Corporations Law ; ( 2 ) the State regulatory agencies engaged in policy-setting that would otherwise be reserved for the State Legislature ; and ( 3 ) the EO # 38 regulations are arbitrary and capricious .
State Supreme Court , Albany County issued a decision on our case in November 2015 upholding the hard cap on use of State funds or State-authorized funds to pay executive compensation , but struck down the soft cap limiting compensation paid from all funding sources . LeadingAge NY and the State both appealed this decision to the NYS Appellate Division , Third Department . The Third Department ’ s June 2017 decision also annulled the soft cap , and upheld the hard cap . The decision by the Third Department conflicted with earlier decisions issued by downstate Appellate courts , setting the stage for review by the State ’ s highest court , the Court of Appeals .
The Court of Appeals agreed to take on the LeadingAge NY case , and we are currently working with our legal counsels and the other provider groups involved to prepare all of the court filings by the March 2018 deadline . Oral arguments before the Court are expected soon thereafter . As we await review by the Court of Appeals , the EO # 38 regulations and annual filing requirements imposed on affected NFP organizations remain in effect throughout the State , except for Nassau County where an earlier Supreme Court decision had stayed their implementation .
Despite the court rulings , affected LeadingAge member organizations have had to comply with these regulations in their entirety since 2013 . This has required members to submit annual filings to the State , seek waivers of the compensation cap , pay for salary surveys , change their board approval processes and in at least some cases change their compensation practices . The effects that these regulations may be having on executive compensation in our field are hard to measure , but there ’ s little doubt they are affecting recruitment and retention of experienced executives .
The State ’ s official website , www . executiveorder38 . ny . gov /, provides information on the EO # 38 regulations and associated filing requirements . LeadingAge NY ’ s website , www . leadingageny . org includes guidance on the regulations and various updates on the status of EO # 38 litigation .
A Recruiter ’ s Take on Compensation
leadingageny . org 26