S T A T E O F N E W Y O R K
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3143
2015-2016 Regular Sessions
I N S E N A T E
February 2, 2015
___________
Introduced by Sen. FUNKE -- 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; and to repeal article 3-B
of such law relating to pension forfeiture for public officials
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Article 3-B of the retirement and social security law is
REPEALED and a new article 3-B is added to read as follows: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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06465-01-5
S. 3143 2
FAILURE TO ACT WHEN A DUTY TO ACT EXISTS, OR INTENTIONAL CONCEALMENT OF
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. 3143 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. 3143 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. 3143 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.