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CAPITOL
State tightens retirement system rules
Regulations will clearly define who is entitled to pensions
BY BOB CONNER Gazette Reporter
Reach Gazette reporter Bob Conner at 462-2499 or bconner@dailygazette.net.

    State Comptroller Thomas Di-Napoli on Thursday announced enhanced regulations for the New York State and Local Retirement System that define more clearly who should and should not be in it.
    DiNapoli’s actions follow stories by Newsday and investigations by the comptroller, Attorney General Andrew Cuomo and federal authorities into five school districts on Long Island.
    According to a March 7 audit by DiNapoli, the five districts each incorrectly treated the same lawyer as a full-time employee, paying benefits for him into the retirement system. The now retired lawyer’s pension benefit has been suspended, pending a recalculation of his retirement service credit, a statement issued by DiNapoli said. Cuomo has extended his investigation into other school districts on Long Island and in Westchester County.
    DiNapoli’s statement said his strengthened regulations define how local governments and school districts should classify professional service providers. He was quoted as saying: “Pensions are for employees. They earn their pensions and they deserve them. Unfortunately, some individuals have taken advantage of the retirement system and received benefi ts they were not entitled to. That is not acceptable.
    “The enhanced retirement system regulations will help local governments determine who is and who is not eligible for retirement benefits.”
    David Albert, director of communications for the New York State School Boards Association, said the association has not previously focused on the issue in its training programs for school board members, but would be doing so in the future.
   Karen Corona, public information coordinator for the Schenectady City School District, said the district’s attorney, Shari Greenleaf, is a full-time employee, who earns retirement and other benefits. Greenleaf has worked for the district since 1994 and now earns $101,450 per year, Corona said.
    Corona said the district’s parttime physician, Dr. Jay Kravitz, does have health-insurance benefits provided. She was not sure if Kravitz also gets retirement benefits. “As far as we know, we’re in compliance [with state regulations], but our attorney is reviewing the situation,” Corona said.
    DiNapoli said his office also is reviewing registration lists of attorneys against retirement system membership records. Local governments and school districts will be required to recertify any professional employee who doesn’t clearly meet the regulations. He said his office would be continuing its examination of records for employees who may have been reported inappropriately by multiple employers.
    The regulations specify that if an individual’s employer has a contract or retainer to provide professional services to a municipality, the presumption will be that the individual is an independent contractor and not an employee of the municipality.
    DiNapoli’s office is mailing letters to local governments notifying them of the new regulations. School districts and municipalities with questions about whether an individual should be considered an employee or an independent contractor can contact the comptroller’s office.

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Pensions for employees only

    One of the perks of being a government or school district employee in New York state is having a pension — and a very generous one at that, both in terms of dollars and the years you must work to start collecting. That makes it all the more important that only those who are truly entitled to these taxpayer-funded benefits get them, something state Comptroller Thomas DiNapoli has just taken welcome steps to ensure.
    By issuing enhanced regulations on who should be in the state retirement system and who should not, DiNapoli has effectively put an end to the scam of lawyers and other professionals working as contractors or consultants for school districts or local governments, getting them to pay into the retirement system, and then collecting pension benefits as if they were actual employees. Last year, Newsday revealed that one lawyer was treated as a full-time employee by five different Long Island school districts (he was given credit for working 1,286 days one year), qualifying him for $61,500 and health benefits for life. Shortly after that, an investigation by the state Attorney General Andrew Cuomo found that six more Long Island districts were treating two more private attorneys this way, even as they paid their firms more than $1 million in fees.
    But this practice is not limited to Long Island, nor is it new. As far back as 1997, James Roemer, a well-connected labor lawyer in the Capital Region, had qualified for a pension of $80,000 under the same kind of scheme. He was listed as a part-time employee of two counties, one town and three cities at a time, including Schenectady. Then-Comptroller Carl McCall said this was an egregious manipulation of the system but apparently legal.
    Cuomo isn’t so sure; he has used the word “fraud” and is investigating other Long Island and Westchester County districts. And federal authorities have been involved in the Long Island cases.
    But whatever happens with these existing pensions, it is essential that no one else qualify in this way. DiNapoli’s new rules, which presume that anyone on contract or retainer is not an employee and offer clear, common-sense guidelines for who is an employee, should stop this abuse right here.

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State Comptroller Thomas Di-Napoli on Thursday announced enhanced regulations for the New York State and Local Retirement System that define more clearly who should and should not be in it.

