Citations Affected: IC 5-10; IC 5-10.3; IC 5-14; IC 10-12; noncode.
Synopsis: Forfeiture of public pensions for misconduct. Provides in
certain circumstances for the forfeiture of all or a portion of a pension
benefit from the state excise police, gaming agent, and conservation
enforcement officers' retirement plan, the public employees' retirement
fund, and the state police benefit system. Requires the respective
boards that administer each of these funds to consider investigating a
possible forfeiture whenever a fund member is convicted of a felony
arising out of the fund member's service as a public officer or employee
and involving an act of fraud, deceit, or abuse of the public trust
resulting in a financial loss to the public or an unlawful benefit to an
individual in the conduct of state business, bribery, official misconduct,
or certain other offenses. Requires a board to wait until the entry of
judgment of conviction before holding a public hearing to determine
whether forfeiture is appropriate. Establishes due process requirements
for a forfeiture hearing. Requires a majority vote by a board, based on
clear and convincing evidence, to forfeit a pension benefit. Requires a
board to: (1) issue a written determination; and (2) reduce the amount
of a proposed forfeiture by the amount of any restitution made. Allows
a fund member to request that the respective board reconsider a
forfeiture determination. Provides for a new hearing if a fund member's
conviction is reversed, vacated, or set aside. Provides for the return of
a fund member's contributions with interest when the pension benefit
is forfeited. Provides that the administrator's evidence concerning
forfeiture is confidential until: (1) the fund member is notified of the
forfeiture hearing; or (2) the fund member elects to have the records
made public. Provides that a final determination of a board is available
for inspection and copying.
Effective: July 1, 2006.
January 10, 2006, read first time and referred to Committee on Pensions and Labor.
January 30, 2006, amended, reported favorably _ Do Pass.
A BILL FOR AN ACT to amend the Indiana Code concerning
pensions.
IC 35-44-1-2(2), IC 35-44-1-2(3), or IC 35-44-1-2(4)).
(4) Conflict of interest (IC 35-44-1-3).
(5) Computer tampering (IC 35-43-1-4).
(6) Identity deception (IC 35-43-5-3.5).
(7) Ghost employment (IC 35-44-2-4).
(8) An attempt or conspiracy to commit an offense listed in
subdivisions (1) through (7).
(9) A crime in any other jurisdiction the elements of which are
substantially similar to the elements of an offense listed in
subdivisions (1) through (8).
(d) Whenever the PERF board receives evidence of a conviction
under subsection (c), the PERF board shall consider beginning an
investigation. If, after conducting an investigation, the PERF board
decides, by a majority vote, to conduct further proceedings to
determine whether forfeiture of all or part of the participant's
annual retirement allowance is appropriate, the PERF board shall
schedule a public hearing on the matter not later than sixty (60)
days after the entry of judgment of conviction. The PERF board
shall notify the participant not later than five (5) days after the
public hearing is scheduled.
(e) If a public hearing is scheduled under subsection (d), the
participant may examine and make copies of all evidence in the
PERF board's possession relating to the possible forfeiture of all or
a portion of the participant's annual retirement allowance.
(f) At a public hearing under subsection (d), the participant is
entitled to appropriate due process protection consistent with
IC 4-21.5, including the following:
(1) The right to be represented, at the participant's expense,
by counsel.
(2) The right to call and examine witnesses.
(3) The right to introduce exhibits.
(4) The right to cross-examine opposing witnesses.
(g) In making a determination under subsection (d) to conduct
further proceedings, the PERF board shall consider and balance
the following factors against the goals of the public pension laws:
(1) The participant's length of service.
(2) The extent to which the participant's benefit has vested.
(3) The participant's duties.
(4) The participant's history of public service, including the
public service covered by the state excise police, gaming
agent, and conservation enforcement officers' retirement plan
and other public employment or service completed by the
participant.
(5) The nature of the misconduct, including the following:
(A) The seriousness of the misconduct.
(B) Whether the misconduct was a single offense or
multiple offenses.
(C) Whether the misconduct was an isolated, one (1) time
occurrence or a continuing event.
