§ 157 — Pension forfeiture

§ 157. Pension forfeiture. 1. Notwithstanding any other law to the\ncontrary, it shall be a term and condition of membership for every\npublic official that such public official's rights to a pension in a\nretirement system that accrue in such retirement system after his or her\ndate of initial membership in the retirement system shall be subject to\nthe provisions of this article.\n 2. In the case of a public official who stands convicted, by plea of\nnolo contendere or plea of guilty to, or by conviction after trial, of\nany crime related to public office, and has been sentenced, an action\nmay be commenced in supreme court of the county in which such public\nofficial was convicted of such felony crime, by the district attorney\nhaving jurisdiction over such crime, or by the attorney general if the\nattorney general brought the criminal charge which resulted in such\nconviction, for an order to reduce or revoke the pension to which such\npublic official is otherwise entitled for service as a public official.\nSuch complaint shall specify with particularity which category of felony\npursuant to subdivision one of section one hundred fifty-six of this\narticle the defendant has committed, and all other facts that are\nalleged to qualify such crime as a felony crime related to public office\nsubject to pension reduction or revocation pursuant to this article, and\nthe amount of pension reduction or revocation requested. Such action\nshall be commenced within six months after such sentencing.\n 3. Before commencing an action described in subdivision two of this\nsection, the district attorney or the attorney general, as the case may\nbe, shall serve written notice on the chief administrator of the\ndefendant's retirement system stating that he or she has reason to\nbelieve that the person convicted committed the crime related to public\noffice in the performance of or failure to perform the public official's\nduties and responsibilities. Such notice shall specify with\nparticularity which category of felony pursuant to subdivision one of\nsection one hundred fifty-six of this article the defendant has\ncommitted. Within twenty days after receipt of such notice, the chief\nadministrator of the defendant's retirement system shall submit a notice\nof applicability to the district attorney or the attorney general as the\ncase may be. The notice of applicability shall contain a statement\nspecifying whether the person convicted is or has been a member or\nretired member of a retirement system and shall describe the portion of\nsuch rights and benefits to which such person is or will be entitled to\nsolely from service as such a public official.\n 4. No forfeiture action may be commenced by the district attorney or\nthe attorney general until such district attorney or the attorney\ngeneral, as the case may be, has received and served on the defendant\nthe notice of applicability as set forth in subdivision three of this\nsection.\n 5. The district attorney or the attorney general, or any interested\nparty, may seek, or the court on its own motion may order, that some or\nall of the pension that would otherwise be reduced or revoked pursuant\nto this article be paid for the benefit of any dependent persons, as may\nbe in the interests of justice.\n 6. The defendant shall have the right to a hearing.\n 7. The burden of proof shall be upon the district attorney or the\nattorney general, as the case may be, to prove by clear and convincing\nevidence the facts necessary to establish a claim of pension forfeiture.\nThe district attorney or the attorney general as the case may be must,\nat the time of the hearing, prove by clear and convincing evidence that\nthe defendant knowingly and intentionally committed the crime related to\npublic office.\n 8. In determining whether the pension shall be reduced or revoked, the\nsupreme court shall consider and make findings of fact and conclusions\nof law that include, but shall not be limited to, a consideration of the\nfollowing factors:\n (a) Whether the defendant stands convicted of such a felony of a crime\nrelated to public office, and the specific paragraph or paragraphs of\nsubdivision one of section one hundred fifty-six of this article that\nhave been proven or not proven;\n (b) The severity of the crime related to public office of which the\ndefendant stands convicted;\n (c) The amount of monetary loss suffered by such state or municipality\nas a result of such crime related to public office;\n (d) The degree of public trust reposed in the public official by\nvirtue of the person's position as a public official;\n (e) If the crime related to public office was part of a fraudulent\nscheme against the state or a municipality, the role of the public\nofficial in such fraudulent scheme against such state or a municipality;\n (f) The defendant's criminal history, if any;\n (g) The impact of forfeiture, in whole or in part, on defendant's\ndependents, present or former spouses, or domestic partners;\n (h) The proportionality of forfeiture of all or part of the pension to\nthe crime committed;\n (i) The years of service in public office by the defendant where no\ncriminal activity has been found by a court; and\n (j) Any such other factors as, in the judgment of the supreme court,\njustice may require.\n 9. At any time during the pendency of a forfeiture action, the court\nmay dismiss the action if it finds that such relief is warranted by the\nexistence of some compelling factor, consideration or circumstance or\nother information or evidence which demonstrates that forfeiture would\nnot serve the ends of justice. The court may order that some or all of\nthe reduced or revoked pension be paid to satisfy the terms of any\nexisting order for the payment of maintenance, child support or\nrestitution or for the benefit of any dependent persons, as may be in\nthe interests of justice, after taking into consideration the financial\nneeds and resources available for support of such persons.\n 10. (a) Upon a finding by the court by clear and convincing evidence\nthat the defendant knowingly and intentionally committed a crime related\nto public office, the court may issue an order to the appropriate\nretirement system to reduce or revoke the defendant's pension to which\nhe or she is otherwise entitled as such a public official. All orders\nand findings made by the court pursuant to this section shall be served\nby the attorney general or the district attorney, as the case may be\nupon the chief administrator of the defendant's retirement system and\nthe defendant.\n (b) If the court issues an order pursuant to paragraph (a) of this\nsubdivision, the court shall order payment of a portion of such pension\nbenefit to: (1) the innocent spouse if so requested by such spouse\npayable at the time the public official would have been eligible for\nretirement if such spouse has not otherwise waived, in writing, his or\nher right to such benefit; and (2) innocent minor children and other\ndependents pursuant to law of the public official in an amount that the\ncourt finds just and proper consistent with the pension benefits to\nwhich the public official would be entitled and the portion of those\nbenefits which would be used for the support of such minor children or\ndependents pursuant to law. Such payment to the innocent spouse shall be\ncomputed pursuant to paragraph (c) of this subdivision, and payments\npursuant to subparagraphs one and two of this paragraph shall be\nadjusted to reflect interest accrued between the time of such conviction\nand the time of such payment.\n (c) When determining the amount of benefits which the defendant's\ninnocent spouse is entitled to receive, the factors contained in\nparagraph d of subdivision five of part B of section two hundred\nthirty-six of the domestic relations law shall be considered by the\ncourt. However, when determining such apportionment, the court shall not\nannul or modify any prior court order regarding such benefits.\n 11. The court shall issue a written decision including findings of\nfact and conclusions of law that are the basis for any order issued\npursuant to this section.\n 12. Upon a final determination that reverses or vacates the conviction\nor convictions of a crime related to public office, or reduces such\ncrime to a violation, misdemeanor or other criminal act that is not a\ncrime related to public office, the public official, or if he or she\nshall be deceased, his or her estate, shall have such pension\nretroactively restored upon application to the court with jurisdiction\nover the forfeiture action. Such court, upon finding that such a final\ndetermination has occurred, shall issue an order retroactively restoring\nsuch pension, together with such other relief deemed appropriate.\n 13. A final judgment entered pursuant to this article may be appealed\npursuant to subdivision (a) of section fifty-seven hundred one and\nsection fifty-six hundred two of the civil practice law and rules.\n 14. Except as otherwise provided by this article, the civil practice\nlaw and rules shall govern the procedure in all actions commenced\npursuant to this article, except where the action is specifically\nregulated by any inconsistent provisions herein.\n