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Corona said the district’s parttime physician, Dr. Jay Kravitz, does have health-insurance benefits provided. She was not sure if Kravitz also gets retirement benefits. “As far as we know, we’re in compliance [with state regulations], but our attorney is reviewing the situation,” Corona said.

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Jay A. Kravitz, MD
Family Practice Practitioner
CapitalCare Family Practice Rotterdam
  
  
After earning his Medical Doctor degree at St. George's University, School of Medicine in Grenada, Dr. Kravitz completed his residency at St. Clare's Hospital. He has specialized in Family Medicine for more than 15 years.
Dr. Kravitz is certified by the American Board of Family Practice, and is a member of the American Academy of Family Physicians and the New York State Academy of Family Physicians. He is a member of CapitalCare' s Clinical Research Committee, and is a member of the group's Information Systems Committee.

Dr. Kravitz sees patients at CapitalCare Family Practice Rotterdam, 1667 Elizabeth Street. Call 518-356-5377.

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Cuomo expanding public pension fraud probe
Tuesday, April 15, 2008
The Associated Press

ALBANY — Attorney General Andrew Cuomo says he’s expanding an ongoing pension fraud probe to include all local governments across the state and all types of professional consultants.
The investigation started with findings that some Long Island school districts were listing outside lawyers as employees, allowing them to qualify for public pensions while their private practices collected millions of dollars in legal fees.
Now Cuomo is seeking information from more than 4,000 of the state’s county governments, villages, towns, and special districts about their employment arrangements.

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CAPITOL
State says 5 didn’t earn benefi t Comptroller: Lawyers should not get pensions
BY BOB CONNER Gazette Reporter

    Five attorneys from the Albany law firm of Girvin & Ferlazzo were incorrectly reported as employees of the Hamilton-Fulton-Montgomery BOCES, lining up pension benefits they were not entitled to, state Comptroller Thomas DiNapoli said Thursday.
    DiNapoli’s office said the attorneys who were improperly awarded credit in the state retirement system are Salvatore Ferlazzo, James Girvin, Kristine Lanchantin, Jeffrey Honeywell and Kathy Ann Wolverton.
    DiNapoli’s office removed five years of service credit for Ferlazzo in the retirement system and revoked the other four attorneys’ membership in it.
    In addition, an April 16 letter to BOCES Superintendent Geoffrey Davis from Deputy Comptroller Steven Hancox said: “We also determined that the attorneys’ work time was significantly over-reported. Each one of these attorneys was paid and reported to [the state and local Employees’ Retirement System] for having worked 231.4 days — almost full time — for the BOCES 2006-07 fiscal year ended June 30, 2007. However, according to data provided to the BOCES by the attorneys’ law firm, each partner worked only a fraction of the reported time, ranging from 71 days for one partner to four hours for another partner. In total, the five attorneys were paid $234,000 for working the 1,157 days that BOCES reported to ERS as their work time.”
    According to a DiNapoli news release, the fi ve lawyers “actually worked a total of 196 days. None of these individuals are retired. They inappropriately earned 5 to 16 years of service credit in the Retirement System. These attorneys did not work fixed hours, submit time sheets or work onsite at BOCES. In addition, BOCES management did not oversee the work they performed.”
    According to the comptroller’s office, Ferlazzo was paid $29,000 for working less than a day, Girvin got $55,000 for 27 days’ work, Lanchantin got $55,000 for 71 days, Honeywell $55,000 for 28 days and Wolverton $40,000 for 69 days.
    The law firm has been fired by the BOCES district. Davis, the BOCES superintendent, said the lawyers were not working almost full time and should not have been on the public payroll or earning retirement credit. As employees of a law firm, they should have been classifi ed as independent contractors, he acknowledged. They had been earning the pension credit under an arrangement made 20 years ago, he said, and the district expects to get back the payments it made for them to the retirement system.
    But Davis said the law fi rm did do labor relations work for local districts. It appears, he said, that other people at the firm were doing some of the work, even though the payments went to the five lawyers who were inappropriately on the BOCES payroll. He acknowledged that BOCES has no records of this but said the local school districts would not have kept renewing their contracts with the firm if they were dissatisfied with its services.
    Four of the lawyers named by DiNapoli could not be reached for comment Thursday, and the fifth, Wolverton, declined to comment.
    According to its Web site, “Girvin & Ferlazzo and its attorneys have been representing school districts for over 20 years and is one of the largest and most experienced school law fi rms in New York state, currently representing over 70 school districts throughout the state. Very few law firms have the ability to bring its clients such a broad base of experience and knowledge in school and education law.”
    One of the many local school districts represented by Girvin & Ferlazzo is Guilderland. Its superintendent, John McGuire, said he would be discussing the issue with the law firm and the school board, but he is confi dent Girvin & Ferlazzo attorneys are not listed as Guilderland employees and are providing appropriate legal services for the money they are paid.
    DiNapoli and Attorney General Andrew Cuomo have been conducting parallel investigations of lawyers on school district payrolls. Girvin & Ferlazzo said previously that it was cooperating with Cuomo’s investigation. DiNapoli spokeswoman Emily DeSantis said information about the Hamilton-Fulton-Montgomery BOCES case has been shared with the attorney general’s offi ce.
    Cuomo recently expanded his probe beyond school districts to include other local governments.
    Cuomo has said his investigation will focus on civil actions to recover public funds but may also pursue criminal prosecutions in egregious cases. His press office could not be reached for comment Thursday.
    DiNapoli said in a news release: “Hamilton-Fulton-Montgomery BOCES took immediate action when it learned its designation of its lawyers as employees was not appropriate. Other participating local governments should review their relationships with professional service providers and take appropriate action immediately to correct any arrangements that do not comply with legal requirements.”
    Earlier this month, DiNapoli announced strengthened regulations to provide clarification and guidance for local governments when they determine who is an employee.
    DiNapoli said his office would recover any pension benefi ts paid out to wrongly classified individuals who have already retired, and he would ask the attorney general to pursue civil recovery of those benefits when necessary.

