Valley Stream attorney wins appeal

The New York State Supreme Court has ruled in favor of the attorney who represents the Lawrence School District, reversing the state comptroller’s determination that he should be removed from its pension system. Following the Aug. 20 decision, the state must repay the lawyer’s missed pension payments within 30 days and reinstate him into the state retirement system.

“I put my faith in the judicial system and I’m pleased [with the decision],” said Albert D’Agostino, who represents the Lawrence School District and the North Merrick School District in their court proceedings. “I always felt the judicial system would protect my and anyone’s constitutional rights for due process.”

Both districts rehired the attorney in September 2008 despite New York State Comptroller Thomas DiNapoli’s June 2008 claim that D’Agostino should not have received the $106,702 annual pension because he was an independent contractor. He also represented Valley Stream School District 30 for 31 years, he said, but was not rehired after the comptroller’s claim.

District 30 Superintendent Dr. Elaine Kanas said that the pension issue was not why the district broke with D’Agostino’s firm, Minerva and D’Agostino, last July. Rather, the Board of Education chose to switch to Keane and Beane because that firm has a greater number of attorneys available. It also represents more school districts then Minerva and D’Agostino, she noted. “They have more experience in terms of day-to-day practice in education law,” Kanas said of Keane and Beane.

Kanas said that it is good practice for districts to regularly seek alternatives for its professional services to ensure it is getting the best price. Minerva and D’Agostino was one of the four finialists when it interviewed law firms last summer.

DiNapoli’s office had ordered D’Agostino to pay the state back $605,874.79. The Valley Stream-based lawyer filed a lawsuit in October to fight the comptroller’s determination, which he said was a result of “a lot people looking for pieces of political red meat.” The judge in the case ruled that the state did not give D’Agostino due process when it came to the termination of his pension, but added that those benefits can be taken away again if the state finds any problems.

“Our office will continue to take appropriate action against individuals who are determined to be independent contractors and not employees,” said DiNapoli spokeswoman Emily DeSantis. “The ruling does not in any way hinder the Office of the State Comptroller’s authority to revoke an individual’s pension if that individual is deemed to be an independent contractor. Rather, the decision says there should be more due process before an individual’s pension is taken away. Because the court largely agreed with us, we are not appealing the decision.”

This is the first time a court has reversed a DiNapoli revocation or rescinding of a pension. The state comptroller’s office took away the pension benefits of 62 professionals statewide, most of them attorneys, after a review began in April 2008.

D’Agostino also represented the Nassau County Planning Commission and the Town of Hempstead Public Employment Relations Board before his retirement in 2000. As a result of his many years of employment with the municipalities, D’Agostino collected nearly 28 years of service credit in the pension system. He said his pension requests were approved on multiple occasions by the state.

“How would you like to go before a judge for a fair trial and he said, ‘I’ll give you due process’ and then hang you?” D’Agostino asked. “I don’t think [DiNapoli] understands his oath of office. This is not how much ketchup you put on a hamburger. Due process is one of the core civil rights. The court said I was deprived of due process and that’s a grievous violation.”