New York State Assembly

 
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A01749 Summary:

A01749 Actions:

A01749 Committee Votes:

Committee:RULES   Chair:Heastie      
DATE:01/23/2017AYE/NAY:27/0  Action: Favorable         Correction Date:01/27/2017
Heastie
Aye
Kolb
Aye
Gottfried
Aye
Oaks
Aye
Lentol
Excused
Butler
Aye
Farrell
Aye
Crouch
Aye
Gantt
Aye
Finch
Aye
Nolan
Excused
Barclay
Aye
Weinstein
Aye
Raia
Aye
Hooper
Aye
Hawley
Aye
Ortiz
Excused
Pretlow
Aye
Cook
Aye
Glick
Aye
Morelle
Aye
Aubry
Aye
Englebright
Aye
Dinowitz
Aye
Colton
Aye
Magnarelli
Excused
Perry
Aye
Galef
Aye
Paulin
Aye
Titus
Aye
Peoples-Stokes
Aye

Committee:JUDICIARY   Chair:Weinstein      
DATE:01/23/2017AYE/NAY:20/0  Action: Favorable refer to committee Rules        
Weinstein
Aye
Montesano
Aye
Dinowitz
Aye
Barclay
Aye
Titus
Aye
Goodell
Aye
Lavine
Aye
Graf
Aye
Zebrowski
Aye
Lupinacci
Aye
Weprin
Aye
Palumbo
Aye
Braunstein
Aye
Simotas
Aye
Quart
Excused
Titone
Aye
Buchwald
Aye
Steck
Aye
Seawright
Aye
Simon
Aye
Joyner
Aye

A01749 Floor Votes:

A01749 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A1749
 
SPONSOR: Buchwald

 
TITLE OF BILL:
 
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment
to section 7 of article 5 of the constitution, in relation to the public
pension of a public officer
 
 
PURPOSE:
 
Provides that certain state and local officers convicted of a felony
involving breach of public trust be subject to forfeiture of pension
benefits.
 
 
SUMMARY OF PROVISIONS:
 
Section 1 amends Article 5, Section 7 of the state constitution to
provide that a public officer, as defined in this resolution, who stands
convicted of a felony which had a direct and actual relationship to the
person's duties as a public officer may have their pension reduced or
revoked following notice and a court hearing. The court's determination
to reduce or revoke shall take into consideration factors including the
severity of the crime, the proportionality of a reduction or a revoca-
tion to such crime and whether the reduction or revocation would result
in undue hardship to an innocent spouse, minor children or other depen-
dents after consideration of their financial needs and resources. A
convicted public officer may also be entitled to a refund of their actu-
al contributions as determined by the court. The definition of public
officer, for the purposes of this section, is provided in paragraph (c)
to include elected officials, direct gubernatorial appointees, municipal
managers, department heads, chief fiscal officers, judges and policy-
makers. These provisions will only apply to crimes committed on or after
the first of January next succeeding the date upon which the voters of
New York State approve a constitutional amendment proposed by this
resolution.
 
Section 2 states that the constitutional amendment would be voted on by
the people of New York.
 
 
JUSTIFICATION:
 
A public officer in the State of New York can currently accept bribes,
steal public funds or engage in numerous other forms of public
corruption and yet still feel secure in the knowledge that even if
convicted of these serious crimes and thrown in jail, under state law
there will still be a state pension check sent their way every month for
the rest of their lives. No matter how serious the offense or how gross-
ly a state officer or local officer has abused his or her public posi-
tion, current law still assures most public officers that their state
pensions cannot be challenged. As part of the Public Integrity Reform
Act (Ch. 399 of the Laws of 2011), public officials who joined the state
retirement system on or after November 13, 2011 are subject to forfei-
ture of their pension benefits if they commit certain felonies related
to their public office. However, the vast majority of New York State
public officers entered the State retirement system before November
2011.
 
 
This bill proposes a constitutional amendment so that higher level
public officers can have their pension benefits reduced or revoked when
convicted of a felony that had a direct and actual relationship to the
person's service as a public officer. A constitutional amendment is
required because of the protections our State Constitution grants to
public pensions. Article 5, Section 7 of the State Constitution says
that public pensions involve a contractual relationship that cannot be
reduced or impaired, unless of course the State Constitution itself is
amended. Convicted public officers may be refunded their own contrib-
utions, made with their own money as opposed to taxpayer money, to the
pension system or plan. However, a court may order that payment of these
funds be withheld if the individual is ordered to pay restitution to the
state or a municipality for losses incurred as a result the guilty
party's actions.
 
The amendment applies to felonies that had a direct and actual relation-
ship to the person's duties as a public officer. Furthermore, this
proposal only impacts public office holders who have been convicted of
such felonies - not just charged, but convicted.
 
The bill recognizes that the rights of the public and taxpayers (and
indeed law-abiding public servant beneficiaries of the state pension
system) can outweigh the expectations a corrupt public official has in
his or her state pension. Without this sort of change, New Yorkers are
left with a situation under state law in which pensions are paid no
matter how corruptly a public officer has undermined the public trust.
In addition, this legislation if enacted would give many public officers
prone to putting their personal interests above the needs of the public
a significant reason to refrain from doing so.  This constitutional
amendment would, in effect, remind public officers that when they are
sworn into office, they must sign a solemn oath stating that they will
uphold the laws and the Constitution that govern New York State. This
oath sets the highest standard for integrity of the public's trust. A
violation of that trust, while in office, demands pecuniary as well as
criminal penalty.
 
