Appointment to positions in the public service of the State of New York
its political subdivisions
With apologies to Elizabeth Barrett Browning, How may I appoint you; let me count the ways! As this article will attempt to illustrate, there are many types of employments and appointment procedures available to the State as an employer, to a political subdivision of the State or to a New York State public benefit corporation with respect to appointing or employing an individual.
Also, it should be noted that although not all public employees are public officers, all public officers are public employees.
Essentially the workforce in New York State consists of individuals eligible to be lawfully employed that are employed and individuals unemployed but seeking employment. If employed, the individual is either working in the private sector or the public sector.
Excluding the federal government and interstate compact commissions and authorities, if serving in the public sector in New York State the individual is either in the State’s military service or its civil service.
The State’s “civil service” has two components: the classified service and the unclassified service.
Appointments to positions in the classified service are subject to the approval of the New York State Civil Service Department or a local Civil Service Commission or Personnel Officer, depending on the appointing authority involved.
A position in the classified service is typically a position in the competitive class or, as provided by law, it may be “jurisdictionally classified” as a non-competitive class position, an exempt class position or a labor class position. All classified service positions are automatically in the competitive class unless placed in a different jurisdictional class by the action of a civil service commission or by a statute.
An individual’s statutory rights with respect to his or her employment, including his or her right to administrative due process in a disciplinary situation, depend on the nature of his or her appointment by the responsible appointing authority of the State or a political subdivision of the State and his or her status flowing therefrom.
The statutory rights of employees in the civil service of the State and its political subdivisions, however, are not universal. A simple example: an individual appointed as a provisional or temporary employee in a position in the competitive class does not have the same employee statutory rights as those enjoyed by an individual holding a permanent appointment in the same competitive class title.
An individual’s statutory right to many benefits of employment such as eligibility to compete in a promotion examination for a higher grade position, his or her seniority in a layoff situation, and the right to administrative due process for the purpose of discipline all flow from on the individual’s initial date of permanent appointment, his or her tenure status and the jurisdictional classification of the position in which he or she serves as a matter of law.
In contrast, employees in a collective bargaining unit within the meaning of the Taylor Law, regardless of their holding “permanent appointment” or otherwise, are typically entitled to many, if not all, the rights and benefits established through collective bargaining and set out in a collective bargaining agreement. Such rights and benefits could include determining seniority for the purpose of “shift selection,” eligibility for, or avoiding, working “overtime,” preference in selecting “vacation” time or “job bidding,” or, indeed, administrative due process in a disciplinary setting, without regard to the individual’s “civil service status.”
Determining an individual’s appointment or employment rights and status involves an inquiry as to whether one holds a permanent appointment, a contingent permanent appointment, a temporary appointment, or a provisional appointment, and in some instances, the individual’s minimum period of probation if he or she has not yet satisfactorily completed his or her maximum period of probation.
A critical element in considering an individual’s rights as an employee in the public service is “tenure.” An individual permanently appointed to a position attains tenure in his or her position upon the satisfactory completion of his or her probationary period. Further, tenure is vested in the individual, regardless of the budgeted or funding status of the item from which he or she is paid. In other words, a person may be permanently appointed to a position established or budgeted as a “temporary position” while, in contrast, an individual may be serving in a “permanent position” yet not enjoy a “permanent appointment” because he or she has been appointed to the position as a provisional employee or as a temporary employee. Indeed, an individual may be permanently appointed to a nonexistent position and thereupon granted an immediate leave of absence in anticipation of the availability of an appropriate vacancy in the near future.
An individual’s appointment status and the jurisdictional classification of the position in which he or she serves is often critical to correctly resolving questions involving the individual’s employment in the public service. Anyone involved in the disciplinary process or making a seniority determination in a layoff situation must consider these elements, as an employee’s rights to administrative due process and layoff rights, if any, depend on his or her actual, i.e., statutory, appointment status and the actual jurisdictional classification of the position to which he or she has been appointed.
On this point it is well to remember that regardless of what an appointing authority believes to be the case, or intended in appointing the individual to, or continuing the individual in, the position, the status of the individual as recorded in the personnel records of the responsible civil service department or commission control.
The failure of an appointing authority to correctly identify an individual’s statutory appointment status or the statutory jurisdictional classification of the individual’s position neither enhances nor diminishes the employee’s legal rights but could prove costly to the employer.
