AG Brief

FILED: ALBANY COUNTY CLERK 01/07/2019 03:39 PM INDEX NO.
907537-18
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/07/2019
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY
ROXANNE DELGADO, MICHAEL FITZPATRICK,

ROBERT ARRIGO and DAVID BUCHYN,
Plaintiffs,
-against- Index No.: 907537-18
STATE OF NEW YORK, and THOMAS P.

DiNAPOLI AS COMPTROLLER OF THE STATE OF
NEW YORK,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO

PLAINTIFFS’ MOTION FOR A PRELIMINARY
INJUNCTION AGAINST PAYROLL DISBURSEMENTS
LETITIA JAMES
Attorney General
State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224
HELENA LYNCH
Assistant Attorney General
of Counsel
Bar Roll No. 4383642
Tel: (518) 776-2580
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FILED: ALBANY COUNTY CLERK 01/07/2019 03:39 PM INDEX NO. 907537-18
TABLE OF CONTENTS
PRELIMINARY STATEMENT ........................................................................................1
STATEMENT OF RELEVANT FACTS ..........................................................................3
A. Part HHH of Chapter 59 of the Laws of 2018, which Established the

Committee ..............................................................................................................3
B. The Committee’s Report ......................................................................................6
C. Implementation of the Pay Modifications Recommended by the

Committee ..............................................................................................................7
PROCEDURAL BACKGROUND ...................................................................................8
ARGUMENT......................................................................................................................8
POINT I: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE PLAINTIFFS

CANNOT SHOW ANY LIKELIHOOD OF SUCCESS ON THEIR
CHALLENGE TO THE SALARY INCREASES OR STIPEND
LIMITATIONS .............................................................................................9
A. Plaintiffs Cannot Prevail on Their Challenge to Part HHH of Chapter 59

the Laws of 2018 – the Committee’s Enabling Statute – Because Part HHH
is a Constitutionally Proper Delegation of Administrative Functions........10
1. Part HHH Sets Forth Adequate Standards and Safeguards, and

Thereby Fulfills the Criteria for a Constitutionally Permissible
Delegation of Administrative Functions ...................................................11
2. The Appellate Division, Third Department, Recently Affirmed the

Constitutionality of a Compensation Commission That is Nearly
Identical to the Committee ..........................................................................13
3. The Constitutionality of Other Similarly Structured Bodies Has Been

Upheld ............................................................................................................15
B. Plaintiffs Cannot Prevail on Their Challenge to the Committee's

Recommendations as to Salary Increases, Which Were Well Within the
Committee’s Mandate ........................................................................................17
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C. Plaintiffs Cannot Prevail on their Challenge to the Stipend Limitations,

Because Plaintiffs Lack Standing, and the Stipend Limitations Were Well
Within the Committee’s Mandate ....................................................................19
POINT II: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE PLAINTIFFS

CANNOT SHOW IRREPARABLE INJURY ...........................................22
POINT III: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE THE

EQUITIES WEIGH TOWARD THE DEFENDANTS’ INTEREST IN
MAINTAINING ORDERLY PAYROLL DISBURSEMENTS ...............25
CONCLUSION ................................................................................................................27
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TABLE OF AUTHORITIES
Case Page
Biles v. Whisher,
160 A.D.3d 1159 (3d Dep’t 2018) .....................................................................................9
Ctr. for Judicial Accountability, Inc. v. Cuomo,

No. 527081, 2018 WL 6797292 (3d Dep’t Dec. 27, 2018) .....................................2, 6, 14
Cheevers v. State of New York,

No. 7306-01, 2002 WL 1559722, at *2
(Supreme Court, Albany County, July 10, 2002) ........................................................20
Matter of City of N.Y. v. State of N.Y. Comm’n on Cable Television,

47 N.Y.2d 89 (1979) .........................................................................................................10
Dalton v. Pataki,
5 N.Y.3d 243 (2005) .........................................................................................................12
Dunlea v. Anderson,
66 N.Y. 2d 265 (1985) ......................................................................................................19
Lafayette Ave. Corp. v. Comptroller of State of N.Y.,

186 A.D.2d 301 (3d Dep’t 1992) .....................................................................................24
LeadingAge New York, Inc. v. Shah,

No. 93, 2018 WL 5046104 (N.Y. Oct. 18, 2018). ............................................................10
Matter of Levine v. Whalen,

39 N.Y.2d 510 (1976) .................................................................................................10, 11
McKinney v. Comm’r, N.Y. State Dep’t of Health,

41 A.D.3d 252 (1st Dep’t 2007) .....................................................................................16
Matter of Moran Towing Corp. v. Urbach,

99 N.Y.2d 443 (2003) ..................................................................................................9, 26
N.Y. Public Interest Group. v. Steingut,

40 N.Y.2d 250 (1976) .................................................................................................18, 25
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Matter of N.Y. State Health Facilities Ass’n v. Axelrod,

77 N.Y.2d 340 (1991) .......................................................................................................12
Matter of Retired Pub. Empls. Ass’n v. Cuomo,

123 A.D.3d 92 (3d Dep’t 2014) .......................................................................................12
Rockland Dev. Assocs. v. Village of Hillburn,

172 A.D.2d 978 (3d Dep’t 1991) .......................................................................................9
Rudder v. Pataki,
93 N.Y.2d 273 (1999) .......................................................................................................20
Rural Community Coalition, Inc. v. Village of Bloomingburg,

118 A.D.3d 1092 (3d Dep’t 2014) .....................................................................................8
Schulz v. State Executive,

108 A.D.3d 856 (3d Dep’t 2013) .................................................................................9, 10
Schulz v. State,
217 A.D.2d 393 (1995) .......................................................................................................9
Sleepy Hollow Lake, Inc. v. Public Service Comm’n,

