Bill Text: NJ S586 | 2012-2013 | Regular Session | Introduced
Bill Title: Provides for mandatory imprisonment and forfeiture of retirement benefits for public officers or employees convicted of certain crimes.
Spectrum: Moderate Partisan Bill (Republican 4-1)
Status: (Introduced - Dead) 2012-01-10 - Introduced in the Senate, Referred to Senate Judiciary Committee [S586 Detail]
Download: New_Jersey-2012-S586-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Senator JENNIFER BECK
District 11 (Monmouth)
Co-Sponsored by:
Senators A.R.Bucco, Weinberg, Pennacchio and Oroho
SYNOPSIS
Provides for mandatory imprisonment and forfeiture of retirement benefits for public officers or employees convicted of certain crimes.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning mandatory imprisonment and forfeiture of retirement benefits for public officers or employees convicted of certain crimes and amending and supplementing various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1995, c.408 (C.43:1-3) is amended to read as follows:
1. a. The receipt of a public pension or retirement benefit is hereby expressly conditioned upon the rendering of honorable service by a public officer or employee.
b. The board of trustees of any State or locally-administered pension fund or retirement system created under the laws of this State is authorized to order the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member of the fund or system for misconduct occurring during the member's public service which renders the member's service or part thereof dishonorable and to implement any pension forfeiture ordered by a court pursuant to section 2 of P.L. , c. (C. )(pending before the Legislature as this bill).
In addition, in the case of a person who is convicted of a crime listed in subsection b. of section 2 of P.L. , c. (C. )(pending before the Legislature as this bill) that occurred prior to the effective date thereof, a board of trustees shall order the forfeiture of all of the pension or retirement benefits earned as a member of every State or locally-administered pension fund or retirement system in which that person participated .
c. In evaluating a member's misconduct to determine whether it constitutes a breach of the condition that public service be honorable and whether forfeiture or partial forfeiture of earned service credit or earned pension or retirement benefits is appropriate, the board of trustees shall consider and balance the following factors in view of the goals to be achieved under the pension laws:
(1) the member's length of service;
(2) the basis for retirement;
(3) the extent to which the member's pension has vested;
(4) the duties of the particular member;
(5) the member's public employment history and record covered under the retirement system;
(6) any other public employment or service;
(7) the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated;
(8) the relationship between the misconduct and the member's public duties;
(9) the quality of moral turpitude or the degree of guilt or culpability, including the member's motives and reasons, personal gain and similar considerations;
(10) the availability and adequacy of other penal sanctions; and
(11) other personal circumstances relating to the member which bear upon the justness of forfeiture.
d. Whenever a board of trustees determines, pursuant to this section, that a partial forfeiture of earned service credit or earned pension or retirement benefits is warranted, it shall order that benefits be calculated as if the accrual of pension rights terminated as of the date the misconduct first occurred or, if termination as of that date would in light of the nature and extent of the misconduct result in an excessive pension or retirement benefit or in an excessive forfeiture, a date reasonably calculated to impose a forfeiture that reflects the nature and extent of the misconduct and the years of honorable service.
(cf: P.L.1995, c.408, s.1)
2. (New section) a. A person who holds or has held any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of any crime set forth in subsection b. of this section, or of a substantially similar offense under the laws of another state or the United States which would have been such a crime under the laws of this State, which crime or offense involves or touches such office, position or employment, shall forfeit all of the pension or retirement benefit earned as a member of every State or locally-administered pension fund or retirement system in which he participated. As used in this section, a crime or offense that "involves or touches such office, position or employment" means that the crime or offense was related directly to the person's performance in, or circumstances flowing from, the specific public office or employment held by the person.
