RC LEGAL WATCH MAY 10, 2012

PENSION ABUSE CLAIMS ON THE RISE IN ROCKLAND

BY LEGAL LARRY

New York State has one of the largest public pension funds in the world. In fiscal year 2011, the State had a total of 970,756 active and retired members of the pension fund. The public pension fund currently totals $132.5 billion.

While the public pension is currently fully funded, the New York State Comptroller’s office is predicting exponential increases in upcoming years. According to New York State Comptroller statistics, by 2015, the price tag is expected to reach $6 billion and will only go up from there.

The public pension fund for municipal and civil service employees is funded by our taxes. In the most recent census taken, each resident of the State of New York pays $486 in taxes to fund the pensions of current and retired public employees.

A vast majority of those receiving pension benefits deserve 100 percent of the benefits they receive. Retired teachers, police, firefighters, etc., are vital to our daily safety and society and have worked to make our lives better on a day-to-day basis. But with so much money at stake there are bound to be abuses by individuals trying to cheat the system.

The New York State Comptroller’s Office has recently studied potential abuse claims to the pension system and found incredible abuses to the system, some even in our area. The most costly abuse is when public employees near retirement start working substantial amounts of overtime.

Overtime pay is included in salary and benefits to retirees when calculating their respective pension benefits. The list of potential abusers is unfortunately long. Some local examples of overtime abuse are:

(1) a highway maintenance employee in our area went from no overtime to working 539 hours in overtime in the final year before retirement;

(2) a police officer went from no overtime to working more than 800 of overtime in his final year before retirement;

(3) A shovel operator averaged 144 hours of overtime annually from 2002-2005. From 2009-2011 that employee averaged 820 hours of overtime.

Also, last week the U.S. Attorney’s office filed charges against 10 Long Island Rail Road retirees claiming excessive fraud against the public pension.

Last month, lawmakers in Albany approved a measure cutting the retirement benefits for future public employees across the state. This legislative measure was met with legal challenges by several unions.

The outcome of these lawsuits has a direct effect on all residents of the State of New York and County of Rockland. Abuses to the pension system cost each and every resident of Rockland part of our hard earned money. The Rockland County Times will continue to monitor and report on these cases and all other matters whereby people try to cheat the system.

SPOTLIGHT CASE OF THE WEEK

BY LEGAL LARRY

Several days ago, a pension case was filed that hits Rocklanders at home. The case Clark v. Town of Clarkstown was filed by former police officer Joe Clark claiming, among other things, that Clarkstown Police Officers were allowed to “donate” sick time to a retiring police officer, thus padding the retiring officer’s pension.

The plaintiff claims this abuse violates New York State Constitution by the town allowing gifts of public funds to an individual and also violates the collective bargaining agreement between the police union and the Town of Clarkstown. The lawsuit claims that the town permitted this “donation” of time by allowing false entries in the police department’s records.

The Town of Clarkstown has a collective bargaining agreement with the police union. According to the collective bargaining agreement, each officer is allowed 24 sick days per year. Any unused sick days are carried forward from year-to-year.

If an officer has 20 years on the job and takes no sick time he or she can “buy back” 480 sick days (24 days x 20 years) and that additional time would increase the length of service by an additional 16 months. Rather than retiring with 20 years on the force, the officer would retire with 21 years and 4 months of service.

Any pension paid to officer would reflect the retiring length of service. If fellow officers are donating time to a retiring officer, this would have the effect of further increasing the retiring officer’s length of service and would result in a greater pension during retirement.

The Town of Clarkstown disputes the claims and has submitted papers asking Judge Linda Jamieson in Rockland County Supreme Court to dismiss the lawsuit.

The plaintiff is currently being represented by Maureen McNamara, Esq. of West Haverstraw, New York.

According to plaintiff’s lawsuit, the Town of Clarkstown also allowed a police officer to utilize the Town’s E-Z Pass and town vehicles for personal use. This, according to plaintiff, is a violation of the New York State Constitution which forbids municipalities to use public monies for the benefit of individuals.

The plaintiff’s attorney requested records regarding vehicle use and E-Z Pass records through New York’s Freedom of Information Law, but was initially denied. The town is prepared to release certain records to the plaintiff’s attorney shortly.

The matter is currently assigned to Judge Linda S. Jamieson in Rockland County Supreme Court. Plaintiff’s attorney sought a temporary restraining order from the court asking that the status quo be maintained during the lawsuit, but this request was denied by the Judge. However, the entire matter must be decided by the judge.

The town has submitted papers opposing the requested relief and further asking the court to dismiss plaintiff’s claims based upon a lack of standing to bring the action and also that the applicable statute of limitations (the time that an action must be brought within) had expired. The judge has several options available to her. She may:

1. Dismiss the plaintiff’s action in its entirety;

2. Grant the plaintiff’s petition and enjoin the town from allowing the conduct to go on;

3. Allow certain discovery to take place before the matter proceeds to a hearing or trial;

4. Order an immediate hearing or trial on the plaintiff’s claims.

Calls to the town’s attorneys in Albany were not returned.

We at the Rockland County Times will continue to monitor this case and report on the outcome since this matter has a direct bearing on the residents of Rockland. We will also continue to report on other matters in the Courthouse that affect Rockland residents.

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