Opinion 96 - 9


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 salary increase pursuant to General Municipal Law, §207-m when collective bargaining agreement provides for signing incentive for highest ranking subordinate)

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (signing incentive as constituting base salary for purposes of General Municipal Law, §207-m)

WORDS AND PHRASES -- "Base Salary" (for purposes of General Municipal Law, §207-m)

GENERAL MUNICIPAL LAW, §207-m: Whether a signing incentive provided for by the terms of a collective bargaining agreement constitutes an addition to the base salary of the permanent full-time police officer who is a member of a bargaining unit and is the highest ranking subordinate to the chief of police so as to entitle the chief to an increase in salary depends on the intent of the parties to the collective bargaining agreement.

You ask whether a "signing incentive" paid to each lieutenant in the village police department pursuant to a collective bargaining agreement must be calculated as part of the "base salary" of those officers pursuant to General Municipal Law, §207-m. For purposes of this opinion, we assume a lieutenant is the permanent full-time police officer who is a member of a bargaining unit and who is the highest ranking subordinate to the chief.

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 term "base salary" is not defined in section 207-m. However, there are a number of cases interpreting the phrase "regular salary or wages" as used in General Municipal Law, §§207-a and 207-c in connection with payments to certain injured paid firefighters and police officers. The courts have likened the phrase "regular salary or wages" to "base salary" (Benson v County of Nassau, 137 AD2d 642, 524 NYS2d 733, lv denied 72 NY2d 809, 534 NYS2d 666) and generally have held that it 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; see also Aitken v City of Mt. Vernon, 200 AD2d 667, 606 NYS2d 755; 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 v McGuire, 100 Misc 2d 834, 420 NYS2d 248; Christian v City of Ontario, 92 Misc 2d 51, 399 NYS2d 379; 1990 Opns St Comp No. 90-44, p 99). Applying the above cases, we have previously concluded that a police chief is not entitled to receive increases in fringe benefits pursuant to section 207-m (1992 Opns St Comp No. 92-44, p 112).

In this instance, if the signing incentive constitutes an addition to the fixed cash compensation to be paid periodically, it would be part of the base salary and the chief would be entitled to a salary increase of at least the same amount pursuant to section 207-m. On the other hand, if the payment represents one-time compensation in the nature of a bonus or other fringe benefit, there is no entitlement under section 207-m. The particular nature of the payment is dependant on the intent of the parties to the collective bargaining agreement (see Caruso v Ward, 146 AD2d 22, 539 NYS2d 313).(1) Since the advisory opinions of this Office are intended to assist local officials in understanding the provisions of the law that have general applicability to the municipalities of this State, it is our policy generally not to interpret local contracts when rendering opinions to local government officials. Consistent with this policy, we believe that the meaning and intent of the collective bargaining agreement provision relating to the signing incentive must be determined, in the first instance, by the parties to the agreement or, if applicable, in accordance with the dispute resolution procedure prescribed in the agreement.

May 13, 1996
John J. Jablonski, Chief of Police
Village of Hamburg

1. In Caruso, supra, the court rejected the assertion that a lump-sum payment, incorporated into a stipulation settlement resolving a labor dispute, was salary for purposes of General Municipal Law, §207-i, relating to supplemental retirement benefits for certain police officers. The court reviewed the stipulation settlement to ascertain the intent of the parties, noting "[a] stipulation is a contract between the parties and is, therefore, governed by the principles of contract law for interpretation and effect. ... A contract must be interpreted so as to give effect to the intentions of the parties as expressed in the unequivocal language employed". Based on specific language contained in the stipulation settlement, the court found the lump-sum payments were not intended as salary, but rather were intended by the parties as a single payment as final disposition of the disagreement or differences between the parties; in effect, consideration for the release and extinguishment of claims.