Pension abuse troubles

Three Long Island attorneys who sought to block state

investigations of whether they were improperly granted public pensions have

lost a key court ruling in Albany, even as the court left open the possibility

that the lawyers might not have received adequate notice that they were being

removed from the state retirement system.

Both sides in the legal battle, begun last May after Newsday exposed the

practice of private attorneys being reported as public employees in order to

qualify for benefits, declared victory after the ruling, issued Friday by

Acting State Supreme Court Justice Gerald W. Connolly.

The New York comptroller and attorney general said in statements that the

court upheld the state's right to investigate pension abuses and revoke

pensions of those who were incorrectly classified as employees.

But Albert D'Agostino, a Garden City attorney who is one of the lawyers

suing the state, said he was "very pleased" with the decision. "The important

part is that the court held that they violated my due process rights by

terminating my pension and stripping me of my rights without a ... hearing," he

said.

Last August, the state Comtproller revoked D'Agostino's $106,700 pension

and ordered him to pay back $605,874.79. Auditors found that he had been

improperly reported as an employee of six municipal entities while also earning

millions from them as an independent contractor.

The plaintiffs, in addition to D'Agostino, include Long Island attorneys

Nat Swergold and William Cullen, among others. Swergold and Cullen argued that

the state had no right to investigate their retirement benefits because public

pensions are protected by the state Constitution.

The court disagreed, saying, "Such guarantee does not prevent an

appropriate correction of error."

However, the ruling granted the plaintiffs the right to seek an

administrative remedy.

That part of the decision "has a huge impact," said James Roemer, the

Albany lawyer who is representing the attorneys. "The process does not pass

legal muster. It didn't from Day One."

DiNapoli's spokeswoman, Emily DeSantis, said the comptroller's office had

been "thorough and deliberate in our review of attorneys in the retirement

system," but would review the process it uses to notify attorneys of any

decisions.

Swergold declined to comment, and Cullen's attorney did not return a call

yesterday. Neither one has begun collecting state pensions.