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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FIRE PROTECTION AND PREVENTION -- Disability Benefits (entitlement of paid firefighters to salary increments or steps based on longevity and to holiday pay); (employment restrictions)

GENERAL MUNICIPAL LAW, §207-a(2), (6): A disabled retired firefighter receiving payments pursuant to General Municipal Law, §207-a(2) is entitled to longevity salary increments or steps, but not to holiday pay. A firefighter receiving payments pursuant to section 207-a(2) is subject to the employment restrictions in section 207-a(6).

You ask whether a disabled firefighter receiving payments pursuant to General Municipal Law, §207-a(2) is entitled under the statute to holiday pay and to salary increments or steps based on longevity. You also ask whether a disabled retired firefighter receiving such payments is subject to any restrictions on employment. For purposes of this inquiry, we assume that the salary for a firefighter's grade or title is structured so as to consist of a minimum salary plus a series of "increments or steps" and that the longevity increments or steps are additional amounts added permanently to the minimum salary upon service for a prescribed period of time in the grade or title (see, e.g., Civil Service Law, §130[1]; compare Civil Service Law, §130[3]).

General Municipal Law, §207-a(1) requires a city (other than New York City), town, village or fire district to pay to a paid firefighter who is disabled as a result of injury or sickness incurred or resulting from the performance of duty the full amount of his or her regular salary or wages until the disability ceases. Section 207-a(2), as added by chapter 965 of the Laws of 1977, requires payment of the full amount of regular salary or wages to be discontinued with respect to any firefighter who is permanently disabled as a result of such injury or sickness if the firefighter is granted an accidental disability retirement allowance (see Retirement and Social Security Law, §363), a retirement for disability incurred in performance of duty allowance (see Retirement and Social Security Law, §363-c) or a similar accidental disability pension. In that case, however, section §207-a(2) requires the municipality or fire district which employs the firefighter to continue to pay the difference between the amount received under such allowance or pension and the amount of the firefighter's regular salary or wages until such time as the firefighter attains mandatory service retirement age or attains the age or performs the period of service specified by applicable law for the termination of his or her service. Therefore, section 207-a(2) requires payment of longevity increments or steps and holiday pay only if these items are considered to be "regular salary or wages".

The phrase "regular salary or wages" has been construed by the courts to refer to "base salary" (see Benson v County of Nassau, 137 AD2d 642, 524 NYS2d 733, lv denied 72 NY2d 809, 534 NYS2d 666, construing identical language in General Municipal Law, §207-c relating to police officers), that is, the fixed cash compensation periodically paid for regular work or services (see Phaneuf v City of Plattsburgh, 84 Misc 2d 70, 376 NYS2d 781, affd 50 AD2d 614, 375 NYS2d 500, lv denied 38 NY2d 1004, 384 NYS2d 441). Further, it is well established that the phrase "regular salary or wages" also includes subsequent across-the-board increases in salary given to those in the same grade or title held by the disabled firefighter at the time of injury (see Matter of Barber v Lupton, 282 App Div 1008, 125 NYS2d 672, affd 307 NY 770; Drahos v Village of Johnson City, 80 AD2d 106, 438 NYS2d 394; Matter of Birmingham v Mirrington, 284 App Div 721, 134 NYS2d 456).

Based on Birmingham, supra, this Office has previously concluded that, with respect to entitlement to salary increases under section 207-a(1), a disabled firefighter should be treated as if he or she were working. Therefore, although longevity salary increments or steps accrue by virtue of length of service in grade or title, we have expressed the opinion that a disabled firefighter is also entitled to receive salary increases based on longevity (1979 Opns St Comp No. 79-80, unreported; see also Ellis v Fire Chief of City of Ithaca, 29 Misc 2d 37, 215 NYS2d 520, pertaining to "longevity merit increases"; 15 Opns St Comp No. 1959, p 421; Chalachan v City of Binghamton, 81 AD2d 973, 439 NYS2d 754, affd 55 NY2d 989, 449 NYS2d 187).

We believe this conclusion also applies to an individual receiving the difference between full salary or wages and a disability retirement allowance or pension pursuant to section 207-a(2). In Mashnouk v Miles, 55 NY2d 80, 447 NYS2d 889, the Court of Appeals held that the amount payable to a disabled firefighter pursuant to section 207-a(2) includes prospective negotiated salary increases given to active firefighters of the same grade or title after the award of a disability allowance or pension. In reaching its conclusion, the Court stated the 1977 amendment adding section 207-a(2) was intended to affect only the source and not the amount of payments to disabled firefighters. We also note that the courts have declined to construe section 207-a(1) as establishing one category of benefits payable to disabled firefighters who presumably will return to their employment and section 207-a(2) as establishing a second distinct category of benefits for disabled retirees (see Harzinski v Village of Endicott, 57 NY2d 614, 454 NYS2d 54, modifying 83 AD2d 305, 445 NYS2d 247; see also Mashnouk, supra). Therefore, it is our opinion that a disabled retiree receiving payments pursuant to section 207-a(2) is also entitled to accrue longevity salary increments or steps after the award of a disability allowance or pension (1982 Opns St Comp No. 82-316, p 404; see also Smerek v Christiansen, 111 Misc 2d 580, 444 NYS2d 860).

