DEMOCRATIC CONFERENCE / COUNSELS OFFICE

Date: May 15, 2017

To: Senate Democratic Conference Leader Andrea Stewart-Cousins
From: Shontell M. Smith, Esq., Director of Counsel and Finance
Re: Illegality of Allowances to Legislators Not Holding the Stated Positions

FINDINGS

The granting of legislative allowances to Senators who do not hold one of the specifically
itemized positions listed in Legislative Law Section 5-A is not permitted by law.

Senate leadership and their staffs may not lawfully file records with the Comptroller that
authorize payments to Senators for such allowances unless that specific Senator explicitly
holds the position listed in Legislative Law.

BACKGROUND

As has been widely reported, some Senators from the Independent Democratic Conference
(IDC) and the Republican Conference (GOP) are being paid allowances (also referred to as
lulus or stipends) for positions they do not actually hold and in some cases are already
held by other Senators. While these IDC and GOP Senators were appointed as vice-chairs of
certain committees (or in one case, deputy vice-chair) or are holding certain leadership
positions, they are receiving the allowances reserved for the chairs of those committees or
specifically named majority leadership positions.

The legal authorization for legislative allowances comes from Article III, Section 6 of the
State Constitution and from Legislative Law Section 5-A, which lists specific positions in
each legislative house whose holder is entitled to receive a legislative allowance. According
to Section 5-A, an allowance is paid to a member serving as an officer of his house or in any
other special capacity therein or directly connected therewith. Officers to which this applies
are listed and include leadership positions held in the majority and minority conferences.
Special capacity positions include a series of explicitly listed committee chairs and ranking
members.

In 1947, the State Constitution was amended to provide specific salary and stipend guidance.
This language created the underlying authority for the granting of allowances. Article III,
Section 6 included language stating that [a]ny member, while serving as an officer of his or
her house or in any other special capacity therein or directly connected therewith not
hereinbefore in this section specified, may also be paid and receive, in addition, any
allowance which may be fixed by law for the particular and additional services appertaining
to or entailed by such office or special capacity.
LEGAL ANALYSIS

The history of the Constitution and Legislative Law Section 5-A demonstrates that the
directly connected therewith language is not intended to permit the granting of allowances
to Senators who do not hold one of the itemized positions on the theory that those Senators
are performing duties directly connected with the itemized positions. Those three words
do not mean directly connected with the chair position, but rather are intended to
authorize allowances for positions that are directly connected with a particular house
of the legislature even when those positions are not contained within the Senate or
Assembly. There are numerous bicameral commissions whose leaders are entitled to
allowances under this clause.

In Article III, Section 6, the Constitution makes reference to positions directly connected
therewith only after referring to impeachment trials that would be managed by members of
both the Senate and Assembly. By bolding the language in the following way, a reader can
get a better sense of the languages actual intent: [a]ny member, while serving as an officer
of his or her house or in any other special capacity therein or directly connected therewith
When read this way, it becomes clear that directly connected therewith properly refers
to positions that are directly connected with a particular house of the legislature, but not
actually contained therein.

In fact, when Legislative Law 5-A was first enacted in 1976, it did not include the directly
connected therewith language at all. At that time, the section read, any member of either
house of the legislature serving as an officer of his house or in any other special capacity
therein shall be paid an allowance in accordance with the following schedule.1

Only in 1984, when the law was amended to include allowances for bi-cameral positions for
the first time, did Section 5-A add the directly connected therewith language.2 For
example, among the new positions entitled to allowances in the 1984 amendment were the
co-chairs of the Administrative Regulations Review Commission and the chairman of the
Legislative Commission on Science and Technology, among others. The directly connected
therewith language was therefore added in 1984 to clarify that service in a bicameral entity
also entitled those serving in such a capacity to an allowance. This interpretation also helps
avoid the constitutional problem referenced above.

