Pension Forfeiture May Not Satisfy

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New York’s Assembly Speaker Sheldon Silver
New York’s Assembly Speaker Sheldon Silver

Last year’s near-simultaneous felony convictions of New York’s Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos have understandably focused attention on proposals to strengthen ethics laws. No state issue has drawn more attention recently, and particular frustration has been expressed over those two leaders’ continued collection of large state pensions. Our state’s pension system has paid out about $4 million over the last 15 years to convicted legislators. The state pension fund has an estimated value of $178.3 billion as of late last year so this is not a bank-breaking situation, but it is frustrating to many citizens who feel that breaking the public trust should revoke any public promise of further financial benefits.

But how to do it? I’ve known some of New York’s perp-walked legislators. I wouldn’t lose sleep if we locked some of them in an outhouse and threw away the key, but the pension forfeiture issue is not as black and white as some recent editorial rants make it seem.

This isn’t an issue only in New York. Pension forfeiture has become a cause celebre in dozens of states, including states that have had forfeiture laws for years. It’s an issue from little Vermont (“Vermont’s Lawbreaking Public Employees Can Still Collect Their Pensions”) to giant California (“Loophole Allows Officials Convicted of Public Corruption to Keep Hefty Pensions”). In 2013, Maine and Alabama became the 24th and 25th states to adopt forfeiture laws. Two or three more may do it in 2016.

New York actually has a pension forfeiture law on the books right now. If a public official pleads guilty or is convicted of a crime related to office, the District Attorney can commence a court action to reduce or revoke their pension. The decision is left up to the court, which is required to consider a litany of factors, including the need to support children and the overall service of justice.

Because the State Constitution guarantees that retirement benefits “shall not be diminished or impaired,” this law can only apply to those who joined the pension system after it was enacted in November 2011, and it covers only a handful of officials.

Governor Andrew Cuomo
Governor Andrew Cuomo

Governor Cuomo has included a proposed constitutional amendment in his budget legislation, but even if it’s approved by the legislature (twice) and then by voters next year, a revised law will still have to spell out the details of a forfeiture process that will now affect every official in the state.

Even reform-minded people of good faith sometimes raise questions about the innocent family of a convicted official who loses a pension and may now require public assistance. This specific issue killed a pension forfeiture bill in the Mississippi legislature last year. Alaska has an interesting clause that says that a convicted official “may award the forfeited pension to a spouse, a dependent or a former spouse” if there is any.

Popular sensibilities and feelings toward laws change. Certainly you need flexibility, as New York’s 2011 law builds in. But once each case is judged on individual merits, you’re going to have distinctions and dissatisfying results.

Last year, Connecticut revoked the pension of a state trooper who stole from a motorcyclist after a crash. Meanwhile, the pension of former Governor Roland, sentenced to prison twice in a decade for accepting illegal gifts and for violating campaign financing laws, kept his $52,000 pension.

In some states, keeping all or some pension benefits is a common element of plea bargains with accused public officials.

Whether we’re totally ruthless and make no exceptions or compassionate and allow flexibility, the results aren’t going to always be very satisfying.

Michael Miller

Michael Miller (mmillercolumn@gmail.com) has worked in state and local government. He lives in New Hyde Park. The views expressed in this column are not necessarily those of the publisher or Anton Media Group.

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