43 A.D.2d 439 (3d Dep’t 1974) .......................................................................................11
New York State Constitution Page
Article III, § 6 .........................................................................................................................13, 18
State Statutes Page
L. 2005, Ch. 63, part E, § 31(1) ...................................................................................................15
L. 2015, Ch. 60, part E .............................................................................................................5, 14
L. 2018, Ch. 59, part HHH .................................................................................................. passim
Executive Law § 169 ........................................................................................................... passim
Legislative Law § 5-a .......................................................................................................... passim
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State Finance Law § 123 .............................................................................................................19
State Finance Law § 123-b ..........................................................................................................20
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PRELIMINARY STATEMENT
Plaintiffs, as citizen-taxpayers, ask this Court to take the drastic, unnecessary,
and disruptive step of enjoining the New York State Comptroller from making certain
payroll disbursements, including pay increases for legislators and certain executive
officials whose compensation has remained static since 1999. Those payroll
disbursements implement recommendations made by the committee on legislative and
executive compensation (the “Committee”), which was lawfully created in 2018
pursuant to the New York State Legislature’s authority to delegate administrative
functions. The Committee issued a report, which, pursuant to its enabling statute, was
to have the force of law unless abrogated or superseded by the Legislature prior to
January 1, 2019. Because the Legislature did not act, the Committee’s compensation
recommendations are now in effect. Plaintiffs are not entitled to a preliminary
injunction.
First, Plaintiffs cannot demonstrate a likelihood of success on the merits of their
constitutional challenge to the payroll disbursements. In this action, Plaintiffs assert a
constitutional challenge to Part HHH of Chapter 59 of the Laws of 2018, the statute that
created the Committee and delegated to it the task of evaluating the adequacy of
compensation of state legislators and certain executive branch officials and proposing
salary levels for those officials. Plaintiffs further allege that the Committee exceeded its
mandate, and they challenge certain of the Committee’s recommendations on that basis.
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Contrary to Plaintiffs’ allegations, the Committee’s enabling statute was a permissible
exercise of the Legislature’s authority to delegate functions. Indeed, a nearly identical
statute – which, in 2015, created the commission on legislative, judicial, and executive
compensation – was recently affirmed as constitutional by the Appellate Division, Third
Department. See Ctr. for Judicial Accountability, Inc. v. Cuomo, No. 527081, 2018 WL
6797292, at *3 (3d Dep’t Dec. 27, 2018). Accordingly, the foundational theory of
Plaintiffs’ challenge – that the Legislature may not delegate the task of making
recommendations regarding compensation for certain state officials – is meritless.
In addition, the Committee’s recommendations were well within its mandate.
The recommendations at issue in this motion – salary increases for all positions and
limitations on stipends – are squarely within the Committee’s mandate to examine
compensation levels.
Second, Plaintiffs cannot demonstrate that they will suffer irreparable harm in the
absence of an injunction. In the unlikely event that the pay increases at issue are ruled
constitutionally impermissible, the Comptroller has the authority to correct any
resulting salary overpayments or underpayments of stipends through an ordinary
reconciliation process. During proceedings before the Court on Plaintiffs’ application
for a temporary restraining order (“TRO”), the Court agreed that, because of the
availability of the easily implemented reconciliation process, Plaintiffs failed to show
irreparable harm with respect to disbursements of the pay increases.
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Third, the balance of the equities tips toward Defendants. In compliance with the
law, the Comptroller timely began the process for implementing the payroll changes,
and, as of January 9, 2019, disbursements will have begun. As set forth below, an
injunction would cause unnecessary and unwarranted disruption.
Plaintiffs are not entitled to the drastic remedy of a preliminary injunction, and
their motion should be denied.
STATEMENT OF RELEVANT FACTS
A. Part HHH of Chapter 59 of the Laws of 2018, which Established the Committee
Part HHH of Chapter 59 of the laws of 2018 (“Part HHH”) established the
Committee, whose purpose was to “examine, evaluate and make recommendations
with respect to adequate levels of compensation, non-salary benefits, and allowances
pursuant to section 5-a of the legislative law, for members of the legislature, statewide
elected officials, and those state officers referred to in section 169 of the executive law.”
Part HHH, § 1 (annexed as Exhibit 1 to the Affidavit of Robin Rabii (“Rabii Aff.”)). The
Committee’s first mandate was to “examine the prevailing adequacy of pay levels,
allowances pursuant to section 5-a of the legislative law, and other non-salary benefits,
for members of the legislature, statewide elected officials, and those state officers
referred to in section 169 of the executive law.” Id. § 2.1. Section 169 of the Executive
Law sets forth the salaries for certain commissioners, directors, chairpersons, and
executive directors of various state departments and agencies. Exec. Law § 169.
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The Committee was charged with determining “whether, on January 1, 2019, the
annual salary and allowances of members of the legislature, statewide elected officials,
and salaries of state officers referred to in section 169 of the executive law, warrant[ed]
an increase.” Part HHH, § 2. The Committee was instructed to take into account all
appropriate factors, including, but not limited to:
the parties’ performance and timely fulfillment of their statutory and

