Opinion 91-39

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Retirement Benefits (waiver of public salary exceeding statutory limit)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (waiver of post-retirement salary - effect on retirement allowance)

CIVIL SERVICE LAW, §150; RETIREMENT AND SOCIAL SECURITY LAW, §212: A village trustee who also serves as a town employee, upon retiring from both positions, may be re-appointed as a trustee without diminution of his or her retirement allowance, subject to the income limitation imposed by Retirement and Social Security Law, §212. If his or her post-retirement salary as trustee would exceed that limitation, the trustee may waive all salary in excess thereof without diminution of retirement allowance.

You have asked whether a village trustee who also serves as a town employee may retire from both positions, and subsequently be re-appointed to the position of trustee without diminution of his or her retirement allowance. If he or she may be re-appointed, you also question the effect on this individual's retirement benefits of his or her waiver of post-retirement salary as a member of the board of trustees in excess of the statutory limit imposed by Retirement and Social Security Law, §212.

Civil Service Law, §150 provides generally for the suspension of retirement benefits "if any person subsequent to his retirement from the civil service ... of any municipal corporation ... shall accept any office ... of any municipal corporation ... to which any salary ... is attached, except ... an elective public office ..." (emphasis added). This exception for elective office, however, is limited. Section 150, as amended by L 1984, ch 117, further provides that a person who retires from an elective public office and then "accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he retired" (emphasis added) will have his retirement allowance suspended unless the amount earned does not exceed the ceiling established by Retirement and Social Security Law, §212. The ceiling fixed in section 212, as amended by L 1991, ch 302, is currently $9,720.

Thus, it is our opinion that an elected public officer having retired may thereafter be reappointed to fill the vacancy created by his retirement (see 1978 Opns St Comp Nos. 78-296 and 78-918, both unreported). His right to retirement benefits, however, would be subject to the aforementioned statutory income limit.

With respect to a possible waiver of salary, we have expressed the opinion that public officers generally may waive all or part of their salaries (see 1991 Opns St Comp No. 91-21, p 67; Opns St Comp Nos. 77-1005, and 78-716, unreported). We have been advised by the Office of Counsel of the New York State and Local Retirement Systems that salary waived by, and not actually paid to, a public officer would not be included in the calculation of post-retirement public salary for purposes of the income ceiling prescribed by Retirement and Social Security Law, §212. Therefore, if the trustee were to waive that portion in excess of the statutory ceiling, his or her retirement benefits would not be affected by his or her appointment to this vacated position.

October 2, 1991
Joel B. Gewanter, Esq., Village Attorney
Village of Cedarhurst