Opinion 2000 - 23


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 of additional amount received by other than next ranking subordinate)

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (entitlement to salary increase by police chief of additional amount received by other than next ranking subordinate)

WORDS AND PHRASES -- "Highest Ranking Subordinate" (for purposes of General Municipal Law 207-m)

GENERAL MUNICIPAL LAW 207-m: If a sergeant, who is the highest ranking subordinate police officer to the chief and who is a member of a negotiating unit, receives a 4% pay increase, and other officers in the bargaining unit receive a 4% increase plus an additional amount, the police chief is entitled only to the 4% increase pursuant to General Municipal Law 207-m.

We are in receipt of your letter concerning the entitlement to a salary increase by a village chief of police pursuant to General Municipal Law 207-m. You indicate that the village recently negotiated a 4% salary increase for all members of the police officers' bargaining unit, plus an additional $2,673 pay increase for those members classified as "investigators." You state that the position of sergeant is the "highest ranking subordinate police officer" who is a member of the bargaining unit, and indicate that the sergeant is not considered to be an "investigator." We are informed that after these pay increases, the investigators' base pay will exceed that of the sergeant, but not that of the chief. You ask whether the chief is entitled to both the 4% increase and the additional $2,673 provided for "investigators."

General Municipal Law 207-m(1) provides, in pertinent part, as follows:

whenever the base salary or other compensation 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, as defined in subdivision two of this section, of the permanent full-time head of the police department shall be increased by at least the same dollar amount of the base salary increase received by such next subordinate police officer, and the other compensation, as defined in subdivision two of this section, of the permanent full-time head of the police department shall be increased to the same extent and with the same conditions as the other
compensation received by the next subordinate police officer in the event that such subordinate officer's other compensation is increased. The provisions of this section shall not apply to any head of a police department who is a member of a collective negotiating unit established pursuant to article fourteen of the civil service law (emphasis added).

As a rule, where words of a statute are clear and unambiguous, they should be construed literally (see, e.g., Shoreham-Wading River Central School District v Town of Brookhaven, 107 AD2d 219, 486 NYS2d 277 app dsmd 65 NY2d 990, 494 NYS2d 299; McKinney's Statutes 94; 1995 Opns St Comp No. 95-11, p 24). In this instance, section 207-m, read literally, requires an increase in the base salary or other compensation of a covered police chief only if the base salary or other compensation of the permanent full-time police officer who is a member of a negotiating unit and is the "highest ranking subordinate" or "next subordinate officer" to the chief is increased. In the absence of any contrary indication in the statute, we believe the phrases "highest ranking subordinate" and "next subordinate officer" refer to the official position or standing of the officer in the police department chain of command, in relation to the chief (see, e.g., Black's Law Dictionary, Seventh Ed., page 1266; Winspant v Kreinheder, 197 AD 887, 189 NYS 767; In re Weaver, 72 Misc 438, 131 NYS 144).

There is nothing on the face of section 207-m to suggest that a chief is entitled to increases granted to members of a negotiating unit who are other than the "highest" ranking subordinate or "next" subordinate officer to the chief. Moreover, there is no requirement in section 207-m that the next subordinate officer to the chief receive an increase in compensation commensurate with any increase received by other subordinate officers (1992 Opns St Comp No. 92-29, p 26), which in turn would cause the chief's salary to be increased (compare 1986 Opns St Comp No. 86-23, p 39, concerning the creation of a new highest ranking subordinate position).

The holding in Murphy v Village of Dolgeville, 87 NY2d 883, 639 NYS2d 1006, supports this conclusion. In that case, a chief had received pay increases each time the base salary of the highest ranking subordinate position was increased, even though the position was vacant when the salary increase were instituted. When the position of next ranking subordinate was filled by an officer who had risen through the ranks of the department, the chief argued that he was also entitled to additional increases equal to the sum of those received by the officer as he rose through the ranks. The court disagreed, explaining that section 207-m applies only to increases for the highest ranking subordinate position and not to other increases.

Finally, we are aware that, in a proper case, the literal language of a statute is not controlling if the plain intent and purpose of the statute would otherwise be defeated or frustrated (see, gen., McKinney's Statutes 111). In this regard, we have examined the legislative history of section 207-m and note that section 207-m has been generally characterized as addressing salary compression "among the top ranks" of police departments (Memorandum in Support of S. 3414/A. 7913 of 1977, NYS Association of Chiefs of Police, Inc., July 11, 1977) or between chiefs and their "subordinates" (Sponsor's Memorandum in Support of S. 2343 of 1999; Sponsor's Memorandum in Support of A. 7913 of 1977; see also Opn No. 86-23, supra; 1984 Opns St Comp No. 84-20, p 26; Murphy, supra). On the other hand, some of these same bill jacket documents, when summarizing section 207-m, expressly state that the statute provides for increases for a police chief based on increases received by the "police officer immediately subordinate to the chief" (Sponsors' Memoranda in Support of S. 2343 of 1999 and A. 7913 of 1977). This latter description of section 207-m supports our conclusion that only the increases for the sergeant, in the instant case, are relevant. Since the legislative history is inconclusive, it is not clear that the intent of section 207-m would be defeated or frustrated if the statute is interpreted according to its express language.

Accordingly, it is our opinion that, if a sergeant, who is the highest ranking subordinate police officer and who is a member of a negotiating unit, receives a 4% pay increase, and other officers in the bargaining unit receive a 4% increase plus an additional amount, the police chief is entitled only to the 4% increase pursuant to General Municipal Law 207-m.

December 20, 2000

Arthur B. Williams, Esq., Village Attorney
Village of Newark