Opinion 2005 - 5


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 increase in compensation when employer contribution to retirement system for the next subordinate officer is increased)

GENERAL MUNICIPAL LAW §207-m: If a village’s employer contribution to the New York State and Local Police and Fire Retirement System for the plan of which the next subordinate police officer in the village police department is a member is increased, but the benefits under that plan are not increased, the village police chief is not entitled to any increase in compensation under section 207-m of the General Municipal Law.

This is in reply to your inquiry concerning the requirements for compensating a village police chief under General Municipal Law §207-m. You indicate that the police chief and the police sergeant, who is the highest ranking subordinate in the village police department in a bargaining unit (the “next subordinate officer”), are in different plans in the New York State and Local Police and Fire Retirement System (the “Retirement System”) under the Retirement and Social Security Law. You further indicate that the plans to which each belongs have remained the same, but the amount of the contribution to the System made by the village for the sergeant’s plan increased and is currently 3.5% higher than the amount paid for the police chief’s plan. You ask whether, pursuant to section 207-m, the police chief is entitled to a monetary payment in the amount of the additional retirement contributions paid for the sergeant’s plan.

General Municipal Law §207-m, as amended by chapters 404 and 443 of the Laws of 1999, 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 … 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 … (emphasis added).

Section 207-m(2) defines “other compensation” for this purpose, with certain exceptions, as “all other forms of benefits which are credited to employees as a term of employment, which shall specifically include, but not be limited to, employer contribution to or payments of insurance or welfare benefits and employer contributions to pension or annuity funds” (emphasis added).

Section 207-m was originally enacted “to prevent the compression of salaries as between police department heads who are not members of negotiating units, and their subordinates who are” (Murphy v Dolgeville, 87 NY2d 883, 639 NYS2d 1006; see also 1995 Opns St Comp No. 95-31, p 63; 1991 Opns St Comp No. 91-35, p 106). The 1999 amendments to section 207-m added the references to, and definition of, “other compensation”. These provisions were “[b]ased on the same parity logic which supported” the original salary provisions, in order to cover “fringe benefits”, that “have become an increasingly important component of the overall unionized police officer compensation package.” (Bill Jacket, L1999, ch 443, Budget Report on S. 6105; Bill Jacket, L1999, ch 404, Introducer’s Memorandum in Support, S.2343/A.683).

Based on the express provisions of section 207-m, in order to trigger an entitlement to “other compensation” under this section, there must be an increase in a qualifying “benefit” that is “credited” to the “next subordinate police officer” as a term of employment. In the instant situation, there has been no change in the retirement benefit accruing to the sergeant. The New York State and Local Police and Fire Retirement System is a “defined benefit” plan, which provides fixed pension benefits funded by annual employer contributions (see, e.g., 2004 Opns Atty Gen 2; 1991 Opns Atty Gen 8).1 While the employer contribution required to be paid to fund benefits for employees in a particular plan within the System may fluctuate from year to year based on a number of factors, including investment experience, the benefit that is to be received by the member (the sergeant, in this case) has remained the same. Thus, the increase in employer contribution does not result in a concomitant increase in retirement benefits to the sergeant and the protections provided to the police chief in section 207-m, in our view, do not apply.

In reaching this conclusion, we are mindful that, in defining “other compensation”, section 207-m specifically references “employer contributions to pension … funds”. However, the reference to “employer contributions” is qualified by the requirement that it constitute an increase in “benefits … credited to employees”. Therefore, only an employer contribution to a pension fund that causes an increase in benefits falls within the purview of section 207-m. Since employer contributions under the System, as noted, do not increase the defined benefits to the employee under the plan within the System, it is our opinion that they cannot be the type of contribution intended by section 207-m.

It is a well-established rule of statutory construction that, whenever possible, meaning and effect should be given to all statutory language, and words are not to be rejected as superfluous (see, e.g., McKinney’s Statutes §231; Orange and Rockland Utilities v Amerada Hess, 59 AD2d 110, 397 NYS2d 814; Direen v State Tax Commission, 46 AD2d 191, 361 NYS2d 736). Therefore, if possible, some import should be given to the reference to “employer contributions to pension … funds”. In this regard, we note that local governments generally are restricted from providing additional retirement benefits beyond those provided for by a public retirement system. Section 113(a) of the Retirement and Social Security Law prohibits municipalities from creating retirement systems after April 12, 1922, and section 470 of the Retirement and Social Security Law prohibits changes negotiated between public employers and public employees with respect to any benefit provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees or payment to retirees or their beneficiaries, where such changes would require an act of the State Legislature (see also Civil Service Law §201[4]). Nonetheless, it is possible that the above-quoted provision in section 207-m is intended to allow for a local government that, by special act, is granted authority to bargain for a defined contribution pension benefit or that the word “pension” in section 207-m was not intended to be construed literally to apply to only retirement benefits and could apply to certain other post-employment benefits (see, e.g., 2000 Opns St Comp No. 2000-4, p 10).

Moreover, even if the reference to “employer contributions to pension … funds” cannot be reconciled with the remainder of the statute, it would not alter our conclusion. It is well settled that, although all provisions of a statute should be reconciled if possible, if there is an irreconcilable conflict, the paramount intention of the statute must be preserved, even if this may lead to rejection of some secondary provisions (see, gen., McKinney’s Statutes §98[b]). To read section 207-m as applying to employer contributions to the Retirement System would not be in furtherance of the paramount purpose of section 207-m, which is to prevent compression of compensation between the police chief and the next subordinate police officer. As noted above, such contributions do not in any way increase the retirement benefits of the next subordinate police officer and, therefore, cause no compression of compensation between the police chief and the next subordinate police officer.

Accordingly, if a village’s employer contribution to the New York State and Local Police and Fire Retirement System for the plan of which the next subordinate police officer in the village police department is a member is increased, but the benefits under that plan are not increased, the village police chief is not entitled to any increase in compensation under section 207-m of the General Municipal Law.

November 8, 2005

Samuel L. Drayo, Jr., Esq., Village Attorney
Village of Fredonia

1 A “defined benefit” pension plan is distinguishable from a “defined contribution” plan, in which generally an employer makes definite contribution into a fund, but there is no definite amount payable to the employee upon retirement (see, e.g., General Municipal Law §215[3]).