Senate Bill S8036

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8036
 
                             I N  S E N A T E
 
                              March 21, 2018
                                ___________
 
 Introduced  by  Sen.  CROCI  -- 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
   pension forfeiture for public officers under section 7 of article 5 of
   the state constitution
 
   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 section 157-a to read as follows:
   § 157-A. PENSION FORFEITURE OF PUBLIC OFFICERS. 1. NOTWITHSTANDING ANY
 OTHER LAW TO THE CONTRARY, IT SHALL BE A TERM AND CONDITION  OF  MEMBER-
 SHIP  FOR  EVERY  PUBLIC OFFICER, AS DEFINED IN SECTION SEVEN OF ARTICLE
 FIVE OF THE STATE CONSTITUTION,  WHO  IS  A  MEMBER  OF  ANY  RETIREMENT
 SYSTEM,  THAT  SUCH PUBLIC OFFICER'S RIGHTS TO A PENSION IN A RETIREMENT
 SYSTEM THAT ACCRUE IN SUCH RETIREMENT SYSTEM AFTER HIS OR  HER  DATE  OF
 INITIAL  MEMBERSHIP  IN  THE  RETIREMENT  SYSTEM SHALL BE SUBJECT TO THE
 PROVISIONS OF THIS ARTICLE.
   2. IN THE CASE OF A PUBLIC OFFICER WHO STANDS CONVICTED,  BY  PLEA  OF
 NOLO  CONTENDERE  OR PLEA OF GUILTY TO, OR BY CONVICTION AFTER TRIAL, OF
 ANY FELONY WHICH HAS A DIRECT AND ACTUAL RELATIONSHIP TO THE PERFORMANCE
 OF THE PUBLIC OFFICER'S EXISTING DUTIES, AN ACTION SHALL BE COMMENCED IN
 SUPREME COURT OF THE COUNTY IN WHICH SUCH PUBLIC OFFICER  WAS  CONVICTED
 OF  SUCH FELONY CRIME, BY THE DISTRICT ATTORNEY HAVING JURISDICTION OVER
 SUCH CRIME, OR BY THE ATTORNEY GENERAL IF THE ATTORNEY  GENERAL  BROUGHT
 THE CRIMINAL CHARGE WHICH RESULTED IN SUCH CONVICTION. IF THE CONVICTION
 WAS  SECURED  IN FEDERAL COURT THEN THE ACTION SHALL BE COMMENCED BY THE
 ATTORNEY GENERAL IN ALBANY COUNTY SUPREME COURT. THE ACTION SHALL BE FOR
 AN ORDER TO REDUCE OR REVOKE THE PENSION TO WHICH SUCH  PUBLIC  OFFICIAL
 IS  OTHERWISE  ENTITLED  FOR SERVICE AS A PUBLIC OFFICER. SUCH COMPLAINT
 SHALL SPECIFY WITH PARTICULARITY WHICH FELONY THE DEFENDANT HAS  COMMIT-
 TED,  AND  ALL  OTHER  FACTS THAT ARE ALLEGED TO QUALIFY SUCH CRIME AS A
 FELONY CRIME WHICH HAS A DIRECT AND ACTUAL RELATIONSHIP TO THE  PERFORM-
 ANCE  OF  THE  PUBLIC  OFFICER'S  EXISTING  DUTIES  SUBJECT  TO  PENSION
 REDUCTION OR REVOCATION PURSUANT TO SECTION SEVEN OF ARTICLE FIVE OF THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD14011-06-8

