NY State Senate Bill 2011-S1075

Senate Bill S1075

2011-2012 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to finance
Jan 05, 2011	referred to finance

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2011-S1075 (ACTIVE) - Details

See Assembly Version of this Bill:: A1929
Current Committee:: Senate Finance
Law Section:: Retirement and Social Security Law
Laws Affected:: Add Art 3-B §§156 - 159, R & SS L
Versions Introduced in 2009-2010 Legislative Session:: S4068, A1542

2011-S1075 (ACTIVE) - Summary

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.

2011-S1075 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S1075

TITLE OF BILL:

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

PURPOSE:

To establish a procedure whereby public misconduct by a public
employee may disqualify him or her from all or part of their pension
benefits.

SUMMARY OF PROVISIONS:

This bill would amend the Retirement and Social Security Law to
establish procedures to be followed in order for a public employee
convicted of misconduct to forfeit their pension.

JUSTIFICATION:

New York State presently has no policy mandating the forfeiture of
pension benefits by a public official who has been convicted of a
crime. No matter how serious the offense or how grossly an official

has abused his or her public office, the current laws which govern
pension plans for state employees, as well as municipal employees
outside New York City, make no provision for forfeiture.

A state or local government employee who otherwise meets the age and
length of service requirements for a pension contained in New York's
Retirement and Social Security Law is entitled to collect pension
benefits, at public expense, even if he or she has betrayed the
public trust and been convicted of a crime related to the betrayal of
that trust.

Here are just a few examples of corrupt public officials who are
receiving or continue to be eligible for their taxpayer funded
pensions.

* A former mayor of a large upstate city who pleaded guilty to federal
racketeering charges and extorting at least $1.2 million from
contractors doing business with the city during his 16 years in
office.

* At least two supreme court justices convicted of taking bribes for
fixing cases and one former administrative judge for one of the
largest counties in the state convicted of perjury after an
investigation into extortion involving cable television franchises.

* A former superintendent of a major metropolitan area's Sanitation
Department's Bureau of Waste Management who pleaded guilty to three
counts of federal racketeering for accepting over $660,000 in bribes
and payoffs. In addition, he allowed millions of gallons of hazardous
and chemical waste to be dumped in municipal solid waste landfills.


* A former deputy director of the a major metropolitan area's
Department of General Services who pleaded guilty to federal
racketeering charges of extorting over a million dollars from building
owners seeking to lease space to the city and was sentenced to 12
years in prison.

* A former Housing Authority supervisor convicted in a federal bribery
and extortion probe and sentenced to 5 years in prison and a fine of
$55,000, together with the conviction of 23 Housing Authority
employees for job-related crimes.

* A former fiscal administrator for a major metropolitan area's
Department of Health's Maternal, Infant and Reproductive Health
program who embezzled nearly $200,000 from taxpayers through
fraudulent payments to a bogus catering company he created and for
taking kickbacks from contractors.

* Former state legislators convicted under federal law for using their
state office for private gain.

New York's retirement systems at all levels of government should be
explicitly based on the principle that the faithful and honest
performance of a public employee's official duties is as much a
precondition to eligibility for a pension as fulfilling the existing
statutory age and length of service requirements.

In the public sector, pensions are not merely a form of deferred
compensation. They are a "reward for faithfulness to duty and honesty
of performance."

A public servant who, by engaging in serious criminal misconduct,
abuses the power of office and violates the fiduciary duty owed to
the public relinquishes any claim to a pension financed by the tax
paying citizens of this state.

The purpose of a pension forfeiture statute is to withhold public tax
dollars from the employee who has broken faith with the public and
breached in a significant way the fiduciary duty owed to the citizens
of the state.

Five other states -- Pennsylvania, Florida, Georgia, Illinois and
Massachusetts -- have all enacted pension forfeiture statues which
recognize that loyal, honest public service is an essential
prerequisite to pension eligibility. In these five states, criminal
misconduct related to a public employee's official duties operates to
sever the employee's claim to a taxpayer-financed pension.

LEGISLATIVE HISTORY:

2010: This bill was referred to the Senate Civil Service & Pensions
Committee.

