Provides that a member shall forfeit his or her retirement rights and benefits if he or she is convicted of or pleads to certain crimes related to public employment.
STATE OF NEW YORK
________________________________________________________________________
4068
2009-2010 Regular Sessions
IN SENATE
April 8, 2009
___________
Introduced by Sens. FLANAGAN, LANZA, LITTLE, MORAHAN, WINNER -- 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
forfeiture of pension rights or retirement benefits upon conviction of
certain crimes related to public employment
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 article 3-B to read as follows:
3 ARTICLE 3-B
4 PENSION FORFEITURE FOR PUBLIC MISCONDUCT ACT
5 Section 156. Short title.
6 157. Definitions.
7 158. Pension forfeiture.
8 159. Miscellaneous.
9 § 156. Short title. This article shall be known and may be cited as
10 the "pension forfeiture for public misconduct act".
11 § 157. Definitions. The following words and phrases, as used in this
12 article, shall have the following meanings, unless a different meaning
13 is plainly required by the context:
14 1. "Defendant" shall mean a person against whom a forfeiture action is
15 commenced.
16 2. "Covered crime" shall mean any of the following:
17 (a) any felony offense set forth in the penal law;
18 (b) any crime defined in title L of the penal law;
19 (c) an attempt, conspiracy, or solicitation of another to commit any
20 felony offense set forth in the penal law;
21 (d) an attempt, conspiracy, or solicitation of another to commit any
22 crime defined in title L of the penal law;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03748-02-9
S. 4068 2
1 (e) any other crime defined by the laws of this state, a necessary
2 element of which, as determined by statutory or common law definition of
3 such crime, includes interference with the administration of justice,
4 false swearing, misrepresentation, fraud, deceit, bribery, extortion,
5 misappropriation, theft, prohibited action or failure to act by a public
6 officer or employee;
7 (f) any crime defined by the laws of this state for which the vacating
8 or forfeiture of the public office or employment held by such individual
9 is required by law;
10 (g) any criminal offense committed in any other state, district or
11 territory of the United States, which if committed within this state,
12 would constitute an offense designated in paragraph (a), (b), (c), (d),
13 (e), or (f) of this subdivision.
14 3. "Chief administrator of the retirement system" shall mean the comp-
15 troller of the state of New York with respect to the New York state and
16 local employees' retirement system and the New York state and local
17 police and fire retirement system and the boards of trustees with
18 respect to the other public retirement systems and pension funds of the
19 state and the city of New York.
20 4. "Member" shall mean a member of the New York state and local
21 employees' retirement system, the New York state and local police and
22 fire retirement system, the New York state teachers' retirement system,
23 the New York city employees' retirement system, the New York city teach-
24 ers' retirement system, the New York city police pension fund, the New
25 York city fire department pension fund and the New York city board of
26 education retirement system who joined such system on or after the
27 effective date of this article.
28 5. "Retired member" shall mean a person who is retired from and who is
29 receiving a retirement allowance from a retirement system and who had
30 joined such system on or after the effective date of this article.
31 6. "Retirement system" shall mean the New York state and local employ-
32 ees' retirement system, the New York state and local police and fire
33 retirement system, the New York state teachers' retirement system, the
34 New York city employees' retirement system, the New York city teachers'
35 retirement system, the New York city police pension fund, the New York
36 city fire department pension fund and the New York city board of educa-
37 tion retirement system.
38 7. "Dependent children" shall include:
39 (a) any child of an officer or employee, where such child is under age
40 nineteen;
41 (b) any unmarried dependent child of an officer or employee, regard-
42 less of such child's age, where such child is incapable of self-sustain-
43 ing employment by reason of mental or physical disability and became so
44 incapable prior to attaining the age of nineteen; and
45 (c) any unmarried child of an officer or employee, where such child is
46 at an accredited institution of higher learning and is under age twen-
47 ty-three.