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Carl Strock THE VIEW FROM HERE
Carl Strock can be reached at 395-3085 or by e-mail at carlstrock@dailygazette.com.
Why would
BOCES give
away money?

    I have a question that I am so far unable to get an answer to: What benefit accrues to a school district or a BOCES in putting a lawyer on the payroll when that lawyer is not really an employee but rather an independent contractor?
    I understand there is a benefi t to the lawyer, and quite a big benefi t, in becoming eligible for a state pension and state health insurance, but what benefit is there to the school or the Board of Cooperative Educational Services?
    I’m thinking, of course, of the recent expose by the state comptroller of apparent irregularities in the BOCES of Hamilton, Fulton and Montgomery counties, where five lawyers were on the payroll to the happy tune of $234,000 a year, when, by the lawyers’ own account, they worked only 196 days among them rather than the 1,157 days that BOCES reported and earned therefore only a sixth of what BOCES paid them.
    By no stretch were they employees. They were independent contractors, the comptroller declared.
    My first thought was that the lawyers cheated. They billed for more hours than they worked. But Mary DeSantis, a spokesperson for the comptroller, tells me it was the BOCES administration that over-reported to the state, and when the comptroller inquired, the lawyers themselves provided the lower and presumably more accurate numbers.
    No doubt the superintendent of that BOCES, Geoffrey Davis, could explain this curious situation, but alas, he does not return my phone calls, so I get no help from that quarter. And a spokesman for the state Department of Education, Tom Dunn, represents that he has no information.
    The attorney general, Andrew Cuomo, said in a press release, “There may have been financial benefits for the BOCES to list professionals as employees instead of as independent consultants,” but he did not spell out what those benefits would be.
    So isn’t it odd? A public educational institution pays some outside lawyers six times as much as they were due — for what?
    A kickback scheme? Not likely, since Cuomo says, “There appears to be a chronic fraud that has occurred across New York State for many years.”
    I do note that Cuomo has expanded his inquiry, which actually began a couple of months ago on Long Island, to encompass “all forms of local governments,” not just school districts and not just BOCES, so I will be interested to see where this goes.
    And I heartily endorse the view expressed by some readers that this be treated as a criminal matter, if it indeed involves defrauding the taxpaying public of millions of dollars.

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School districts answering questions from Cuomo
BY BOB CONNER Gazette Reporter