Constitutional responsibilities; the overall economic climate; rates of
inflation; changes in public-sector spending; the levels of compensation and
non-salary benefits received by executive branch officials and legislators of
other states and of the federal government; the levels of compensation and
non-salary benefits received by comparable professionals in government,
academia and private and nonprofit enterprise; the ability to attract talent
in competition with comparable private sector positions; and the state's
ability to fund increases in compensation and non-salary benefits.
Id. § 3.
The Committee was instructed to “make a report to the governor and the
legislature of its findings, conclusions, determinations and recommendations,” and to
submit the report by December 10, 2018. Id. § 4.1. The Committee’s findings,
conclusions, determinations, and recommendations were required to be adopted by a
majority of its members. Id.
The Legislature directed that each recommendation by the Committee “shall
have the force of law, and shall supersede, where appropriate, inconsistent provisions
of section 169 of the executive law, and sections 5 and 5-a of the legislative law, unless
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modified or abrogated by statute prior to January first of the year as to which such
determination applies to legislative and executive compensation.” Id. § 4.2.
By way of background, the creation of the Committee follows a previous
legislative effort to address compensation issues by delegation to panel. To wit, the
commission on legislative, judicial and executive compensation (the “Commission”)
was established by Part E of chapter 60 of the laws of 2015 and, like the Committee, was
tasked with examining “the prevailing adequacy of pay levels and other non-salary
benefits received by members of the legislature, statewide elected officials, and those
state officers referred to in section 169 of the executive law.” L. 2015, ch. 60, part E
(annexed, as Exhibit 1, to Affirmation of Helena Lynch (“Lynch Aff.”)). In addition, the
Commission was tasked with examining the compensation of state judges. Id. Like the
Committee, the Commission was instructed to take into account all appropriate factors,
including but not limited to “the overall economic climate; rates of inflation; changes in
public-sector spending; the levels of compensation and non-salary benefits received by
executive branch officials and legislators of other states and of the federal government;
the levels of compensation and non-salary benefits received by professionals in
government, academia and private and nonprofit enterprise; and the state’s ability to
fund increases in compensation and non-salary benefits.” Id.
The Appellate Division, Third Department, recently ruled that Part E of Chapter
60 of the Laws of 2015, the statute that created the Commission and defined its
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responsibilities, was a constitutionally permissible delegation by the Legislature of
administrative functions related to compensation. Ctr. for Judicial Accountability, Inc. v.
Cuomo, No. 527081, 2018 WL 6797292, at *3 (N.Y. App. Div. Dec. 27, 2018) (L. 2015, ch.
60, part E “does not unconstitutionally delegate legislative power to the Commission.”).
Part HHH expired December 31, 2018, and the Committee is no longer in
existence, but the Committee’s recommendations “shall continue to be in effect until
amended or repealed by a subsequent recommendation of the [Commission] or by
passage of a new statute.” Id.
B. The Committee’s Report
The Committee held four public meetings, on November 13, 2018, November 28,
2018, November 30, 2018, and December 6, 2018, during which all deliberations, public
testimony, and voting occurred. Report of Committee, dated December 10, 2018 (the
“Report,” annexed as Exhibit 2 to Rabii Aff.) at 23-28. Pursuant to this process, as
relevant to Plaintiffs’ motion, the Committee made the following recommendations as
to salaries for 2019:1
 For legislators: $110,000 effective January 1, 2019, Report at 14-16.

 For the Governor: $200,000 effective January 1, 2019, id. at 16.
 For the Lieutenant Governor: $190,000 effective January 1, 2019, id. at 17.
1The Committee made several other recommendations, including further salary

increases to take effect in 2020 and 2021, and recommendations related to outside
income and the categorization of state officials identified in Executive Law § 169. See
Report at 14-19. Those other recommendations are not before the Court on this motion,
which seeks only to enjoin payroll disbursements in January 2019.
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 For the Attorney General and the Comptroller: $190,000 effective January
1, 2019, id.
 For Tier A Commissioners: $190,000 effective January 1, 2019, id. at 17.
 For Tier B Commissioners: $175,000 effective January 1, 2019; id.
 For Tier C Commissioners, the salary shall be authorized in accordance
with a salary established by the Governor, between $140,000 and $160,000,
effective January 1, 2019, id.
 For Tier D Commissioners, the salary shall be authorized in accordance
with a salary established by the Governor, between $100,000 and $120,000,
effective January 1, 2019, id. 17-18.
The Committee also recommended that “stipends [also called allowances]
pursuant to Legislative Law Section 5-a shall be folded into the base salary and set at
$0,” except that stipends for the following positions remain unchanged:
in the Assembly the Speaker of the Assembly, the Majority Leader of the
Assembly, Speaker Pro Tempore of the Assembly, the Chair of the Ways
and Means Committee, Chair of the Codes Committee, as well as the
Minority Leader, Minority Leader Pro Tempore, and Ranking Members of
the Ways and Means Committee and the Codes Committee; and in the
Senate the stipends for the Temporary President, Deputy Majority Leader
and the Chair of the Finance Committee, as well as the Minority Leader,
Deputy Minority Leader, and Ranking Member on the Senate Finance
Committee.
Report at 14.
C. Implementation of the Pay Modifications Recommended by the Committee
The Legislature did not modify or abrogate the Committee’s Report. The
Committee’s recommendations, therefore, became law on January 1, 2019. Part HHH, §
4.1.
The first paychecks reflecting the Committee recommendations will be disbursed
on January 9, 2019. Rabii Aff. ¶¶ 12, 14.

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PROCEDURAL BACKGROUND
On December 21, 2018, the parties appeared before the Court, with The
Honorable Christina L. Ryba presiding, for a proceeding on Plaintiffs’ application for a
TRO or, in the alternative, a hearing on their motion for a preliminary injunction. See
Transcript, Dec. 21, 2018 (annexed as Exhibit 2 to Lynch Aff.).
Counsel for the Plaintiffs clarified that, by their request for preliminary relief,
Plaintiffs seek solely to enjoin any “disbursement of state funds” pursuant to the
Committee’s recommendations. Tr. 4:21-5:2.
The Court denied Plaintiffs’ application for a TRO. The Court found that
Plaintiffs had not shown irreparable harm, because, as Defendants argued, if the pay
increases recommended by the Committee were to be invalidated, any disbursements
issued pursuant to those increases could be reconciled in later paychecks. See Tr. 15:8-
13. The Court scheduled a hearing on Plaintiff’s application for a preliminary
injunction, to be held January 11, 2019. Tr. 20:2-10.
ARGUMENT
A preliminary injunction is “drastic relief.” Rural Community Coalition, Inc. v.
Village of Bloomingburg, 118 A.D.3d 1092, 1095 (3d Dep’t 2014). To establish entitlement
to a preliminary injunction prohibiting the Comptroller from disbursement of the pay
modifications set forth in the Committee’s Report, Plaintiffs must demonstrate (i)
probable success on the merits of their challenge to the pay increases; (ii) irreparable
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harm if those disbursements are made; and (iii) a balance of equities in their favor. See
id. Plaintiffs bear the ultimate burden of proof as to each of those elements. Rockland
Dev. Assocs. v. Village of Hillburn, 172 A.D.2d 978, 979 (3d Dep’t 1991); Schulz v. State, 217
A.D.2d 393, 396 (1995). When the constitutionality of legislation is challenged, “the
burden becomes more difficult as there exists an exceedingly strong presumption of
constitutionality.” Schulz v. State Executive, 108 A.D.3d 856, 857 (3d Dep’t 2013).
Even when the requirements are met, the question of whether to grant a
preliminary injunction rests squarely in the Court’s discretion. Biles v. Whisher, 160
A.D.3d 1159, 1160 (3d Dep’t 2018).
Plaintiffs cannot meet the requirements for a preliminary injunction. First, their
challenge to the pay modifications is meritless. Second, they cannot show irreparable
harm. Finally, the equities weigh against unnecessarily disrupting the implementation
of the payroll changes.
POINT I: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE PLAINTIFFS

