Bill Text: MS HB1382 | 2019 | Regular Session | Introduced
Bill Title: Retirement; elected officials convicted of certain felonies shall have benefits withheld until full restitution has been paid.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Failed) 2019-02-05 - Died In Committee [HB1382 Detail]
Download: Mississippi-2019-HB1382-Introduced.html
MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Appropriations
By: Representatives Denton, Taylor
House Bill 1382
AN ACT TO CREATE NEW SECTIONS 25-11-147 AND 25-11-321, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT IF A MEMBER OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM WHO IS AN ELECTED OFFICIAL OR A MEMBER OF THE SUPPLEMENTAL LEGISLATIVE RETIREMENT PLAN IS CONVICTED OF OR ENTERS A PLEA OF GUILTY OR NOLO CONTENDERE IN ANY COURT TO A FELONY IN WHICH PUBLIC FUNDS WERE UNLAWFULLY TAKEN, OBTAINED OR MISAPPROPRIATED IN THE ABUSE OR MISUSE OF THE PERSON'S OFFICE THAT IS COMMITTED ON OR AFTER JULY 1, 2019, THE COURT SHALL CONDUCT A HEARING IN A SEPARATE CIVIL PROCEEDING TO DETERMINE IF ALL OF THE CONDITIONS HAVE BEEN MET; TO PROVIDE THAT IF ALL OF THE CONDITIONS HAVE BEEN MET, THE COURT SHALL ISSUE AN ORDER FOR WITHHOLDING FROM THE MEMBER'S RETIREMENT BENEFITS FROM THE SYSTEM OR PLAN; TO PROVIDE THAT THE ORDER FOR WITHHOLDING SHALL DIRECT THE SYSTEM TO WITHHOLD A SPECIFIED AMOUNT FROM THE MEMBER'S RETIREMENT BENEFITS EACH MONTH SO THAT THE FULL AMOUNT OF THE PUBLIC FUNDS THAT WERE UNLAWFULLY TAKEN, OBTAINED OR MISAPPROPRIATED IN THE ABUSE OR MISUSE OF THE MEMBER'S OFFICE WILL BE REPAID WITHIN NOT MORE THAN THREE YEARS FROM THE DATE OF THE FIRST WITHHOLDING; TO PROVIDE THAT THE SYSTEM SHALL PAY THE AMOUNTS WITHHELD TO THE ATTORNEY GENERAL EACH MONTH, AND THE ATTORNEY GENERAL SHALL DISTRIBUTE THE AMOUNTS RECEIVED FROM THE SYSTEM TO THE GOVERNMENT BODY FROM WHICH THE PUBLIC FUNDS THAT WERE UNLAWFULLY TAKEN, OBTAINED OR MISAPPROPRIATED IN THE ABUSE OR MISUSE OF THE MEMBER'S OFFICE; TO PROVIDE THAT A MEMBER WHO IS CONVICTED OF SUCH A FELONY SHALL NOT HAVE ANY OF HIS OR HER RETIREMENT BENEFITS FROM THE SYSTEM OR PLAN WITHHELD UNTIL ALL APPEALS OF THE CONVICTION HAVE BEEN FINALLY CONCLUDED OR THE TIME FOR AN APPEAL FROM THE CONVICTION HAS EXPIRED; TO PROVIDE THAT AFTER RECEIVING THE ORDER FOR WITHHOLDING FROM THE COURT, THE SYSTEM SHALL REQUEST THE ATTORNEY GENERAL FOR A DETERMINATION OF WHETHER ALL APPEALS OF THE CONVICTION HAVE BEEN FINALLY CONCLUDED OR THE TIME FOR AN APPEAL FROM THE CONVICTION HAS EXPIRED; TO PROVIDE THAT AFTER THE ATTORNEY GENERAL NOTIFIES THE SYSTEM THAT ALL APPEALS OF THE CONVICTION HAVE BEEN FINALLY CONCLUDED OR THE TIME FOR AN APPEAL FROM THE CONVICTION HAS EXPIRED, THE MEMBER'S RETIREMENT BENEFITS FROM THE SYSTEM OR PLAN SHALL BE WITHHELD UNTIL THE FULL AMOUNT OF THE PUBLIC FUNDS THAT WERE UNLAWFULLY TAKEN, OBTAINED OR MISAPPROPRIATED IN THE ABUSE OR MISUSE OF THE MEMBER'S OFFICE HAS BEEN WITHHELD FROM THE MEMBER'S RETIREMENT BENEFITS, AS DETERMINED BY THE ATTORNEY GENERAL; TO PROVIDE THAT IF A MEMBER OF THE SYSTEM OR PLAN IS ALSO A MEMBER OF ANOTHER RETIREMENT SYSTEM ADMINISTERED