The selection of individuals for appointment to positions in the several jurisdictional classes of positions in the classified service -- the competitive class, the non-competitive class, the exempt class and the labor class – reflect the requirements of Article V, §6 of the New York State Constitution. Article V, §6, in pertinent part, requires that “Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive….”
As earlier noted, all positions in the classified service are in the competitive class unless placed in a different jurisdictional class by statute or by the civil service commission having jurisdiction [see §§41, 42 and 43 of the Civil Service Law]. Consistent with Article V, §6, competitive examinations are used to establish eligibility for permanent appointment to positions in the competitive class. Selection of an eligible from a list resulting from a competitive examination is typically based on the so-called “rule of three” currently set out in §61.1 of the Civil Service Law.
Such has not always been the case. The Civil Service Law of 1883 was amended to provide for “the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission.” In 1900 this "rule of one" as then set out in then Civil Service Law §14 was struck down by the Court of Appeals as unconstitutional.
In People v Mosher, 163 NY 32, the Court of Appeals held that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power.”
Following the Mosher decision, then Section 14 of the Civil Service Law was further amended to provided that “appointments shall be made from among those graded highest,” thus restoring the language initially set out in the Civil Service Law of 1883.
Ultimately the so-called "rule of three" as currently set out in Section 61.1 of the Civil Service Law was enacted in concert with the recodification of the Civil Service Law in 1959 [Chapter 790 of the Laws of 1958] and provides for the appointing authority's selecting from among the three candidates who stand highest on the eligible list and who are interested in the appointment.
While the rule of three permits the appointing authority to select from among the highest scoring candidates for appointment to positions in the competitive class, there may be candidates having the same final test scores. In the event candidates have tied scores, essentially the appointing authority may select from among all those having the same “highest” final test scores and certified for appointment from the eligible list consistent with the “rule of three.”
For example, under rule of three if 2 candidates achieved a test score of 96 and 14 attained a test score of 95, all 16 candidates would be certified as eligible for appointment and the appointing authority could select any one of the 16 for appointment to the vacancy. In contrast, were there 14 candidates attaining a test score of 96 and 2 attained a test score of 95, only the 14 “top ranked eligibles” would be certified as eligible for the appointment. The appointing authority, however, could select any one of the 14 names certified as eligible for appointment to the position being filled.
In some instance an appointing authority may elect to follow a "rule of one" by always selecting the individual in accordance with his or her rank or placement on the eligible list for the position. Sometimes this is done on the basis of tradition [see, for example, Matter of Horowitz, 70 AD2d 85], in other instances pursuant to the terms of a collective bargaining agreement.
Indeed, in a “rule of the list” case flowing from an alleged violation of the collective bargaining agreement, Matter of Professional, Clerical, Technical Employees Ass'n (Buffalo Bd. of Education), 90 NY2d 364, the Court of Appeals concluded that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain individuals on an eligible list where a probationary period is required in order to attain tenure in the position to which they have been permanently appointed.
In contrast to a "rule of the list" mandated by a civil service commission, an appointing authority may itself elect to establish or agree to such a rule in the course of collective bargaining and be bound thereby.
The Buffalo decision indicates that selection for appointment following the rule of one may be agreed to in a collective bargaining agreement for positions in the competitive class and for both interdepartmental and intradepartmental promotions in concert with providing for appointments subject to probationary period as Section 63 of the Civil Service Law provides that "every original appointment to a position in the competitive class and every interdepartmental promotion ... shall be for a probationary term" while Section 61 authorizes appointing authorities to require "probationary service upon intradepartmental promotion" by rule.
One statutory "rule of the list" has thus far survived. Section 81 of the Civil Service Law, providing for appointment from a preferred list, subject to certain exceptions, requires that "the names of persons on a preferred list shall be certified therefrom for reinstatement to a vacancy in an appropriate position in the order of their original [uninterrupted permanent] appointments” in the classified service.
As to appointment to positions in the noncompetitive class, “noncompetitive examinations” are used to fill such positions. Typically a noncompetitive examination consists of a review of the nominee’s “training and experience” and, in some cases, a performance test. Under certain circumstances an appointing authority may nominate an eligible competitive class employee for a noncompetitive promotion examination to fill a higher grade position in the competitive class that is “in the line of promotion.”
Persons appointed to labor class positions need only qualify by such examination for fitness for employment, if any, as the State Department of Civil Service or the responsible municipal commission may require of such applicants while those appointed to positions in the exempt class must simply satisfy the requirements of the appointing authority.
