Relates to providing for the reduction or revocation of the public pension of a public officer; authorizes the court to determine whether to reduce or revoke such pension based on the defined terms, and to consider and determine specific findings as to the amount of such forfeiture, if any, and whether forfeiture in whole or in part would result in undue hardship or other inequity upon any dependent children, spouse or other dependents; makes related provisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10739A
SPONSOR: Rules (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 such a public officer may have their pension reduced
or revoked following notice and a court hearing. The court's determi-
nation to reduce or revoke shall take into consideration factors includ-
ing the severity of the crime and the proportionality of a reduction or
a revocation to such crime. The court may also order payment of pension
benefits to an innocent spouse, minor children or other dependents after
consideration of their financial needs and resources. A convicted public
officer may also be entitled to a refund of their actual 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, if the Senate concurs, the foregoing amendment
will be referred to the first regular legislative session convening
after the next succeeding general election of members of the Assembly,
and, in conformity with section 1 of article 19 of the constitution, be
published for 3 months previous to the time of such election.
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:
2015 and 2016: A. 7704 (Passed Assembly)
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)/
S.1133 (Breslin)
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:
If the Senate concurs, the foregoing amendment will be referred to the
first regular legislative session convening after the next succeeding
general election of members of the assembly, and, in conformity with
section 1 of article 19 of the constitution, be published for 3 months
previous to the time of such election.
STATE OF NEW YORK
________________________________________________________________________
10739--A
IN ASSEMBLY
June 17, 2016
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Buchwald,
Morelle, Barrett, Brindisi, Fahy, Galef, Lavine, Lupardo, McDonald,
Otis, Russell, Sepulveda, Skoufis, Stirpe, Zebrowski, Paulin, Woerner,
Steck, Santabarbara, Quart, Thiele, Stec, Ortiz, Magee, Gjonaj,
Kearns, Ceretto, Jaffee, Rozic, Peoples-Stokes, DenDekker, Montesano,
Bronson, Schimminger) -- read once and referred to the Committee on
Judiciary -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
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.
23 (c) For the purposes of paragraph (b) of this section, the term
24 "public officer" shall mean: (i) an official filling an elected office
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD89134-08-6
A. 10739--A 2
1 within the state; (ii) a holder of office filled by direct appointment
2 by the governor of this state, either upon or without senate confirma-
3 tion; (iii) a county, city, town or village administrator, manager or
4 equivalent position; (iv) the head or heads of any state or local
5 government department, division, board, commission, bureau, public bene-
6 fit corporation, or public authority of this state who are vested with
7 authority, direction and control over such department, division, board,
8 commission, bureau, public benefit corporation or public authority; (v)
9 the chief fiscal officer or treasurer of any municipal corporation or
10 political subdivision of the state; (vi) a judge or justice of the
11 unified court system; and (vii) a legislative, executive, or judicial
12 employee of this state who directly assists in the formulation of legis-
13 lation, rules, regulations, policy, or judicial decision-making and who
14 is designated as a policymaker as set forth in statute.
15 (d) Paragraph (b) of this section shall only apply to crimes committed
16 on or after the first of January next succeeding the date upon which the
17 people shall approve and ratify the amendment to the constitution that
18 added this paragraph.
19 § 2. Resolved (if the Senate concur), That the foregoing amendment be
20 referred to the first regular legislative session convening after the
21 next succeeding general election of members of the assembly, and, in
22 conformity with section 1 of article 19 of the constitution, be
23 published for 3 months previous to the time of such election.