BY THE BOARD OF TRUSTEES OF THE SYSTEM, AND THE FELONY FOR WHICH THE MEMBER WAS CONVICTED OR ENTERED A PLEA OF GUILTY OR NOLO CONTENDERE WAS IN CONNECTION WITH THE MEMBER'S SERVICE AS AN ELECTED OFFICIAL THAT IS COVERED BY ONLY ONE OF THE RETIREMENT SYSTEMS, THE MEMBER'S RETIREMENT BENEFITS WILL BE WITHHELD ONLY FROM THE RETIREMENT SYSTEM IN WHICH HIS OR HER SERVICE AS AN ELECTED OFFICIAL WAS COVERED AT THE TIME THAT HE OR SHE COMMITTED THE FELONY; TO PROVIDE THAT THE SYSTEM MAY CONCLUSIVELY RELY ON AN ORDER FOR WITHHOLDING FROM THE COURT AND THE NOTICE FROM THE ATTORNEY GENERAL THAT THE REQUIREMENTS OF THIS ACT HAVE BEEN MET IN WITHHOLDING A MEMBER'S RETIREMENT BENEFITS FROM THE SYSTEM OR PLAN; TO PROVIDE THAT THE SYSTEM IS NOT LIABLE FOR ANY MISTAKE IN THE PAYMENT OF RETIREMENT BENEFITS TO A MEMBER IN GOOD FAITH RELIANCE ON AN ORDER FOR WITHHOLDING FROM THE COURT AND THE NOTICE FROM THE ATTORNEY GENERAL; TO PROVIDE THAT ANY AMBIGUITY OR UNCERTAINTY ABOUT WHETHER A MEMBER'S RETIREMENT BENEFITS FROM THE SYSTEM OR PLAN SHOULD BE WITHHELD SHALL BE RESOLVED IN FAVOR OF THE MEMBER; TO AMEND SECTIONS 25-11-120, 25-11-129 AND 25-11-319, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 25-11-147, Mississippi Code of 1972:
25-11-147. (1) "Felony involving public funds" means a felony in which public funds were unlawfully taken, obtained or misappropriated in the abuse or misuse of the person's office or money coming into the person's hands by virtue of the person's office.
(2) (a) If an active member of the system who is an elected official is convicted of or enters a plea of guilty or nolo contendere in any court of this state to a felony involving public funds that is committed on or after July 1, 2019; or
(b) If a retired member of the system who is elected to public office after retirement and employed under Section 25-11-127 is convicted of or enters a plea of guilty or nolo contendere in any court of this state to a felony involving public funds that is committed during the member's employment under Section 25-11-127 and is committed on or after July 1, 2019; or
(c) If a retired member of the system who was an elected official, or a member of the system who was an elected official and has withdrawn from service but is not receiving a retirement allowance from the system, is convicted of or enters a plea of guilty or nolo contendere in any court of this state to a felony involving public funds that was committed while the member was an elected official on or after July 1, 2019, the court shall conduct a hearing in a separate civil proceeding to determine if all of the conditions in this subsection have been met. The court shall provide notice of the hearing to the member and each person who is named as a beneficiary of the member in the records of the system. If, after the hearing, the court determines that all of the conditions in this subsection have been met, the court shall issue an order for withholding from the member's retirement benefits from the system as provided in this section. The court shall send a copy of its order for withholding to the system.
