Supreme Court, Albany County, August 28, 2019

Letitia James, Attorney General, Albany (Helena Lynch of counsel), for respondents.

Lippes Mathias Wexler Friedman LLP, Buffalo (Dennis C. Vacco and Scott S. Allen, Jr., of counsel), for petitioners.

{**65 Misc 3d at 688}This is a hybrid CPLR article 78 proceeding/action for declaratory relief commenced by 11 members of the state legislature against the New York State Committee on Legislative and Executive Compensation (Committee) and its former members. The Committee issued recommendations on December 10, 2018, that are said to have acquired the force of law, and petitioners/plaintiffs (petitioners) challenge the Committee's recommendations to restrict the outside income and employment of members of the legislature.

Respondents/defendants (respondents) move, pre-answer, for an order dismissing the petition/complaint (see NY St Cts Elec Filing [NYSCEF] Doc No. 1, verified petition and complaint [petition]) under CPLR 3211 (a) for lack of personal jurisdiction, non-justiciability and failure to state a claim. Respondents also move separately for a discretionary stay of this case, pending the outcome of appeals in another suit challenging the Committee's recommendations. Petitioners oppose the motions and cross-move for summary judgment on their first two causes of action, which challenge the restrictions on outside income and employment as ultra vires.

A. The Committee

The Committee was established in the 2018-2019 state budget "to examine, evaluate and make recommendations with respect to adequate levels of compensation, non-salary benefits, and allowances" for members of the legislature, statewide elected officials and agency commissioners (L 2018, ch 59, § 1, part HHH, § 1; NYSCEF Doc No. 3). The Committee consisted of four members: the State Comptroller; the New York City Comptroller; the chair of the SUNY Board of Trustees; and the chair of the CUNY Board of Trustees (id.).^[FN1]

Section 2 of part HHH directed the Committee 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]). The same section further directed the Committee to "determine whether, on January 1, 2019, the annual salary and allowances" of the foregoing public officers "warrant an increase" (id. § 2 [2]).{**65 Misc 3d at 689}

In discharging these responsibilities, the Committee was directed 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 [*3]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. § 2 [3]).

Following at least one public hearing (see id. § 3 [1]), the Committee was required to report its "findings, conclusions, determinations and recommendations" to the legislature and the Governor (id. § 4 [1]).

"Each recommendation made to implement a determination pursuant to section two of [part HHH] shall have the force of law, and shall supersede, where appropriate, inconsistent provisions of [Executive Law § 169], and sections 5 and 5-a of the legislative law, unless modified or abrogated by statute prior to January first" (id. § 4 [2]).

Part HHH and the Committee established therein were repealed effective December 31, 2018 (see id. §§ 6, 7).

B. The Report

The Committee issued its report on December 10, 2018 (see NYSCEF Doc No. 4, report). As is relevant here,^[FN2] the Committee recommended a legislative salary increase phased-in over three years (see id. at 14-16). The Committee also recommended that stipends for most legislators be eliminated and folded into the base salary (see id. at 14). The Committee further recommended that, effective January 1, 2020, outside income for legislators be restricted to a maximum of 15% of their base salary and prohibited completely where the outside{**65 Misc 3d at 690} employment involves a fiduciary relationship with a client (see id. at 14-15).

The legislature did not act to modify or abrogate the Committee's recommendations prior to January 1, 2019. As a result, each of the recommendations made by the Committee "to implement a determination pursuant to section two of [part HHH]" has "the force of law" (part HHH, § 4 [2]), "supersede[s]" inconsistent provisions of Legislative Law §§ 5 and 5-a (id.) and "shall continue to be in effect until amended or repealed" by law (id. § 7).

C. Delgado v State of New York

On June 7, 2019, this court (Ryba, J.) issued a decision/judgment in Delgado v State of New York (2019 NY Slip Op 32723[U] [2019]), a challenge by four taxpayers to part HHH and the Committee's recommendations. As is relevant here, Justice Ryba ruled that the Committee's recommendations to limit the outside income and employment of legislators "are not contemplated" by part HHH and conflict with "the ethical rules set forth in the Public Officers Law" (id. at *12; see also NYSCEF Doc No. 104, letter from court, in Delgado v State of New York, Sup Ct, Albany County, index No. 907537-18). "As the Committee was not granted authority to make recommendations that expand or conflict with Public Officers Law," the court declared null and void all of the Committee's recommendations for the legislature that were scheduled to take effect in 2020 and 2021, including the restrictions on outside income and employment (2019 NY Slip Op 32723[U], *16; see also NYSCEF Doc No. 104, letter from court, in Delgado v State of New York, Sup Ct, Albany County, index No. 907537-18).

