Opinion 92-38

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FIRE CHIEF -- Powers and Duties (continuation of service until new chief appointed) -- Vacancy (procedure for filling in village)
VILLAGE BOARD -- Powers and Duties (approval of nomination for fire chief); (appointment of fire chief)

VILLAGE LAW, §10-1012: If the village board has rejected the nominee submitted by the village fire department for the office of fire department fire chief and the department fails to submit a new nomination, the village board may not appoint a new chief. In the event of such an impasse, the incumbent chief continues to serve as chief or, if he or she resigns before a new chief is appointed, the assistant chief performs the functions of chief until the new appointment.

You state that, pursuant to Village Law, §10-1012, the village fire department submitted the name of a nominee for the office fire department fire chief to the village board of trustees for approval. The village board rejected the nominee. The fire department has indicated that it will not submit a new nomination and that it is not aware of anyone else willing to serve as chief. You ask whether the village board may proceed to appoint a new chief and, if not, whether either the outgoing chief would continue to act as chief until a new chief is properly appointed or the assistant chief would perform the functions of chief.

Under Village Law, §10-1012, fire department officers are nominated annually by the delegates to the fire department general convention unless the board of fire commissioners has adopted a rule requiring nominations by the duly qualified members of the department. The board of fire commissioners, at its next meeting, must consider the nominations and either appoint the nominees or, if a nomination is not approved, reconvene the general convention which "shall submit a new nomination to take the place of any nomination not approved ..." (emphasis added; see also Town Law, §176[11-a], [11-b]; Leap v Finnen, 168 AD2d 432, 562 NYS2d 555). This procedure is then required to continue until a full set of officers is approved. If a village has no separate board of fire commissioners, the village board of trustees acts as board of commissioners for purposes of the nomination approval process (see Village Law, §§4-412, 10-1014; People ex rel. Wallace v Carpenter, 77 Misc 244, 135 NYS 593).

Since section 10-1012 requires the submission of a "new" nomination in the event the initial nomination is not approved by the board, we have expressed the opinion that the fire department may not renominate the same individual who previously was not approved by the board (17 Opns St Comp, 1961, p 197; see also 31 Opns St Comp, 1975, p 112; 1972 Atty Gen [Inf Opns] 191). Rather, section 10-1012 requires the continual submission of new names by the fire department until all officers are approved. The village board of trustees' power is limited to approval of the department's nominees. There is no authority in article 10 for the board of trustees to appoint a chief in the event the department fails to submit a nomination. We note, however, that it is a general rule that a legislative body of a public corporation may, subject to its own rules and procedures (see Village Law, §4-412[2]) and in the absence of a statutory prohibition, reconsider its vote on measures before it and rescind a prior act provided no vested rights are impaired (In re Eiss, 205 AD 691, 199 NYS 544 app dsmd 236 NY 638; see, gen., 4 McQuillin, Municipal Corporations, §§13.48, 13.49). Thus, should the board of trustees wish to reconsider its rejection of a nominee, it is our opinion that, in its discretion, it may do so by rescinding its prior act of rejecting the nomination, until such time as the name of a new nominee is before the board.

Section 10-1012 requires an annual process of nomination and appointment to fill the position of chief, but does not specify a definite date for either commencement or expiration of the chief's term (cf. Application of Barker, 198 Misc 135, 100 NYS2d 658, affd 278 AD 600, 101 NYS2d 924, lv denied 302 NY 947). In contrast, Town Law, §§176(11-a) and (11-b), which provide for an analogous process to fill the position of chief of a fire district fire department, expressly state that an incumbent chief serves until his or her successor is appointed. Although section 10-1012 does not contain similar language, we believe that the omission from section 10-1012 of a definite date for the expiration of the term of a village fire chief implies that an incumbent chief serves until his or her successor is appointed. Therefore, in the event of an impasse, it is our opinion that the incumbent chief would continue to serve in the position. If the chief should resign before a new chief is appointed, the assistant chief would perform the functions of chief until the new appointment (Village Law, §10-1018).

December 28, 1992
Barbara R. Lake Potter, Esq., Village Attorney
Village of Hammond