CANNOT SHOW ANY LIKELIHOOD OF SUCCESS ON THEIR
CHALLENGE TO THE SALARY INCREASES OR STIPEND
LIMITATIONS
As an initial matter, a plaintiff seeking to challenge the facial constitutionality of
a statute “must surmount the presumption of constitutionality accorded to legislative
enactments by proof ‘beyond a reasonable doubt.’” Matter of Moran Towing Corp. v.
Urbach, 99 N.Y.2d 443, 448 (2003) (citation omitted). The challenger must show the law
suffers “wholesale constitutional impairment” in “every conceivable application” and

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that “no set of circumstances exists under which the Act would be valid.” Id. (internal
quotation marks and citations omitted). Plaintiffs cannot show that Part HHH of
Chapter 59 or the Committee’s recommendations, which became law on January 1,
2019, suffer from “wholesale constitutional impairment.” Additionally, Plaintiffs
cannot overcome the “exceedingly strong presumption of [Part HHH’s]
constitutionality.” Schulz, 108 A.D.3d at 857.
Plaintiffs, accordingly, have no likelihood of success on their challenge to the pay
raises or to the stipend limitations recommended by the Committee.
A. Plaintiffs Cannot Prevail on Their Challenge to Part HHH of Chapter 59 the

Laws of 2018 – the Committee’s Enabling Statute – Because Part HHH is a
Constitutionally Proper Delegation of Administrative Functions
Although the Legislature may not delegate policymaking functions to other
bodies, “there is no constitutional prohibition against the delegation of power, with
reasonable safeguards and standards, to an agency or commission to administer the law
as enacted by the Legislature.” Matter of Levine v. Whalen, 39 N.Y.2d 510, 515 (1976).
The Legislature may delegate “far-reaching control” to a commission, and charge it
with “implementing a pervasive regulatory program.” Matter of City of N.Y. v. State of
N.Y. Comm’n on Cable Television, 47 N.Y.2d 89, 93 (1979). Moreover, “the enabling
legislation need not detail an agency’s role.” LeadingAge New York, Inc. v. Shah, No. 93,
2018 WL 5046104, at *6 (N.Y. Oct. 18, 2018).
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It is “incumbent upon the legislative authority to set forth standards to indicate
to an administrative agency the limits of its power.” Sleepy Hollow Lake, Inc. v. Public
Service Comm’n, 43 A.D.2d 439, 443 (3d Dep’t 1974). Yet, those standards may be quite
broad. For example, in Sleepy Hollow, the Third Department held that the “public
interest” provided a constitutionally sufficient standard for guiding the exercise of
administrative power to order that wiring be placed underground. Id. at 443-44.
Similarly, in Levine, the Court of Appeals found that “protection and promotion of the
health of the inhabitants of the state” was a constitutionally sufficient standard for
revoking a hospital’s operating certificate. 39 N.Y.2d at 516-17.
1. Part HHH Sets forth Adequate Standards and Safeguards, and Thereby
Fulfills the Criteria for a Constitutionally Permissible Delegation of
Administrative Functions
Here, Part HHH contains constitutionally adequate standards and safeguards.
The legislation charges the Committee with specific tasks, and sets forth guidelines to
which the Committee must adhere in furtherance of those tasks. The legislation
specifies that compensation levels must be “adequate,” and directs the Committee to
examine the “prevailing adequacy” of pay levels, certain allowances, and other non-
salary benefits of legislators, state-wide elected officials, and officials identified in
Executive Law § 169. Part HHH, § 2.1. The Committee’s tasks were to be carried out
within certain confines. The Committee was instructed to take into account a non-
exclusive list of factors that focus on circumstances that would reasonably be
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considered in setting salary rates: fulfillment of the recipients’ constitutional duties;
parity with other governmental bodies (compensation levels of executive branch
officials in other states and the federal government); competitiveness in the market
(compensation of professionals in government, academia, and private and nonprofit
enterprise); fairness to the recipients (rates of inflation); and affordability to the State
(the overall economic climate, changes in public-sector spending, and the state’s ability
to fund increases). Id. § 3.
Part HHH thereby “provides adequate guidance” for the Committee’s tasks.
Matter of Retired Pub. Empls. Ass’n v. Cuomo, 123 A.D.3d 92, 97 (3d Dep’t 2014). The
delegation was constitutional because “the basic policy decision[]” underlying the
Committee’s operation—namely, that legislators and certain executive branch officials
should receive “adequate” compensation as determined by relevant factors—was
“made and articulated by the Legislature.” Matter of N.Y. State Health Facilities Ass’n v.
Axelrod, 77 N.Y.2d 340, 348 (1991); accord Dalton v. Pataki, 5 N.Y.3d 243, 262 (2005).
Part HHH also contained a crucial safeguard. The Committee was required to
submit its report by December 10, 2018, and the Committee’s recommendations would
only become law if the Legislature did not alter or reject them before January 1, 2019.
Part HHH, § 4.2.
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2. The Appellate Division, Third Department Recently Affirmed the