The two defendants in Delgado, the State of New York and the Comptroller, filed a notice of appeal on July 15, 2019 (see NYSCEF Doc No. 98, in Delgado v State of New York, Sup Ct, Albany County, index No. 907537-18). Plaintiffs have filed a cross appeal and an appeal to the Court of Appeals (see NYSCEF Doc Nos. 105-106, in Delgado v State of New York, Sup Ct, Albany County, index No. 907537-18).

[*4]D. This Proceeding

Petitioners commenced this suit on March 29, 2019. The petition originally was noticed to be heard on May 3, 2019 (see NYSCEF Doc No. 2), but was adjourned by the parties on consent until June 7, 2019 (see NYSCEF Doc Nos. 15, 25), the same date on which the decision/judgment in Delgado was issued.{**65 Misc 3d at 691}

The petition alleges seven causes of action. The first seeks a determination pursuant to CPLR article 78 that the Committee acted in excess of its authority in recommending restrictions on outside income and employment, and the second cause of action seeks declaratory relief on the same grounds. The third and fourth causes of action allege that the restrictions on outside income and employment violate petitioners' equal protection and due process rights, respectively. The fifth cause of action alleges interference with petitioners' associational rights, the sixth alleges an unconstitutional delegation of lawmaking authority, and the seventh alleges voter disenfranchisement.

Respondents moved to dismiss the petition in lieu of answering. Following issuance of the decision/judgment in Delgado, respondents also moved for a discretionary stay of this case pending determination of the Delgado appeals, and petitioners cross-moved for summary judgment in response to the stay motion. Oral argument was held on August 16, 2019, and this decision, order and judgment follows.

Respondents move for a stay pending determination of the appeals in Delgado. According to respondents, the two cases involve overlapping issues and common questions of law, and a stay would "preserve judicial resources, further the interest of justice by preventing inequitable results and promote orderly procedure by furthering the goals of comity and uniformity" (Concord Assoc., L.P. v EPT Concord, LLC, 101 AD3d 1574, 1575 [3d Dept 2012]; see CPLR 2201).

While respondents' arguments are not without some force, the court finds, in the exercise of discretion, that petitioners should be permitted to continue to prosecute this suit. As argued by petitioners, their interests diverge dramatically from the Delgado plaintiffs, who seek to invalidate part HHH and all of the Committee's work, including the legislative pay raises (see NYSCEF Doc No. 44). In contrast, petitioners' challenge here is focused narrowly on the restrictions on outside income and employment.

In the court's view, members of the legislature have a paramount interest in being heard as parties on any challenge to the imposition of new restrictions on their outside income and employment. Accordingly, the motion for a discretionary stay is denied.{**65 Misc 3d at 692}

Respondents interpose three objections that are jurisdictional in nature. First, they argue that the petition must be dismissed as against respondents Thompson and DiNapoli for improper/untimely service, and as against the Committee, which was not served and no longer exists. Second, respondents contend that this proceeding is non-justiciable, inasmuch as they lack the power to implement the relief sought in the petition. Finally, respondents argue that the court lacks jurisdiction over the first cause of action, brought pursuant to CPLR article 78, because the Committee did not render any final determination.

A. Personal Jurisdiction

"The burden of proving jurisdiction is upon the party asserting it and when challenged on jurisdiction, such party must sustain that burden by preponderating proof" (Steiner v Steiner, 81 AD2d 725, 725 [3d Dept 1981] [internal quotation marks and citation omitted]). Here, petitioners claim to have acquired personal jurisdiction over the repealed Committee via service on the four former members.

1. DiNapoli

Respondent DiNapoli moves for dismissal of the petition on the ground that he was not timely served. Under CPLR 7804 (c), service shall be made "at least twenty days before the time at which the petition is noticed to be heard." DiNapoli argues that the petition was noticed to be heard on May 3, 2019, but he was not served until April 17, 2019—two days after the April 15, 2019 deadline.