b. Subsection a. of this section applies to a conviction of any of the following crimes:
(1) Paragraph (4) of subsection a. of N.J.S.2C:13-5, criminal coercion;
(2) N.J.S.2C:20-4, theft by deception, if the amount involved exceeds $10,000;
(3) Subsection d. of N.J.S.2C:20-5, theft by extortion;
(4) N.J.S.2C:20-9, theft by failure to make required disposition of property received, if the amount involved exceeds $10,000;
(5) section 1 of P.L.1983, c.565 (C.2C:21-2.1), use of false government documents;
(6) N.J.S.2C:21-3, frauds relating to public records and recordable instruments;
(7) N.J.S.2C:21-4, falsifying or tampering with government records;
(8) N.J.S.2C:21-10, commercial bribery;
(9) Section 3 of P.L.1994, c.121 (C.2C:21-25), money laundering;
(10) Section 97 of P.L.1999, c.440 (C.2C:21-34), false contract payment claims;
(11) N.J.S.2C:27-2, bribery in official matters;
(12) N.J.S.2C:27-3, threats and other improper influence in official and political matters;
(13) Section 100 of P.L.1999, c.440 (C.2C:27-9), unlawful official business transaction where interest is involved;
(14) Section 5 of P.L.2003, c.255 (C.2C:27-10), acceptance or receipt of unlawful benefit by public servant for official behavior;
(15) Section 6 of P.L.2003, c.255 (C.2C:27-11), offer of unlawful benefit to public servant for official behavior;
(16) N.J.S.2C:28-1, perjury;
(17) N.J.S.2C:28-3, unsworn falsification to authorities;
(18) N.J.S.2C:28-5, tampering with witnesses;
(19) N.J.S.2C:28-7, tampering with public records or information;
(20) N.J.S.2C:28-8, impersonating a public servant or law enforcement officer;
(21) N.J.S.2C:29-1, obstructing administration of law or other governmental function;
(22) N.J.S.2C:29-4, compounding;
(23) N.J.S.2C:30-2, official misconduct;
(24) N.J.S.2C:30-3, speculating or wagering on official action or information;
(25) section 1 of P.L.1989, c.131 (C.2C:30-4), disbursement of public moneys or incurrence of obligation in excess of appropriation and limit of expenditure; or
(26) Section 3 of P.L.2003, c.31 (C.2C:30-7), pattern of official misconduct.
c. A court of this State shall enter an order of pension forfeiture pursuant to this section:
(1) Immediately upon a finding of guilt by the trier of fact or a plea of guilty entered in any court of this State unless the court, for good cause shown, orders a stay of the pension forfeiture pending a hearing on the merits at the time of sentencing; or
(2) Upon application of the county prosecutor or the Attorney General, when the pension forfeiture is based upon a conviction of an offense under the laws of another state or of the United States. An order of pension forfeiture pursuant to this paragraph shall be deemed to have taken effect on the date the person was found guilty by the trier of fact or pled guilty to the offense.
d. No court shall grant a stay of an order of pension forfeiture pending appeal of a conviction or pension forfeiture order unless the court is clearly convinced that there is a substantial likelihood of success on the merits. If the conviction be reversed or the order of pension forfeiture be overturned, his pension rights and benefits shall be restored from the date of pension forfeiture.
e. Nothing in this section shall be deemed to preclude the authority of the board of trustees of any State or locally-administered pension fund or retirement system created under the laws of this State from ordering the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member of the fund or system for misconduct occurring during the member's public service pursuant to the provisions of P.L.1995, c.408 (C.43:1-3 et seq.), including in a case where the court does not enter an order of forfeiture pursuant to this section.
3. (New section) The board of trustees of any State or locally-administered pension fund or retirement system created under the laws of this State may subpoena witnesses and compel their attendance, and also may require the production of books, papers or documents in a matter concerning the rendering of honorable service by a public officer or employee seeking to receive a public pension or retirement benefit. If any person shall refuse to obey any subpoena so issued, or shall refuse to testify or produce any books, papers or documents, the board may apply ex parte to the Superior Court to compel the person to comply forthwith with the subpoena.