(6) The amount of the loss suffered by the state resulting from
the participant's misconduct.
(7) The participant's role in the misconduct.
(8) The degree of the participant's moral turpitude, guilt, or
culpability, including the participant's motives for and
personal gain from the misconduct, and the extent of the
participant's cooperation, if any, in the investigation of the
misconduct.
(9) The availability and adequacy of other punishment or
sanctions for the misconduct, including the extent to which
restitution has been made or ordered.
(10) Other personal circumstances of the participant that bear
on the justness of forfeiture.
(h) After a public hearing under subsection (d), the PERF board
shall state its findings of fact. If the PERF board, based on clear
and convincing evidence, finds by a majority vote that forfeiture of
all or a portion of the participant's annual retirement allowance is
appropriate, the PERF board shall, not later than thirty (30) days
after the public hearing under subsection (d):
(1) issue a written determination that includes the PERF
board's findings of fact; and
(2) provide a copy of the written determination to the
participant.
(i) If the PERF board determines under subsection (h) that the
forfeiture of all or part of the participant's annual retirement
allowance is appropriate, the PERF board shall also determine
whether forfeiture of all or part of the benefits to which a surviving
spouse, parent, or dependent child of the participant would
otherwise be entitled under this chapter is appropriate.
(j) If the PERF board determines under subsection (h) that a
partial forfeiture of the participant's annual retirement allowance
is warranted, the PERF board shall determine the percentage that
will be applied, when the participant begins receiving an annual
retirement allowance, to reduce the participant's annual
retirement allowance calculated under section 10 or 12 of this
chapter.
(k) In determining the amount of a forfeiture under this section,
the PERF board must reduce the amount of the proposed
forfeiture by the amount of any restitution made by the
participant.
(l) If the PERF board has determined under this section that
forfeiture of all or a portion of a participant's annual retirement
allowance is appropriate, the participant may request that the
PERF board reconsider its determination by filing a written
request with the PERF board not later than fifteen (15) days after
the date the PERF board issues its determination. The written
request must state concisely the reasons the participant believes
that the forfeiture is erroneous. After the PERF board receives the
written request, the PERF board shall set the matter for a hearing.
At the hearing, the participant is entitled to appropriate due
process protection consistent with IC 4-21.5, including the right to
be represented, at the participant's expense, by counsel, the right
to call and examine witnesses, the right to introduce exhibits, and
the right to cross-examine opposing witnesses. The PERF board
shall rule on the request for reconsideration not later than thirty
(30) days after the date of the hearing. The PERF board shall issue
its ruling in writing and may:
(1) affirm its determination that the forfeiture is appropriate;
(2) modify its determination by reducing the amount of the
forfeiture; or
(3) vacate its determination that forfeiture is appropriate.
(m) If a participant's conviction is reversed, vacated, or set aside
after the PERF board makes its final determination under this
section that forfeiture of all or a portion of the participant's annual
retirement allowance is appropriate, the PERF board's
determination is automatically stayed, and the participant is
entitled to a new hearing under this section.
(n) If a prosecuting attorney obtains a criminal conviction
against an individual whom the prosecuting attorney:
(1) knows to be; or
(2) has reason to believe is;
a participant in the state excise police, gaming agent, and
conservation enforcement officers' retirement plan, the
prosecuting attorney shall notify the PERF board in writing of the
conviction.
(o) A participant for whom forfeiture of all of the participant's
annual retirement allowance is determined appropriate is entitled
to the return of the participant's contributions to the fund with
interest.
(p) The PERF board's evidence relating to an investigation
under subsection (d) is confidential until the earlier of:
(1) the time the participant is notified of the PERF board's
public hearing under subsection (d); or
(2) the time the participant elects to have the records made
public.
(q) The PERF board's final determination under this section is
available for inspection and copying under IC 5-14-3.
judgment of conviction. The board shall notify the member not
later than five (5) days after the public hearing is scheduled.
(e) If a public hearing is scheduled under subsection (d), the
member may examine and make copies of all evidence in the
board's possession relating to the possible forfeiture of all or a
portion of the member's retirement benefit.
