Felony Forfeiture of Pension Benefits

ATTORNEY NOIS 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. 500 South Second Street, Springfield, Illinois 62706 (217) 782-1090 TTY: (217) 785-2771 Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 (312) 814-3000 TTY: (312) 814-3374 Fax: (312) 814-3806 1001 East Main, Carbondale, Illinois 62901 (618) 529-6400 TTY: (618) 529-6403 Fax: (618) 529-6416 Mr. Timothy Blair - 2 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) (Indictment). 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) (Plea Agreement). 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. Indictment, at 3. 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." Plea Agreement, at 2-3. 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[.]" Plea Agreement, at 3. '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. Illinois General Assembly, Biography, former Representative Keith Farnham, available at http://www.ilga.gov/house/rep.asp?MemberID=1953. Mr. Timothy Blair - 3 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." Sentencing Memorandum, United States V. Farnham, No. 14 CR 237 (N.D. III. March 12, 2015) (Sentencing Memorandum), at 3. Moreover, Farnham "actively possessed and traded child pornography using taxpayer-funded property and on government time." Sentencing Memorandum, at 6. 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. Sentencing Memorandum, at 6. 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. (Emphasis added.) Mr. Timothy Blair - 4 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); III. Att'y Gen. Op. No. 11-003, issued December 8, 2011; III. 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, III. 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 Mr. Timothy Blair - 5 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 III. 2d 488, 497 (2003); see also Shields V. State Employees Retirement System, 363 III. App. 3d 999 (2006), appeal denied, 219 III. 2d 598 (2006). Very truly yours, lise Madipa LISA MADIGAN ATTORNEY GENERAL