4. (New section) A State, county or local employer participating in a State or locally-administered pension fund or retirement system shall be responsible for reimbursement to the pension fund or retirement system of all pension costs incurred by a State or locally-administered pension fund or retirement system following any settlement agreement between the employer and an employee that provides for the employer not to pursue any civil or criminal charges or an action for misconduct against the employee in exchange for the employee's resignation in good standing when the employer has failed to fully disclose the settlement to the board of trustees of the pension fund or retirement system so that it can determine whether to order the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member of the fund or system for misconduct occurring during the member's public service which renders the member's service or part thereof dishonorable.
5. N.J.S.2C:51-2 is amended to read as follows:
2C:51-2. Forfeiture of Public Office, Position, or Employment.
a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office [or], position or employment if:
(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;
(2) He is convicted of an offense involving or touching such office, position or employment; or
(3) The Constitution so provides.
As used in this subsection, "involving or touching such office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person.
b. A court of this State shall enter an order of forfeiture pursuant to subsection a.:
(1) Immediately upon a finding of guilt by the trier of fact or a plea of guilty entered in any court of this State unless the court, for good cause shown, orders a stay of such forfeiture pending a hearing on the merits at the time of sentencing; or
(2) Upon application of the county prosecutor or the Attorney General, when the forfeiture is based upon a conviction of an offense under the laws of another state or of the United States. An order of forfeiture pursuant to this paragraph shall be deemed to have taken effect on the date the person was found guilty by the trier of fact or pled guilty to the offense.
c. No court shall grant a stay of an order of forfeiture pending appeal of a conviction or forfeiture order unless the court is clearly convinced that there is a substantial likelihood of success on the merits. If the conviction be reversed or the order of forfeiture be overturned, he shall be restored, if feasible, to his office, position or employment with all the rights, emoluments and salary thereof from the date of forfeiture.
Any official action taken by the convicted person on or after the date as of which a forfeiture of the person's office shall take effect shall, during a period of 60 days following the date on which an order of forfeiture shall have been issued hereunder, be voidable by the person's successor in office or, if the office of the person was that of member of the governing body of a county, municipality or independent authority, by that governing body.
d. In addition to the punishment prescribed for the offense, and the forfeiture set forth in subsection a. of N.J.S.2C:51-2, any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions. As used in this subsection, "involving or touching on his public office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person.
e. Any forfeiture or disqualification under subsection a., b. or d. which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.
f. Except as may otherwise be ordered by the Attorney General as the public need may require, any person convicted of an offense under [section] section 97 of P.L.1999, c.440 (C.2C:21-34), N.J.S.2C:27-2, [2C:27-4, 2C:27-6, 2C:27-7,] N.J.S.2C:27-3, N.J.S.2C:27-5, section 100 of P.L.1999, c. 440 (C.2C:27-9), section 5 of P.L.2003, c.255 (C.2C:27-10), section 6 of P.L.2003, c.255 (C.2C:27-11), N.J.S.2C:29-4, N.J.S.2C:30-2, or N.J.S.2C:30-3 of this Title shall be ineligible, either directly or indirectly, to submit a bid, enter into any contract, or to conduct any business with any board, agency, authority, department, commission, public corporation, or other body of this State, of this or one or more other states, or of one or more political subdivisions of this State for a period of, but not more than, 10 years from the date of conviction for a crime of the second degree, or five years from the date of conviction for a crime of the third degree. It is the purpose of this subsection to bar any individual convicted of any of the above enumerated offenses and any business, including any corporation, partnership, association or proprietorship in which such individual is a principal, or with respect to which such individual owns, directly or indirectly, or controls 5% or more of the stock or other equity interest of such business, from conducting business with public entities.