    Local school districts have been responding to a Web site questionnaire from the office of Attorney General Andrew Cuomo, who is trying to find out whether attorneys and other professionals are improperly enrolled in the New York State Retirement System.
    Cuomo’s office is sending out several thousand letters to local governments including school districts, said Matt Wing, a spokesman for the attorney general. The main focus of the investigation is whether lawyers, doctors, architects, engineers and other professionals have been improperly listed as public employees instead of as independent contractors, thus accumulating pension credit they are not entitled to.
    An April 11 letter to the Cohoes City School District says “you must complete and submit an electronic questionnaire no later than April 21.” A Web site is given, and an access code. The Web site warns, “If you are an unauthorized user you must disconnect now; proceeding further subjects you to arrest and prosecution.”
    Charles Dedrick, the Cohoes superintendent, said he was filling out the questionnaire Monday. John McGuire, superintendent of the Guilderland School District, said his assistant superintendent for business was filling out the attorney general’s questionnaire.
    Cohoes and Guilderland are among the many local districts represented by the Albany law fi rm Girvin & Ferlazzo. Last week, state Comptroller Thomas DiNapoli reported that five leading attorneys at Girvin & Ferlazzo were inappropriately accumulating pension credits through the Hamilton-Fulton-Montgomery BOCES.
    McGuire said that revelation would be taken into consideration by the Guilderland school board when it decides whether to renew Girvin & Ferlazzo’s contract, which expires June 30. The district will issue a request for proposals for legal work, he said.
    Dedrick said, “I think we need to see how it plays out,” but acknowledged, “We aren’t going to be able to go to our attorneys for advice.” Dedrick, who in June will become superintendent at Capital Region BOCES, said the New York State School Boards Association may be the best source of advice for districts.
    NYSSBA spokesman David Albert said that if school boards have unresolved questions regarding their relationship with their attorneys, they may want to hire a special counsel to consider the matter. School board members also should not hesitate to get answers, he said.
    Girvin and Ferlazzo lawyers did not return calls on Monday. The law firm also did not respond to Gazette inquiries last week. It said previously, however, that it was cooperating with the attorney general’s investigation.
    Emily DeSantis, a spokeswoman for the comptroller, said the law firm has not responded to the comptroller’s letter and news release of last Thursday, which made public the allegedly inappropriate enrollment of five of its lawyers in the state retirement system

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Why BOCES would have fudged hours
Carl Strock can be reached at 395-3085 or by e-mail at carlstrock@dailygazette.com.  

    I wondered the other day what benefit might accrue to a BOCES or to a local school district from having a lawyer counted as a full-time employee rather than as a contract vendor, and now I think I have the answer.
    A BOCES, or Board of Cooperative Educational Services, basically provides services to school districts that school districts cannot economically provide for themselves, the schools pay for those services, and the state reimburses them a percentage of the cost. The most prominent service is vocational education, but there are others too, including labor negotiations, which I only just learned about.
    A school district, let’s say, needs a lawyer specializing in labor law to negotiate a new contract with its teachers’ union. It can hire a lawyer on its own, or it can get one from the regional BOCES, and you don’t need a doctorate in public administration to figure out which way is more beneficial. If it hires one on its own, it has to pay full freight. If it gets one from BOCES, a large part of the freight will be reimbursed by the state Department of Education. How large depends on the wealth of the district, but in the case of the relatively poor Amsterdam district, to take one example, it’s 67 percent.
    But there is a condition. The lawyer must be a full-time BOCES employee, he (or she) cannot be a free-lancer working out of his or her own office and just doing the odd job on contract.
    Which I think answers the question: Why did the BOCES of Hamilton, Fulton and Montgomery counties report to the state Retirement System that five lawyers from the Albany law firm of Girvin & Ferlazzo were full-time employees when they were not?
    Answer: Because that way the participating school districts in those counties could get reimbursed for the cost of legal services.
    We’re not talking a huge amount of money. The Amsterdam school district last year spent $30,000 on Girvin & Ferlazzo lawyers, by way of BOCES, and got reimbursed about $20,000, but that’s the advantage.
    BOCES itself gets no direct fi - nancial reward, as far as I can tell, though of course it amplifies the scope of its operations, which is valuable to any institution.
    One thing I misunderstood: The lawyers were not necessarily overpaid; they were just over-reported for retirement purposes.
    BOCES reported to the Retirement System that the lawyers had worked a total of 1,157 days in the 2006-07 school year, but it paid them only $234,000.
    I say “only” because that amount breaks down to about $200 a day, and if you know of any lawyer capable of holding McKinney’s Index rightside up who is available for $200 a day, please let me know.
    When the state comptroller inquired, the firm reported its members had actually worked only 196 days, and that would work out to a more realistic $1,200 a day, or $150 an hour.
    Not to suggest the lawyers were blameless. They surely knew they were piling up valuable state retirement credits to which they were not entitled, per the comptroller.
    They had to have understood these devious workings. They describe themselves on their Web site as “one of the most experienced school law firms in New York State.” They could even have bid low on jobs with the understanding they would get the bonus of a state pension at the end of the road.
    Likewise the state Education Department. Given the revolving door between the department and BOCES and school districts, they too surely knew how things worked.