Constitutionality of a Compensation Commission that is Nearly Identical
to the Committee
Plaintiffs appear to assert a theory that the constitutional mandate that legislative
salaries are to be “fixed by law,” N.Y. Const. art. III, § 6, translates to a specific
prohibition against delegating administrative tasks related to compensation of certain
state officials. See Pls.’ Mem. at 7-8. But Plaintiffs’ legal theory is mistaken. Plaintiffs’
error is made clear by the Third Department’s recent decision affirming the
constitutionality of Part E of Chapter 60 of the Laws of 2015, the statute that created the
commission on legislative, judicial and executive compensation (the “Commission”).
The Commission is the predecessor to the Committee, and the two bodies’ mandates are
nearly identical.2
As Plaintiffs emphasize, the 2015 enabling statute for the Commission is
remarkably similar to Part HHH, the enabling statute at issue here. See Compl. ¶ 48.
The 2015 enabling statute directed the Commission to examine legislative, judicial, and
certain executive salaries and make recommendations regarding the adequacy of
compensation based on numerous factors specified by the Legislature, including “the
overall economic climate; rates of inflation; changes in public-sector spending; the levels
of compensation and non-salary benefits received by executive branch officials and
2Plaintiffs refer to the Commission as the “quadrennial commission.” See Compl. ¶¶

42-47; Pls.’ Mem. at 3.
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legislators of other states and of the federal government; the levels of compensation and
non-salary benefits received by professionals in government, academia and private and
nonprofit enterprise; and the state’s ability to fund increases in compensation and non-
salary benefits.” L. 2015, ch. 60, part E. The only difference between the factors
considered by the Commission and those considered by the Committee is that the
Committee was instructed to consider an additional factor, namely legislators’ and
executive officials’ compliance with their constitutional and statutory mandates. Part
HHH, § 3.
The Third Department affirmed that “[t]he factors established by the Legislature
provide[d] adequate standards and guidance for the exercise of discretion by the
Commission.” Ctr. for Judicial Accountability, Inc., 2018 WL 6797292, at *3. The Third
Department’s holding is squarely on point to the current matter. Because the factors in
Part HHH are identical to and even go one step beyond the factors affirmed by the
Third Department, those factors a priori “provide adequate standards and guidance for
the exercise of discretion” by the Committee.
The Third Department also held that the Commission’s enabling statute
contained an adequate safeguard, because “the enabling statute contains the safeguard
of requiring that the Commission report its recommendations directly to the Legislature
so that it would have sufficient time to exercise its prerogative to reject any Commission
recommendations before they become effective.” Id. Again, this holding by the Third
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Department squarely on point. The Committee was required to submit its
recommendations to the Governor and the Legislator, and only those recommendations
that the Legislature did not modify or abrogate before January 1, 2019 would become
law. Part HHH, § 4.2.
Accordingly, the Third Department’s holding in Center for Judicial Accountability
completely refutes Plaintiffs’ theory that the legislature may not delegate administrative
tasks related to compensation. Part HHH, like the Commission’s enabling statute, was
a constitutionally permissible delegation of the administrative function of making
recommendations related to compensation.
3. The Constitutionality of Other Similarly Structured Bodies Has Been

Upheld
Another example of a constitutionally permissible delegation to a commission
was the New York State Commission on Health Care Facilities in the 21st Century
(commonly known as the “Berger Commission”) created by the Legislature in 2005 to
address the issue of excess hospital capacity. The Berger Commission was charged by
the Legislature with undertaking “a rational, independent review of health care
capacity and resources in the state” and “recommending changes that will result in a
more coherent, streamlined health care system.” L. 2005, ch. 63, Part E, § 31(1). Among
other things, the Berger Commission would “make recommendations relating to
facilities to be closed.” Id., § 31(8)(b). The Department of Health was required to
implement whatever recommendations the Berger Commission made, unless the

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Governor failed to transmit the final report or a majority of each house of the
Legislature voted to reject them. Id., § 31(9)(a)-(b).
When a taxpayer challenged the statute, the Appellate Division, First
Department “reject[ed] plaintiffs’ argument that the subject legislation
unconstitutionally delegated the Legislature’s lawmaking power.” McKinney v. Comm’r,
N.Y. State Dep’t of Health, 41 A.D.3d 252, 253 (1st Dep’t 2007). Having made the “basic
policy choice” that some hospitals needed to be closed and others needed to be
restructured, the Legislature “permissibly authorized the Commission” to “fill in
details” and make “subsidiary policy choices consistent with the enabling legislation.”
Id.
Here, because “the basic policy decisions underlying the [Committee] have been
made and articulated by the Legislature,” Part HHH is a constitutionally permissible
delegation of the task of administering the legislature’s policy decisions. N.Y. State
Health Facilities Ass’n, 77 N.Y.2d at 347; see also id. at 348 (“Here, the Legislature . . .
ha[ving] chosen the ends to be accomplished [and] the choice of the appropriate means
for achieving these ends . . . is well within the authority delegated to the agency for the
purpose of administering the statute.”).
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B. Plaintiffs Cannot Prevail on Their Challenge to the Committee’s

