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Lynbrook asserts its attorneys entitled to pension

On the heels of a statewide review by the state comptroller's office into attorney pension abuses, Lynbrook has passed a measure to clarify that its village attorneys are public officers who are entitled to a state pension.

State Comptroller Thomas DiNapoli's office had twice reviewed whether the village's attorney and his deputy qualified for membership in the state retirement system, eventually reversing an earlier decision to find that they did.

The board approved the change in village code in June, nine months after DiNapoli's office determined village attorney Peter Ledwith and deputy village attorney Philip Marino were not public officers and thus did not qualify for pension credits. Last month, the state comptroller's office reversed itself, finding the attorneys had been properly designated as public officers.

"It appeared that they [the attorneys] were independent contractors," Jennifer Freeman, spokeswoman for DiNapoli's office, said of the initial decision, made in October after an auditor's analysis. "There was insufficient documentation to establish whether or not they were public officers."

In response, she said, Ledwith and Marino provided evidence of their appointments and oaths of office. Attorneys may be designated as both public officers or employees and independent contractors if they handle different duties in each capacity, she said.

Since at least the 1940s, Lynbrook paid its attorneys two streams of income - a salary and fees as independent contractors. Ledwith and Marino had accrued pension credits in the state retirement system based on their employee salaries.

Marino also is the chief deputy attorney for the Town of Hempstead, where he has a salary of $133,960 and earns credits in the state pension system.

Ledwith's annual salary - which ranged between $13,000 and $17,000 - was a fraction of his contractor fees. Since 2002 he earned a total of about $106,000 in salary and billed the village about 10 times that amount as a contractor.

Village administrator John Giordano said Lynbrook's government always had intended for village attorneys to be public officers. The appointment of the village attorney at Lynbrook's first board meeting in 1911 underscores the point, Giordano said. "Among the many actions voted on at that inaugural meeting was the appointment of William Fowler as attorney" alongside the mayor and other public officers, he said.

The new law, passed June 15 following a public hearing, details the job duties and calls for the village attorney to work at least six hours a day. The salary was set at $135,000.

DiNapoli's office is not aware of similar legislative action by other villages, Freeman said.

Ledwith conceded that he does not have a work space at the village hall, one of the factors in differentiating between employees and independent contractors. Ledwith said it is rare for village attorneys to have offices at village halls.

DiNapoli launched a review of all attorneys in the retirement system in April 2008, after a series of Newsday stories exposing pension abuses. To date, 62 people have lost a pension or pension credits as a result of a review, the state comptroller's office said.

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