September 19, 2019

Rescinding or withdrawing a letter of resignation


The employee [Plaintiff] in this action was a civilian employee of a police department [Department]. A detainee had died in her holding cell at police headquarters while the Plaintiff was on duty. The New York State's Attorney General's Office investigated the death of the detainee and recommended "administrative action regarding the Plaintiff's conduct" be initiated by the Department.

The then Department's appointing authority "authorized" the Plaintiff's supervisor "to resolve the disciplinary issue by accepting a letter of resignation" from the Plaintiff. The supervisor told Plaintiff that if he did not resign from his position a formal disciplinary proceeding would be commenced against him. Plaintiff tendered his resignation letter immediately after his meeting with his supervisor.

The next day, however, Plaintiff sent a letter to his supervisor rescinding his resignation. About two weeks later the Department notified the Plaintiff' that it had rejected his effort to rescind his resignation. Plaintiff then commenced a CPLR Article 78 proceeding seeking a court order [1] vacating the Department's decision, [2] directing the Department to reinstate him to his former position and [3] to pay Plaintiff "damages and back pay. The Supreme Court granted Plaintiff's petition and the Department appealed.

With respect to resigning from a position in the classified service, the Appellate Division, citing 4 NYCRR 5.3(b), said that such resignations are to be delivered to, or filed in the office of, the appointing authority* and that 4 NYCRR 5.3(c) provides that "a resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority."

However, the court noted that the Department's appointing authority was not authorized to delegate his authority to receive the delivery of an employee's written resignation to another individual.

Although the heads of other departments in the jurisdiction were specifically authorized to delegate the power to receive the delivery of an employee's resignation to a designated individual, the powers and duties of the Department's appointing authority "did not specifically provide for any such delegation of the [appointing authority's] power to a subordinate." Accordingly, the Appellate Division held that Plaintiff's supervisor "was without authority to receive delivery of [Plaintiff's] resignation letter" on behalf of the Department's appointing authority.

As there was no indication in the record that Plaintiff's letter of resignation was delivered to the appointing authority or filed by or on behalf of the Plaintiff with the appointing authority's office prior to the Plaintiff's request to rescind it, "such that the [appointing authority's] consent to [its withdrawal] was necessary," the Plaintiff was not preclude from "unilaterally rescinding his resignation."

It should be noted that  the Plaintiff  was informed that if he did not submit his resignation to his supervisor a formal disciplinary proceeding against him would be initiated. Does such a demand constitutes “duress or threat” that will defeat the “voluntariness” of the resignation and make it meaningless? Case law indicates that in the absence of extenuating circumstances such as an excessively lengthy or intense questioning, courts will not deem the individual's resignation to have been obtained under duress.

In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeal addressed a situation where an employee was offered the option of resigning from his position or having formal disciplinary charges filed against him. Although permitted to confer with a union official, when the employee asked for additional time to consult with an attorney, he was told that unless he submitted his written at that very moment, disciplinary charges would be filed against him. He submitted his resignation but four days later attempted to withdraw or rescind his resignation, which he contended had been “forced” from him.

Ultimately the Court of Appeals held that a threat to file formal disciplinary  charges against an employee if he declined to submit his resignation "does not constitute duress," explaining that as the appointing authority had the legal right, if not the duty, to file disciplinary charges against the individual, threatening to do what the appointing authority had the legal right to do is not duress.

In contrast to an individual's efforts to withdraw his or her resignation, an appointing authority may elect to ignore a lawfully delivered resignation.

4 NYCRR 5.3(b), which as noted earlier applies to State employees in the classified service, provides that in the event “… 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 termination shall be recorded as a dismissal rather than as a resignation". Many civil service commissions of political subdivisions of the State have adopted a similar provision.

* 4 NYCRR 1.1 et seq. applies to incumbents of positions in the classified service of the State as the employer and to public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the New York State Department of Civil Service. Here the "local civil service commission" had adopted personnel rules similar to those set out in 4 NYCRR 1.1 et seq. which applied to all positions in the classified service of the county and all civil divisions "which are or may hereafter be under the jurisdiction" of the local commission.

The decision is posted on the Internet at:

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