FISCAL IMPLICATIONS:

This bill would save taxpayer dollars by decreasing the fiscal
obligations of the retirement systems in these situations.


EFFECTIVE DATE:

This act would take effect immediately and would apply to all
retirement system members who join on or after such date.

2011-S1075 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1075

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 5, 2011
                               ___________

Introduced  by Sen. FLANAGAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

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:

  Section 1. The retirement and social security law is amended by adding
a new article 3-B to read as follows:
                               ARTICLE 3-B
              PENSION FORFEITURE FOR PUBLIC MISCONDUCT ACT
SECTION 156. SHORT TITLE.
        157. DEFINITIONS.
        158. PENSION FORFEITURE.
        159. MISCELLANEOUS.
  S 156. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY  BE  CITED  AS
THE "PENSION FORFEITURE FOR PUBLIC MISCONDUCT ACT".
  S  157.  DEFINITIONS. THE FOLLOWING WORDS AND PHRASES, AS USED IN THIS
ARTICLE, SHALL HAVE THE FOLLOWING MEANINGS, UNLESS A  DIFFERENT  MEANING
IS PLAINLY REQUIRED BY THE CONTEXT:
  1. "DEFENDANT" SHALL MEAN A PERSON AGAINST WHOM A FORFEITURE ACTION IS
COMMENCED.
  2. "COVERED CRIME" SHALL MEAN ANY OF THE FOLLOWING:
  (A) ANY FELONY OFFENSE SET FORTH IN THE PENAL LAW;
  (B) ANY CRIME DEFINED IN TITLE L OF THE PENAL LAW;
  (C)  AN  ATTEMPT, CONSPIRACY, OR SOLICITATION OF ANOTHER TO COMMIT ANY
FELONY OFFENSE SET FORTH IN THE PENAL LAW;
  (D) AN ATTEMPT, CONSPIRACY, OR SOLICITATION OF ANOTHER TO  COMMIT  ANY
CRIME DEFINED IN TITLE L OF THE PENAL LAW;
  (E)  ANY  OTHER  CRIME  DEFINED BY THE LAWS OF THIS STATE, A NECESSARY
ELEMENT OF WHICH, AS DETERMINED BY STATUTORY OR COMMON LAW DEFINITION OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05392-01-1