Each position in the exempt class must be specifically named to be in such class in the rules of the responsible civil service commission. Further, in the event the exempt position becomes vacant, the state or municipal civil service commission having jurisdiction must evaluate the position to determine whether the position, as then constituted, is properly jurisdictionally classified in the exempt class. Until the responsible commission makes its determination, §41.2 of the Civil Service Law provides that the position can only be filled on a “temporary basis.”
Another element to be considered in the event of the “jurisdictional reclassification” of a position is the status of the individual in the newly jurisdictionally reclassified position.
For example, §355-a.10.a. of the Education Law, in relevant part, provides that “The incumbent of any position in the classified service which is determined to be in the unclassified service shall … retain the rights and privileges of the classified service jurisdictional classification with respect to discipline, dismissal and suspension for as long as such person remains in the redesignated position.”
The Unclassified Service
In addition, the teaching and supervisory staff positions of a school district, a board of cooperative educational services or a county vocational education and extension board, as certified to the State Civil Service Commission by the Commissioner of Education, are in the unclassified service. The Commissioner of Education prescribes qualifications for appointment to all such positions and is responsible for establishing the specifications setting out the qualifications for appointment to such positions and the nature and scope of the duties and responsibility of the incumbents of such positions. Further, an individual is to be appointed to a position in the “appropriate tenure area” consistent with the provision of 8 NYCRR 30.4.
For example, with respect to the probationary period to be served by an educator upon permanent appointment, Education Law §3012(1)(a) provides that "Teachers … shall be appointed …for a probationary period of three years; provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state, …and who was not dismissed from such district or board … the probationary period shall not exceed two years."
In a probationary situation, tenure by estoppel or tenure by acquiesce "results when a school board [or BOCES] fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of [the] probationary term."
In determining the duration of the probationary period, if a teacher is absent during his or her probationary period, the district may extended the probationary period for a period of time equal to the absence.
Authority to designate positions as being in the unclassified service similar to that granted the Commission of Education is vested in the Chancellor of the State University with respect to positions in the State University’s professional service as defined in §355-a.3 of the Education Law. The Chancellor is required to report any position he or she places in the professional service to the State Civil Service Commission.
However, any existing State University position in the classified service that the Chancellor seeks to designate as being in the unclassified must be approved by the State Civil Service Commission before the change may take effect.
8 NYCRR 333 et. seq. sets out the various types of employments in the professional service of the State University, which include the chief administrative officer, college administrative officers, the chairs of departments and divisions, and the college faculty.
NYCRR 335 provides for the various types of appointment of employees in the professional service, which appointments may be a continuing appointment, a permanent appointment, a term appointment, a probationary appointment, a temporary appointment or an appointment as a distinguished and university professor or as a distinguished librarian.
Employees at the State’s “statutory contract colleges” at Alfred and Cornell Universities are employees of those Universities, respectively, although they, by statute, are eligible for certain benefits available to employees of the State as an employer such a participating in the New York Employees’ Retirement System or the State University’s Optional Retirement Program and in the State’s Employees’ Health Insurance Plan [NYSHIP].
In addition, all positions in the State’s community colleges and the Fashion Institute of Technology encumbered by individuals whose principal functions are teaching or the supervision of teaching are in the professional service.
Public Benefit Corporations
The dismissal of an employee by the New York City Health and Hospital Corporation, a public benefit corporation, required the courts to consider another form of a public benefits corporation's personnel structure - a situation where some of the corporation's employees are treated as though they were subject to the Civil Service Law and others are not.
The decision in Burns v Quinones, 68 NY2d 719, indicates it is possible for the Legislature to provide for something in between legislation giving employees of a public benefit corporation full “Civil Service Law rights” and the Legislature’s not providing such rights by reason of the statute’s remaining silent in this regard.
The legislation creating the New York City Health and Hospital Corporation did not expressly make employees of NYCHHC subject to the provisions of the Civil Service Law. However it did provide that NYCHHC was to "promulgate rules and regulations consistent with the Civil Service Law" regarding certain personnel practices. Such rules were mandated for employees who were not excluded from collective bargaining representation, presumably under the Taylor Law (see §7385 of the Unconsolidated Laws).
This was permissible, said the Court, as there was nothing to prevent the State Legislature from providing that the Civil Service Law was to be made applicable to certain employees of a public benefit corporation but not other employees of the corporation. Accordingly, Burns, an employee excluded from representation within the meaning of the Taylor Law, was not covered by the rules “consistent with the Civil Service Law” promulgated by NYCHHC and his termination without a pretermination Civil Service Law §75 disciplinary hearing was held lawful.
