Opinion 92-44


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 fringe benefits pursuant to General Municipal Law, §207-m)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (fringe benefits for police chief pursuant to General Municipal Law, §207-m)

GENERAL MUNICIPAL LAW, §207-m: The chief of police of a city, who is the permanent full-time head of the police department, is not required, pursuant to General Municipal Law, §207-m, to receive an increase in fringe benefits accorded to the permanent full-time highest ranking subordinate in a negotiating unit.

You ask whether, pursuant to General Municipal Law, §207-m, the chief of police of a city, who is the permanent full-time head of the police department, must receive the same increases in the level of fringe benefits received by the highest ranking subordinate in a negotiating unit.

Section 207-m provides, in pertinent part, that:

whenever the base salary 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 increase received by such next subordinate police officer. (emphasis added).

The word "salary" is not defined in section 207-m. It has been generally held, however, that the word "salary" connotes fixed cash compensation paid periodically to an officer or employee, exclusive of fringe benefits (see, e.g., Phaneuf v City of Plattsburgh, 84 Misc 2d 70, 376 NYS2d 781, affd 50 AD2d 614, 375 NYS2d 500, lv den 38 NY2d 1004, 384 NYS2d 441; Taylor v McGuire, 100 Misc 2d 834, 420 NYS2d 248; 1991 Opns St Comp No. 91-25, p 73; 1984 Opns St Comp No. 84-4, p 4; 1979 Opns St Comp No. 79-266-A, p 48). In contrast, except when a contrary legislative intent is evident, the word "compensation", for municipal law purposes, has been held generally to mean the total consideration paid to a municipal officer or employee, including both salary and fringe benefits (see, e.g., Taylor, supra; Christian v City of Ontario, 92 Misc 2d 51, 399 NYS2d 379; 1991 Opns St Comp No. 91-44, p 122; 1988 Opns St Comp No. 88-64, p 126; cf. 1990 Opns St Comp No. 90-44, p 99).

Use of the word "salary" in section 207-m, therefore, indicates that fringe benefits, which might be encompassed in the term "compensation", are not included in the required increases. Moreover, the specific language in section 207-m supports this conclusion. Section 207-m refers to increases in the "base salary" of the next ranking subordinate in a negotiating unit and requires increases for the permanent full-time head of the police department in at least the same "dollar amount". Since fringe benefits are generally not considered part of "base salary" (see Benson v County of Nassau, 137 AD2d 642, 524 NYS2d 733 lv den 72 NY2d 809, 534 NYS2d 666) and are often not directly measured by fixed "dollar amounts", use of these terms indicates that increases in fringe benefits are not mandated by section 207-m.

The legislative history of section 207-m is also consistent with this conclusion. As noted in previous opinions of this Office, the legislative intent of section 207-m was to avert a perceived trend toward salary compression of the heads of police departments who were not in negotiating units (see 1992 Opns St Comp No. 92-29, p 76; 1991 Opns St Comp No. 91-35, p 106; 1986 Opns St Comp No. 86-23, p 39; 1984 Opns St Comp No. 84-20, p 26). There is nothing in the legislative history which suggests that section 207-m was intended to encompass fringe benefits (see Sponsor's Memorandum in Support and Memorandum of the New York State Association of Chiefs of Police, Inc. re: L 1977, ch 827).

Accordingly, it is our opinion that the chief of police of a city, who is the permanent full-time head of the police department, is not required, pursuant to General Municipal Law, §207-m, to receive an increase in fringe benefits accorded to the permanent full-time highest ranking subordinate in a negotiating unit.

January 19, 1993
D. Michael Murray, Esq., City Attorney
City of Batavia