I dissent.
I do not read the ordinance as my associates do.
The facts are simple and undisputed. Eespondent rendered overtime services to the county. Accurate records were kept of his services. His supervisor elected to compensate him by granting him time off, but did not do so. Must the county now pay him in cash ? I think so.
Paragraph 12, subparagraph (1) of the county salary ordinance declares the basic policy of the county, which is to pay county employees for their overtime services. It says that “Anything in this Ordinance to the contrary notwithstanding and except as hereinafter provided, each hour of authorized overtime . . . shall be paid for at the hourly rate applicable to the compensation of such employee. ...” (Italics ours.)
Paragraph 12, subparagraph (9) allows an employee’s overtime services to be paid for by compensatory time off or by cash, in the discretion of the head of the employee’s department, and says that “. . . if time off is granted it shall be taken at such time as the head of the office or department may determine, but within one year after the rendering of such service. ...” (Italics ours.) Here, as I understand the prevailing opinion, since the employee’s compensatory time off was not taken “within one year after the rendering of such service” he is barred from any claim for compensation.
The result is an unjust one. The county, by electing to compensate the employee for his overtime by granting time off, defeats his claim by the simple process of failing to fulfill its promise. I would interpret the language of paragraph 12. subparagraph (9), which says that “. . . if time off is granted it shall be taken . . . within one year. ...” to mean that the county must make the time off actually available, and if it does not do so, then payment in cash must be made.
It is clearly inferable from the record here that the county did not grant the compensatory time off it elected to give for the simple reason that the sheriff’s office was short-handed, and the men could not be spared.
*270Edwin Kaufman, undersheriff during the time respondent rendered his services, testified: “Q. Setting aside that there was something in terms of disciplinary or otherwise, wasn’t it the policy of the Sheriff’s Office that you wanted people to get their time back if you could allow them to go ? A. It was reasonable to assume this. We liked to cut down the overtime hours, if possible. Q. But the reason that you couldn’t is because there wasn’t sufficient staff? Isn’t that correct? A. That could be one reason, yes.
The respondent testified: ‘ ‘ Q. Did you ever ask to take time off in order to cut down the number of hours—A. Yes. Q. —that you claimed? A. Yes. Q. When was the first time that you asked to take time off ? A. Oh, this is a long ways back in my Civil Division career. Around a vacation-period time I tried to. I think the first time, I was in the Civil Division. I asked for extra weeks on my vacation in order to get rid of it. Q. And were they granted or denied ? A. They were denied. Q. On -what ground? A. Well, that they just couldn’t spare the time, couldn’t spare me the time. They didn’t have time. Q. They didn’t have time? A. They couldn’t spare me. This was usually the answer. Q. They didn’t have enough men at the time? A. They didn’t say that. They just couldn’t spare me. Q. They couldn’t spare you ? A. That is right. ’ ’
I find no testimony in the record to show that the county was ready, willing and able to grant time off to respondent to make up for his overtime, despite its promise, and accordingly I would require the county to pay him in cash.
A petition for rehearing was denied on December 22, 1967, and the opinion was modified to read as printed above. Salsman, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied January 17, 1968.