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Tuesday, December 08, 2015

Once the appointing authority of an employee in the classified service has received his or her resignation, the resignation may not be withdrawn or rescinded without the approval of the appointing authority


Once the appointing authority of an employee in the classified service has received his or her resignation, the resignation may not be withdrawn or rescinded without the approval of the appointing authority
Cowin v New York State Div. of Criminal Justice Servs., 2015 NY Slip Op 08683, Appellate Division, Third Department

While employed as a Criminal Justice Program Representative 1 by the Division of Criminal Justice Services (DCJS) Thomas C. Cowin was served with a notice of discipline alleging that he had violated certain sections of the DCJS Employee Handbook and Penal Law §220.03* as the result of his alleged receipt of a controlled substance from a coworker that was not prescribed to him. Cowin filed a grievance under the applicable collective bargaining agreement and, after declining an initial offer of settlement from DCJS, arbitration of the matter was placed in abeyance pending the outcome of further settlement discussions.

On July 11, 2013 Cowin received a provisional offer of employment from the Justice Centerfor the Protection of People with Special Needs (Center). Four days later Cowin hand-delivered his letter of resignation to Karen Davis, DCJS's Director of Human Resources Management, [Davis], in which Cowin stated that his last day of work would be July 30, 2013.

Then on July 18, 2013, the Center notified Cowin that its offer of employment with the Center had been rescinded. Cowin immediately sent an email to Davisseeking to withdraw his letter of resignation but by letter dated July 26, 2013, Cowin was told that his request to rescind or withdraw his letter of resignation was denied. This decision was subsequently confirmed by Michael Green, the Acting Commissioner of DCJS, who again advised Cowin that DCJS did not consent to the withdrawal of his resignation.**

Cowin initiated a CPLR Article 78 proceeding alleging, among other things, that DCJS's refusal to permit him to withdraw his resignation was arbitrary and capricious, an abuse of discretion and affected by error of law. Supreme Court partially granted Cowin’s petition, annulling DCJS's determination and ordered that Cowin be reinstated to his former position with back pay and benefits. DCJS appealed.

The Appellate Division said that “Contrary to the conclusion reached by Supreme Court, [Cowin] was not entitled to unilaterally withdraw his resignation without [the] consent” of DCJS. The court cited 4 NYCRR 5.3(c), which, in pertinent part, provides that a resignation delivered to the appointing authority by an employee in the Classified Service "may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority."

The court explained that Green, as the Acting Commissioner of DCJS charged with the administration of the agency, was the "appointing authority" and had the statutory authority to delegate any of his powers to appointed "deputies, directors, assistants and other officers and employees, committees and consultants as he may deem necessary." As Green had delegated his power to receive employee resignations to the Director of Human Resources Management, Davis, the delivery of Cowin’s letter of resignation to Davisconstituted delivery to Green. Thus Cowin could not withdraw his resignation with the consent of the appointing authority or his or her designee.

The Appellate Division said that it found that DCJS’ consent was not improperly withheld, explaining that permitting an individual to withdraw his or her delivered letter of resignation was a matter committed to the sound discretion of the appointing authority and “such a determination will be disturbed only if it constituted an abuse of discretion or was arbitrary and capricious.”

The court found that Green's decision to refuse Cowin’s request to withdraw his resignation was based upon his consideration of several relevant facts and circumstances, including Cowin's unequivocal admission to accepting a controlled substance from a coworker and ingesting it at work in violation of both DCJS's drug-free work policy and the Penal Law. As such conduct could have a potentially detrimental effect on DCJS's reputation, and Cowin's ability to perform his job duties, the court viewed the appointing authority’s denial of Cowin's request to rescind his resignation as neither arbitrary and capricious nor an abuse of discretion.

The Appellate Division then dismissed Cowin’s petition “in its entirety.”

* §220.03 - Criminal possession of a controlled substance in the seventh degree.

** In contrast, an individual's notice that he or she has decided to withdraw, cancel or rescind the resignation may be 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 [see Grogan v Holland Patent CSD, 262 AD2d 1009].

The decision is posted on the Internet at:

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