 S. 8036                             2

 STATE CONSTITUTION, AND THE AMOUNT OF PENSION  REDUCTION  OR  REVOCATION
 REQUESTED.  SUCH  ACTION SHALL BE COMMENCED WITHIN SIX MONTHS AFTER SUCH
 CONVICTION.
   3.  BEFORE  COMMENCING  AN ACTION DESCRIBED IN SUBDIVISION TWO OF THIS
 SECTION, THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL, AS THE CASE  MAY
 BE, SHALL SERVE WRITTEN NOTICE ON THE CHIEF ADMINISTRATOR OF THE DEFEND-
 ANT'S  RETIREMENT  SYSTEM  STATING  THAT HE OR SHE HAS REASON TO BELIEVE
 THAT THE PERSON CONVICTED COMMITTED THE CRIME RELATED TO  PUBLIC  OFFICE
 IN  THE PERFORMANCE OF OR FAILURE TO PERFORM THE PUBLIC OFFICER'S DUTIES
 AND RESPONSIBILITIES. SUCH NOTICE SHALL SPECIFY WITH PARTICULARITY WHICH
 FELONY THE DEFENDANT HAS COMMITTED. WITHIN TWENTY DAYS AFTER 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 A RETIREMENT SYSTEM AND SHALL
 DESCRIBE THE PORTION OF SUCH RIGHTS AND BENEFITS TO WHICH SUCH PERSON IS
 OR WILL BE ENTITLED TO SOLELY FROM SERVICE AS SUCH A PUBLIC OFFICER.
   4. NO FORFEITURE ACTION MAY BE COMMENCED BY THE DISTRICT  ATTORNEY  OR
 THE ATTORNEY GENERAL UNTIL SUCH DISTRICT ATTORNEY OR THE ATTORNEY GENER-
 AL,  AS  THE  CASE  MAY BE, HAS RECEIVED AND SERVED ON THE DEFENDANT THE
 NOTICE OF APPLICABILITY AS  SET  FORTH  IN  SUBDIVISION  THREE  OF  THIS
 SECTION.
   5.  THE  DISTRICT  ATTORNEY OR THE ATTORNEY GENERAL, OR ANY INTERESTED
 PARTY, MAY SEEK, OR THE COURT ON ITS OWN MOTION MAY ORDER, THAT SOME  OR
 ALL  OF  THE PENSION THAT WOULD OTHERWISE BE REDUCED OR REVOKED PURSUANT
 TO THIS ARTICLE BE PAID FOR THE BENEFIT OF ANY DEPENDENT PERSONS, AS MAY
 BE IN THE INTERESTS OF JUSTICE.
   6. THE DEFENDANT SHALL HAVE THE RIGHT TO A HEARING.
   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.
 THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL AS THE CASE MAY  BE  MUST,
 AT  THE TIME OF THE HEARING, PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
 THE DEFENDANT KNOWINGLY AND INTENTIONALLY COMMITTED THE CRIME RELATED TO
 PUBLIC OFFICE.
   8. IN DETERMINING WHETHER THE PENSION SHALL BE REDUCED OR REVOKED, THE
 SUPREME COURT SHALL CONSIDER AND MAKE FINDINGS OF FACT  AND  CONCLUSIONS
 OF LAW THAT INCLUDE, BUT SHALL NOT BE LIMITED TO, A CONSIDERATION OF THE
 FOLLOWING FACTORS:
   (A) WHETHER THE DEFENDANT STANDS CONVICTED OF SUCH A FELONY OF A CRIME
 RELATED  TO  PUBLIC  OFFICE, AND THE SPECIFIC PARAGRAPH OR PARAGRAPHS OF
 SUBDIVISION ONE OF SECTION ONE HUNDRED FIFTY-SIX OF  THIS  ARTICLE  THAT
 HAVE BEEN PROVEN OR NOT PROVEN;
   (B)  THE  SEVERITY  OF THE CRIME RELATED TO PUBLIC OFFICE OF WHICH THE
 DEFENDANT STANDS CONVICTED;
   (C) THE AMOUNT OF MONETARY LOSS SUFFERED BY SUCH STATE OR MUNICIPALITY
 AS A RESULT OF SUCH CRIME RELATED TO PUBLIC OFFICE;
   (D) THE DEGREE OF PUBLIC TRUST REPOSED IN THE PUBLIC OFFICER BY VIRTUE
 OF THE PERSON'S POSITION AS A PUBLIC OFFICIAL;
   (E) IF THE CRIME RELATED TO PUBLIC OFFICE WAS  PART  OF  A  FRAUDULENT
 SCHEME AGAINST THE STATE OR A MUNICIPALITY, THE ROLE OF THE PUBLIC OFFI-
 CER IN SUCH FRAUDULENT SCHEME AGAINST SUCH STATE OR A MUNICIPALITY;
   (F) THE DEFENDANT'S CRIMINAL HISTORY, IF ANY;
   (G)  THE IMPACT OF FORFEITURE, IN WHOLE OR IN PART, ON THE DEFENDANT'S
 DEPENDENTS, PRESENT OR FORMER SPOUSES, OR DOMESTIC PARTNERS;

