01/15/06 — Everett sues to get retirement

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Everett sues to get retirement

By Dennis Hill
Published in News on January 15, 2006 2:11 AM

The former Goldsboro city attorney is suing the state Local Government Employees' Retirement System over benefits he says he was unfairly denied upon retirement.

Harrell Everett filed suit in Wayne County Civil Superior Court last week, asking that a decision by the trustees of the system be reversed.

Everett was city attorney for Goldsboro for 30 years. He retired June 30, 2004.

After legal wrangling for more than a year, the trustees decided in December that Everett was not an employee of the city but an independent contractor. In doing so, they went against a ruling by Administrative Law Judge Melissa Owens Lassiter, who determined in August that Everett was a city employee and that he was due the benefits that he has been denied.

The trustees said that Everett was due the benefits he accrued from his entry into the retirement program in 1976 until 1989, when the issue of Everett's employment status first came up. At that time, the trustees contend, Everett was notified that he was not considered a regular employee of the city and therefore was not entitled to participate in its retirement plan.

Everett is due the benefits accrued up until that time, they said, but not afterward.

But Everett maintains that he never received the letter the system wrote to him explaining its decision. He continued to make deposits into his retirement plan, as did the city payroll. The issue resurfaced when Everett neared his retirement in the spring of 2004.

"Plaintiff reasonably believed that defendant had reconsidered its decision and declared him eligible ... the defendant's conduct and the city's conduct led the plaintiff to believe he was a member of the retirement system," the lawsuit says.

Everett is being represented by Goldsboro lawyer Tommy Jarrett. The Local Government Employees' Retirement System is administered by the Department of the State Treasurer. The trustees' decision was signed by state Treasurer Richard Moore.

Everett says that although he did not have a written employment agreement, his duties were laid out by the city council and that he served at the council's pleasure. He, along with the city manager, were the only two people working for the city who negotiated their own salary with the council.

In their decision, the trustees noted that Everett maintained is own private law practice at the same time that he was performing legal work for the city. Most of the work he performed for the city was at his own law office, they noted.

They also pointed out that the letter mailed to him in October, 1989, informing him that he was not eligible for retirement benefits, was not returned as undeliverable and "therefore it is presumed the letter was delivered."

In his lawsuit, Everett notes the city kept up with his retirement savings right up to his retirement and sent him an annual "statement indicating the number of years of credible service plaintiff had earned in the retirement system."

Moreover, the lawsuit says, each annual city budget "clearly noted the plaintiff's base salary as city attorney and that the city planned to contribute to his retirement."