48 § 158. Pension forfeiture. Notwithstanding any other provision of
49 general, special or local law, rule or regulation to the contrary:
50 1. In the case of a member or retired member who is convicted of,
51 pleads guilty to, pleads nolo contendere to, or pleads guilty to pursu-
52 ant to subdivision two of section 220.10 of the criminal procedure law
53 any covered crime set forth in paragraph (a), (b), (c), (d), (e), or (f)
54 of subdivision two of section one hundred fifty-seven of this article,
55 the commission of which is related to the performance of or failure to
56 perform such member or retired member's official duties and responsibil-
S. 4068 3
1 ities, an action may be commenced in supreme court by the district
2 attorney having jurisdiction over the offense, or by the attorney gener-
3 al if the attorney general brought the underlying criminal charge, for
4 the forfeiture of all or a portion of those rights and benefits to which
5 such person is or will be entitled as a member or retired member. Such
6 action shall be commenced within six months of such conviction. For
7 purposes of this article, a covered crime is related to the performance
8 of or failure to perform such member or retired member's official duties
9 and responsibilities if it:
10 (a) constituted a material violation of such member's or retired
11 member's duties and responsibilities as a public servant; or
12 (b) was committed in the course of an individual's public employment;
13 or
14 (c) involved the use of public personnel or resources; or
15 (d) involved an individual's misrepresentation of his or her actual
16 official powers, duties and responsibilities; or
17 (e) even though committed outside the scope of such member's official
18 duties or responsibilities, involved actions or conduct by which such
19 member or retired member indicated or conveyed that he or she was acting
20 with the authority of, or under color of the authority of, any govern-
21 mental entity.
22 2. Where the attorney general, or the district attorney of the county
23 in which the member or retired member resides in this state, finds that
24 a member or a retired member has been convicted of a covered crime as
25 defined in paragraph (g) of subdivision two of section one hundred
26 fifty-seven of this article, the commission of which is related to the
27 performance or failure to perform such member's or retired member's
28 official duties and responsibilities, an action may be commenced in
29 supreme court by the attorney general, or by the district attorney of
30 the county in which the member or retired member resides in this state,
31 for the forfeiture of all or a portion of those rights and benefits to
32 which such person is or will be entitled as a member or retired member.
33 Such action shall be commenced within one year of such conviction.
34 3. Prior to commencement of such action described in subdivision one
35 or two of this section, the district attorney or the attorney general,
36 as the case may be, shall provide notice to the chief administrator of
37 the defendant's retirement system stating that he or she has reason to
38 believe that the person convicted committed the covered crime related to
39 his or her official duties and responsibilities. Within twenty days of
40 receipt of such notice, the chief administrator of the defendant's
41 retirement system shall submit a notice of applicability to the district
42 attorney or the attorney general as the case may be. The notice of
43 applicability shall contain a statement specifying whether the person
44 convicted is or has been a member or retired member of the New York
45 state and local employees' retirement system, the New York state and
46 local police and fire retirement system, the New York state teachers'
47 retirement system, the New York city employees' retirement system, the
48 New York city teachers' retirement system, the New York city police
49 pension fund, the New York city fire department pension fund and the New
50 York city board of education retirement system and shall describe the
51 rights and benefits to which such person is or will be entitled to from
52 such public retirement system.
53 4. No forfeiture action may be commenced by the district attorney or
54 the attorney general until receipt of the notice of applicability as set
55 forth in subdivision three of this section. In determining whether to
56 seek forfeiture of a portion, rather than all, of such retirement bene-
S. 4068 4
1 fits, the district attorney or the attorney general may consider miti-
2 gating factors including, but not limited to: the nature and seriousness
3 of the offense committed in relation to the amount of the forfeiture
4 penalty; whether the defendant's conduct in committing the offense was
5 willful or malicious; whether the defendant made any substantial good
6 faith efforts to prevent or mitigate the harm caused by the offense;
7 whether the defendant's participation in the crime was under duress,
8 coercion or induced by others; the impact of the crime on the state or
9 local government and the number of years of the defendant's public
10 service performed without criminal conduct; the pecuniary benefit to the
11 defendant from the crime; and whether and to what extent the defendant's
12 family is dependent upon the defendant's present and future retirement
13 benefits. The district attorney or the attorney general may seek an
14 order from the court that some or all of the forfeited pension be paid
15 for the benefit of any dependent children as justice may require, after
16 taking into consideration the financial needs and resources available
17 for support of such children. Further, in the event of any forfeiture,
18 such member or retired member shall be entitled to a pro rata return of
19 his or her contribution paid into the relevant retirement systems, in
20 any amount proportionate to the amount of any forfeiture, without inter-
21 est.
