May 23, 2019

Declining a particular fringe benefit does not convert the value of the employer's contribution for such benefit into additional salary or other compensation


The appointing authority [Town] employed two town justices. Both justices have the same job functions and receive an identical annual salary. The Town also offers both town justices the opportunity to participate in its employee health insurance plan. While the Justice A elected to participate in this plan, Justice B elected not to do so and, in lieu of receiving health benefits, made several unsuccessful requests seeking additional compensation equal to the cost of the "employer contribution" to the Town to provide Justice A with health insurance coverage.

Ultimately Justice B sent a letter to the Town's supervisor formally requesting this additional compensation, contending that health insurance coverage was a component of a town justice's salary and that, because her fellow town justice was receiving this benefit and she was not, she was being compensated less than the other justice in violation of Town Law §27.1. After Justice B's request was denied by the Town, she initiated an Article 78 action seeking, among other things, a declaration that the Town's denial of her request for additional compensation violated Town Law §27.1. The Town answered the petition and, following oral argument, Supreme Court found Justice B's claim to be without merit and dismissed her petition and complaint. Justice B appealed the ruling to the Appellate Division.

The Appellate Division affirmed the lower court's ruling, explaining that Town Law §27.1  provides, in relevant part, that "[t]he town board of each town shall fix . . . the salaries of all officers and employees of said town" and that "the salaries of all town justices shall be equal," unless otherwise agreed upon by a majority vote of the town board."

Although §27 does not define the term "salary," the Appellate Division noted that in Bransten v State of New York, 30 NY3d 434 the Court of Appeals, considering the State Constitution's Judicial Compensation Clause, Article VI, §25[a], and held that the state's employer contributions toward a justice's health insurance coverage "is not part of [his or her] judicial salary" nor considered "a permanent remuneration for expenses necessarily incurred in fulfillment of judicial obligations."

Finding that both Town Justice A and Town Justice B have received identical salary and benefits, "including eligibility to participate in the Town's health insurance plan," the Appellate Division opined that the fact that Justice B had chosen to forgo participating in the Town's health insurance plan did not transform the Town's employer contribution towards the plan it made on behalf of Justice A, who did elect to participate in the Town's health insurance plan, into some form of salary differential forbidden under Town Law §27.1.

According, the Appellate Division said it agreed with Supreme Court that the Town's denial of Town Justice B's request for additional compensation did not violate Town Law §27.1.

The decision is posted on the Internet at:

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