Provides that an elected official shall forfeit his or her retirement rights and benefits if he or she is convicted of or pleads to certain crimes

Section (156) defines several key terms of the bill, including that of 'covered crime,' which stipulates that any felony offense, other than mail fraud, committed by a defendant during his or her tenure as an elected official, where there was knowledge and intent on the part of the defendant to commit such crime, shall elicit initiation of a pension forfeiture proceeding.

Section (157) is divided into ten subsections:

I. Pension Forfeiture

Sub-section one allows the District Attorney, or the Attorney General in cases where the Attorney General brought the initial criminal charge, to initiate an action in Supreme Court for the forfeiture of those rights and benefits to which the defendant is, or will be entitled to, as an elected official belonging to any state or city retirement system, when he or she is convicted of, pleads guilty to, pleads nolo contender to, or pleads guilty to pursuant to subdivision two of section 220.10 of the criminal procedure law, any covered crime where the commission of such crime is related to the performance of, or failure to perform, the elected official's duties and responsibilities.

This sub-section specifically defines an action relating to the performance, or failed performance, of a member's official duties and responsibilities as:

a) one constituting a material violation of the elected official's duties and responsibilities as a public servant

b) one committed in the course of an individual's public employment

c) one involving the use of public personnel or resources

d) one involving an individual's misrepresentation of his or her actual official powers, duties and responsibilities

e) one involving actions or conduct by which such individual indicated or conveyed that he or she was acting with the authority of, or under color of the authority of, any governmental entity, even when such action is committed outside the scope of the individual's official duties or responsibilities. Such forfeiture shall only apply to that portion of the defendant's rights and benefits derived from his or her employment as an elected official, and the pension forfeiture proceedings shall begin no later than six months after the original 'covered' conviction.

II. Notice of Applicability

Sub-division two requires the District Attorney or the Attorney General, as the case may be, to provide notice to the chief administrator of the retirement system that, in their belief, the felony committed was in fact a covered crime as defined by section 156 of this act, and that the crime was related to the elected official's duties and responsibilities. Within twenty days of such notice, the chief administrator shall be required to submit a 'notice of applicability' confirming the convicted member's participation in a public retirement system and delineating the rights and benefits to which the member is or will be entitled to that specifically resulted from such person's employment as an elected official.

III. Remittance for Dependant Children

Sub-division three states that a forfeiture proceeding cannot be initiated until the District Attorney or the Attorney General have received the 'notice of applicability,' and also allows the District Attorney or Attorney General to seek an order from the court remitting some or all of the forfeited pension to be paid for the support of any dependant children, in taking in to consideration the financial needs and resources available for the support of such child.

IV. Petition for Preliminary Injunction

Sub-division four grants the District Attorney or Attorney General, when it is reasonably clear that he will prevail on the issue of forfeiture, the authority to petition the court for a temporary restraining order or a preliminary injunction prohibiting the defendant from receiving any rights or benefits from the appropriate retirement system. In reviewing the petition, 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, or subject to an appeal.

V. Defendant's Right to a Hearing

Sub-division five grants all defendants in a forfeiture action brought pursuant to this article the right to a hearing.

VI. Burden of Proof

Sub-division six requires the District Attorney or Attorney General to prove by clear and convincing evidence both the facts necessary to legitimize a claim of pension forfeiture, and that the elected official knowingly and intentionally committed the covered crime.

VII. Dismissal and Remittance for Dependant Children

Sub-division seven allows the court to dismiss any pending forfeiture action if it finds that such relief is warranted by the existence of some compelling factor, consideration or circumstance which demonstrates that such forfeiture would not serve the ends of justice. Similar to the plaintiffs right under sub-division three of this section, the court may order that some or all of the forfeited pension to be paid for the support of any dependant children, in taking in to consideration the financial needs and resources available for the support of such child. The court is required to issue a written decision stating the basis for an order issued pursuant to this subdivision. VIII. Issue of Ruling

Sub-division eight states that upon a finding by the court that the defendant has committed the covered crime relating to the performance of, or failure to perform such elected official's duties and responsibilities, and that there was clear and convincing evidence that the defendant/elected official knowingly and intentionally committed the covered felony crime, the court shall issue an order to the appropriate retirement system's chief administrator for the forfeiture of the defendant's rights and benefits as a member or retired member of such system.

IX. Reinstatement of Benefits

In the event a conviction of a covered crime is overturned, the 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.

Section (158) stipulates that the remedies provided for in this article are not intended to substitute for, limit or supersede the lawful authority of any other entity to enforce other rights or remedies provided for by law.

Section (2) provides for the effective date.

Justification

When elected officials participate in egregious and criminal conduct in the performance of their official duties and responsibilities, they are sacrificing the public's trust in its government and the confidence the public has in government's ability to secure the public's best interest. Elected officials perform their duties and responsibilities with the public's confidence, and felony offenders that take advantage of such authority and exploit that confidence should not be entitled to the benefits derived from occupying such a position.

Legislative history

2007-2008: A.6897

Fiscal implications

None.

Effective date

This act shall take effect on the ninetieth (90) day after it shall have become law, and shall only apply to acts committed by elected officials on or after such date.