Opinion 95-11

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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

POLICE AND POLICE PROTECTION -- Police Chief (entitlement of temporary or provisional head of police department to salary increase pursuant to General Municipal Law, §207-m)

GENERAL MUNICIPAL LAW, §207-m; CIVIL SERVICE LAW, §§64, 65: An individual appointed either temporarily or provisionally pursuant to the Civil Service Law as head of a village police department is not a "permanent full-time head of the police department" entitled to salary increases pursuant to General Municipal Law, §207-m.

You have asked whether an individual appointed either provisionally or temporarily pursuant to the Civil Service Law as head of the village police department is entitled to salary increases pursuant to the provisions of General Municipal Law, §207-m.

General Municipal Law, §207-m states as follows:

Notwithstanding the provisions of any general, special or local law or administrative code to the contrary, and except in police departments which employ five hundred seventy-five or more permanent sworn police personnel, 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).

Enacted in 1977, this legislation was intended to avert a perceived trend toward salary compression in the top ranks of police departments in the state (1992 Opns St Comp No. 92-29, p 76; 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 terms, however, section 207-m pertains only to "permanent" full-time heads of certain police departments.

It is a basic principle of statutory construction that "[w]here the language of the statute is clear and unambiguous, the intent of the framers is to be first sought in the words and language employed and, if the words plainly and clearly express the sense of the framers, resort need not be had to other means of interpretation" (McKinney's Statutes, §76; Matter of Cristo Brothers, Inc., 97 AD2d 274, 470 NYS2d 781, affd 64 NY2d 975, 489 NYS2d 35). Further, it is a well established rule of construction that meaning and effect should be given to all the statutory language, and words are not to be rejected as superfluous when they may be given a distinct, separate meaning (McKinney's Statutes, §231; Orange and Rockland Utilities, Inc. v Amerada Hess Corporation, 59 AD2d 110, 397 NYS2d 814; Direen Operating Corp. v State Tax Commission, 46 AD2d 191, 361 NYS2d 736). Therefore, the word "permanent" must be given effect and may not be rejected as superfluous in determining the applicability of section 207-m, so long as that word may be given a distinct meaning.

The terms "permanent", "temporary" and "provisional" are not defined for purposes of General Municipal Law. However, the Civil Service Law, and Rules and Regulations adopted pursuant thereto, delineate the nature of temporary and provisional employment. Temporary appointments to a position may be made when the need for such service is important and urgent, and, generally, a temporary appointment may not exceed three months, although statutory provision is made for limited extensions in certain instances (Civil Service Law, §64). Similarly, provisional appointments may be made in accordance with Civil Service Law, §65 when there is no appropriate eligible list available for filling a vacancy in the competitive class and, generally, may not exceed nine months in duration. Generally, such appointments are viewed by the courts as "mere stop-gaps", being made for reasons of necessity or urgency (Koso v Greene, 260 NY 491, 184 NE 65; Hennessey v Farrell, 43 Misc 2d, 252 NYS2d 699; Fink v Kern, 176 Misc 114, 26 NYS2d 391).

Pursuant to the Rules and Regulations of the Civil Service Commission and Department of Civil Service, §4.5, employment becomes permanent only upon the successful completion of probation after having been appointed. There is no probationary period with respect to temporary or provisional employment and, accordingly, such appointments generally cannot ripen into permanent employment.1

Given the separate and distinct meaning of a permanent appointment as compared to temporary or provisional appointment, we believe the language of section 207-m which makes its provisions applicable only to "permanent" full-time heads of police departments must be given effect. Accordingly, it is our opinion that an individual appointed either temporarily or provisionally pursuant to the Civil Service Law as head of the village police department is not entitled to salary increases pursuant to the provisions of section 207-m.

April 21, 1995
Jeffrey F. Swiatek, Esq.
Village of Westfield

1There are certain exceptions to this general rule, however, and to the extent that the particular facts surrounding your inquiry may come within such an exception, we recommend that you consult with your local civil service commission (see, e.g., Civil Service Law, §64[4]).