The Wages of Sin

One of the perennial questions that arises in government is whether dishonest public officials, if convicted, should forfeit their pensions. There is considerable sentiment that an officeholder, whether elected or appointed, who has betrayed the people he was paid to serve faithfully should not be rewarded after he leaves government, because he did not deserve the compensation he received from the state or the city while he was enriching himself.

The pension forfeiture has been a powerful incentive over the years to keep police officers honest. A crooked cop is one of the worst enemies of good government, since physical protection is a basic service provided by local government, and officers who take bribes either to protect wrongdoers or to enforce the law not only violate their oath of office, but they undermine both the concept and the reality of equal justice under law.

The issue becomes murkier when we consider the different varieties of criminal conduct. For example, some acts which are clearly crimes are unrelated to the employee's official duties. A city worker kills his wife, and is sent to prison. All during his career, he has been making contributions to the pension fund. Those savings should, in fairness, go to his children, whose mother is dead and whose father is in jail. His crime should not impoverish the innocent children, who have already been victimized. This leads to questions of where to draw the line.

The case of former Supreme Court Justice Victor Barron of Brooklyn, who continued to collect an $89,094 pension during the two years he was imprisoned for demanding a substantial bribe from a litigant in order to settle a case that was before him, was considered particularly offensive. While the state was paying for his room and board in prison, it was also compensating him handsomely for what had been corrupt service. Who knows how many other bribes Barron received before one lawyer complained to District Attorney Joe Hynes, who subsequently launched an investigation?

Is a public pension a form of deferred income, which vests in the pensioner's family, or is it a reward paid at the conclusion of one's public service for faithful performance of duty? There is a provision under which city employees can defer income to 401(k) accounts, and that money is clearly theirs, except that it may be used to pay a fine. As to the justification for forfeiture of a pension, which is primarily the city's money, the case is perhaps murkier.

One great advantage of the city's right to deny a pension to a dishonest employee is that it enables lesser settlements to be made in cases of misconduct. There are some sins or indiscretions or serious errors of judgment for which a fine of thousands of dollars would be an appropriate penalty. That could provide for the recovery of misappropriated funds and serve as a deterrent to others not to engage in similar misconduct. If the pension were to be immune from recapture, there would be no incentive for the employee to pay or settle the claim against him; he could simply retire and collect his ill-gotten gains for the rest of his life, as could his wife, if she were his beneficiary. They could laugh all the way to the bank, or to Florida if they wanted their income to go farther.

There is a great variety of crimes that have been committed by public employees, both on the job and off the job. For instance, a social worker or HRA manager may wrongly certify someone as eligible to receive benefits. If this is done because the employee mistakenly believes the applicant is entitled to or worthy of benefits, whether food stamps, rent reduction, monthly subsidies, or enrollment in a particular program, that is one kind of error. If the employee himself receives personal benefit from that decision, whether cash, sex or unearned privileges of any nature, the situation is much more serious, and punishment should be more severe. If the case should justify dismissal, the issue of pension forfeiture should be considered as a potential part of the penalty, depending on the circumstances.

There should not be an ironclad rule in these cases, where the extent of the penalty should depend on the motive of the wrongdoers, the seriousness of the offense, the number of people victimized, denied their rights, or unjustly enriched or deprived, the length of time the conspiracy continued, the defendant's willingness to co-operate with the authorities, the value of that co-operation, to whom pension benefits may be allocated if the defendant's interest in receiving those benefits is revoked, as well as other facts which may be unique to the situation. No one rule can cover all the cases, but pension forfeiture should be within the range of available outcomes, depending on its gravity.

Often cases of this sort deal with people who have already messed up their lives, one way or another. Rule 16-J: "Nobody does it once" applies here, and people who are apprehended for one specific offense have usually committed others which did not come to the attention of the authorities. When I was at Parks, and a disciplinary proceeding was being held for an employee, the union lawyer would often argue that his client had had a spotless record for twenty years, and it was unjust to punish him severely for a single misstep. People familiar with the circumstances knew for a fact that the employee had been engaging in similar misconduct for years, and this was simply the first time the agency put its resources into catching him.

Should the hearing officer and the Commissioner keep those facts in mind, or should they consider this as a brand new case against a first-time offender. Is there a presumption of innocence when there has been no previous proceeding? Can a hearing officer consider what everyone knows, or is he bound by the record of this particular case? If he is bound by the record in determining guilt or innocence, when it comes to the penalty phase, is he required to assume that every act of misconduct is a first offense?

How many hearing officers, particularly those in middle management at the agency, can be deterred from findings of guilt or serious penalties by the fact that they must co-exist with the employees on trial and their union representatives? It helps no one's career to be identified as unsympathetic to working people, even if the misconduct of which they are accused consists of not working. The union leaders are likely to be around longer than the commissioners who come and go with the political winds. They remember who their friends are, people who are lenient with their members without regards to the facts of the cases they are assigned to judge.