N.Y. Retirement and Social Security Law 157 – Pension forfeiture
§ 157. Pension forfeiture. 1. Notwithstanding any other law to the contrary, it shall be a term and condition of membership for every public official that such public official'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.
Terms Used In N.Y. Retirement and Social Security Law 157
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Conviction: A judgement of guilt against a criminal defendant.
- Crime related to public office: shall mean any of the following criminal offenses whether committed in this state or in any other jurisdiction by a public official through the use of his or her public office or by the individual representing that he or she was acting with the authority of any governmental entity, and acting as a public official:
(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 official; 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 official. See N.Y. Retirement and Social Security Law 156 - Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Defendant: shall mean a state or local officer against whom a forfeiture action is commenced. See N.Y. Retirement and Social Security Law 156
- Dependent: A person dependent for support upon another.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
- Pension: shall mean the annual allowance for life, payable in monthly installments, derived from contributions made by a public official to the appropriate pension accumulation fund of a retirement system pursuant to applicable law. See N.Y. Retirement and Social Security Law 156
- Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
- Public official: shall mean any of the following individuals:
(i) the governor, lieutenant governor, comptroller or attorney general;
(ii) members of the state legislature;
(iii) state officers and employees including:
(A) heads of state departments and their deputies and assistants other than members of the board of regents of the university of the state of New York who receive no compensation or are compensated on a per diem basis;
(B) officers and employees of statewide elected officials;
(C) officers and employees of state departments, boards, bureaus, divisions, commissions, councils or other state agencies; and
(D) members or directors of public authorities, other than multi-state authorities, public benefit corporations and commissions at least one of whose members is appointed by the governor, and employees of such authorities, corporations and commissions;
(iv) judges, justices and employees of the unified court system;
(v) officers and employees of the legislature; and
(vi) paid municipal officers and employees including an officer or employee of a municipality, paid members of any administrative board, commission or other agency thereof and in the case of a county, shall be deemed to also include any officer or employee paid from county funds. See N.Y. Retirement and Social Security Law 156 - Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
- Retirement system: shall mean the New York state and local employees' retirement system, and the New York city employees' retirement system. See N.Y. Retirement and Social Security Law 156
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
2. In the case of a public official who stands convicted, by plea of nolo contendere or plea of guilty to, or by conviction after trial, of any crime related to public office, and has been sentenced, an action may be commenced in supreme court of the county in which such public official 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, for an order to reduce or revoke the pension to which such public official is otherwise entitled for service as a public official. Such complaint shall specify with particularity which category of felony pursuant to subdivision one of section one hundred fifty-six of this article the defendant has committed, and all other facts that are alleged to qualify such crime as a felony crime related to public office subject to pension reduction or revocation pursuant to this article, and the amount of pension reduction or revocation requested. Such action shall be commenced within six months after such sentencing.
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 defendant'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 official's duties and responsibilities. Such notice shall specify with particularity which category of felony pursuant to subdivision one of section one hundred fifty-six of this article 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 official.
4. No forfeiture action may be commenced by the district attorney or the attorney general until such district attorney or the attorney general, 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 official 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 official 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 defendant's dependents, present or former spouses, or domestic partners;
(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 restitution 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 official. 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 payable at the time the public official would have been eligible for retirement if such spouse has not otherwise waived, in writing, his or her right to such benefit; and (2) innocent minor children and other dependents pursuant to law of the public official 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 paragraph d of subdivision five of part B of § 236 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 retroactively restored upon application to the court with jurisdiction over the forfeiture action. Such court, upon finding that such a final determination 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 § 5701 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 pursuant to this article, except where the action is specifically regulated by any inconsistent provisions herein.