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Monday, August 18, 2014

Threatening to use administrative authority


Threatening to use administrative authority



In an Associated Press news item dated August 16, 2014 by Paul J. Weber and Will Weissert concerning the indictment of Texas Governor Rick Perry by a grand jury for allegedly “abusing the powers of his office by carrying out a threat to veto funding for state prosecutors investigating public corruption” the article states that “No one disputes that Perry is allowed to veto measures approved by the Legislature, including part or all of the state budget. But [a] government watchdog group filed an ethics complaint accusing the governor of coercion because he threatened to use his veto before actually doing so in an attempt to pressure [Travis County, Texas, District Attorney Rosemary] Lehmberg to quit.”

As to the allegation of coercion by a public officer, is it coercion for an appointing authority to threaten an employee with disciplinary action if he or she does not immediately submit his or her resignation from his or her position?

In Rychlick v Coughlin, 63 NY2d 643, the employee was told that if he did not submit his resignation immediately he would be served with disciplinary charges. A few days later Rychlick asked to withdraw the resignation* claiming that he had been "forced" to submit it. When his request was denied, Rychlick sued, claiming his resignation had been obtained under duress and thus was void.

The Court of Appeals disagreed with Rychlick’s claim of coercion, pointing out that threatening to do what the appointing authority had a right to do – in this instance filing disciplinary charges -- did not constitute coercion so as to make Rychlick’s resignation involuntary.

In contrast to having been threatened with disciplinary action if he or she did not submit the resignation demanded by the appointing authority, from time to time an employee will allege that resignation submitted was not voluntary but, in fact, constituted a “constructive dismissal.” In order to maintain an action for constructive dismissal, however, the plaintiff must show that his or her employer deliberately made working conditions so intolerable that he or she was forced into submitting the resignation.

* The rules of the New York State Civil Service Commission, which apply to employees of the State as the employer, provide that "every resignation shall be in writing" [4 NYCRR 5.3(a)] while 4 NYCRR 5.3(c) provides that a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority. Many local civil service commissions and personnel officers have adopted similar rules concerning resignations of employees subject to their respective jurisdictions.

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/

A Reasonable Penalty Under The Circumstances 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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