Bill Text: NY S08036 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to pension forfeiture for public officers under section 7 of article 5 of the state constitution.
Spectrum: Partisan Bill (Republican 11-0)
Status: (Introduced - Dead) 2018-06-20 - COMMITTED TO RULES [S08036 Detail]
Download: New_York-2017-S08036-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8036 IN SENATE March 21, 2018 ___________ Introduced by Sen. CROCI -- read twice and ordered printed, and when printed to be committed to the Committee on Civil Service and Pensions AN ACT to amend the retirement and social security law, in relation to pension forfeiture for public officers under section 7 of article 5 of the state constitution The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The retirement and social security law is amended by adding 2 a new section 157-a to read as follows: 3 § 157-a. Pension forfeiture of public officers. 1. Notwithstanding any 4 other law to the contrary, it shall be a term and condition of member- 5 ship for every public officer, as defined in section seven of article 6 five of the state constitution, who is a member of any retirement 7 system, that such public officer's rights to a pension in a retirement 8 system that accrue in such retirement system after his or her date of 9 initial membership in the retirement system shall be subject to the 10 provisions of this article. 11 2. In the case of a public officer who stands convicted, by plea of 12 nolo contendere or plea of guilty to, or by conviction after trial, of 13 any felony which has a direct and actual relationship to the performance 14 of the public officer's existing duties, an action shall be commenced in 15 supreme court of the county in which such public officer was convicted 16 of such felony crime, by the district attorney having jurisdiction over 17 such crime, or by the attorney general if the attorney general brought 18 the criminal charge which resulted in such conviction. If the conviction 19 was secured in federal court then the action shall be commenced by the 20 attorney general in Albany county supreme court. The action shall be for 21 an order to reduce or revoke the pension to which such public official 22 is otherwise entitled for service as a public officer. Such complaint 23 shall specify with particularity which felony the defendant has commit- 24 ted, and all other facts that are alleged to qualify such crime as a 25 felony crime which has a direct and actual relationship to the perform- 26 ance of the public officer's existing duties subject to pension 27 reduction or revocation pursuant to section seven of article five of the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14011-06-8S. 8036 2 1 state constitution, and the amount of pension reduction or revocation 2 requested. Such action shall be commenced within six months after such 3 conviction. 4 3. Before commencing an action described in subdivision two of this 5 section, the district attorney or the attorney general, as the case may 6 be, shall serve written notice on the chief administrator of the defend- 7 ant's retirement system stating that he or she has reason to believe 8 that the person convicted committed the crime related to public office 9 in the performance of or failure to perform the public officer's duties 10 and responsibilities. Such notice shall specify with particularity which 11 felony the defendant has committed. Within twenty days after receipt of 12 such notice, the chief administrator of the defendant's retirement 13 system shall submit a notice of applicability to the district attorney 14 or the attorney general as the case may be. The notice of applicability 15 shall contain a statement specifying whether the person convicted is or 16 has been a member or retired member of a retirement system and shall 17 describe the portion of such rights and benefits to which such person is 18 or will be entitled to solely from service as such a public officer. 19 4. No forfeiture action may be commenced by the district attorney or 20 the attorney general until such district attorney or the attorney gener- 21 al, as the case may be, has received and served on the defendant the 22 notice of applicability as set forth in subdivision three of this 23 section. 24 5. The district attorney or the attorney general, or any interested 25 party, may seek, or the court on its own motion may order, that some or 26 all of the pension that would otherwise be reduced or revoked pursuant 27 to this article be paid for the benefit of any dependent persons, as may 28 be in the interests of justice. 29 6. The defendant shall have the right to a hearing. 30 7. The burden of proof shall be upon the district attorney or the 31 attorney general, as the case may be, to prove by clear and convincing 32 evidence the facts necessary to establish a claim of pension forfeiture. 33 The district attorney or the attorney general as the case may be must, 34 at the time of the hearing, prove by clear and convincing evidence that 35 the defendant knowingly and intentionally committed the crime related to 36 public office. 37 8. In determining whether the pension shall be reduced or revoked, the 38 supreme court shall consider and make findings of fact and conclusions 39 of law that include, but shall not be limited to, a consideration of the 40 following factors: 41 (a) Whether the defendant stands convicted of such a felony of a crime 42 related to public office, and the specific paragraph or paragraphs of 43 subdivision one of section one hundred fifty-six of this article that 44 have been proven or not proven; 45 (b) The severity of the crime related to public office of which the 46 defendant stands convicted; 47 (c) The amount of monetary loss suffered by such state or municipality 48 as a result of such crime related to public office; 49 (d) The degree of public trust reposed in the public officer by virtue 50 of the person's position as a public official; 51 (e) If the crime related to public office was part of a fraudulent 52 scheme against the state or a municipality, the role of the public offi- 53 cer in such fraudulent scheme against such state or a municipality; 54 (f) The defendant's criminal history, if any; 55 (g) The impact of forfeiture, in whole or in part, on the defendant's 56 dependents, present or former spouses, or domestic partners;S. 8036 3 1 (h) The proportionality of forfeiture of all or part of the pension to 2 the crime committed; 3 (i) The years of service in public office by the defendant where no 4 criminal activity has been found by a court; and 5 (j) Any such other factors as, in the judgment of the supreme court, 6 justice may require. 