Gov. Andrew Cuomo. Photo: Seth Wenig/AP

An attorney leading a lawsuit against the recent salary increase for state lawmakers and public officials said on Friday he may seek to depose Gov. Andrew Cuomo, Assembly Speaker Carl Heastie, and former Senate Majority Leader John Flanagan if the lawsuit goes to trial in the future.

But that request would only be made if the lawsuit goes to trial, which would be months from Friday, when attorneys argued over whether a preliminary injunction against the pay raises should be granted while the issue is litigated in Albany County Supreme Court.

The case is being overseen by Albany County Supreme Court Justice Christina Ryba, who did not make a decision in court on Friday about whether the pay increase should be paused for the time being.

The lawsuit was brought last month by the Government Justice Center, which labels itself as a nonprofit legal services organization that litigates on behalf of the state's taxpayers. Gov. Andrew Cuomo, who supports the pay committee's decision, has called the group right-leaning and dismissed the litigation as political.

The organization is represented by Cameron Macdonald, its executive director and general counsel, who argued in court on Friday that no harm would come to the lawmakers and public officials who were elected in November because, at the time of their election, they didn't know they were getting a raise. The harm, Macdonald argued, would be to the taxpayers, who may have to foot the bill for a temporary pay increase for those officials if its declared unconstitutional down the road.

“The state seemed to maintain that they could just go back to subsequent paychecks and deduct what was overpaid,” Macdonald said. “The state offers nothing to indicate it actually has the legal authority to take back the funds from the people receiving it today.”

The first paychecks to those officials with the new pay levels were dispersed this week. The state has argued that if the pay increase is deemed unlawful in the future, then the Office of the State Comptroller could recoup those overpaid funds in future paychecks.

Macdonald argued that, even if that is possible, that kind of action would leave the door open to additional litigation from officials who might seek to prohibit the retroactive pay deduction. They could present a defense against the deductions by saying they took the increased salary on good faith, for example.

It's also possible the state could decide to avoid that potential litigation by not seeking the overpayments, he argued.

“None of us has any idea what defense any of these people might assert,” Macdonald said. “[The state] was careful to say it has the ability … but did not say it was going to get that money back.”

Helena Lynch, an assistant state attorney general, argued that the way for recouping the funds from a public official would be different from trying to take back overpayments from other individuals. Litigation can arise from an administrative error that results in overpayments, but the legislative pay increases are outside that scope, she argued.

“To the extent that the salary increases are declared unconstitutional, that is not an administrative error,” Lynch said. “It's a simple reconciliation process.”

Lynch also argued against a preliminary injunction based on the burden it would place on the state to change the salaries of officials affected by the pay committee's decision several times. If the injunction is granted, the state would have to revert back to salary levels from last year. They may then have to change course and implement the new levels again—possibly with back pay—if the pay raises are upheld.

“The pay increases are already in effect,” Lynch said. “All we're saying is that reversing course once is a lot easier than reversing course three times.”

She also defended the committee's ability to change the pay structure of lawmakers and other public officials, which is at the crux of the litigation. The Government Justice Center contends that, under the state constitution, the Legislature cannot delegate a decision on its future salary to another government body.

Lynch argued that the Legislature was constitutionally allowed to create the committee to handle the salary increases because lawmakers also included standards and safeguards to regulate the process.

“If there's a policy set forth, they can delegate the administration of that policy if there are standards and safeguards,” Lynch said.

Macdonald said he wasn't sure yet whether he would seek to have the litigation resolved through summary judgment or at trial. If the latter option is granted, Macdonald said outside court that he may request depositions from Heastie, Cuomo and Flanagan.

Last year, they were the “three men in a room,” which is Albanyspeak for the closed-door negotiations that happen between the governor and legislative leaders. They negotiated the legislation included in the state budget last year that created the pay committee and tasked it with evaluating the salaries of lawmakers, statewide elected officials, and members of the governor's cabinet.

“To the extent that today the word 'adequate' and the parts of the committee's report and enabling statute have been brought into question, then we can dig into legislative intent, and maybe it would be necessary to take depositions of the governor, the senate leader, and the speaker, to see what happened when the three of them were in the room talking about this,” Macdonald said.

The first step would be to look at the enabling statute of the pay committee, Macdonald said. But if that's unclear for the purposes of the litigation, direct testimony on how it came together may be necessary, he argued.

“There is precedent for looking what went into the legislative history of things,” Macdonald said. “And the only legislative history about that is those three guys that were sitting in a room somewhere.”

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