Councilman under investigation

The Nassau County district attorney’s office says it is investigating whether Democratic City Councilman Mike Fagen illegally collected unemployment benefits last year, following claims by City Manager Charles Theofan that Fagen failed to report his weekly earnings as a city employee. A Democratic Party official, however, called the allegation a “setup” and said that unlike two other council members, Fagen refused to report “full-time” hours as a councilman in order to receive a heftier pension for what is largely considered a part-time job.

Theofan said that Fagen — who was elected in 2009 and is one of five council members, each of whom draws an annual salary of $19,296 — collected unemployment checks from January to August 2010 but did not report his weekly earnings to the New York State Department of Labor. Theofan said he believes Fagen should resign.

“The reality is, if in fact he did what [it] appears he did, the right thing for him would be to consider resigning from the City Council,” Theofan said, adding that he notified the Labor Department after he received an anonymous tip. “We gave [the department] copies of his paychecks to prove that he received this money.”

Theofan said he believes Fagen collected roughly $10,000 in unemployment benefits, and that the Labor Department referred the case to District Attorney Kathleen Rice’s office in January. Chris Munzing, a spokesman for Rice, confirmed that an investigation was under way but declined to comment further. Officials from the Labor Department did not return calls for comment.

Theofan said that a felony arrest appeared imminent in January, but stalled after Fagen retained attorney Fred Brewington. “I am his attorney,” Brewington said, “and at this point I cannot comment.”

Fagen also declined to comment.

Part-time workers are permitted to collect unemployment if they lose full-time jobs, but are required to report their hours worked and weekly earnings to the state Labor Department.

According to Fagen’s profile on LinkedIn, his most recent job was as Nassau County’s director of strategic development. County spokeswoman Katie Grille-Robles, however, said that Fagen was never on the county’s payroll, but added that he may have worked with the county in a different capacity.

Some questioned Theofan’s claim that Fagen failed to report the required hours and wages worked for an elected position that is considered part-time, especially after the New York Post reported that Theofan had signed off on time sheets stating that Council President Thomas Sofield Jr. and Vice President Mona Goodman had reported working 40 hours per week instead of the allotted 30 hours, which could increase their pensions.

In 2005, the council passed a resolution establishing a six-hour workday and a five-day workweek for City Council members to report to the New York State and Local Retirement System.

Mike Zapson, Chairman of the Long Beach Democratic Committee, questioned the allegations against Fagen and how the city submits time sheets for elected officials. “I think the gist of that story was that the city manager is putting in time sheets for council members, saying that they’re full-time employees,” Zapson said. “What apparently happened is that Fagen didn’t want to go along with it, and Theofan reported him to the D.A. because he wasn’t working at the time. The city manager took it upon himself to contact the D.A. and New York state to say [Fagen] was working full-time [as a councilman] and that he shouldn’t be collecting unemployment.”

But Theofan disputed those claims. He said that Sofield, an attorney, and Goodman, who works for a specialty foods company, receive pension credits for 30 hours per week submitted to the state comptroller. The 40 hours referred to in the Post article, he said, is logged for internal payroll purposes only and is not submitted to the state, a practice that he said was followed by past administrations.

“Unfortunately, the Post is giving the impression that our internal bookkeeping time sheets get submitted to the state, and they do not,” Theofan said. “We inform the state who our full-time employees are, and, if they work full-time, they get a full year’s credit. The elected officials are a little different because state law requires that we pass a resolution stating how much credit they get in the state retirement system. There is no padding — no one is getting extra credit in the retirement system.”

Goodman disputed claims that she and Sofield were bilking the pension system and called the Post article a smear campaign. “As far as I know,” she said, “for many years this is the way council members have been credited toward the pension [system].”

Long Beach is one of hundreds of municipalities across the state that offer pensions through the New York State and Local Retirement System, in which elected officials have the authority to approve full-time or nearly full-time pension credits for themselves.

Dennis Tompkins, director of communications for State Comptroller Tom DiNapoli, could not immediately provide time sheets submitted by the city for council members. He said, however, that the state considers 30 hours to be full-time work.

“When we look at the records, we will be able to determine how they were being reported,” Tompkins said.

DiNapoli established new requirements for elected officials two years ago in an attempt to eliminate pension fraud and abuse. Since elected officials usually do not work a set schedule or have fixed hours, the changes were meant to more clearly define the reporting of hours worked. The new rules require more detailed records of elected officials’ work activities.

Zapson, however, said that Fagen was classified as a full-time employee and believes he was “set up” as a result, because he refused to inflate the hours he worked as a councilman each week. “My understanding is that Fagen disclosed to [the state] how much he was working, and he disclosed that he was working part-time and I’m sure he did it properly,” Zapson said. “He was definitely set up because he wouldn’t go along with saying that he was a full-time employee. It’s either a full-time job or it’s a part-time job. Fagen didn’t want to be considered full-time because that’s what hurts him and his unemployment benefits.”

Theofan, a Republican, disagreed, saying that Fagen was in no way being targeted for political reasons. While he acknowledged that Fagen was required to keep a detailed log of the hours he worked each week, he insisted that Fagen abused the system.

“Please don’t call this political — it isn’t,” Theofan said. “Nobody is better equipped to do this analysis than the Department of Labor, and they were the ones who determined that he was to be prosecuted.”

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