S. 1075                             2

SUCH CRIME, INCLUDES INTERFERENCE WITH THE  ADMINISTRATION  OF  JUSTICE,
FALSE  SWEARING,  MISREPRESENTATION,  FRAUD, DECEIT, BRIBERY, EXTORTION,
MISAPPROPRIATION, THEFT, PROHIBITED ACTION OR FAILURE TO ACT BY A PUBLIC
OFFICER OR EMPLOYEE;
  (F) ANY CRIME DEFINED BY THE LAWS OF THIS STATE FOR WHICH THE VACATING
OR FORFEITURE OF THE PUBLIC OFFICE OR EMPLOYMENT HELD BY SUCH INDIVIDUAL
IS REQUIRED BY LAW;
  (G)  ANY  CRIMINAL  OFFENSE  COMMITTED IN ANY OTHER STATE, DISTRICT OR
TERRITORY OF THE UNITED STATES, WHICH IF COMMITTED  WITHIN  THIS  STATE,
WOULD  CONSTITUTE AN OFFENSE DESIGNATED IN PARAGRAPH (A), (B), (C), (D),
(E), OR (F) OF THIS SUBDIVISION.
  3. "CHIEF ADMINISTRATOR OF THE RETIREMENT SYSTEM" SHALL MEAN THE COMP-
TROLLER OF THE STATE OF NEW YORK WITH RESPECT TO THE NEW YORK STATE  AND
LOCAL  EMPLOYEES'  RETIREMENT  SYSTEM  AND  THE NEW YORK STATE AND LOCAL
POLICE AND FIRE RETIREMENT  SYSTEM  AND  THE  BOARDS  OF  TRUSTEES  WITH
RESPECT  TO THE OTHER PUBLIC RETIREMENT SYSTEMS AND PENSION FUNDS OF THE
STATE AND THE CITY OF NEW YORK.
  4. "MEMBER" SHALL MEAN A MEMBER  OF  THE  NEW  YORK  STATE  AND  LOCAL
EMPLOYEES'  RETIREMENT  SYSTEM,  THE NEW YORK STATE AND LOCAL POLICE AND
FIRE RETIREMENT SYSTEM, THE NEW YORK STATE TEACHERS' RETIREMENT  SYSTEM,
THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE NEW YORK CITY TEACH-
ERS'  RETIREMENT  SYSTEM, THE NEW YORK CITY POLICE PENSION FUND, THE NEW
YORK CITY FIRE DEPARTMENT PENSION FUND AND THE NEW YORK  CITY  BOARD  OF
EDUCATION  RETIREMENT  SYSTEM  WHO  JOINED  SUCH  SYSTEM ON OR AFTER THE
EFFECTIVE DATE OF THIS ARTICLE.
  5. "RETIRED MEMBER" SHALL MEAN A PERSON WHO IS RETIRED FROM AND WHO IS
RECEIVING A RETIREMENT ALLOWANCE FROM A RETIREMENT SYSTEM  AND  WHO  HAD
JOINED SUCH SYSTEM ON OR AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
  6. "RETIREMENT SYSTEM" SHALL MEAN THE NEW YORK STATE AND LOCAL EMPLOY-
EES'  RETIREMENT  SYSTEM,  THE  NEW YORK STATE AND LOCAL POLICE AND FIRE
RETIREMENT SYSTEM, THE NEW YORK STATE TEACHERS' RETIREMENT  SYSTEM,  THE
NEW  YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE NEW YORK CITY TEACHERS'
RETIREMENT SYSTEM, THE NEW YORK CITY POLICE PENSION FUND, THE  NEW  YORK
CITY  FIRE DEPARTMENT PENSION FUND AND THE NEW YORK CITY BOARD OF EDUCA-
TION RETIREMENT SYSTEM.
  7. "DEPENDENT CHILDREN" SHALL INCLUDE:
  (A) ANY CHILD OF AN OFFICER OR EMPLOYEE, WHERE SUCH CHILD IS UNDER AGE
NINETEEN;
  (B) ANY UNMARRIED DEPENDENT CHILD OF AN OFFICER OR  EMPLOYEE,  REGARD-
LESS OF SUCH CHILD'S AGE, WHERE SUCH CHILD IS INCAPABLE OF SELF-SUSTAIN-
ING  EMPLOYMENT BY REASON OF MENTAL OR PHYSICAL DISABILITY AND BECAME SO
INCAPABLE PRIOR TO ATTAINING THE AGE OF NINETEEN; AND
  (C) ANY UNMARRIED CHILD OF AN OFFICER OR EMPLOYEE, WHERE SUCH CHILD IS
AT AN ACCREDITED INSTITUTION OF HIGHER LEARNING AND IS UNDER  AGE  TWEN-
TY-THREE.
  S  158.  PENSION  FORFEITURE.  NOTWITHSTANDING  ANY OTHER PROVISION OF
GENERAL, SPECIAL OR LOCAL LAW, RULE OR REGULATION TO THE CONTRARY:
  1. IN THE CASE OF A MEMBER OR RETIRED  MEMBER  WHO  IS  CONVICTED  OF,
PLEADS  GUILTY TO, PLEADS NOLO CONTENDERE TO, OR PLEADS GUILTY TO PURSU-
ANT TO SUBDIVISION TWO OF SECTION 220.10 OF THE CRIMINAL  PROCEDURE  LAW
ANY COVERED CRIME SET FORTH IN PARAGRAPH (A), (B), (C), (D), (E), OR (F)
OF  SUBDIVISION  TWO OF SECTION ONE HUNDRED FIFTY-SEVEN OF THIS ARTICLE,
THE COMMISSION OF WHICH IS RELATED TO THE PERFORMANCE OF OR  FAILURE  TO
PERFORM SUCH MEMBER OR RETIRED MEMBER'S OFFICIAL DUTIES AND RESPONSIBIL-
ITIES,  AN  ACTION  MAY  BE  COMMENCED  IN SUPREME COURT BY THE DISTRICT
ATTORNEY HAVING JURISDICTION OVER THE OFFENSE, OR BY THE ATTORNEY GENER-

