By Paul Shapiro
"We are seeking not only to terminate his health care benefits, but to get reimbursed for all the amounts we paid out for health care insurance and pension as well," Weitzman said. "We will be moving to collect directly from [D'Agostino] the amount that we paid out on health insurance. We are demanding repayment of all the money previously given to him."
D'Agostino, a prominent Nassau County attorney at Minerva & D'Agostino in Valley Stream, had been receiving a six-figure public pension after the state retroactively approved 21 years of pension credit for him, along with lifetime retiree health benefits. He worked as legal counsel for the Lawrence, Valley Stream and North Merrick school districts as well as the Nassau County Planning Commission, and has also represented the Village of Valley Stream, the Town of Hempstead and Nassau County in legal proceedings.
Weitzman's action comes after state Comptroller Thomas DiNapoli determined that D'Agostino was an independent contractor, and not a county employee. DiNapoli said in a press release that D'Agostino was "wrongly reported" as an employee "by numerous school districts and local governments." He also referred to D'Agostino's case as "the most egregious examples we've found so far" and that "they must return every dime that is owed to the pension fund."
"The whole premise of [D'Agostino] being entitled to the health benefits was based on his dubious claim that he was an employee of Nassau County," Weitzman said. "In 2000, he made the dubious claim that the county had been slow with his paperwork for 21 years, and that he was really supposed to be classified as an employee. That claim is ridiculous.
"And given the fact that our position has been vindicated by the state comptroller stripping him of his health benefits," Weitzman continued, "we are taking the stand that he was never an employee of Nassau County."
The state comptroller's office is now looking to recoup nearly $606,000 D'Agostino collected from August 2002 to March 2008, when DiNapoli's office suspended his pension benefit, while the Nassau County comptroller's office will be seeking approximately $431,000.
The state comptroller's office will issue a refund of employer pension contributions to the county that totaled roughly $177,000 - 21 years' worth of pension credits - in addition to almost $92,000 in estimated costs to county taxpayers for health benefits D'Agostino has received since 2000. With interest, the total amount repaid to county taxpayers by the state for pension and health benefit contributions adds up to the figure of $431,000.
"We're talking about a serious amount of money, and this is a serious misuse of the system," Weitzman said. "D'Agostino owes the state over $600,000. [Nassau County] paid the state $177,000, and when he pays back the state that $600,000, we'll get back $177,000 plus taxes. The health insurance repayment comes directly from him - that's $92,000 plus interest.
"[D'Agostino's] public comment is that he will challenge the determination," Weitzman continued. "It will be up to the state to get the pension money, but we expect to get the money for the health insurance."
D'Agostino said he feels that the money paid to him since his retirement was rightfully earned. "My entitlement to the pension was determined by the New York state comptroller on several occasions, and on several of those independent occasions it was reviewed and re-reviewed by more than one person," he said. "It went up the ladder, I know that for a fact, so there are probably somewhere between 14 and 20 independent approvals of the independent segments. Now we have a new [Nassau County] comptroller that is applying the same set of standards and saying that is a mistake. I can assure that it was properly done."
When D'Agostino applied for and received 21 years of pension credit retroactively, along with lifetime health benefits, he had been classified as a county employee for only a little over a year, from 1999 to 2000, although he had been working in Nassau County for some time. The county Legislature recently unanimously approved legislation drafted by Weitzman to require at least five years of service with the county before employees can receive lifetime health benefits.
"Obviously I am going to protect myself," D'Agostino said. "I believe my pension was rightfully earned and I am going to litigate. ... If you look at the statute, the statute says you are entitled to retroactivity if you were not offered the option to join in writing and you did not decline in writing."
The retroactive pension credits D'Agostino received came after the submission of more than 10 years' worth of federal 1099 tax forms - typically issued to independent contractors as a record of their income - as proof of county payments and a letter from former Comptroller Fred Parola, showing that the county had four contracts with D'Agostino predating the county's electronic record-keeping.
"I said, 'Gee, I have an office, I have a phone, I have to be here a certain number of days a week, I think I have all the indications of employment,'" D'Agostino explained. "That went to the comptroller and I got a letter back, I would be guesstimating two weeks or a month later, saying we approve all that has happened. They approved it. Everything was done properly, according to the rules as they existed and what was required at the time. I submitted, and it was approved."
Weitzman said he feels that D'Agostino's and Parola's submissions should not have been accepted by the state retirement system as evidence of employment. "Why that letter was written, I have no idea," Weitzman said. "It certainly didn't make any reference to [D'Agostino's] status, and based on that the state should not have given him those benefits."
Weitzman emphasized that professionals working as independent contractors should not be reported as employees or be entitled to pension and health benefits. D'Agostino has said he simply applied for something that he had earned from his many years of work for the county and the school districts.
"It was not something that I asked for," D'Agostino said. "This was what the school districts provided for this job. ... I am not going to speculate motivation - we all know what the reason is. It is politicians that are bantering about the difference between an independent contractor and an employee."
Weitzman said he feels the problem is larger than the D'Agostino situation. "This goes beyond Mr. D'Agostino," he said. "It's just further indication of our determination to get corruption out of Nassau County. County taxpayers shouldn't be forced to bear the burden of lifetime pension and health care benefits to people with political influence."
Mike Caputo contributed to this story.
Comments about this story? PShapiro@ liherald.com or (516) 569-4000 ext. 201.
