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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7704
SPONSOR: Buchwald (MS) 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 was committed in direct connection with
service as a public officer may have their pension reduced or revoked
following notice and a court hearing. The courts determination to reduce
or revoke shall take into consideration of factors including the severi-
ty of the crime and the proportionality of a reduction or a revocation
to such crime., The court shall also order payment of a portion of the
pension to an innocent spouse, minor children or other dependents after
consideration of their financial needs and resources. A convicted public
officer may also be entitled to a refund of their actual contributions
unless 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 definition of public officer, for the purposes of this section is
provided in paragraph (c) to include elected officials, gubernatorial
appointees, municipal managers, department heads, chief fiscal officers,
judges and policymakers. 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, if the Senate concurs, the foregoing amendment will be
referred to the first regular legislative session convening after the
next succeeding general election of members of the assembly, and, in
conformity with section 1 of article 19 of the constitution, be
published for 3 months previous to the time of such election.
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, 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 grossly a state
officer or local officer has abused his or her public position, 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 forfeiture 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 committed in direct connection with 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 offi-
cers would be refunded their own contributions, made with their own
money as opposed to taxpayer money, to the pension system or plan.
However, payment of these funds may also 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 are committed in direct
connection with the individual's service as a public officer. Further-
more, 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 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 service as a public officer have not earned their 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:
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,
Sponsorship grew to 90 Assembly members / S.1133 (Breslin) Sponsorship
grew to 15 Senators
2013 - A.7173 (Buchwald) - introduced in May, gained 40 Assembly spon-
sors by June / S.1133 (Breslin) - sponsorship grew to 10 Senators
2011/2012 - S.2768 (Breslin) Remained in Senate Committee on Judiciary,
sponsored by 3 Senators
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:
If the Senate concurs, the foregoing amendment will be referred to the
first regular legislative session convening after the next succeeding
general election of members of the assembly, and, in conformity with
section 1 of article 19 of the constitution, be published for 3 months
previous to the time of such election.
STATE OF NEW YORK
________________________________________________________________________
7704
2015-2016 Regular Sessions
IN ASSEMBLY
May 22, 2015
___________
Introduced by M. of A. BUCHWALD, MORELLE, BARRETT, BRINDISI, FAHY,
GALEF, KAMINSKY, LAVINE, LUPARDO, McDONALD, OTIS, RUSSELL, SEPULVEDA,
SKOUFIS, STIRPE, ZEBROWSKI, PAULIN, WOERNER -- read once and referred
to the Committee on Governmental Operations
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 committed in direct connection
10 with service as a public officer, may be reduced or revoked, following
11 notice and a hearing by an appropriate court, as provided by law. Such
12 reduction or revocation may only be of the pension owed to the public
13 officer from the retirement system that such officer was a member of at
14 the time of the commission of such felony. The court determination
15 whether to reduce or revoke such pension shall be based on the consider-
16 ation of factors including the severity of the crime and the proportion-
17 ality of a reduction or revocation of the pension to such crime, and
18 when a court issues an order to reduce or revoke such pension, the court
19 shall order: (i) payment of a portion of such pension to the innocent
20 spouse, innocent minor children and other dependents pursuant to law of
21 such officer after consideration of the financial needs and resources of
22 such spouse, children and dependents and other factors as provided by
23 law; and (ii) that contributions paid into the relevant retirement
24 system by such officer be returned to him or her, except that the legis-
25 lature may provide that such return be conditioned on the officer's
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD89101-01-5
A. 7704 2
1 compliance with or satisfaction of any judgments or orders for the
2 payment of restitution to the state or a municipality for losses
3 incurred as a result of such felony related to public office. The legis-
4 lature shall enact legislation to implement this amendment taking into
5 account interests of justice.
6 (c) For the purposes of paragraph (b) of this section, the term
7 "public officer" shall mean: (i) an official filling an elected office
8 within the state; (ii) a holder of office filled by appointment by the
9 governor of this state, either upon or without senate confirmation;
10 (iii) a county, city, town or village administrator, manager or equiv-
11 alent position; (iv) the head or heads of any state or local government
12 department, division, board, commission, bureau, public benefit corpo-
13 ration, or public authority of this state who are vested with authority,
14 direction and control over such department, division, board, commission,
15 bureau, public benefit corporation or public authority; (v) the chief
16 fiscal officer or treasurer of any municipal corporation or political
17 subdivision of the state; (vi) a judge or justice of the unified court
18 system; and (vii) a legislative, executive, or judicial employee of this
19 state who directly assists in the formulation of legislation, rule,
20 regulation, policy, or judicial decision-making and who is designated as
21 a policymaker as defined by law or as authorized by law.
22 (d) Paragraph (b) of this section shall only apply to crimes committed
23 on or after the first of January next succeeding the date upon which the
24 people shall approve and ratify the amendments to the constitution that
25 added this paragraph, provided, however, that nothing in subdivisions
26 (b), (c) or this subdivision of this section shall be read to abrogate
27 the application of any existing statutory provisions related to the
28 reduction or revocation of a public pension or retirement system benefit
29 to any participants who became members of such pension or retirement
30 system after the effective date of such statutory provisions.
31 § 2. Resolved (if the Senate concur), That the foregoing amendment be
32 referred to the first regular legislative session convening after the
33 next succeeding general election of members of the assembly, and, in
34 conformity with section 1 of article 19 of the constitution, be
35 published for 3 months previous to the time of such election.