Recommendations as to Salary Increases, Which Were Well Within the
Committee’s Mandate
The salary increases recommended by the Committee are precisely within the
Committee’s mandate set forth in Part HHH. The Committee was “established . . . to
examine, evaluate and make recommendations with respect to adequate levels of
compensation . . . for members of the legislature, statewide elected officials, and those
state officers referred to in section 169 of the executive law.” Part HHH, § 1. The
legislation directed that the Committee “shall examine the prevailing adequacy of pay
levels.” Id. § 2.1. The legislation further directed that the Committee “shall determine,
whether, on January 1, 2019, the annual salary and allowances of members of the
legislature, statewide elected officials, and salaries of state officers referred to in section
169 of the executive law, warrant an increase.” Id. § 2.
The pay increases recommended by the Committee fit squarely within this
mandate. Indeed, Plaintiffs effectively concede this point – in the Complaint, Plaintiffs
allege that the Committee exceeded its mandate only with respect to its
recommendations regarding outside income, limitations on allowances, and re-
classification of certain public officers. Compl. ¶ 26.
The Committee followed its mandate to the letter. It considered all of the factors
that it was mandated to consider, and set forth in the Report its analysis of those factors.
See Report at 10-13. Pursuant to its examination of those factors, the Committee
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“determined that the appropriate compensation for a member of the Legislature
warrants increase.” Id. at 14. The Committee also recommended increased
compensation for statewide elected officials and officials identified in section 169 of the
Executive Law. Id. at 16-17.
The evidence submitted by Plaintiffs only underscores that the recommended
pay increases were within the Committee’s delegated authority. Assembly Speaker
Heastie only asserted that the pay increases did not go far enough. See Pls.’ Ex. A at 4
(stating that the pay increases fell short of a cost of living increase).3 Neither did then
Senate Leader Flanagan’s remarks call into question the Committee’s authority to
recommend pay raises. See Pets.’ Ex. B.4
To the extent Plaintiffs allege that the pay increases violate Article III, section 6 of
the New York State Constitution, Plaintiffs are mistaken and cannot prevail on that
point. Increases enacted prospectively for implementation in an upcoming term are
consistent with Article III, section 6. See N.Y. Public Interest Group. v. Steingut, 40 N.Y.2d
250, 261 (1976) (“[T]he Constitution lays no constraint on the authority of one
Legislature by enactment of general law to make provision prospectively for allowances
3
Speaker Heastie’s comments about other aspects of the Committee’s work, see supra,
note 1, are not at issue on this motion. Plaintiffs’ motion seeks only to enjoin the payroll
disbursements. See Order at 1-2.
4 Plaintiffs fail to explain what relevance their Exhibit C – an article from December
2014 examining trends in tenure of legislators – has to their motion.
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to be received by the officers and members of the two houses during a succeeding
legislative term or terms.”). That the Committee’s report was issued after the
November 2018 election does not call into question the constitutionality of the
prospective increases. Dunlea v. Anderson, 66 N.Y. 2d 265, 268 (1985) (Article III, § 6
“does not prohibit one Legislature, subsequent to the elective designation of its
successor body, from increasing the salaries of the next term’s members.”).
C. Plaintiffs Cannot Prevail on Their Challenge to the Stipend Limitations,

Because Plaintiffs Lack Standing, and the Stipend Limitations Were Well
Within the Committee’s Mandate
To the extent Plaintiffs seek to enjoin the Comptroller from disbursing the new,
restricted stipends, Plaintiffs cannot prevail because they lack standing and because the
Committee’s recommendations as to the stipends set forth in section 5-a of the
Legislative Law were well within its mandate.
Plaintiffs lack standing to enjoin the Committee’s recommendation to reduce the
stipends disbursed to legislative officials. Plaintiffs bring their lawsuit pursuant to State
Finance Law § 123, as citizen taxpayers. See Compl. ¶¶ 95-96.5 However, state law
recognizes that individual taxpayers have an “interest in the proper disposition of all
state funds.” State Fin. Law § 123. State Finance Law does not vest taxpayers with
standing to challenge reduced expenditures. A taxpayer may challenge only a “wrongful
5Although, notably, Plaintiffs do not allege that they are taxpayers in New York State.
See Compl. ¶¶ 80-83.
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expenditure, misappropriation, misapplication, or any other illegal or unconstitutional
disbursement.” State Fin. Law § 123-b.
Courts have characterized taxpayer standing as a question of whether the claims
at issue were related to fiscal activities. See Rudder v. Pataki, 93 N.Y.2d 273, 281 (1999)
(claims that “essentially seek[] to obtain judicial scrutiny of the [State’s] nonfiscal
activities” are not actionable (internal quotation marks omitted)); Cheevers v. State of New
York, No. 7306-01, 2002 WL 1559722, at *2 (Supreme Court, Albany County, July 10, 2002)
(“[A] plaintiff may not maintain an action to scrutinize nonfiscal activities.”). However,
those cases all involved new or increased expenditures of state finances, not decreased
expenditures. Accordingly, to the extent that Plaintiffs assert that the stipend
modifications have a sufficient nexus to expenditures, such an argument should be
rejected. Indeed, “[s]ince most activities can be viewed as having some relationship to
expenditures . . . too broad a reading of section 123-b would create standing for any
citizen who had the desire to challenge virtually all governmental acts.” Rudder, 93
N.Y.2d at 281.
The Committee’s recommendations regarding stipends are distinct from the
allowances at issue in Cheevers. There, the Court found that the portion of Legislative
Law § 5-a concerning the appointment of new special committee members and the cash
allowances to be paid thereto bore “a sufficient nexus to fiscal activities of the State to
allow for section 123-b standing.” Cheevers, 2002 WL 1559722, at *2. This is because the
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at-issue appointments would result in increased expenditures for allowances. Id. No
such increased expenditures for allowances are at issue here. The Committee’s
recommendations serve to reduce, not create, financial disbursements, and Plaintiffs do
not have taxpayer standing to challenge such reduced disbursements.
However, even if the Court were to rule that Plaintiffs have standing to challenge
the stipend limitations, Plaintiffs nevertheless cannot succeed on that challenge because
the stipend limitations are well within the Committee’s mandate. The Committee was
given the authority to “examine, evaluate, and made recommendations” with respect to
the prevailing adequacy of pay levels, as well as “allowances pursuant to section 5-a of
the legislative law, and other non-salary benefits” for the Legislature. Part HHH, § 1.
Stipends are “allowances pursuant to section 5-a of the legislative law.” Because the
Legislature has authorized the Commission to examine stipends, the Committee has been
delegated the authority to analyze and review the use of stipends in the context of a
compensation package. The criteria and factors to be considered in the statute apply
equally to “allowances,” i.e., stipends, as to “levels of compensation.” Id. § 3.
Moreover, Part HHH expressly states that each of the Committee’s
recommendations shall have the force of law, and “shall supersede, where appropriate,
inconsistent provisions of . . . sections 5 and 5-a of the legislative law, unless modified or
abrogated by statute prior to [January 1, 2019].” Part HHH, § 4.2. Accordingly, because
the Legislature expressly delegated to the Committee the authority to make
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recommendations as to modifications of section 5-aof the Legislative Law, the Committee
plainly did not exceed its mandate with respect to stipends.
POINT II: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE PLAINTIFFS

