Relates to providing for the reduction or revocation of the public pension of a public officer; authorizes the court to determine whether to reduce or revoke such pension based on the defined terms, and to consider and determine specific findings as to the amount of such forfeiture, if any, and whether forfeiture in whole or in part would result in undue hardship or other inequity upon any dependent children, spouse or other dependents; makes related provisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1749
SPONSOR: Buchwald TITLE OF BILL:
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment
to section 7 of article 5 of the constitution, in relation to the public
pension of a public officer
PURPOSE:
Provides that certain state and local officers convicted of a felony
involving breach of public trust be subject to forfeiture of pension
benefits.
SUMMARY OF PROVISIONS:
Section 1 amends Article 5, Section 7 of the state constitution to
provide that a public officer, as defined in this resolution, who stands
convicted of a felony which had a direct and actual relationship to the
person's duties as a public officer may have their pension reduced or
revoked following notice and a court hearing. The court's determination
to reduce or revoke shall take into consideration factors including the
severity of the crime, the proportionality of a reduction or a revoca-
tion to such crime and whether the reduction or revocation would result
in undue hardship to an innocent spouse, minor children or other depen-
dents after consideration of their financial needs and resources. A
convicted public officer may also be entitled to a refund of their actu-
al contributions as determined by the court. The definition of public
officer, for the purposes of this section, is provided in paragraph (c)
to include elected officials, direct gubernatorial appointees, municipal
managers, department heads, chief fiscal officers, judges and policy-
makers. These provisions will only apply to crimes committed on or after
the first of January next succeeding the date upon which the voters of
New York State approve a constitutional amendment proposed by this
resolution.
Section 2 states that the constitutional amendment would be voted on by
the people of New York.
JUSTIFICATION:
A public officer in the State of New York can currently accept bribes,
steal public funds or engage in numerous other forms of public
corruption and yet still feel secure in the knowledge that even if
convicted of these serious crimes and thrown in jail, under state law
there will still be a state pension check sent their way every month for
the rest of their lives. No matter how serious the offense or how gross-
ly a state officer or local officer has abused his or her public posi-
tion, current law still assures most public officers that their state
pensions cannot be challenged. As part of the Public Integrity Reform
Act (Ch. 399 of the Laws of 2011), public officials who joined the state
retirement system on or after November 13, 2011 are subject to forfei-
ture of their pension benefits if they commit certain felonies related
to their public office. However, the vast majority of New York State
public officers entered the State retirement system before November
2011.
This bill proposes a constitutional amendment so that higher level
public officers can have their pension benefits reduced or revoked when
convicted of a felony that had a direct and actual relationship to the
person's service as a public officer. A constitutional amendment is
required because of the protections our State Constitution grants to
public pensions. Article 5, Section 7 of the State Constitution says
that public pensions involve a contractual relationship that cannot be
reduced or impaired, unless of course the State Constitution itself is
amended. Convicted public officers may be refunded their own contrib-
utions, made with their own money as opposed to taxpayer money, to the
pension system or plan. However, a court may order that payment of these
funds be withheld if the individual is ordered to pay restitution to the
state or a municipality for losses incurred as a result the guilty
party's actions.
The amendment applies to felonies that had a direct and actual relation-
ship to the person's duties as a public officer. Furthermore, this
proposal only impacts public office holders who have been convicted of
such felonies - not just charged, but convicted.
The bill recognizes that the rights of the public and taxpayers (and
indeed law-abiding public servant beneficiaries of the state pension
system) can outweigh the expectations a corrupt public official has in
his or her state pension. Without this sort of change, New Yorkers are
left with a situation under state law in which pensions are paid no
matter how corruptly a public officer has undermined the public trust.
In addition, this legislation if enacted would give many public officers
prone to putting their personal interests above the needs of the public
a significant reason to refrain from doing so. This constitutional
amendment would, in effect, remind public officers that when they are
sworn into office, they must sign a solemn oath stating that they will
uphold the laws and the Constitution that govern New York State. This
oath sets the highest standard for integrity of the public's trust. A
violation of that trust, while in office, demands pecuniary as well as
criminal penalty.
Simply put, public officers who commit felonies in direct connection
with their duties as a public officer have not earned their full state
pensions, and the People of the State of New York deserve the opportu-
nity to vote on a state constitutional amendment that would uphold that
principle.