S. 1075                             3

AL IF THE ATTORNEY GENERAL BROUGHT THE UNDERLYING CRIMINAL  CHARGE,  FOR
THE FORFEITURE OF ALL OR A PORTION OF THOSE RIGHTS AND BENEFITS TO WHICH
SUCH  PERSON  IS OR WILL BE ENTITLED AS A MEMBER OR RETIRED MEMBER. SUCH
ACTION  SHALL  BE  COMMENCED  WITHIN  SIX MONTHS OF SUCH CONVICTION. FOR
PURPOSES OF THIS ARTICLE, A COVERED CRIME IS RELATED TO THE  PERFORMANCE
OF OR FAILURE TO PERFORM SUCH MEMBER OR RETIRED MEMBER'S OFFICIAL DUTIES
AND RESPONSIBILITIES IF IT:
  (A)  CONSTITUTED  A  MATERIAL  VIOLATION  OF  SUCH MEMBER'S OR RETIRED
MEMBER'S DUTIES AND RESPONSIBILITIES AS A PUBLIC SERVANT; OR
  (B) WAS COMMITTED IN THE COURSE OF AN INDIVIDUAL'S PUBLIC  EMPLOYMENT;
OR
  (C) INVOLVED THE USE OF PUBLIC PERSONNEL OR RESOURCES; OR
  (D)  INVOLVED  AN  INDIVIDUAL'S MISREPRESENTATION OF HIS OR HER ACTUAL
OFFICIAL POWERS, DUTIES AND RESPONSIBILITIES; OR
  (E) EVEN THOUGH COMMITTED OUTSIDE THE SCOPE OF SUCH MEMBER'S  OFFICIAL
DUTIES  OR  RESPONSIBILITIES,  INVOLVED ACTIONS OR CONDUCT BY WHICH SUCH
MEMBER OR RETIRED MEMBER INDICATED OR CONVEYED THAT HE OR SHE WAS ACTING
WITH THE AUTHORITY OF, OR UNDER COLOR OF THE AUTHORITY OF,  ANY  GOVERN-
MENTAL ENTITY.
  2.  WHERE THE ATTORNEY GENERAL, OR THE DISTRICT ATTORNEY OF THE COUNTY
IN WHICH THE MEMBER OR RETIRED MEMBER RESIDES IN THIS STATE, FINDS  THAT
A  MEMBER  OR  A RETIRED MEMBER HAS BEEN CONVICTED OF A COVERED CRIME AS
DEFINED IN PARAGRAPH (G) OF  SUBDIVISION  TWO  OF  SECTION  ONE  HUNDRED
FIFTY-SEVEN  OF  THIS ARTICLE, THE COMMISSION OF WHICH IS RELATED TO THE
PERFORMANCE OR FAILURE TO PERFORM  SUCH  MEMBER'S  OR  RETIRED  MEMBER'S
OFFICIAL  DUTIES  AND  RESPONSIBILITIES,  AN  ACTION MAY BE COMMENCED IN
SUPREME COURT BY THE ATTORNEY GENERAL, OR BY THE  DISTRICT  ATTORNEY  OF
THE  COUNTY IN WHICH THE MEMBER OR RETIRED MEMBER RESIDES IN THIS STATE,
FOR THE FORFEITURE OF ALL OR A PORTION OF THOSE RIGHTS AND  BENEFITS  TO
WHICH  SUCH PERSON IS OR WILL BE ENTITLED AS A MEMBER OR RETIRED MEMBER.
SUCH ACTION SHALL BE COMMENCED WITHIN ONE YEAR OF SUCH CONVICTION.
  3. PRIOR TO COMMENCEMENT OF SUCH ACTION DESCRIBED IN  SUBDIVISION  ONE
OR  TWO  OF THIS SECTION, THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL,
AS THE CASE MAY BE, SHALL PROVIDE NOTICE TO THE CHIEF  ADMINISTRATOR  OF
THE  DEFENDANT'S  RETIREMENT SYSTEM STATING THAT HE OR SHE HAS REASON TO
BELIEVE THAT THE PERSON CONVICTED COMMITTED THE COVERED CRIME RELATED TO
HIS OR HER OFFICIAL DUTIES AND RESPONSIBILITIES. WITHIN TWENTY  DAYS  OF
RECEIPT  OF  SUCH  NOTICE,  THE  CHIEF  ADMINISTRATOR OF THE DEFENDANT'S
RETIREMENT SYSTEM SHALL SUBMIT A NOTICE OF APPLICABILITY TO THE DISTRICT
ATTORNEY OR THE ATTORNEY GENERAL AS THE  CASE  MAY  BE.  THE  NOTICE  OF
APPLICABILITY  SHALL  CONTAIN  A STATEMENT SPECIFYING WHETHER THE PERSON
CONVICTED IS OR HAS BEEN A MEMBER OR RETIRED  MEMBER  OF  THE  NEW  YORK
STATE  AND  LOCAL  EMPLOYEES'  RETIREMENT SYSTEM, THE NEW YORK STATE AND
LOCAL POLICE AND FIRE RETIREMENT SYSTEM, THE NEW  YORK  STATE  TEACHERS'
RETIREMENT  SYSTEM,  THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, THE
NEW YORK CITY TEACHERS' RETIREMENT SYSTEM,  THE  NEW  YORK  CITY  POLICE
PENSION FUND, THE NEW YORK CITY FIRE DEPARTMENT PENSION FUND AND THE NEW
YORK  CITY  BOARD  OF EDUCATION RETIREMENT SYSTEM AND SHALL DESCRIBE THE
RIGHTS AND BENEFITS TO WHICH SUCH PERSON IS OR WILL BE ENTITLED TO  FROM
SUCH PUBLIC RETIREMENT SYSTEM.
  4.  NO  FORFEITURE ACTION MAY BE COMMENCED BY THE DISTRICT ATTORNEY OR
THE ATTORNEY GENERAL UNTIL RECEIPT OF THE NOTICE OF APPLICABILITY AS SET
FORTH IN SUBDIVISION THREE OF THIS SECTION. IN  DETERMINING  WHETHER  TO
SEEK  FORFEITURE OF A PORTION, RATHER THAN ALL, OF SUCH RETIREMENT BENE-
FITS, THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL MAY  CONSIDER  MITI-
GATING FACTORS INCLUDING, BUT NOT LIMITED TO: THE NATURE AND SERIOUSNESS