(3) (a) If an active member of the system who is an elected official is convicted of or enters a plea of guilty or nolo contendere in a court of another state or a federal court to a crime that would be a felony under the laws of this state if the crime were committed in this state, and that is a felony involving public funds and is committed on or after July 1, 2019; or
(b) If a retired member of the system who is elected to public office after retirement and employed under Section 25-11-127 is convicted of or enters a plea of guilty or nolo contendere in a court of another state or a federal court to a crime that would be a felony under the laws of this state if the crime were committed in this state, and that is a felony involving public funds that is committed during the member's employment under Section 25-11-127 and is committed on or after July 1, 2019; or
(c) If a retired member of the system who was an elected official, or a member of the system who was an elected official and has withdrawn from service but is not receiving a retirement allowance from the system, is convicted of or enters a plea of guilty or nolo contendere in a court of another state or a federal court to a crime that would be a felony under the laws of this state if the crime were committed in this state, and that is a felony involving public funds that was committed while the member was an elected official on or after July 1, 2019,
the Attorney General of Mississippi shall enter a motion in the circuit court of the county of residence of the member, or in the Circuit Court of the First Judicial District of Hinds County, Mississippi, if the member does not reside in Mississippi, for issuance of an order for withholding from the member's retirement benefits from the system as provided in this section. The court shall conduct a civil hearing to determine if all of the conditions in this subsection have been met. The court shall provide notice of the hearing to the member and each person who is named as a beneficiary of the member in the records of the system. If, after the hearing, the court determines that all of the conditions in this subsection have been met, the court shall issue an order for withholding from the member's retirement benefits from the system as provided in this section. The court shall send a copy of its order for withholding to the system.
(4) The order for withholding shall direct the system to withhold a specified amount from the member's retirement benefits each month so that the full amount of the public funds that were unlawfully taken, obtained or misappropriated in the abuse or misuse of the member's office will be repaid within not more than three (3) years from the date of the first withholding. The system shall withhold the amount designated in the order for withholding beginning on the first day of the month following the date that the system receives the notice from the Attorney General under subsection (5) of this section. The system shall pay the amounts withheld to the Attorney General each month, and the Attorney General shall distribute the amounts received from the system to the government body from which the public funds that were unlawfully taken, obtained or misappropriated in the abuse or misuse of the member's office. The order for withholding shall not be considered a garnishment.
(5) A member who is an elected official who is convicted of a felony involving public funds shall not have any of his or her retirement benefits from the system withheld until all appeals of the conviction have been finally concluded or the time for an appeal from the conviction has expired. Upon receipt of the order for withholding from the court, the system shall request the Attorney General for a determination of whether all appeals of the conviction have been finally concluded or the time for an appeal from the conviction has expired. After the Attorney General notifies the system that all appeals of the conviction have been finally concluded or the time for an appeal from the conviction has expired, the member's retirement benefits from the system shall be withheld as provided in this section.
(6) (a) An active member who is an elected official, or a member of the system who was an elected official and has withdrawn from service but is not receiving a retirement allowance from the system, for whom a court has issued an order for withholding from his or her retirement benefits from the system, shall have his or her retirement benefits withheld when he or she first begins receiving a retirement allowance, and the member shall not receive the full amount of his or her retirement allowance or other retirement benefits from the system until the full amount of the public funds that were unlawfully taken, obtained or misappropriated in the abuse or misuse of the member's office has been withheld from the member's retirement benefits, as determined by the Attorney General.
(b) A retired member who was an elected official and for whom a court has issued an order for withholding from his or her retirement benefits from the system shall have his or her retirement allowance withheld beginning on the first day of the month following the date that the system receives the notice from the Attorney General under subsection (5) of this section, and the member shall not receive the full amount of his or her retirement benefits from the system after that date until the full amount of the public funds that were unlawfully taken, obtained or misappropriated in the abuse or misuse of the member's office has been withheld from the member's retirement benefits, as determined by the Attorney General.
