What's The Cost Of Doing Business?

When FBI officials raided the home and offices of William Scarborough in late March, hauling away cardboard boxes filled with documents, the assemblyman met reporters pooling outside his office to calmly dispel chatter that he would soon become another in a long line of indicted legislators. 

“I believe that they represent a misunderstanding of the Assembly voucher system, or a misrepresentation of what I did,” he said of the investigators who showed up at his hotel room that morning at 5:45 a.m. 

Everything was in order, Scarborough claimed. He had an explanation for each day that it might appear he cheated the Legislature’s per diem system. But a crunching of the numbers to determine just how much is reasonably acceptable for legislators to receive for travel and lodging expenses each year shows Scarborough, an annual top spender, yet again approached generous estimates for what legislators should have spent. 

And he isn’t alone, though the good news for reformers is the spending seems to be going down. 

In 2013 three members of the Assembly exceeded what constitutes a reasonable annual per diem total, according to calculations performed by the good-government group Citizens Union that were provided to City & State. Assembly Ways and Means Committee Chair Herman Farrell led the group with $24,901 in per diem spending in 2013, $5,520.80 over the estimate by Citizens Union, which based its figure on the assumption of perfect attendance by legislators and additional days in Albany for each week of the legislative session. Assemblyman Keith Wright and Assemblyman J. Gary Pretlow were also over the estimate, though by just $185.80 and $76, respectively. 

In the state Senate, Sen. Malcolm Smith led the pack with $21,372 in per diem reimbursements, exceeding the Citizens Union estimate by $2,507.80. Smith told the Daily News in April that he had lost most of his legislative staff last year after being arrested, forcing him to travel to Albany more often. 

However, overall lawmakers’ totals are significantly lower than in 2012, when 11 legislators from both houses were above the estimates. In that year Farrell again led the Legislature and exceeded his own 2013 spending. In both years a majority of the legislators in the top 10 for 2012 also appeared in 2013. 

The Assembly members who exceeded the estimates in 2012 include Farrell ($25,924), Scarborough ($25,038), Earlene Hooper ($22,571), Carl Heastie ($22,265), Pretlow ($22,222), Eric Stevenson ($20,999), Wright ($20,585), Jeffrion Aubry ($20,147) and Steve Englebright ($19,731). In the Senate, Michael Nozzolio ($21,899) and Catharine Young ($18,904) were over. 

But even lawmakers who have been outspoken on reforming the per diem system caution that scrutinizing the numbers can lead into a murky area, where catching cheaters proves challenging. For that reason, some lawmakers say per diem reform needs to go beyond just making abuse more difficult; it also must include altering the rules so they are less confusing and better defined. 

“It’s not that simple,” Keith Wright said. “It’s not a simple process, especially if you have to itemize what you have. It’s not particularly easy.” 

The per diem rules authorize legislators to put in for a daily stipend for travel, tolls, lodging and food for days they spend away from their home bases. Lawmakers are permitted to pocket whatever part of the allowance they don’t spend, a provision good-government advocates have long said makes the system vulnerable to abuse. 

Citizens Union estimates that Assembly members should be spending in the neighborhood of $19,380.20 per year at most in per diems. For the Senate, which has fewer session days, the number drops to $18,864.20. Again, the estimates assume legislators are staying over in Albany every day of the session, plus one extra night per week. They also account for driving and toll costs or round-ticket train fare from New York City to Albany. 

When compared with various travel spending data, Citizens Union’s Director of Public Policy and Advocacy Alex Camarda, who helped create the estimates, said it’s less problematic when legislators spend within a close range of the estimates. It’s when their per diems run well over the figures that eyebrows should raise. 

“It points to the need for changes to be made to the per diem system, namely for legislators to be required to submit documentation [of their time in Albany],” Camarda said. “Given the calculations regarding the costs associated with traveling and lodging and other expenses, when we see lawmakers put in for $25,000 and as high as $30,000, the question is why their costs are so much higher relative to other lawmakers from the same area?” 

Data show gradual reductions in per diem spending across the board, from the top lawmakers on the list to the bottom, from 2012 to 2013. Moreover, there aren’t large gaps in the amounts between legislators—for example, a $10,000 discrepancy between legislators next to one another on the list. And while some may question why a particular lawmaker is higher on the list, as long as they can prove their per diems went to legitimate legislative purposes, the spending is legal. 

Some lawmakers defended their colleagues’ outlays, even the more lavish sums, while still cautioning that the system could be reformed. 

“The amount they spend … if they’re coming here all the time, they have a right to do it,” said state Sen. Neil Breslin, who as a local representative does not submit for per diems during his time in Albany. Records from the state comptroller’s office show Breslin submitted for per diems only for conferences and meetings last year. “If they are taking that amount of money, you want to make sure there is sufficient proof that they’re complying with the rules and adhering to their work.” 

For Camarda, that’s the sticking point when it comes reform. He said legislators should be required to submit additional documentation of what they’re submitting per diems for, a position with which Breslin concurred. 

The other criticism of the system is that attendance must be taken into account. When an out-of-town legislator has perfect attendance, presumably their per diem total would be greater. But when attendance is suspect—as was the case with former Assemblyman William Boyland—and the per diem total is high, questions arise. 

That’s the equation that has drawn attention to Scarborough, though concrete evidence has yet to be released either way, and Scarborough has not been charged with any wrongdoing. 

“If it showed he went up to Albany 60 to 80 additional days a year, I don’t think that would be an issue,” Camarda said of Scarborough. “It’s questionable as to what he was doing if receipts showed he was in places that weren’t required of his job.” 

Wright, like Breslin, defended some higher per diem values and off-session travel, saying some legislators simply need to travel more often than others during off-session times. 

“Some people are high … [because] we go up there in the off session a lot to do committee work,” he said. “Certainly legislation does not grow very quickly. We go up there during the off session to talk to commissioners. And going up in the off session is the best time to get things done. Sometimes getting to them during the legislative session is not always easy.” 

Wright—a high-ranking lawmaker who traveled more often during off-session times than some of his colleagues—said the current per diem system seems to be working. But as with anything that has been around for years, it could probably use a checkup. 

“Anything after … years could be examined and looked at,” Wright said. “I go to the doctor once every year. So I need to be looked at, right? Anything after however many years could certainly be looked at.”