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October 15, 2014

Withdrawal of a resignation


Withdrawal of a resignation
2014 NY Slip Op 06883, Appellate Division, First Department

From time to time a former New York City Department of Education educator who was tenured in the position is reemployed in his or her former position. Does such a reemployment automatically result in the employee attaining tenure? 

The Appellate Division ruled that if a former tenured employee fails to comply with the regulations of the Chancellor of the New York City Department of Education governing the “withdrawal of a resignation and restoration to tenure,” the former employee’s tenure is not ipso facto*restored.

Rejecting a former New York City Principal’s contention that his tenure was constructively restored to him upon his reemployment by the New York Department of Education, the Appellate Division affirmed Supreme Court dismissal of his petition seeking a court order directing the Chancellor to reinstate him to his former position with tenure.

In a footnote to the decision, the Appellate Division said that “neither side has explained why petitioner could not still be restored to tenure if he now followed the procedures set out in the Chancellor's regulations.”

The relevant regulations appear to be Regulation C-205, subdivisions (28) and (29).

C-205(28) [Withdrawal of Resignation Generally] provides, in pertinent part, that “upon written request, a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation….”

C-205(29) [Withdrawal of Resignation within Five Years] addresses the reinstatement of former non-supervisory tenured staff and provides, in pertinent part, that in the event "a non-supervisory educator is reinstated more than five years after the effective date of his or her resignation," he or she will be required to serve a two-year probationary period.

With respect to employees subject to the Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

That said, 4 NYCRR 5.4, Reinstatement following resignation, provides, in pertinent part that a permanent employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant.

4 NYCRR 5.4 further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.”

Many local Civil Service Commissions have adopted similar rules.

* In other words, the individual does not attain tenure as a direct consequence of his or her reemployment.

The decision is posted on the Internet at: 
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