(7) If a member of the system who is or was an elected official is also a member of another retirement system administered by the Board of Trustees of the Public Employees' Retirement System, and the felony involving public funds for which the member was convicted or entered a plea of guilty or nolo contendere was in connection with the member's service as an elected official that is covered by only one (1) of the retirement systems, the member's retirement benefits will be withheld only from the retirement system in which his or her service as an elected official was covered at the time that he or she committed the felony. In the case of a retired member who is elected to public office after retirement and employed under Section 25-11-127, the member's retirement benefits will be withheld only from the retirement system in which his or her service as an elected official would have been covered if the member had been an elected official in the same office at the time that he or she committed the felony.
(8) The system may conclusively rely on an order for withholding from the court and the notice from the Attorney General that the requirements of this section have been met in withholding a member's retirement benefits from the system under this section. The system is not liable for any mistake in the payment of retirement benefits to a member in good faith reliance on an order for withholding from the court and the notice from the Attorney General, and a member who receives any such mistaken payments shall not be liable to repay those benefits to the system.
(9) A member's retirement benefits from the system shall not be withheld unless there is a specific provision in this section applicable to the member's situation that requires the withholding of the member's retirement benefits from the system. Any ambiguity or uncertainty about whether a member's retirement benefits from the system should be withheld shall be resolved in favor of the member.
SECTION 2. The following shall be codified as Section 25-11-321, Mississippi Code of 1972:
25-11-321. (1) "Felony involving public funds" means a felony in which public funds were unlawfully taken, obtained or misappropriated in the abuse or misuse of the person's office or money coming into the person's hands by virtue of the person's office.
(2) (a) If an active member of the plan is convicted of or enters a plea of guilty or nolo contendere in any court of this state to a felony involving public funds that is committed on or after July 1, 2019; or
(b) If a retired member of the plan, or a member of the plan who is not serving in the State Legislature or as President of the Senate but is not receiving a retirement allowance from the plan, is convicted of or enters a plea of guilty or nolo contendere in any court of this state to a felony involving public funds that was committed while the member was serving in the State Legislature or as President of the Senate on or after July 1, 2019, the court shall conduct a hearing in a separate civil proceeding to determine if all of the conditions in this subsection have been met. The court shall provide notice of the hearing to the member and each person who is named as a beneficiary of the member in the records of the system. If, after the hearing, the court determines that all of the conditions in this subsection have been met, the court shall issue an order for withholding from the member's retirement benefits from the plan as provided in this section. The court shall send a copy of its order for withholding to the system.
(3) (a) If an active member of the plan is convicted of or enters a plea of guilty or nolo contendere in a court of another state or a federal court to a crime that would be a felony under the laws of this state if the crime were committed in this state, and that is a felony involving public funds and is committed on or after July 1, 2019; or
(b) If a retired member of the plan, or a member of the plan who is not serving in the State Legislature or as President of the Senate but is not receiving a retirement allowance from the plan, is convicted of or enters a plea of guilty or nolo contendere in a court of another state or a federal court to a crime that would be a felony under the laws of this state if the crime were committed in this state, and that is a felony involving public funds that was committed while the member was serving in the State Legislature or as President of the Senate on or after July 1, 2019, the Attorney General of Mississippi shall enter a motion in the circuit court of the county of residence of the member, or in the Circuit Court of the First Judicial District of Hinds County, Mississippi, if the member does not reside in Mississippi, for issuance of an order for withholding from the member's retirement benefits from the plan as provided in this section. The court shall conduct a civil hearing to determine if all of the conditions in this subsection have been met. The court shall provide notice of the hearing to the member and each person who is named as a beneficiary of the member in the records of the system. If, after the hearing, the court determines that all of the conditions in this subsection have been met, the court shall issue an order for withholding from the member's retirement benefits from the plan as provided in this section. The court shall send a copy of its order for withholding to the system.
