New York State Capitol in Albany. Photo: LennonsGhost/iStockphoto.com

A state judge in Albany has struck down a cap on outside income for members of the Legislature promulgated by a committee last year as a trade-off for a raise of about $50,000 over three years for those officials.

But Albany County Supreme Court Justice Richard Platkin upheld the pay hike in his decision handed down Thursday, which conflicts with a different ruling on the matter from June.

"The only recommendations that may acquire the force of law under Part HHH are those made to implement the Committee's determination of whether the salary and allowances of legislators warrant an increase," Platkin wrote. "All of the Committee's other recommendations are just that—recommendations advanced for the consideration of policymakers, but not the law of the State of New York."

The law referenced by Platkin, Part HHH, was part of a budget bill passed last year that created the committee to review compensation of state lawmakers. The Legislature is allowed to enact its own pay raise, but decided to delegate that responsibility.

The two differing opinions, both handed down by state judges in Albany, will effectively set up arguments on the issue to be evaluated by the Appellate Division, Third Department sometime in the near future.

Platkin's decision is the result that a significant number of state lawmakers had argued for in recent months, after the New York State Compensation Committee created the rules last December. The panel's decision to effectively ban income for state lawmakers outside their legislative salaries came as a surprise to many, who vowed to challenge it in court.

Among those lawmakers were Assemblyman William Barclay, R-Oswego, and state Sen. Thomas O'Mara, R-Chemung, who retained former State Attorney General Dennis Vacco, now a partner at Lippes Mathias Wexler Friedman in Buffalo, to challenge the committee's decision.

Platkin heard arguments from Vacco and the State Attorney General's Office on the matter earlier this month, which resulted in the decision handed down Thursday.

Unlike other legal challenges to the committee's decision, Barclay and O'Mara were only seeking to strike down the committee's decision to cap outside income. They were not arguing against the pay hikes, which were the first for the part-time Legislature in two decades.

They were also among the lawmakers who argued that the committee, which was comprised of four former and current state and city comptrollers, was not intended to evaluate anything other than a potential salary increase for the Legislature.

The committee, in its report issued last year, disagreed. Not only did its members decide to also cap the amount of outside income at 15% of a lawmaker's salary, they eliminated stipends for most members of the Legislature serving in leadership positions.

Platkin, in his decision, said that while the committee was free to make recommendations to the Legislature, it did not have the power to codify the cap on outside income into state law based on the plain language of its enacting statute.

"Under the plain language of Part HHH, the only recommendations that may acquire the force of law are those to implement the Committee's determination whether the salary and allowances of legislators should be increased," Platkin wrote.

He also said the statute that created the committee does not supersede part of the Public Officers Law that governs the outside income and employment of state lawmakers. That appeared to indicate a different legislative intent for the commission than what its members had claimed, Platkin wrote.

"This is powerful evidence that the Legislature did not intend the Committee's reform recommendations to take on the force of law under Part HHH," Platkin wrote.

A separate lawsuit, brought earlier this year by the Government Justice Center, a nonprofit organization that sponsors litigation against the state, sought to strike down the committee's decision altogether. The group argued that the Legislature couldn't assign a panel such power.

Albany County Supreme Court Justice Christina Ryba, in a decision handed down in June, also struck down the cap on outside income for state lawmakers, but also eliminated the pay increases scheduled to take effect for those officials at the beginning of next year and the year after.

A $30,000 pay hike for the Legislature, which brought salaries from $79,500 to $110,000 in January, was left intact by Ryba's decision. The two raises scheduled to take effect were struck down because they were, essentially, tied to the cap on outside income.

That decision is expected to be appealed, both by the Government Justice Center and the State Attorney General's Office, which represented the committee in both lawsuits against its decision.

Vacco did not immediately say whether he would appeal Platkin's decision from Thursday, but he did mention during arguments this month that he would welcome the opportunity to do so since Ryba's decision will likely be reviewed by the panel.

It's possible that both decisions could be consolidated for arguments before the Third Department, as is typical practice for similar cases heard before an appellate court in New York.

The Attorney General's Office said it was reviewing the decision.

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