 S. 8036                             3
 
   (H) THE PROPORTIONALITY OF FORFEITURE OF ALL OR PART OF THE PENSION TO
 THE CRIME COMMITTED;
   (I)  THE  YEARS  OF SERVICE IN PUBLIC OFFICE BY THE DEFENDANT WHERE NO
 CRIMINAL ACTIVITY HAS BEEN FOUND BY A COURT; AND
   (J) ANY SUCH OTHER FACTORS AS, IN THE JUDGMENT OF THE  SUPREME  COURT,
 JUSTICE MAY REQUIRE.
   9.  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  FORFEITURE  WOULD
 NOT  SERVE  THE ENDS OF JUSTICE. THE COURT MAY ORDER THAT SOME OR ALL OF
 THE REDUCED OR REVOKED PENSION BE PAID  TO  SATISFY  THE  TERMS  OF  ANY
 EXISTING ORDER FOR THE PAYMENT OF MAINTENANCE, CHILD SUPPORT OR RESTITU-
 TION  OR  FOR  THE  BENEFIT  OF  ANY DEPENDENT PERSONS, AS MAY BE IN THE
 INTERESTS OF JUSTICE, AFTER  TAKING  INTO  CONSIDERATION  THE  FINANCIAL
 NEEDS AND RESOURCES AVAILABLE FOR SUPPORT OF SUCH PERSONS.
   10.  (A)  UPON A FINDING BY THE COURT BY CLEAR AND CONVINCING EVIDENCE
 THAT THE DEFENDANT KNOWINGLY AND INTENTIONALLY COMMITTED A CRIME RELATED
 TO PUBLIC OFFICE, THE COURT  MAY  ISSUE  AN  ORDER  TO  THE  APPROPRIATE
 RETIREMENT  SYSTEM  TO REDUCE OR REVOKE THE DEFENDANT'S PENSION TO WHICH
 HE OR SHE IS OTHERWISE ENTITLED AS SUCH A PUBLIC OFFICER. ALL ORDERS AND
 FINDINGS MADE BY THE COURT PURSUANT TO THIS SECTION SHALL BE  SERVED  BY
 THE  ATTORNEY  GENERAL OR THE DISTRICT ATTORNEY, AS THE CASE MAY BE UPON
 THE CHIEF ADMINISTRATOR OF THE DEFENDANT'S  RETIREMENT  SYSTEM  AND  THE
 DEFENDANT.
   (B)  IF  THE  COURT  ISSUES AN ORDER PURSUANT TO PARAGRAPH (A) OF THIS
 SUBDIVISION, THE COURT SHALL ORDER PAYMENT OF A PORTION OF SUCH  PENSION
 BENEFIT TO: (1) THE INNOCENT SPOUSE IF SO REQUESTED BY SUCH SPOUSE PAYA-
 BLE  AT THE TIME THE PUBLIC OFFICER WOULD HAVE BEEN ELIGIBLE FOR RETIRE-
 MENT IF SUCH SPOUSE HAS NOT OTHERWISE WAIVED, IN  WRITING,  HIS  OR  HER