The court finds this jurisdictional objection unavailing. On the same day that DiNapoli was served, his counsel informed the court that the parties had agreed to adjourn the return date of the petition until May 24, 2019 (see NYSCEF Doc No. 15). Given that the re-noticed hearing date for the petition was at least 20 days after service on DiNapoli, petitioners sufficiently complied with CPLR 7804 (c).

In any event, the timing requirement of CPLR 7804 (c) is not jurisdictional in nature and is subject to extension in the absence of prejudice (see Matter of Brown v Casier, 95 AD2d 574, 577 [3d Dept 1983]; see also Matter of Bluestone Gas Corp. of N.Y., Inc. [Iaboni], 116 AD3d 1182, 1183-1184 [3d Dept 2014]). DiNapoli raises no claim of prejudice, and he timely filed a pre-answer motion to dismiss the petition. Accordingly, any irregularity in the timing of service should be disregarded (see CPLR 2001; Matter of Brown, 95 AD2d at 577-578).{**65 Misc 3d at 693}

2. Thompson

Respondent Thompson seeks dismissal of the claims against him on the ground that he was not served in compliance with CPLR 307 (2). In particular, Thompson complains that he was served via ordinary mail at his nongovernmental place of business with the summons enclosed in an envelope that did not bear the legend "URGENT LEGAL MAIL."

In opposition, petitioners explain that they attempted service under CPLR 307 (2) because the former members of the Committee are not being sued in their personal capacity, only as former state officers. Petitioners further explain that they could not serve the former members by certified mail because the repealed Committee (see part HHH, §§ 6-7) no longer has a "principal office" (CPLR 307 [2]). Petitioners therefore attempted to serve the former members by the only other means authorized in CPLR 307 (2): personal delivery.

Respondents McCall, Stringer and DiNapoli were served by delivery of the summons to a person of suitable age and discretion authorized to accept service on their behalf (see NYSCEF Doc Nos. 8-9, 17), and these respondents make no challenge to the manner in which they were served.

Petitioners also sought to serve respondent Thompson by delivering the summons to him at his place of business. However, petitioners' process server attests that the attempt at personal delivery was refused (see NYSCEF Doc No. 11). Petitioners then resorted to service under CPLR 308 (2) and mailed the summons to Thompson to his place of business in an envelope bearing the legend "PERSONAL AND CONFIDENTIAL" (NYSCEF Doc No. 12).

[1] In considering the parties' contentions regarding CPLR 307 (2), the court observes that the statute does not contemplate service of process on a former member of a repealed committee, like Thompson, who is sued only in an official capacity.^[FN3] Thompson no longer is a "state officer" pursuant to the repealed part HHH, and he cannot act in any "official" or representative capacity on behalf of the repealed Committee (CPLR 307 [2]).

Moreover, the service methods authorized by CPLR 307 (2) are problematic when applied to such a former officer. As{**65 Misc 3d at 694} petitioners observe, service by certified mail is not an option, since service is not "complete until the summons is received in a principal office of the agency" (id.), and the repealed Committee no longer has such an office. Nor does the repealed Committee have a "chief executive officer" or a "person designated by [the] chief executive officer to receive service" (id.). And while CPLR 307 (2) does permit delivery of the summons to the "state officer sued," the statute plainly contemplates that such delivery would occur at the agency's offices.

Thus, after recognizing that the repeal of the Committee foreclosed the option of serving the former members by certified mail, petitioners made a good faith attempt to serve Thompson by personal delivery, the only method of service available under CPLR 307 (2). However, Thompson refused to accept delivery of the summons. Petitioners then resorted to service by mail, but enclosed the summons in an envelope bearing the legend "PERSONAL AND CONFIDENTIAL" (CPLR 308 [2]), rather than "URGENT LEGAL MAIL" (CPLR 307 [2]), because it was sent to Thompson's private place of employment, rather than to agency offices.

While petitioners acted reasonably under a statutory scheme that does not contemplate official capacity suits against former state officers of an abolished agency, service upon Thompson was not made in compliance with CPLR 307 (2) or any other method authorized by CPLR article 3.^[FN4] Accordingly, the petition must be dismissed as against respondent Thompson.

