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2 LI attorneys to join suit to keep pensions

BY ELIZABETH MOORE | elizabeth.moore@newsday.com

May 15, 2008

Two Long Island private attorneys who had earned state pension credits will join a class-action lawsuit seeking to block Attorney General Andrew Cuomo and Comptroller Thomas DiNapoli from stripping their state pensions, their attorney said yesterday.

Nathaniel Swergold of Woodbury, attorney for Hempstead's Sanitary District No. 1, and Mineola attorney Terence Smolev, who represented the North Merrick Schools, will be among the four named plaintiffs in the case. But as many as 4,000 to 7,000 people - including elected officials - could ultimately be covered by the action to be filed today, according to James Roemer, the Albany public-sector labor relations attorney bringing the suit he calls "Operation Pushback."

In the unfolding state and federal civil and criminal probe triggered this year by stories in Newsday, DiNapoli and Cuomo have targeted the state retirement system credit logged by school district attorneys and others who should have been treated as private contractors.

But "over 60 years of practice and history" says private lawyers can also be part-time public employees, argued Roemer, who represents 40 municipalities and himself collects a $119,873 state pension based on his municipal legal work.

Roemer, who first disclosed his legal plans yesterday in the Albany Times-Union, said there is widespread "concern" about where the probes could lead.

"I have received telephone calls from judges, from other people who have had prior part-time service, indicating that they're outraged over what's happening here," Roemer said. "I have hundreds on the sideline cheering this on."

DiNapoli announced last week that he had stripped state pension credits from Swergold, 72, who had 35.7 years of credits at Sanitation District No. 1 in Lawrence.

Smolev, 63, a Dowling College trustee and a vice chairman of Nassau comptroller's audit advisory committee, was identified by sources in April as one of 90 attorneys receiving pensions that Cuomo said he was investigating for "potentially fraudulent" claims that they were school district employees and not outside contractors. He is receiving a yearly state pension of $4,143 for work at the North Merrick School District between 1982 and 1999.

"If you're not an employee, and you said you're an employee, and you then claim credit for a pension, that's a fraud, and then why should the taxpayers give you a pension?" Cuomo said yesterday when asked about Roemer's case.

DiNapoli said yesterday he was confident his determinations will stand up in court.