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CAPITOL
State lawyer resigns after accusations
BY MICHAEL GORMLEY The Associated Press

    A veteran state lawyer is quitting after being accused by the inspector general of collecting pay without showing up at work.
    On Thursday, the inspector general said James McCarthy was paid $6,000 over 12 weeks when he didn’t show up at state offices to work for the Department of Correctional Services.
    He was paid $60,867 a year for 19 hours of work weekly, according to the inspector general.
    McCarthy resigned his job handling extradition papers effective Friday after 13 years working for the state. He said was resigning to eliminate any “distraction” at the department because of his case, which caused some disagreement between the inspector general and Attorney General Andrew Cuomo.
    The Department of Correctional Services is seeking restitution, said spokesman Erik Kriss.
   McCarthy, 52, works for the law firm Girvin & Ferlazzo in Albany. The company Web site says he held several positions in the Pataki administration, including assistant counsel, and once was assistant counsel to the Senate Finance Committee in the Republican Senate majority led by Sen. Joseph Bruno of Rensselaer County.
    The law firm’s Web site says McCarthy handles litigation and real estate issues for the firm and is also the attorney for the Troy city school district. That’s the biggest school in Bruno’s district.
    Last month Democratic state Comptroller Thomas DiNapoli kicked some attorneys — including some from Girvin & Ferlazzo — out of the New York state and local retirement system because an upstate BOCES district inappropriately classified them as employees. DiNapoli said he was unsure if the attorneys knew they were getting benefits paid by the school district that they shouldn’t have received as part-time workers.
    Attorney General Andrew Cuomo is investigating the issue in school districts statewide. He said he suspects many districts including BOCES districts provided inappropriate benefits to part-time lawyers, while collecting state school aid that for a full-time employee.
    The McCarthy case created a conflict between the inspector general’s office and Cuomo.
    Hours before McCarthy’s resignation, Cuomo disputed the state inspector general’s public assertion on Thursday that Cuomo declined to investigate the case against Mc-Carthy for any civil or criminal wrongdoing.
    On Thursday, the inspector general’s Web site stated: “The Inspector General’s Office also presented the evidence to the New York State Attorney General’s Office, which declined to prosecute criminal charges against McCarthy.”
    Cuomo spokesman John Milgrim said Friday that the office is investigating the findings by the state Inspector General’s Office in the case. He said the attorney general can’t legally decline a referral.
    Inspector general’s office spokesman Stephen DelGiacco on Friday called the conflicting statements a misunderstanding. But he refused to say if Cuomo’s office had ever refused to investigate the case.
    “We discussed the case with them previously and there was miscommunication or misunderstanding,” DelGiacco said.

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DiNapoli pulls 3 from retirement system

By RICK KARLIN, Staff writer
Wednesday, May 7, 2008

ALBANY -- State Comptroller Tom DiNapoli today said he has pulled three lawyers out of the state retirement system and rescinded credit from two other lawyers and an accountant.
     
Included in the list is at least one lawyer with close ties to the Pataki Administration; Public Service Commissioner Maureen Harris who had her credits rescinded. She was appointed to the PSC by Pataki and is a sister to Pataki's former counsel, Mike Finnegan.
Harris had briefly worked for Albany's Girvin & Ferlazzo law firm and was among the lawyers with credits for work at the Hamilton Fulton Montgomery BOCES. DiNapoli and AG Andrew Cuomo have said that the BOCES lawyers should be considered independent contractors, not employees, and therefore not eligible for pension credits.

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CAPITOL
Firm backs BOCES services
Former lawyer settles to halt Cuomo probe
BY BOB CONNER Gazette Reporter

