Opinion 94 - 31


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

 

COLLECTIVE BARGAINING AGREEMENTS -- Vacations (annual cash payment in lieu of)

PUBLIC OFFICERS AND EMPLOYEES -- Vacations (annual cash payment in lieu of)

CIVIL SERVICE LAW, 200, et seq.; GENERAL MUNICIPAL LAW, 92: It is permissible to provide in a collective bargaining agreement between a village and its employees for the annual exchange of cash for one week of vacation credit accumulated during the year.

You ask whether a village and the union representing its employees may provide, in a collective bargaining agreement, for employees, annually, to receive cash in exchange for one week of vacation credit accrued during that year.

Collective bargaining between public employers and employees is authorized by article 14 of the Civil Service Law (200, et seq.; the "Taylor Law"). It is well-established that, pursuant to this authority, an item may be included in a collective bargaining agreement, whether or not it involves a "term or condition of employment" which is subject to mandatory bargaining, unless there is a plain and clear prohibition in the State or federal constitution, a statute or decisional law, or in restrictive public policy, such as that embodied by certain "statutory imperatives" (Board of Education v Yonkers Federation of Teachers, 40 NY2d 268, 386 NYS2d 657; UFSD v NYQUIST, 38 NY2d 137, 379 NYS2d 10; Board of Education v Associated Teachers of Huntington, Inc., 30 NY2d 122, 331 NYS2d 17; cf. Board of Education v Ramapo Teachers Association, 153 Misc 2d 834, 586 NYS2d 852 aff 200 AD2d 62, 611 NYS2d 962 lv den October 25, 1994).

There is no "plain and clear" statutory, constitutional or common law prohibition against permitting employees to annually exchange a portion of their vacation credits accrued during the year for the cash value thereof (see 1979 Opns St Comp No. 79-401, unreported). As to whether there is a "statutory imperative" which would preclude such a collective bargaining agreement provision, we note that General Municipal Law, 92 expressly authorizes the governing board of a municipality to provide, by resolution, ordinance or local law, for the cash payment of the monetary value of accumulated, unused vacation time "at the time of separation from service or in the case of death in service". However, since section 92 merely authorizes cash payment upon separation from service or death, it does not, in our view, represent a statutory imperative which would preclude collective bargaining for cash payments at other times (id.; see Teachers Association v Board of Education, 34 AD2d 351, 312 NYS2d 252; Coates v City of New York, 76 Misc 2d 769, 351 NYS2d 906).

Accordingly, in our opinion, it is permissible to provide in a collective bargaining agreement between a village and its employees for the annual exchange of cash for one week of vacation credit accumulated during the year.

December 31, 1994
Meredith Capobianco, Village Administrator
Village of Massapequa Park