22 5. Upon motion by the district attorney or the attorney general, as
23 the case may be, made upon commencement of or at any time during the
24 pendency of a forfeiture action, pursuant to the procedure set forth in
25 subdivision one of section six thousand three hundred eleven or section
26 six thousand three hundred thirteen of the civil practice law and rules,
27 the court may issue a temporary restraining order or a preliminary
28 injunction prohibiting the defendant from receiving any rights or bene-
29 fits from the appropriate retirement system. A preliminary injunction
30 may be granted where the court finds that there is a substantial proba-
31 bility that the district attorney or attorney general will prevail on
32 the issue of forfeiture. No showing of irreparable harm shall be
33 required. The court may not consider on such motion any issues presented
34 to the court which heard the criminal action in which the defendant was
35 convicted or which arise out of such criminal action and may be
36 presented on appeal.
37 6. All defendants in a forfeiture action brought pursuant to this
38 article shall have the right to a hearing.
39 7. The burden of proof shall be upon the district attorney or the
40 attorney general, as the case may be, to prove by a preponderance of the
41 evidence the facts necessary to establish a claim of pension forfeiture.
42 8. At any time during the pendency of a forfeiture action, the court
43 may dismiss the action if it finds that such relief is warranted by the
44 existence of some compelling factor, consideration or circumstance
45 including, but not limited to, one or more of the mitigating factors set
46 forth in subdivision four of this section, or other information or
47 evidence which demonstrates that such forfeiture would not serve the
48 ends of justice. The court may order that some or all of the forfeited
49 pension be paid for the benefit of any dependent children as justice may
50 require, after taking into consideration the financial needs and
51 resources available for support of such children. The court shall issue
52 a written decision stating the basis for an order issued pursuant to
53 this subdivision.
54 9. Upon a finding by the court that the defendant has committed a
55 covered crime that is related to the performance of or failure to
56 perform such defendant's official duties and responsibilities, the court
S. 4068 5
1 shall issue an order to the appropriate retirement system for the
2 forfeiture or recoupment of all or a portion of the defendant's rights
3 and benefits as a member or retired member of such system and for the
4 recoupment of all or a portion of the retirement benefits paid to the
5 defendant. In determining the extent of the forfeiture or recoupment
6 that is warranted, the court may consider one or more of the mitigating
7 factors set forth in subdivision four of this section. All orders and
8 findings made by the court pursuant to this section shall be served upon
9 the chief administrator of the defendant's retirement system.
10 10. Upon a final determination that reverses or vacates the conviction
11 or convictions of a designated offense or offenses, the member or
12 retired member who has forfeited retirement rights and benefits pursuant
13 to this section shall have such rights and benefits retroactively
14 restored upon application to the court with jurisdiction over the
15 forfeiture action, regardless of any temporary restraining order or
16 preliminary injunction which may be outstanding or order which may have
17 been issued. Such court, upon finding that such a final determination
18 has occurred, shall issue an order retroactively restoring such rights
19 and benefits, together with such other relief deemed appropriate.
20 11. Except as otherwise provided by this article, the civil practice
21 law and rules shall govern the procedure in actions commenced under this
22 article, except where the action is regulated by any inconsistent
23 provisions herein.
24 § 159. Miscellaneous. The remedies provided for in this article are
25 not intended to substitute for, limit or supersede the lawful authority
26 of any public officer, agency or other person to enforce any other right
27 or remedy provided for by law.
28 § 2. This act shall take effect immediately.
FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
This bill would amend the Retirement and Social Security Law with
regard to the forfeiture of the retirement system rights and benefits of
certain future members or retirees of any public retirement system in
New York State.
If this bill is enacted, insofar as it affects the New York State and
Local Employees' Retirement System and the New York State and Local
Police and Fire Retirement System, it would provide that if a future
member or retiree was convicted of any one of certain criminal offenses
relating to his (or her) performance or failure to perform official
duties and responsibilities, such member or retiree would forfeit all or
a portion of his (or her) rights and benefits as a member or retiree of
such System and all or a portion of retirement benefits already
received. There could be a resulting decrease in the fiscal obligations
of the Systems. The amount of the decrease would be the present value of
all such forfeited benefit payments.
This estimate, dated April 2, 2009 and intended for use only during
the 2009 Legislative Session, is Fiscal Note No. 2009-210, prepared by
the Actuary for the New York State and Local Employees' Retirement
System and the New York State and Local Police and Fire Retirement
System.
