NY State Senate Bill 2011-S3817

Senate Bill S3817

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

download bill text pdf

Archive: Last Bill Status - Stricken

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

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 14, 2012	recommit, enacting clause stricken
Jan 04, 2012	referred to civil service and pensions
Mar 05, 2011	referred to civil service and pensions

co-Sponsors

2011-S3817 (ACTIVE) - Details

See Assembly Version of this Bill:: A7222
Law Section:: Retirement and Social Security Law
Laws Affected:: Add Art 3-B §§156 - 159, R & SS L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S2663
2015-2016: S3143

2011-S3817 (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-S3817 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S3817

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 by a prosecutor to seek and a
supreme court to order in order for a public employee convicted of
misconduct with a nexus to their public employment to forfeit all or
a portion of their pension.
Procedural protections for the parties including dependents are also
provided.

JUSTIFICATION:

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. 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.

New York State presently has no policy allowing the forfeiture of
pension benefits by a public official who has been convicted of a
crime.
Despite the serious nature of the breach of public trust occasioned
by the offense and despite the clearly proven or admitted abuse of
one's public office, no forfeiture penalty has ever been imposed.

A conviction of a crime related to the betrayal of public trust
carries with it no consequence in their entitlement to public
monies in the form of a pension. This is a gross misuse of public
monies.

Currently there are corrupt public officials who are receiving or
continue to be eligible for their taxpayer funded pensions . They
include the following

* 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.

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."

The purpose of this pension forfeiture statute is to prevent the
bestowing of public tax dollars upon an 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:

2011: This is a new bill.

FISCAL IMPLICATIONS:

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

EFFECTIVE DATE:


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

2011-S3817 (ACTIVE) - Bill Text download pdf

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

                                  3817

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 5, 2011
                               ___________

Introduced  by  Sen.  BALL  --  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:

  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 CLASS A OR CLASS B FELONY OFFENSE;
  (B)  ANY OTHER FELONY OFFENSE, OR ANY ATTEMPT, CONSPIRACY OR SOLICITA-
TION TO COMMIT ANY OTHER SUCH OFFENSE WHERE SUCH ACT HAS  A  DIRECT  AND
ACTUAL  RELATIONSHIP BETWEEN THE CRIMINAL CONDUCT AND THE PERFORMANCE OF
ONE'S STATUTORY OR REGULATORY PUBLIC DUTIES;
  (C) ANY OTHER FELONY OR MISDEMEANOR  COMMITTED  BY  LARCENY,  PERJURY,
FALSE  OR FRAUDULENT STATEMENT OR OMISSION, EXTORTION, BRIBERY, THEFT OR
FAILURE TO ACT WHEN A DUTY TO ACT EXISTS, OR INTENTIONAL CONCEALMENT  OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05392-04-1

S. 3817                             2

SUCH ACTS BY THE PERSON OR ANY OTHER PERSON OR ENTITY WHEN SUCH IS KNOWN
TO THE PUBLIC OFFICIAL, BY WHICH A PUBLIC OFFICER OBTAIN MONEY, GOODS OR
SERVICES  UNDER  FALSE  PRETENSES  AS A RESULT OF FILINGS BY SAID PUBLIC
OFFICER;
  (D)  ANY  CONVICTION  OF A CRIME INVOLVING FALSE, FRAUDULENT OR FORGED
DOCUMENTS INTENDED TO BE MADE PART OF A PUBLIC PROCEEDING OR  RECORD  IN
ORDER TO WILLFULLY ALTER OR MISREPRESENT THE PUBLIC RECORD;
  (E)  ANY  CRIMINAL  OFFENSE  COMMITTED  IN WHOLE IN PART UPON USE OF A
PUBLIC OFFICE, OR A REPRESENTATION IN WORD OR DEED THAT THE ACTOR WAS  A
PUBLIC  OFFICER,  ACTING  UNDER LEGAL AUTHORITY OR COLOR OF LAW, WHETHER
WITHIN OR WITHOUT THE SCOPE OF THE ACTOR'S PUBLIC EMPLOYMENT;
  (F) ANY OFFENSE RELATIVE TO THE CONCEALMENT, OR  OBSTRUCTING  INVESTI-
GATION OF SUCH ACTS LISTED HEREIN; OR
  (G) ANY SUBSTANTIALLY SIMILAR FELONY OFFENSE UNDER THE LAWS OF ANOTHER
STATE OR FEDERAL JURISDICTION AS LISTED IN PARAGRAPHS (A) THROUGH (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.
  8. (A) "NEXUS" SHALL MEAN THAT THE ACT OR OMISSION IS  A  CRIME  WHERE
PUBLIC MONIES WERE IMPROPERLY USED, EXPENDED, OR LOST AND:
  (I)  IS  RELATED  DIRECTLY  TO  THE  PERFORMANCE  OF OR THE FAILURE TO
PERFORM DUTIES AS A PUBLIC OFFICER REQUIRED BY LAW; OR

