Thursday, October 25, 2012

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff


Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff
Appeal of Erika L. Kwasnik, Decisions of the Commissioner of Education, Decision #16,419

This decision by the Commissioner of Education succinctly sets out the controlling consideration in determining the rights of an educator resigning from his or her tenured position in one tenure area to accept a tenured appointment in a different tenure area in the event of the abolishment of his or her position.

Essentially there was no dispute that following her appointment to a library media specialist position, Erika L. Kwasnik submitted a letter of resignation from her English teacher position. When the library media position was abolished and Kwasnik was advises that she would be excessed and her name place on a reinstatement list, she contended that because she was continuously employed within the district, she maintained her tenure, and therefore her seniority rights, in the English teacher position.

The Commissioner indicated that in a layoff situation, the relevant rules of the Board of Regents provided as follows:

1. 8 NYCRR §30-1.10, a professional educator who acquires tenure in a new tenure area generally retains tenure in his or her original tenure area while he or she remains continuously employed as a full-time member of the professional staff of the district.

2. 8 NYCRR §30-1.13(c) provides that upon abolition of his or her position, a professional educator who has tenure status in additional tenure areas must be transferred to such other tenure area in which he or she has greatest seniority.

The Commissioner noted that both regulations apply “only to professional educators who have tenure and seniority rights in another tenure area at the time tenure was acquired in a new tenure area or the position was abolished, as applicable.”

In this instance, however, the school district claimed that Kwasnik had resigned from her tenured English teacher position and thus the issue before the Commissioner in this appeal is whether she had knowingly and freely waived her tenure and seniority rights in the English tenure area by resigning from her position as an English teacher. 

Citing Matter of Middleton (16 Ed Dept Rep 50, Decision No. 9,296, reopening denied 16 id. 366, Decision No. 9,433), the Commissioner noted that where a teacher had resigned from a full-time position but was simultaneously appointed to a non-probationary, part-time position in the district it was held that the resignation served to terminate the employment relationship and any reinstatement rights. 

Similarly, said the Commissioner, although Kwasnik continued to work in the district and her benefits accrued without interruption, “I must conclude that her resignation from her position as a tenured English teacher constituted a relinquishment of her tenure and seniority rights with respect to an English teacher position.”

The Commissioner then observed that to be enforceable, such a waiver of tenure rights must be knowingly and freely given and not the product of coercion. Further, “[a]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted* by school authorities.”

Kwasnik asserted that that she expressed reservations to the district’s previous superintendent about resigning but was told that “it was the only way she would be able to take on the duties of a Library Media Specialist.”  She then claimed that she “reluctantly” agreed to provide a letter of resignation. 
  
The Commissioner, however, said that “The record indicates that petitioner knowingly and freely resigned from her position of English teacher once she was assured that she would be receiving the position of a library media specialist.” The Commissioner continued: “While [Kwasnik] may have expressed reservations about providing a letter of resignation, she did not seek the assistance of counsel or her union before submitting the letter, nor did she indicate in her letter that she wished to maintain her tenure and seniority rights to the English teacher position.”

Finding that Kwasnik “has not demonstrated that she was coerced into submitting a letter of resignation” or that the district engaged in any other affirmative conduct that rendered her resignation involuntary, the Commissioner ruled that the school district acted reasonably when it viewed Kwasnik’s resignation “as a voluntary end to her employment as an English teacher, thereby terminating her seniority and tenure rights to that position.”

* COMMENT: Except as otherwise provided by law, rule or regulation, or by the terms of a collective bargaining agreement, a resignation need only be received by the appointing authority, or its designee, prior to receipt of a notice that the individual has rescinded or withdrawn it to be effected – acceptance of the resignation is not required for it to be operative [Hazelton v Connelly, 25 NYS2d 74]. An example of a situation where acceptance of a resignation mandated by statute: Section 2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume52/d16419.html

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