Opn. No. ( 1981 )

Michael T. Welsh, Esq. Village Attorney, Le Roy

You ask whether the Chief of Police may deny a police officer a pay increment without notice of charges and a hearing. In a telephone conversation you informed us that the police officer referred to is in the competitive class of the civil service.

For the period in question, your village had adopted a five-step employee promotion system for police officers. If a police officer was rated satisfactory at the end of his first year probationary period, he became entitled to incremental pay increases in each of the next four years. You informed us that the pay increases were not awarded according to any merit system but were distributed for time spent in service.

A person holding a position by permanent appointment in the competitive class of the civil service may not be removed or subjected to any disciplinary penalty except for incompetency or misconduct found after a hearing upon stated charges (Civil Service Law, § 75 [1] [a]). The procedure for conducting a hearing, permissible penalties and other guidelines are specified in section 75. The maximum fine which may be assessed upon a finding of guilt is one hundred dollars (id., § 75 [3]). Other financial penalities permitted are suspension without pay for a period not exceeding two months and demotion in grade and title (ibid.).

A fine or a deduction from wages is a disciplinary penalty requiring a hearing under section 75 of the Civil Service Law prior to its imposition (Mtr of Sette v McCambridge, 84 Misc.2d 591, 593 [Sup Ct. Onondaga Co, 1975]). We believe that the denial of an automatic pay increment is a deduction from wages requiring a section 75 hearing prior to its imposition. We conclude that a police officer holding a position by permanent appointment in the competitive class of the civil service may not be denied an automatic pay increment except after notice of charges and a hearing in accordance with section 75 of the Civil Service Law. The penalties which may be assessed upon a finding of guilt are those specified in section 75.