City of Plano v. Acker

ON MOTION FOR REHEARING

In their motion for rehearing, appellees raise points that deserve our attention. First, they indicate that we incorrectly summarized their contention as being “that the six-month service plateaus provided in the ordinances are incremental increases in base pay and therefore constitute classifications within the meaning of article 1269m.” Ap-pellees state that their contention, as correctly stated, is that the “6, 12, 18, 24 or 30 month service plateau[s] provided in the [the] ordinances are incremental increases in ‘base pay’ within each classification.”

Essentially, appellees adopt the reasoning of the court of civil appeals in Nichols v. Houston Police Officers’ Pension Board, 335 S.W.2d 261 (Tex.Civ.App. — Waco 1960, writ ref’d n. r. e.). In that case, an ordinance adopted by the City of Houston established salary levels for officers at various ranks. The ordinance was, in all pertinent aspects, substantially identical to the ordinance enacted by appellant. Upon retirement of an officer, his pension benefits were calculated as a percentage of the base salary for the classification he was in at retirement. The pension board contended that “base salary” meant the amount received by the officer under his classification at retirement and under the appropriate service plateau. The City of Houston argued that “base salary” meant the salary initially provided for the classification in which the officer retires (this amount normally being substantially less than the amount contended for by the pension board). Further, the City indicated that if more than one base salary existed for each classification, the ordinance would conflict with the provision in article 1269m that “[a]ll persons in each classification . be paid the same salary . . .”

The court of civil appeals, in affirming the judgment for the pension board, held that the service plateaus were increases in base pay and that this conclusion did not conflict with article 1269m because the salary “increase[d] consistently and uniformly for ‘all persons’ in the classification.” Id. at 263-64. We cannot agree with this holding.* Section eight of article 1269m clearly pro*72vides that all persons within a classification shall be paid the same salary — not that they shall be paid on a consistent and uniform sliding scale.

Whether it is called compensation for tenure, longevity pay, seniority pay, or some other term, the incremental increases in salary provided by the service plateaus in question obviously are based on the length of time an employee has served in a particular classification. We believe that this form of compensation was intended by the legislature to be included among the various forms of additional compensation to which a fireman or policeman might be entitled, and to which the “ ‘same salary’ for ‘[a]ll persons in each classification’ ” restriction does not apply. See Tex.Rev.Civ. Stat.Ann. art. 1269m, § 8 (Vernon Supp. 1980). As noted in the body of our opinion, this form of compensation constitutes longevity or seniority pay. The fact that the City of Plano pays longevity or seniority pay to its policemen and firemen based on length of service in a particular classification, as well as paying it based on length of service with the City, does not change the character of the payments.

Appellees’ motion for rehearing and supplemental motion- for rehearing are overruled.

We note that even applying the reasoning employed in Nichols, our holding in this case might be the same.