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Employee under rules of the Salary Classification Commission entitled to salary for two weeks' vacation even though he resigns his position at the end of that period, and Fiscal Supervisor may approve such payment.



ALBANY, December 16, 1909.

Hon. DENNIS MCCARTHY, Fiscal Supervisor, Albany, N. Y.:

DEAR SIR.-I beg to acknowledge the receipt of your letter concerning the payment of the salary of an employee of one of the State charitable insti


You state the following facts: The employee, under the rules and schedules of the Comptroller and the President of the State Board of Charities, acting as the Salary Classification Commission, was entitled to two weeks' vacation; this vacation began on August 29th and continued until September 12th following; prior to August 29th the employee tendered his resignation to take effect September 12th; his salary was paid up to and including September 12th. You ask my opinion as to whether your department may properly approve payments of this character.

Under section 17 of the Finance Law the salaries of persons employed in certain State institutions are fixed by the Comptroller and the President of the State Board of Charities. These officers act as a salary classification commission and their rules and schedules, when approved in writing by the Governor, are controlling as to the employees to which they apply. I understand that for the employee in question and those occupying the same grade, the regulation fixing the salary includes a provision for two weeks' vacation in each year after a year of service. Hence this employee was entitled to his salary during his vacation. Inasmuch as his resignation was not to take effect until the end of his vacation, he was still occupying the position and entitled to his salary from August 29th to September 12th. It follows, therefore, that such a payment as this may properly be approved.

Yours very truly,


Payment of salaries may be made to employees of the Elmira Reformatory while on leave of absence during sickness.


May the superintendent of reformatories lawfully pay an employee of the Elmira Reformatory the whole or any part of his salary while he is absent from the institution on leave of absence during sickness.


The control over salaries of officers and employees in the Elmira Reformatory is somewhat divided. Under sections 286 and 287 of the Prison Law the general superintendent of reformatories and under him the assistant at each institution have general oversight and power of administration. But the power of appointment vested in the general superintendent is subject to the approval of the State Board of Managers of Reformatories. They are also

subject in a measure to the Salary Classification Commission which in turn submits its findings to the Governor. The recommendations finally adopted could of course be dependent upon the amount and form of the appropriation made by the Legislature. In the schedule of Salaries and Wages paid in 1912 by the Commission, allowances for vacations are made, but on the question of payment during illness, the schedule is silent.

As pointed out in an opinion printed at page 299 of the Attorney-General's Opinions for 1912, the functions of the Salary Classification Commission are essentially those of an equalization committee, the direct power of fixing the individual salaries within the maximums recommended resting in the State Board of Managers of the institutions.

It is clear then that the general superintendent of reformatories is always subject to the State Board of Managers in fixing salaries. Although ultimately always subject to this control he has very broad powers given by statute which he may exercise unless restricted by order of the State Board of Managers or higher authority. These powers are given in the Prison Law, sections 286, 287, as follows:

"Sec. 286. Superintendent of reformatories and assistant superintendents; appointment, powers and duties. Said state board of managers shall appoint a superintendent of reformatories, and may remove him for cause after an opportunity to be heard. Said superintendent shall have general oversight of both institutions, and, subject to the approval of said board of managers, shall appoint all other officers and employees of said institutions, and be possessed with all the powers and perform all the duties in both institutions prescribed in this article

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"Sec. 287. The superintendent of reformatories, subject to the direction and control of the state board of managers, shall:

"1. Have the general supervision and control of said reformatories, of the grounds and buildings, subordinate officers and employees thereof, the prisoners therein, and of all matters relating to the government and discipline thereof.

"2. Make such rules and orders, not inconsistent with law, or with the rules and directions of the said board of managers, as he may deem proper or necessary for the government of said reformatories and of the officers and employees thereof; and for the employment, discipline and education of the prisoners sentenced thereto.

"4. Exercise such other powers and perform such other duties as the said board of managers may lawfully prescribe."

Bearing in mind then that any order made by the superintendent is subject to review by the boards and officers of higher authority referred to, the question of the legality of any order allowing compensation of employees while on leave of absence may be considered. The cases presented to the courts have, so far as I have found, concerned school boards and teachers. But the principles invoked in those cases I believe have equal application here.

The positions referred to at the reformatory being those of employees their employment is contractual and the right to compensation depends upon the contract of employment. (Steinson v. Board of Education, 165 N. Y. 431.) An officer's salary it seems is not usually subject to deduction by reason of absence. (See Throop on, Public Officers, section 501 et seq.)

Any agreements that have been made are, I presume, silent on the subject of payment during incapacity.