 RIGHT  TO SUCH BENEFIT; AND (2) INNOCENT MINOR CHILDREN AND OTHER DEPEN-
 DENTS PURSUANT TO LAW OF THE PUBLIC OFFICER IN AN AMOUNT THAT THE  COURT
 FINDS  JUST AND PROPER CONSISTENT WITH THE PENSION BENEFITS TO WHICH THE
 PUBLIC OFFICIAL WOULD BE ENTITLED AND  THE  PORTION  OF  THOSE  BENEFITS
 WHICH WOULD BE USED FOR THE SUPPORT OF SUCH MINOR CHILDREN OR DEPENDENTS
 PURSUANT  TO  LAW. SUCH PAYMENT TO THE INNOCENT SPOUSE SHALL BE COMPUTED
 PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION, AND PAYMENTS PURSUANT  TO
 SUBPARAGRAPHS ONE AND TWO OF THIS PARAGRAPH SHALL BE ADJUSTED TO REFLECT
 INTEREST  ACCRUED  BETWEEN  THE  TIME OF SUCH CONVICTION AND THE TIME OF
 SUCH PAYMENT.
   (C) WHEN DETERMINING THE AMOUNT  OF  BENEFITS  WHICH  THE  DEFENDANT'S
 INNOCENT  SPOUSE  IS ENTITLED TO RECEIVE, THE FACTORS CONTAINED IN PARA-
 GRAPH D OF SUBDIVISION FIVE OF PART B OF SECTION TWO HUNDRED  THIRTY-SIX
 OF THE DOMESTIC RELATIONS LAW SHALL BE CONSIDERED BY THE COURT. HOWEVER,
 WHEN DETERMINING SUCH APPORTIONMENT, THE COURT SHALL NOT ANNUL OR MODIFY
 ANY PRIOR COURT ORDER REGARDING SUCH BENEFITS.
   11.  THE  COURT  SHALL  ISSUE A WRITTEN DECISION INCLUDING FINDINGS OF
 FACT AND CONCLUSIONS OF LAW THAT ARE THE  BASIS  FOR  ANY  ORDER  ISSUED
 PURSUANT TO THIS SECTION.
   12. UPON A FINAL DETERMINATION THAT REVERSES OR VACATES THE CONVICTION
 OR  CONVICTIONS  OF  A  CRIME  RELATED TO PUBLIC OFFICE, OR REDUCES SUCH
 CRIME TO A VIOLATION, MISDEMEANOR OR OTHER CRIMINAL ACT THAT  IS  NOT  A
 CRIME  RELATED  TO  PUBLIC  OFFICE, THE PUBLIC OFFICIAL, OR IF HE OR SHE
 SHALL BE DECEASED, HIS OR HER ESTATE, SHALL HAVE SUCH  PENSION  RETROAC-
 TIVELY RESTORED UPON APPLICATION TO THE COURT WITH JURISDICTION OVER THE
 FORFEITURE  ACTION.  SUCH COURT, UPON FINDING THAT SUCH A FINAL DETERMI-

