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December 28, 2017

Demanding an employee submit his or her resignation from his or her position


Demanding an employee submit his or her resignation from his or her position
Ortlieb v Lewis County Sheriff's Dept., 2017 NY Slip Op 08115, Appellate Division, Fourth Department

Sheriff's Deputy Daryl Ortlieb commenced a CPLR Article 78 proceeding seeking a court order permitting him to withdraw the resignation he had earlier submitted to  Lewis County Sheriff Michael Carpinelli [Sheriff]  and directing the Sheriff to reinstate him to his former position as a deputy with the Lewis County Sheriff's Department. 

Ortlieb had tendered his resignation to Sheriff during a meeting at which the Sheriff threatened to terminate Ortlieb for alleged misconduct unless he resigned from his position.* Supreme Court concluded that the Sheriff abused his discretion in refusing to allow Ortlieb to withdraw his resignation and granted the relief requested in the petition. The Appellate Division affirmed the Supreme Court's ruling.

The Appellate Division said its review was limited to whether the Sheriff's "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." As the decision whether to allow Ortlieb to withdraw his resignation was within the Sheriff's discretion, the court said the issue before it was whether the Sheriff's denial of Ortlieb's request was arbitrary and capricious or an abuse of that discretion.

Citing Matter of Meier v Board of Educ. Lewiston Porter Cent. Sch. Dist., 106 AD3d 1531, the Appellate Division opined that "It is well settled that "[a] resignation under coercion or duress is not a voluntary act and may be nullified." Although a threat to terminate an employee does not constitute duress if the person making the threat has the legal right to terminate the employee, the court said that "such a threat does constitute duress if it is wrongful and precludes the exercise of free will" and "[i]t follows that a resignation obtained under the threat of wrongful termination is involuntary and may be withdrawn upon request, and that it is an abuse of discretion for an officer to deny such a request."

In this instance the Appellate Division characterized Ortlieb's tender of his resignation as having been submitted "under the threat of wrongful termination." Thus, concluded the Appellate Division, the Sheriff abused his discretion in refusing to allow Ortlieb to withdraw the resignation.

The Appellate Division, noting that there is no dispute that Ortlieb was entitled to pretermination notice and hearing pursuant to §75 of the Civil Service Law and that he was not provided with the requisite predisciplinary hearing, ruled that the Sheriff had no lawful right to terminate him.

The Appellate Division's decision stated that the Sheriff threatened to terminate Ortlieb for alleged misconduct unless he resigned from his position [emphasis supplied].

In contrast, in Rychlick v Coughlin, 63 NY2d 643, Rychlick, a corrections officer, in the presence of his union representative, was offered the option of resigning or having formal disciplinary charges filed against him [emphasis supplied].

Permitted to confer with a union official, when Rychlick requested time to consult with an attorney, he was advised that unless he resigned at that moment in time, charges would be filed against him. He resigned. Four days later Rychlick sought to withdraw the resignation, which he claimed had been “forced” from him. 

Although a lower court had found “duress” and ordered Rychlick reinstated with back pay, the Court of Appeals held that the “threat to file formal charges ... does not constitute duress.” The court noted that the appointing authority had the legal right, if not the duty, to press charges under the circumstances and it was not duress to threaten to do what one had the legal right to do.

In Rlychlik the employee was threatened with the "filing of formal [disciplinary] charges if he did not submit his resignation. In Ortlie it appears that the employee was threatened with "termination" -- presumably without the filing of disciplinary charges and the holding of a hearing -- a significant procedural difference.

Note that 4 NYCRR 5.3, in pertinent part, provides "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."

Should the appointing authority elect to "disregard" the individual's resignation and the individual declines to participate in the disciplinary hearing, the appointing authority must conduct the hearing "in absenia" and find the employee guilty and impose the penalty of dismissal in order to record the separation  as a dismissal rather than as a resignation.

Many political subdivision so the State had adopted a similar local law, rule or regulation.

* The decision states that there had been "no predisciplinary hearing pursuant to Civil Service Law §75."

The decision is posted on the Internet at:


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