(f) At a public hearing under subsection (d), the member is
entitled to appropriate due process protection consistent with
IC 4-21.5, including the following:
(1) The right to be represented, at the member's expense, by
counsel.
(2) The right to call and examine witnesses.
(3) The right to introduce exhibits.
(4) The right to cross-examine opposing witnesses.
(g) In making a determination under subsection (d) to conduct
further proceedings, the board shall consider and balance the
following factors against the goals of the public pension laws:
(1) The member's length of service.
(2) The extent to which the member's benefit has vested.
(3) The member's duties.
(4) The member's history of public service, including the
public service covered by the fund and other public
employment or service completed by the member.
(5) The nature of the misconduct, including the following:
(A) The seriousness of the misconduct.
(B) Whether the misconduct was a single offense or
multiple offenses.
(C) Whether the misconduct was an isolated, one (1) time
occurrence or a continuing event.
(6) The amount of the loss suffered by the state resulting from
the member's misconduct.
(7) The member's role in the misconduct.
(8) The degree of the member's moral turpitude, guilt, or
culpability, including the member's motives for and personal
gain from the misconduct, and the extent of the member's
cooperation, if any, in the investigation of the misconduct.
(9) The availability and adequacy of other punishment or
sanctions for the misconduct, including the extent to which
restitution has been made or ordered.
(10) Other personal circumstances of the member that bear
on the justness of forfeiture.
(h) After a public hearing under subsection (d), the board shall
state its findings of fact. If the board, based on clear and
convincing evidence, finds by a majority vote that forfeiture of all
or a portion of the member's retirement benefit is appropriate, the
board shall, not later than thirty (30) days after the public hearing
under subsection (d):
(1) issue a written determination that includes the board's
findings of fact; and
(2) provide a copy of the written determination to the
member.
(i) If the board determines under subsection (h) that the
forfeiture of all or a portion of the member's retirement benefit is
appropriate, the board shall also determine whether forfeiture of
all or a portion of the benefits to which a surviving spouse,
dependent, or beneficiary of the member would otherwise be
entitled under this article is appropriate.
(j) If the board determines under subsection (h) that a partial
forfeiture of the member's retirement benefit is warranted, the
board shall determine the percentage that will be applied, when the
member begins receiving a retirement benefit, to reduce the
member's retirement benefit as calculated under section 1 of this
chapter.
(k) In determining the amount of a forfeiture under this section,
the board must reduce the amount of the proposed forfeiture by
the amount of any restitution made by the member.
(l) If the board has determined that forfeiture of all or a portion
of a member's retirement benefit is appropriate, the member may
request that the board reconsider its determination by filing a
written request with the board not later than fifteen (15) days after
the date the board issues its determination. The written request
must state concisely the reasons why the member believes that the
forfeiture is erroneous. After the board receives the written
request, the board shall set the matter for a hearing. At the
hearing, the member is entitled to appropriate due process
protection consistent with IC 4-21.5, including the right to be
represented, at the member's expense, by counsel, the right to call
and examine witnesses, the right to introduce exhibits, and the
right to cross-examine opposing witnesses. The board shall rule on
the request for reconsideration not later than thirty (30) days after
the date of the hearing. The board shall issue its ruling in writing
and may:
(1) affirm its determination that the forfeiture is appropriate;
(2) modify its determination by reducing the amount of the
forfeiture; or
(3) vacate its determination that forfeiture is appropriate.
(m) If a member's conviction is reversed, vacated, or set aside
after the board makes its final determination under this section
that forfeiture of all or a portion of the member's retirement
benefit is appropriate, the board's determination is automatically
stayed, and the member is entitled to a new hearing under this
section.
(n) If a prosecuting attorney obtains a criminal conviction
against an individual whom the prosecuting attorney:
(1) knows to be; or
(2) has reason to believe is;
a member of the fund, the prosecuting attorney shall notify the
board in writing of the conviction.
(o) The board's evidence relating to an investigation under
subsection (d) is confidential until the earlier of:
(1) the time the member is notified of the board's hearing
under subsection (d); or
(2) the time the member elects to have the records made
public.
