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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (applicability of General Municipal Law, §207-m to salary of deputy police commissioner); (salary of individual filling vacancy in office of police commissioner)
POLICE AND POLICE PROTECTION -- Police Commissioner (applicability of General Municipal Law, §207-m to salary of deputy commissioner); (salary of individual filling vacancy in office of police commissioner)

GENERAL MUNICIPAL LAW, §207-m: Where the police commissioner is the head of the police department, an individual appointed to fill a vacancy in the office of commissioner is entitled to at least the salary paid to his or her predecessor. A deputy police commissioner is not entitled to salary increases pursuant to General Municipal Law, §207-m.

This is in reply to your question concerning the application of General Municipal Law, §207-m. You state that the city has a police department consisting of a commissioner, deputy commissioner and a uniformed force. The commissioner, who for purposes of this inquiry we assume is the head of the police department, is not a member of a collective bargaining unit. You ask whether, under section 207-m, a deputy commissioner who, upon the death of the commissioner, is appointed to fill the vacancy in the office of commissioner, must receive the same salary as the previous commissioner, and whether the individual appointed to fill the vacated deputy position is entitled by section 207-m to receive the same salary as the previous deputy. You also ask whether a deputy commissioner is entitled to pay increases equal to highest ranking subordinate police officer in a collective bargaining unit pursuant to section 207-m.

General Municipal Law, §207-m contains the provisions of law governing minimum salary increases for the heads of municipal police departments who are not members of a collective bargaining unit. That section provides, in pertinent part, that "whenever the base salary 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 increase received by such next subordinate police officer". (emphasis added).

As noted in previous opinions of this Office, the legislative intent of section 207-m was to avert a perceived trend toward salary compression of the heads of police departments who were not in negotiating units. As a result of collective bargaining agreements which covered the highest ranking subordinates of the heads of the departments, but not the department heads themselves, it was felt that an undesirable situation was being created in many police departments across the State whereby subordinates within collective bargaining units were earning the same or nearly the same as their department heads. Section 207-m was intended to eliminate this situation by statutorily requiring that heads of police departments receive at least the same dollar amount of any increase in base salary granted to their highest ranking subordinates in a collective bargaining unit (see 1991 Opns St Comp No. 91-35, p 106; 1986 Opns St Comp No. 86-23, p 39; 1984 Opns St Comp No. 84-20, p 26).

By its literal terms, section 207-m requires only that the salary of the permanent full-time department head be increased when, and in at least the same amount as, the base salary of the permanent highest ranking subordinate in a negotiating unit is increased. As noted, however, a primary purpose of section 207-m was to avoid situations where subordinates within the collective bargaining units were earning the same or nearly the same as their department heads. The statute also appears to be intended to assure that a minimum salary differential be retained between the permanent full-time head and the highest ranking subordinate within a collective bargaining unit. Thus, in 1990 Atty Gen Opn No. I 90-81, the Attorney General concluded that a deputy chief, upon being permanently appointed to the position of chief, was entitled to a salary at least equal to that paid to his or her predecessor. The Attorney General observed that, if the individual appointed to fill the vacancy in the office of chief were not to receive at least the same salary as his or her predecessor in office, the very type of salary compression sought to be avoided by section 207-m would occur. We concur with the opinion of the Attorney General and, therefore, conclude that the newly-appointed commissioner should receive at least the same salary as the previous commissioner.

With regard to the applicability of section 207-m to the deputy commissioner, it is clear from both the language of section 207-m quoted above and the legislative intent that only the permanent full-time head of the police department is entitled to a salary increase in at least the same amount as that received by the highest ranking subordinate who is a member of a bargaining unit. Section 207-m has no application to a deputy or any police department official other than the permanent full-time head of the police department. Therefore, the deputy commissioner would not be entitled to any salary increases pursuant to that statute. Further, section 207-m does not require the salary of the newly-appointed deputy commissioner to be at least equal to that of the previous deputy commissioner.

October 5, 1992
David Avstreih, Esq., Corporation Counsel
City of Mount Vernon