Opinion 92-56

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (payment of flat monthly allowance for use of private automobile on official business)
WORDS AND PHRASES -- "Terms and conditions of employment" (as including payment of monthly allowance for use of automobile on official business)

LAWS OF 1972, CHAPTER 791; TOWN LAW, §§27, 116: A town whose town board is authorized by special act to appoint a town manager "upon such terms and conditions ... as it shall determine", may pay the town manager a flat monthly fee as an allowance for use of his or her automobile on official business as part of the terms and conditions of the appointment of the manager.

You ask whether the Town of Fallsburg, pursuant to chapter 791 of the laws of 1972, may pay its town manager a flat monthly fee as an allowance for use of his own automobile on official business. You indicate that such allowance would be paid without regard to actual mileage traveled. Chapter 791 created the position of town manager in the Town of Fallsburg and contains various provisions relating thereto.

Town Law, §27(1) provides that salaries of town officers and employees are in lieu of all compensation for all services rendered to the town. Further, Town Law, §116(1) provides for the payment of travel expenses of town officers and employees. Such section describes the expenses which may be town charges and includes, in part, the following:

... all expenses necessarily incurred for the use and benefit of the town, and when incurred by authority of the town board, all expenses necessarily incurred and paid by any town officer or employee in executing the duties of his office or position, including actual and necessary expenses for travel ... The town board of any town, in lieu of auditing and allowing the claim of a town officer or employee for actual and necessary expenses for travel, may determine by resolution to allow and pay such officer or employee a reasonable mileage allowance for the use of his own automobile for each mile actually and necessarily traveled by him in the performance of the duties of his office or position, in attending a course of training for his respective office or position provided by the town and county officers training school of the state of New York, or in attending a convention, conference or school pursuant to section seventy-seven-b of the general municipal law.

Thus, pursuant to section 116, only those travel expenses which have actually and necessarily been incurred by a town officer or employee or a mileage allowance for each mile actually and necessarily traveled by the officer or employee in his or her own automobile in the performance of duties, may be reimbursed by the town. There is no provision therein for the payment of a flat monthly fee as an allowance for use of a privately owned automobile on official business without regard to actual mileage traveled (26 Opns St Comp, 1970, p 267; cf. General Municipal Law, §77-c, authorizing a per diem meal allowance). Moreover, section 116 cannot be superseded by local law (Municipal Home Rule Law, §10[1][ii][d][3][4]).

Sections 27 and 116 do not, however, preclude a town from providing compensation, in addition to salary, to its officers and employees if the additional compensation is authorized by State statute or by a duly enacted local law. For example, in 1987 Opns St Comp No. 87-25, p 40, we concluded that a town could adopt a local law authorizing the personal use of a town automobile as compensation for its officers.

Chapter 791 of the Laws of 1972 specifically and exclusively applies to the position of the town manager in the Town of Fallsburg. Section 2 thereof provides that the "town manager ... shall be appointed by the town board upon such terms and conditions ... as it shall determine" (emphasis added). In our view, this statute authorizes the Town of Fallsburg to provide its town manager with a flat monthly automobile allowance as part of his or her compensation package.

Chapter 791 does not define the phrase "terms and conditions" and does not otherwise indicate whether the phrase was intended to include a flat monthly automobile allowance. However, a similar phrase, used in the context of collective bargaining between public employers and employees, appears in section 201(4) of the Civil Service Law (see also NYC Administrative Code, §12-307[a]; National Labor Relations Act, §§8 and 9). Reference to these statutes will facilitate construction of chapter 791 of the Laws of 1972, as there is a presumption that a similar meaning attaches to the use of similar words as they appear in statutes of similar import and character (People v Bart's Restaurant Corp., 42 Misc 2d 1093, 249 NYS2d 344; see also McKinney's Statutes, §236).

The cases construing the phrase "terms and conditions of employment" in Civil Service Law, §201(4) generally involve whether a particular subject matter is a term or condition of employment which, consequently, must be the subject of collective bargaining in the absence of a plain and clear prohibition in statute, decisional law or public policy (see Susquehanna Valley Teachers School District v Susquehanna Valley Association, 37 NY2d 614, 376 NYS2d 427; Syracuse Teachers Ass'n v Board of Education, 35 NY2d 743, 361 NY2d 912). As a general principle, it has been found that "the phrase covers subjects which have a significant or material relationship to conditions of employment ... or, put differently, it includes matters directly affecting only the employer and employee relationship" (Levitt v Board of Collective Bargaining, 140 Misc 2d 727, 531 NYS2d 703, 706; see also Fibreboard Paper Products Corp. v N.L.R.B., 379 US 203, 85, S Ct 398, 131 L Ed 2d 233; West Irondequoit Teachers Association v Helsby, 35 NY2d 46, 358 NYS2d 720).  Other judicial interpretations have included as "terms and conditions of employment" various matters which provide an "economic benefit" to the employee (see Board of Education of Union Free School District No. 3 of the Town of Huntington, v Associated Teachers of Huntington, 30 NY2d 122, 331 NYS2d 17; County of Onondaga v New York State Public Employment Relations Board, 77 AD2d 783, 430 NYS2d 730).

We are unaware of any decision specifically construing the phrase "terms or conditions of employment" as it relates to the payment to a public employee of a flat monthly fee as an allowance for use of his automobile on official business. However, related matters involving the provision of municipally-owned vehicles to public employees and reimbursement of transportation expenses (County of Onondaga v New York State Public Employment Relations Board, supra) or the provision of municipal vehicles to certain employees and a mileage allowance for employees using personal vehicles (County of Rockland Department of Social Services v Rockland County Unit Local 844, Civil Service Employees Association, 140 AD2d 441, 528 NYS2d 142) have been determined to be terms and conditions of employment for purposes of section 201(4).

We believe the payment of a flat monthly allowance for the use of a municipal official's privately-owned automobile on official business similarly has a material relationship to the conditions of employment and provides an economic benefit to the employee. Moreover, there is no plain and clear prohibition against provision of a flat monthly automobile allowance (see 1983 Opns St Comp No. 83-68, p 78). Accordingly, it is our opinion that the Town of Fallsburg, pursuant to the provisions of chapter 791 of the Laws of 1972, may agree to pay the town manager a flat monthly fee as an allowance for use of his own automobile on official business as part of the terms and conditions of the appointment of the manager.

We express no opinion as to the treatment of this allowance for purposes of federal or state income tax liability, social security contributions and computation of final average salary for purposes of the New York State and Local Employees Retirement Systems.

October 20, 1992
Bernard Silverman, Esq., Town Attorney
Town of Fallsburg