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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

CONSTITUTIONAL LAW -- Equal Protection (different contributions for health insurance for newly-elected county supervisors)
INSURANCE -- Health Insurance (different contributions for health insurance for newly-elected county supervisors)
WORDS AND PHRASES -- "Compensation" (for purposes of County Law, §200)

NY STATE CONSTITUTION, ARTICLE I, §11; UNITED STATES CONSTITUTION, AMENDMENT 14; COUNTY LAW, §200: A non-charter county by resolution may provide that county supervisors who take office after a certain date be required to contribute a greater amount for health insurance coverage than those supervisors who were in office prior to such date, as long as the resolution is consistent with equal protection provisions in the State and federal constitutions.

You ask whether a non-charter county may, by resolution, provide that county supervisors who take office after a certain date be required to contribute a greater amount for health insurance coverage than those supervisors who were in office prior to such date. You have expressed a concern that this two tier system for health insurance may violate certain provisions of the County Law relating to the salaries payable to supervisors.

County Law, §200(1) provides in pertinent part:

... The board of supervisors of each county shall have the power from time to time to fix the compensation of its members ... (S)uch compensation shall be an annual salary and shall be in lieu of all fees, charges or compensation for all services rendered to the county. Each supervisor shall be entitled to receive an equal amount ... [Emphasis added]

Therefore, if this section requires that the total compensation, rather than the salary, paid to county supervisors be equal, the proposed enactment would be violative of County Law, §200 because some supervisors would receive greater total compensation than other supervisors.

In a recent opinion interpreting County Law, §205, which contains provisions analogous to section 200 relative to compensation payable to county employees, we stated:

The term 'compensation', for municipal law purposes, generally connotes the total consideration paid to a municipal officer or employee, including both salary or wages and fringe benefits. The term, however, is also often used interchangeably with 'salary' or 'wages' to mean the cash consideration exclusive of fringe benefits, to which an employee is entitled (see 1985 Opns St Comp No. 85-13, p 16; 1984 Opns St Comp No. 84-4, p 4). In this regard, we note that section 205 provides that a county board 'may adopt schedules of compensation and grades with minimum and maximum salaries' and further provides that 'per diem or per hour schedules of compensation may be adopted for those employees not paid on salary basis.' [Emphasis added]. Therefore, based on the express language of section 205, we now conclude that the authority to fix 'compensation' in section 205 is limited to the fixing of salaries and wages to be paid employees and does not constitute authority to provide fringe benefits (cf. County Municipal Law, §207 and General Municipal Law, §92 [vacations and sick leaves], General Municipal Law, §90 [overtime], General Municipal Law, §92-a [health insurance], which specifically authorize counties to provide particular fringe benefits to county employees by resolution). (1987 Opns St Comp No. 87-8, p 13).

Thus, for purposes of County Law, §205, we concluded that the reference to compensation included only salary and wages and did not encompass fringe benefits.

Similarly, we now note that County Law, §200(1) provides that the supervisors' "compensation shall be an annual salary ..." [emphasis added] Additionally, subdivision 2 of section 200 provides that the board " ... in lieu of an annual salary, may be paid a salary for board meetings and per diem compensation for committee work ...", and further provides that "[m]oneys appropriated to pay salaries ... shall continue to be available to pay the compensation of the members of such board ..." [Emphasis added] It is our view, therefore, that the express language of section 200 referring to the board's authority to fix "compensation" applies only to salary, and not to fringe benefits, such as health insurance.

Accordingly, in our opinion, section 200 only requires that the salary of supervisors be equal. Moreover, this section neither prohibits nor authorizes a county from offering fringe benefits to its supervisors (see, e.g., Opn No. 87-8, supra). We are, therefore, of the opinion that, although newly-elected supervisors may have to contribute more for health insurance than previously elected ones, such newly-elected supervisors are not receiving lesser "compensation" within the meaning and intent of section 200.

In concluding that newly-elected supervisors may be required to contribute more for health insurance than previously elected supervisors without contravening County Law, §200, we note that any resolution providing such disparate treatment must be consistent with constitutional equal protection provisions guarantees (U.S. Const, 14th Amd; NY Const, art 1, §11; see also Internal Revenue Code, §89, which, among other things, requires the gross income of "highly compensated employees", who participate in a "discriminatory employee benefit plan", to include an amount equal to the employee's "excess benefit" under the plan). Equal protection provisions have been applied to controversies involving employment compensation (Shattenkirk v Finnerty, 97 AD2d 51, 471 NYS2d 149, affd 62 NY2d 949, 497 NYS2d 215, 468 NE2d 53) and benefits (Poggi v City of New York, 109 AD2d 265, 491 NYS2d 331, affd 67 NY2d 794, 501 NYS2d 324, 492 NE2d 397). When so applied, the applicable standard, in the absence of an enactment interfering with the exercise of a fundamental right or the existence of a suspect class (see, Poggi v City of New York, supra), is the existence of a rational basis for different treatment of similarly situated persons (DeCastro v Ortiz, 119 Misc 2d 777, 464 NYS2d 619), rather than the more stringent strict scrutiny test.

Each situation must, of course, be examined upon its individual facts and we cannot speculate upon the basis for the classification suggested in your inquiry. Generally, however, legislative determinations as to the existence of a rational basis for separate classifications will not be disturbed by the courts if there is any discernible basis upon which the determination can be upheld (Maresca v Cuomo, 64 NY2d 242, 485 NYS2d 724, 475 NE2d 95, app dism 106 S Ct 34, 474 US 802, 88 L Ed 2d 28).

Here, it is proposed that the differing health insurance premiums be fixed by a resolution of the legislature. Therefore, if the county has a rational basis for classifying supervisors for purposes of the amounts paid for health insurance by virtue of when they were initially elected, even though they may commence their current terms of office at the same time, it may be concluded that the legislative act of fixing such contributions will withstand judicial challenge (see Matter of Bartlett v Morgan, 42 AD2d 435; 348 NYS2d 418).

July 21, 1989
John W. Park, Esq., County Attorney
County of Ontario