New York state legislators may get a raise on January 1, 2021—but the people who elect them may not get to find out before voting ends next week.

The Legislature in recent years has empaneled a series of unelected bodies to “recommend” pay levels for lawmakers and other state officials—with those recommendations having the binding force of law.

This technique shields lawmakers from having to take politically delicate votes about what senators and assembly members—already among the country’s best compensated—should receive for their part-time service. The most recent commission, the New York State Commission on Legislative, Judicial & Executive Compensation created under a 2015 law, is meeting again this year to look at pay levels for judges, legislators and other state officials.

The commission comprises appointees from each branch of state government: three by the Governor, two by the Chief Judge of the Court of Appeals, and one each by the leaders of the Senate and the Assembly. Recommendations pass by a majority vote that must contain “at least one member appointed by each appointing authority.” Those recommendations will have the force of law on January 1 if the Legislature does not pass a law to change them.

The commission’s first meeting by audio conference call on October 14 lasted less than 20 minutes. At the outset, the Chair and Chief Judge’s appointee, Michael Cardozo stated the obvious: “the question before us is whether we would recommend any increase given all the vagaries that are going on in the world and the economic situation that New York faces.”

He offered to draft a report on behalf of all seven commission members concluding that “given all the vagaries of the present situation, we don’t believe that it would be appropriate for this Commission to recommend any salary increases, compensation increases; and, therefore, we decline to make a recommendation and leave the issue to the Legislature.”

Instead, one of the Governor’s representatives, SUNY Chancellor Jim Malatras, argued the commission should take more time to decide where it lands on the issue and review any draft report before making a decision. The members agreed to draft and circulate a report “in strictest of confidence and not to be made public” after Malatras chastised Cardozo for being too public about a prior report (see update below).

The commission met again this week, on October 28, for less than seven minutes. Members spoke about clarifying some facts related to judges and their need to further review some late comments to the draft report from Malatras. Commission members otherwise limited the report discussion to “I think it looks good,” and “well written.”

They agreed to make their recommendations, due November 15 for legislators and state officials, and December 31 for judges, final by email. Meanwhile, commission members plan to circulate their comments and proposed revisions to the draft report among the group.

In just a few minutes, the commission violated the state Open Meetings Law in at least three ways. First, it failed to post on its website the document it discussed. Second, the commission acknowledged holding deliberations outside of a meeting open to the public. Third, the commission announced its intention to keep the public in the dark and hold more deliberations and a final vote on its report by email, outside the public’s view.

The Legislature designed the commission to keep the public in the dark about its members raising their own pay. Now this commission is taking that darkness to a new depth. In this economy, and with the Governor’s dire revenue projections for the next several years, Cardozo’s instinct not to act is the right call. But the question is what’s taking so long. The entire exercise is a reminder why the Legislature’s policymaking shouldn’t—and lawfully can’t—be delegated to third parties.

Background

The Legislature’s commission scheme has a sordid history. In 2015, as part of the state budget, the Legislature created the commission to meet every four years to set the pay for judges, state lawmakers and the governor’s appointees. That year it met its December 31 deadline and gave raises to state judges. The following year the process broke down when the Governor’s representatives tried placing outside income restrictions on legislators.

The Legislature created a separate committee in 2018 that gave raises to lawmakers, but appeared to surprise Senate and Assembly leaders by unexpectedly imposing outside income limits. A state court judge in 2019 partially voided that committee’s recommendations in a case filed by the Government Justice Center, knocking out $10,000 increases legislators hoped to get in each of 2020 and 2021. Before that court decision, the Legislature gave the Governor a raise during his term in violation of the state constitution.

The 2015 law automatically renews the commission every four years, and the commission was back late last year to revisit pay for judges. With the state facing a $6 billion (pre-COVID) deficit, the commission decided not to provide the state’s judges cost-of-living adjustments. A majority of the commission, composed of the Chief Judge and the Governor’s representatives, favored those increases, but they did not have the support from a Legislative appointee that the law required.

The Legislature gave the judges another chance this year when they added judicial compensation to the commission’s tasks in the final budget deal in April. Since then, however, New York’s budget woes have only gotten worse as the coronavirus pandemic crushed the state’s revenue outlook.

Voting to raise your own pay while schools face cuts and residents face tax hikes is politically unimaginable—which is precisely why the Legislature would like to have a commission do it instead. Legislators may still have hope for a pay boost, but the taxpayers are in the dark.

UPDATE: 11/5/20: A tweet from Malatras last December clarifies his complaint at the October 14 meeting that Cardozo had posted last year’s final report on judges’ pay for the public before final commissioner sign off. His comments related to the press getting that report from Cardozo before the commissioners had seen it. It was not as much a call for less transparency but a point of order that highlights the problem with an unelected body freelancing law making. Checks built into the state Constitution and emulated in the Open Meetings Law are designed to let New Yorkers know what laws are being passed before a public body’s final “sign off” in an open vote.