Class-Action Lawsuit Over Cuomo's Corruption Clean-Up

Class-action lawsuit in state pension cases?
Lawyer says he is preparing to challenge the stripping of credits
The Albany Times Union by by RICK KARLIN - 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.