    Girvin & Ferlazzo, the Albany law firm tied by state investigators to a pension scandal involving the Hamilton-Fulton-Montgomery BOCES, denied wrongdoing Thursday, even as Attorney General Andrew Cuomo announced a $50,000 settlement with one of its former lawyers.
    Maureen Harris, who resigned from Girvin & Ferlazzo in 2006 when she became a member of the state Public Service Commission, agreed to pay the state $50,000 to settle Cuomo’s investigation into her. According to a Cuomo news release, she “was appointed in 2005 as a BOCES labor relations specialist, [and] received a $30,000 salary from HFM BOCES and pension credits, despite the fact that she did not provide any labor relations services to the HFM BOCES.” She is forfeiting the credits she received in the state pension system.
    According to the Cuomo statement, Girvin lawyers were reported as HFM BOCES employees to the pension system “even though several were doing no work or almost no work for HFM BOCES. The fi rm generally regarded BOCES payroll placement as a perk of membership in the Girvin firm,” and the arrangement also let the BOCES and its component school districts “improperly obtain state aid.”
    At a Capitol news conference, Cuomo said his office is investigating “chronic, widespread corruption and fraud” in the state pension system, involving lawyers and others improperly listed on the payrolls of school districts and other local governments.
    Michael Koenig, Harris’ lawyer, and Jim Denn, spokesman for the the school districts were getting something for the money they paid Girvin & Ferlazzo. In fact, he said, since HFM BOCES canceled its agreement with the firm earlier this year, most of the school districts in Fulton and Montgomery counties have reached new agreements with Girvin & Ferlazzo because it provides good value for the money. And the districts need good legal representation, he said, as they negotiate with well-funded unions such as New York State United Teachers.
    Honeywell’s statement said: “The shared services agreement was specifically approved by the [state] Education Department and was subject to periodic program audits. … Since at least 2004 the Attorney General’s Office has been aware of the issues surrounding BOCES and school district lawyers being granted retirement system service credits.” Cuomo spokesman John Milgrim’s only response was, “Our investigation is continuing.”
PSC, said Harris was not available for comment. Koenig said she admitted no wrongdoing, came forward voluntarily to the attorney general when she heard about his investigation, and was involved in the Girvin arrangement with the HFM BOCES for only one year. Denn said she remains in good standing at the PSC, and Koenig said she does not plan to resign.
    Girvin & Ferlazzo issued a statement from managing partner Jeffrey Honeywell saying it is cooperating with Cuomo’s investigation “because we have done nothing wrong.” The statement said the law firm “has provided the school districts participating in the shared services agreement in HFM BOCES full and complete [labor] negotiations services for any compensation received by this fi rm.” Honeywell is one of seven Girvin HFM BOCES Superintendent & Ferlazzo attorneys whose pen-Geoffrey Davis confirmed that sion credits earned through HFM BOCES were revoked this year by state Comptroller Thomas Di-Napoli because they had been improperly listed as state employees rather than independent contractors. The status of several other of the firm’s attorneys in relation to the pension system is unclear, according to Davis and the Attorney General’s Office.
    Another attorney, James Mc-Carthy, resigned recently both from Girvin and Ferlazzo and the state Department of Correctional Services after a state inspector general’s investigation found he wasn’t showing up to work at DOCS.
    At the news conference, Cuomo said Girvin & Ferlazzo “is the subject of a very active both civil and criminal investigation” by his office.
    Sean Casey, of the public relations firm Sawchuck Brown, which is representing Girvin & Ferlazzo, said the law firm does work for about 30 school districts in the Capital Region and 70 statewide.
    One of those districts is Cohoes, where the superintendent, Charles Dedrick, said he deals mainly with Honeywell and Kristine Lanchantin, another of the Girvin & Ferlazzo attorneys removed from the pension system by the comptroller. Dedrick said the district is sticking with the law firm, noting that its lawyers have not been accused of a crime.
    “There haven’t been indictments; there hasn’t been anybody found guilty,” said Dedrick, who in July will become superintendent of the Capital Region BOCES.
    Honeywell could not be reached for comment. His statement said: “In the late 1990s then [state] Comptroller Carl McCall reviewed the situation of an attorney being employed by several municipal entities while enrolled in the [state] Employees Retirement System and found that situation not to violate any rule or regulation.” The attorney referred to in connection with McCall is apparently the wellknown Capital Region labor lawyer James Roemer. He has previously declined to comment when contacted by the Gazette.

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Pension gravy train is a runaway disgrace

By MARV CERMAK, Staff writer
First published: Tuesday, May 13, 2008

DiNapoli and Andrew Cuomo are doing a long-overdue service cracking down on part-time public sector lawyers padding their time slips.
Unfortu- nately, the savings is minimal compared with the cost of allowing part-time elected officials to claim full-time retirement credits.
     
Elected legislators from counties, cities, towns and villages are credited with full-time work although most attend only a few monthly meetings. Even state legislators are in session just half the year.
The elected representatives have forever claimed they are always on call, doing homework and on the street helping constituents.
Several local elected people I spoke with agreed they spend only between five and 10 hours a week on government business. They asked to remain nameless because they didn't want to be hassled by fellow politicians on the gravy train.
The system could be repaired by crediting the elected folks for only actual time spent at meetings. Hypothetically, let's say they are credited with 10 hours each week not 40. Over a four-year term of office, instead of four years credit in the retirement system, they would receive just one year.
The retirement system audits time records of regular part-time government workers, but why not the elected people? True pension reform would save megamillions at a time when the state is buried in debt.
No doubt DiNapoli and Cuomo would run into a buzz saw if they lean on all the elected folks.

