A lot of public employees spend a lot of time thinking about their pensions. Recently, some high-level officials, including Gov. Andrew Cuomo and U.S. Attorney Preet Bharara, have spent a lot of time thinking about how to take away the pensions of corrupt state politicians. Thanks to state pension law and the state constitution, it’s not easy, or perhaps even possible, but certainly worth trying.
Cuomo proposed it in 2011 after he saw former state Comptroller Alan Hevesi go to prison for multiple acts of corruption and continue to draw a pension of $105,000 a year. The governor made so little progress on this or other needed reforms, such as requiring legislators who also work as lawyers to disclose their client lists, that he eventually used his executive powers under the Moreland Act to create a special commission to investigate corruption among lawmakers. Unsurprisingly, the commission has received little to no cooperation from either the Assembly or Senate, both of which hired lawyers and refused to provide the client list that it formally requested.
In fact, it was at a hearing of the Moreland Commission last week that Bharara expressed alarm over the extraordinary level of corruption in Albany (30 New York state politicians indicted, convicted or otherwise accused of misconduct in the last seven years) and promised to go after the pensions of those who committed crimes connected to their office.
But Bharara wouldn’t do it by simply trying to strip the wrongdoer of his pension, which state pension law protects against any legal action and the constitution against any diminishment. He would do it by using appropriate fines that take into account how much the corrupt official will receive from his pension, by using federal civil forfeiture law to attach pensions to satisfy unpaid criminal judgments, and by using the same to claw back the amount of pension that accrued during the time of the criminal behavior.
It would be up to a judge to determine whether civil forfeiture penalties were appropriate in a particular case and to assess them. And, of course, it will be up to the courts to determine whether any of these methods are legal, given the special protections that New York state currently affords pensions.
But Bharara is right when he says, “the common-sense principle is a simple one: Convicted politicians should not grow old comfortably cushioned by a pension paid for by the very people they betrayed in office.”
We trust that the vast majority of New Yorkers would agree, and would gladly support changes to state law or the constitution that would make pensions less than inviolate for public officials who violate the laws against corruption.