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

Summary of provisions

Section one - Amends the retirement and social security law by adding new sections 156, 157 and 158 to new article 3-B, that establish the procedure and guidelines for forfeiture of retirement benefits for elected officials convicted of a felony.

Section 156 provides definitions, such as "covered crime" which provides 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 provides that the District Attorney, or the Attorney General in cases where the Attorney General brought the initial criminal charge, shall 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 a crime 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.

Sub-section one also defines an action relating to the performance, or failed performance, of a member's official duties and responsibilities as one: a) constituting a material violation of the elected official's duties and responsibilities as a public servant; b) committed in the course of an individual's public employment; c) involving the use of public personnel or resources; d) involving an individual's misrepresentation of his or her actual official powers; duties and responsibilities; e) 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-section two requires the District Attorney or the Attorney General, depending on the case, 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.

III. Remittance for Dependant Children

Sub-section three provides that a forfeiture proceeding cannot be initiated until the District Attorney or the Attorney General have received the 'notice of applicability', and also provides that the District Attorney or Attorney General shall be allowed 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, taking into consideration the financial needs and resources available for the support of such child.

IV. Petition for Preliminary injunction

Sub-section four provides that the District Attorney or Attorney General, when it is reasonably clear that he will prevail on the issue of forfeiture, has 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 in a 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-section five provides that all defendants in a forfeiture actions brought pursuant to this article have the right to a hearing.

VI. Burden of Proof

Sub-section six provides that the District Attorney or Attorney General is required to prove by clear and convincing evidence that the facts support 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-section seven provides that the court may 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 the entire 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-section eight provides 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

Sub-section nine provides that 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 of proper jurisdiction.

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

Section 2 provides the effective date.

Justification

When elected officials, in the performance of their official duties and responsibilities, participate in egregious and criminal conduct, they are exploiting both the public's trust in government and the public's belief that officials are acting in their best interest. Elected officials should perform their duties and responsibilities with the public's confidence. Officials who commit felony offenses and use that confidence to their illegal advantage should not be entitled to the benefits derived from their office.

Legislative history

2010, A.9401 referred to governmental employees. Same as: 2010, S.4947 (Oppenheimer) referred to civil service and pensions committee. 2009, A.3176 (Bradley) referred to governmental employees committee. Same as: 2009, S.4947 (Oppenheimer) referred to civil service and pensions committee.

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.