The State Treasurer shall keep and maintain a list of all corporations barred from conducting such business pursuant to this section.
g. In any case in which the issue of forfeiture is not raised in a court of this State at the time of a finding of guilt, entry of guilty plea or sentencing, a forfeiture of public office, position or employment required by this section may be ordered by a court of this State upon application of the county prosecutor or the Attorney General or upon application of the public officer or public entity having authority to remove the person convicted from his public office, position or employment. The fact that a court has declined to order forfeiture shall not preclude the public officer or public entity having authority to remove the person convicted from seeking to remove or suspend the person from his office, position or employment on the ground that the conduct giving rise to the conviction demonstrates that the person is unfit to hold the office, position or employment.
(cf: P.L.2003, c.145, s.1)
6. (New section) a. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6 and except as otherwise provided in subsection c. of this section, a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment as set forth in subsection b. of this section, shall be sentenced to a mandatory minimum term of imprisonment without eligibility for parole as follows: for a crime of the fourth degree, the mandatory minimum term shall be one year; for a crime of the third degree, two years; for a crime of the second degree, five years, and for a crime of the first degree, 10 years, unless the provisions of any other law provide for a higher mandatory minimum term. As used in this subsection, "a crime that involves or touches such office or employment" means that the crime was related directly to the person's performance in, or circumstances flowing from, the specific public office or employment held by the person.
b. Subsection a. of this section applies to a conviction of any of the following crimes:
(1) Paragraph (4) of subsection a. of N.J.S.2C:13-5, criminal coercion;
(2) N.J.S.2C:20-4, theft by deception, if the amount involved exceeds $10,000;
(3) Subsection d. of N.J.S.2C:20-5, theft by extortion;
(4) N.J.S.2C:20-9, theft by failure to make required disposition of property received, if the amount involved exceeds $10,000;
(5) N.J.S.2C:21-10, commercial bribery;
(6) Section 3 of P.L.1994, c.121 (C.2C:21-25), money laundering;
(7) Section 97 of P.L.1999, c.440 (C.2C:21-34), false contract payment claims;
(8) N.J.S.2C:27-2, bribery in official matters;
(9) N.J.S.2C:27-3, threats and other improper influence in official and political matters;
(10) Section 100 of P.L.1999, c.440 (C.2C:27-9), unlawful official business transaction where interest is involved;
(11) Section 5 of P.L.2003, c.255 (C.2C:27-10), acceptance or receipt of unlawful benefit by public servant for official behavior;
(12) Section 6 of P.L.2003, c.255 (C.2C:27-11), offer of unlawful benefit to public servant for official behavior;
(13) N.J.S.2C:28-1, perjury;
(14) N.J.S.2C:28-5, tampering with witnesses;
(15) N.J.S.2C:28-7, tampering with public records or information;
(16) N.J.S.2C:29-4, compounding;
(17) N.J.S.2C:30-2, official misconduct;
(18) N.J.S.2C:30-3, speculating or wagering on official action or information; or
(19) Section 3 of P.L.2003, c.31 (C.2C:30-7), pattern of official misconduct.
c. (1) On motion by the prosecutor stating that the defendant has provided substantial assistance in a criminal investigation or prosecution of another person, the court may waive or reduce the mandatory minimum term of imprisonment required by subsection a. of this section. The appropriate waiver or reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(i) the court's evaluation of the significance and usefulness of the defendant's assistance, giving substantial weight to the prosecutor's evaluation of the assistance rendered;
(ii) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(iii) the nature and extent of the defendant's assistance;
(iv) any injury suffered, or any danger or risk of injury to the defendant or his family resulting for his assistance;
(v) the timeliness of the defendant's assistance.
In making such a determination, the court shall give substantial weight to the prosecutor's evaluation of the extent of the defendant's assistance, particularly where the extent and value of the assistance are difficult to ascertain.
(2) If the court finds by clear and convincing evidence that extraordinary circumstances exist such that imposition of a mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others, the court may waive or reduce the mandatory minimum term of imprisonment required by subsection a. of this section. In making any such finding, the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply.
