Opn. No.

Hon. Arthur Levitt Chairman Emergency Financial Control Board For the City of Yonkers

This is in reply to your request for my opinion as to whether the Control Board may legally approve retroactive salary increases for certain employees of the Yonkers Board of Education, covered by individual contracts of employment which provide general authority for adjustment of salaries during the term of the contract, but not for retroactive pay increases. My office has been advised by the counsel to the Board of Education that the employees involved were, at the time the contracts were entered into, representing the Board of Education in contract negotiations with employee unions; that, therefore, no salary increases were provided in the contracts but that commitments were made to adjust the salaries after contract negotiations were concluded; and that, labor disputes having been settled in April 1978, the Board of Education now seeks to honor its commitment by providing salary increases to the persons covered by four specific contracts, retroactive to July 1, 1977.

Although retroactive pay increases for services already rendered have, as a general rule, been considered an unconstitutional gift of public moneys (Constitution Article VIII, § 1; Rindone v. Marsh, 183 Misc. 10; Op. St. Compt. 68-61), the courts have held that retroactive pay increases pursuant to collective bargaining agreements or promises to make such future adjustments, made prior to the performance of the services, are not "gifts" within the meaning of the Constitution and are, therefore, not prohibited by the Constitution (Antonopoulou v. Beame, 32 N.Y.2d 126;American Federation of State, County and Municipal Emp., AFL-CIO, Local788 v. City of Plattsburgh, 272 Misc.2d 744; Timmerman v. City of NewYork, 69 N.Y.2d 102, affd. 272 App. Div. 158).

It is, therefore, my opinion that, if the Control Board finds that a commitment was made at the time the contracts were entered into, providing for future retroactive pay increases, the Control Board may constitutionally approve such increases. Of course, whether or not such approval should be given is a matter within the discretion of the Control Board and not within the parameters of this opinion.