The Ultimate In Chutzpah

Sanitary District 1 Attorney To Sue State Over Pulled Pension

Imagine that!

Nat "let them eat matzo" Swergold, longtime counsel to the beleaguered Town of Hempstead Sanitary District 1, plans to sue the State of New York over the State Comptroller's recent decision to terminate his most questionable public pension.

Gee, Nat, do you really believe you are entitled to a pension for "work" performed for the district as an independent contractor, while maintaining, at the same time, a full time law practice?

Sure. Why not?

If the hand feeds you while the eyes are looking elsewhere, take it. And if anyone tries to take that meal ticket away, well, bite the hand that feeds you!

Nat, your arguments hold about as much weight as those flimsy kitchen trash bags residents place at the curb -- or, in Sanit 1, at the back door -- instead of properly sealed garbage cans, and the trash you're slinging smells just as bad.

Retire. Move to Florida. Take away Nat Swergold's gravy train, and let him eat bread.

And by the way, Nat, don't forget to take the trash with you on your way out the door.
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From The Franklin Square/Elmont Herald:

Comptroller eliminates FS school attorney's pension
By MIKE CAPUTO

Attorney Nat Swergold, whose membership in the state retirement system was recently revoked, has decided to lead a legal battle to do what he believes is a chance "to undo a wrong."

Swergold, a Cedarhurst-based lawyer who represents Sanitary District 1 in Lawrence, said a lawsuit will be filed this week in Albany against state Comptroller Thomas DiNapoli and state Attorney General Andrew Cuomo. The lawyer was informed of the news through a letter sent last week from DiNapoli's office. Swergold's letter was one of six sent by DiNapoli's office -- including Attorney William Cullen of the Franklin Square school district and Accountant Sal Evola of Sanitary District 1 -- to those who were determined to be wrongfully listed employees in the public sector. Cuomo is also conducting a similar, but separate investigation of employment status's in local government.

Unlike Swergold and Cullen, Evola was not removed from the state retirement system. Instead, he was deducted about nine years' worth of pension credits he earned as a part-time treasurer for Sanitary District 1. Evola will continue to earn pension credits for his full-time position in the Village of Cedarhurst and a part-time position in the Inwood Fire District.

Swergold, who has been listed as a part-time employee of the sanitary district since 1972, expressed shock and anger at the process used by the comptroller's office. He contends that DiNapoli's actions are illegal, citing law from the state constitution and from past court decisions.

"Without opportunity to be heard and without any semblance of due process, the Office of the New York State Comptroller has unilaterally determined that my 36 years of continuous Tier 1 membership in the New York State Employees' Retirement System is to be rescinded on grounds contrary to the New York State Constitution and the Comptroller's very own regulations," Swergold said in a statement that he plans to use in his lawsuit.

Swergold's former status as a Tier 1 member of the New York State Employees Retirement System was only available to those who joined on or before June 30, 1973. Tier 1 members receive full-time pension credit, even for individuals like Swergold who do not have a specified work day and receive an "annual salary," state documents show.

The Tier 1 regulations also specify that "annual salary" must be passed through a law or resolution. In Swergold's case, the sanitary district's board of commissioners sets his salary through an annual resolution.

During an interview at his Cedarhurst office, Swergold pointed to the 1958 case of Birnbaum v. New York State Teacher's Retirement System as one basis for his argument. In that decision, a judge for the New York State Court of Appeals cited a section of the state constitution adopted in 1938 that says after July 1940, members of any pension or retirement system on a state or local level are to be considered a "contractual relationship, the benefits of which shall not be diminished or impaired."

"This is wrong as to me and wrong as to others," said Swergold, 73, who planned to retire and begin receiving his pension at the age of 75. "Therefore I am going forward with the lawsuit. The constitution is very clear."

Emily DeSantis, a spokeswoman for DiNapoli, explained that the comptroller has the authority to revoke membership in the state and local retirement systems because his office administers it.

Those whose memberships are revoked have the right to schedule an appeal hearing with the comptroller's office, which was specified in the most recent letters, she said.

According to DeSantis, Swergold and Evola were mentioned in an audit of Sanitary District 1 released in January 200. That audit recommended that the attorney (Swergold) and accountant (Evola) should be considered independent contractors, instead of part-time employees with benefits. Those recommendations were not followed through until last week.

"These two particular individuals [Swergold and Evola] were pointed out in an audit of this office in 2005, so we followed up to see if corrective action had been taken as the audit recommended and it had not, " DeSantis said.

Evola remains in the retirement system as a full-time village administrator for the Village of Cedarhurst and as a treasurer for the Inwood Fire District. Until this year, Cullen was listed as an employee by the Franklin Square schools, and as a part-time employee by the Brentwood and Half Hollow Hills libraries. Cullen's attorney Kevin Keating did not specify his client's course of action, but acknowledged that he would fight the comptroller's actions.

"We are weighing all of our options," Keating said. "We are convinced that Bill Cullen did nothing wrong and was fully entitled to service credit in the retirement system." As an employee for the aforementioned districts, Cullen "had a myriad of duties and responsibilities with each of these entities," Keating added.

Like Swergold, Keating said the comptroller's decision to rescind membership in the retirement system is not based on statutes.

For now, DiNapoli's staff is continuing its ongoing investigation and expects more findings in the near future, DeSantis said. Despite Swergold's intent to file a lawsuit against DiNapoli, the comptroller and his staff continues to stand behind their actions. "Our thorough review of the individuals whose retirement service credit has been revoked found these individuals were not entitled to that service credit because they acted as independent contractors, not employees," DeSantis said. "We are confident that our determination will be upheld."

Comments about this story? Mcaputo@liherald.com or 516-569-4000 ext. 210.


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