NY State Senate Bill 2011-S416

Senate Bill S416

2011-2012 Legislative Session

Prohibits the receipt of pension benefits by an elected official who has been convicted of certain criminal conduct and provides for the return of retirement contrib

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Archive: Last Bill Status - In Senate Committee Civil Service And Pensions 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 civil service and pensions
Jan 05, 2011	referred to civil service and pensions

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2011-S416 (ACTIVE) - Details

Current Committee:: Senate Civil Service And Pensions
Law Section:: Retirement and Social Security Law
Laws Affected:: Add Art 3-B §§156 - 159, R & SS L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S1733
2013-2014: S3421
2015-2016: S2680

2011-S416 (ACTIVE) - Summary

Prohibits the receipt of pension benefits by an elected official who has been convicted of a designated felony offense relating to such person's performance of official duties or responsibilities; and defines terms; provides for the return of retirement contributions made by the official.

2011-S416 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S416

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 a
felony related to public employment

PURPOSE:

Prohibits the receipt of pension benefits when any elected official
engages in criminal conduct in relation to that office while earning
the pension. If the public officer is convicted of a crime involved
with the performance of his or her public duties, then those pension
benefits are ill-gotten gains. The taxpayers must not bear any costs
of illegal activities, let alone from a person held to the highest
standard of trust.

SUMMARY OF PROVISIONS:

* Adds a new Article 3-B to the retirement and social security law.

* Defines "Defendant", "Designated Felony Offense", "Comptroller",
"Member", "Retired member", "Retirement system".

* A member or retired member who is convicted of a designated felony
offense related to the performance or failure to perform official
duties and responsibilities may have an action commenced in supreme
court by the district attorney for the forfeiture of all or a portion
of those rights and benefits to which such person is entitled.

* The district attorney may consider mitigating factors when
determining whether to seek forfeiture of a portion rather than all
of member's retirement benefits.

* A final determination that reverses or vacates the conviction of a
member shall direct that such rights and benefits be retroactively
restored.

* Returns any pension contributions made by the convicted held by the
public retirement system.

JUSTIFICATION:

Criminal behavior by elected officials cannot be tolerated. To help
restore public confidence in elected officials in state government,
steps must be initiated that will hold elected officials to the highest
degree of accountability. It is the responsibility of this
Legislature, in conjunction with the Executive, to enact laws that
strongly discourage illegal behavior by those persons elected to hold
the public trust.

When an elected official is sworn into office, he or she must sign a
solemn Oath, stating that they will uphold the laws and the
Constitutions that govern us. This Oath sets the highest standard for


integrity, the public's trust. A violation of that trust, while in
office, demands pecuniary as well as criminal costs.

An elected public officer who abuses the power and influence of his or
her position should face significant sanctions. In addition to any
criminal penalty imposed by a court of competent jurisdiction, any
elected official who is convicted of a felony shall forfeit the
pension credits earned during the commission of the crime to which he
or she is convicted.

FISCAL IMPLICATIONS:

There could be a resulting decrease in the fiscal obligations of the
New York State and Local Employee's Retirement System. The amount of
the decrease would be the,present value of all such forfeited benefit
payments.

EFFECTIVE DATE:

This act shall take effect immediately.

2011-S416 (ACTIVE) - Bill Text download pdf

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

                                   416

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sens.  KRUEGER, DUANE -- 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
  a felony 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 CORRUPTION 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 CORRUPTION 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.  "DESIGNATED FELONY OFFENSE" SHALL MEAN: (A) ANY FELONY OFFENSE SET
FORTH IN THE PENAL LAW; (B) A CONSPIRACY TO COMMIT  ANY  FELONY  OFFENSE
SET FORTH IN THE PENAL LAW; OR (C) ANY CRIMINAL OFFENSE COMMITTED IN ANY
OTHER  STATE, DISTRICT, OR TERRITORY OF THE UNITED STATES AND CLASSIFIED
AS A FELONY THEREIN, WHICH IF COMMITTED WITHIN THIS STATE, WOULD CONSTI-
TUTE AN OFFENSE DESIGNATED IN PARAGRAPH (A) OR (B) OF THIS SUBDIVISION.