As to holiday pay, this Office has previously concluded that the phrase "regular salary or wages" does not include holiday pay because holiday pay is additional compensation for those firefighters who are actually required to work holidays (see 1983 Opns St Comp No. 83-161, p 203; 34 Opns St Comp 1978, p 170; 1972 Opns St Comp No. 72-465, unreported; see also L 1968 ch 1011, §3 as amended [McKinney's Unconsolidated Laws, §1012-a]). We recognize that in Smerek, supra, the court held that the amount payable pursuant to section 207-a(2) should be computed on the basis of a firefighter's base pay plus, among other items, holiday pay. We believe, however, that this portion of the holding in Smerek is against the weight of authority which is to the effect that a disabled firefighter's statutory entitlement to "regular salary or wages" encompasses "base salary" (see Benson, supra; see also Phaneuf, supra) but not "fringe benefits" (see Geremski v Department of Fire of City of Syracuse, 78 Misc 2d 555, 357 NYS2d 975, affd 49 AD2d 1013, 375 NYS2d 500; see also Chalachan v City of Binghamton, supra; Phaneuf, supra, [vacation and sick leave accruals]; Benson, supra [night shift differential pay]; 1982 Opns St Comp No. 82-352, p 446 [uniform allowance]).

In so concluding, the courts have reasoned that the terms "salary" and "wages" ordinarily do not encompass fringe benefits (see Phanuef, supra; Geremski, supra) and need not be interpreted to include fringe benefits to achieve the statutory purpose of section 207-a (see Phaneuf, supra). The courts have also reasoned that disabled firefighters do not have to work at all and payment of the cash value of fringe benefits would unfairly discriminate against those actually working (see Chalachan, supra; Phaneuf, supra; see also Benson, supra). We believe this reasoning is equally applicable to holiday pay (see Opn No. 83-161, supra). Therefore, we adhere to our opinion that "regular salary or wages" does not include holiday pay notwithstanding the contrary holding in Smerek, supra.

With respect to your questions regarding restrictions on employment, section 207-a(6) provides, in pertinent part, that any "fireman" receiving payments or benefits pursuant to section 207-a forfeits his entitlement to the same upon engaging in any employment unless the employment is "light duty" assigned pursuant to section 207-a(3) or the result of a transfer to another position pursuant to section 207-a(5). Section 207-a does not define the term "fireman" but does define the term "paid fireman" as "any paid officer or member of an organized fire company or fire department ..." (General Municipal Law, §207-a[1]).

Section 207-a(2), as noted, generally provides that if a permanently disabled "fireman" is granted an accidental disability or performance of duty allowance or similar disability pension, such "fireman" must continue to receive from the municipality or fire district "by which he is employed" the difference between the amount received under such allowance or pension and his regular salary or wages. Thus, a person receiving payments pursuant to section 207-a(2) is referred to in that provision as a "fireman". Further, the phrase "by which he is employed" relates to the time of a firefighter's injury (see Matter of Tyler v Gadwood, 195 Misc 674, 89 NYS2d 126, revd on other grounds 279 App Div 1138, 112 NYS2d 890; see also Klonowski v Department of Fire of City of Auburn, 58 NY2d 398, 461 NYS2d 756). Consequently, a person's status as a "fireman" for purposes of section 207-a is fixed as of the date of injury (see Pease v Colucci, 59 AD2d 233, 399 NYS2d 519; see also Klonowski, supra). Therefore, it appears that a person receiving the difference between his or her disability retirement allowance and regular salary or wages under section 207-a(2) is a "fireman" receiving payments pursuant to section 207-a and, as such, subject to the employment restrictions of section 207-a(6).

Our conclusion that the employment restrictions in section 207-a(6) apply to a firefighter receiving payments under section 207-a(2) is consistent with the purpose of subdivision 6 of section 207-a. Section 207-a(6) was added by chapter 965 of the Laws of 1977 as part of a broader effort to reduce the costs imposed by section 207-a on municipalities and fire districts (see 1977 NYS Legislative Annual, p 336). The legislative history indicates that section 207-a(6) was added to "prohibit a disabled fireman collecting a salary from a municipality from engaging in outside employment" (id.; see also Klonowski, supra; Luisi v Department of Fire, 101 Misc 2d 529, 421 NYS2d 338), because "the apparent inequity of permitting disabled men to work at jobs in the private sector while receiving full salary might depress the morale of able bodied firefighters still in service" (see Cook v City of Binghamton, 48 NY2d 323, 329, 422 NYS2d 919, 921). These same considerations would seem to apply to a firefighter receiving the difference between a disability retirement allowance or pension and the full amount of his or her "regular salary or wages" by virtue of section 207-a (cf. Retirement and Social Security Law, §402[b], generally limiting the amount of a disability beneficiary's retirement allowance and private earnings to the amount of his or her "final salary").

July 11, 1991
Peter A. Tulin, Esq., City Attorney
City of Saratoga Springs