Payment of hazardous duty pay while receiving GML Section 207-c benefits

Payment of hazardous duty pay while receiving GML Section 207-c benefits
Town of Carmel v PERB, Appellate Division, 246 A.D.2d 791

Prior to January 1995, Town of Carmel police officers assigned to “light duty” pursuant to Section 207-c of the General Municipal Law performed desk duty. Such light duty personnel wore “Class D uniforms,” did not carry a weapon and were assisted by a full-status officer, fully armed, dressed in a “Class A” uniform, at all times.

The Town changed this policy in January 1995, requiring officers on light duty status to wear a Class A uniform, including weapon and to perform desk duty unassisted by a “full-status” officer.

The Town of Carmel PBA, contending that this change adversely affected the safety of officers, both those on light duty status as well as those in full-status, demanded that the Town negotiate “safety stipends” for both the light duty and full-status officers. When the Town refused, the PBA filed an improper practice charge with PERB.

The PBA sought $100 a day for light duty officers serving without assistance; $15 an hour for full-status officers responsible for a prisoner while a light duty officer was the only other officer present and $10 an hour for a full-service officer assigned to desk duty when only a light duty officer was present.

A PERB administrative law judge [ALJ] dismissed the charge, finding that the additional compensation demanded for light duty officers “did not comport with the legislative scheme of General Municipal Law Section 207-c,” and thus constituted a prohibited subject of negotiations. PERB disagreed and reversed the ALJ’s ruling.

PERB decided that the salary demands advocated by the PBA were mandatory subjects for collective bargaining “not unlike hazardous duty pay.” The Town appealed, contending that it could not be compelled to negotiate wages to be paid an officer assigned to light duty above the amount to which he or she would have been entitled were he or she able to perform “regular duties.”

The issue to be resolved: did the demand for a safety stipend constitute a term and condition of employment, thus making it mandatorily negotiable, or did it constitute salary or wages in excess of that which are provided for under the clear and plain language of the Section 207-c.

The Appellate Division agreed with a lower court’s affirmation of PERB’s decision, concluding that the PBA’s demand involved a term and condition of employment since it directly relates to safety issues arising as a result of the change in policy. Further, said the Appellate Division, nothing in Section 207-c makes the PBA’s demand a prohibited subject of negotiations.

According to the decision, while the legislature intended to insure that Section 207-c police officers assigned light duty would receive an uninterrupted salary, “it did not simultaneously intend to prevent those same officers from bargaining for what they may perceive to be job-related risks.”

N.B. An Internal Revenue Service private letter opinion [#0104.02.00] advised that if an individual is assigned light duty, any compensation paid pursuant to Sections 207-a or 207-c is fully taxable.