In Murphy v. Board of Education, 87 App. Div. 277, the power of officials vested with general administrative powers over compensation and other matters not specified in the contract, was discussed. The power given to the school board there was very similar to that of the superintendent of reformatories in being subject to higher authority. It was permitted "by its by-law to provide for the payment of the salaries of all principals and teachers of the various schools under its charge, and for all disbursements chargeable to the general school fund, apportioned to it for educational purposes therein." This power was no broader than that vested in the various bodies and officers in control of the reformatories. The court goes on to find that the school board could deprive the teacher of her salary during the time when she was absent without leave, recognizing impliedly that it could have continued the salary at its discretion. On the discretionary control of the employing officers over compensation, Mr. Justice Ingraham says at page 279:

The broad power thus given to the school boards and the board of education to appoint all teachers and to fix their salaries, and to make by-laws for the regulation of all disbursements of the general school fund in the borough, would give the school board power to reduce the salary of any teacher, either by an actual reduction in the amount paid, or by providing that the salary of a teacher shall be paid only for the period during which the teacher actually performed service. A teacher being an employee, and his relation to the appointing power contractual, nothing stands in the way of a revisal of his compensation by the authorities having power to fix the salary to be paid to the teacher at any time. The salary of an employee not being an incident to the office, but payment for services rendered, there would certainly be nothing illegal in a provision changing the condition under which the salary is paid, so that it is payable only for the period for which the services are actually rendered. The school board, therefore, has the power to reduce the salary of a teacher by providing that he is to receive no compensation for the days on which he is absent without leave. It is undoubtedly true that until the salary is reduced or the employee is discharged he is entitled to receive the compensation agreed upon. The condition of employment, however, does not prevent a change in the amount of salary to be paid, or the imposition of a condition that a deduction should be made from the teacher's salary for a period during which he absents himself from the performance of his duty without leave."

See also School District v. Gage, 31 Mich. 484, 496.
Board v. State ex rel. Simpson (Kan.) 52 Pac. 466.

I am therefore of the opinion that the general superintendent has the power to continue salaries during the incapacity of employees in his discretion subject to review by the Board of Managers and by the Salary Classification Commission as pointed out above.

Dated, March 19, 1913.


To HON. ROBERT W. HILL, Secretary, Salary Classification Commission, Albany, N. Y.

§ 18. Inspection of supplies and entry in books. The steward, clerk or bookkeeper in every such institution, board or commission shall receive and examine all articles purchased or received for the maintenance thereof, compare them with the bills for the same, ascertain whether they correspond in weight, quality or quantity, and inspect the supplies thus received. Such steward, clerk or bookkeeper shall enter each bill of goods thus received in the books of the institution or department at the time of receipt thereof. He shall make a full memorandum in the book of accounts of such institution of any difference in weight, quality or quantity or any article received from the bill thereof, and no goods or other articles of purchase or manufacture or farm or garden production of land of the institution shall be received unless so entered in such book with the proper bill, invoice or statement, according to the form of accounts and record prescribed by the comptroller. In accounts for repairs or new work, the name of each workman, the number of days employed and the rate and amount of wages paid to him shall be given. If contracts are made for repairs or new work, or for supplies, a duplicate thereof, with specifications, shall be filed with the comptroller. The steward of every such institution or other officer performing the duties of a steward under whatever name, shall take, subscribe and file with the comptroller, before entering on his duties, the constitutional oath of office, and may administer oaths and take affidavits concerning the business of such institution.

§ 19. Deposit in banks of moneys received by state institutions. Every state institution supported, in whole or in part, by the state, shall deposit at interest, all its funds in a bank or trust company, which shall give a bond with sufficient sureties. for the security of such deposit, to be approved by the comptroller and filed in his office, or may in lieu of such surety bond deposit with the comptroller outstanding unmatured bonds issued by the state of New York for which the comptroller shall deliver a certificate of deposit containing the conditions of said surety bond. On the withdrawal of all moneys from any such depository and a closing and settlement of the account thereof, the comptroller may in his discretion certify to such settlement and direct the sur

render of such surety bond or deposit to the obligators or owners entitled thereto. (As amended by chapter 77 of the Laws of 1910, and chapter 293 of the Laws of 1911.)

§ 20. Annual inventory and report of institutions. Every state charitable institution, state hospital, reformatory, house of refuge and industrial school shall file with the comptroller annually, on or before October twentieth, a certified inventory of all articles of maintenance on hand at the close of the preceding fiscal year, stating the kind and amount of each article. Every state charitable institution, state hospital, reformatory, house of refuge, state agricultural experiment station, and the quarantine commissioners, required by law to report annually to the legislature, shall state an inventory of each article of property, stating its kind and amount, except supplies for maintenance, belonging to the state and in their possession on October first of each year.

§ 21. Rendition of accounts. The comptroller, from time to time, shall require of public officers and other persons receiving moneys or securities, or having the care and management of any property of the state, of which an account is or is required to be kept in his office, to render statements thereof to him; and all such officers or persons shall render such statements at such time and in such form as he requires, and at all times when required by law. He may require any one presenting to him an account or claim for audit or settlement, to be examined upon oath before him touching such account or claim, as to any facts relating to its justness or correctness. He may issue a notice to any person receiving moneys of the state for which he does not account or to the legal representatives of such a person, requiring an account and vouchers for the expenditure of such moneys to be rendered at a time to be fixed not less than thirty nor more than ninety days from the date of the service of the notice. Such notice shall be served by delivering a copy thereof to such person or representative or leaving such copy at his usual place of abode; and if such service is made by the sheriff of the county, where the person served resided, the certificate of such sheriff, and if made by any other person, the affidavit of such other person shall be presumptive evidence of such service.

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