit court interpreted the last sentence of section 5-189 as divesting it of subject
       matter jurisdiction to consider the merits of the Attorney General’s complaint on the ground
       that this section of the Pension Code vested the Board with exclusive original jurisdiction
       in all matters relating to or affecting the pension fund. However, it is well settled that in
       construing a statute, a court must not be guided by a single sentence or by an isolated
       provision but must view the statute as a whole. In re Consensual Overhear, 323 Ill. App. 3d
       236, 240 (2001).
¶ 24        Section 5-189 of the Pension Code grants the Board the power to authorize, increase,
       reduce, or suspend any annuity, pension, or benefit that was secured or granted as the result
       of misrepresentation, fraud, or error–provided that the annuitant, pensioner or beneficiary
       was given due process protection concerning such proposed action. 40 ILCS 5/5-189 (West
       2010). But the Board’s authority under section 5-189 of the Pension Code does not include

                                                 -6-
       the authority to bring civil actions to enjoin acts or practices allegedly violating provisions
       of the Pension Code. Rather, such authority is granted to the Attorney General pursuant to
       section 1-115(b) of the Pension Code. This section of the Pension Code, entitled “Civil
       Enforcement,” provides in relevant part that a “civil action may be brought by the Attorney
       General or by a participant, beneficiary or fiduciary in order to: *** (b) Enjoin any act or
       practice which violates any provision of this Code.” 40 ILCS 5/1-115(b) (West 2010).
¶ 25        Viewing the statute as a whole, we find no explicit language in the statute expressing a
       legislative intent to divest circuit courts of the subject matter jurisdiction to hear civil actions
       brought by the Attorney General under section 1-115(b) of the Pension Code. As a result, we
       find that the circuit court erred in interpreting section 5-189 of the Pension Code as divesting
       it of the subject matter jurisdiction to address the Attorney General’s claims. We find that
       section 1-115(b) gives the circuit court concurrent subject matter jurisdiction with the
       Pension Board to hear the disputed pension issues presented in the Attorney General’s
       complaint. “Where a circuit court and an administrative agency both have jurisdiction over
       a matter, they are said to have concurrent jurisdiction.” Village of Itasca v. Village of Lisle,
       352 Ill. App. 3d 847, 853 (2004).
¶ 26        When a matter falls both within the circuit court’s jurisdiction and the Pension Board’s
       jurisdiction, the prudent course generally is to allow the Pension Board the opportunity to
       address the matter first. See, e.g., Village of Itasca, 352 Ill. App. 3d at 853 (the doctrine of
       primary jurisdiction provides that in some instances when a circuit court and an
       administrative agency have concurrent jurisdiction over the subject matter of a dispute, the
       court should stay judicial proceedings pending referral of the controversy, or a portion of it,
       to the agency having expertise in the area). This approach allows the Pension Board to bring
       its experience and expertise to bear in resolving issues arising under the Pension Code, while
       at the same time preserving the Attorney General’s ability to fulfill her statutory
       responsibility under section 1-115(b) to enjoin violations of the Code.
¶ 27        In this case, the Pension Board split 4 to 4 on the question as to whether Burge’s felony
       convictions related to, or arose out of, or were connected with his employment as a Chicago
       police officer. The Pension Board then determined that this tie vote effectively allowed
       Burge to continue to receive his monthly pension benefits. Consequently, the Pension
       Board’s decision allowing Burge to continue to receive his pension payments was not
       approved by a majority of the members of the Pension Board as required by section 5-182
       of the Pension Code. A “majority” is generally defined as “ ‘[t]he number greater than half
       of any total.’ ” County of Kankakee v. Anthony, 304 Ill. App. 3d 1040, 1047 (1999) (quoting
       Black’s Law Dictionary 955 (6th ed. 1990)).
¶ 28        Section 5-182 of the Pension Code provides in relevant part that “no pension, annuity,
       or benefit shall be allowed or granted and no money shall be paid out of the fund unless
       ordered by a vote of the majority of the members of the board.” 40 ILCS 5/5-182 (West
       2010). This section of the Pension Code requires approval by a majority of the “members of
       the board.” See Village of Oak Park v. Village of Oak Park Firefighters Pension Board, 362
       Ill. App. 3d 357, 369 (2005).
¶ 29        As a creature of statute, the Pension Board may exercise only those powers conferred