(4) The order for withholding shall direct the system to withhold a specified amount from the member's retirement benefits each month so that the full amount of the public funds that were unlawfully taken, obtained or misappropriated in the abuse or misuse of the member's office will be repaid within not more than three (3) years from the date of the first withholding. The system shall withhold the amount designated in the order for withholding beginning on the first day of the month following the date that the system receives the notice from the Attorney General under subsection (5) of this section. The system shall pay the amounts withheld to the Attorney General each month, and the Attorney General shall distribute the amounts received from the system to the government body from which the public funds that were unlawfully taken, obtained or misappropriated in the abuse or misuse of the member's office. The order for withholding shall not be considered a garnishment.
(5) A member who is convicted of a felony involving public funds shall not have any of his or her retirement benefits from the plan withheld until all appeals of the conviction have been finally concluded or the time for an appeal from the conviction has expired. Upon receipt of the order for withholding from the court, the system shall request the Attorney General for a determination of whether all appeals of the conviction have been finally concluded or the time for an appeal from the conviction has expired. After the Attorney General notifies the system that all appeals of the conviction have been finally concluded or the time for an appeal from the conviction has expired, the member's retirement benefits from the plan shall be withheld as provided in this section.
(6) (a) A member of the plan who is serving in the State Legislature or as President of the Senate, or a member of the plan who is not serving in the State Legislature or as President of the Senate but is not receiving a retirement allowance from the plan, for whom a court has issued an order for withholding from his or her retirement benefits from the plan, shall have his or her retirement benefits withheld when he or she first begins receiving a retirement allowance, and the member shall not receive the full amount of his or her retirement allowance or other retirement benefits from the plan until the full amount of the public funds that were unlawfully taken, obtained or misappropriated in the abuse or misuse of the member's office has been withheld from the member's retirement benefits, as determined by the Attorney General.
(b) A retired member of the plan for whom a court has issued an order for withholding from his or her retirement benefits from the plan shall have his or her retirement allowance withheld beginning on the first day of the month following the date that the system receives the notice from the Attorney General under subsection (5) of this section, and the member shall not receive the full amount of his or her retirement benefits from the plan after that date until the full amount of the public funds that were unlawfully taken, obtained or misappropriated in the abuse or misuse of the member's office has been withheld from the member's retirement benefits, as determined by the Attorney General.
(7) If a court has issued an order under this section for withholding from the retirement benefits of an active member of the plan, or a member of the plan who is not serving in the State Legislature or as President of the Senate but is not receiving a retirement allowance from the plan, the member also will have his or her retirement benefits from the Public Employees' Retirement System withheld when he or she first begins receiving a retirement allowance. If a retired member of the plan is an active or retired member of the Public Employees' Retirement System, or a member of the system who has withdrawn from service but is not receiving a retirement allowance from the system, for whom a court has issued an order for withholding his or her retirement benefits from the system under Section 25-11-147, the member's retirement benefits from the plan will not be withheld if the felony involving public funds for which the member was convicted or entered a plea of guilty or nolo contendere was not in connection with the member's service with the State Legislature or as President of the Senate.
(8) The Public Employees' Retirement System may conclusively rely on an order for withholding from the court and the notice from the Attorney General that the requirements of this section have been met in withholding a member's retirement benefits from the plan under this section. The system is not liable for any mistake in the payment of retirement benefits under the plan to a member in good faith reliance on an order for withholding from the court and the notice from the Attorney General, and a member who receives any such mistaken payments shall not be liable to repay those benefits to the plan.
(9) A member's retirement benefits from the plan shall not be withheld unless there is a specific provision in this section applicable to the member's situation that requires the withholding of the member's retirement benefits from the plan. Any ambiguity or uncertainty about whether a member's retirement benefits from the plan should be withheld shall be resolved in favor of the member.