(p) The board's final determination under this section is
available for inspection and copying under IC 5-14-3.
in administering a licensing examination, examination for
employment, or academic examination before the examination is
given or if it is to be given again.
(4) Scores of tests if the person is identified by name and has not
consented to the release of the person's scores.
(5) The following:
(A) Records relating to negotiations between the Indiana
economic development corporation, the Indiana development
finance authority, the film commission, the Indiana business
modernization and technology corporation, or economic
development commissions with industrial, research, or
commercial prospects, if the records are created while
negotiations are in progress.
(B) Notwithstanding clause (A), the terms of the final offer of
public financial resources communicated by the Indiana
economic development corporation, the Indiana development
finance authority, the Indiana film commission, the Indiana
business modernization and technology corporation, or
economic development commissions to an industrial, a
research, or a commercial prospect shall be available for
inspection and copying under section 3 of this chapter after
negotiations with that prospect have terminated.
(C) When disclosing a final offer under clause (B), the Indiana
economic development corporation shall certify that the
information being disclosed accurately and completely
represents the terms of the final offer.
(6) Records that are intra-agency or interagency advisory or
deliberative material, including material developed by a private
contractor under a contract with a public agency, that are
expressions of opinion or are of a speculative nature, and that are
communicated for the purpose of decision making.
(7) Diaries, journals, or other personal notes serving as the
functional equivalent of a diary or journal.
(8) Personnel files of public employees and files of applicants for
public employment, except for:
(A) the name, compensation, job title, business address,
business telephone number, job description, education and
training background, previous work experience, or dates of
first and last employment of present or former officers or
employees of the agency;
(B) information relating to the status of any formal charges
against the employee; and
vehicles concerning the ability of a driver to operate a motor
vehicle safely and the medical records and evaluations made by
the bureau of motor vehicles staff or members of the driver
licensing medical advisory board regarding the ability of a driver
to operate a motor vehicle safely. However, upon written request
to the commissioner of the bureau of motor vehicles, the driver
must be given copies of the driver's medical records and
evaluations.
(18) School safety and security measures, plans, and systems,
including emergency preparedness plans developed under 511
IAC 6.1-2-2.5.
(19) A record or a part of a record, the public disclosure of which
would have a reasonable likelihood of threatening public safety
by exposing a vulnerability to terrorist attack. A record described
under this subdivision includes:
(A) a record assembled, prepared, or maintained to prevent,
mitigate, or respond to an act of terrorism under IC 35-47-12-1
or an act of agricultural terrorism under IC 35-47-12-2;
(B) vulnerability assessments;
(C) risk planning documents;
(D) needs assessments;
(E) threat assessments;
(F) domestic preparedness strategies;
(G) the location of community drinking water wells and
surface water intakes;
(H) the emergency contact information of emergency
responders and volunteers;
(I) infrastructure records that disclose the configuration of
critical systems such as communication, electrical, ventilation,
water, and wastewater systems; and
(J) detailed drawings or specifications of structural elements,
floor plans, and operating, utility, or security systems, whether
in paper or electronic form, of any building or facility located
on an airport (as defined in IC 8-21-1-1) that is owned,
occupied, leased, or maintained by a public agency. A record
described in this clause may not be released for public
inspection by any public agency without the prior approval of
the public agency that owns, occupies, leases, or maintains the
airport. The public agency that owns, occupies, leases, or
maintains the airport:
(i) is responsible for determining whether the public
disclosure of a record or a part of a record has a reasonable
likelihood of threatening public safety by exposing a
vulnerability to terrorist attack; and
(ii) must identify a record described under item (i) and
clearly mark the record as "confidential and not subject to
public disclosure under IC 5-14-3-4(b)(19)(J) without
approval of (insert name of submitting public agency)".
This subdivision does not apply to a record or portion of a record
pertaining to a location or structure owned or protected by a
public agency in the event that an act of terrorism under
IC 35-47-12-1 or an act of agricultural terrorism under
IC 35-47-12-2 has occurred at that location or structure, unless
release of the record or portion of the record would have a
reasonable likelihood of threatening public safety by exposing a
vulnerability of other locations or structures to terrorist attack.