3. The Committee

Petitioners contend that the court acquired personal jurisdiction over the Committee through service on the four former members and the Attorney General. Since respondent Thompson was not properly served, however, the court has jurisdiction over only three of the former members. Nonetheless, the court is satisfied that petitioners acquired personal jurisdiction over the Committee and that this litigation may proceed in Thompson's absence.

By way of background, the Committee was repealed at the end of the day on December 31, 2018—the last day on which the legislature could modify or abrogate its recommendations (see part HHH, §§ 4 [2]; 7). And at the beginning of the day on{**65 Misc 3d at 695} January 1, 2019, "[e]ach recommendation made to implement a determination pursuant to section two of [part HHH] [acquired] the force of law" (id. § 4 [2]). The question becomes how one acquires jurisdiction [*7]over an administrative body that vanishes at essentially the same moment that its recommendations become legally binding.

For substantially the reasons stated above, the court concludes that there is nothing in CPLR 307 (2) that contemplates service on a repealed state agency. After all, a repealed agency lacks a "principal office," a "chief executive officer" and "at least one person" designated by the chief executive officer "to accept personal service"—all essential components of the statutory scheme for "[p]ersonal service on a . . . state agency" (CPLR 307 [2]).

Nonetheless, the court rejects respondents' contention that the Committee cannot be brought within the court's jurisdiction because of the repeal of its enabling legislation (see NYSCEF Doc No. 19 at 10). There is nothing in part HHH negating the presumption that the work of the Committee, an administrative body, is subject to judicial review, and a contrary intention would raise serious constitutional concerns (see generally Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318, 322-324 [1991]).

[2] In the absence of a legislatively-prescribed successor, it is appropriate to deem the "governmental unit responsible for creating the [Committee]," the State of New York, to be the successor to the Committee for purposes of judicial review (Organic Cow, LLC v Center for New England Dairy Compact Research, 335 F3d 66, 72 [2d Cir 2003]; see also CPLR 1018).^[FN5] The court therefore concludes that the State is the successor to the repealed Committee for purposes of judicial review, is subject to suit in that capacity, and was properly served in accordance with CPLR 307 (1) (see NYSCEF Doc Nos. 13-14).

Moreover, insofar as petitioners' claims represent a challenge to enacted legislation, the court is satisfied that the State of New York is a proper defendant that has been properly served. In this connection, the court observes that the Delgado{**65 Misc 3d at 696} plaintiffs named the Comptroller as a defendant based on his role in implementing the challenged salary increases. Here, in contrast, petitioners do not challenge the increases in compensation ordered by the Committee, and there is no comparable executive branch official charged with executing or implementing the Committee's restrictions on outside income and employment.

Finally, and in any event, the court is satisfied that the Committee was properly served under CPLR 312, which governs "[p]ersonal service upon a . . . board or commission."^[FN6] A board or commission is served by delivery of the summons to the "chairman" or "any one of the members" (CPLR 312; see Matter of Evans v Gardner, 71 Misc 2d 283, 285-286 [Sup Ct, Onondaga County 1972, Hancock, Jr., J.]; accord Matter of Croissant v Zoning Bd. of Appeals of Town of Woodstock, 83 AD2d 673, 673 [3d Dept 1981], appeal dismissed 55 NY2d 826[*8][1981]).^[FN7]

Here, the summons was delivered to the chair of the Committee, respondent McCall, and to two of the other members: respondents Stringer and DiNapoli. Accordingly, service on these respondents constituted good and sufficient service on the Committee.

4. Conclusion

Based on the foregoing, the branch of respondents' motion seeking dismissal of the petition for lack of personal jurisdiction is granted as to respondent Thompson and denied in all other respects.

B. Justiciability

Respondents maintain that this proceeding is non-justiciable.

"A justiciable controversy is one solvable by a court rather than some other forum and, with regard to the separation of powers doctrine, it has to do with whether a matter is resolvable by the judicial branch of government by way of interpreting or enforcing{**65 Misc 3d at 697} a statutory mandate or by the executive and/or legislative branches in the exercise of their purely political function" (Matter of Schulz v Silver, 212 AD2d 293, 295 [3d Dept 1995] [citation omitted], appeal dismissed 86 NY2d 835 [1995], lv dismissed and denied 87 NY2d 916 [1996]).