SECTION 3. Section 25-11-120, Mississippi Code of 1972, is amended as follows:
25-11-120. (1) Any individual aggrieved by an administrative determination, including a determination of the medical board, relating to the eligibility for or payment of benefits, or the calculation of creditable service or other similar matters relating to the Public Employees' Retirement System or any other retirement system or program administered by the board, may request a hearing before a hearing officer designated by the board. Such hearings shall be conducted in accordance with rules and regulations adopted by the board and formal rules of evidence shall not apply. The hearing officer is authorized to administer oaths, hear testimony of witnesses and receive documentary and other evidence. In case of disability appeals, the hearing officer shall have the authority to defer a decision in order to request a medical evaluation or test or additional existing medical records not previously furnished by the claimant. After the hearing and the receipt of any additional medical evidence requested by the hearing officer, the hearing officer shall certify the record to the board, which shall include the hearing officer's proposed statement of facts, conclusions of law and recommendation. The record may include a taped recording of the proceedings of the hearing in lieu of a transcribed copy of the proceedings. The board shall receive the record and make its determination based solely on matters contained therein.
(2) Any individual aggrieved by the determination of the board may appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, in accordance with the Uniform Circuit Court Rules governing appeals to the circuit court in civil cases. Such appeal shall be made solely on the record before the board and this procedure shall be the exclusive method of appealing determinations of the board.
(3) The board is authorized to appoint a committee of the board to serve as hearing officer or to employ or contract with qualified personnel to perform the duties of hearing officer and court reporter as may be necessary for conducting, recording and transcribing such hearings. The board may assess and collect fees to offset costs related to such hearings. Those fees shall be deposited to the credit of the Public Employees' Retirement System.
(4) Interest shall not be paid on any benefits, including, but not limited to, benefits that are delayed as a result of an administrative determination or an appeal from an administrative determination.
(5) The withholding from a member's retirement benefits from the Public Employees' Retirement System under Section 25-11-147 or from the Supplemental Legislative Retirement Plan under Section 25-11-321 shall not be considered an administrative determination for which a hearing may be requested or held under this section.
SECTION 4. Section 25-11-129, Mississippi Code of 1972, is amended as follows:
25-11-129. (1) The right
of a person to an annuity, a retirement allowance or benefit, or to the return
of contributions, or to any optional benefit or any other right accrued or
accruing to any person under the provisions of Articles 1 and 3, the system and
the monies in the system created by * * * those articles, are * * * exempt from any state, county or
municipal ad valorem taxes, income taxes, premium taxes, privilege taxes,
property taxes, sales and use taxes or other taxes not so named,
notwithstanding any other provision of law to the contrary, and exempt from
levy and sale, garnishment, attachment or any other process whatsoever, and
shall be unassignable except as specifically otherwise provided in this article
and except as otherwise provided in subsection (2) of this section. The
withholding from a member's retirement benefits from the system under Section
25-11-147 is not a garnishment, attachment or assignment of the member's
retirement benefits for the purposes of this section.
(2) Any retired member or beneficiary receiving a retirement allowance or benefit under this article may authorize the system to make deductions from the retirement allowance or benefit for the payment of employer or system sponsored group life or health insurance. The deductions authorized under this subsection shall be subject to rules and regulations adopted by the board.
SECTION 5. Section 25-11-319, Mississippi Code of 1972, is amended as follows:
25-11-319. (1) The right of a person to an annuity, a retirement allowance or benefit, or to the return of contributions, or to any optional benefit or any other right accrued or accruing to any person under the provisions of the Supplemental Legislative Retirement Plan, and the monies in the plan created by this article, are exempt from any state or municipal tax, and exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as specifically otherwise provided in this article. The withholding from a member's retirement benefits from the plan under Section 25-11-321 is not a garnishment, attachment or assignment of the member's retirement benefits for the purposes of this section.
(2) Any retired member or beneficiary receiving a retirement allowance or benefit under this article may authorize the system to make deductions from the retirement allowance or benefit for the payment of employer or system sponsored group life or health insurance. The deductions authorized under this subsection shall be subject to rules and regulations adopted by the board.
SECTION 6. This act shall take effect and be in force from and after July 1, 2019.