S. 3817                             3

  (II) HAS AN ACTUAL AND DIRECT RELATIONSHIP BETWEEN  THE  CRIMINAL  ACT
AND  PERFORMANCE OF PUBLIC DUTIES OR ACTUALLY AND DIRECTLY ARISES OUT OF
OR IN CONNECTION WITH PUBLIC SERVICE.
  (B)  NOTWITHSTANDING  PARAGRAPH  (A)  OF  THIS  SUBDIVISION, PERSONAL,
PRIVATE OFFENSES THAT ARE CRIMINAL IN NATURE WHICH ARE NOT IN CONNECTION
WITH THE ADMINISTRATION OF THE  PUBLIC  EMPLOYEE'S  OFFICE  OR  POSITION
SHALL NOT BE CAUSE FOR USE OF THIS ARTICLE.
  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,
AND SUCH CRIME HAS A NEXUS, AS DEFINED IN SUBDIVISION EIGHT  OF  SECTION
ONE  HUNDRED  FIFTY-SEVEN  OF  THIS  ARTICLE,  TO THE PUBLIC OFFICER, AN
ACTION TO FORFEIT THE PENSION OF THE PUBLIC OFFICER MAY BE COMMENCED  IN
SUPREME COURT.
  2. WITHIN SIX MONTHS OF A CONVICTION FOR ANY COVERED CRIME, THE PROSE-
CUTING  AUTHORITY,  WHICH PROSECUTED THE UNDERLYING CRIMINAL CHARGES, OR
THE ATTORNEY GENERAL OF THE STATE MAY INITIATE A SPECIAL  PROCEEDING  IN
THE  SUPREME  COURT  OF  THE  COUNTY IN WHICH THE OFFENSE WAS PROSECUTED
PURSUANT TO THIS SECTION TO SEEK AN ORDER OF THE SUPREME COURT OF  CIVIL
FORFEITURE  OF ALL OR A PORTION OF THE RIGHTS AND BENEFITS TO WHICH SUCH
PERSON IS ENTITLED OR WILL BE ENTITLED TO AS A MEMBER OR RETIRED MEMBER.
  3. NO PROCEEDING SHALL BE BEGUN WITHOUT NOTICE BEING PROVIDED  TO  THE
MEMBER  OF  THE RETIREMENT SYSTEM AT ARRAIGNMENT FOR THE CRIMINAL ACTION
IF PROSECUTED IN THIS STATE OR BY NOTICE  WITHIN  SEVEN  DAYS  PRIOR  TO
DISPOSITION  BY  PLEA OR SENTENCE, IF THE COVERED CRIME IS PROSECUTED IN
ANOTHER JURISDICTION.
  4. NO PROCEEDING SHALL BE BEGUN BY ANY PROSECUTING  AUTHORITY  WITHOUT
NOTICE  BEING PROVIDED TO THE RETIREMENT SYSTEM THAT THE PERSON HAS BEEN
CONVICTED OF A COVERED CRIME.
  5. NO PROCEEDING SHALL BE BEGUN BY ANY PROSECUTING AUTHORITY UNTIL THE
PROSECUTING AUTHORITY HAS SERVED UPON HIM AND WITHIN  TWENTY-FOUR  HOURS
SERVED  UPON THE PERSON CONVICTED OF A COVERED CRIME A FULL STATEMENT OF
THE PENSION RIGHTS AND MONIES TO WHICH THE PERSON MAY BE  ENTITLED  FROM
THEIR SERVICE AS A PUBLIC OFFICER AND SAID SERVICE INFORMATION BE BROKEN
INTO CATEGORIES OF PENSION RIGHTS BASED UPON EACH PUBLIC OFFICE HELD.
  6.  SUBJECT  TO  AN  ORDER  OF  THE COURT FOR PURPOSES OF RESTITUTION,
ORDERED AS PART OF THE UNDERLYING CRIMINAL CASE AND ONLY FOR THE COVERED
CRIME, THE PERSON SHALL BE DELIVERED AT THE TIME OF THE NOTICE FROM  THE
RETIREMENT  SYSTEM, AN AMOUNT OF PRO RATA OF CONTRIBUTIONS PAID INTO THE
RETIREMENT SYSTEMS, UNLESS A COURT SHALL ORDER OTHERWISE.
  7. THE PERSON SUBJECT TO FORFEITURE OF THE  RIGHTS  AND  MONIES  OF  A
PUBLIC  PENSION  SHALL BE SERVED WITH A SUMMONS AND COMPLAINT SPECIFYING
THE COVERED CRIME, THE JURISDICTION, THE AMOUNT OF PENSION IN ISSUE, THE
BASIS FOR SUCH A CLAIM AS TO THAT PORTION OR ENTITY OF THE PENSION.  THE
PERSON  RECEIVING  SUCH  COMPLAINT MAY FILE AN ANSWER OR MOVE TO DISMISS
WITHIN THE TIME PERIOD FOR SUCH ANSWERS IN  A  SPECIAL  PROCEEDING.  THE
COURT  UPON  RECEIPT  OF  THE  MOTION SHALL PROMPTLY HOLD A HEARING. THE
COURT SHALL APPOINT A GUARDIAN AD LITEM FOR ANY DEPENDENT CHILDREN.
  8. THE COURT  SHALL  PERMIT  ANY  DEPENDENT  CHILD,  SPOUSE,  DIVORCED
SPOUSE,  OR PERSON IN SUCH RELATIONSHIP OR CONSANGUINITY OR DOMICILE WHO
SEEKS TO MAKE A CLAIM ON SUCH PENSION AS A RESULT OF ENTITLEMENT TO SUCH
FUNDS HAD THE COVERED CRIME NOT BEEN COMMITTED.  IF SUCH CLAIMANT  PROF-

