Opinion 90-56


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


PUBLIC OFFICERS AND EMPLOYEES -- Military Leave (additional paid leave beyond statutory maximum period)
CONSTITUTIONAL LAW -- Gifts and Loans (authority to provide paid leaves of absence)

MILITARY LAW, §242(5); GENERAL MUNICIPAL LAW, §92(1); NY CONST, art VIII, §1; 38 USC §2024(d): A school district, by resolution, may provide prospectively for full or partially paid leaves of absence to school district employees engaged in the performance of ordered military duty, during all or part of the period after they have received their full compensation for the maximum period under Military Law, §242(5), until their return to civilian status.

You ask whether, in view of the prohibition in article VIII, §1 of the State Constitution against gifts and loans of public moneys, a school district may elect to provide its employees who are engaged in the performance of ordered military duty paid leaves of absences in excess of that required by the Military Law. Specifically, you ask whether a district may elect to pay such employees the difference between their military compensation and their school district compensation during all or part of the period after they have received their full compensation for the maximum period required by Military Law, §242(5) until their return to civilian status.

Pursuant to section 242(2) of the Military Law, every "public officer or employee", while engaged in the performance of "ordered military duty" and while going to and returning from such duty, is "deemed to have a leave of absence" from his or her public position (see also, 38 USC §2024[d]). Further, the public officer or employee is entitled to be paid his or her salary or other compensation as a public officer or employee while engaged in the performance of ordered military duty, and while going to and returning from such duty, for not more than a total of 30 days or 22 working days, whichever is greater, in any one calendar year, and for not more than 30 days or 22 working days, whichever is greater, in any one continuous period (Military Law, §242[5]).

An officer's or employee's entitlement under Military Law, §242(5) to receive his or her full salary or other compensation is mandatory and the municipality may not limit its obligation during this period to the difference between the employee's regular salary and his or her military compensation (33 Opns St Comp, 1977, p 117; 22 Opns St Comp, 1966, p 559). As the Court of Appeals has stated, "[n]o order or rule may be promulgated by which the privileges and benefits granted to certain employees by section 245 [repealed and reenacted as section 242, L 1953, ch 420] of the Military Law may be denied or diminished" (Williams v Walsh, 289 NY 1, at p 6). For purposes of section 242, the term "public officer or employee" includes every person who receives any compensation from a municipal corporation or political subdivision, except persons holding a position in the exempt class of civil service under certain circumstances (Military Law, §242[1][a]). School district officers and employees clearly fall within this definition and, therefore, are entitled to benefits under this section (28 Opns St Comp, 1972, p 212).

Although the Military Law provides that public officers and employees are deemed to have leaves of absence from their public positions for the full time they are engaged in the performance of ordered military duty and while going and returning from such duty (Military Law, §242[2]; see also 38 USC §2024[d]), the Military Law presently makes no provision for a paid leave beyond the maximum of 30 days or 22 working days, as the case may be (Military Law, §242[5]). In this regard, we note that chapter 608 of the Laws of 1952 deleted from the Military Law a requirement that officers and employees receive the difference between their municipal compensation and their military pay for periods of active duty beyond the statutory period for full municipal compensation. There is, however, nothing in the Military Law, or in the legislative history of chapter 608 of the Laws of 1952, which suggests that municipalities are prohibited from providing, in their discretion, paid leaves beyond the mandatory period, if otherwise authorized by law.

General Municipal Law, §92(1) provides that "[t]he governing body of each county, city, town, village [and] school district, ... by local law, ordinance or resolution, ... may grant ... leaves of absence to its officers and employees with or without pay and adopt rules and regulations in relation thereto" (emphasis added; see also Education Law, §1709[16]; cf. County Law, §207, authorizing counties to grant leaves of absence not in excess of one year and stating that "[n]othing herein shall be deemed to impair, affect or supersede the provisions of ... sections 245 or 246 [now §§242, 243, L 1953, ch 420] of the Military Law"). Section 92, therefore, vests in the municipal governing board the authority to allow paid or unpaid leaves of absence beyond those that are specifically granted or required by statute (see, e.g., 31 Opns St Comp, 1975, p 126). Further, there is no requirement in section 92 that a governing board provide full compensation to officers and employees granted paid leaves pursuant to that section (see 24 Opns St Comp, 1968, p 816). Accordingly, it is our opinion that a school board, by resolution, may provide for full or partially paid leaves of absence for employees engaged in the performance of ordered military duty for all of part of the period after the maximum period for full paid leave prescribed by Military Law, §242(5), until their return to civilian status (see also City of Albany v Helsby, 48 AD2d 998, 370 NYS2d 215 affd 38 NY2d 778, 381 NYS2d 866, confirming 7 PERB par 3078, to the effect that the topic of leaves of absence with or without pay, including leaves for military service, is a term or condition of employment subject to mandatory collective bargaining under article 14 of the Civil Service Law).

With respect to the gift and loan prohibition of article VIII, §1, it is well-established that municipalities, in granting paid leaves of absence, including leaves for military service, are not conferring gifts upon their employees, but rather are providing a form of compensation as a condition of employment to induce continued, faithful and competent service (see, e.g., Hoyt v Broome County, 285 NY 402; Teachers Association, Central High School District No. 3 v Board of Education, etc., 34 AD2d 351, 312 NYS2d 252; Henn v City of Mount Vernon, 198 AD 152, 189 NYS 851; Local 456 v Town of Cortlandt, 68 Misc 2d 645, 327 NYS2d 143, 149). To avoid contravening article VIII, §1, however, the paid leave of absence plan must operate prospectively, that is, the paid leave plan must be authorized prior to the time the leave for which payment is to be made is taken (see Dow v Board of Trustees, Farmingdale Public Library, 75 AD2d 632, 427 NYS2d 298; Murray v Levitt, 47 AD2d 267, 366 NYS2d 674; 1989 Opns St Comp No. 89-1, p 1). In addition, the leave plan must be consistent with constitutional equal protection guarantees (NY Const, art 1, §11; US Const 14th amendment) which require that persons similarly situated be treated alike (see, e.g. Werner v Middle Country Central School District, 89 AD2d 967, 454 NYS2d 116, app dsmd 58 NY2d 823, 459 NYS2d 1032).

December 31, 1990
John P. Lynch, Esq., Attorney at Law
Chenango Forks Central School District