(3) If, pursuant to paragraph (1) or (2) of this subsection, the court waives or reduces the mandatory minimum term required by subsection a. of this section, such sentence shall not become final for 10 days in order to permit the appeal of the sentence by the prosecution.
d. (1) a prosecutor shall not recommend the admission into or consent to the referral to a pretrial intervention program of a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is charged with a crime that involves or touches such office or employment as set forth in subsection b. of this section, without the prior approval of the Attorney General.
(2) A person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment as set forth in subsection b. of this section shall be ineligible for participation in any program of intensive supervision during any period of parole ineligibility.
e. The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding the waiver or reduction of a mandatory minimum term of imprisonment pursuant to paragraph (1) of this subsection c. of this section and participation in a pretrial intervention program pursuant to paragraph (1) of subsection d. of this section.
7. (New section) a. The provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) concerning the forfeiture of all of the pension or retirement benefit for a member of any State or locally-administered pension fund or retirement system shall be prospective in application for any crime or offense committed after the effective date of P.L. c. (C. ) (pending before the Legislature as this bill).
b. The provisions of section 6 of P.L. c. (C. ) (pending before the Legislature as this bill) concerning mandatory terms of imprisonment shall be prospective in application for any crime committed after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).
8. Section 2 of P.L.1993, c.123 (C.2C:43-11) is amended to read as follows:
2. a. No custodial sentence imposed pursuant to Chapters 43, 44 or 45 of Title 2C shall be changed to permit entry into any program of intensive supervision established pursuant to the Rules Governing the Courts of the State of New Jersey if the inmate:
(1) Is serving a sentence for a conviction of any crime of the first degree; or
(2) Is serving a sentence for a conviction of any offense in which the sentencing court found that there is a substantial likelihood that the defendant is involved in organized criminal activity pursuant to N.J.S.2C:44-1a(5); or
(3) Is serving any statutorily mandated parole ineligibility, or any parole ineligibility imposed by the court pursuant to subsection b. of N.J.S.2C:43-6 or section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill); or
(4) Has previously completed a program of intensive supervision established pursuant to the Rules Governing the Courts of the State of New Jersey; or
(5) Has previously been convicted of a crime of the first degree, or of any offense in any other jurisdiction which, if committed in New Jersey, would constitute a crime of the first degree and the inmate was released from incarceration on the first degree offense within five years of the commission of the offense for which the inmate is applying for intensive supervision.
Nothing in this subsection shall be construed to preclude the program of intensive supervision from imposing more restrictive standards for admission.
b. Unless the inmate is within nine months of parole eligibility and has served at least six months of the sentence, no custodial sentence of an inmate serving a sentence for conviction of any crime of the second degree shall be changed to permit entry into any program of intensive supervision established pursuant to the Rules Governing the Courts of the State of New Jersey, if, within 20 days of receipt of notice of the inmate's application, the county prosecutor or Attorney General objects in writing.
c. If an inmate's application for a change of custodial sentence to permit entry into any program of intensive supervision established pursuant to the Rules Governing the Courts of the State of New Jersey is granted over the objection of the county prosecutor or the Attorney General, the order shall not become final for 20 days or until reconsideration by the Intensive Supervision Resentencing Panel in order to permit the county prosecutor or the Attorney General to appear personally or in writing, with notice to defense counsel, to request reconsideration of the application approval.
d. A victim of the offense for which the inmate was sentenced shall have the right to make a written statement or to appear at a proceeding regarding the application for a change of custodial sentence imposed pursuant to Chapters 43, 44 or 45 of Title 2C for entry into any program of intensive supervision established pursuant to the Rules Governing the Courts of the State of New Jersey.
