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May 27, 2015

Submitting, demanding and withdrawing a resignation from public employment

Submitting, demanding and withdrawing a resignation from public employment
2015 NY Slip Op 04408, Appellate Division, First Department

The rules of the New York State Civil Service Commission provide that "every resignation shall be in writing" [4 NYCRR 5.3(a)]. The rules further provides that if no effective date is specified in the resignation, it takes effect when delivered to or filed in the office of the appointing authority. If a date is specified, it takes effect on the date indicated. 4 NYCRR 5.3(c) also provides that a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.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.

The genesis of this appeal was Supreme Court’s order directing the New York City Department of Education (DOE) to reinstate an individual [Petitioner] to her teaching position with back pay and all other economic benefits of employment from August 28, 2008. DOE appealed and the Appellate Division unanimously reversed the lower court’s ruling, on the law and the facts.

The Appellate Division held that Petitioner’s action was time-barred because it was filed more than four months after Petitioner's receipt of DOE's letter notifying her that she was taken off the payroll as a result of her resignation. (see CPLR 217[1]; see also Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834 [1983]). The court explained that Supreme Court had failed to distinguish the regulations applicable to employee requests to "rescind" a resignation, which are made before the effective date of the resignation, and requests to "withdraw" a resignation, which are made after the effective date of the resignation. Further, the "delivery or filing" of a written resignation is the operative element and “acceptance” of the employee’s resignation by the appointing authority is not required.

In this instance Petitioner sought to rescind her resignation before it was effective. Under the relevant Chancellor's Regulation [C-205(26)], a resignation was deemed final upon submission and the Chancellor had no obligation to specifically notify Petitioner that her request to rescind was denied. The record, said the Appellate Division, indicates that DOE notified Petitioner on August 26, 2008 that she was being taken off the payroll based on her resignation. Thus, said the court, “[f]urther action by DOE was not required nor did Petitioner's letters to DOE after that date extend the statute of limitations, citing Lubin v Board of Education of the City of New York, 60 NY2d 974.

In any event, the Appellate Division noted that there was “a rational basis for DOE's determination terminating Petitioner’s employment based on her resignation in the face of disciplinary charges, and the determination was not arbitrary and capricious, made in bad faith, or made in violation of lawful procedure.”

In an earlier case, Smith v Kunkel, 152, AD2d 893 [appeal dismissed, 74 N.Y.2d 944] the Appellate Division considered the issue of an employee's attempt to withdraw his written resignation prior to its effective date. Smith, a permanent State employee had submitted his resignation for "personal reasons." The resignation was dated August 21 and was to take effect the following September 3. On August 29 Smith wrote the Division "seeking to withdraw and rescind" his resignation.

Kunkel, the Division's Administrative Officer, refused to approve Smith’s request to withdraw his resignation, citing 4 NYCRR 5.3(c) of the rules. Further, in Hazelton v Connelly, 25 NYS2d 74 the court said that all that is required for a resignation to become operative is its delivery to the appointing authority prior to the receipt of an employee’s request to withdraw or rescind the resignation prior to its receipt by the appointing authority. Approval or acceptance of the resignation is not required for the resignation to take effect

Smith had sued the agency contending that [1] Kunkel's refusal to permit him to withdraw his resignation was arbitrary and capricious and [2] 4 NYCRR 5.3(c) was unconstitutional as it deprived him of his public employment without notice and hearing.

As to Smith's constitutional challenge to the rule, the Appellate Division rejected Smith's argument that the rule was Unconstitutional noting that the argument overlooked a crucial fact: Smith had not been terminated but had voluntarily resigned his position. The court said that the "voluntariness of [Smith's] resignation is not vitiated by the fact that Kunkel rejected his withdrawal request prior to the effective date of his resignation... Having relinquished his position, [Smith] did not retain any constitutionally protected property interest in it."

On another point, sometimes an individual's notice that he or she has decided to withdraw, cancel or rescind the resignation is received by the appropriate official or body before the resignation is actually "delivered" to such person or body. In such situations the courts usually rule that the receipt of a withdrawal of a resignation before the resignation itself is delivered effectively voids the resignation.

Another issue that is sometimes raised in connection with an attempt to withdraw a resignation is a claim that the resignation was coerced from an employee or obtained under duress. Frequently an appointing authority will indicate to an employee that unless the worker submits his or her resignation, disciplinary charges will be filed against the individual.

The courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643].

Finally, where an employee has submitted his or her resignation after being served with disciplinary charges or in expectation of being served with disciplinary charges, an appointing authority may elect to disregard an employee’s resignation and proceed with the disciplinary action [see 4 NYCRR 5.3(b)].

The decision is posted on the Internet at:

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New York Public Personnel Law Blog Editor 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 members of the NYPPL staff 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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