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

                                                           LBD00870-01-1

S. 416                              2

  3. "COMPTROLLER" SHALL MEAN THE COMPTROLLER OF THE STATE OF  NEW  YORK
IN  HIS OR HER CAPACITY AS ADMINISTRATIVE HEAD OF THE NEW YORK STATE AND
LOCAL EMPLOYEES' RETIREMENT SYSTEM AND THE  NEW  YORK  STATE  AND  LOCAL
POLICE AND FIRE RETIREMENT SYSTEM.
  4.  "MEMBER"  SHALL  MEAN  A  MEMBER  OF  THE NEW YORK STATE AND LOCAL
EMPLOYEES' RETIREMENT SYSTEM OR THE NEW YORK STATE AND LOCAL POLICE  AND
FIRE  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 OR THE NEW YORK STATE AND LOCAL POLICE AND FIRE
RETIREMENT SYSTEM.
  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 ANY
DESIGNATED FELONY OFFENSE SET FORTH IN PARAGRAPH (A) OR (B) OF  SUBDIVI-
SION TWO OF SECTION ONE HUNDRED FIFTY-SEVEN OF THIS ARTICLE, THE COMMIS-
SION  OF  WHICH IS RELATED TO THE PERFORMANCE OR FAILURE TO PERFORM SUCH
MEMBER OR RETIRED MEMBER'S  OFFICIAL  DUTIES  AND  RESPONSIBILITIES,  AN
ACTION MAY BE COMMENCED IN SUPREME COURT BY THE DISTRICT ATTORNEY HAVING
JURISDICTION  OVER THE OFFENSE 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 PROVIDED THAT ANY CONTRIBUTIONS MADE  BY  THE
OFFICIAL TO HIS OR HER RETIREMENT SYSTEM SHALL NOT BE SUBJECT TO FORFEI-
TURE,  BUT  SHALL  BE  RETURNED TO SUCH OFFICIAL.   SUCH ACTION SHALL BE
COMMENCED WITHIN SIX MONTHS OF SUCH CONVICTION.  FOR  PURPOSES  OF  THIS
ARTICLE,  A  DESIGNATED  FELONY OFFENSE IS RELATED TO THE PERFORMANCE OR
FAILURE TO PERFORM SUCH MEMBER OR RETIRED MEMBER'S OFFICIAL  DUTIES  AND
RESPONSIBILITIES  IF  IT:   (A) CONSTITUTED A MATERIAL VIOLATION OF SUCH
MEMBER OR RETIRED MEMBER'S DUTIES AND RESPONSIBILITIES AS A PUBLIC SERV-
ANT; OR (B) 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 GOVERNMENTAL ENTITY.
  2.  WHERE THE ATTORNEY GENERAL FINDS THAT A MEMBER OR A RETIRED MEMBER
HAS BEEN CONVICTED OF A DESIGNATED FELONY OFFENSE AS  DEFINED  IN  PARA-
GRAPH  (C) OF SUBDIVISION TWO OF SECTION ONE HUNDRED FIFTY-SEVEN OF THIS
ARTICLE, THE COMMISSION OF WHICH IS RELATED TO THE PERFORMANCE OR  FAIL-
URE  TO  PERFORM  SUCH  MEMBER  OR  RETIRED MEMBER'S OFFICIAL DUTIES AND
RESPONSIBILITIES, AN ACTION MAY BE COMMENCED IN  SUPREME  COURT  BY  THE
ATTORNEY  GENERAL 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 COMPTROLLER STATING THAT
HE OR SHE HAS REASON TO BELIEVE THAT THE PERSON CONVICTED COMMITTED  THE
FELONY  RELATED  TO  HIS  OR  HER  OFFICIAL DUTIES AND RESPONSIBILITIES.
WITHIN TWENTY DAYS OF RECEIPT OF  SUCH  NOTICE,  THE  COMPTROLLER  SHALL
SUBMIT  A NOTICE OF APPLICABILITY TO THE DISTRICT ATTORNEY OR THE ATTOR-
NEY GENERAL AS THE CASE  MAY  BE.  THE  NOTICE  OF  APPLICABILITY  SHALL
CONTAIN  A  STATEMENT  SPECIFYING WHETHER THE PERSON CONVICTED IS OR HAS

