S T A T E   O F   N E W   Y O R K
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                                   244

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  M.  of  A.  PAULIN,  GALEF, HOYT, SCHIMMINGER, JAFFEE --
  Multi-Sponsored by -- M.  of A. BING, BOYLAND, CLARK, COLTON,  MAISEL,
  PHEFFER,  ROSENTHAL,  SWEENEY, THIELE -- read once and referred to the
  Committee on Governmental Employees

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 ELECTED OFFICIALS
SECTION 156. DEFINITIONS.
        157. PENSION FORFEITURE.
        158. MISCELLANEOUS.
  S 156. 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 AN ELECTED OFFICIAL AGAINST WHOM  A  FORFEI-
TURE ACTION IS COMMENCED.
  2.  "COVERED  CRIME"  SHALL  MEAN  ANY FELONY OFFENSE, OTHER THAN MAIL
FRAUD, COMMITTED BY A DEFENDANT DURING HIS OR HER TENURE AS  AN  ELECTED
OFFICIAL  AND  WHERE  THERE  WAS KNOWLEDGE AND INTENT ON THE PART OF THE
DEFENDANT TO COMMIT SUCH CRIME.
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00756-01-1
              

A. 244                              2

RESPECT  TO THE OTHER PUBLIC RETIREMENT SYSTEMS AND PENSION FUNDS OF THE
STATE AND THE CITY OF NEW YORK.
  4.  "MEMBER"  SHALL MEAN ANY ELECTED OFFICIAL WHO BELONGS TO ANY STATE
OR CITY RETIREMENT SYSTEM.
  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 ANY RETIREMENT SYSTEM OF THE STATE
OF NEW YORK OR OF THE CITY OF NEW YORK.
  7. "DEPENDENT CHILDREN" SHALL INCLUDE:
  (A) ANY CHILD OF AN ELECTED OFFICIAL, WHERE SUCH CHILD  IS  UNDER  AGE
NINETEEN;
  (B)  ANY  UNMARRIED DEPENDENT CHILD OF AN ELECTED OFFICIAL, REGARDLESS
OF SUCH CHILD'S AGE, WHERE SUCH CHILD IS  INCAPABLE  OF  SELF-SUSTAINING
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 ELECTED OFFICIAL, WHERE SUCH CHILD IS AT
AN  ACCREDITED  INSTITUTION  OF  HIGHER  LEARNING  AND  IS   UNDER   AGE
TWENTY-THREE.
  S  157.  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 SUBDIVISION TWO OF SECTION ONE HUNDRED
FIFTY-SIX 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 RESPONSIBILITIES AS AN ELECTED OFFICIAL,  AN  ACTION
SHALL  BE  COMMENCED  IN  SUPREME  COURT BY THE DISTRICT ATTORNEY HAVING
JURISDICTION OVER THE OFFENSE, OR BY THE ATTORNEY GENERAL IF THE  ATTOR-
NEY  GENERAL  BROUGHT THE UNDERLYING CRIMINAL CHARGE, FOR THE FORFEITURE
OF THOSE RIGHTS AND BENEFITS TO WHICH SUCH PERSON IS OR WILL BE ENTITLED
AS A MEMBER OR RETIRED MEMBER. 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.  SUCH ACTION SHALL BE COMMENCED WITH-
IN 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.   PRIOR TO COMMENCEMENT OF SUCH ACTION DESCRIBED IN SUBDIVISION ONE
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

A. 244                              3

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
PORTION  OF  SUCH RIGHTS AND BENEFITS TO WHICH SUCH PERSON IS OR WILL BE
ENTITLED TO FROM SUCH PUBLIC RETIREMENT SYSTEM THAT RESULTED  FROM  SUCH
PERSON'S EMPLOYMENT AS AN ELECTED OFFICIAL.
  3.  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 TWO OF THIS SECTION.  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.
  4. 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.
  5. ALL DEFENDANTS IN A FORFEITURE  ACTION  BROUGHT  PURSUANT  TO  THIS
ARTICLE SHALL HAVE THE RIGHT TO A HEARING.
  6.  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.
THE  DISTRICT  ATTORNEY OR THE ATTORNEY GENERAL MUST, AT THE TIME OF THE
HEARING, PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT KNOW-
INGLY AND INTENTIONALLY COMMITTED THE COVERED CRIME.
  7. 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  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.

A. 244                              4

  8.  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 AS AN
ELECTED OFFICIAL, AND A FINDING THAT  THERE  WAS  CLEAR  AND  CONVINCING
EVIDENCE  THAT  THE  DEFENDANT  -  ELECTED OFFICIAL KNOWINGLY AND INTEN-
TIONALLY COMMITTED THE COVERED FELONY CRIME, THE COURT  SHALL  ISSUE  AN
ORDER  TO  THE  APPROPRIATE  RETIREMENT SYSTEM FOR THE FORFEITURE OF THE
DEFENDANT'S RIGHTS AND BENEFITS AS A MEMBER OR RETIRED  MEMBER  OF  SUCH
SYSTEM AND FOR THE RECOUPMENT OF ALL THE RETIREMENT BENEFITS PAID TO THE
DEFENDANT.    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.
  9.  UPON A FINAL DETERMINATION THAT REVERSES OR VACATES THE CONVICTION
OR CONVICTIONS OF A COVERED CRIME, 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  FIND-
ING  THAT  SUCH A FINAL DETERMINATION HAS OCCURRED, SHALL ISSUE AN ORDER
RETROACTIVELY RESTORING SUCH RIGHTS AND  BENEFITS,  TOGETHER  WITH  SUCH
OTHER RELIEF DEEMED APPROPRIATE.
  10.  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  158.  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 on the ninetieth day after it shall
have become a law and shall only apply  to  acts  committed  by  elected
officials on or after such date.