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Pension Forfeiture

A public office is indeed a public trust, and Pennsylvania has laws in place to penalize those who violate that trust by stripping them of their pension.  The Public Employee Pension Forfeiture Act 1978-140 (Act 140) applies to all SERS members who commit certain crimes in relation to their employment.  In addition, the Pennsylvania Constitution and Judicial Code contain pension forfeiture provisions applying to judicial members.  Those provisions can be triggered even if no crime has been committed.

Act 140
Act 140 requires forfeiture of all pension and retirement benefits by any SERS member who commits certain crimes that breach the member's duty of faithful and honest public service. Also forfeited are any benefits for the member's beneficiaries and survivor annuitants.

The only benefits Act 140 allows a SERS member to receive are his or her contributions paid into the pension fund, without interest. Even these contributions may be lost, however, because Act 140 requires they be used to pay fines and restitution associated with the criminal conviction.

Act 140 is triggered if a SERS member is convicted of or pleads guilty or no defense to any listed crime committed through the member's public office or position or when public employment puts the member in a position to commit the crime.

Pennsylvania crimes covered by Act 140 are listed on this page and are found in 43 P.S. § 1312. All federal crimes substantially the same as these state crimes also are covered by Act 140.  Act 140 applies to all members of SERS, even those who became members before July 8, 1978 if they have been reelected, re-appointed, promoted or changed job classifications since then.

Enforcement of Act 140 is mandatory. Pennsylvania courts have held that neither SERS nor an employing agency has any discretion in its application. Nor does it matter if the crime is relatively minor compared to the value of pension benefits. If Act 140 is applicable, it must be applied.

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:

"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 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)

Article III, act of March 4, 1971 (P.L. 6, No. 2), known as the "Tax Reform Code of 1971."

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.

Judicial Forfeitures
In addition to Act 140 forfeitures, Article V, §16(b) of the Pennsylvania Constitution defines additional pension forfeitures which apply only to justices, judges and members of the minor judiciary. This constitutional provision provides as follows:

Except as provided by law, no salary, retirement benefit or other compensation, present or deferred, shall be paid to any justice, judge or justice of the peace who, under section 18 or under Article VI, is suspended, removed or barred from holding judicial office for conviction of a felony or misconduct in office or conduct which prejudices the proper administration of justice or brings the judicial office into disrepute.

In addition to the constitutional forfeiture provision, the General Assembly has codified a judicial forfeiture provision into the Judicial Code at 42 Pa. C.S. § 3352. The codified judicial forfeiture provision provides as follows:

Former and retired judges and magisterial district judges shall receive such compensation as shall be provided by or pursuant to statute. No salary, retirement benefit or other compensation shall be paid to any judge or magisterial district judge who is suspended or removed from office under section 18 of Article V or under Article VI of the Constitution of Pennsylvania.

Last published: 08/08/2011 08:50 AM