It’s often said that the best defense is a good offense.  As if the New York school district lawyers scandal isn’t offensive enough, a gang of four has sued Attorney General Andrew Cuomo and Comptroller Tom DiNapoli for violating the New York State Constitution by depriving of them of their vested property rights in their pension, per Judicial Reports.

In a 52 page complaint, the four lawyers, all pensioners, on behalf of themselves and all lawyers similarly situated, lash out at what they call a “political gambit” by the state.  According to the New York Law Journal :

Mr. Roemer, of Roemer Wallens & Mineaux in Albany, said in an interview that Messrs. Cuomo and DiNapoli are attacking public pension practices that have been routine for generations.

“Both the comptroller and the attorney general are taking the actions they are taking based upon their stated positions that private practice lawyers, i.e., lawyers in private practice who do work for municipalities, can’t be employees of the municipalities, they must be independent contractors,” Mr. Roemer said. “That is simply incorrect. There is no law to support that whatsoever.”

Cuomo’s response:

“The best defense, which is not a defense in my opinion, is, ‘Well, we were doing it for so long and no one said anything,'” Mr. Cuomo said. “That doesn’t cut it as a legal defense.”

Mr. Cuomo said the arrangements were a type of “political patronage” in which local government officials hired attorneys, who also happened to be politically active locally, and made them eligible for pension benefits by classifying them as employees.

“Many levels of government, regulations that were misused, politics – you put those factors together, and that’s the stew that we’re dealing with,” Mr. Cuomo said.

Cuomo’s view misses a critical point.  There is merit to the laches argument.  If it’s been going on forever, everyone knew about it and no one ever suggested that there was a problem, future generations are entitled to rely on the accepted practice.

Of course, Laches is an ugly back door argument, where they get away with it only because they’ve always gotten away with it, not because it’s right.  On the other hand, the lawyers’ argument comes off as another disingenuous, nit-picky, manipulative lawyer-type position, the type that makes people hate lawyers.

In short, the lawyers say that the law does not preclude them from being in private practice while simultaneously being part-time school district employees.  No doubt that’s true, but that does not make them bona fide part-time employees either.  This is a loop-hole argument, and one that will sway no public sympathy.  Of course, it’s unlikely that they’re aiming for sympathy.  They’re looking for their pension checks.

In case you non-New Yorkers are wondering why this is such a big deal, consider that last year, the per capita cost of educating a single student in my district was $28,000.  On Long Island, my district is considered third rate at best.  I’ve often thought they would do better by just leaving the kids home, investing the money and giving it to them when they reach 18.  It would likely produce more income than most will ever earn in their lives.

So can a lawyer be in private practice and a part-time pensionable employee as well?  Of course they can, but that doesn’t answer the question of whether they were.  We all know the answer to that question.  They were never “employees” under any stretch of the definition.

Some smart lawyer found a loophole, told a school board that he would cut his hourly rate if they put him into the pension system, and they would save money because the cost would be spread around the entire state instead of paid out of district taxes.  When no one complained, all the other lawyers followed suit.  And all the lawyers after that.  And they figured they had it made in the shade.  Lawyers with pensions.  Who’da thunk?

I can’t blame the lawyers for thinking that they have a right.  Let enough time go by and any scam begins to look like it’s deserved.  But getting away with a scam for a long time doesn’t change the fact that it’s scam.  It always was,  It still is.  It’s not malum in se, but it’s painfully disingenuous. 

While some will disagree, I don’t see this as criminal conduct.  I see it as bad lawyering, bad policy and a fundamental problem with the way legal advice is rendered to what I call “baby governments.”  And it’s all on our dime. 

The same lawyers who are the bulwark of governmental callousness to the taxpayers they are supposed to serve, are awfully facile when it comes to figuring out loopholes to feather their own nests.  It’s a bedrock principle of their version of “public service.”  Their supposed keepers, our baby elected officials, are at best rubber stamps and at worst children playing with guns.  It’s a failed system, not because it’s conceptually wrong but because its execution has never met the expectations of philosophers.  While the lawyers are not alone in this failure, they have abused and enjoyed the benefits of having unfettered influence over a room of idiots. 

And the only thing this complaint points out well is that the State, over the many years in which this scam has been ongoing, has been just as incompetent in protecting the public fisc as has the municipal lawyers.  A pox on all their houses.  But whatever happens, it will still be on our dime because no one will address the root cause of this scandal.