Opinion
January 31, 1992
Appeal from the Supreme Court, Orleans County, Miles, J.
Present — Denman, P.J., Doerr, Boomer, Pine and Balio, JJ.
Judgment unanimously reversed on the law with costs and petition granted in part, in accordance with the following Memorandum: Supreme Court erred in dismissing the petition in which petitioner sought reinstatement to his position as Fire Chief of the Village of Medina. We first note that the proceeding was timely commenced within four months after petitioner's request for reinstatement was denied (see, CPLR 217; Matter of De Milio v. Borghard, 55 N.Y.2d 216). We further find that petitioner did not hold a "public office" within the meaning of the Public Officers Law. "A public officer, in contrast to a subordinate public employee, is a person whose position is created, and whose powers and duties are prescribed, by statute and who exercises a high degree of initiative and independent judgment" (Matter of Lake v. Binghamton Hous. Auth., 130 A.D.2d 913, 914; see also, Matter of Haller v. Carlson, 42 A.D.2d 829). The position of Fire Chief in the Village of Medina is not created by statute, and is merely an administrative post in which the holder must answer to the Village Board of Trustees on all personnel and budgetary matters. Because we conclude that petitioner was not a public officer, his failure timely to take and file an oath of office (Public Officers Law § 10) did not vitiate his appointment and render the office vacant (cf., Matter of Comins v. County of Delaware, 66 A.D.2d 966).
As an employee holding a position within the classified competitive civil service, petitioner was required to submit his resignation in writing (see, 4 NYCRR 5.3 [a]). Because no written resignation was ever tendered, petitioner's "retirement", effective December 12, 1989, was invalid (see, e.g., Matter of Petrella v. Siegel, 73 N.Y.2d 846). Petitioner did, however, apply for retirement benefits from the New York State Police and Fire Retirement System effective September 8, 1990. We have said that, "[a]bsent compelling circumstances, finality must be given to resignations and retirements from service" (Matter of Girard v Board of Educ., 168 A.D.2d 183, 185). By allowing his retirement application to become effective, petitioner demonstrated "clear and convincing evidence that he intended to relinquish his position" (Matter of Cannon v. Ulster County Bd. of Coop. Educ. Servs., 155 A.D.2d 846, 847). Inasmuch as the employment relationship between the parties has ceased to exist, petitioner is not entitled to reinstatement (see, Matter of Girard v. Board of Educ., supra). He is, however, entitled to back pay from the date of his improperly compelled resignation until the time that his retirement became effective for benefit purposes.