February 26, 2019

Where a regulation permits an employee to rescind his or her resignation the appointing authority's decision should made within a reasonable period of time


Where a regulation permits an employee to rescind his or her resignation the appointing authority's decision should made within a reasonable period of time
Joyce v New York City Dept. of Educ., 2019 NY Slip Op 01183, Appellate Division, First Department

In July 2012 the New York City Department of Education [DOE] rejected an educator's [Teacher] request for rescission of the resignation he had submitted in August 2011. Teacher the initiated an Article 78 action challenging DOE decision and in 2013 Supreme Court ruled in Teacher's favor directed DOE to accept Teacher's request for reinstatement. DOE appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

For almost four years, however, DOE failed to reinstate Teacher, during which period there was litigation between the parties. However it was not until Teacher filed a motion for contempt did the Chancellor finally respond to, and deny, Teacher's request for reinstatement, apparently in consideration of Teacher's "unsatisfactory year-end performance rating for the 2010-2011 academic year."

To further confound the situation, Teacher's unsatisfactory year-end performance rating apparently relied on by the Chancellor was ultimately annulled by the Appellate Division in May of 2018 [see Matter of Joyce v City of New York, 161 AD3d 488].

Under the circumstances, the Appellate Division said that it found that "good faith and fairness demand that a decision on a request for rescission of resignation pursuant to Chancellor's Regulation C-205(29) be made within a reasonable time." In so doing, the court rejected DOE's "suggestion that the Chancellor has the discretion to wait more than three years before making such a decision, without providing a reason for the delay."

Noting that Supreme Court had directed DOE, in an order issued in May 2013, to follow its own stated procedure by accepting the rescission letter and reinstating Respondent, subject to the Chancellor's approval as provided in the regulation, the Appellate Division held that DOE's delay "was unacceptably long and effectively operated to subvert the court's order."

The decision is posted on the Internet at:


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