Monday, 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].

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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