(cf: P.L.1993, c.123, s.2)
9. N.J.S.2C:43-12 is amended to read as follows:
2C:43-12. Supervisory Treatment--Pretrial Intervention. a. Public policy. The purpose of sections 2C:43-12 through 2C:43-22 of this chapter is to effectuate a Statewide program of Pretrial Intervention. It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state when supervisory treatment would:
(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or
(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or
(3) Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses, other than defendants who were public officers or employees charged with offenses that involved or touched their office or employment; or
(4) Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or
(5) Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.
b. Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense. There shall be a presumption against admission into a program of supervisory treatment for a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment.
c. The decision and reasons therefor made by the designated judges (or assignment judges), prosecutors and program directors in granting or denying applications for supervisory treatment, in recommending and ordering termination from the program or dismissal of charges, in all cases shall be reduced to writing and disclosed to the applicant.
d. If an applicant desires to challenge the decision of the prosecutor or program director not to recommend enrollment in a program of supervisory treatment the proceedings prescribed under section 14 shall be followed.
e. Referral. At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.
f. Review of Supervisory Treatment Applications; Procedure Upon Denial. Each applicant for supervisory treatment shall be entitled to full and fair consideration of his application. If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial. If the applicant desires to challenge the decision of a program director not to recommend, or of a prosecutor not to consent to, enrollment into a supervisory treatment program, a motion shall be filed before the designated judge (or assignment judge) authorized pursuant to the rules of court to enter orders.
g. Limitations. Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), shall not be eligible for supervisory treatment under this section. However, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.
h. Termination. Termination of supervisory treatment under this section shall be immediately reported to the assignment judge of the county who shall forward such information to the Administrative Director of the Courts.
i. Appointment of Program Directors; Authorized Referrals. Programs of supervisory treatment and appointment of the program directors require approval by the Supreme Court with the consent of the assignment judge and prosecutor. Referrals of participants from supervisory treatment programs may be to any public or private office or agency, including but not limited to, programs within the probation service of the court, offering counseling or any other social service likely to aid in the rehabilitation of the participant and to deter the commission of other offenses.
j. Health Care Professional Licensing Board Notification. The program director shall promptly notify the State Board of Medical Examiners when a State licensed physician or podiatrist has been enrolled in a supervisory treatment program after he has been charged with an offense involving drugs or alcohol.
(cf: P.L.1989, c.300, s.22)
10. Section 2 of P.L.1995, c.408 (C.43:1-4) is amended to read as follows:
2. A county or municipal prosecutor shall inform the Director of the Division of Criminal Justice in the Department of Law and Public Safety in writing whenever a prosecution is commenced, or a conviction entered, against any person who the prosecutor knows, or has reason to believe, is a member of a State or locally-administered pension fund or retirement system for any crime or offense. The director shall compile this information and similar information from the records of the division and the records of any other jurisdiction or law enforcement agency which may be available to the division, including any such information received by the director through an ongoing contact that the director shall establish with the United States Attorney for the District of New Jersey, and transmit it to the Director of the Division of Pensions and Benefits and to the Legislature in the manner provided by section 2 of P.L.1991, c.164 (C.52:14-19.1). The Director of the Division of Pensions and Benefits shall determine whether a particular officer or employee is a member of a State or locally-administered pension fund or retirement system and, if so, shall forward the information to the board of trustees of that fund or system for the board's consideration pursuant to the provisions of section 1 of [this act] P.L.1995, c.408 (C.43:1-1).
(cf: P.L.1995, c.408, s.2)
11. Section 3 of P.L.1995, c.408 (C.43:1-5) is amended to read as follows:
3. Whenever any State or local public employer takes formal disciplinary action against an officer or employee who is a member of any State or locally-administered pension fund or retirement system by removing that officer or employee from office or employment, or by suspending, demoting, transferring, or permanently or temporarily reducing the compensation of that individual, it shall inform the board of trustees of the fund or system of its action in writing so that the board may consider the member's conduct pursuant to the provisions of section 1 of [this act] P.L.1995, c.408 (C.43:1-1).