Simply put, public officers who commit felonies in direct connection
with their duties as a public officer have not earned their full state
pensions, and the People of the State of New York deserve the opportu-
nity to vote on a state constitutional amendment that would uphold that
principle.
 
 
LEGISLATIVE HISTORY:
 
2016: A10739/S8163 Passed Assembly and Senate (First Passage)
2015 and 2016: A. 7704 Passed Assembly - S. 8163 (Croci) - Passed Senate
2015 (March): A.6722 (Updated version of Governor's proposed budget
bill, carried by Buchwald) - Referred to Judiciary / S.4611 (Budget) -
Passed Senate
2015 (January): A.377A (Buchwald) - Referred to Governmental Operations
2014 - A.7173 (Buchwald) - Passed Governmental Operations Committee)/
2013 - A.7173 (Buchwald) - introduced in May. / S.1133 (Breslin)
2011/2012 - S.2768 (Breslin) Remained in Senate Committee on Judiciary
 
 
FISCAL IMPACT:
 
Savings to the State to the extent it enables the state pension fund to
not have to make payments to certain convicted felons.
 
IMPACT ON REGULATION OF BUSINESSES AND INDIVIDUALS:
 
None
 
 
EFFECTS ON FINES, TERMS OF IMPRISONMENT OR OTHER PENAL SANCTIONS:
 
Subjects certain public officers convicted of a felony committed in
direct connection with service as a public officer to a reduction or
revocation of their public pensions.
 
 
EFFECTIVE DATE:
The constitutional amendment applies to crimes committed on or after the
first of January next succeeding the date upon which the people shall
approve and ratify the amendment to the constitution.

A01749 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1749
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 13, 2017
                                       ___________
 
        Introduced  by  M.  of  A.  BUCHWALD, MORELLE, CASTORINA, GALEF, LAVINE,
          MAYER, BARRETT, CUSICK,  GJONAJ,  LUPARDO,  McDONALD,  PAULIN,  ROZIC,
          BRINDISI,  DenDEKKER,  JAFFEE,  LUPINACCI,  MONTESANO, PEOPLES-STOKES,
          BRONSON, DINOWITZ, JOHNS, MAGEE, ORTIZ, PICHARDO, SANTABARBARA,  FAHY,
          KEARNS,  MALLIOTAKIS,  OTIS, QUART, SCHIMMINGER, SEAWRIGHT, SEPULVEDA,
          SKOUFIS, STEC, STECK, WOERNER, STIRPE, ZEBROWSKI, THIELE -- read  once
          and referred to the Committee on Judiciary
 
                    CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
 
        proposing an amendment to section 7 of article 5 of the constitution, in
          relation to the public pension of a public officer
 
     1    Section  1. Resolved (if the Senate concur), That section 7 of article
     2  5 of the constitution be amended to read as follows:
     3    § 7. (a) After July first, nineteen hundred forty, membership  in  any
     4  pension or retirement system of the state or of a civil division thereof
     5  shall  be a contractual relationship, the benefits of which shall not be
     6  diminished or impaired.
     7    (b) Notwithstanding  subdivision  (a)  of  this  section,  the  public
     8  pension  of  a  public  officer,  as  defined  in  paragraph (c) of this
     9  section, who stands convicted of a felony for which such  felony  has  a
    10  direct  and  actual  relationship to the performance of the public offi-
    11  cer's existing duties, may be reduced or revoked, following notice and a
    12  hearing by an appropriate court, as provided by law.  The court determi-
    13  nation whether to reduce or revoke such pension shall be  based  on  the
    14  consideration  of  factors  including  the severity of the crime and the
    15  proportionality of a reduction or revocation of  such  pension  to  such
    16  crime.  When  a  court issues an order to reduce or revoke such pension,
    17  the court shall consider and  determine  specific  findings  as  to  the
    18  amount  of  such forfeiture, if any, and whether forfeiture, in whole or
    19  in part, would result in undue  hardship  or  other  inequity  upon  any
    20  dependent  children,  spouse  or  other dependents; and other factors as
    21  provided by law.  The legislature shall enact legislation  to  implement
    22  this amendment taking into account interests of justice.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD89025-01-7
        A. 1749                             2
 
     1    (c)  For  the  purposes  of  paragraph  (b)  of this section, the term
     2  "public officer" shall mean: (i) an official filling an  elected  office
     3  within  the  state; (ii) a holder of office filled by direct appointment
     4  by the governor of this state, either upon or without  senate  confirma-
     5  tion;  (iii)  a  county, city, town or village administrator, manager or
     6  equivalent position; (iv) the head  or  heads  of  any  state  or  local
     7  government department, division, board, commission, bureau, public bene-
     8  fit  corporation,  or public authority of this state who are vested with
     9  authority, direction and control over such department, division,  board,
    10  commission,  bureau, public benefit corporation or public authority; (v)
    11  the chief fiscal officer or treasurer of any  municipal  corporation  or
    12  political  subdivision  of  the  state;  (vi)  a judge or justice of the
    13  unified court system; and (vii) a legislative,  executive,  or  judicial
    14  employee of this state who directly assists in the formulation of legis-
    15  lation,  rules, regulations, policy, or judicial decision-making and who
    16  is designated as a policymaker as set forth in statute.
    17    (d) Paragraph (b) of this section shall only apply to crimes committed
    18  on or after the first of January next succeeding the date upon which the
    19  people shall approve and ratify the amendment to the  constitution  that
    20  added this paragraph.
    21    §  2. Resolved (if the Senate concur), That the foregoing amendment be
    22  submitted to the people for approval at the general election to be  held
    23  in the year 2017 in accordance with the provisions of the election law.