(20) The following personal information concerning a customer
of a municipally owned utility (as defined in IC 8-1-2-1):
(A) Telephone number.
(B) Address.
(C) Social Security number.
(21) The following personal information about a complainant
contained in records of a law enforcement agency:
(A) Telephone number.
(B) The complainant's address. However, if the complainant's
address is the location of the suspected crime, infraction,
accident, or complaint reported, the address shall be made
available for public inspection and copying.
(c) Nothing contained in subsection (b) shall limit or affect the right
of a person to inspect and copy a public record required or directed to
be made by any statute or by any rule of a public agency.
(d) Notwithstanding any other law, a public record that is classified
as confidential, other than a record concerning an adoption, shall be
made available for inspection and copying seventy-five (75) years after
the creation of that record.
(e) Notwithstanding subsection (d) and section 7 of this chapter:
(1) public records subject to IC 5-15 may be destroyed only in
accordance with record retention schedules under IC 5-15; or
(2) public records not subject to IC 5-15 may be destroyed in the
ordinary course of business.
employee.
(b) If an employee beneficiary is convicted of any of the
following crimes arising out of the employee beneficiary's service
as a public officer or employee, the pension advisory board shall
take the actions described in subsection (c):
(1) A felony involving an act of fraud, deceit, or abuse of the
public trust that results in a financial loss to the public or an
unlawful benefit to an individual in the conduct of state
business.
(2) Bribery (IC 35-44-1-1).
(3) Official misconduct (as defined in IC 35-44-1-2(1),
IC 35-44-1-2(2), IC 35-44-1-2(3), or IC 35-44-1-2(4)).
(4) Conflict of interest (IC 35-44-1-3).
(5) Computer tampering (IC 35-43-1-4).
(6) Identity deception (IC 35-43-5-3.5).
(7) Ghost employment (IC 35-44-2-4).
(8) An attempt or conspiracy to commit an offense listed in
subdivisions (1) through (7).
(9) A crime in any other jurisdiction the elements of which are
substantially similar to the elements of an offense listed in
subdivisions (1) through (8).
(c) When the pension advisory board receives evidence of a
conviction under subsection (b), the pension advisory board shall
consider beginning an investigation. If, after conducting an
investigation, the pension advisory board decides to conduct
further proceedings to determine whether forfeiture of all or part
of the employee beneficiary's monthly pension amount is
appropriate, the pension advisory board shall schedule a public
hearing on the matter not later than sixty (60) days after the entry
of judgment of conviction. The pension advisory board shall notify
the employee beneficiary not later than five (5) days after the
public hearing is scheduled.
(d) If a public hearing is scheduled under subsection (c), the
employee beneficiary may examine and make copies of all evidence
in the pension advisory board's possession relating to the possible
forfeiture of all or a portion of the employee beneficiary's monthly
pension amount.
(e) At the public hearing under subsection (c), the employee
beneficiary is entitled to appropriate due process protection
consistent with IC 4-21.5, including the following:
(1) The right to be represented, at the employee beneficiary's
expense, by counsel.
(2) The right to call and examine witnesses.
(3) The right to introduce exhibits.
(4) The right to cross-examine opposing witnesses.
(f) In making a determination under subsection (c) to conduct
further proceedings, the pension advisory board shall consider and
balance the following factors against the goals of the public pension
laws:
(1) The employee beneficiary's length of service.
(2) The extent to which the employee beneficiary's benefit has
vested.
(3) The employee beneficiary's duties.
(4) The employee beneficiary's history of public service,
including the public service covered by the pension trust and
other public employment or service completed by the
employee beneficiary.
(5) The nature of the misconduct, including the following:
(A) The seriousness of the misconduct.
(B) Whether the misconduct was a single offense or
multiple offenses.
(C) Whether the misconduct was an isolated, one (1) time
occurrence or a continuing event.
(6) The amount of the loss suffered by the state resulting from
the employee beneficiary's misconduct.