Such a distinction in employee status is not all that unusual. In many public employment situations in the State and its political subdivisions statutes may provide that certain positions in a department or agency shall be in the unclassified service. Placing the position in the unclassified service makes the provisions of the Civil Service Law inapplicable to the incumbent of the position. Probably the most common example of this is found in a school district or a BOCES where the majority of professional employees are in the unclassified service and the other employees of the school district or a BOCES are in the classified service and subject to the Civil Service Law.
In a case involving a similar question -- “When is an employee a public employee?” -- the Appellate Division considered whether or not an employee of a company that operated the County's public transit system (the County owned the bus operated by the company) was an employee of the County (Carrion v County of Westchester, 99 AD2d 793, appeal dismissed 63 NY2d 943).
§50-b of the General Municipal Law provided that such persons are County employees. Carrion was injured on the job and sued the County. If a County employee, Carrion was only entitled to Workers' Compensation Benefits; if not a County employee, he could sue the County for negligence. The County claimed that Carrion was a County employee and therefore could not sue his "employer" for his injuries.
According to the decision, the only indication of any relationship between the County and Carrion was that Carrion was "statutorily defined as a County employee." The Court said that as there was no evidence that Carrion was controlled or paid by the County, or that the County had a right to fire him, he was not barred by the Workers' Compensation Law from suing the County for damages for personal injury.
Kenneth H. Kern and Mary Dickerson, former employees of the State Department of Health at the Roswell Park Cancer Institute, were transferred to the Roswell Park Cancer Institute Corporation together with all other employees the Institute. The Corporation was created in 1997 as a public benefit corporation by the Roswell Park Cancer Institute Corporation Act.
The Corporation and its employees are subject to the Civil Service Law and have the rights of State employees for purposes of the applicable provisions of the Civil Service Law, "[e]xcept as provided by [the Act] and rules issued pursuant thereto ... pursuant to an internal merit system administered by a merit board.”
Applications filed by Kern and by Dickerson to take a State promotion examination were disapproved by the New York State Department of Civil Service because they did "not have permanent competitive status as [State employees]". After their administrative appeals to the State Civil Service Commission were denied, Kern and Dickerson sued.
The Appellate Division said that Kern's and Dickerson's rights were a function of the Legislature's intent based on the "plain meaning" of Chapter 5 of the Laws of 1997. The court’s rationale: While it is true that the Act expressly provides in general terms for civil service coverage, collective bargaining rights and retirement rights for corporation employees ... it is also apparent that the Legislature elected not to confer upon the employees of the corporation all the benefits of the Civil Service Law inasmuch as the Act provides a specific procedure whereby they are ranked, compensated and promoted pursuant to an internal merit system specifically laid out in the legislation. According to the decision, the Corporation's merit system operates independently of the State civil service system. Evidence of this independence: corporation positions are classified separately and are not necessarily based upon the same criteria as might be applied in the classification of positions in State service.
As noted earlier, sometimes legislation may be enacted that provides for the retention of certain benefits when a State worker's employment status changes but he or she remains an employee of the State.
Employment of retired public employees
Employees of a public retirement system of the State of New York, however, may be reemployed following retirement consistent with, and subject to, the limitations set out in Article 7 of the Retirement and Social Security Law, “Re-employment in Public Service of Retired Public Employees,” with respect to their continuing to receive all or a portion of their retirement allowance.
The general rules controlling the reemployment of an individual receiving a retirement allowance from a New York State public retirement system is contained in §150 of the Civil Service Law [set out below].
As to elective positions, the State Comptroller has indicated that if the reappointed or reelected retiree's salary exceeds the salary limitation set by RSSL Section 212, he or she may waive the "excess salary" and thereby the retiree may continue to receive is or her full retirement allowance while holding such elective office [Opinions of the State Comptroller, 91-39].
