New Jersey-2018-S144-Introduced

An Act concerning the forfeiture of retirement benefits of an elected official convicted of a crime and amending P.L.1995, c.408 and N.J.S.2C:51-2.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.1995, c. 408 (C.43:1-3) is amended to read as follows:

1. a. The receipt of a public pension or retirement benefit is hereby expressly conditioned upon the rendering of honorable service by a public officer or employee.

b. (1) The board of trustees of any State or locally-administered pension fund or retirement system created under the laws of this State shall order the forfeiture of all of the pension or retirement benefit of any member of the fund or system who is convicted of a crime under the laws of this State, or of an offense under the laws of another state or the United States which would have been a crime under the laws of this State, for misconduct occurring during the member's public service as an elected official which misconduct involves or touches such office and thus renders the member's service dishonorable.

(2) The board of trustees of any State or locally-administered pension fund or retirement system created under the laws of this State is authorized to order the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member of the fund or system for misconduct occurring during the member's public service which renders the member's service or part thereof dishonorable and to implement any pension forfeiture ordered by a court pursuant to section 2 of P.L.2007, c.49 (C.43:1-3.1).

c. In evaluating a member's misconduct, for the purpose of paragraph (2) of subsection b. of this section, to determine whether it constitutes a breach of the condition that public service be honorable and whether forfeiture or partial forfeiture of earned service credit or earned pension or retirement benefits is appropriate, the board of trustees shall consider and balance the following factors in view of the goals to be achieved under the pension laws:

(1) the member's length of service;

(2) the basis for retirement;

(3) the extent to which the member's pension has vested;

(4) the duties of the particular member;

(5) the member's public employment history and record covered under the retirement system;

(6) any other public employment or service;

(7) the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated;

(8) the relationship between the misconduct and the member's public duties;

(9) the quality of moral turpitude or the degree of guilt or culpability, including the member's motives and reasons, personal gain and similar considerations;

(10) the availability and adequacy of other penal sanctions; and

(11) other personal circumstances relating to the member which bear upon the justness of forfeiture.

d. Whenever a board of trustees determines, pursuant to this section, that a partial forfeiture of earned service credit or earned pension or retirement benefits is warranted, it shall order that benefits be calculated as if the accrual of pension rights terminated as of the date the misconduct first occurred or, if termination as of that date would in light of the nature and extent of the misconduct result in an excessive pension or retirement benefit or in an excessive forfeiture, a date reasonably calculated to impose a forfeiture that reflects the nature and extent of the misconduct and the years of honorable service.

(cf: P.L.2007, c.49, s.1)

2. N.J.S.2C:51-2 is amended to read as follows:

2C:51-2. Forfeiture of Public Office, Position or Employment.

a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office, position or employment if:

(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;

(2) He is convicted of an offense involving or touching such office, position or employment; or

(3) The Constitution so provides.

As used in this subsection, "involving or touching such office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person.

b. A court of this State shall enter an order of forfeiture pursuant to subsection a.:

(1) Immediately upon a finding of guilt by the trier of fact or a plea of guilty entered in any court of this State unless the court, for good cause shown, orders a stay of such forfeiture pending a hearing on the merits at the time of sentencing; or

(2) Upon application of the county prosecutor or the Attorney General, when the forfeiture is based upon a conviction of an offense under the laws of another state or of the United States. An order of forfeiture pursuant to this paragraph shall be deemed to have taken effect on the date the person was found guilty by the trier of fact or pled guilty to the offense.

c. No court shall grant a stay of an order of forfeiture pending appeal of a conviction or forfeiture order unless the court is clearly convinced that there is a substantial likelihood of success on the merits. If the conviction be reversed or the order of forfeiture be overturned, he shall be restored, if feasible, to his office, position or employment with all the rights, emoluments and salary thereof from the date of forfeiture.

Any official action taken by the convicted person on or after the date as of which a forfeiture of the person's office shall take effect shall, during a period of 60 days following the date on which an order of forfeiture shall have been issued hereunder, be voidable by the person's successor in office or, if the office of the person was that of member of the governing body of a county, municipality or independent authority, by that governing body.

d. In addition to the punishment prescribed for the offense, and the forfeiture set forth in subsection a. of N.J.S.2C:51-2, any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions. As used in this subsection, "involving or touching on his public office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person.

e. Any forfeiture or disqualification under subsection a., b. or d. which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.

f. Except as may otherwise be ordered by the Attorney General as the public need may require, any person convicted of an offense under section 97 of P.L.1999, c.440 (C.2C:21-34), N.J.S.2C:27-2, N.J.S.2C:27-3, N.J.S.2C:27-5, section 100 of P.L.1999, c. 440 (C.2C:27-9), section 5 of P.L.2003, c.255 (C.2C:27-10), section 6 of P.L.2003, c.255 (C.2C:27-11), N.J.S.2C:29-4, N.J.S.2C:30-2, or N.J.S.2C:30-3 of this Title shall be ineligible, either directly or indirectly, to submit a bid, enter into any contract, or to conduct any business with any board, agency, authority, department, commission, public corporation, or other body of this State, of this or one or more other states, or of one or more political subdivisions of this State for a period of, but not more than, 10 years from the date of conviction for a crime of the second degree, or five years from the date of conviction for a crime of the third degree. It is the purpose of this subsection to bar any individual convicted of any of the above enumerated offenses and any business, including any corporation, partnership, association or proprietorship in which such individual is a principal, or with respect to which such individual owns, directly or indirectly, or controls 5% or more of the stock or other equity interest of such business, from conducting business with public entities.

The State Treasurer shall keep and maintain a list of all corporations barred from conducting such business pursuant to this section.

g. In any case in which the issue of forfeiture is not raised in a court of this State at the time of a finding of guilt, entry of guilty plea or sentencing, a forfeiture of public office, position or employment required by this section may be ordered by a court of this State upon application of the county prosecutor or the Attorney General or upon application of the public officer or public entity having authority to remove the person convicted from his public office, position or employment. The fact that a court has declined to order forfeiture shall not preclude the public officer or public entity having authority to remove the person convicted from seeking to remove or suspend the person from his office, position or employment on the ground that the conduct giving rise to the conviction demonstrates that the person is unfit to hold the office, position or employment.

h. In addition to the forfeiture provided in this section, a person who holds or has held any elective public office under the government of this State, or any political subdivision thereof, who is convicted of a crime under the laws of this State, or of an offense under the laws of another state or the United States which would have been a crime under the laws of this State, that involves or touches such office shall forfeit all of the pension or retirement benefit as a member of any State or locally-administered pension fund or retirement system in accordance with section 1 of P.L.1995, c.408 (C.43:1-3).

(cf: P.L.2007, c.49, s.5)

3. This act shall take effect immediately.

STATEMENT

The purpose of this bill is to make mandatory, rather than permissive, the forfeiture of all of the pension or retirement benefit of any member of a State or locally-administered public pension fund or retirement system who is an elected official for misconduct involving or touching the member's public service which results in a conviction of a criminal offense.