The plain language of the Constitution also indicates that the directly connected therewith
language is not intended to allow anyone other than the particular committee chair listed to
receive an allowance. According to the Constitution, the allowance fixed by law is limited to
additional services appertaining to or entailed by the office or special capacity, not for
those holding positions directly connected with those responsibilities. In other words, the
Constitution does not envision anyone other than the named officer or Senator serving in a
specific special capacity (e.g., committee chair) receiving the allowance.

1
Attachment B
2
Attachment C

2
More guidance is found in authoritative contemporary writings indicating the understanding
of the parties that allowances would only apply to holders of these positions; for example, the
Solicitor General in a 1947 Bar Association publication described the relevant language as
providing for authorization to give an allowance to be paid to any member of either house
while servicing as an officer of his house or in any other special capacity thereinthis latter
provision would include, among others, the Temporary President of the Senate, the Speaker
of the Assembly, and chairmen of the various legislative committees There is no mention
of the directly connected therewith language in the Solicitor Generals opinion. 3

Additionally, a New York Times Article from 1957 references an opinion by Attorney
General Louis Lefkowitz that argued the constitutional language applied explicitly to the
holders of leadership or committee positions, as allowances were allowed only for service as
officers or in a special capacity.4

No additional clarity is needed, and yet the law gives us one more. There is one vice-chair
position explicitly listed in Legislative Law among those entitled to an allowance: vice-chair
of the Legislative Commission on the Development of Rural Resources.5 This indicates that
the legislature intends to make crystal clear when a vice-chair should be receiving an
allowance. In fact the legislature specifically changed who is entitled to that allowance from
the chair to the vice-chair in 1990.6 If the false GOP-IDC interpretation is accepted, there
would be no reason whatsoever to make this change since the vice-chair would be entitled to
an allowance as someone holding a position directly connected with the chair of the
commission.

COURT PRECEDENT

It is well established that a statute which confers upon members of a legislative body the
power to fix their own salaries will be strictly construed, and, unless the statutory language is
clear and unmistakable, such power will be denied because of its extraordinary character, 4
McQuillin, Municipal Corporations [3d ed], 12.178.

The highest court in our own state has pointed to the dangers of an unchecked legislature in
this regard, citing the need to forestall the possibility of manipulation of legislators' votes by
promises of reward or threats of punishment effectuated through changes in salaries or
allowances, NYPIRG v. Steingut, 40 NY2d 250, 258 (1976). The Appellate Division in the
NYPIRG case similarly cited the need "to remove the temptation to put [the legislatures]
personal interests above the public welfare in determining the amount of their salaries. 52
AD2d 100, 103, citing City Council of Newburyport v Mayor of Newburyport, 241 Mass 575,
577 (1922).

3
Attachment A
4
https://timesmachine.nytimes.com/timesmachine/1957/04/15/84911533.html?action=click&login=email&
pageNumber=31
5
See Legislative Law 5-A, sub-3.
6
Attachment D

3
In the NYPIRG case, the Court of Appeals rejected efforts to deviate from legislative
allowances established by pre-existing law when the legislature increased the amount of
certain allowances as part of the budget process. The Court of Appeals found that, if the
legislature is allowed to have unfettered discretion over allowances, the possibility of
misuse of increases or decreases to influence legislative action would remain unchecked,
NYPIRG v. Steingut, 40 NY2d 250, 260 (1976).

Similarly in the present context, allowing the Temporary President of the Senate unfettered
discretion to decide who receives statutorily-assigned allowances would effectively subvert
the Courts findings in the NYPIRG case and run afoul of the Constitutions Article III
prohibition on altering legislative compensation during a term. If the current situation is
permitted, the Temporary President of the Senate can alter his determination of which
members deserve a chairs allowance at any time during a legislative term, enabling the
precise type of manipulation the courts have long warned against.