(P. L.1995, c.408, s.3)
12. This act shall take effect on the 30th day after the date of enactment.
STATEMENT
This bill imposes mandatory imprisonment and mandatory forfeiture of pension and retirement benefits for public officers or employees convicted of certain crimes involving or touching their office or employment. The bill clarifies that the board of trustees of a State or local pension fund can order forfeiture of "earned service credit" and can implement any pension forfeiture ordered by a court, and requires mandatory pension forfeiture for crimes or offenses involving or touching the office, position or employment for the following crimes:
(1) Paragraph (4) of subsection a. of N.J.S.2C:13-5, criminal coercion;
(2) N.J.S.2C:20-4, theft by deception, if the amount involved exceeds $10,000;
(3) Subsection d. of N.J.S.2C:20-5, theft by extortion;
(4) N.J.S.2C:20-9, theft by failure to make required disposition of property received, if the amount involved exceeds $10,000;
(5) section 1 of P.L.1983, c.565 (C.2C:21-2.1), use of false government documents;
(6) N.J.S.2C:21-3, frauds relating to public records and recordable instruments;
(7) N.J.S.2C:21-4, falsifying or tampering with government records;
(8) N.J.S.2C:21-10, commercial bribery;
(9) Section 3 of P.L.1994, c.121 (C.2C:21-25), money laundering;
(10) Section 97 of P.L.1999, c.440 (C.2C:21-34), false contract payment claims;
(11) N.J.S.2C:27-2, bribery in official matters;
(12) N.J.S.2C:27-3, threats and other improper influence in official and political matters;
(13) Section 100 of P.L.1999, c.440 (C.2C:27-9), unlawful official business transaction where interest is involved;
(14) Section 5 of P.L.2003, c.255 (C.2C:27-10), acceptance or receipt of unlawful benefit by public servant for official behavior;
(15) Section 6 of P.L.2003, c.255 (C.2C:27-11), offer of unlawful benefit to public servant for official behavior;
(16) N.J.S.2C:28-1, perjury;
(17) N.J.S.2C:28-3, unsworn falsification to authorities;
(18) N.J.S.2C:28-5, tampering with witnesses;
(19) N.J.S.2C:28-7, tampering with public records or information;
(20) N.J.S.2C:28-8, impersonating a public servant or law enforcement officer;
(21) N.J.S.2C:29-1, obstructing administration of law or other governmental function;
(22) N.J.S.2C:29-4, compounding;
(23) N.J.S.2C:30-2, official misconduct;
(24) N.J.S.2C:30-3, speculating or wagering on official action or information;
(25) section 1 of P.L.1989, c.131 (C.2C:30-4), disbursement of public moneys or incurrence of obligation in excess of appropriation and limit of expenditure; or
(26) Section 3 of P.L.2003, c.31 (C.2C:30-7), pattern of official misconduct.
Under the bill, the pension forfeiture will be ordered by the court immediately upon a finding of guilt by the trier of fact or a plea of guilty unless the court, for good cause shown, orders a stay of the pension forfeiture pending a hearing on the merits at the time of sentencing. The bill does not preclude the authority of the board of trustees from ordering the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member of the fund or system for misconduct occurring at the time of the member's public service pursuant to the provisions of P.L.1995, c.408 (C.43:1-3 et seq.), including in a case where the court does not enter an order of forfeiture.
In addition, since ordering a complete pension forfeiture for corrupt activity has always been within the power of a board of trustees, in the case of a person who is convicted of one of the listed crimes for acts which occurred prior to the bill's effective date, a board of trustees will order the forfeiture of all of the pension or retirement benefits earned as a member of every State or locally-administered pension fund or retirement system in which that person participated.
The bill provides that the board of trustees of any State or locally-administered pension fund or retirement system may subpoena witnesses and compel their attendance, and also may require the production of books, papers or documents in a matter concerning the rendering of honorable service by a public officer or employee seeking to receive a public pension or retirement benefit. If any person refuses to obey any subpoena so issued, or refuses to testify or produce any books, papers or documents, the board may apply ex parte to the Superior Court to compel the person to comply with the subpoena.