Respondents argue that any judgment against the repealed Committee and its former members "would be unenforceable and would violate separation of powers principles because [r]espondents lack the power required to implement such a judgment" (NYSCEF Doc No. 19 at 10). Respondents further assert that the relief sought by petitioners "would require [r]espondents to amend legislation, something that . . . [r]espondents are not empowered, and were never were empowered, to do" (id. at 12). Finally, respondents observe that any authority conferred upon the Committee and its members by part HHH has expired.

[3] The court is unpersuaded by these contentions. To the extent that the Committee's restrictions on outside income and employment acquired the force of law under part HHH, a judgment nullifying the restrictions would not require the repealed Committee or its former members to amend legislation or take any other action. Indeed, a judgment in favor of petitioners would not entail any affirmative action on the part of any current or former state official.^[FN8] It simply would allow petitioners and other members of the legislature to continue to engage in outside employment in accordance with statutory law as it existed prior to January 1, 2019.

Nor is respondents' inability to implement an adverse declaration fatal to petitioners' claims. Even assuming that a declaration in petitioners' favor were to require implementation, it is presumed that responsible government officials, including nonparties, will voluntarily abide by a declaratory judgment (see Joanne S. v Carey, 115 AD2d 4, 9 [1st Dept 1986]; see also Franklin v Massachusetts, 505 US 788, 803 [1992]). Further, issuance of a declaratory judgment [*9]will serve the salutary objective of providing useful guidance to petitioners and the other members of the legislature who are the subjects of the Committee's new restrictions.

Under the circumstances, the court is satisfied that this case presents a justiciable controversy.{**65 Misc 3d at 698}

C. Final Determination

Respondents contend that they made no determination that is final for purposes of CPLR article 78 (see CPLR 7801 [1]). A "final and binding" determination is one where the agency "reached a definitive position on the issue that inflicts actual, concrete injury," and the injury may not be "significantly ameliorated by further administrative action or by steps available to the complaining party" (Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007] [internal quotation marks and citation omitted]). In this regard, "the Court of Appeals has declined to adopt any bright-line rules designating particular actions as final, preferring instead to apply the foregoing test on a case-by-case basis in order to avoid inappropriate results in particular circumstances" (Matter of Center of Deposit, Inc. v Village of Deposit, 90 AD3d 1450, 1451 [3d Dept 2011] [internal quotation marks omitted]).

[4] Here, the Committee issued a report on December 10, 2018, that was subject to the prospect of statutory abrogation or modification on or before December 31, 2018. Thereafter, "[e]ach recommendation [of the Committee] made to implement a determination pursuant to [part HHH, § 2] [acquired] the force of law" (part HHH, § 4 [2]). Once the Committee's recommendations acquired the force of law, they became final and binding on petitioners, and the harms of which petitioners complain could not be prevented or ameliorated by further action of the Committee.

The second branch of respondents' motion to dismiss challenges the legal sufficiency of each of petitioners' claims. In addition, petitioners have cross-moved for summary judgment on their first two causes of action. For the reasons that follow, the court concludes that: (i) petitioners' first two causes of action state a claim upon which relief can be granted; (ii) petitioners have demonstrated their entitlement to summary judgment on their second cause of action for a declaratory judgment; and (iii) there is no need to address the merits of the remaining causes of action, which challenge the Committee's restrictions on outside income and activities on other grounds.^[FN9]

Petitioners' first cause of action, brought pursuant to CPLR 7803 (2), seeks annulment of the restrictions on outside income{**65 Misc 3d at 699} and employment on the ground that the Committee exceeded its statutory authority (see petition ¶¶ 65-66). The second cause of action seeks a judgment declaring that the Committee exceeded its statutory authority in recommending the restrictions on outside income and employment (see id. ¶¶ 68-69).

A. The Parties' Contentions

Petitioners maintain that the Committee exceeded its limited statutory mandate of "determin[ing] whether, on January 1, 2019, the annual salary and allowances" of state legislators "warrant an increase" (part HHH, § 2 [2]). According to petitioners, there is nothing in part HHH that authorized the Committee to issue recommendations that supersede existing provisions of the Public Officers Law or any other law, except for two statutes setting the salaries and allowances of legislators (see Legislative Law §§ 5, 5-a). Petitioners further argue that the policy considerations cited by the Committee as justification for the restrictions on outside income and employment are matters that were not delegated to the Committee and remain reserved for the legislature and the Governor.

