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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (authority to pay village justice the salary of acting village justice); (retroactive payment); (salary increase for village justice)

VILLAGE JUSTICE -- Acting Justice (appointment mandatory) -- Compensation (authority to increase during term)

STATE CONSTITUTION, ARTICLE VIII, §1; VILLAGE LAW, §§3-300(3), 3-301(2), (3), 5-506(1)(f), 5-508(4), 5-520(3),(4): The salary appropriated for an acting village justice cannot be paid to the village justice. The salary of the village justice may be increased during his term, but not as compensation for services already rendered.

This is in reply to your inquiry concerning the payment of the salary of the acting village justice to the village justice. You state that the village has a single village justice. You also state that the village has had no acting village justice for some time. You ask whether the village justice may be paid the salary budgeted for the acting village justice in addition to his own.

Section 3-301(2) of the Village Law provides that:

"[a]ny village may have the following officers:  a. no more than two village justices, but in the event a village has one justice, it shall also have an acting justice who shall serve when requested by the village justice or in the absence or inability of the village justice to serve." [Emphasis added]

Although your inquiry does not detail the circumstances under which the village was without an acting village justice, we note that section 3-301(2) is mandatory with respect to the position of acting village justice. Therefore, we have expressed the opinion that if a village has only one village justice, it must appoint an acting village justice (31 Opns St Comp, 1975, p 137). Accordingly, it is our opinion that the village should act promptly to fill a vacancy in the position of acting village justice.

With respect to a village justice receiving the salary fixed for the acting justice when there is a vacancy in the acting justice position, it is our opinion that section 3-301(2), by providing that the acting village justice is to serve only when the village justice is unable to do so, clearly contemplates the existence of separate offices held by different officers. It is our opinion, therefore, that since the village justice cannot be appointed to the office of acting village justice, he or she cannot be paid the salary appropriated for the acting village justice.

Although the village justice cannot be paid the acting village justice's salary, the village may increase the salary to be paid to the village justice. The salaries and wages of village officers and employees must be included in the village's tentative budget (Village Law, §5-506[1][f]). After the public hearing on the tentative budget and any revision of the budget, the wages and salaries become fixed at the amounts shown at the time the budget is adopted (Village Law, §5-508[4]). Section 5-520(4) of the Village Law authorizes the board of trustees to adopt resolutions during the fiscal year to create additional appropriations and to increase existing appropriations. Based on this authority, we have concluded that the salaries of elective village officers may be increased during the fiscal year (1981 Opns St Comp No. 81-86, p 87; 1979 Opns St Comp No. 79-413, unreported; 34 Opns St Comp, 1978, p 114). Funds for such an increase may be provided by transfers from the unexpended balance of an appropriation, from the appropriation for contingencies, from unappropriated cash surplus or unanticipated revenues within a fund or by borrowing pursuant to the Local Finance Law (Village Law, §5-520[4]). In this regard, the funds may be made available by a reduction in the salary appropriation for the acting village justice (Village Law, §5-520[3]; 1983 Opns St Comp No. 83-127, p 160).

It should be noted in this regard, however, that article VIII, §1 of the State Constitution prohibits gifts or loans of public moneys to a private individual by a municipal corporation. This provision has been construed to preclude retroactive compensation to municipal officers and employees on the grounds that the retroactive compensation would constitute additional compensation for services already performed (1983 Opns St Comp No. 83-158, p 199). Therefore, additional compensation cannot be provided to the village justice for past services rendered. However, the village may, if it determines that the village justice is, for example, handling a larger caseload than was anticipated at the time his or her salary was fixed, increase the village justice's salary to compensate the justice at a higher rate in the future.

December 12, 1988
Patricia J. Boyd, Village Clerk
Village of Central Square