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Thursday, March 16, 2017

Withdrawing a letter of resignation

Withdrawing a letter of resignation
Lust v State of New York, 2017 NY Slip Op 01742, Appellate Division, Third Department

Francis Lust visited his employer's Human Resources office and told a personnel associate of his intention to retire. The personnel associate said that a letter of resignation was required and, upon Lust's request, prepared a letter of resignation on his behalf stating that "This letter serves as my intent to resign for purposes of retirement on March 30, 2015 close of business."  Lust reviewed and signed the letter without making any changes. The Director of Human Resources and, by letter dated February 11, 2015, she informed petitioner that his resignation had been accepted.*

On February 16, 2015, Lust informed the Director that, "due to financial reasons, he would not be able to retire as intended and, therefore, his earlier letter of resignation was "no longer valid." Lust's letter seeking to withdraw his resignation was rejected and he was told that his last day of employment would be, and was, March 30, 2015.

Lust initiated a CPLR Article 78 proceeding asserting, among other things, that the denial of his request to rescind his letter of resignation was arbitrary and capricious, an abuse of discretion or affected by an error of law. Supreme Court dismissed the petition and Lust appealed.

The Appellate Division agreed with the Supreme Court decision, holding that Lust was required to obtain the consent of the appointing authority before he could withdraw his resignation. The court said that 4 NYCRR 5.3(c ) of the Rules for the Classified Service, provides that a resignation tendered by an employee of the State as the employer in the classified service "may not be withdrawn . . . after it is delivered to the appointing authority, without the consent of the appointing authority."**

In this instance the Appellate Division concluded that the appointing authority had lawfully delegated its power of appointment to the chief executive officer [CEO] of the facility, who, in turn, by letter lawfully authorized the Director of Personnel to be his designee on "all matters related to employee relations and concerns" with "full authority to make decisions regarding whether to accept a resignation and, likewise, whether to deny a request to rescind a resignation from any such employee of the facility.

Accordingly, said the court, Lust's delivery of his letter of resignation to the Director on constituted delivery to CEO and, thus, petitioner could not unilaterally withdraw his resignation.

Holding that the question of "Whether to permit the withdrawal of a delivered letter of resignation is 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 Appellate Division dismissed Lust's appeal.

* Acceptance of a letter of resignation is not required for the resignation to be operative, all that is required is its timely delivery to the appointing authority or the appointing authority's designated representative.

** Many local civil service commissions have adopted a similar rule or regulation.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_01742.htm

Wednesday, March 15, 2017

The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation

The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation
Decisions of the Commissioner of Education, Decision 17,054

Gloria J. Parker, a tenured teacher, filed an appeal with the Commissioner of Education challenging her placement on paid administrative leave by her employer, the Board of Education of the City School District of the City of Rochester. She also named as respondents in her appeal the Rochester Teachers Association (“RTA”) and New York State United Teachers (“NYSUT”).

With respect to RTA and NYSUT, Parker contended that both organizations “failed to provide her with adequate representation.”

RTA and NYSUT argued that in addition to Parker's failure to properly serve her complaint upon them, the Commissioner should dismiss both organizations from the action as “each is an unincorporated association over which the Commissioner of Education has no direct jurisdiction.”

Essentially RTA and NYSUT claim that the Commissioner of Education lacks jurisdiction over an employee organization or a labor organization.

The Commissioner agreed, explaining that Education Law §310 provides that “any person considering himself aggrieved by an action taken at a school district meeting, by the trustees of a school district or library, or by any other official act or decision of a school officer or authority may seek review of such action or decision in an appeal to the Commissioner of Education. Education Law.” In the words of the Commissioner, “§310 does not authorize the Commissioner to review actions taken by an organization such as the teachers' association."

Accordingly, the Commissioner dismissed Parker's claims with respect to RTA and NYSUT “for lack of jurisdiction,” noting that with respect to Parker's allegation concerning the adequacy of representation provided by RTA and, or, NYSUT, the Public Employment Relations Board [PERB] has exclusive jurisdiction over claims of improper employee organization practices, including allegations that the employee organization breached its duty of fair representation.

The Commissioner's decision is posted on the Internet at:

Wednesday, March 01, 2017

An administrative disciplinary hearing, in whole or in part, may be closed to the public under certain, and limited, circumstances

An administrative disciplinary hearing,  in whole or in part, may be closed to the public under certain, and limited, circumstances 
2017 NY Slip Op 01473, Appellate Division, First Department

Although an administrative disciplinary hearing typically is open to the public, there are limited exceptions to this general rule as is demonstrated by this decision by the Appellate Division, First Department.

A New York City police officer was alleged to have engaged in sexual misconduct with a minor. In the course of the disciplinary hearing that followed, the Deputy Commissioner, as an  exercise of discretion, closed the hearing to the public during the minor's testifying concerning the police officer's alleged sexual misconduct.

The Appellate Division sustained the Deputy Commissioner's action in closing the hearing to the public while the minor testified "[g]iven the sensitive nature of the case and the victim's desire not to testify in front of her mother."

Noting that the Deputy Commissioner's findings of misconduct, sexual and otherwise, were supported "a preponderance of the credible evidence — namely, the forensic computer records, text messages, controlled calls, and [the police officer's] own statements upon his arrest — supported the minor victim's version of the events" the court, citing Tighe v Kelly, 305 AD2d 274, leave to appeal denied 100 NY2d 513, said that the penalty imposed on the police officer, termination, "does not shock the judicial conscience," given the findings that he had engaged in sexual misconduct with a minor.

The decision is posted on the Internet at:


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