                                                   -7-
       upon it by statute. See, e.g., Nader v. Illinois State Board of Elections, 354 Ill. App. 3d 335,
       340 (2004). Here, the Pension Board had the statutory authority to conduct a vote on the
       question as to whether Burge’s felony convictions related to, or arose out of, or were
       connected with his service as a Chicago police officer. See 40 ILCS 5/5-227 (West 2010).
       Based upon the outcome of that vote, the Pension Board possessed the statutory authority to
       determine whether Burge should continue to receive his monthly pension benefits. See 40
       ILCS 5/5-189 (West 2010).
¶ 30        However, the Pension Board erred in violation of section 5-182 of the Pension Code
       when it concluded that a tie vote meant that “Burge was allowed to continue to receive his
       monthly pension benefits.” When an administrative agency has jurisdiction over the parties
       and the subject matter in question, but makes an erroneous decision, the decision is voidable.
       See Wabash County v. Illinois Municipal Retirement Fund, 408 Ill. App. 3d 924, 930 (2011);
       Board of Education of the City of Chicago v. Board of Trustees of the Public Schools
       Teachers’ Pension & Retirement Fund, 395 Ill. App. 3d 735, 739-41 (2009). In the instant
       case, the Pension Board’s decision that a tie vote meant that “Burge was allowed to continue
       to receive his monthly pension benefits” was erroneous in violation of section 5-182 of the
       Pension Code, rendering the decision voidable and subject to review by the circuit court.
¶ 31        Finally, we reject the suggestion that the Attorney General lacked standing to assert the
       claims set forth in her complaint. “The doctrine of standing requires that a party, either in an
       individual or representative capacity, have a real interest in the action brought and in its
       outcome.” In re Estate of Wellman, 174 Ill. 2d 335, 344 (1996). The purpose of standing is
       to ensure that courts are deciding actual, specific controversies and not abstract questions or
       moot issues. Id. Standing requires some injury in fact to a legally recognizable interest. Greer
       v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988).
¶ 32        Article V, section 15, of the Illinois Constitution of 1970 provides that “The Attorney
       General shall be the legal officer of the State, and shall have the duties and powers that may
       be prescribed by law.” Ill. Const. 1970, art. V, § 15. “Our supreme court has interpreted this
       provision to mean that the Illinois Attorney General is vested with those powers and duties
       associated with the office of Attorney General at common law as well as with whatever
       additional powers and duties for which the legislature provides.” People ex rel. Devine v.
       Time Consumer Marketing, Inc., 336 Ill. App. 3d 74, 79-80 (2002).
¶ 33        Pursuant thereto, the Attorney General’s statutorily prescribed duties include, among
       others, the duty to represent the people of the state in any litigation in which the people of
       the state are interested; and to investigate alleged violations of the statutes which the
       Attorney General has a duty to enforce. 15 ILCS 205/4 (West 2000). Here, the Attorney
       General, as the representative of all the taxpayers of the state, has the standing under her
       statutory powers to sue to recover funds3 disbursed in violation of section 5-227 of the
       Pension Code.


               3
                Pursuant to statute, the City of Chicago maintains four pension funds, one of which is the
       Policemen’s Annuity and Benefit Fund. See Ryan v. City of Chicago, 148 Ill. App. 3d 638, 639-40
       (1986). This fund is financed part by the City of Chicago through special property taxes. Id.

                                                  -8-
¶ 34       For the foregoing reasons, we reverse the judgment of the circuit court dismissing the
       Attorney General’s complaint. We remand this cause for further proceedings consistent with
       this opinion.

¶ 35      Reversed and remanded with instructions.

¶ 36        JUSTICE GARCIA, specially concurring.
¶ 37        I agree with Justice Hall that section 1-115(b) of the Pension Code, by its clear and
       unambiguous language, can mean nothing other than the circuit court has jurisdiction to
       entertain a civil action filed by the Illinois Attorney General to challenge pension benefits
       paid to Burge since his federal conviction on June 28, 2010, as contrary to Illinois pension
       law. Supra ¶ 25. “A civil action may be brought by the Attorney General *** to *** [e]njoin
       any act or practice which violates any provision of this Code ***.” 40 ILCS 5/1-115(b)
       (West 2010). However, the majority opinion goes too far (and unnecessarily) in decreeing
       that the 4 to 4 vote by the Board constitutes a violation of section 5-182 of the Pension Code
       because the “tie vote meant that ‘Burge was allowed to continue to receive his monthly
       pension benefits.’ ” Supra ¶ 30. The tie vote meant nothing more than the status quo of
       Burge receiving pension benefits would be maintained. With a Board membership of eight,
       a tie vote seems hardly unexpected or unanticipated by the enabling legislation. More
       fundamentally, I disagree with the suggestion that the four members of the Board that voted
       in favor of continuing Burge’s pension benefits somehow violated a duty owed to the pension
       fund based on the resulting tie vote. Supra ¶ 7.
¶ 38        The Attorney General contends section 5-182 serves as a mechanism to stop pension
       benefits in the event of a tie vote: “Where, as here, a majority of the members did not support
       payment, the pension should have been terminated.” I find the Attorney General’s assertion
       that pension benefits may be terminated based on an event subsequent to the Board’s initial
       grant of pension benefits, where the Board votes 4 to 4 on the question of termination of
       pension benefits, to be unprecedented. Pension benefits may only be terminated in
       compliance with due process. Kosakowski v. Board of Trustees of the City of Calumet City
       Police Pension Fund, 389 Ill. App. 3d 381, 387 (2009) (“The receipt of a disability pension
       is a property right which cannot be diminished without procedural due process.”). The
       Attorney General offers no authority for her outlandish claim that a 4 to 4 vote means the
       pension benefits a pensioner has been receiving for over a decade may cease simply because
       a majority did not vote in favor of a continuation of the pension payments.
¶ 39        Section 5-182 is violated only when a “pension, annuity, or benefit” is approved by less
       than the majority of the Board. 40 ILCS 5/5-182 (West 2010). The Board’s tie vote did not
       approve a pension benefit for Burge. The pension benefits Burge had been receiving were
       approved in 1997, long before the Board’s vote was taken in January 2011. Supra ¶ 4. That
       no violation of section 5-182 occurred based on the tie vote is reinforced by the
       uncontestable fact that had the Board not taken a vote to terminate Burge’s pension, the
       pension payments would have continued. Under the Attorney General’s contention, it appears
       that a nonvote would not have violated section 5-182, yet a tie vote does, though the end

