by Randy Pellis
FULTON, April 4, 2019 — Assemblyman Will Barclay (R – Pulaski) and 10 other Republican state legislators filed suit Friday against the committee that will raise their pay but eliminate or limit their outside income.
The suit, filed in state Supreme Court, does not address the pay raise. It primarily attacks the committee’s decision to limit outside income.
An earlier state Supreme Court lawsuit brought in Dec. 2018 by the Government Justice Center looks to invalidate the Compensation Committee’s entire pronouncement, including the $50,000 over three years increase that is the legislators’ first pay raise in 21 years.
No decision has yet been handed down on that lawsuit. The court has until June 4 to rule.
The Compensation Committee was established by Gov. Andrew Cuomo and the Legislature in March 2018. It was intended to be comprised of two state comptrollers (past and present), two New York City comptrollers, and the chief judge of New York.
The judge declined to serve, leaving the four comptrollers to make up the committee. According to the Government Justice Center, a previous committee made up of different members had been established in 2016, however it refused to make any decisions on legislators’ pay unless they were also authorized to limit legislators’ outside income. As that was not authorized, the committee did nothing.
The present committee, though established in March 2018 did not meet until Nov.
2018 and were required to make their report by Dec. 10. That report was scheduled to become law on Jan. 1, 2019 unless prohibited by the Legislature before that time. The Legislature was not called back into session for a vote on the issue, and the Committee’s decisions became law on New Year’s Day.
Both the Government Justice Center’s Dec. 2018 and the 11 Republican legislators’ March 29 lawsuits claim at least some, or all, of the proceedings of the Compensation Committee were illegal.
The Government Justice Center’s lawsuit claims that legislators’ pay can only be set by the Legislature as authorized by the state constitution and that the Compensation Committee, therefore, has no right to do so. Furthermore, both lawsuits claim the Compensation Committee was never granted any authority to set limits on legislators’ outside income.
The legislation, Part HHH of Chapter 59 of the Laws of 2018, enabling and establishing the committee, mandates the committee “determine whether, on January 1, 2019, the annual salary and allowances of members of the legislature, statewide
elected officials, and salaries of state officers referred to in section 169 of the executive law, warrant an increase.” There is no mention of outside income or of regulating it.
The committee raised legislators’ pay while limiting the amount of other money lawmakers can earn to 15 percent of their legislative pay ($19,500 by 2021), or, for those with a fiduciary responsibility to their clients, with the exception of those in the practice of medicine, to zero. That group includes “attorneys, accountants, stock brokers, financial advisors, real estate brokers, pharmacists, insurance agents, trustees, directors, and all others who have a fiduciary obligation to clients, customers, institutions, or employers,” according to the Barclay lawsuit. Those professionals would be forced to choose between continuing their outside business interests or their legislative careers.
The committee’s report eliminated stipends, also known as “lulus,” given in addition to a legislator’s salary, and which often served as rewards for certain members, in some cases equaling half a legislator’s salary. The 160 stipends given out annually among the 213 members of the Legislature ranged from $9,000 to $41,500.
Furthermore, the committee re-defined the Legislature, which had always been considered a “half-time” legislature serving from Jan. 1 through June, as now a “full- time” legislature.
The Compensation Committee, in its 31-page report, interpreted its mandate in more general terms, incorporating a wider scope than the interpretation of either lawsuit, and found “that the consideration of compensation cannot be complete without considering outside income, its role in overall legislative compensation and the ability of Legislators to fulfill their responsibilities to serve the public in a focused and ethical manner. Accordingly, as part of a compensation framework for Legislators, the Committee determined to limit outside earned income to ensure that Legislators devote the appropriate time and energy to fulfilling their Constitutional obligations and to also minimize the possibility and perception of conflicts.”
Barclay is listed among the top 10 (and in some lists the top five) outside income earners in the Legislature. He has not decided what road he’ll take should either or both of the lawsuits lose in state Supreme Court. According to Cameron Macdonald, attorney for the Government Justice Center, if they lose in Supreme Court, an appeal to the state’s highest court, the Court of Appeals, is likely. A ruling there could take the decision almost right up to, or even beyond, the Jan. 1, 2020 deadline at which time the outside income limit goes into effect, and by which time Barclay and others would have to make a decision on their futures. Macdonald noted a court injunction delaying the effective date of the Compensation Committee’s decision would be a possibility.
“If (the Compensation Committee’s report) is upheld,” Barclay said, “I’d have to make a very difficult decision, but I just don’t know yet. Maybe there’s a political solution, too. That’s not out of the question. So, I’ll have to cross that bridge.”
Regardless of the court’s ruling, Barclay is clearly opposed to the committee’s findings on just about everything other than the pay raises. A full-time legislature is one of those bones of contention.
“I’m ideologically opposed to a full-time legislature,” he said. “I don’t think that’s something we need in New York state.
“What’s going to happen if we become full-time? Is that going to mean we’re going to have to be down there (Albany) January to December? Ultimately, that leads to more government, more legislation, etcetera.”
Barclay also worries that going to a full-time legislature will limit the kinds of people that serve.
“I like the idea of a legislature that has other knowledge and other experiences outside of just being an elected official,” he said. “But I also find, from a legal standpoint, it very disconcerting that an unelected committee can change the way New York state has been governed forever. I’m not sure where they thought they had the statutory authority to come up with this.”
Aside from questioning the authority of the committee to limit outside income, as the lawsuit he’s part of does, Barclay contends the whole ethical rationale the committee offers in defense of those limits is misplaced.
“Little to none (of the corruption in New York state), other than (former) Speaker Silver, has related to people with outside income,” Barclay said.
“Everybody gets on lawyers, and maybe rightfully so, but we have farmers in the legislature, we have funeral directors. Why are we cutting back on their outside income, their ability to have outside income? How about a teacher, a college professor?
“I think Speaker Silver did start that ball rolling. For the most part, the corruption I’ve seen in Albany has been the result of people being able to have unilateral control over government funds where they direct it either to personally benefit from that, which the Speaker had done, or they do it to help a campaign contributor or a political ally.
That, I think, is a much bigger issue than someone earning money outside of the Legislature.”
And so, as the lawsuits proceed, Barclay and others wait. Regarding his future, Barclay said, “I’m still not going to make a decision until we see how the thing’s resolved, if it is at all.”