Opinion 91-40


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (compensation- determination of period of entitlement); (rescheduling of work days to avoid conflict with military duty)

MILITARY LAW, §242(5): (1) A municipal officer or employee is entitled to compensation for time spent on ordered military duty for the greater of 30 calendar days or 22 working days. Thus, if an employee's first 30 calendar days of ordered military duty do not include at least 22 working days, the employee is entitled to paid leave while on ordered military duty until the employee has been on such duty for 22 working days. Conversely, if the employee's first 30 calendar days of ordered military duty include more than 22 working days, the employee is entitled to compensation for all those working days, notwithstanding that they total more than 22. (2) A municipality may adopt a policy to require its officers and/or employees to schedule their regular days off to coincide with required military duty, provided that the policy does not discriminate against those persons on such leave as compared to officers and employees on other types of leave such as for jury duty, training and labor-management purposes, and is consistent with the terms of any applicable collective bargaining agreement.

You ask to what extent a city employee is entitled to paid leave if the employee is on ordered military duty during a calendar year for a total of 39 days, 30 of which coincide with his or her regular work schedule. You also ask whether the city may establish a policy which would require its police officers to schedule their non-working days on days when they are on ordered military duty, when possible, to minimize the loss of time to the city.

Military Law, §242(5) provides as follows:

Pay for military duty. Every public officer or employee shall be paid his salary or other compensation as such public officer or employee for any and all periods of absence while engaged in the performance of ordered military duty, and while going to and returning from such duty, not exceeding a total of thirty days or twenty-two working days, whichever is greater, in any one calendar year and not exceeding thirty days or twenty-two working days, whichever is greater, in any one continuous period of such absence. (Emphasis added).

Prior to 1984, (see, L 1984, ch 161), section 242(5) simply required compensation for not exceeding "thirty days" of ordered military duty. InSchampier v Office of General Services of the State of New York, 73 AD2d 1011, 424 NYS2d 57, affd 52 NY2d 746, 436 NYS2d 276, the Appellate Division, Third Department, construed this former provision as meaning 30 "calendar" days, holding that an employee who had spent 31 calendar days on active military duty exceeded the statutory period for which he was entitled to compensation, although only 24 of those 31 days were also days on which he was scheduled to work.

After the Schampier decision, according to the sponsor's memorandum in support of the 1984 amendment to section 242(5), certain public employers were charging evening and weekend military drills, which were not scheduled during the employee's working hours, against the 30 day period. The purpose of the 1984 amendment was to avoid those inequities which resulted when State and municipal employers charged an officer's or employee's military leave time for days on which the officer or employee performed military duty but was not scheduled to work (L 1984, ch 161, Sponsor's Memorandum in Support; 1986 Opns St Comp No. 86-61, p 96). The amendment, therefore, was intended to ensure each eligible individual of at least 22 days of paid military leave per year for officers or employees who perform military duty on normally scheduled work days (see memorandum on L 1984, ch 161, May 29, 1984, Assemblyman Catapano to the Governor's Counsel).

The extent to which a municipal employee will be entitled to compensation under Military Law, §242(5) depends upon the employee's work schedule and how extensive the conflict, if any, between his or her work days and military duty. If an employee's first 30 calendar days of ordered military duty do not include at least 22 working days, the employee is entitled to be compensated for military leave for 22 working days. Conversely, if the employee's first 30 calendar days of ordered military duty include more than 22 working days, the employee is entitled to compensation for all those working days, notwithstanding that they total more than 22. Thus, in some instances, an employee will be entitled to compensation for more than 22 working days, although in no case for more than 30.

For each officer or employee entitled to military leave, the city should maintain, in effect, two calendars: one to count calendar days of ordered military duty and the other to count working days which coincide with the ordered military duty. Applying the above principles to the case at hand, the employee would be entitled to paid leave for more than 22 working days if there were more than 22 working days within the first 30 calendar days of ordered military duty. If there were less than 22 working days within the first 30 calendar days, the employee is entitled to compensation for 22 working days, notwithstanding that one or more of those working days fall beyond the thirtieth calendar day of ordered military duty.

As to whether the city may establish policies to minimize loss of time to the city by scheduling days off during military training and drills, this Office concluded in an earlier opinion that "a municipality may adopt regulations requiring its officers or employees to use their days off for military duty if the regulations do not conflict with section 242 and do not have the effect of discriminating against military personnel" (Opn No. 86-61, supra; see US Const, 14th Amd; 38 USC 2021; NY Const, art 1, §11). We based our conclusion on a 1977 memorandum decision of the Court of Appeals, Board of Education of the City School District of the City of Lockport v Licata, 42 NY2d 815, 396 NYS2d 644, and on the decision of the federal district court in Rumsey v NYS Department of Correctional Services, 569 F Supp 358. In the Rumsey case, the court sustained a departmental directive which permitted supervisors, when practicable and consistent with personnel requirements, to revise the regular days off and shift assignments of those corrections officers with military obligations to avoid conflict between military drill days and scheduled work hours. The court noted that the collective bargaining agreement allowed the Department to change employees' shift schedules "to accommodate legitimate Department needs" and that there was uncontroverted evidence that days off were routinely rescheduled for other purposes such as jury duty, training and labor management purposes (569 F Supp at 362). Therefore, the court concluded that the directive was not discriminatory in violation of federal (38 USC §2021) or state (Military Law, §242) law, or in violation of constitutional equal protection guarantees.

In an unreported case involving a subsequent contract between the same parties, Rumsey v NYS Department of Correctional Services, 1987 WL 18428, the same court concluded that the collective bargaining agreement before it did not provide for the work schedule changes and that the departmental directive denied the corrections officers an incident or advantage of their employment because of their military obligations. After analyzing the history of contract negotiations between the parties, the court, in contrast to the court in the earlier Rumsey case, held that regularly scheduled days off could not be changed with impunity by their employer. Notably, the court also included in its findings of fact that no other employee's days off were regularly or consistently changed to avoid similar conflict (such as for employees on jury duty). Although the court in the second Rumsey case did not hold that any attempt to regulate the use of days off for military obligations would be invalid, the case illustrates that the city's proposed policy must be drafted to avoid impairing contractual or statutory rights of employees merely because of military obligations.

Accordingly, while it continues to be our opinion that municipal employers may establish policies requiring employees or officers to use their days off for military duty when possible, their policies must be consistent with section 242 of the Military Law and the provisions of any applicable collective bargaining agreements. Also, consistent with constitutional guarantees of equal protection of the laws, the policies may not be intended to single out employees with military obligations for discriminatory treatment.

October 4, 1991
John M. Hart, Jr., Esq., City Attorney
City of Olean