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April 06, 2016

A tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position

A tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position
Springer v Board of Educ. of the City Sch. Dist. of the City of N.Y., 27 NY3d 102

In January 2011 Grant Springer, a tenured teacher then employed by the New York City School District [NYCSD], resigned from his position. In October 2011 Springer applied for and was employed to teach at another NYCSD school. During the 2011-2012 school year, a new principal was appointed at the school at which Springer was employed, Tyee Chin.

In April 2012, Chin informed Springer that he did not believed Springer had tenure in his position. On the advice of his union representative, Springer submitted a form to withdraw his January 2011 resignation. NYCSD, however, told Springer that his request to withdraw his January 2011 resignation would not be processed “because it was submitted too late.”

In May 2012, Springer received a rating of "unsatisfactory" for the 2011-2012 school year and was terminated from his position effective June 22, 2012.

In October 2012, apparently without have earlier filed an administrative grievance challenging NYCSD's refusal to consider his request to withdraw his resignation or his termination, Springer initiated a CPLR Article 78 proceeding against NYCSD contending that “under paragraphs 28 and 29 of Chancellor's Regulation C-205, as well as the collective bargaining agreement between the Board and the teachers' union, he ‘was a tenured teacher upon his reappointment’ and, therefore, "[NYCSD’s] decision to terminate his employment without just cause and without following the [disciplinary] procedures" in Education Law §3020-a his termination was unlawful and "arbitrary and capricious, or an abuse of discretion." He asked the court to direct his reinstatement to his teaching position and to provide related relief.

NYCSD asked Supreme Court to dismiss Springer's petition, contending, among other things, that the petition failed to state a cause of action and that Springer failed to exhaust his administrative remedies. Supreme Court granted NYCSD’s motion and dismissed the proceeding, concluding that the petition was "premature for failure to exhaust administrative remedies." Springer then appealed the Supreme Court’s decision.

The Appellate Division unanimously affirmed the result of the Supreme Court's ruling, but on a different ground (see 121 AD3d 473}. The Appellate Division concluded that "[t]here is no question that [Springer] failed to comply with [Chancellor's Regulations] C-205(28) and C-205(29), which govern withdrawal of a resignation and restoration to tenure." Hence, when [Springer] was rehired by a principal, his tenure was not, ipso facto,* restored. That same panel of the Appellate Division then granted that portion of Springer’s  subsequent motion seeking leave to appeal to the Court of Appeals, certifying the following question of law: "Was the [Appellate Division] order . . . properly made?"

The Court of Appeals commenced its review of Springer's appeal by noting that the Chancellor has the authority to promulgate regulations "necessary or convenient" to the administration of the New York City public school system and cited paragraph 28 of Chancellor's Regulation C-205, entitled "Withdrawal of Resignation Generally." C-205 sets out the general procedure for withdrawing a resignation and Paragraph 29, entitled "Withdrawal of Resignation Within Five Years by Tenured Staff, describes the procedure for the withdrawal of resignation by tenured teachers to permit them to return to teaching with tenure.

C-205(29) provides, in relevant part, that "[A] non-supervisory pedagogical employee who had attained permanent tenure prior to the date of resignation shall, remain tenured and, upon written request, be permitted to withdraw such resignation subject only to medical examination and the approval of the Chancellor, provided that reinstatement is made on or before the opening of school in September next following five years after the effective date of resignation. If reinstatement is made after this date, a two year probationary period will be required."

In the words of the Court of Appeals, “C-205(29) provides that a tenured teacher who has resigned may avoid a probationary term in a new position by submitting a ‘written request’ to withdraw the prior resignation. That request will be ‘subject only to medical examination and the approval of the Chancellor,’ so long as reinstatement is made in accordance with the timing requirements set forth in the Regulation. The CBA between the Board and the teachers' union contains a parallel provision.”

Springer argued that his written applications for various teaching positions satisfied the “written request to withdraw his resignation” requirement. He also contended that when “the [New York City Board of Education, Board,] rehired him in October 2011,  within five years of his prior resignation, the Board effectively accepted the withdrawal of his resignation.” Thus, said Springer, “he was a tenured teacher at the time of his termination in June 2012 and that the Board violated his due process rights by failing to provide him with the procedural protections required by Education Law §3020-a.”

NYCSD, on the other hand, argued that Springer “ignores the important role of the written request for withdrawal, most notably the Chancellor's role in the process.” Implying that a written request does not result in a “fait accompi,**insofar as regaining tenure is concerned, NYCSD said by submitting a written request, “the Chancellor is afforded the opportunity to assess the teacher's work history and competence and may reject a request to withdraw a resignation.” NYCSD also pointed out that the procedure permits important hiring information to be conveyed to a hiring principal, including the fact that the teacher would have full tenure rights in the teacher's new position or not, as the case might be.

The Court of Appeals concluded that “Because [Springer] did not withdraw his resignation through the mechanism of a written request, the requirements of C-205(29) were not met and [Springer] was not reinstated with tenure.” In the words of the court, “We hold that a tenured teacher who resigns, and later seeks to return as a tenured teacher, must strictly comply with the regulation and submit a written request to withdraw his or her prior resignation.”
Although Springer’s position was in the Unclassified Service,*** in the event a permanent employee in a position in the Classified Service**** of the State as the employer resigns from his or her position and subsequently wishes to withdraw his or her resignation he or she must obtain the approval of the appointing authority to do so. Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provide 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.”

Further, 4 NYCRR 5.4, Reinstatement following resignation provides, in pertinent part, that a former permanent State 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. This rule, then 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 rules similar to 4 NYCRR 5.4.

* Latin: By the very nature of the action or the act.

** Fait accompli is a French phrase which means literally "an accomplished deed". It is commonly used to describe an action which is completed.

*** See, generally, Civil Service Law §35.

**** See, generally, Civil Service Law §§40-45

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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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