Banish v. Hamtramck

In Banish v. Hamtramck, 9 Mich App 381, 388-389; 157 NW2d 445 (1968), the Court noted that "we look beyond form to substance" and the City cannot simply adopt "correct nomenclature" and divide the pay of active employees into categories "plausibly packaged and labeled" with the deliberate purpose "of depriving retirees of the full pension rights which the charter mandates." Banish, supra at 389. The City's apparent attempt to avoid paying the retirees their share of prep time by changing the form in which prep time is compensated militates toward including this item in the pension calculations. Id. In Banish, in deciding that the City of Hamtramck's clothing allowance for police officers and firefighters was not a part of the "pay" on which the plaintiffs' pensions was calculated, this Court stated that this was a close question that could be decided either way. Id. at 391. In reaching its decision, this Court made the following observations: The amount of the uniform allowance does save the active service employee a corresponding amount and thus, in a sense, increases his pay. However, there is no evidence that the uniform allowance was intended or paid as compensation, or that anyone received the allowance who did not wear a uniform, or that, to state it differently, the allowance was anything more than reimbursement for an actual out-of-pocket expense necessarily incurred in the performance of duty. . . . If the uniform allowance were larger or if there were evidence that the allowance was paid as compensation and regarded by the parties as such, we might have taken a different view. Id. at 391-392.