2013 New York Consolidated Laws
RSS - Retirement & Social Security
Article 3-B - (156 - 159) PENSION FORFEITURE FOR PUBLIC OFFICIALS
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  who  becomes  a  member of any retirement system on or
  after the effective date of the chapter of  the  laws  of  two  thousand
  eleven which added this article, 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.
    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,  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 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
  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; and
    (i)  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.  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.
    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  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
  pursuant  to  this  article,  except  where  the  action is specifically
  regulated by any inconsistent provisions herein.