The bill provides that a State, county or local employer participating in a pension fund or retirement system will be responsible for reimbursement to the pension fund or retirement system of all pension costs incurred by the pension fund or retirement system following any settlement agreement between the employer and an employee that provides for the employer not to pursue any civil or criminal charges or an action for misconduct against the employee in exchange for the employee's resignation in good standing when the employer has failed to fully disclose the settlement to the board of trustees of the pension fund or retirement system so that it can determine whether to order the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member of the fund or system for misconduct occurring during the member's public service which renders the member's service or part thereof dishonorable.
The bill amends current law concerning forfeiture of public office to include a definition of the phrase concerning crimes and offenses "involving or touching" public office or employment, in accordance with the definition set forth by the New Jersey Supreme Court in McCann v. Clerk of the City of Jersey City, 167 N.J. 311 (2001). It provides that a crime or offense "involving or touching" public office or employment means that the crime or offense was related directly to the person's performance in, or circumstances flowing from, a specific public office or position held by the person. As the Supreme Court stated in McCann: "When an individual commits a crime wholly unrelated to his or her public office, the crime ordinarily cannot be characterized as involving or touching on the public office."
The bill adds certain public corruption crimes to subsection f. of N.J.S.A.2C:51-2, which provides that persons convicted of certain crimes are barred from entering into contracts, submitting bids, or conducting any business with any State entity: N.J.S.A.2C:21-34, false contract payment claims; N.J.S.A.2C:27-3, threats and other improper influence in official and political matters; N.J.S.A.2C:27-5, retaliation for past official action; N.J.S.A.2C:27-9, unlawful official business transaction where interest is involved; N.J.S.A.2C:27-10, acceptance of unlawful benefit by public servant for official behavior, and N.J.S.A.2C:27-11, offer of unlawful benefit to public servant for official behavior.
The bill provides mandatory terms of imprisonment for conviction of any of the nineteen crimes enumerated. For a crime of the fourth degree, the mandatory minimum term will be one year; for a crime of the third degree, two years; for a crime of the second degree, five years, and for a crime of the first degree, 10 years, unless the provisions of any other law provide for a higher mandatory minimum term. (Generally, a crime of the fourth degree is punishable by a term of imprisonment of up to 18 months or a fine of up to $10,000 or both; a crime of the third degree, by a term of three to five years or a fine of up to $15,000 or both; a crime of the second degree, a by a term of five to 10 years or a fine of up to $150,000 or both; and a crime of the first degree, by a term of 10 to 20 years or a fine of up to $200,000 or both.)
The bill further provides that if the defendant has provided substantial assistance in a criminal investigation or prosecution of another person, the prosecutor is permitted to ask the court to waive or reduce the mandatory minimum term of imprisonment. Any waiver or reduction in the term of imprisonment would be determined by the court, which would state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply.
Prosecutors are not permitted to recommend the admission into a pretrial intervention program of any person who serves or has served as a public officer or employee and who is charged with certain crimes set forth in this bill without the prior approval of the Attorney General. Individuals convicted of one or more of these crimes would be ineligible for participation in any program of intensive supervision during any period of parole ineligibility. The Attorney General is required to develop guidelines to ensure the uniform exercise of discretion in making determinations regarding the waiver or reduction of a mandatory minimum term of imprisonment.
The bill provides that the Director of the Division of Criminal Justice will provide information about federal prosecutions and convictions obtained through ongoing contact with the United States Attorney for the District of New Jersey to the Division of Pensions and Benefits along with similar information that is currently obtained from county and municipal prosecutors and provided to that division. In addition, the director will provide all information about the prosecution or conviction of public pension fund members to the Legislature. This will enable these officers to determine when impeachment proceedings may be appropriate. The bill also requires State or local employers to provide information regarding the suspension, demotion, transfer of a public officer or employee, or reduction of the compensation thereof, to the board of trustees of the appropriate pension system, in addition to information about removal from office or employment as required by current law.
The bill will take effect on the 30th day after enactment.
