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September 25, 2013

The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual


The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual
OATH Index No. 2041/13

The New York City Human Resources Administration initiated disciplinary action against an employee alleging the employee was AWOL based on the individual's long-term absence from work. The employee’s absence from work resulted from the individual’s incarceration and conviction of a crime.

The employee resigned soon after the disciplinary hearing was held and asked that the OATH Administrative Law Judge to refrain from issuing a decision.*

ALJ Joan R. Salzman ruled that the employer has the right to request a determination on the merits of the charges “for the legitimate purpose of assessing future public employment under Civil Service Law.”

Judge Salzman found the employee guilty of misconduct but made no penalty recommendation in consideration of the individual’s resignation. 

* 4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, “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.. A number of local civil service commissions have adopted a similar rule applicable to employees appointed by public entities subject to its jurisdiction.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-2041.pdf
.

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