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Pension forfeit measure would help fight corruption, experts say

New York voters on Tuesday approved the statewide referendum, 67 percent to 25 percent.

New York State voters on Nov. 7, 2011,

New York State voters on Nov. 7, 2011, approved a constitutional amendment that allows pensions of convicted officials to be seized. Above, the State Capitol in Albany. Photo Credit: Getty Images / iStock / DebraMillet

ALBANY — Legal experts said New Yorkers created a strong deterrent to future corruption in government when they approved a constitutional amendment on Tuesday that allows pensions of convicted officials to be seized.

“Wow. Yes, indeed, it’s a deterrent,” said Robert Weisberg, a criminal law professor at Stanford University and co-director of its criminal justice center.

Tuesday’s referendum was passed by a 67 percent to 25 percent margin. The other 8 percent didn’t vote on the proposal. Currently, more than $604,000 a year in pension checks go to 13 officials convicted of corruption.

Weisberg said that for a deterrent to be effective, the penalty needs to be a big, tangible fear for which the target “audience” must be sensitive, and “this is a very sensitive ‘audience.’ ”

More than 30 officials have been forced from office in the past decade and many of them are eligible for pensions.

The measure will apply only to felonies committed after Jan. 1. The crime also must have “a direct and actual relationship to the public officer’s existing duties,” according to the amendment.

Public officials who will be subject to pension forfeiture are elected officials, people appointed by the governor, municipal administrators and managers, heads of government boards and commissions, state and local government fiscal officers and treasurers, judges and justices and state policymakers.

A 2011 law provided for only state legislators and statewide elected officials elected after 2011 and convicted of corruption to forfeit their pensions. But in order for all current legislators as well statewide officials and public employees in policy-making roles to be subject to pension forfeiture, voters had to amend the state constitution’s decades-old guarantee that a public pension “shall not be diminished or impaired.”

“Given New York’s ongoing ethics crisis, and the failure of the state’s leaders to act, adding new sanctions can only help,” said Blair Horner of the New York Public Interest Research Group. “Much, much more needs to be done such as, truly independent oversight, coupled with limits on outside income and restrictions on New York’s ‘pay-to-play’ political culture.”

Supporters of the effort at first sought automatic forfeiture of pension upon conviction on corruption charges. But that was negotiated in the legislature to a process in which a decision will be made by a judge to reduce or eliminate a pension after a hearing. In addition, the legislature added that a judge must consider “whether forfeiture, in whole or in part, would result in undue hardship or other inequity upon any dependent children, spouse or other dependents.”

“It’s a deterrent, [but] it is good that some judicial discretion was left,” said John C. Coffee Jr., a professor at Columbia Law School whose specialties include white-collar crime.

“If it leaves you penniless at age 75, that seems a bit too tough,” he said. “Still, there are people who deserve it.”

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