GOP-IDC ARGUMENT

The GOP and IDC argue that payments of allowances intended for the chairs of certain
committees can nevertheless be awarded to newly-created and non-statutory vice-chairs or
even deputy vice-chairs. They make this argument in the hopes that the Legislative Law
language directly connected therewith can be read to include a third category beyond
officers or those serving in a specifically listed special capacity, authorizing the payment of
allowances to a person who does not hold the position specifically listed so long as the
Senator holds a position directly connected with the underlying paid position. They argue
that vice-chairs or deputy vice-chairs serve in a role directly connected with the chair, and
are therefore eligible to claim the allowance. As outlined above, this argument is incorrect
and nonsensical, and the allowances paid in this case violate state law and the Constitution.

If the GOP-IDC interpretation is permitted to hold water, the entirety of Legislative

Law Section 5-A would effectively be erased from the books. The list of officers or
special capacity roles entitled to allowances would be effortlessly subverted by the
appointment of a Senator to a newly-created and non-statutory position related to the
committee of relevance. It is important to recognize that vice-chair is not a position required
by law. Rather, it is an informal position invented by the Temporary President of the Senate,
in this case in a feeble attempt to grant allowances to those not otherwise entitled to them. If
this is allowed, what would prevent future appointments of vice-chairs, assistant-chairs,
assistants to the vice-chairs, or any other position one can imagine in order to pay allowances
to Senators other than the actual chairs on the theory that the new position is directly
connected with the chair?

The GOP and IDC claim that the payment of allowances to unlisted positions is authorized
because of case law. They generally claim this based on the unrelated holding in Urban
Justice Center v. Pataki, 38 A.D.3d 20 (2006), which generally stands for the proposition that
unfair treatment of a minority conference by the majority does not state a justiciable claim.
Nothing in this decision is relevant to the issue at hand and, tellingly, the GOP and IDC do
not provide any sound argument beyond the blanket assertion that this decision justifies its
actions.

4
The Urban Justice Center decision references the principle that the legislature has discretion
to allocate internal resources not specifically restricted by law (for example, for staff and
office costs), but in no way justifies doing so in a manner contrary to existing law that
requires a specific allocation of state tax dollars.

If the GOP-IDC interpretation is applied, there would be no control whatsoever over

the legislatures spending other than the whim of the Temporary President of the
Senate. This would be an open invitation to further corruption and cannot possibly be
allowed to stand. Our laws apply to everyone, including the legislature.

Perhaps most damning of all, the GOP and IDC took steps to conceal their improper
behavior from the State Comptroller by submitting certified documentation listing the
various vice-chairs and deputy vice-chair as the actual chairs of their respective
committees. If their actions were above-board, they would have indicated to the Comptroller
that these Senators were actually vice-chairs or deputy vice-chairs to whom they were
attempting to allot the chairs allowance. This clearly indicates the senders knowledge that
only the statutorily-itemized chair positions are entitled to legislative allowances.

CONCLUSION

The granting of legislative allowances to Senators who do not hold one of the specifically
itemized positions listed in Legislative Law Section 5-A is not permitted by law, and Senate
leadership and their staffs may not lawfully file records with the Comptroller that authorize
payments to Senators for such allowances unless that specific Senator explicitly holds the
position listed in Legislative Law.

The directly connected therewith language does not provide a catch-all exception to be
applied to any newly-created position that is arguably directly connected with one of the
itemized positions. Rather, it is only intended to provide authority to grant allowances for
itemized positions that are not within a legislative house.

The judiciary has long warned against the exact type of manipulation taking place in this case
and rejected previous attempts to improperly alter legislative allowances.

Any other reading of these provisions would make a mockery of our laws and open the door
to corrupt practices.

