The Village of Mineola Board of Trustees recently passed a resolution declaring that the New York State Comptroller's Office acted in bad faith and illegally with respect to the comptroller's office recent inquiries into the legitimacy of the employment of village attorney John Spellman.
Spellman is listed as a public official for the Village of Mineola, Village of New Hyde Park and Village of Roslyn and is, therefore, entitled to membership of the New York State Retirement based upon his status as an employee in all three villages. However, the State Comptroller's Office is looking into whether Spellman is classified correctly or whether he should be classified as an independent contractor with no entitlement to state pension benefits.
"We're reviewing him as part of our ongoing review of layers in the pension system to determine if he was correctly classified," said a spokesperson for New York State Comptroller Tom DiNapoli.
In a letter dated November 5, 2008 from the Office of the New York State Comptroller to Spellman, the comptroller's office states it has been determined that Spellman was not an employee of Mineola, Roslyn, New Hyde Park and the Albertson Water District, but was an independent contractor. As an independent contractor, the comptroller's office states that his 26 years of service credit is invalid.
However, village mayors Jack Martins of Mineola, Daniel Petruccio of New Hyde Park and John Durkin of Roslyn have sent letters to the State Comptroller's Office validating Spellman's status as a public official and employee of those villages.
The Village of Mineola Board of Trustees also passed a series of resolutions at its December 17, 2008 village board meeting including reaffirming Spellman as a public official of the Village of Mineola and a resolution declaring that the state comptroller has acted illegally and in bad faith.
Mayor Martins feels the comptroller's action circumvents the idea of home rule and that the mayor and the village board should be the ones to decide who is an employee of the Village of Mineola, not the state comptroller. "That is our responsibility as public officials and as elected officials and as stewards of the village," Mayor Martins said, noting that Spellman has been appointed an employee of the village as village attorney by every mayor and board since 1985.
"This is clearly, as Mayor Martins stated, a matter of home rule. This village determines who is an employee, not the state. The village determines who comes on our payroll and who doesn't, not the state comptroller," said Mineola Deputy Mayor Larry Werther.
Mayor Martins feels the issue is one of home rule because it's the Village of Mineola taxpayers and the employee of the village, in this case Spellman, who are contributing to the pension, not all of the residents in New York State. It should, therefore, be up to the residents of Mineola, through the board of trustees and the mayor, who should be a public official of the village.
Mayors of the other villages Spellman is listed as an employee for - New Hyde Park and Roslyn - also came to the defense of the attorney.
Mayor Petruccio of New Hyde Park appointed Spellman to the office of village attorney on June 14, 2001. "There has never been any doubt in my mind that John M. Spellman is a public officer of the Incorporated Village of New Hyde Park. There is no doubt in the minds of the trustees of the village. There is no doubt in the minds of the residents of the village," stated Mayor Petruccio in a letter to the comptroller's office.
Spellman has been listed as a public officer for the Village of Roslyn since April 21, 1998. "The official position of the Incorporated Village of Roslyn is quite clear: Mr. Spellman is a duly appointed public officer of the village and his service time in its entirety commencing on April 21, 1998 through and including the present is creditable to the retirement system," wrote Mayor Durkin in a letter to the comptroller's office.
As village attorney and an employee of three different villages, some may wonder how Spellman finds the time. However, in both Mayor Petruccio's and Mayor Martins' letters to the state comptroller's office, it states that "the nature of elected or appointed positions does not lend itself to a 9 a.m. to 5 p.m., Monday through Friday, type of job. It's because of the special, flexible needs of these positions that there must be a different way of determining the hours being rendered for the position and converting them into days worked for requirement reporting purposes...these records should be sent to the municipality for review, not to the state retirement system."
As the attorney for Mineola, Spellman receives an annual salary of $35,000 along with medical, dental and optical coverage, life insurance and New York State and Local Retirement System credit. According to Mayor Martins, in exchange, the Village of Mineola receives over 1,000 hours of service annually.
As attorney for New Hyde Park, Spellman receives an annual salary of $30,000, medical insurance (which Spellman has waived) and participation in the retirement system.
As attorney for Roslyn, Spellman receives a yearly salary of $27,000, medical insurance (which Spellman has waived) and participation in the retirement system.
According to the mayors of those villages, disqualifying Spellman's pension credits would force the villages to pay the village attorney an hourly rate, which would cost taxpayers hundreds of thousands of dollars for the same hours of service. The three village mayors feel they are saving money with the current work agreement in place.
Mayor Martins estimates that the village would pay many times more than the $35,000 salary plus benefits the village currently pays to its attorney. "That translates into direct taxpayers dollars and would affect our tax base accordingly. So, rather than saving our taxpayers money, the comptroller's action threatens to increase our taxes and we will not stand for it," Mayor Martins said.
The New York State Comptroller's Office has been taking action as of late in regard to pensions. Last month, DiNapoli announced his office rescinded the New York State and Local Retirement System service credit of a Central New York attorney and a Long Island attorney because they were reported by school district and municipalities as employees.
"My review of attorneys in the Retirement System is turning up individuals who were incorrectly reported as employees when they acted as independent contractors," DiNapoli said in a press release. "Erroneous pension benefits are being recouped and the money is being returned to local government employers. My review of attorneys is continuing and my office is looking at additional professional titles."
Last year, DiNapoli also announced enhanced regulations to more clearly define who is an employee of a municipality or school district and who is an independent contractor. Among the regulations are that the employer (the municipality or a school district) provides a permanent work space for the employee and deducts taxes and employee benefits contributions from the individual's paycheck.