S. 3817                             4

ITED  OR  BENEFITED  KNOWINGLY  FROM SUCH COVERED CRIME AND THE COURT SO
FINDS THEN THE COURT MAY EXTINGUISH ANY CLAIM UPON MOTION OF ANY PARTY.
  9.  THE  BURDEN  OF PROOF IN ALL MATTERS SHALL BE UPON THE PROSECUTING
AUTHORITY WHO INITIATES THE ACTION.
  10. THE PERSON SUBJECT TO THE FORFEITURE PROCEEDING RETAINS  THE  SAME
RIGHTS  AS  IN A CRIMINAL TRIAL. SHOULD THE PERSON ELECTED TO TESTIFY IN
HIS OWN BEHALF, NOTHING SAID IN THE PROCEEDING MAY BE USED  AGAINST  HIM
UPON  APPEAL OR RETRIAL OF SUCH A COVERED CRIME, IF A COURT OF COMPETENT
JURISDICTION VACATED OR REVERSES THE CONVICTION FOR A COVERED CRIME.
  11. FORFEITURE OF THE WHOLE OR ANY PART MAY  BE  ORDERED  SOLELY  UPON
CLEAR AND CONVINCING EVIDENCE.
  12. THE COURT SHALL MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW.
  13.  (A)  THE COURT SHALL CONSIDER THE FOLLOWING FACTORS IN REACHING A
DETERMINATION:
  (I) THE NATURE OF THE OFFENSE IN TERMS OF DURATION AND ACTS.
  (II) THE SERIOUSNESS OF THE OFFENSE, MEASURED BY THE AMOUNT OF  PUBLIC
MONIES  ACTUALLY  MISAPPROPRIATED  OR  DIRECTLY  LOST AS A RESULT OF THE
COVERED CRIME.
  (III) THE RELATIONSHIP OF THE OFFENSE TO THE PUBLIC OFFICE.
  (IV) THE PUBLIC OFFICE WHICH THE  PERSON  HELD  AT  THE  TIME  OF  THE
OFFENSE.
  (V) MEMBERS OF THE PUBLIC DIRECTLY AFFECTED BY THE COVERED CRIME.
  (VI)  THE  LEVEL  OF WILLFULNESS OR MALICE OR OTHER CULPABILITY IN THE
COMMISSION OF THE COVERED CRIME.
  (VII) ANY GOOD FAITH EFFORT TO MITIGATE OR PREVENT THE HARM CAUSED  BY
THE OFFENSE.
  (VIII) WHETHER THE PERSON PLEADED GUILTY OR NOT.
  (IX)  WHETHER  THE  PERSON  OBSTRUCTED,  IMPEDED  OR CONCEALED MATTERS
DURING OR IN THE COURSE OF INVESTIGATION, TRIAL OR INSTANT PROCEEDING.
  (X) WHETHER THE PERSON ACTED OUT OF DURESS,  COERCION  OR  INDUCEMENT,
NOT SUFFICIENT TO BE A DEFENSE UNDER THE PENAL LAW.
  (XI) THE LENGTH OF PUBLIC SERVICE AND THE OFFICES HELD.
  (XII)  THE NUMBER OF YEARS OF PUBLIC SERVICE BY THE PERSON WITHOUT ANY
CRIMINAL CONDUCT.
  (XIII) THE DIRECT PECUNIARY BENEFIT TO THE PERSON, IF ANY.
  (XIV) THE EXTENT TO WHICH THE PENSION OF THE PERSON HAS VESTED.
  (XV) ANY AMOUNTS PREVIOUSLY PAID OUT OF THE PENSION.
  (XVI) ANY OTHER PUBLIC SERVICE, IN ANY OTHER FORM  NOT  COVERED  BY  A
PENSION SYSTEM.
  (XVII) THE AVAILABILITY AND ADEQUACY OF OTHER PENAL SANCTIONS.
  (XVIII) ANY AND ALL PERSONAL CIRCUMSTANCES OF THE PERSON WHICH BEAR ON
THE JUSTNESS OR NEED FOR FORFEITURE.
  (XIX) ANY AND ALL OTHER MATTERS THAT JUSTICE REQUIRES.
  (B)  NO  ONE  OF  THESE  FACTORS SHALL BE CONCLUSIVE AND NONE SHALL BE
OMITTED.
  (C) THE COURT SHALL ALSO CONSIDER ANY MITIGATING FACTOR SET  FORTH  BY
ANY PARTY OPPOSING FORFEITURE, WITHOUT LIMITATION.
  (D) THE COURT SHALL CONSIDER AND MAKE A SPECIFIC FACTUAL FINDING AS TO
THE EXTENT TO WHICH THE PERSON'S FAMILY INCLUDING EACH CHILD OR CHILDREN
IS  DEPENDENT  UPON  SAID  PERSON  AND THE EXTENT TO WHICH THE FAMILY IS
DEPENDENT UPON OR EXPECTED TO BE DEPENDENT UPON SUCH PENSION,  INCLUDING
ANY EVIDENCE OF PLANNING BY SUCH FAMILY.
  14.  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