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The retirement system audits time records of regular part-time government workers, but why not the elected people? True pension reform would save megamillions at a time when the state is buried in debt.

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Class-action lawsuit in state pension cases?
Lawyer says he is preparing to challenge the stripping of credits

By RICK KARLIN, Capitol bureau
First published: Wednesday, May 14, 2008

An Albany lawyer is preparing a class-action lawsuit to try to stop Attorney General Andrew Cuomo and Comptroller Thomas DiNapoli from stripping pension credits from lawyers who state officials say don't deserve them.
The lawsuit will likely be filed later this week in state Supreme Court in Albany County and will seek restraining orders against Cuomo and DiNapoli, said lawyer James Roemer, who specializes in public sector employment issues.
     
While he wouldn't immediately divulge details of his legal strategy or name the initial plaintiffs, Roemer said he's representing four individuals from Long Island who have lost pension credits during the past few weeks.
Roemer said he believes thousands of lawyers could potentially join the suit, given the many private attorneys who work for government entities, including towns and villages, school boards and utility districts, and who have enrolled in the state pension system. Cuomo and DiNapoli say lawyers in private practice generally shouldn't get public pensions.
"We've been working on this project, if you will, for almost a month and we've dubbed it 'Operation Pushback,' " said Roemer who is with the Roemer Wallins & Minneaux. He also is working with members of the DeGraff, Foy and Kunz firm.
For the past few weeks, following reports of alleged pension fund abuse reported in the Long Island newspaper Newsday, DiNapoli and Cuomo have been investigating lawyers who've worked for government organizations, starting with school districts and BOCES.
So far, DiNapoli has suspended about a dozen people from the pension system or stripped them of their retirement credits, saying they should have been categorized as independent contractors rather than employees.
And Cuomo last week got settlements worth $100,000.
But Roemer, 63, who himself draws a six-figure pension for his work for a number of Capital Region municipalities, contends that the pensions are justified.
"For 70 years plus, this has been authorized," Roemer said, explaining that no one from the comptroller or other office had questioned the practice until now.
Cuomo spokesman John Milgrim said his office couldn't comment since the legal action hasn't been filed.
DiNapoli spokeswoman Emily DeSantis predicted the comptroller would withstand any challenge.
"These individuals were not entitled to that service credit because they acted as independent contractors, not employees," she said of those who've lost their credits. "We are confident that our determinations will be upheld."
Roemer has been one of the central characters in the pension controversy. His situation was detailed in a 1997 Times Union story that disclosed how he had accrued $80,240 in annual pension credits for his work as a labor contract negotiator for the cities of Utica, Schenectady and Saratoga Springs, as well as the town of Colonie and Schoharie and Sullivan counties.
By the time Roemer started collecting his pension in 2001, it was worth $119,874 a year, according to state records.
While Cuomo hasn't publicly commented on Roemer's case in particular, his situation fits what the attorney general said is a pattern in which lawyers statewide have improperly gathered pension credits.
Essentially, Cuomo and DiNapoli say, these lawyers as well as some other professionals didn't meet commonly recognized conditions for being considered employees. Those conditions include having one's own place to work, being directed by a supervisor and keeping regular hours.
Roemer maintains he and others meet that threshold.
"You don't need a desk and a telephone to be considered an employee," Roemer said.
He has set up a Web site for people looking to learn more about the lawsuit, at http://snysr.com, although as of Tuesday evening it was still under construction. Karlin can be reached at 454-5758 or by e-mail at rkarlin@timesunion.com. James M. Odato contributed to this story.

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Albany lawyer sues over pension probe
Roemer wants investiagtion stopped, lists memos, advisories to back up arguments

By RICK KARLIN, Capitol bureau
Thursday, May 15, 2008

ALBANY - A veteran municipal lawyer filed suit in state court today, hoping to derail investigations into use of the state pension system by lawyers and to reverse decisions made against some of them.
     