CANNOT SHOW IRREPARABLE INJURY
The first disbursements of the pay increases recommended by the Committee
will be reflected in paychecks issued to members of the Legislature, the Attorney
General and the Comptroller dated January 9, 2019. Rabii Aff. ¶ 12. The reason
Plaintiffs cannot show irreparable harm is simple: if the pay increases are ruled
unconstitutional, a reconciliation process will be applied and all overpayments will be
restored to the State’s coffers. Id. ¶ 16. Based upon these same facts presented to the
Court in a proceeding held on December 21, 2018, the Court denied Plaintiffs’
application for a TRO because it found that Plaintiffs had not shown irreparable harm.
Tr. 15:8-13. Plaintiffs’ motion for a preliminary injunction should be denied for the
same reason. To the extent Plaintiffs also challenge the stipend limitations, they cannot
show any harm, much less irreparable harm, resulting from the disbursement of fewer
state dollars.
Implementation of the salary increases and stipend limitations began in late
December 2018, when the Office of the State Comptroller issued a bulletin with
instructions to agencies for submitting the necessary coding for payroll transactions.
Rabii Aff. ¶ 9. The salaries of the legislators, the Comptroller, and the Attorney General
are not subject to a lag between the close of the pay period and the issuance of the
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paycheck for that pay period. Id. ¶¶ 10-11. Therefore, their first paychecks in 2019
reflecting changes will be disbursed January 9, 2018. In addition, the annual salary of
the legislators must be paid within the calendar year. Id. ¶ 10. Paychecks for the
officers identified in section 169 of the Executive Law are subject to a lag between the
close of a pay period and the issuance of paychecks for that pay period. Id. ¶ 13.
Therefore, the pay increases pursuant to the Committee’s recommendations for those
officials will appear in the January 23, 2019 paychecks. Id.
Members of the New York State Assembly who receive allowances are paid their
respective allowances as part of their twenty-six bi-weekly salary payments - i.e., one
twenty-sixth of the allowance is received in each member’s twenty-six bi-weekly payroll
checks. Id. ¶ 13. The payment of allowances to members of the Assembly will be
reflected in the payroll checks dated January 9, 2019. Id. Members of the New York
State Senate receiving allowances are paid their respective allowances in two payments,
the first containing 25% of the allowance set forth in Legislative Law § 5-a and the
second containing the remaining 75%. Rabii Aff. ¶ 14. The first payment of allowances
to members of the Senate will be reflected in the payroll checks dated March 20, 2019
and the second payment will not be made until after April 1, 2019. Id.
If the January 1, 2019 salary increases for members of the Legislature, statewide
elected officials and state officers referred to in Executive Law § 169 are ruled
unconstitutional, the Office of the State Comptroller’s Bureau of Payroll Services would
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promptly stop payments at the increased salary levels and take steps to reconcile future
payments made to the effected individuals to ensure that the annual compensation
received by these individuals is in accord with law. Id. ¶ 16.
Adjustments to salary levels and reconciliation of salary payments are routine
parts of the processing the payroll of the State workforce. Id. ¶ 16. The Comptroller
unquestionably has the “right to offset any valid claim of the state against one to whom
money under his control is due from the state.” Lafayette Ave. Corp. v. Comptroller of
State of N.Y., 186 A.D.2d 301, 303 (3d Dep’t 1992) (internal quotation marks omitted).
Only when a salary overpayment is the result of an administrative error may the
Comptroller be faced with limitations on his ability to reconcile or offset the
overpayment. State Finance Law § 200(3)(b) provides that a salary overpayment to a
state employee as the result of an administrative error may be recovered only if the
overpayment is made (i) for a period of time when the employee was neither
performing services or on approved leave, or (ii) under circumstances where the
Comptroller reasonably determines that the employee knew or a reasonable employee
should have known that he or she received an overpayment. The salary increases
effective January of 2019 are being paid pursuant to a statutory mandate. Therefore, the
statute addressing the recovery of overpayments resulting from administrative errors is
inapplicable here.
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Moreover, any overpayments in this instance would be distinguishable from the
overpayments involved in N.Y. Public Interest Research Group, where the Court of
Appeals declined to impose restitution primarily because the yearly allowances at issue
were pursuant to a “long-continued practice.” 40 N.Y.2d at 261.
With respect to the stipends, there is no scenario under which the Plaintiffs could
show irreparable harm. The stipends to be paid beginning January 9, 2019, are causing
fewer state dollars to be disbursed and will cause Plaintiffs no harm. Moreover, if the
stipends are paid pursuant to the Committee’s recommendations, and those
recommendations are later ruled unconstitutional, the Comptroller would merely pay
the stipends as set forth in the previous version of Legislative Law § 5-a or as directed
by the Court.
POINT III: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE THE EQUITIES

