THOMAS P. DiNAPOLI 110 STATE STREET STATE COMPTROLLER ALBANY, NEW YORK 12236 STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER OSC No. 1 MEMORANDUM RE AN ACT to amend the retirement and social security law, in relation to the forfeiture of the pensions of certain public officers upon conviction of a felony related to public employment; to amend the penal law, in relation to the imposition of a mandatory fine upon certain public officers convicted of a designated felony offense related to his or her official duties; and to amend the penal law and the criminal procedure law, in relation to the crime of official misconduct and to abuse of public trust crimes PURPOSE: Provides for the forfeiture of the pension of a public officer who is a member or retired member of the New York State and Local Employees’ Retirement System or the New York State and Local Police and Fire Retirement System and is convicted of a felony related to the performance or failure to perform such member’s or retired member's official duties and responsibilities as a public officer. Additionally, this bill strengthens the penalties received by any public servant who commits a crime in abuse of the public trust by using his or her office to commit, facilitate or conceal criminal acts. SUMMARY OF PROVISIONS: Section 1 of this bill adds a new Article 3-B to the Retirement and Social Security Law to establish the procedures and guidelines for forfeiture of retirement benefits for public officers convicted of a designated felony offense who are either members or retired members of the New York State and Local Employees’ Retirement System or the New York State and Local Police and Fire Retirement System. Section 2 of this bill amends Subdivision 1 of Section 80.00 of the Penal Law to mandate that a fine be imposed, in addition to any other sanction, in an amount based upon the gain received or imparted by a public servant who abuses the public trust. Section 3 of this bill amends Section 195.00 of the Penal Law to rename the current crime of “Official Misconduct” as “Official Misconduct in the Third Degree”. Additionally, a person who is convicted of violating this Section will now be guilty of a Class E Felony rather than a Class A Misdemeanor. Section 4 of this bill adds two new Sections 195.01 and 195.02 to the Penal Law: Section 195.01 of the Penal Law is the newly created Class D Felony of “Official Misconduct in the Second Degree”. A public servant is guilty of Official Misconduct in the Second Degree when he or she commits the crime of Official Misconduct in the Third Degree and he or she obtains any benefit or deprives another person of a benefit valued in excess of $1,000. Section 195.02 of the Penal Law is the newly created Class C Felony of “Official Misconduct in the First Degree”. A public servant is guilty of Official Misconduct in the First Degree when he or she commits the crime of Official Misconduct in the Third Degree and he or she obtains any benefit or deprives another person of a benefit valued in excess of $3,000. Section 5 of this bill creates a new Article 196 of the Penal Law titled “Abuse of Public Trust”. Pursuant to this Article, if a person commits an abuse of public trust crime when he or she commits a felony offense and either intentionally uses his or her position as a public servant in a manner that significantly facilitates the commission or concealment of the offense; or attempts, conspires or solicits another to commit any felony, and in such attempt, conspiracy or solicitation intentionally uses his or her position as a public servant to significantly facilitate the commission or concealment of the offense then he or she faces a penalty enhancement of one category higher than the specified offense that the defendant committed for a Class C, D or E Felony or enhanced sentencing for a defendant who is convicted of a Class A-1 or B Felony. Sections 6 and 7 of this bill amend Subdivisions 4 and 7 of Section 200.50 of the Criminal Procedure Law with respect to the language that must be included in an indictment charging a defendant with an abuse of public trust crime. Section 8 of this bill provides for an effective date of the one hundred twentieth day after it shall have become a law. PRIOR LEGISLATIVE HISTORY: New Bill. JUSTIFICATION: When a public officer participates in criminal conduct related to the performance of failure to perform such officer’s official duties and responsibilities, he or she is exploiting the public's trust in government. A public officer who commits a designated felony offense to his or her illegal advantage should not be entitled to the benefits derived from their public office. Consistent with the Comptroller's commitment to propose a constitutionally viable pension forfeiture law, this bill provides a mechanism for the forfeiture of a public officer’s pension benefits if such officer is convicted of a designated felony offense related to the performance of or failure to perform his or her official duties and responsibilities as a public officer. Additionally, this bill provides for enhanced criminal penalties for any public servant who abuses his or her office by using such office to commit, facilitate the commission or conceal the commission of a crime thereby violating the fiduciary duty owed to the public and inflicting immeasurable future harm by undermining the public’s confidence in government. Therefore, the law must be strengthened to provide clear recognition of the gravity of these criminal violations of the public trust and the compelling importance of preventing their recurrence. With this legislation, such goal is accomplished by increasing the criminal penalties for not only official misconduct but for any crime committed by a public servant who uses his or her official status to further his or her personal interest at the expense of the public’s trust in the integrity of government. The Comptroller urges passage of this legislation. BUDGET IMPLICATIONS: This bill has no significant fiscal impact. EFFECTIVE DATE: This bill would take effect on the one hundred twentieth day after it shall have become a law.