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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Disability Benefits (termination of police department)
GENERAL MUNICIPAL LAW, §207-c; VILLAGE LAW, §8-800: A village which abolishes its police department remains obligated to pay benefits in accordance with General Municipal Law, §207-c to police officers injured in the line of duty prior to the abolition of the department.
You ask whether a village which abolishes its police department is still required to pay a police officer injured in the line of duty his or her full salary or wages pursuant to General Municipal Law, §207-c.
In 1988 Opns St Comp No. 88-27, p 49, copy enclosed, we answered a similar question in connection with an injured paid firefighter receiving his full salary pursuant to General Municipal Law, §207-a. Section 207-a contains provisions applicable to paid firefighters injured in the line of duty which are analogous to those in section 207-c for police officers.
In that opinion, we concluded that the rights of a firefighter who is employed in a village fire department which is terminated after the firefighter is disabled remain the same under section 207-a, as if the department had continued in existence, unless the village and firefighter enter into a voluntary agreement to the contrary. We reached this conclusion based, in part, on the case of Pease v Colucci, 59 AD2d 233, 399 NYS2d 519, in which it was held that a firefighter who was disabled while holding the rank of lieutenant was entitled to continue to receive his full salary as lieutenant, even after the municipality abolished several lieutenants' positions. The court in Pease, supra, stated that the rights of a disabled firefighter under section 207-a vest at the moment of disability and may not thereafter be divested by other than the firefighter's own act.
As was discussed in the enclosed opinion, Pease, supra, pre-dated a 1977 amendment to section 207-a (L 1977, ch 965) which, inter alia, permitted municipalities to apply for an accidental disability retirement, a retirement for disability incurred in performance of duty, or similar accidental disability pension, if a firefighter does not apply, and to terminate salary payments to disabled firefighters who reach mandatory retirement age (General Municipal Law, §207-a,). In our opinion, however, this amendment did not terminate or modify the rights of disabled firefighters whose jobs are eliminated subsequent to the occurrence of their disability or allow municipalities to divest themselves of their obligation to firefighters, except to the extent provided in section 207-a.
The provisions of section 207-c are, as noted, analogous to those of section 207-a, as amended by L 1977, ch 965. General Municipal Law, §207-c(2),(5), like General Municipal Law, §207-a, authorizes a municipality to apply for an accidental disability retirement or retirement for disability incurred in the performance of duty allowance and provides for termination of full salary or wages upon obtaining mandatory retirement age. As is the case with firefighters under section 207-a, it has been held that a police officer sustaining a service-related injury is statutorily vested with benefits under section 207-c which cannot be divested by other than his own acts (Ross v Town Board of Town of Ramapo, 78 AD2d 656, 432 NYS2d 229; Connors v Bowles, 63 AD2d 956, 405 NYS2d 762, 45 NY2d 832, 409 NYS2d 212). Accordingly, we believe that the conclusion in Opn No. 88-27, supra, applies equally in the case of village police officers and that a village which abolishes its police department remains obligated to pay benefits in accordance with General Municipal Law, §207-c to police officers who were injured in the line of duty prior to the abolition of the department.
Of course, the village's obligation to pay salary or wages could be discontinued pursuant to General Municipal Law, §207-c upon the occurrence of certain events. In this regard, we note that, unlike the requirements of General Municipal Law, §207-a, municipalities are not required to pay police officers receiving an accidental disability retirement allowance or a retirement for disability incurred in performance of duty allowance the difference between their full salary and their allowance. Thus, the village's obligation to pay salary and wages terminates if the police officer is granted an accidental disability retirement allowance, a retirement for disability incurred in the performance of duty allowance or similar accidental disability allowance either upon his or her own application or upon application made by the village (General Municipal Law, §207-c) or if the officer reaches mandatory service retirement age, although in either case the village would still be responsible to pay for medical treatment or hospital care necessitated by the injury (General Municipal Law, §207-a; see also General Municipal Law, §207-c, relative to termination of medical expenses and salary and wages upon refusal to accept medical treatment or to permit medical inspections; General Municipal Law, §207-c relative to discontinuance of full salary or wages upon refusal to accept certain types of light duty).
December 31, 1990
Rochelle J. Auslander, Esq.
Village of Nyack