S. 1075                             4

OF  THE  OFFENSE  COMMITTED  IN RELATION TO THE AMOUNT OF THE FORFEITURE
PENALTY; WHETHER THE DEFENDANT'S CONDUCT IN COMMITTING THE  OFFENSE  WAS
WILLFUL  OR  MALICIOUS;  WHETHER THE DEFENDANT MADE ANY SUBSTANTIAL GOOD
FAITH  EFFORTS  TO  PREVENT  OR MITIGATE THE HARM CAUSED BY THE OFFENSE;
WHETHER THE DEFENDANT'S PARTICIPATION IN THE  CRIME  WAS  UNDER  DURESS,
COERCION  OR  INDUCED BY OTHERS; THE IMPACT OF THE CRIME ON THE STATE OR
LOCAL GOVERNMENT AND THE NUMBER  OF  YEARS  OF  THE  DEFENDANT'S  PUBLIC
SERVICE PERFORMED WITHOUT CRIMINAL CONDUCT; THE PECUNIARY BENEFIT TO THE
DEFENDANT FROM THE CRIME; AND WHETHER AND TO WHAT EXTENT THE DEFENDANT'S
FAMILY  IS  DEPENDENT UPON THE DEFENDANT'S PRESENT AND FUTURE RETIREMENT
BENEFITS. THE DISTRICT ATTORNEY OR THE  ATTORNEY  GENERAL  MAY  SEEK  AN
ORDER  FROM  THE COURT THAT SOME OR ALL OF THE FORFEITED PENSION BE PAID
FOR THE BENEFIT OF ANY DEPENDENT CHILDREN AS JUSTICE MAY REQUIRE,  AFTER
TAKING  INTO  CONSIDERATION  THE FINANCIAL NEEDS AND RESOURCES AVAILABLE
FOR SUPPORT OF SUCH CHILDREN. FURTHER, IN THE EVENT OF  ANY  FORFEITURE,
SUCH  MEMBER OR RETIRED MEMBER SHALL BE ENTITLED TO A PRO RATA RETURN OF
HIS OR HER CONTRIBUTION PAID INTO THE RELEVANT  RETIREMENT  SYSTEMS,  IN
ANY AMOUNT PROPORTIONATE TO THE AMOUNT OF ANY FORFEITURE, WITHOUT INTER-
EST.
  5.  UPON  MOTION  BY THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL, AS
THE CASE MAY BE, MADE UPON COMMENCEMENT OF OR AT  ANY  TIME  DURING  THE
PENDENCY  OF A FORFEITURE ACTION, PURSUANT TO THE PROCEDURE SET FORTH IN
SUBDIVISION ONE OF SECTION SIX THOUSAND THREE HUNDRED ELEVEN OR  SECTION
SIX THOUSAND THREE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES,
THE  COURT  MAY  ISSUE  A  TEMPORARY  RESTRAINING ORDER OR A PRELIMINARY
INJUNCTION PROHIBITING THE DEFENDANT FROM RECEIVING ANY RIGHTS OR  BENE-
FITS  FROM  THE  APPROPRIATE RETIREMENT SYSTEM. A PRELIMINARY INJUNCTION
