2023 New York Laws › RSS - Retirement and Social Security › Article 3-B - 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  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, 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 section two hundred
thirty-six 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  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.