State Pay Raise Commission challenges democracy (and is unconstitutional)

The Executive State Budget passed on April 1, 2015, transfers the exclusive power of members of the directly elected Legislature in deciding on pay raises for themselves to a newly created, unelected, unaccountable commission that can make law, has the power to appropriate money not specific to a law and is appointed by a select quartet of people that, in all likelihood, doesn't include your representatives.

Two weeks ago, in an effort to force the public servants in Albany to behave like public servants, I filed a lawsuit in New York state Supreme Court to declare the power granted to the commission unconstitutional. I am an ordinary citizen of New York, not a lawyer, nor do I have an endless supply of money. But I am exhausted by the selfish opportunists in our capital city who at every turn look out more for themselves or their party than for our neighbors and our families.

My only protection – our only protection – from a government that can say and do anything it chooses are the words in the New York State Constitution these elected representatives took an oath to uphold.

The role of the Legislature is to approve proposed laws (“…by the assent of a majority of a majority of members elected…”) whereby the statute relating to the commission says that they can only disapprove of the commission’s “recommendations”/“force of law.”

By allowing the non-elected commission appointed by only four individuals in state government – two of whom are not even members of the Legislature (governor and chief judge), one of whom is an appointed position (chief judge) – it abolishes the power previously held by the elected representatives in the state Assembly and state Senate districts in which I reside. Although my representatives in either house only wield the power of being 1 of 150 or 1 of 63 in the Assembly and Senate, respectively, this commission gives me and my fellow constituents not represented by those who appoint commissioners (Senate majority leader, Assembly speaker, governor and chief judge) zero representation on the commission.

The state further details specific requirements relating to the spending of money (…“appropriations…”), mandating a supermajority (“…two-thirds…”) of both houses of the elected members of the legislature to approve the allocation of money. “Any findings, conclusions, determinations and recommendations in the report” according to the Budget Act, “must be adopted by a majority vote of the commission.” This simple-majority requirement ignores that the passage of the budget that created the commission was passed by margins that fell short of two-thirds in both the state Senate and Assembly.

As spelled out in the state Constitution, money is not to be paid unless in accordance with the law, with new appropriations detailed in the law itself. The budget passed in April 2015 details no specific expenditures related to salary or non-salary benefits that would be derived from the study conducted by the commission. By not specifying these “new appropriations” – the increase yet to be determined by the commission and not spelled out specifically in any law – the commission’s “force of law” is a violation of yet another provision of the state Constitution.

Finally, making elected members of the Legislature record their votes in “yeas and nays” to be printed in a public journal, the Constitution of our state set up a record by which we could hold our representatives accountable. The Commission was designed as a way for elected representatives to be held less accountable by not forcing them to make their vote public. Democracy is about the people’s voice but it is also about elected representatives being held accountable for their actions. The Pay Raise Commission denies me the ability to hold my representatives accountable.

The Pay Raise Commission is a transparent attempt to circumvent the explicit clauses of the state Constitution that make specific allocations of public monies relating to legislative pay an issue to be decided by the elected Legislature.

New Yorkers don’t expect lawmakers to work for free. But we do expect their increased compensation to come if – and only if – we think they are serving our interests instead of their own. In every aspect of monetary allocation, but especially related to legislative salaries, the Constitution clearly intended for every member to be held accountable by the electorate.

The Legislature and the governor, in a budget bill passed last April, decided to circumvent the legitimate and constitutional processes to all but guarantee themselves a pay raise and eliminate their accountability to the people. In an attempt to sidestep the intention of the framers of our state Constitution to keep elected representatives accountable, Albany has once again come up with a way to benefit itself at no political cost.

Their actions, in addition to being unseemly and self-serving, are unconstitutional.

James Coll is an adjunct professor of American and Constitutional History at Hofstra University and the founder of ChangeNYS.org, a nonprofit dedicated to promoting civic education and political reform in our state.