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July 15, 2013

Abandonment of a position

Abandonment of a position
Ciccarelli v West Seneca Central School District, 107 AD2d 105

In a case challenging a teacher’s alleged abandonment of her position, the Appellate Division rejected a Board of Education’s resolution holding that an educator had abandoned her position and terminating her.

The court said that the burden of proving that the educator had abandoned her tenured teaching position was upon the District. This must be established "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, a tenured teacher may be terminated only in accordance with §3020-a of the Education Law.

In a similar situation involving an employee in the classified service [teachers are in the unclassified service] a former rule of the New York State Civil Service Commission [4 NYCRR 5.3(d)] providing that a State employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position was held to violate the employee's right to due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. However, this type of provision has survived in collective bargaining agreements, [see New York State Off. of Mental Health v New York State Div. of Human Rights, 53 A.D.3d 887].

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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