                                                 -9-
       result under either scenario would be the same; that is, Burge would continue to receive his
       pension benefits. The Board’s evenly split vote in January 2011 changed nothing. Nor can
       the Attorney General deny that, had the Board voted 5 to 3 to allow the pension benefits to
       continue (foreclosing a claim that section 5-182 was violated), the Attorney General still
       would have pursued a civil action under section 1-115(b) in an effort to prove that Burge’s
       federal felony convictions triggered a forfeiture of pension benefits under section 5-227. 40
       ILCS 5/5-227 (West 2010). It is far-fetched to label a tie vote a violation of the Code simply
       because the Board was precluded from altering the status quo.
¶ 40        If a violation of the Code occurred, it occurred because Burge’s federal felony
       convictions were related to his employment as a Chicago police officer, which section 5-227
       declares results in the forfeiture of benefits.4 See Devoney v. Retirement Board of the
       Policemen’s Annuity & Benefit Fund, 199 Ill. 2d 414, 423-24 (2002) (claimant’s felony
       conviction in federal court rendered him ineligible for his police pension benefits under
       section 5-227 of the Pension Code). Such a violation has nothing to do with the Board’s
       January 2011 decision and everything to do with the nature of Burge’s federal convictions.
       See Romano v. Municipal Employees Annuity & Benefit Fund, 402 Ill. App. 3d 857, 861
       (2010) (pension board’s decision declaring the plaintiff ineligible for pension benefits was
       against the manifest weight of the evidence where there was no “clear and specific
       connection between the felony of which the plaintiff was convicted and his municipal
       employment”).
¶ 41        The procedure to address continued pension payments under the circumstances of this
       case is precisely the action the Attorney General took–filing a civil action under section 1-
       115. There is no basis to conclude that a violation of the Code occurred under section 5-182
       simply because a decision to terminate the pension benefits Burge had been receiving since
       1997 was not approved by a majority of the Board.
¶ 42        All this said, a remand to the circuit court is necessary to permit the Attorney General’s
       section 1-115(b) civil action to go forward to a resolution On remand, if it is proved that
       Burge’s felony convictions relate to, arise out of, or are connected “with his service as a
       policeman” (40 ILCS 5/5-227 (West 2010)), then the Pension Board will be ordered to
       terminate the pension benefits.5 Devoney, 199 Ill. 2d at 423-24. Burge may also be ordered
       to repay the wrongfully received pension benefits since his federal felony convictions in June




               4
                It bears noting that the Attorney General’s section 1-115(b) civil action did not allege a
       violation of section 5-182.
               5
                 The real issue raised in the civil action by the Attorney General regarding an alleged
       violation of section 5-227 also highlights the misguided notion that section 5-182 was violated by
       the tie vote. We are not remanding to the Board to correct a purported violation of the Pension Code
       based on the tie vote by the Board; we are remanding to the circuit court to allow the Attorney
       General to pursue her civil action.

                                                  -10-
       2010.6
¶ 43      I specially concur in the judgment.




               6
                Notably, the purported violation of section 5-182 triggers no additional consequences as
       to the pension benefits received by Burge since the Board’s decision of January 31, 2011, should a
       violation of section 5-227 trigger a reimbursement of the pension benefits received since Burge’s
       convictions in 2010.

                                                 -11-
