Trial Engrossment of Amendment A05270 to Senate Bill 0611 P.N. 0762, Regular Session 2017-2018

A05270

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

611

Session of

2017

INTRODUCED BY DiSANTO, AUMENT, FOLMER, LANGERHOLC, MARTIN,

RAFFERTY, VULAKOVICH AND WHITE, APRIL 17, 2017

SENATOR HUTCHINSON, FINANCE, AS AMENDED, APRIL 26, 2017

AN ACT

Amending the act of July 8, 1978 (P.L.752, No.140), entitled "An

act providing for the forfeiture of the pensions of certain

public employees and authorizing the State or political

subdivision to garnish the pension benefits of certain public

officers and employees upon conviction of certain criminal

activity related to their office or position of employment,"

further providing for definitions, for disqualification and

forfeiture of benefits and for restitution for monetary loss;

and repealing a retroactivity provision.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The definitions of "crimes related to public

office or public employment" and "public official" or "public

employee" in section 2 of the act of July 8, 1978 (P.L.752,

No.140), known as the Public Employee Pension Forfeiture Act,

are amended and the section is amended by adding definitions to

read:

Section 2. Definitions.

The following words and phrases when used in this act shall

have, unless the context clearly indicates otherwise, the

meanings given to them in this section:

"Benefits administrator." A retirement board, pension fund

administrator or employer that manages, controls or maintains a

pension system for public officials or public employees.

"Crimes related to public office or public employment." Any

of the criminal offenses as set forth in the following

provisions of Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes or other enumerated statute when committed

by a public official or public employee through his public

office or position or when his public employment places him in a

position to commit the crime:

Any of the criminal offenses set forth in Subchapter B of

Chapter 31 (relating to definition of offenses) when the

criminal offense is committed by a school employee [as defined

in 24 Pa.C.S. § 8102 (relating to definitions)] against a

student.

Section 3922 (relating to theft by deception) when the

criminal culpability reaches the level of a misdemeanor of the

first degree or higher.

Section 3923 (relating to theft by extortion) when the

criminal culpability reaches the level of a misdemeanor of the

first degree or higher.

Section 3926 (relating to theft of services) when the

criminal culpability reaches the level of a misdemeanor of the

first degree or higher.

Section 3927 (relating to theft by failure to make required

disposition of funds received) when the criminal culpability

reaches the level of a misdemeanor of the first degree or

higher.

Section 4101 (relating to forgery).

Section 4104 (relating to tampering with records or

A05270 - 2 -

identification).

Section 4113 (relating to misapplication of entrusted

property and property of government or financial institutions)

when the criminal culpability reaches the level of misdemeanor

of the second degree.

[Section 4701 (relating to bribery in official and political

matters).]

Section 4702 (relating to threats and other improper

influence in official and political matters).

[Section 4902 (relating to perjury).]

Section 4903(a) (relating to false swearing).

Section 4904 (relating to unsworn falsification to

authorities).

Section 4906 (relating to false reports to law enforcement

authorities).

[Section 4909 (relating to witness or informant taking

bribe).]

Section 4910 (relating to tampering with or fabricating

physical evidence).

Section 4911 (relating to tampering with public records or

information).

Section 4952 (relating to intimidation of witnesses or

victims).

Section 4953 (relating to retaliation against witness, victim

or party).

Section 5101 (relating to obstructing administration of law

or other governmental function).

Section 5301 (relating to official oppression).

Section 5302 (relating to speculating or wagering on official

action or information).

A05270 - 3 -

Article III of the act of March 4, 1971 (P.L.6, No.2), known

as the "Tax Reform Code of 1971."

Any criminal offense under the laws of this Commonwealth

classified as a felony or punishable by a term of imprisonment

exceeding five years.

In addition to the foregoing specific crimes, the term also

includes all criminal offenses as set forth in Federal law

substantially the same as the crimes enumerated herein[.]:

(1) classified as a felony; or

(2) punishable by a term of imprisonment exceeding five years. :

(1) under 18 U.S.C. §§ 371 (relating to commit offense

or to defraud United States) and 1341 (relating to frauds and

swindles); and

(2) as set forth in Federal law substantially the same

as the crimes enumerated herein[.]:

(i) classified as a felony; or

(ii) punishable by a term of imprisonment exceeding

five years.

* * *

"Public official" or "public employee." Any person who is

elected or appointed to any public office or employment

including justices, judges and [justices of the peace]

magisterial district judges and members of the General Assembly

or who is acting or who has acted in behalf of the Commonwealth

or a political subdivision or any agency thereof including but

not limited to any person who has so acted and is otherwise

entitled to or is receiving retirement benefits whether that

person is acting on a permanent or temporary basis and whether

or not compensated on a full or part-time basis. This term shall

not include independent contractors nor their employees or

A05270 - 4 -

agents under contract to the Commonwealth or political

subdivision nor shall it apply to any person performing tasks

over which the Commonwealth or political subdivision has no

legal right of control. However, this term shall include all

persons who are members of any retirement system funded in whole

or in part by the Commonwealth or any political subdivision. For

the purposes of this act such persons are deemed to be engaged

in public employment.

"School employee." As defined in 24 Pa.C.S. § 8102 (relating

to definitions).

"Student." An individual who is:

(1) instructed by a school employee;

(2) supervised by a school employee;

(3) counseled by a school employee; or

(4) mentored by a school employee.