7 9. At any time during the pendency of a forfeiture action, the court 8 may dismiss the action if it finds that such relief is warranted by the 9 existence of some compelling factor, consideration or circumstance or 10 other information or evidence which demonstrates that forfeiture would 11 not serve the ends of justice. The court may order that some or all of 12 the reduced or revoked pension be paid to satisfy the terms of any 13 existing order for the payment of maintenance, child support or restitu- 14 tion or for the benefit of any dependent persons, as may be in the 15 interests of justice, after taking into consideration the financial 16 needs and resources available for support of such persons. 17 10. (a) Upon a finding by the court by clear and convincing evidence 18 that the defendant knowingly and intentionally committed a crime related 19 to public office, the court may issue an order to the appropriate 20 retirement system to reduce or revoke the defendant's pension to which 21 he or she is otherwise entitled as such a public officer. All orders and 22 findings made by the court pursuant to this section shall be served by 23 the attorney general or the district attorney, as the case may be upon 24 the chief administrator of the defendant's retirement system and the 25 defendant. 26 (b) If the court issues an order pursuant to paragraph (a) of this 27 subdivision, the court shall order payment of a portion of such pension 28 benefit to: (1) the innocent spouse if so requested by such spouse paya- 29 ble at the time the public officer would have been eligible for retire- 30 ment if such spouse has not otherwise waived, in writing, his or her 31 right to such benefit; and (2) innocent minor children and other depen- 32 dents pursuant to law of the public officer in an amount that the court 33 finds just and proper consistent with the pension benefits to which the 34 public official would be entitled and the portion of those benefits 35 which would be used for the support of such minor children or dependents 36 pursuant to law. Such payment to the innocent spouse shall be computed 37 pursuant to paragraph (c) of this subdivision, and payments pursuant to 38 subparagraphs one and two of this paragraph shall be adjusted to reflect 39 interest accrued between the time of such conviction and the time of 40 such payment. 41 (c) When determining the amount of benefits which the defendant's 42 innocent spouse is entitled to receive, the factors contained in para- 43 graph d of subdivision five of part B of section two hundred thirty-six 44 of the domestic relations law shall be considered by the court. However, 45 when determining such apportionment, the court shall not annul or modify 46 any prior court order regarding such benefits. 47 11. The court shall issue a written decision including findings of 48 fact and conclusions of law that are the basis for any order issued 49 pursuant to this section. 50 12. Upon a final determination that reverses or vacates the conviction 51 or convictions of a crime related to public office, or reduces such 52 crime to a violation, misdemeanor or other criminal act that is not a 53 crime related to public office, the public official, or if he or she 54 shall be deceased, his or her estate, shall have such pension retroac- 55 tively restored upon application to the court with jurisdiction over the 56 forfeiture action. Such court, upon finding that such a final determi-S. 8036 4 1 nation has occurred, shall issue an order retroactively restoring such 2 pension, together with such other relief deemed appropriate. 3 13. A final judgment entered pursuant to this article may be appealed 4 pursuant to subdivision (a) of section fifty-seven hundred one and 5 section fifty-six hundred two of the civil practice law and rules. 6 14. Except as otherwise provided by this article, the civil practice 7 law and rules shall govern the procedure in all actions commenced pursu- 8 ant to this article, except where the action is specifically regulated 9 by any inconsistent provisions herein. 10 15. "Felonies having a direct and actual relationship to the perform- 11 ance of a public officer's existing duties" shall mean any of the 12 following criminal offenses whether commissioned in this state or in any 13 other jurisdiction by a public officer, as defined by section seven of 14 article five of the state constitution, through the use of his or her 15 public office or by the individual representing he or she was acting 16 with the authority of any governmental entity, and acting as a public 17 officer: 18 (a) a felony for committing, aiding or abetting a larceny of public 19 funds from the state or a municipality; 20 (b) a felony committed in direct connection with service as a public 21 officer; or 22 (c) a felony committed by such person who, with the intent to defraud, 23 realizes or obtains, or attempts to realize or obtain, a profit, gain or 24 advantage for himself or herself or for some other person, through the 25 use or attempted use of the power, rights, privileges or duties of his 26 or her position as a public officer, as defined by section seven of 27 article five of the state constitution. 28 16. Any public officer, as defined by section seven of article five of 29 the state constitution, whose pension is reduced or revoked pursuant to 30 this article shall be entitled to a return of his or her contribution 31 paid into the relevant retirement system, without interest. Notwith- 32 standing the foregoing, no payments in return of contributions shall be 33 made or ordered unless and until the supreme court determines that the 34 public officer whose pension has been reduced or revoked has satisfied 35 in full any judgments or orders rendered by any court of competent 36 jurisdiction for the payment of restitution to the state or a munici- 37 pality for losses incurred as a result of such crime related to public 38 office. If the supreme court determines that such public officer whose 39 pension is to be reduced or revoked has failed to satisfy any outstand- 40 ing judgment or order of restitution rendered by a court of competent 41 jurisdiction, it may order that any funds otherwise due to such public 42 official as a return of contribution, or any portion thereof, be paid in 43 satisfaction of such judgment or order. 44 § 2. This act shall take effect immediately; provided, however, that 45 this act shall be deemed to have been in full force and effect on and 46 after January 1, 2018.