Opinion 2007 - 3


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 “other compensation” when no increase on or after August 2, 1999)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (entitlement of police chief to “other compensation” when no increase on or after August 2, 1999)

GENERAL MUNICIPAL LAW §207-m: A village chief of police is not entitled to benefits under General Municipal Law §207-m when the “other compensation” provided to the highest ranking subordinate in the village police department who is in a bargaining unit has not been increased on or after August 2, 1999.

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 sergeant, who is the highest ranking subordinate in the village police department and is in a bargaining unit (the “next subordinate officer”), is entitled to reimbursement by the village, under the terms of his collective bargaining agreement, for tuition expenses following the successful completion of certain criminal justice courses.1 According to the information provided, this collective bargaining provision has been in effect without change from June 1, 1997 through May 31, 2008. You ask whether, pursuant to section 207-m, the police chief is also entitled to reimbursement for criminal justice classes.

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”. For purposes of this opinion, we have assumed, arguendo, that the tuition reimbursement benefit would constitute “other compensation” within the meaning of section 207-m, but for the reasons set forth below, conclude that section 207-m would not apply in this instance.

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 2005 Opns St Comp No. 2005-5, p 13; 1995 Opns St Comp No. 95-31, p 63; 1991 Opns St Comp No. 91-35, p 106). Prior to the 1999 amendments, which became effective on August 2, 1999, a police chief’s entitlement under section 207-m was triggered only when the “base salary” of the highest ranking subordinate in a negotiating unit was “increased”. The 1999 amendments to section 207-m expanded the scope of the statute to cover “increases” in “other compensation”, as defined in the amended section 207-m, as well as “base salary”. These amendments 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, L 1999, ch 443, Budget Report on S.6105; Bill Jacket, L 1999, ch 404, Introducer’s Memorandum in Support, S.2343/A.683).

While the 1999 amendments expanded the coverage of section 207-m to include “other compensation”, they did not alter the prerequisite in the statute that there be an “increase” in order to trigger an entitlement under this section. By its express terms, section 207-m provides that there must be an increase in “other compensation” that is “credited” to the “next subordinate police officer” as a term of employment. Since a police chief’s statutory entitlement to parity for “other compensation” did not commence until the effective date of the 1999 amendments (August 2, 1999), there would have to be an increase in the “other compensation” of the next subordinate officer occurring on or after that date to trigger the statute.

In this regard, we note that it is a general principle that an amendment will have prospective application only, unless the language of the statute clearly indicates a contrary intent (see, gen., McKinney’s Statutes §52). The 1999 amendments became effective on August 2, 1999, and there is nothing on the face of the amendments, or in the Legislative history, to suggest that the Legislature intended to require that police chiefs in their positions on that date time be brought up to parity retroactively for “other compensation” previously credited to the next subordinate officer. Rather, as indicated above, section 207-m, as amended in 1999, still requires, as a prerequisite, that there be an increase in a qualifying benefit in order to trigger the statute. Therefore, in the instant situation, since there has been no increase in the benefit in question to the sergeant subsequent to August 2, 1999, section 207-m is not applicable (see, e.g., Whitman v City of Troy, Supreme Ct, Rensselaer County, October 7, 2005, Ceresia, J.).2

Accordingly, a village chief of police is not entitled to benefits under General Municipal Law §207-m when the “other compensation” provided to the highest ranking subordinate in the village police department who is in a bargaining unit has not been increased on or after August 2, 1999.

March 19, 2007

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

 

1 The sergeant’s collective bargaining agreement provides, in relevant part, as follows: “[i]n the event a member of this unit attends an institute of higher education and takes courses related to the criminal justice field … the village shall reimburse said employee for tuition expenses following the successful completion of the school or training”.

2 The holding in Whitman, supra, is consistent with our conclusion. In that case, the court disallowed payment of a command officer stipend and longevity payments, as well as part of a clothing allowance, to the head of a police department. In reaching its conclusion that the head of the police department was not entitled to additional compensation for these benefits under General Municipal Law §207-m, the court noted that there had been no increase in the command officer stipend or longevity payments made to the next subordinate officer subsequent to 1997 and, similarly, that there had been no increase in the clothing allowance credited to the next subordinate officer from 1997 to 2001.