(7) The employee beneficiary's role in the misconduct.
(8) The degree of the employee beneficiary's moral turpitude,
guilt, or culpability, including the employee beneficiary's
motives for and personal gain from the misconduct, and the
extent of the employee beneficiary's cooperation, if any, in the
investigation of the misconduct.
(9) The availability and adequacy of other punishment or
sanctions for the misconduct, including the extent to which
restitution has been made or ordered.
(10) Other personal circumstances of the employee
beneficiary that bear on the justness of forfeiture.
(g) After a public hearing under subsection (c), the pension
advisory board shall state its findings of fact. If the pension
advisory board, based on clear and convincing evidence, finds that
forfeiture of all or a portion of the employee beneficiary's monthly
pension amount is appropriate, the pension advisory board shall,
not later than thirty (30) days after the public hearing under
subsection (c):
(1) issue a written determination that includes the pension
advisory board's findings of fact; and
(2) provide a copy of the written determination to the
employee beneficiary.
(h) If the pension advisory board determines under subsection
(g) that the forfeiture of all or a portion of the employee
beneficiary's monthly pension amount is appropriate, the pension
advisory board shall also determine whether forfeiture of all or a
portion of the benefits to which a surviving spouse or dependent
child of the employee beneficiary would otherwise be entitled
under this article is appropriate.
(i) If the pension advisory board determines under subsection
(g) that a partial forfeiture of the employee beneficiary's monthly
pension amount is warranted, the pension advisory board shall
determine the percentage that will be applied, when the employee
beneficiary begins receiving a monthly pension amount, to reduce
the employee beneficiary's monthly pension amount calculated
under IC 10-12-3-7 or IC 10-12-4-7.
(j) In determining the amount of a forfeiture under this section,
the pension advisory board must reduce the amount of the
proposed forfeiture by the amount of any restitution made by the
employee beneficiary.
(k) If the pension advisory board has determined that forfeiture
of all or a portion of an employee beneficiary's monthly pension
amount is appropriate, the employee beneficiary may request that
the pension advisory board reconsider its determination by filing
a written request with the pension advisory board not later than
fifteen (15) days after the date the pension advisory board issues its
determination. The written request must state concisely the
reasons why the employee beneficiary believes that the forfeiture
is erroneous. After the pension advisory board receives the written
request, the pension advisory board shall set the matter for a
hearing. At the hearing, the employee beneficiary is entitled to
appropriate due process protection consistent with IC 4-21.5,
including the right to be represented, at the employee beneficiary's
expense, by counsel, the right to call and examine witnesses, the
right to introduce exhibits, and the right to cross-examine opposing
witnesses. The pension advisory board shall rule on the request for
reconsideration not later than thirty (30) days after the date of the
hearing. The pension advisory board may:
(1) affirm its determination that the forfeiture is appropriate;
(2) modify its determination by reducing the amount of the
forfeiture; or
(3) vacate its determination that forfeiture is appropriate.
(l) If an employee beneficiary's conviction is reversed, vacated,
or set aside after the pension advisory board makes its final
determination under this section that forfeiture of all or a portion
of the employee beneficiary's monthly pension amount is
appropriate, the pension advisory board's determination is
automatically stayed, and the employee beneficiary is entitled to a
new hearing under this section.
(m) If a prosecuting attorney obtains a criminal conviction
against an individual whom the prosecuting attorney:
(1) knows to be; or
(2) has reason to believe is;
an employee beneficiary of the pension trust, the prosecuting
attorney shall notify the pension advisory board in writing of the
conviction.
(n) An employee beneficiary for whom forfeiture of all of the
employee beneficiary's monthly pension benefit is determined
appropriate is entitled to the return of the employee beneficiary's
contributions to the trust fund with interest.
(o) The pension advisory board's evidence relating to an
investigation under subsection (c) is confidential until the earlier
of:
(1) the time the employee beneficiary is notified of the pension
advisory board's public hearing under subsection (c); or
(2) the time the employee beneficiary elects to have the
records made public.
(p) The pension advisory board's final determination under this
section is available for inspection and copying under IC 5-14-3.