A new batch of state lawmakers have filed paperwork that will allow them to collect both their salary and retirement payments starting in 2015 despite remaining in office.

A total of 12 state lawmakers have filed documents signaling their retirement effective Jan. 1, according to the state Comptroller’s Office. But nine of those legislators aren’t actually retiring and will begin a new, two-year term next year, making them eligible to collect a salary while simultaneously receiving a public pension, an oft-criticized practice known in Albany parlance as “double dipping.”

Among those who have filed the paperwork are Senate Deputy Republican Leader Thomas Libous, R-Binghamton; Sen. John Bonacic, R-Mt. Hope, Orange County; and Assemblyman J. Gary Pretlow, D-Mt. Vernon, Westchester County.

“It’s money that I put in to the retirement system, and I’m getting old,” Pretlow, 65, said Monday. “As a financial adviser, I’ve always advised people to take whatever retirement they can get whenever they’re eligible for it.”

State law allows lawmakers who were in office before 1995 to collect both a salary and pension by technically retiring in the days before starting a new term. The loophole has long been criticized by good-government advocates and fiscal watchdogs, who question why retirement payments should be made to those who haven’t actually retired.

Members of the state Legislature earn a base salary of $79,500, and most earn additional stipends of between $9,000 and $41,500 a year for holding leadership positions. Retirement benefits are calculated based on a formula that relies on when an employee began working in the public sector, with some sitting lawmakers earning an additional $50,000 a year or more.

As of earlier this year, 15 sitting state lawmakers were collecting both a salary and pension, though two are retiring at year’s end. That number would grow to 22 if none of the nine additional lawmakers withdraw their retirement papers before Jan. 1, though Libous said he would pause his pension payments shortly after they begin.

State employees who retire and return to government work are also eligible to double dip. As of 2012, there were about 2,650 collecting both a salary and pension.

E.J. McMahon, president of the Empire Center, a fiscally conservative think tank, said the issue of double dipping points to the need for reforming the state’s retirement system. He’s a proponent of switching to a 401(k)-style system.

“If legislators were in a 401(k)-type system, like the vast majority of their constituents, this simply wouldn’t be an issue,” McMahon said. “The existing system shouldn’t simply be mended, it should be ended.”

So why are more lawmakers looking to collect both? At least five of the nine returning lawmakers pointed to family concerns as one of the reasons they filed.

If a member of the state’s retirement system dies before they begin collecting their benefits, the beneficiary is paid a lump sum of up to three times the member’s annual salary. But if they die after collecting the benefits, monthly payments can be transferred to the beneficiary.

Libous’ situation is unique. Since the 61-year-old lawmaker is under the age of 65, his retirement earnings would be capped at $30,000 a year while he remains in office.

But Libous, who is battling cancer and faces a federal felony charge of lying to the FBI, said he would collect “a couple” of pension payments in early 2015 before freezing future payments. That way, he said, his wife would be able to collect monthly payments if he were to die before he leaves office.

“I won’t be collecting both my pension and my salary,” said Libous, who will return to the Capitol in January while awaiting trial and receiving chemotherapy treatments. “I will collect a couple of payments and then freeze it, so then once I freeze it, if something happens to me, my wife is entitled to receive any pop-up payments. I’m basically protecting what I’ve earned the last 30 years.”

Assemblyman William Magee, D-Nelson, Madison County, and Sen. Kenneth LaValle, R-Suffolk County, also pointed to their families, as did Bonacic and Pretlow. It’s the same reason that was given by Sen. Hugh Farley, R-Niskayuna, Schenectady County, when he filed in 2012.

“One of my major concerns is my wife of 50 years, that’s been with me all through my political life,” Magee said. “As it is right now, the system the way it is, if something should happen to me, all she would get is a lump sum settlement. She’s the beneficiary, so I want to do everything I can to make sure she has proper health care and so on.”

Magee said he was still deciding whether to withdraw his retirement filing or allow it to stand. He and the other sitting lawmakers can still rescind their retirement notice before Jan. 1.

In a statement, Bonacic said he “put this decision off” for as long as he could, but said it was “appropriate at this time to protect my wife.”

“I am blessed with a wife who manages our family affairs intelligently and am grateful for her partnership in our more than 45 years of marriage,” Bonacic said. “If I were to die while in active service in the state Legislature, the law does not allow my wife to collect my pension.”

Among the other returning lawmakers who filed for “retirement” are Sens. John DeFrancisco, R-Syracuse, and Kemp Hannon, R-Nassau County. On the Assembly side, Assemblyment Jeffrion Aubry, D-Queens, and David McDonough, R-Nassau County, also filed.

Three lawmakers who won’t return to Albany in January also filed for retirement: Sens. George Maziarz, R-Newfane, Niagara County, and Malcolm Smith, D-Queens, as well as Assemblyman Robert Sweeney, D-Suffolk County.

Smith, the former Senate majority leader, is awaiting a federal trial on corruption charges.​

‘Double dipping’

The following sitting state lawmakers will be eligible to receive both a salary and public pension starting in 2015:

Assemblyman Herman Farrell, D-Manhattan

Assemblywoman Earlene Hooper, D-Nassau County

Assemblyman David Gantt, D-Rochester

Assemblywoman Janet Duprey, R-Peru, Clinton County

Assemblyman Steven Englebright, D-Suffolk County

Assemblyman Philip Ramos, D-Suffolk County

Assemblyman Mark Johns, R-Webster

Assemblywoman Vivian Cook, D-Queens

Assemblyman Clifford Crouch, R-Guilford, Chenango County

Assemblyman Jose Rivera, D-Bronx

Assemblyman Jeffrion Aubry, D-Queens

Assemblyman David McDonough, R-Nassau County

Assemblyman William Magee, D-Nelson, Madison County

Assemblyman J. Gary Pretlow, D-Mt. Vernon, Westchester County

Sen. William Larkin, R-New Windsor, Orange County

Sen. Patrick Gallivan, R-Elma, Erie County

Sen. Hugh Farley, R-Niskayuna, Schenectady County

Sen. Thomas Libous, R-Binghamton

Sen. Kenneth LaValle, R-Suffolk County

Sen. Kemp Hannon, R-Nassau County

Sen. John Bonacic, R-Mt. Hope, Orange County

Sen. John DeFrancisco, R-Syracuse

© 2014 Gannett News Service

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The Empire Center is an independent, non-partisan, non-profit think tank located in Albany, New York. Our mission is to make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.