5
 Attachment A
(Senate Democratic Memo- Legislative Allowances)
44 NEW YORK STATE BAR ASSOCIATION

Proposed Amendments to the Constitution

to be Submitted to the People in November
By Wendell P. Brown
Solicitor General of the State of New York

URING the busy legislative session whhth adjourned on

D March 18, 1947, one hundred and four bills were intro
duced proposing fifty separate amendments to the Con
stitution of thia State. Of these proposals, tlurty-eight
were so-called first-passage amendments, being presented for
legislative endorsement for the first time. None received such
endorsement. Twelve were second-passage amendments, having
once received the legislative stamp of approval at either the 1945
or 1946 session and been referred to the succeeding legislature for
its approval in accordance with Article XIX, Section 1 of the Con
stitution. Six of these proposals were approved for the second time
and will appear on the voting machines this fall.1 An equal number
failed to pass.
Among this unusually large number of proposals to effect changes
in the organic law of the State upon which the people will be called
upon to express their preference are several of primary interest and
concern to members of the bench and bar. All warrant careful
analysis and consideration by every voter.
ABSENTEE VOTING
Several changes in Article II, Section 2 of the Constitution are
proposed with a view to liberalizing the existing limitations upon
the use of the absentee ballot by qualified voters who may be un
avoidably absent from their election districts on election day. It
is proposed that the legislature be authorized to extend the privilege
in all elections and not limited to general elections as is presently
the case. The restriction that the absentee voter must be within
the United States would also be deleted and it would thus be per
missible to send such absentce ballots to qualified voters anywhere
in the wor]d. Further, the amendment would authorize the use of
such ballots by all members of a family, otherwise qualified, who
may be absent from their place of residence on election day by
reason of the duties, occupation or business of any member thereof.
COMPENSATION OF MEMBERS OF THE LEGISLATURE
The proposed amendment of Article Ill, Section 6 would delete
from the Constitution the provision fixing the annual salary of each
In addition, three propositions will he submitted to the people at the generaT election
this year: (1) to authorize additional state indebtedness of $135,000,000 to provide funds
for loans to municipalities and authorities for slum clearance and low-rent housing;
(2) to increase from $1,000,000 tp $1,500,000 the maximum aggregate payments which may
be required in contracts for periodic subsidies for housing projects in any one year; and
(3) to increase from $9,000 000 to $13,000,000 the maximum aggregate payments which may
be required in contracts icr periodic subsidies for housing projects outstands at any
one time.
 BULr1EnN, Avu.a, 1947 45

member of the legislature at two thousand five hundred dollars.

It would also eliminate the per diem allowance of ten dollars now
provided for senators when the Senate is in extraordinary session,
or when serving as members of the Court for Trial of Impeaehments,
and for such members of the Assembly as may be appointed man
agers of an impeachment. The legislature would be authorized to
fix by law both the annual salaries, which must be identical for all
members, and the per diem allowance for extra duty in the instances
stated above. The legislature would likewise be authorized to pro
vide for and fix an additional mouetary allowance to be paid to any
member of either house while serving as an officer of his house or in
any other special capacity therein, other than those mentioned. This
latter provision would include, among others, the Temporary Presi
dent of the Senate, the Speaker of the Assembly, and chairmen of
the various legislative committees whose duties in such capacities
often extend beyond the ordinary legislative sessions or entail special
duties and services.
The legislative authority thus to be provided is prospective only
in its application and members will continue to receive the same
salaries and allowances now provided until changed by law pur
suant to this amendment. Neither salaries nor additional allow
ances as so fixed may be increased or diminished during the term of
a particular member, with one exception. It is provided that the
legislature may, by law enacted prior to April 1, 1948, and relating
only to services performed after its enactment, fix the salaries and
compensation of the members of the legislature then in office.
NEW JUDICIAL DISTRIOT (TENTH)
On May 17, 1945 the Court of Appeals held in Matter of Kuhn v.
Curran, 294 N. 1. 204, that the legislative authority provided in
Article VI, Section 1 of the Constitution to alter the judicial
districts of the State did not include the power to create additional
judicial districts. Laws 1944, Chapter 617, creating the tenth
judicial district out of the territory now constituting part of the
second judicial district, encompassing the counties of Nassau and
Suffolk, accordingly was declared to be unconstituliona],
One of the proposals to be voted upon in November of this year
would amendArticle VI, Section 1 specifically to authorize the legis
lature to erect out of the second judicial district as now constituted,
another such district to consist of the counties of Queens, Nassau
and Suffolk, to apportion the justices of the Supreme Court in office
between the two districts, and provide for the election of additional
justices in the newly erected judicial district.
REMovAL AND RaTREMENT OF JUDGES AND JUSTICES
The Constitution now provides a rather cumbersome procedure
by which judges and justices may be removed for cause by the
Court for the Trial of Irnpeachznent..s, composed of members of the
Senate and the judges of the Court of Appeals. Article VI, Section
10. Judges of. the Court of Appeals and justices of the Supreme
Court may also be removed for cause by concurrent resolution of
 Attachment B
(Senate Democratic Memo- Legislative Allowances)
 Attachment C
(Senate Democratic Memo- Legislative Allowances)
 Attachment D
(Senate Democratic Memo- Legislative Allowances)
 1990 N.Y. A.N. 9051
Enacted, May 7, 1990