State Comptroller Thomas DiNapoli and Attorney General Andrew Cuomo have been investigating lawyers statewide who they say may be improperly enrolled in the pension system because they were independent contractors, not employees. Almost a dozen people have lost pension credits or had them suspended.
Albany lawyer James Roemer's legal complaint alleges that Cuomo has launched a "politically motivated gambit" and that DiNapoli has embarked on an "illegal and unconstitutional course of action."
In his filing in state Supreme Court in Albany County, Roemer refers to previous decisions and memos from past comptrollers about pensions or other benefits.
Roemer cites a 1940 state constitutional amendment that says that pension benefits "shall not be diminished or impaired," and his exhibits include past memos, newsletters and advisories.
Some of his arguments:
The state retirement system, not the beneficiary, "determines the eligibility," of people getting pension credits.
Rather than needing several "indicia," or conditions of employment, to prove that someone is an employee not a contractor, people need to meet only one such condition. These "indicia" can include having a work space, being under the supervision of someone else or keeping regular hours.
The work hours for some jobs such as labor attorneys are regular but, as suggested in a 1997 comptroller's memo, that shouldn't exclude such people from retirement credits.
Independent contractors are hired for "a one-time specific job," according to a 1994 state retirement system newsletter. That shows that school lawyers could be considered employees, Roemer said.
He also cited a story in Newsday, a Long Island newspaper, about how DiNapoli, when he was chairman of the Mineola Board of Education in the 1970s, voted to hire an outside lawyer as an employee. The lawyer, who has since died, received retirement benefits.
While he has until recently focused on schools and BOCES organizations, Cuomo says lawyers at any of the state's thousands of government entities, including villages and sewer districts, could be wrongfully enrolled in the pension system.
Roemer draws a state pension himself and he was profiled in a 1997 Times Union story detailing how was able to use retirement systems rules to qualify for benefits. At the time, former Comptroller Carl McCall was quoted saying the benefits appeared to be legal.
In today's suit, Roemer is representing three downstate lawyers and one from Binghamton. All are fighting to keep or restore pensions the state is trying to take from them. Roemer said thousands of lawyers could potentially find themselves in similar straits, so the suit is filed as a class action.oth Cuomo and DiNapoli didn't have detailed rebuttals, but held firm in their contention that lawyers who are truly independent contractors don't deserve state pension benefits. Cuomo spokesman John Milgrim said the AG is "quite confident that our investigation is not only legally well-founded but in the public interest."
Cuomo has maintained that just because a practice has gone on for years doesn't make it right. DiNapoli stressed that each case is being looked at individually and decisions have been justified.
Also today, Cuomo said he was planning hearings about pension fraud with the Legislature next week and he is expanding his probe into the practice of "double dipping," in which school superintendents retire, collect a pension and then are rehired somewhere else. Specifically, Cuomo wants to explore if the waivers that allow that practice have been abused.

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CAPITOL
Lawyers sue state to keep controversial pension benefits
BY BOB CONNER Gazette Reporter

    Lawyers targeted by the state attorney general and comptroller for getting state pension benefits they allegedly have not earned are fighting back, filing a class-action lawsuit to defend their position and their pensions.
    The lawsuit was filed Thursday in state Supreme Court, Albany County, by four attorneys against Attorney General Andrew Cuomo, Comptroller Thomas DiNapoli, and the New York State and Local Employees’ Retirement System. Lead attorney for the plaintiffs is James Roemer of the Albany firm Roemer Wallens & Mineaux.
    The plaintiffs’ Web site, snysr.com  (standing for Save New York State Retirement membership benefits), has information about the case and links to the court documents.
    According to the complaint, the Employees’ Retirement System and the Comptroller’s Office have for many years recognized the right of “private-practice professionals employed part-time” by a public entity such as a school district to be enrolled in the state pension system. The lawsuit objects to the comptroller’s recent actions in removing several lawyers from the pension system, because, according to DiNapoli, they worked for private firms and should have been classified as independent contractors by the school boards that used their services.
    Cuomo has suggested that lawyers have engaged in fraud by lining up public pensions. Roemer confirmed that he is drawing a state pension of more than $119,000 per year based on his past work for local governments, and that he has been subpoenaed by Cuomo’s office. He said he is contesting the subpoena, and is legally entitled to the pension payments.
    Currently, Roemer said, he and his fi rm’s other lawyers work as independent contractors for local governments. He has in the past done labor relations work for the city of Schenectady, and his current clients include Schoharie County.
    The four attorneys who are plaintiffs in the lawsuit are Nathaniel Swergold, John Hogan, Terence Smolev and Paul Martineau. The complaint says they are suing on their own behalf and “on behalf of all others similarly situated.” The