MAY BE GRANTED WHERE THE COURT FINDS THAT THERE IS A SUBSTANTIAL  PROBA-
BILITY  THAT  THE  DISTRICT ATTORNEY OR ATTORNEY GENERAL WILL PREVAIL ON
THE ISSUE OF  FORFEITURE.  NO  SHOWING  OF  IRREPARABLE  HARM  SHALL  BE
REQUIRED. THE COURT MAY NOT CONSIDER ON SUCH MOTION ANY ISSUES PRESENTED
TO  THE COURT WHICH HEARD THE CRIMINAL ACTION IN WHICH THE DEFENDANT WAS
CONVICTED OR WHICH  ARISE  OUT  OF  SUCH  CRIMINAL  ACTION  AND  MAY  BE
PRESENTED ON APPEAL.
  6.  ALL  DEFENDANTS  IN  A  FORFEITURE ACTION BROUGHT PURSUANT TO THIS
ARTICLE SHALL HAVE THE RIGHT TO A HEARING.
  7. THE BURDEN OF PROOF SHALL BE UPON  THE  DISTRICT  ATTORNEY  OR  THE
ATTORNEY GENERAL, AS THE CASE MAY BE, TO PROVE BY A PREPONDERANCE OF THE
EVIDENCE THE FACTS NECESSARY TO ESTABLISH A CLAIM OF PENSION FORFEITURE.
  8.  AT  ANY TIME DURING THE PENDENCY OF A FORFEITURE ACTION, THE COURT
MAY DISMISS THE ACTION IF IT FINDS THAT SUCH RELIEF IS WARRANTED BY  THE
EXISTENCE  OF  SOME  COMPELLING  FACTOR,  CONSIDERATION  OR CIRCUMSTANCE
INCLUDING, BUT NOT LIMITED TO, ONE OR MORE OF THE MITIGATING FACTORS SET
FORTH IN SUBDIVISION FOUR OF  THIS  SECTION,  OR  OTHER  INFORMATION  OR
EVIDENCE  WHICH  DEMONSTRATES  THAT  SUCH FORFEITURE WOULD NOT SERVE THE
ENDS OF JUSTICE. THE COURT MAY ORDER THAT SOME OR ALL OF  THE  FORFEITED
PENSION BE PAID FOR THE BENEFIT OF ANY DEPENDENT CHILDREN AS JUSTICE MAY
REQUIRE,  AFTER  TAKING  INTO  CONSIDERATION  THE  FINANCIAL  NEEDS  AND
RESOURCES AVAILABLE FOR SUPPORT OF SUCH CHILDREN.  THE COURT SHALL ISSUE
A WRITTEN DECISION STATING THE BASIS FOR AN  ORDER  ISSUED  PURSUANT  TO
THIS SUBDIVISION.
  9.  UPON  A  FINDING  BY  THE COURT THAT THE DEFENDANT HAS COMMITTED A
COVERED CRIME THAT IS RELATED  TO  THE  PERFORMANCE  OF  OR  FAILURE  TO
PERFORM SUCH DEFENDANT'S OFFICIAL DUTIES AND RESPONSIBILITIES, THE COURT
SHALL  ISSUE  AN  ORDER  TO  THE  APPROPRIATE  RETIREMENT SYSTEM FOR THE
FORFEITURE OR RECOUPMENT OF ALL OR A PORTION OF THE  DEFENDANT'S  RIGHTS

