S211

An Act concerning the forfeiture of public office and amending N.J.S.2C:51-2.

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

1. 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. In determining whether the offense was so related, the court shall assess the gravity of the offense as revealed by its nature, its context, and the identity of the victim, and shall assess the qualifications required of the specific public office, position or employment. That an offense did not take place during employment hours or on employment grounds does not preclude a determination by the court 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. In determining whether the offense was so related, the court shall assess the gravity of the offense as revealed by its nature, its context, and the identity of the victim, and shall assess the qualifications required of the specific public office, position or employment. That an offense did not take place during employment hours or on employment grounds does not preclude a determination by the court 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.

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

2. This act shall take effect immediately and shall apply to offenses committed on or after the effective date.

STATEMENT

This bill would require the forfeiture of public office, position or employment upon conviction of certain offenses. The convicted person would also be permanently barred from holding public office, position or employment in the future.

Under current law, set out in N.J.S.2C:51-2, a person must forfeit his public office, position or employment and be barred from seeking it in the future if he is convicted of an offense involving or touching on the office, position or employment. The statute provides that the phrase “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.” This definition was added to the statute by P.L.2007, c.49, which increased the penalties for public corruption crimes. As noted in that bill statement, the definition was in accordance with a ruling by the New Jersey Supreme Court, McCann v. Clerk of the City of Jersey City, 167 N.J. 311 (2001), that interpreted the “involving or touching” language in N.J.S.2C:51-2.

However, it is the view of the sponsor that the definition in McCann and in the 2007 enactment is not expansive enough and does not encompass certain situations where public employees’ abuse of the public trust should warrant their dismissal from employment. For example, in State v. Hupka, 203 N.J. 222 (2010), the New Jersey Supreme Court held that forfeiture of office and disqualification from future public employment were not warranted in a case where a sheriff’s officer, who also worked part-time as a police officer, pled guilty to criminal sexual contact, a crime of the fourth degree. He had originally been indicted for aggravated sexual assault, a crime of the first degree, and sexual assault, a crime of the second degree, after a female friend alleged that he had sexually assaulted her in her apartment. (A crime of the fourth degree is punishable by a term of imprisonment of up to 18 months or a fine of up to $10,000, or both; a crime of the second degree, by a term of five to 10 years or a fine of up to $150,000, or both; and a crime of the first degree, by a term of 10 to 20 years or a fine of up to $200,000 or both.)

In a 3-2 decision, the Supreme Court held that Mr. Hupka’s conviction was not sufficiently related to his position as a law enforcement officer to trigger the forfeiture and disqualification provisions of the statute, because he was off-duty at the time of the incident, in a private home with a person that he knew. In a dissenting opinion, Chief Justice Rabner wrote that, in his view, Mr. Hupka’s actions did warrant forfeiture and disqualification, as they directly related to his performance as a law enforcement official:

Does defendant's behavior "involve[ ] or touch[ ] on his public office" or "relate[ ] directly to [his] performance" as a sheriff's officer or police officer? That can be analyzed on a number of levels. Certainly, the limited, undisputed facts from defendant's plea allocution may be considered. Defendant admitted to criminal sexual contact. He acknowledged that he touched a woman's "intimate parts . . ." without her consent, for his own sexual gratification.

In light of defendant's admissions, how could he, in his role as a sheriff's or police officer, officially respond to allegations of criminal sexual contact, domestic violence, sexual assault, or related accusations? How could he serve and enforce restraining orders in cases involving similar claims? Those acts fall squarely within the kinds of duties sheriff's officers and police officers are regularly called on to perform. Those responsibilities, in other words, relate directly and substantially to defendant's law enforcement posts. In light of defendant's admissions, could anyone -- supervisor, victim, or bystander -- have confidence in his ability to carry out those tasks?

The Chief Justice wrote that the decision in an older Supreme Court case, Moore v. Youth Correctional Institute, 119 N.J. 256 (1990), set out the appropriate standards for review. In Moore, the court held that in determining whether an offense involves and touches on employment, “there is a need to assess the gravity of the crime as revealed by its nature, its context, and the identity of the victim … [and] …. to assess the qualifications required of the employee’s public employment.”

This bill would add the language in Moore to the provisions of N.J.S.2C:51-2. Under the bill, the "involving or touching on his public office, position or employment" definition would include the following new language: “In determining whether the offense was so related, the court shall assess the gravity of the offense as revealed by its nature, its context, and the identity of the victim, and shall assess the qualifications required of the specific public office, position or employment.” In addition, the bill specifies that the fact that an offense did not take place during employment hours or on employment grounds does not preclude a determination by the court that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment.