Opinion 2007 - 6


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

POLICE AND POLICE PROTECTION -- Police Chief (entitlement to one-time payment made to next ranking subordinate officer)

GENERAL MUNICIPAL LAW § 207-m: If the permanent full-time police officer who is a member of a bargaining unit and is the highest ranking subordinate to the police chief in a village police department receives a one-time payment of a specific amount for performing additional duties as “acting chief” for a period of one year, the police chief is entitled to a one-time payment in the same amount.

This is in reply to your inquiry concerning the requirements for compensating a village police chief under General Municipal Law § 207-m. You indicate that the village is considering an arrangement with the permanent full-time police officer who is a member of a negotiating unit and who is the highest ranking subordinate to the police chief (the “next subordinate officer”). Under the proposed arrangement, for a period not to exceed one year, the next subordinate officer would assume the additional duties of performing certain supervisory and administrative functions when the chief is unavailable, serving in effect as “acting chief.” You further indicate that the village proposes to compensate the next subordinate officer in a specific amount, to be paid in a single lump sum at the conclusion of the one year period. The payment would be made irrespective of the amount of time actually spent by the next subordinate officer as “acting chief.” You ask whether, pursuant to General Municipal Law § 207-m, the police chief would be entitled to a monetary payment in the amount of the lump sum payment made to the next subordinate officer.

General Municipal Law § 207-m, as amended by chapters 404 and 443 of the Laws of 1999, provides, in pertinent part, as follows:

whenever the base salary or other compensation of the permanent full-time police officer who is a member of a negotiating unit and who is the highest ranking subordinate to the head of the police department in such unit, is increased, the salary … of the permanent full-time head of the police department shall be increased by at least the same dollar amount of the base salary increase received by such next subordinate police officer, and the other compensation, as defined in subdivision two of this section, of the permanent full-time head of the police department shall be increased to the same extent and with the same conditions as the other compensation received by the next subordinate police officer in the event that such subordinate officer’s other compensation is increased … (emphasis added).

General Municipal Law § 207-m(2) defines “salary” and “other compensation” as follows:

[f]or the purposes of this section, salary shall mean fixed periodic compensation payable by an employer to or for the account of the employee for personal services rendered by such employee; other compensation shall mean all other forms of benefits which are credited to employees as a term of employment …. Overtime, holiday and shift differential pay shall not be considered as salary or other compensation unless by resolution, ordinance, special or local law the municipality … elects to include these items of compensation within the employment benefit package of the permanent full-time head of the police department (emphasis added).

General Municipal Law § 207-m was originally enacted “to prevent the compression of salaries as between police department heads who are not members of negotiating units, and their subordinates who are” ( Matter of Murphy v Village of Dolgeville, 87 NY2d 883, 639 NYS2d 1006; see also 2005 Ops St Comp No. 2005-5, at 13; 1995 Ops St Comp No. 95-31, at 63; 1991 Ops St Comp No. 91-35, at 106). Prior to the 1999 amendments, a police chief’s entitlement under General Municipal Law § 207-m was triggered only when the “base salary” of the next subordinate officer in a bargaining unit was “increased.” The 1999 amendments to General Municipal Law § 207-m expanded the scope of the statute to cover “increases” in “other compensation,” as defined in the amended General Municipal Law § 207-m, as well as “base salary.” These amendments were “[b]ased on the same parity logic which supported” the original salary provisions (Budget Report, Bill Jacket, L 1999, ch 443; see also Senate Introducer’s Mem in Support, Bill Jacket, L 1999, ch 404).

Since the additional compensation to the next subordinate officer here is to be paid in a single lump sum and not in “fixed periodic” amounts, it would not constitute “salary” under the definition in General Municipal Law § 207-m. We believe, however, that it would constitute “other compensation.” The lump sum amount is payable specifically to compensate the next subordinate officer for the additional duties to be undertaken and, as such, would be a benefit credited to him or her as a term of his or her employment. Moreover, the payment does not fall within any of the exclusions from “other compensation.” In particular, the payment does not constitute overtime pay, since the payment is for the assumption of additional work duties, as opposed to additional working hours ( compare General Municipal Law § 90), and the next subordinate officer will receive the full payment from the village irrespective of the number of hours, if any, spent performing duties while filling in for the chief.

Under General Municipal Law § 207-m, when a police chief is entitled to an increase in “other compensation”, the increase is “to the same extent and with the same conditions” as the increase received by the next subordinate officer. Therefore, in the instant situation, in order to satisfy the requirement that the increase be “to the same extent” as that provided to the next subordinate officer, the increase to the police chief must be a one-time payment at the end of the year in the same amount as the payment to the subordinate officer.

With respect to the requirement that the police chief’s increase be “with the same conditions” as those imposed on the next subordinate officer, the police chief, as a rule, would be required to satisfy any conditions that the village has placed upon the subordinate officer’s receipt of the increase ( see e.g. Whitman v City of Troy, Sup Ct, Rensselaer County, October 7, 2005, Ceresia, J., index No. 209202). Since the next subordinate officer’s receipt of the increase here is conditioned on the next subordinate officer agreeing to assume the additional duties of “acting chief” for a period not to exceed one year, General Municipal Law § 207-m, if read literally, would require that the chief similarly agree to perform the functions of “acting chief.” To fulfill this condition then, the chief, in effect, would have to act as his or her own deputy, a condition that would be impossible to meet.

We believe that such a construction of the statute should be avoided for several reasons. First, as a rule, it is presumed that the Legislature intended statutes to have practical results and, therefore, a statute should not be interpreted to require an impossibility ( see McKinney’s Statutes § 141). Moreover, if the chief’s inability to meet this condition were to bar payment to the chief, it would run counter to the underlying purpose of the statute and result in the very sort of compression of compensation sought to be avoided. Barring payment here also would lead to inconsistent results based solely on the timing of payment since the increase would be allowed under the statutory definition of “salary” if it were paid periodically, rather than in a lump sum. Such a conclusion would allow the village to avoid the statutory mandate by the simple expedient of choosing to pay the next subordinate officer in a lump sum, rather than by fixed, periodic amounts.

Accordingly, it is our opinion that, under General Municipal Law § 207-m, if the permanent full-time police officer who is a member of a bargaining unit and is the highest ranking subordinate to the police chief in a village police department receives a one-time payment of a specific amount for performing additional duties as “acting chief” for a period of one year, the police chief is entitled to a one-time payment in the same amount.

September 27, 2007

A. Thomas Levin, Esq., Village Attorney
Village of Great Neck Estates