Respondents contend that the recommendations to restrict the outside income and employment of legislators fall squarely within the broad scope of the Committee's mandate to examine "compensation." As stated in the report, the charge to "examine, evaluate, and make recommendations with respect to adequate levels of compensation" (part HHH, § 1) authorized the Committee to engage in "a holistic review and analysis of compensation for Legislators without limiting that analysis to{**65 Misc 3d at 700} simply setting salary levels" (report at 18). "Limiting outside income in conjunction with increases in salary falls squarely within the scope of [part HHH and] . . . the broad objective of the Legislature in creating the [Committee] in the first place" (id.).

Respondents also assert that one of the Committee's "criteria for examining adequacy is a comparability analysis to the federal government," and they cite the report's observation that "[i]t would be difficult to analyze the comparable levels of compensation and use them to set compensation levels without at least considering the concomitant restrictions on outside income" (id.). In this regard, the Committee ultimately recommended that New York follow the "Congressional model" of limiting outside income and prohibiting certain types of employment (id. at 12).

Another factor cited by respondents is consideration of the legislature's "performance . . . of [its] statutory and Constitutional responsibilities" (part HHH, § 2 [3]; see [4] [b]). The Committee found this condition satisfied "by the implementation of [its recommended] limitations on stipends and outside earned income, [which] will advance the full-time nature of today's legislative duties" (report at 10).

Finally, respondents argue that the Committee "did not exceed its [statutory] mandate for [*10]the fundamental reason that it did nothing more than make recommendations that were subject to legislative approval" (NYSCEF Doc No. 19 at 20). "[N]othing recommended by the Committee has any effect unless the legislature so permits" (id.).

B. Analysis

The Committee was established "to examine, evaluate and make recommendations with respect to adequate levels of compensation, non-salary benefits, and allowances" for members of the legislature (part HHH, § 1). In conducting this "examin[ation]" (id. § 2 [1]) and "determin[ing]" whether the salary and allowances of legislators "warrant an increase" (id. § 2 [2]), the Committee was directed to "take into account all appropriate factors" (id. § 2 [3]). Upon the completion of its work, the Committee was to report "its findings, conclusions, determinations and recommendations" to the Governor and the legislature (id. § 4 [1]).

After consideration of "all appropriate factors," including the legislature's "performance" of its constitutional and statutory {**65 Misc 3d at 701}duties and the compensation accorded to legislators in other jurisdictions (id. § 2 [3]), the Committee recommended that New York move towards a full-time legislature along the lines of the "Congressional model," where outside income can make up only a modest portion of a legislator's income and certain types of employment involving fiduciary relationships are not permitted (report at 10, 12-13).

[5] In the court's view, the Committee permissibly acted within the scope of its broad authority and discretion in advancing these recommendations for reform as part of "its findings, conclusions, determinations and recommendations" (part HHH, § 4 [1]). However, based on the text and structure of the Committee's enabling legislation, the court concludes that the Committee's recommendations to restrict the outside income and employment of state legislators did not take on the force of law and are merely advisory and/or conditional in nature.

In reaching these conclusions, the court begins with the first two subdivisions of section 2. Subdivision (1) requires the Committee to "examine the prevailing adequacy of pay levels, allowances . . . and other non-salary benefits, for members of the legislature" (id. § 2 [1]). The second subdivision then directs the Committee to "determine whether, on January 1, 2019, the annual salary and allowances" of members of the legislature "warrant an increase" (id. § 2 [2]).

Mirroring this structure are the two subdivisions of section 4. Subdivision (1) requires the Committee to issue a final report stating "its findings, conclusions, determinations and recommendations" (id. § 4 [1]). The second subdivision then declares that "[e]ach recommendation made to implement a determination pursuant to section two . . . shall have the force of law, and shall supersede . . . inconsistent provisions of . . . sections 5 and 5-a of the legislative law" (id. § 4 [2]).

So the issue becomes what "determinations" were made by the Committee pursuant to section 2. Clearly, not every "finding[ ], conclusion[ ], determination[ ] and recommendation[ ]" of the Committee acquires the force of law—only those "recommendations" made to implement a "determination pursuant to section two."