LEGISLATIVE HISTORY:
2016: A10739/S8163 Passed Assembly and Senate (First Passage)
2015 and 2016: A. 7704 Passed Assembly - S. 8163 (Croci) - Passed Senate
2015 (March): A.6722 (Updated version of Governor's proposed budget
bill, carried by Buchwald) - Referred to Judiciary / S.4611 (Budget) -
Passed Senate
2015 (January): A.377A (Buchwald) - Referred to Governmental Operations
2014 - A.7173 (Buchwald) - Passed Governmental Operations Committee)/
2013 - A.7173 (Buchwald) - introduced in May. / S.1133 (Breslin)
2011/2012 - S.2768 (Breslin) Remained in Senate Committee on Judiciary
FISCAL IMPACT:
Savings to the State to the extent it enables the state pension fund to
not have to make payments to certain convicted felons.
IMPACT ON REGULATION OF BUSINESSES AND INDIVIDUALS:
None
EFFECTS ON FINES, TERMS OF IMPRISONMENT OR OTHER PENAL SANCTIONS:
Subjects certain public officers convicted of a felony committed in
direct connection with service as a public officer to a reduction or
revocation of their public pensions.
EFFECTIVE DATE:
The constitutional amendment applies to crimes committed on or after the
first of January next succeeding the date upon which the people shall
approve and ratify the amendment to the constitution.
STATE OF NEW YORK
________________________________________________________________________
1749
2017-2018 Regular Sessions
IN ASSEMBLY
January 13, 2017
___________
Introduced by M. of A. BUCHWALD, MORELLE, CASTORINA, GALEF, LAVINE,
MAYER, BARRETT, CUSICK, GJONAJ, LUPARDO, McDONALD, PAULIN, ROZIC,
BRINDISI, DenDEKKER, JAFFEE, LUPINACCI, MONTESANO, PEOPLES-STOKES,
BRONSON, DINOWITZ, JOHNS, MAGEE, ORTIZ, PICHARDO, SANTABARBARA, FAHY,
KEARNS, MALLIOTAKIS, OTIS, QUART, SCHIMMINGER, SEAWRIGHT, SEPULVEDA,
SKOUFIS, STEC, STECK, WOERNER, STIRPE, ZEBROWSKI, THIELE -- read once
and referred to the Committee on Judiciary
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing an amendment to section 7 of article 5 of the constitution, in
relation to the public pension of a public officer
1 Section 1. Resolved (if the Senate concur), That section 7 of article
2 5 of the constitution be amended to read as follows:
3 § 7. (a) After July first, nineteen hundred forty, membership in any
4 pension or retirement system of the state or of a civil division thereof
5 shall be a contractual relationship, the benefits of which shall not be
6 diminished or impaired.
7 (b) Notwithstanding subdivision (a) of this section, the public
8 pension of a public officer, as defined in paragraph (c) of this
9 section, who stands convicted of a felony for which such felony has a
10 direct and actual relationship to the performance of the public offi-
11 cer's existing duties, may be reduced or revoked, following notice and a
12 hearing by an appropriate court, as provided by law. The court determi-
13 nation whether to reduce or revoke such pension shall be based on the
14 consideration of factors including the severity of the crime and the
15 proportionality of a reduction or revocation of such pension to such
16 crime. When a court issues an order to reduce or revoke such pension,
17 the court shall consider and determine specific findings as to the
18 amount of such forfeiture, if any, and whether forfeiture, in whole or
19 in part, would result in undue hardship or other inequity upon any
20 dependent children, spouse or other dependents; and other factors as
21 provided by law. The legislature shall enact legislation to implement
22 this amendment taking into account interests of justice.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD89025-01-7
A. 1749 2
1 (c) For the purposes of paragraph (b) of this section, the term
2 "public officer" shall mean: (i) an official filling an elected office
3 within the state; (ii) a holder of office filled by direct appointment
4 by the governor of this state, either upon or without senate confirma-
5 tion; (iii) a county, city, town or village administrator, manager or
6 equivalent position; (iv) the head or heads of any state or local
7 government department, division, board, commission, bureau, public bene-
8 fit corporation, or public authority of this state who are vested with
9 authority, direction and control over such department, division, board,
10 commission, bureau, public benefit corporation or public authority; (v)
11 the chief fiscal officer or treasurer of any municipal corporation or
12 political subdivision of the state; (vi) a judge or justice of the
13 unified court system; and (vii) a legislative, executive, or judicial
14 employee of this state who directly assists in the formulation of legis-
15 lation, rules, regulations, policy, or judicial decision-making and who
16 is designated as a policymaker as set forth in statute.
17 (d) Paragraph (b) of this section shall only apply to crimes committed
18 on or after the first of January next succeeding the date upon which the
19 people shall approve and ratify the amendment to the constitution that
20 added this paragraph.
21 § 2. Resolved (if the Senate concur), That the foregoing amendment be
22 submitted to the people for approval at the general election to be held
23 in the year 2017 in accordance with the provisions of the election law.
