After Inaction, Town Seeks Money Lost in Pension Overpayment

About $40,000 of taxpayer money is at stake — and could be lost — in a miscalculated pension payout that seven months ago the state determined should be lowered for a retired Westport firefighter.

Now, the town is trying to recoup that money and some say this is happening seven months too late. If it wasn't for a tip given to the Fire Pension Board's chairman, the overpayment could have continued indefinitely.

At the heart of the issue is retired firefighter Eric Fine, who was convicted of embezzling at least $7,000 from the union treasury in 2008, a promotion that was erroneously included in his pension payout calculations and a state decision requiring that his pension be lowered.

Fine was promoted to chief technical specialist, a brand-new position, less than a year before his retirement and subsequent arrest in 2008. At the time of his pension determinations, officials discussed whether the position should be included in determining the pension, and it was decided so. By working only 3/4ths of a year on the new job $24,000 was added Fine's annual pension, according to financial documents.

Since April 2008, Fine has collected about $40,000 more than he should have as mandated by the pension adjustment decided by Board of Mediation and Arbitration, a part of the Labor Department.

After a meeting organized by Fire Pension Board Chairman Helen Garten adjourned, First Selectman Gordon Joseloff declined to comment when asked why it took so long for the town to act on the state's ruling, which had been mailed to his office seven months ago. He said it was a matter for attorneys.

"I'm not going to talk about it," he said.

The Board of Mediation and Arbitration made its ruling on Feb. 9, 2010 requiring the recalculated pension. The decision was sent the same month to Joseloff, the town attorney's office and others.

Now, there are ongoing discussions between town representatives and Fine's attorney to see if any of the extra money that had been paid in the incorrect pension calculation can be recouped. His original annual pension was $66,452 rather than the $42,414 that would have been paid under the state-mandated pension.

Depending on how negotiations go and whether Fine pursues legal action, that money might never come back. The state's decision makes no mention of paying back the money.

"I don't see any provision that allows this [Fire Pension] board, two years after someone is fully vested getting their pension, to reverse it," said Peter Nolin, Fine's attorney.

Coming to Light

The Fire Pension Board has the authority to approve retirement requests and determine pension payouts, as long as the decisions fall in line with labor contracts, town regulations and state law. The board also has the obligation to approve a state decision to lower a pension due to miscalculation.

Nobody told Garten, who also chairs the Board of Finance, about the state's decision. She was tipped off by a third party three weeks ago and scheduled the Monday meeting soon after.

The board, which includes Joseloff, voted 5-1 to lower Fine's pension. Fire Chief Christopher Ackley was opposed. The board also voted 4-1-1 to try and get the thousands of dollars back that had been paid to him. Ackley abstained and fire union representative Ron Wojnoski was opposed.

Fine and his attorney were in the crowd, as were several people concerned about the pension payout and one reporter from Patch.

"Each and every member of this board has a fiduciary duty that I take very seriously… and I'd like to know why the town engaged in this sort of conduct where [Garten] was not made aware," said Kenneth Wirfel, a member of the Board of Finance. "Only when [Garten] was made aware several weeks ago did the town… do the calculation for the reformation of the pension."

There was 10 seconds of silence, and then Garten asked if Fine had been aware of the state decision. His attorney said that he was.

According to documents obtained by Patch, as of July there had been no attempt by the town to even calculate what Fine's new pension would be. It was eventually calculated this month at Garten's request.

The Original Pension Calculation

When Fine retired on April 11, 2008, just two weeks before he was arrested for embezzlement, the Fire Pension Board set his pension. There was a different chairman at the time, and Floyd Dugas, a town attorney, said there was "rigorous debate" at the meeting.

It was then decided to include his new position as part of the pension calculation, which the state ultimately disagreed with.

Fine plead guilty to fourth-degree larceny and two counts of illegal use of a credit card Nov. 20, 2008 and was ordered to pay $7,158 in restitution.  He had embezzled that much money on electronics, restaurants and pornography, according to the arrest affidavit. He was sentenced to a three-year suspended sentence and two years probation.

The firefighters union appealed the Fire Pension Board's decision to include that time into the calculations. The state agreed that the chief technical specialist is a "not a regular full-time firefighting position" and made their decision to change his pension accordingly. The town decided not to appeal the decision, although Garten was not consulted during this time.