S. 1075                             5

AND  BENEFITS  AS  A MEMBER OR RETIRED MEMBER OF SUCH SYSTEM AND FOR THE
RECOUPMENT OF ALL OR A PORTION OF THE RETIREMENT BENEFITS  PAID  TO  THE
DEFENDANT.  IN  DETERMINING  THE  EXTENT OF THE FORFEITURE OR RECOUPMENT
THAT  IS WARRANTED, THE COURT MAY CONSIDER ONE OR MORE OF THE MITIGATING
FACTORS SET FORTH IN SUBDIVISION FOUR OF THIS SECTION.  ALL  ORDERS  AND
FINDINGS MADE BY THE COURT PURSUANT TO THIS SECTION SHALL BE SERVED UPON
THE CHIEF ADMINISTRATOR OF THE DEFENDANT'S RETIREMENT SYSTEM.
  10. UPON A FINAL DETERMINATION THAT REVERSES OR VACATES THE CONVICTION
OR  CONVICTIONS  OF  A  DESIGNATED  OFFENSE  OR  OFFENSES, THE MEMBER OR
RETIRED MEMBER WHO HAS FORFEITED RETIREMENT RIGHTS AND BENEFITS PURSUANT
TO THIS SECTION  SHALL  HAVE  SUCH  RIGHTS  AND  BENEFITS  RETROACTIVELY
RESTORED  UPON  APPLICATION  TO  THE  COURT  WITH  JURISDICTION OVER THE
FORFEITURE ACTION, REGARDLESS OF  ANY  TEMPORARY  RESTRAINING  ORDER  OR
PRELIMINARY  INJUNCTION WHICH MAY BE OUTSTANDING OR ORDER WHICH MAY HAVE
BEEN ISSUED. SUCH COURT, UPON FINDING THAT SUCH  A  FINAL  DETERMINATION
HAS  OCCURRED,  SHALL ISSUE AN ORDER RETROACTIVELY RESTORING SUCH RIGHTS
AND BENEFITS, TOGETHER WITH SUCH OTHER RELIEF DEEMED APPROPRIATE.
  11. EXCEPT AS OTHERWISE PROVIDED BY THIS ARTICLE, THE  CIVIL  PRACTICE
LAW AND RULES SHALL GOVERN THE PROCEDURE IN ACTIONS COMMENCED UNDER THIS
ARTICLE,  EXCEPT  WHERE  THE  ACTION  IS  REGULATED  BY ANY INCONSISTENT
PROVISIONS HEREIN.
  S 159. MISCELLANEOUS. THE REMEDIES PROVIDED FOR IN  THIS  ARTICLE  ARE
NOT  INTENDED TO SUBSTITUTE FOR, LIMIT OR SUPERSEDE THE LAWFUL AUTHORITY
OF ANY PUBLIC OFFICER, AGENCY OR OTHER PERSON TO ENFORCE ANY OTHER RIGHT
OR REMEDY PROVIDED FOR BY LAW.
  S 2. This act shall take effect immediately.

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Senate Bill S1075

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John J. Flanagan