S. 416                              3

BEEN A MEMBER OR RETIRED MEMBER OF THE NEW YORK STATE AND LOCAL  EMPLOY-
EES'  RETIREMENT  SYSTEM OR THE NEW YORK STATE AND LOCAL POLICE AND FIRE
RETIREMENT SYSTEM AND SHALL DESCRIBE THE RIGHTS AND  BENEFITS  TO  WHICH
SUCH PERSON IS OR WILL BE ENTITLED 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
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.
  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 SIXTY-THREE HUNDRED ELEVEN OR SECTION  SIXTY-
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 BENEFITS FROM THE
APPROPRIATE  RETIREMENT  SYSTEM. A PRELIMINARY INJUNCTION MAY BE GRANTED
WHERE THE COURT FINDS THAT THERE IS A SUBSTANTIAL PROBABILITY  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 TRIAL BY JURY ON ANY ISSUE OF FACT.
  7. THE BURDEN OF PROOF SHALL BE UPON  THE  DISTRICT  ATTORNEY  OR  THE
ATTORNEY  GENERAL,  AS THE CASE MAY BE, TO PROVE BY CLEAR AND CONVINCING
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 SHALL ISSUE A WRITTEN DECISION STATING THE
BASIS FOR AN ORDER ISSUED PURSUANT TO THIS SUBDIVISION.
  9. (A) UPON A FINDING BY THE COURT THAT THE DEFENDANT HAS COMMITTED  A
FELONY  IN  CONNECTION  WITH HIS OR HER OFFICIAL DUTIES AND RESPONSIBIL-
ITIES IN THIS STATE, THE COURT SHALL ISSUE AN ORDER TO  THE  APPROPRIATE
RETIREMENT  SYSTEM  FOR:    (I) THE FORFEITURE OR RECOUPMENT OF ALL OR A
PORTION OF THE DEFENDANT'S RIGHTS AND BENEFITS AS A  MEMBER  OR  RETIRED
MEMBER  OF  SUCH  SYSTEM; (II) THE RECOUPMENT OF ALL OR A PORTION OF THE
RETIREMENT BENEFITS PAID TO THE DEFENDANT; AND (III) THE REFUND  TO  THE
DEFENDANT  OF  ANY CONTRIBUTIONS MADE BY THE DEFENDANT TO THE RETIREMENT

S. 416                              4

SYSTEM FOR ANY PERIOD FOR WHICH THE DEFENDANT'S RIGHTS AND BENEFITS AS A
MEMBER OR RETIRED MEMBER OF SUCH RETIREMENT  SYSTEM  HAVE  BEEN  ORDERED
FORFEIT.
  (B)  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
COMPTROLLER.
  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.  AS  A
CONDITION TO FULL RESTORATION OF RIGHTS AND BENEFITS AS PROVIDED IN THIS
SUBDIVISION, THE MEMBER OR RETIRED MEMBER SHALL REIMBURSE THE RETIREMENT
SYSTEM FOR ANY CONTRIBUTIONS THAT WERE REFUNDED TO THE MEMBER OR RETIRED
MEMBER  PURSUANT  TO THE PROVISIONS OF PARAGRAPH (A) OF SUBDIVISION NINE
OF THIS SECTION.
  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 OF THIS SECTION.  IN SUCH ACTIONS, THE COURT MAY NOT CONSIDER
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.
  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 S416

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