NY lawmakers are nation's highest paid. GOP members are now suing for uncapped outside income

New York lawmakers attached one string when they raised their own salaries by $32,000 in December and became the nation's highest paid state legislators.

They would now earn $142,000 a year, plus extra dough for leadership roles. But that came with a new cap on outside income that would let them to earn no more than $35,000 as lawyers, business owners and other jobs while holding their state offices.

Now, Republican lawmakers who voted against the 29% pay increase and outside-income cap are suing to cancel the cap, arguing it violates the federal and state constitutions. If successful, their case would preserve the raises for all 213 legislators but remove the limit on additional earning, which was due to take effect in 2025.

The federal case was filed last week on behalf of 13 plaintiffs: 10 Republican senators and Assembly members, plus one would-be candidate and two citizens.

Merry Christmas: New York state lawmakers approve $32K pay raise to become highest paid in nation

Why did they cap outside pay?

The Senate and Assembly passed the raise-and-cap bill at a special session three days before Christmas. Lawmakers, who normally wrap up their legislative work in Albany in June each year, returned to Albany for this politically unpopular task, which they had to do before the next session began in January.

Good-government groups had pushed for years to ban or limit lawmakers' outside income as a way to ease doubts about who they are serving while in office.

"It's a question of divided loyalties," Rachael Fauss, senior policy advisor for the nonprofit Reinvent Albany, said on Tuesday.

Her group and others urged lawmakers to follow the example of Congress and limit outside income to 15% of legislative pay and to forbid any income from jobs that entail a fiduciary relationship with a client, such as a lawyer.

Instead, lawmakers set a higher cap of $35,000 (15% of the new salary would have been $21,000) and omitted the outright ban on income involving fiduciary relationships. Reform advocates were disappointed.

The cap and raise were approved by wide margins in both Democratic-led chambers, with most Democrats in support and Republicans in opposition. At least three Hudson Valley Democrats voted "no": Sen. James Skoufis and Assemblyman Jonathan Jacobson of Orange County, and outgoing Sen. Elijah Reichlin-Melnick of Rockland County, who had lost his re-election race in November.

2018 raises: New York governor, lawmakers in line to become highest paid in country

What does the lawsuit say?

The Republican challenge argues the outside-pay limit violates the Due Process and Equal Protection clauses of the U.S. Constitution and strays from the state constitution's rules for the Legislature.

Dennis Vacco, a former state attorney general representing the plaintiffs, argued in court papers that the restriction effectively sets a dubious new qualification for lawmakers: they must be "unemployed or otherwise financially unsuccessful in any outside employment."

Legislating historically has been a part-time job, requiring lawmakers to be in Albany 60 to 65 days a year, Vacco wrote. Limited their outside income is unnecessary, he argued, because "mechanisms are already in place to prevent conflicts of interest and ethical violations in the Legislature."

Fauss counters that "bright lines" on outside pay are needed and not unusual for public employees and officials.

"To be a public servant is a privilege, and there are rules that come along with that," she said.

Fauss also argued that most legislators treat their public duties as a full-time jobs, and that their higher salaries were meant to compensate them for full-time work. Anyone running for Senate and Assembly next year will be fully aware of the $35,000 cap on outside pay that takes effect in 2025, she said.

How many NY lawmakers are affected?

About 40% of New York lawmakers reported having any outside income at all in 2015, when the advocacy group Common Cause New York studied their financial disclosure forms after a wave of corruption scandals in Albany. More than half — 38 out of 73 — were lawyers.

How many have outside jobs today that pay more than $35,000 a year is unclear. Those that do would have to surrender those jobs or earn less at them to take office in 2025, if the courts uphold the pay limit. Those who violate it could be fined $40,000, plus the excess amount they earned.

Among the plaintiffs, Sen. Bill Weber — the Rockland County Republican who unseated Reichlin-Melnick in November — reported the most private-sector income for 2022, before he took office. He declared a combined income range of $150,000 to $200,000 from his job as certified financial officer for two New Jersey businesses.

According to the lawsuit, Weber has continued his outside work since becoming a senator and earns more than the $35,000 limit. The case didn't specify his current private-sector income or that of any other plaintiff.

$142,000? What do other states pay their lawmakers?

Pay for state legislators varies widely, according to 2022 data from the National Conference of State Legislatures. California falls a distant second behind New York, with $119,700 base salaries for its lawmakers. Their peers earn $49,000 in New Jersey, $95,432 in Pennsylvania and $71,685 in Massachusetts. Florida Legislature salaries are just $29,697.

For two decades, the base pay for New York lawmakers was $79,500. Then in 2018, an appointed commission awarded a series of raises that would bring their salaries first to $110,000 in 2019 and to $130,000 in 2021. After a legal fight, courts ultimately kept the $110,000 salary intact and canceled the subsequent raises.

Chris McKenna covers government and politics for The Journal News and USA Today Network. Reach him at cmckenna@gannett.com.

This article originally appeared on Rockland/Westchester Journal News: New York GOP lawmakers sue to kill $35,000 cap on their outside income