WEIGH TOWARD THE DEFENDANTS’ INTEREST IN
MAINTAINING ORDERLY PAYROLL DISBURSEMENTS
Finally, the equities weigh against issuing an injunction, because the harm from
an injunction would outweigh any alleged harm from implementing the pay
modifications. As an initial matter, the equities should be considered in light of the
extreme unlikelihood that Plaintiffs will prevail on their constitutional challenges.
Enactments are presumed to be constitutional, and litigants asserting that a statute is
facially unconstitutional must surmount that presumption by proof “beyond a
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reasonable doubt.” Matter of Moran Towing Corp., 99 N.Y.2d at 448 (internal quotation
marks and citation omitted).
The pay modifications have already been processed and disbursement is set to
begin on January 9, 2019. Rabii Aff. ¶¶ 12, 14. An injunction would undoubtedly cause
disruption, and that disruption would be unnecessary. If no injunction is issued and
Plaintiffs prevail on their challenge to the Committee’s recommendations, a simple
reconciliation process would correct the overpayments of salary and underpayments of
stipends. See supra, Point II.
The consequences of an inverse scenario are less straightforward. If an
injunction is issued, the state agencies and the Legislature would need to submit payroll
transactions to reverse the payroll transactions that were previously done to implement
the Committee’s recommendations. Then, if Plaintiffs’ constitutional challenge proves
unsuccessful, which is the likely outcome, the state agencies and Legislature would
have to reverse course yet again and submit payroll transactions to retroactively
implement the pay increases and stipend reductions. This would be an unnecessary
disruption, and result in the inefficient use of the State’s limited resources.
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CONCLUSION
For all of the foregoing reasons, Defendants respectfully request that the Court
deny Plaintiffs’ motion and grant such other and further relief that the Court deems just
and equitable.
Dated: Albany, New York

January 7, 2019
LETITIA JAMES
Attorney General
State of New York
Attorney for Defendants
By: /s/ Helena Lynch

HELENA LYNCH
Assistant Attorney General
The Capitol
Tel. (518) 776-2580
Helena.lynch@ag.ny.gov
To: GOVERNMENT JUSTICE CENTER

Cameron McDonald
Attorneys for Plaintiffs
100 State Street, Suite 410
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FILED: ALBANY COUNTY CLERK 01/07/2019 03:39 PM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

ROXANNE DELGADO, MICHAEL FITZPATRICK,

-against- Index No.: 907537-18

STATE OF NEW YORK, and THOMAS P.

MEMORANDUM OF LAW IN OPPOSITION TO

PRELIMINARY STATEMENT ........................................................................................1

STATEMENT OF RELEVANT FACTS ..........................................................................3

A. Part HHH of Chapter 59 of the Laws of 2018, which Established the

B. The Committee’s Report ......................................................................................6

C. Implementation of the Pay Modifications Recommended by the

PROCEDURAL BACKGROUND ...................................................................................8

POINT I: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE PLAINTIFFS

A. Plaintiffs Cannot Prevail on Their Challenge to Part HHH of Chapter 59

1. Part HHH Sets Forth Adequate Standards and Safeguards, and

2. The Appellate Division, Third Department, Recently Affirmed the

3. The Constitutionality of Other Similarly Structured Bodies Has Been

B. Plaintiffs Cannot Prevail on Their Challenge to the Committee's

C. Plaintiffs Cannot Prevail on their Challenge to the Stipend Limitations,

POINT II: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE PLAINTIFFS

POINT III: PLAINTIFFS’ MOTION MUST BE DENIED BECAUSE THE

Ctr. for Judicial Accountability, Inc. v. Cuomo,

Cheevers v. State of New York,

Matter of City of N.Y. v. State of N.Y. Comm’n on Cable Television,

Lafayette Ave. Corp. v. Comptroller of State of N.Y.,

LeadingAge New York, Inc. v. Shah,

Matter of Levine v. Whalen,

McKinney v. Comm’r, N.Y. State Dep’t of Health,

Matter of Moran Towing Corp. v. Urbach,

N.Y. Public Interest Group. v. Steingut,

Matter of N.Y. State Health Facilities Ass’n v. Axelrod,

Matter of Retired Pub. Empls. Ass’n v. Cuomo,

Rockland Dev. Assocs. v. Village of Hillburn,

Rural Community Coalition, Inc. v. Village of Bloomingburg,

Schulz v. State Executive,

Sleepy Hollow Lake, Inc. v. Public Service Comm’n,

New York State Constitution Page

Article III, § 6 .........................................................................................................................13, 18

State Statutes Page

L. 2005, Ch. 63, part E, § 31(1) ...................................................................................................15

L. 2015, Ch. 60, part E .............................................................................................................5, 14

L. 2018, Ch. 59, part HHH .................................................................................................. passim

Executive Law § 169 ........................................................................................................... passim

Legislative Law § 5-a .......................................................................................................... passim

State Finance Law § 123 .............................................................................................................19

State Finance Law § 123-b ..........................................................................................................20

Plaintiffs, as citizen-taxpayers, ask this Court to take the drastic, unnecessary,

disbursements implement recommendations made by the committee on legislative and

executive compensation (the “Committee”), which was lawfully created in 2018

pursuant to the New York State Legislature’s authority to delegate administrative

recommendations are now in effect. Plaintiffs are not entitled to a preliminary

First, Plaintiffs cannot demonstrate a likelihood of success on the merits of their

constitutional challenge to the payroll disbursements. In this action, Plaintiffs assert a

Contrary to Plaintiffs’ allegations, the Committee’s enabling statute was a permissible

exercise of the Legislature’s authority to delegate functions. Indeed, a nearly identical

compensation – was recently affirmed as constitutional by the Appellate Division, Third

recommendations regarding compensation for certain state officials – is meritless.

In addition, the Committee’s recommendations were well within its mandate.

limitations on stipends – are squarely within the Committee’s mandate to examine

constitutionally impermissible, the Comptroller has the authority to correct any

resulting salary overpayments or underpayments of stipends through an ordinary

reconciliation process. During proceedings before the Court on Plaintiffs’ application

availability of the easily implemented reconciliation process, Plaintiffs failed to show

irreparable harm with respect to disbursements of the pay increases.