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Town may pay its police chief more than the minimum mandated by GML §207-m

By Harvey Randall, Esq.

Town may pay its police chief more than the minimum mandated by GML §207-m
Lavin v Town of E. Greenbush, 17 Misc.3d 766, Supreme Court, Rensselaer County, Zwack, J.

§207-m of the General Municipal Law provides increases in the salary of the chief of police of a police department employing less than 575 sworn officers whenever ?the base salary or other compensation 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 base salary increase received by such next subordinate police officer, and the other compensation, ? of the permanent full-time head of the police department shall be increased to the same extent and with the same conditions as the other compensation received by the next subordinate police officer in the event that such subordinate officer?s other compensation is increased.?

In this action the Police Chief of the Town of East Greenbush, Christopher Lavin, sued, contending that in April 2006 he received a letter from the Town reducing his salary on the grounds that the compensation he was then being paid ?was in violation of General Municipal Law §207-m.?
The Town said that in prior years Lavin received salary increases and other compensation greater than those required by §207-m, and thus constituted overpayments. It sought to recoup alleged overpayments -- $92,227.67.

The Town argued that it was entitled to recoup such overpayments, as they had been paid by mistake, as a matter of law and moved for summary judgment.
First, said the Court, it had to determine whether Lavin was in fact paid more than required by General Municipal Law §207-m.
If the Court found that he was paid more than required by Section 207-m, a second determination would have to be made by the court: Can the Town can require Lavin to pay back the alleged overpayments?

The Court ruled that the Town had, in fact paid Levin in excess of the amount required by General Municipal Law §207-m from 2001 through 2006 but that it was not entitled to recoup monies already paid to him despite the fact that it was in excess of the minimum required by §207-m.
The decision notes that ?[t]he plain language of the statute is clear that a municipality may elect to increase the head of the police department?s salary or other compensation beyond the minimum provisions listed in the statute.?

As to the Town?s claim that it was operating under a mistake when it paid Lavin and therefore it should be permitted to recoup amounts paid over the minimum required by General Municipal Law §207-m, Lavin contended that ?the voluntary payment doctrine? precluded the Town from recouping any overpayments, again pointing out that the statute does not prohibit salary increases that are in excess of the statutory minimum.

Essentially, the common-law voluntary payment doctrine bars recovery of such types of payments if they are made with full knowledge of the facts. In this instance, said the court, the Town approved Lavin?s salary by resolution each year from 2001 through 2006.

According to the decision, the Town?s resolutions constituted contracts with. Lavin had submitted his detailed salary plan to the Town each year and, after a review process, the Town agreed or disagreed to the terms set forth in Lavin?s proposed plan.

The court said that the Town ?was clearly able to consult with legal counsel, or conduct any other independent review in its analysis of [Lavin?s] submitted pay plan.? Further, the Town did not claim that the figures set forth in Lavin?s pay plan were inaccurate or misrepresented. Finally the court again pointed out that Section 207-m did not establish a bar to the Town?s paying its police chief an amount greater than that mandated by law.

The court found the voluntary payment doctrine applicable to the instant matter in view of:

1. The Town?s apparent failure to seek independent legal advice upon the amendment of General Municipal Law §207-m;

2. The Town?s adoption of resolutions approving the pay plan submitted by its police chief for each the years in question;

3. The Town?s voluntary made payments to its chief during the years in question; and

4. The Town?s delay in seeking recoup the monies it claimed it had paid Lavin over the course of six years, and which it apparently now demanded in response to Levin?s claim for payment of his salary and compensation at the rates earlier approved by the Town.

Full post as published by New York Public Personnel Law on May 02, 2008 (boomark / email).