Opinion 92-27

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

LOCAL LAWS -- Payroll Deductions (for charitable contributions)
PUBLIC OFFICERS AND EMPLOYEES -- Payroll Deductions (for charitable contributions) -- Wage Assignment (to charitable organizations)

PERSONAL PROPERTY LAW, §§45-a, 46(1)(2); GENERAL MUNICIPAL LAW, §93-b; MUNICIPAL HOME RULE LAW, §10(1)(ii)(a)(1): A municipal officer or employee may not make a charitable donation by assigning his or her right to receive salary to the charitable organization. A local government may, however, provide, either by local law or collective bargaining agreement, for payroll deductions for charitable contributions payable upon a revocable written request by an officer or employee.

You state that a city council member wishes to donate his salary to a charitable organization. To implement the donation, he has asked the city to issue to a charitable organization a check for the gross salary to which the city council member is entitled. You ask whether the city may honor the council member's request.

At the outset, we note that the council member may not make the donation by assigning his or her right to receive salary to the charitable organization. Personal Property Law, §45-a provides statutory authority for wage assignments at the request of municipal officers or employees. This section provides in pertinent part as follows:

1. No assignment of ... the whole or any part of his salary or earnings by an officer or employee of the state or of any political subdivision thereof ... unless given either as security for or as a manner or method of the repayment of, money actually advanced to or at the request of such officer or employee by any bank, trust company or credit union doing business in the State of New York, shall in any way operate to prevent the payment of such salary or earnings directly to such officer or employee.

Therefore, in this instance, an assignment of salary would not be permissible under Personal Property Law, §45-a because the assignment would not be given as security, for or as a method of repayment of, money advanced to or at the request of the council member by a bank, trust company or credit union (see 1979 Opns St Comp, No. 79-31, p 5; see also Diehl v Sheehan, 233 AD 258, 251 NYS 254 affd 258 NY 624; Sacks v Neptune Meter Co., 144 Misc 70, 258 NYS 254 affd 238 AD 82, 263 NYS 462, discussing public policy considerations with respect to restrictions on wage assignments by public officers and employees).

A payroll deduction is generally distinguishable from a wage assignment in that it is a revocable authorization and does not create any enforceable right in any third party (see Personal Property Law, §46[1], [2]; Opn No. 79-31, supra). General Municipal Law, §93-b(2) provides express statutory authority for deductions from wages or salaries of municipal employees of amounts specified in writing by the employee for, inter alia, contributions to federated community campaigns for health, welfare and recreational purposes on behalf of such employees. There is no further State statutory authority for any other payroll deduction for charitable contributions (cf. General Municipal Law, §§92-a, 93, 93-c, authorizing payroll deductions for certain other purposes). Thus, section 93-b does not provide the requisite authority either.

We have previously concluded, however, that municipalities may provide for payroll deductions for various purposes in collective bargaining agreements in the absence of a plain and clear prohibition in the State or Federal constitution, a statute, decisional law or restrictive public policy (see Civil Service Law, §200 et seq.; Board of Education v Yonkers Federation of Teachers, 40 NY2d 268, 386 NYS2d 657; cf. Mineola Union Free School District v Mineola Teachers Association, 41 NY2d 568, 415 NYS2d 797), or by local law if not inconsistent with a general law or the constitution (Municipal Home Rule Law, §10[1], [ii][a][1]; see, e.g., 1982 Opns St Comp No. 82-231, p 291; 1981 Opns St Comp No. 81-382, p 420, 1981 Opns St Comp No. 81-402, p 444). We are not aware of any constitutional or statutory provision, decisional law or restrictive public policy which would preclude a municipality from providing for a revocable payroll deduction for charitable contributions in a collective bargaining agreement or by local law (see 20 Opns St Comp, 1964, p 100; 16 Opns St Comp, 1960, p 412).

City council members would not be covered under a collective bargaining agreement. Therefore, we believe the city could provide for the payroll deduction in this instance only by local law. The local law should provide that any payroll deduction will be made only pursuant to a revocable written request by the officer or employee and that it does not create any enforceable right in any third party (see Personal Property Law, §46[2]; see also Opn No. 79-31, supra). Also, the application of the local law to any particular officer or employee, or class of officers and employees, and to any particular charitable organizations must be consistent with constitutional equal protection guarantees (NY Const, art 1, §11; Federal Constitution, 14th amendment; see Opn No. 82-231, supra).

Finally, as to whether the gross amount of the salaries of a city officer or employee may be subject to payroll deductions, we are informed by Counsel to the New York State and Local Employees' Retirement System that such payroll deductions may not include any retirement contributions required to be deducted from an officer's or employee's salary. In addition, although we express no opinion in this regard, the city should determine whether it has an obligation to withhold for federal and state income taxes and for social security contributions. Obviously, to the extent that the City is required to withhold moneys for retirement and other purposes, the council member will not be able to have the gross amount of his salary paid to the charitable organization.

September 29, 1992
William Reemtsen, City Administrator
City of Batavia