Section 2 of part HHH charges the Committee with rendering just one type of "determin[ation]" relative to the legislature: whether the "annual salary and allowances" of its members "warrant an increase" (id. § 2 [2]). The terms "salary" and "allowances" {**65 Misc 3d at 702}clearly refer to monetary amounts, and "increase" connotes the upward adjustment of such amounts. Thus, under the plain language of part HHH, the only recommendations that may acquire the force of [*11]law are those to implement the Committee's determination whether the salary and allowances of legislators should be increased.^[FN10]

Confirmation of this reading of part HHH is found in its language providing that recommendations accorded the force of law shall "supersede . . . inconsistent provisions of [Legislative Law §§ 5 and 5-a]" (id. § 4 [2]). In enacting part HHH, the legislature chose to supersede only two laws: the statutes governing the amounts paid to legislators in salary and allowances and the timing and conditions under which such amounts are paid. As petitioners emphasize, part HHH does not supersede the provisions of the Public Officers Law governing the ethical obligations of legislators in relation to outside income and employment (see Public Officers Law §§ 73, 73-a, 74). This is powerful evidence that the legislature did not intend the Committee's reform recommendations to take on the force of law under part HHH.

In sum, the Committee was charged with examining a broad range of issues relating to legislative "compensation" and submitting its "findings, conclusions, determinations and recommendations" regarding such matters to the legislature and the Governor (part HHH, §§ 1, 4 [1]). But the only recommendations that may acquire the force of law under part HHH are those made to implement the Committee's determination of whether the salary and allowances of legislators warrant an increase. All of the Committee's other recommendations are{**65 Misc 3d at 703} just that—recommendations advanced for the consideration of policymakers, but not the law of the State of New York.^[FN11]

And if the Committee's recommendations to restrict the outside income and employment of legislators did not acquire the force of law by operation of part HHH, the legislature's inaction when presented with the report is not a basis for concluding that such recommendations acquired the force of law. Under part HHH, only determinations concerning the annual salary and allowances of legislators may acquire the force of law, and only then if the recommendations are not timely modified or abrogated by statute. Legislative inaction in response to the report cannot serve to imbue the Committee's other "findings, conclusions, determinations and recommendations" with the force of law.

It may well be, as respondents argue and the Committee found, that "consideration of compensation [would not] be complete without considering outside income, its role in overall legislative compensation and the ability of Legislators to fulfill their responsibilities to serve the public in a focused and ethical manner" (report at 13). The court sees no infirmity in the Committee's "holistic" consideration of these issues in the context of part HHH's broad charge to conduct an "examin[ation]" of legislative "compensation" that considers "all appropriate factors" (part HHH, §§ 1, 2 [3]). The Committee is, however, a creature of statute, and there is nothing in part HHH that authorized it to recommend restrictions on outside income and employment that have the force of law. These policy matters remain reserved for the legislature and the Governor.

Finally, while part HHH did not authorize the Committee to issue legally binding recommendations regarding outside income and employment, the Committee had ample authority to address these issues under its enabling legislation. Specifically, part HHH authorized the Committee to condition the phase-in of salary increases on the legislature's "performance" (id. § 2 [4] [b]), and the Committee found that its recommended restrictions on outside income and employment were an essential element of the legislature's performance (see report at{**65 Misc 3d at 704} 10 [3]).^[FN12] Thus, there was no statutory impediment to the Committee conditioning the phase-in of salary increases upon the legislature's enactment of its recommended restrictions on outside income and employment.

Based on the foregoing, the court concludes that petitioners have demonstrated their entitlement to a judgment declaring that the Committee's restrictions on outside income and employment do not have the force of law. However, petitioners have failed to demonstrate any basis for annulling the provisions of the report advancing such recommendations, which are purely advisory and/or conditional in nature.^[FN13]

Accordingly, it is ordered that respondents' motion for a discretionary stay is denied; and it is further ordered that, upon conversion of respondents' motion to dismiss into one for summary judgment, respondents' motion is denied; and it is further ordered that petitioners' cross motion for summary judgment is granted as to the second cause of action and denied in all other respects; and finally it is ordered, adjudged and declared that the provisions of the report of the [*13]New York State Committee on Legislative and Executive Compensation dated December 10, 2018, that recommend restrictions on a legislator's ability to earn outside income and maintain outside employment are not entitled to the force or effect of law.