ALBANY - At least eight state senators were paid thousands of dollars in stipends for committee positions they didn't actually hold, a tactic Senate leadership is defending as watchdog groups question whether the move is fraudulent.

Documents submitted by the Republican-controlled Senate to the state Comptroller's Office falsely claimed the senators held committee chairmanships that paid more than the positions they actually held, inflating their annual pay that is set by law.

That includes Sen. Patrick Gallivan, R-Elma, Erie County, who received the education committee chair's $18,000 stipend earlier this year rather than the $12,500 payment for the crime and corrections committee, which he actually chairs.

Sen. Thomas O'Mara, R-Big Flats, Chemung County, chairs the Senate Environmental Conservation committee, which carries a $12,500 stipend. But O'Mara instead was paid the $15,000 stipend reserved for chair of the transportation committee.

And Sen. Pamela Helming, R-Canandaigua, Ontario County, received two payments this year totaling $12,500 for the crime committee stipend, but said Monday she has not yet cashed the checks and intends to return them.

Legal or not?

Counsel for the Senate GOP claims the practice is legal and constitutional. Government-reform groups -- including Common Cause/NY -- are calling for an investigation.

"Everything was done in accordance with the law," Senate Republican Scott Reif said in a statement.
Helming likened the situation to checking out at Wal-Mart and getting too much change from the cashier.

"You have a decision to make: Do you keep it?" she said. "Or do you turn around and do the right thing and give it back?"

The New York Times first reported the stipend issue late last week.

Senator Gallivan talked to 2 On Your Side on Saturday about receiving the stipend. "It was always my understanding that the payments are in accordance with the law,"Gallivan said. "I've been honored to be appointed chair of a particular committee, vice chair of another committee, and there's a stipend that goes with it. We are only entitled to one. I did receive it. And as far as I've been made aware and I've been assured, it's in accordance with the law. If there's ever a question, of course it would be returned."

Getting higher pay

Known in Albany as "lulus", the stipends are laid out in state law, which explicitly lists which committee chairs and leadership positions receive what level of pay.

But a lawmaker can only receive a single stipend. If a senator chairs a committee but also serves in Senate leadership -- positions such as majority leader or whip or their assistants -- they only receive the higher of the two payments.

Rather than let some of the higher-paying committee stipends go unclaimed, however, state records show Senate payroll officials instead listed at least six vice chairs as chairmen of the committees when they submitted information to Comptroller Thomas DiNapoli's office this year, triggering higher payments.

The Senate did the same for at least two others in recent years, documents show.

Along with O'Mara, Gallivan and Helming, two other Republicans -- Sens. Andrew Lanza of Staten Island and Patty Ritchie of the North Country -- received similar payments.

Lanza received the codes committee stipend while serving as vice chair in 2015 and 2016, while Ritchie received the health committee payment this year while serving as deputy vice chair.

The other three -- Sens. Diane Savino of Staten Island, Jose Peralta of Queens and David Valesky of the Syracuse area -- are members of the Senate Independent Democratic Conference, which is allied with the GOP.
Investigation sought

Senate Republicans insist the practice is legal.

Late Saturday night, Senate GOP counsel David Lewis released a four-page legal analysis making the case that the payments fully comply with the law and state constitution.

He pointed to a section of the state constitution that payment can be made to lawmakers serving in a "special capacity" or "directly connected therewith."

The documents submitted to the Comptroller's Office are "not assertion that the senator holds the office but that the senator has been designated by the Temporary President to receive that payment for his or her services in special capacity," Lewis wrote.

Susan Lerner, executive director of Common Cause/NY, issued a statement calling for an investigation into the practice, calling it an "egregious misuse of public moneys" that "must be investigated by law enforcement."

"Voters need to know ... the terms under which the Senate leadership arrived at this arrangement (and) that it will be discontinued immediately," she said.