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Recently retired city attorneys in New York are threatening to sue their former employer and their union over a contract they say cuts into their pensions and discriminates against them. The attorneys, who retired last October from various city agencies, including Corporation Counsel’s Office and the Department of Housing Preservation and Development, allege that their pensions will be reduced because of a provision in the contract their union negotiated with the city last fall. The contract, the first since their last one expired in 1999, provides for a series of wage increases dating back to January 2000. But the increases for 2001 and 2002 will not count toward pensions until they are in effect for two full years. The attorneys who are threatening to sue all retired by Oct. 8 last year in order to receive an early retirement benefits package, which was offered by the city to reduce spending as it faces a budget crisis. Generally, attorneys represented by the Civil Service Bar Association, an affiliate of Local 237, receive a life-long pension based on the salary they earned in their final year, or an average of the salaries they earned in their final three years, depending on the length of their employment. But the new contract would exclude the 2001 and 2002 salaries for these retired attorneys’ pensions because they did not work through the end of 2002. Essentially, their pension would be based on what they were earning two years ago, despite language in the city’s Administrative Code that mandates a pension based on their most recent wages. The attorneys, who last week filed a notice of claim against the city, allege that the structure of the contract constitutes age discrimination and awards superior benefits to younger attorneys at the expense of retiring, long-standing civil servants. “We all worked for the city for basically our whole lives,” said Stephen Donheiser, 57, who retired as an attorney at HPD last October and voted against the contract. “It was our job to defend the city. You would think that the city would appreciate it.” An attorney for the Corporation Counsel’s Office said Friday that this type of contract agreement did not discriminate or violate public policy, and has been upheld by state courts. Alan Fuchsberg of the Jacob D. Fuchsberg Law Firm, who is representing the retired attorneys, roughly estimated there are at least 30 attorneys who retired last year under the city’s Early Retirement Incentive Program, though the total number is difficult to determine. All the potential plaintiffs are over 50 and have held full-time legal positions with the city for at least 10 years. Five plaintiffs are named in the notice of claim, which alleges the contract violates Title 8 of the city’s Administrative Code, the Age Discrimination in Employment Act of 1967, the Early Retirement Incentive Act, and Article 5, � 7 of the state Constitution. Fuchsberg said his clients are entitled by law to a pension based on their recent salaries, and that the attorneys’ union and the city could not bargain it away during contract negotiations. He said he would file a federal lawsuit on behalf of his clients alleging age discrimination and seeking a retroactive alteration to the contract, plus attorney’s fees and costs. A woman answering the phone at the Civil Service Bar Association on Friday said Gloria Johnson, the president of the union, was unavailable for comment. The woman estimated that the union represented about 800 attorneys. Anshel David, deputy chief of the pensions division at Corporation Counsel’s Office, said, “the pension calculation is in accord with well settled legal principles.” He cited In the Matter of Arthur Ahr, 243 A.D.2d 293, a 1997 unanimous ruling from the Appellate Division, First Department, which held that a union for city employees was free to waive Article 5, � 7 of the state Constitution, and that the employees were bound by the actions of their union. Lucy Tabacco, 57, who retired from the Department of Consumer Affairs in October, said the city announced its early retirement incentive package last summer. She had already given notice and began transferring her cases to other attorneys when the time came to vote on the contract. “This took me totally by surprise,” said Tabacco, who also voted against the contract. “The timing was pretty traumatic because my papers were already in.” Though she said she had not calculated it exactly, she said that under the contract her pension would be based on a salary that is about $3,000 less than the final salary she had been earning. “It’s extremely unfair,” said Donheiser, who had worked for the city for 25 years, including 15 years at Corporation Counsel’s Office. The new contract, published in the City Record on Dec. 18, is in some ways stronger than contracts offered to other city employees who are union members. Rather than giving attorneys a standard 4 percent raise in each of the first two years and 1 percent in the third year, the contract doled out 4 percent in the first year and established an increase structure — called a Recurring Increment Payment schedule (RIP) — for the final two years. One goal during negotiations, according to Tabacco, was to reward more experienced attorneys with wage increases beyond 4 percent based on their length of service and their expertise. The contract even provides for additional increases for attorneys with 15 years or more of service. But for attorneys who decided to retire by October, before the contract had been made final, the increases will not count toward their pensions. By retiring under the city’s incentive program, attorneys received credit for additional months of service, another factor in calculating pensions.

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