Opinion 2008 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (calculation of the cash value of accumulated, unused vacation leave payable upon retirement)

GENERAL MUNICIPAL LAW § 207-m: If the calculation of the cash payment upon retirement of the accumulated, unused vacation leave for the next subordinate officer in a village police department results in an increased amount because the daily rate divisor and, therefore, hourly rate divisor used to make that calculation are changed, the police commissioner is entitled to a corresponding benefit. The daily rate divisor and, consequently, hourly rate divisor used to calculate the cash value upon retirement of accumulated, unused vacation leave for the police commissioner must be increased by the same percentage as the increase received by the next subordinate officer.

This is in reply to your inquiry concerning the applicability of General Municipal Law § 207-m to the calculation of the cash value of the accumulated, unused vacation leave payable to the village police commissioner upon retirement.

Based on the information provided with your inquiry, it appears that the officer who is the highest ranking subordinate in the village police department and is in a bargaining unit (the “next subordinate officer”), pursuant to the terms of the applicable collective bargaining agreement, is entitled to be paid upon retirement for accumulated, unused vacation leave. The inquiry suggests that, under the collective bargaining agreement covering the next subordinate officer, the cash value of each hour of accumulated vacation leave would be calculated by dividing the next subordinate officer's annual salary by an “hourly rate divisor.” 1 The collective bargaining agreement provides that the next subordinate officer's “regular day's pay” is determined by dividing the officer's salary by 234 (hereinafter “daily rate divisor”). We are informed that the “hourly rate divisor” is then determined by multiplying the next subordinate officer's daily rate divisor of 234 by eight, which is the number of hours in a standard work day, thereby resulting in an hourly rate divisor of 1872.

With respect to the village police commissioner, who is the permanent full-time head of the village police department, you indicate that, based upon the police commissioner's work schedule of 261 eight hour days per year, the police commissioner has an “hourly rate divisor” of 2088 hours. You further indicate that, upon retirement, the police commissioner is entitled to a cash payment for unused vacation leave accumulated during the course of the commissioner's employment, and that the village apparently intends to calculate this payment using the police commissioner's “hourly rate divisor.” You ask whether, pursuant to General Municipal Law § 207-m, the police commissioner is entitled, instead, to have the daily rate divisor and, therefore, the hourly rate divisor of the next subordinate officer applied in calculating the cash payment of accumulated vacation leave upon retirement.

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 “other compensation” as follows:

[f]or the purposes of this section, … other compensation shall mean all other forms of benefits which are credited to employees as a term of employment, which shall specifically include, but not be limited to, employer contribution to or payments of insurance or welfare benefits and employer contributions to pension or annuity funds. Overtime, holiday and shift differential pay shall not be considered as … other compensation unless by resolution, ordinance, special or local law the municipality, district or authority elects to include these items of compensation within the employment benefit package of the permanent full-time head of the police department.

Section 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 Dolgeville, 87 NY2d 883, 639 NYS2d 1006 [1995]; see also 2007 Ops St Comp No. 2007-6; 2007 Ops St Comp No. 2007-3; 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). The 1999 amendments to section 207-m, which became effective on August 2, 1999, expanded the scope of the statute to cover “increases” in “other compensation,” as defined in the amended section 207-m, as well as increases in “base salary.” These amendments were “[b]ased on the same parity logic which supported” the original salary provisions, in order to cover “fringe benefits,” that “have become an increasingly important component of the overall unionized police officer compensation package” (Budget Report on S.6105, Bill Jacket, L 1999, ch 443; Introducer's Memorandum in Support of S.2343/A.683, Bill Jacket, L 1999, ch 404).

In order to trigger an entitlement to “other compensation” under section 207-m, there must be an increase in a qualifying “benefit” that is “credited” to the “next subordinate police officer” as a term of employment, and the increase must occur subsequent to August 2, 1999 (see , e.g., 2007 Ops St Comp No. 2007-3, supra; 2005 Ops St Comp No. 2005-5, supra). Since the daily rate divisor is used to calculate the hourly rate divisor, which, in turn, is used to calculate the cash payment of accumulated, unused vacation leave upon retirement, in our view, it is a benefit credited to the next subordinate officer as a term of employment and, therefore, constitutes “other compensation” (see, e.g. , Whitman v City of Troy, Sup Ct , Rensselaer County , October 7, 2005, Ceresia, J., Index No. 209202). Moreover, the daily rate divisor does not fall within any of the exclusions from “other compensation.”

With respect to whether the benefit has been increased subsequent to August 2, 1999, the daily rate divisor was changed, pursuant to the terms of the next subordinate officer's collective bargaining agreement, on January 1, 2000 from 261 to 238, and again changed to 234 on June 1, 2001. Both changes resulted in a lowering of the daily rate divisor and, consequently, the hourly rate divisor, which resulted in an increase in the cash payment for accumulated, unused vacation credit to the next subordinate officer.

Since the next subordinate officer's daily rate divisor has been increased subsequent to August 2, 1999 and does not fall within any of the exclusions from “other compensation,” the police commissioner, pursuant to General Municipal Law § 207-m, would be entitled to the increase “to the same extent and with the same conditions” as the increase received by the next subordinate officer. On the face of the next subordinate officer's collective bargaining agreement, there does not appear to be any conditions placed on the next subordinate officer's receipt of the 234 daily rate divisor.2 In order to meet the requirement that the police commissioner's increase be “to the same extent” as the increase received by the next subordinate officer, we believe that the police commissioner's daily rate divisor and, therefore, hourly rate divisor must be increased by the same percentage as that of the next subordinate officer.3

Accordingly, under General Municipal Law § 207-m, if the calculation of the cash payment upon retirement of the accumulated, unused vacation leave for the next subordinate officer in a village police department results in an increased amount because the daily rate divisor and, therefore, hourly rate divisor used to make that calculation is changed, the police commissioner is entitled to a corresponding benefit. The daily rate divisor and, consequently, hourly rate divisor used to calculate the cash value upon retirement of accumulated, unused vacation leave for the police commissioner must be increased by the same percentage as the increase received by the next subordinate officer.

December 26, 2008

Gerard Fishberg, Esq., Village Attorney
Village of Garden City

1 The collective bargaining agreement does not expressly state how the cash payment is to be calculated. It appears, however, based upon the village's letter of inquiry, that the village uses the hourly rate divisor in calculating the amount to be paid upon retirement for accumulated, unused vacation leave under the collective bargaining agreement. Since it is generally the policy of this Office not to interpret collective bargaining agreements in our advisory legal opinions to local governments, we have relied on the inference contained in the village's inquiry with respect to the calculation of the cash payment in rendering this opinion. Therefore, nothing in this opinion should be construed as an interpretation by this Office of the next subordinate officer's collective bargaining agreement.

2 Although we find no conditions on the face of the collective bargaining agreement, it is generally the policy of this Office, as noted in footnote 1, supra, not to interpret collective bargaining agreements in our advisory legal opinions to local governments. Therefore, if the parties to the collective bargaining agreement interpret the agreement as prescribing one or more conditions, the village would need to consider the impact of those conditions on the police commissioner's entitlement under General Municipal Law § 207-m (see , e.g. , 2007 Ops St Comp No. 2007-6, supra).

3 Applying that standard here, the police commissioner would be entitled to a daily rate divisor of 234 and an hourly rate divisor of 1872.