 S. 8036                             4
 
 NATION HAS OCCURRED, SHALL ISSUE AN ORDER RETROACTIVELY  RESTORING  SUCH
 PENSION, TOGETHER WITH SUCH OTHER RELIEF DEEMED APPROPRIATE.
   13.  A FINAL JUDGMENT ENTERED PURSUANT TO THIS ARTICLE MAY BE APPEALED
 PURSUANT TO SUBDIVISION (A)  OF  SECTION  FIFTY-SEVEN  HUNDRED  ONE  AND
 SECTION FIFTY-SIX HUNDRED TWO OF THE CIVIL PRACTICE LAW AND RULES.
   14.  EXCEPT  AS OTHERWISE PROVIDED BY THIS ARTICLE, THE CIVIL PRACTICE
 LAW AND RULES SHALL GOVERN THE PROCEDURE IN ALL ACTIONS COMMENCED PURSU-
 ANT TO THIS ARTICLE, EXCEPT WHERE THE ACTION IS  SPECIFICALLY  REGULATED
 BY ANY INCONSISTENT PROVISIONS HEREIN.
   15.  "FELONIES HAVING A DIRECT AND ACTUAL RELATIONSHIP TO THE PERFORM-
 ANCE OF A PUBLIC OFFICER'S  EXISTING  DUTIES"  SHALL  MEAN  ANY  OF  THE
 FOLLOWING CRIMINAL OFFENSES WHETHER COMMISSIONED IN THIS STATE OR IN ANY
 OTHER  JURISDICTION  BY A PUBLIC OFFICER, AS DEFINED BY SECTION SEVEN OF
 ARTICLE FIVE OF THE STATE CONSTITUTION, THROUGH THE USE OF  HIS  OR  HER
 PUBLIC  OFFICE  OR  BY  THE INDIVIDUAL REPRESENTING HE OR SHE WAS ACTING
 WITH THE AUTHORITY OF ANY GOVERNMENTAL ENTITY, AND ACTING  AS  A  PUBLIC
 OFFICER:
   (A)  A  FELONY  FOR COMMITTING, AIDING OR ABETTING A LARCENY OF PUBLIC
 FUNDS FROM THE STATE OR A MUNICIPALITY;
   (B) A FELONY COMMITTED IN DIRECT CONNECTION WITH SERVICE AS  A  PUBLIC
 OFFICER; OR
   (C) A FELONY COMMITTED BY SUCH PERSON WHO, WITH THE INTENT TO DEFRAUD,
 REALIZES OR OBTAINS, OR ATTEMPTS TO REALIZE OR OBTAIN, A PROFIT, GAIN OR
 ADVANTAGE  FOR  HIMSELF OR HERSELF OR FOR SOME OTHER PERSON, THROUGH THE
 USE OR ATTEMPTED USE OF THE POWER, RIGHTS, PRIVILEGES OR DUTIES  OF  HIS
 OR  HER  POSITION  AS  A  PUBLIC OFFICER, AS DEFINED BY SECTION SEVEN OF
 ARTICLE FIVE OF THE STATE CONSTITUTION.
   16. ANY PUBLIC OFFICER, AS DEFINED BY SECTION SEVEN OF ARTICLE FIVE OF
 THE STATE CONSTITUTION, WHOSE PENSION IS REDUCED OR REVOKED PURSUANT  TO
 THIS  ARTICLE  SHALL  BE ENTITLED TO A RETURN OF HIS OR HER CONTRIBUTION
 PAID INTO THE RELEVANT RETIREMENT  SYSTEM,  WITHOUT  INTEREST.  NOTWITH-
 STANDING  THE FOREGOING, NO PAYMENTS IN RETURN OF CONTRIBUTIONS SHALL BE
 MADE OR ORDERED UNLESS AND UNTIL THE SUPREME COURT DETERMINES  THAT  THE
 PUBLIC  OFFICER  WHOSE PENSION HAS BEEN REDUCED OR REVOKED HAS SATISFIED
 IN FULL ANY JUDGMENTS OR ORDERS  RENDERED  BY  ANY  COURT  OF  COMPETENT
 JURISDICTION  FOR  THE  PAYMENT OF RESTITUTION TO THE STATE OR A MUNICI-
 PALITY FOR LOSSES INCURRED AS A RESULT OF SUCH CRIME RELATED  TO  PUBLIC
 OFFICE.  IF  THE SUPREME COURT DETERMINES THAT SUCH PUBLIC OFFICER WHOSE
 PENSION IS TO BE REDUCED OR REVOKED HAS FAILED TO SATISFY ANY  OUTSTAND-
 ING  JUDGMENT  OR  ORDER OF RESTITUTION RENDERED BY A COURT OF COMPETENT
 JURISDICTION, IT MAY ORDER THAT ANY FUNDS OTHERWISE DUE TO  SUCH  PUBLIC
 OFFICIAL AS A RETURN OF CONTRIBUTION, OR ANY PORTION THEREOF, BE PAID IN
 SATISFACTION OF SUCH JUDGMENT OR ORDER.
   §  2.  This act shall take effect immediately; provided, however, that
 this act shall be deemed to have been in full force and  effect  on  and
 after January 1, 2018.