Reporter
1990 N.Y. ALS 51; 1990 N.Y. LAWS 51; 1990 N.Y. A.N. 9051

NEW YORK ADVANCE LEGISLATIVE SERVICE > 1990 REGULAR SESSION > CHAPTER 51 > ASSEMBLY
BILL NO. 9051-A

Notice
[D> Text within these symbols is deleted <D]
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]

Synopsis
AN ACT making appropriations for the support of government and to amend the legislative law, in relation to
extending for a limited period certain provisions relating to allowances and repealing section 20 of chapter 986 of
the laws of 1984 consistent with such limited extension.

(LEGISLATURE AND JUDICIARY BUDGET)

Text

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Sections 1-4 ( Appropriations -Text has been omitted.)

5. Subdivision 3 of section 5-a of the legislative law, as amended by chapter 793 of the laws of 1988, is
amended to read as follows:

3. Any member of either house of the legislature serving in a special capacity in a position set forth in the following
schedule shall be paid the allowance set forth in such schedule only for the legislative term commencing January
first, nineteen hundred [D> eighty-nine <D] [A> NINETY-ONE <A] and terminating December thirty-first, nineteen
hundred [D> ninety <D] [A> NINETY-TWO <A]:

SENATORS SERVING IN SPECIAL CAPACITY

Co-chairman of the legislative commission on

water resource needs of Long Island 9,000

 1990 N.Y. A.N. 9051

SENATORS SERVING IN SPECIAL CAPACITY

Co-chairman of the legislative task force on

demographic research and reapportionment 11,000

ASSEMBLYMEN SERVING IN SPECIAL CAPACITY

Chairman of legislative commission on public

management systems 9,000

Chairman of legislative commission on science

and technology 9,000

Co-chairman of the legislative commission on water

resource needs of Long Island no allowance

Co-chairman of the legislative task force on

demographic research and reapportionment 11,000

Chairman of the assembly task force on farm,

food and nutrition 9,000

Ranking minority member of the assembly task force

on farm, food and nutrition 6,500

[D> MEMBERS SERVING IN SPECIAL CAPACITY <D]

Chairman of the legislative commission on skills

development and vocational education 9,000

[D> Chairman <D] [A> VICE-CHAIRMAN <A] of the legislative

commission on the development of rural

resources 9,000

6. Section 20 of chapter 986 of the laws of 1984, amending the legislative law and the judiciary law relating to
compensation and allowances, is REPEALED.

7. This act shall take effect immediately, and shall be deemed to have been in full force and effect as of April 1,
1990; except sections five and six of this act shall take effect January 1, 1991.

History
Approved May 7, 1990

Sponsor
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to article seven of the Constitution -- read
twice and ordered printed, and when printed to be committed to the Committee on Finance -- committee
 1990 N.Y. A.N. 9051

discharged, bill amended, ordered reprinted as amended and recommitted to said committee. IN ASSEMBLY -- A
BUDGET BILL, submitted pursuant to article seven of the Constitution -- read once and referred to the Committee
on Ways and Means -- committee discharged, bill amended, ordered reprinted as amended and recommitted to
said committee.

NEW YORK ADVANCE LEGISLATIVE SERVICE

End of Document