S. 3817                             5

FORTH IN THIS SECTION, OR OTHER INFORMATION  OR  EVIDENCE  WHICH  DEMON-
STRATES  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.
  15. UPON A FINDING BY THE SUPREME COURT AFTER A FULL  HEARING  THAT  A
PORTION,  A  PRO  RATA  OR  AN  ENTIRE PENSION SHALL BE FORFEITED TO THE
STATE, THE COURT SHALL ISSUE AN  ORDER  TO  THE  APPROPRIATE  RETIREMENT
SYSTEM  FOR  FORFEITURE OF SUCH PORTION OR ENTIRETY OF THE PENSION, LESS
ANY ADJUSTMENTS OR MODIFICATIONS IN THE TERMS THEREOF TO  PROTECT  THIRD
PARTY  INTERESTS  FOUND  BY  THE  COURT AND SHALL CAUSE SUCH ORDER TO BE
SERVED UPON THE PERSON SUBJECT TO THE ORDER, THIRD PARTIES ADVERSELY  OR
OTHERWISE  EFFECTED BY THE ORDER, THE PROSECUTION AND THE CHIEF ADMINIS-
TRATOR OF THE APPROPRIATE RETIREMENT SYSTEM.
  16. ALL PARTIES SHALL HAVE THE SAME APPELLATE RIGHTS AS IN  ANY  CIVIL
ACTION. IN THE EVENT OF AN APPEAL, ANY PARTY WHO SHALL SEEK A STAY PEND-
ING APPEAL SHALL HAVE IT GRANTED FOR GOOD CAUSE SHOWN.
  17.  UPON  A FINAL DETERMINATION THAT REVERSES OR VACATES A CONVICTION
OF A COVERED OFFENSE AND WHERE THERE HAS BEEN A DECISION FORFEITING  ALL
OR  A PORTION OF THE PENSION BASED UPON SUCH CONVICTION, THE PROSECUTION
SHALL NOTIFY THE APPROPRIATE RETIREMENT SYSTEM OF THE REVERSAL OR  VACA-
TUR,  NOTIFY  THE  COURT  THAT  ISSUED OR IS HEARING AN APPEAL FROM SUCH
ORDER OF FORFEITURE FORTHWITH AND SEEK A VACATUR OF THE ORDER OF FORFEI-
TURE. UPON THE REVERSAL OR  VACATUR  OF  THE  CONVICTION  OF  A  COVERED
OFFENSE,  THE RIGHTS, PRIVILEGES AND BENEFITS OF THE APPROPRIATE PENSION
SYSTEM SHALL BE IMMEDIATELY RESTORED TO  THE  PERSON  AND  ANY  AND  ALL
ORDERS RESTRICTING OR INTERFERING WITH SUCH PENSION SHALL BE VOIDED.
  18.  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 and shall only apply to
those members who initially join the retirement system on or after  such
effective date.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Senate Bill S3817

Share this bill

Sponsored By

Greg Ball