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October 20, 2010

Rescinding a letter of resignation

Rescinding a letter of resignation
Grogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756

Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.

Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.

The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”

In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.

Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.

The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.

The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”

It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.

For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.

In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:

Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.

Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”

The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."

New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."

When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.

The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.

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 If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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