Section 2. Sections 3(a), (b) and (d) and 4(a) and (d) of

the act are amended to read:

Section 3. Disqualification and forfeiture of benefits.

(a) Notwithstanding any other provision of law, no public

official or public employee nor any beneficiary designated by

such public official or public employee shall be entitled to

receive any retirement or other benefit or payment of any kind

except a return of the contribution paid into any pension fund

without interest, if such public official or public employee is

[convicted] found guilty of a crime related to public office or

public employment or pleads guilty or no [defense] contest to

any crime related to public office or public employment.

(b) [The benefits shall be forfeited upon entry of a plea of

guilty or no defense or upon initial conviction and no payment

or partial payment shall be made during the pendency of an

A05270 - 5 -

appeal. If] The benefits shall be immediately forfeited upon

forfeited retroactive to the date of the public official's or

public employee's entry of a plea of guilty or no contest or

upon initial entry of a jury verdict or judicial order of

guilty, with respect to any crimes related to public office or

public employment. The sentencing court shall transmit the

notice to the appropriate benefits administrator within three

business days after entry of the plea, verdict or order. The

forfeiture shall not be stayed or affected by pendency of an

appeal or collateral attack on the plea, verdict or order,

regardless of whether a court has entered or stayed the sentence

pending the appeal or collateral attack. If a plea, verdict or

order is vacated and a verdict of not guilty is rendered or the

indictment or criminal information finally dismissed, then the

public official or public employee shall be reinstated as a

member of the pension fund or system and shall be entitled to

all benefits including those accruing during the period of

forfeiture if any. Such [conviction or] plea, verdict or order

shall be deemed to be a breach of a public officer's or public

employee's contract with his employer.

* * *

(d) The appropriate [retirement board] benefits

administrator may retain a member's contributions and interest

thereon for the purpose of paying any fine imposed upon the

member of the fund by a court of competent jurisdiction, or for

the repayment of any funds misappropriated by such member from

the Commonwealth or any political subdivision.

* * *

Section 4. Restitution for monetary loss.

(a) Whenever any public official or public employee who is a

A05270 - 6 -

member of any pension system funded by public moneys [is

convicted or pleads guilty or pleads no defense] enters a plea

of guilty or no contest in any court of record to any crime

related to a public office or public employment and which plea

is accepted by the court or whenever there is initial entry of a

jury verdict or judicial order of guilty against the public

official or public employee in any court of record to any crime

related to a public office or public employment, the court shall

order the defendant to make complete and full restitution to the

Commonwealth or political subdivision of any monetary loss

incurred as a result of the criminal offense.

* * *

(d) [The retirement board, administrator of the pension fund

or employer of the defendant] Upon the finding of guilty of a

public official or public employee, or upon the entry of a plea

of guilty or no contest in any court of record by a public

official or public employee and which plea is accepted by the

court , the court shall notify the appropriate benefits

administrator of such finding or entrance of plea within three

business days of the finding or plea . UNTIL RESTITUTION IS

DETERMINED BY A COURT, THE APPROPRIATE BENEFITS ADMINISTRATOR

SHALL NOT MAKE PAYMENT OF ANY REFUND OF CONTRIBUTIONS APPLIED

FOR AFTER THE DATE OF SUCH FINDING OR ENTRY TO THE PUBLIC

OFFICIAL OR PUBLIC EMPLOYEE UNTIL THE COURT NOTIFIES THE

APPROPRIATE BENEFITS ADMINISTRATOR THAT NO RESTITUTION IS DUE.

The court shall notify the appropriate benefits administrator if

restitution is or is not ordered and the amount, if applicable.

The appropriate benefits administrator, upon being served with a

copy of the court's order, shall pay over all such pension

benefits, contributions or other benefits to the extent

A05270 - 7 -

necessary to satisfy the order of restitution.

Section 3. Section 7 of the act is repealed:

[Section 7. Retroactively.

The provisions of this act shall be retroactive to December

1, 1972.]

Section 4. The General Assembly finds and declares as

follows:

(1) This section applies to the following provisions:

(i) The editorial change in the second paragraph of

the definition of "crimes related to public office or

public employment" in section 2 of the act.

(ii) The addition of the definitions of "school

employee" and "student" in section 2 of the act.

(2) The provisions referred to in paragraph (1) are

intended to clarify the scope of the act as amended by the

act of July 15, 2004 (P.L.733, No.86), entitled "An act

amending the act of July 8, 1978 (P.L.752, No.140), entitled

'An act providing for the forfeiture of the pensions of

certain public employees and authorizing the State or

political subdivision to garnish the pension benefits of

certain public officers and employees upon conviction of

certain criminal activity related to their office or position

of employment,' further defining 'crimes related to public

office or public employment' to include certain sexual

offenses committed by school employees against students."

Section 5 4. The following provisions apply to crimes

related to public office or public employment committed on or

after the effective date of this section:

(1) The amendment or addition of the definitions of

"benefits administrator," "crimes related to public office or

A05270 - 8 -

public employment" except for the editorial change in the

second paragraph of the definition, and "public official" or

"public employee" in section 2 of the act.

(2) The amendment of section 3(a), (b) and (d) of the

act.

(3) The amendment of section 4(a) and (d) of the act.

(4) The repeal of section 7 of the act.

Section 6 5. This act shall take effect immediately.

A05270 - 9 -