As to the reemployment of a retiree by the retiree’s former employer, RSSL Section 211, in relevant part, provides:
§ 211. Employment of retired persons without diminution of retirement allowance. 1. Notwithstanding the provisions of sections one hundred one, two hundred twelve and four hundred one of this chapter or section five hundred three of the education law, or the provisions of any local law or charter, a retired person may be employed and earn compensation in a position or positions in the public service, without any effect on his or her status as retired and without suspension or diminution of his or her retirement allowance subject to one of the following:
(b) The position in which he or she is employed is not a position in the service of a former employer. [emphasis supplied]
Also relevant: 2 NYCRR 374.2. Continuation of elective office upon retirement from other public service - which provides:
An individual who holds elective public office on the effective date of retirement from other employment covered by the New York State and Local Employees' Retirement System or the New York State and Local Police and Fire Retirement System shall not be required to resign from such elective office in order to receive a retirement allowance from either such system, if the following conditions are satisfied:
(a) the annual compensation for the elective office is less than annual compensation of the other position or positions from which the member is retiring. In the event that the individual is retiring from more than one nonelective position, the annual compensation for the elective office must be less than the total of the annual compensation of the other positions; and
(b) the annual compensation for the elective office does not exceed the then applicable limit with respect to allowable post-retirement public compensation provided by section 212 of the Retirement and Social Security Law.
Also, Section 211 is silent as to the approving agency with respect to the reemployment of a retired public employee by the State legislature. Presumably the “fail-safe” agency in such situations is the State Civil Service Commission.
As to Section 211 approvals, §211 approval must be secured prior to the effective date of employment. In the event the appointing authority expects to submit a subsequent waiver for a retiree, it must be submitted and approved prior to expiration the waiver then in force. Failure to obtain the required waiver in a timely fashion may result in a financial liability to the retiree. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.
Civil Service Law §150. Suspension of pension and annuity during public employment.
Only the appointing authority, rather than a designee of the appointing authority, is authorized to certify that the §211 waiver application satisfies the requirements of §211. Where the appointing authority is a board or commission, a current resolution of that body must be submitted with the application. Further, the required §211 approval must be secured prior to the effective date of employment. In the event the appointing authority expects to submit a subsequent waiver for a retiree, it must be submitted and approved prior to expiration the waiver then in force.
The failure to obtain the required waiver in a timely fashion could result in financial difficulties for the reemployed retiree for which such prior approval had not been obtained. As an example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that it had paid to Freda over the years because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.
In addition to the §211 waivers issued by the New York State Civil Service Commission with respect to reemployment of retired members of a public retirement system of this State or a political subdivision of the State in a position in the classified service, such reemployments are subject to the approval of:
a. The Commissioner of Education with respect to employments in positions in the unclassified service of a school district [other than the city of New York], a BOCES or a county vocational education and extension board;
b. The New York City Civil Service Commission if the individual is to be employed in a classified position in the service of the city of New York or in the classified service in the board of education or board of higher education of such city;
c. The Chancellor of the New York City School District with respect to employments in the unclassified service under the board of education of the city of New York;
d. The Board of Higher Education of the City of New York if such person is to be employed in the unclassified service under the Board’s jurisdiction;
e. The Chancellor of the State University of New York if such person is to be employed in the unclassified service of the State University, by a Statutory Contract Colleges at Cornell and Alfred Universities or in the unclassified service of a community college other than those in the city of New York; or
f. The Chief Administrator of the Unified Court System such person is to be employed in a judicial or nonjudicial position by the Unified Court System.
Having considered appointment to a position in the public service, it may now be appropriate to consider the converse, resignation from the public service.
It appears to be simple enough. 4 NYCRR 5.3 provides that except as otherwise provide therein, "every resignation shall be in writing" while §31(2) of the Public Officers Law requires that "[e]very resignation shall be in writing addressed to the officer or body to whom it is made."
4 NYCRR, in general, applies to employees of the State in the Classified Service and the employees of public authorities, public benefit corporations and other entities for which the New York State Department Civil Service administers the Civil Service Law. In particular, 4 NYCRR 5.3(b) provides, in pertinent part, that “If no effective date is specified in the resignation, it shall take effect upon delivery to or filing in the office of, the appointing authority. If an effective date is specified in a resignation, it shall take effect on such specified date.” [Emphasis supplied.]
§31(2) of the Public Officers Law is slightly different and provides that Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing. [Emphasis supplied.]
Newspaper articles concerning a state or municipal officer or employee resigning from his position frequently report that the appointing authority "accepted" the individual's resignation. This is not entirely accurate, however.
Except where otherwise provided by law, rule, regulation or a provision set out in a collective bargaining agreement, approval or acceptance of an officer’s or an employee’s resignation is not required for the resignation to take effect. As emphasized above, all that is required for a resignation to become operative is its delivery to the appropriate appointing authority or to the appointing authority’s lawful representative or as otherwise required or permitted by law.
In other words, "acceptance of the resignation" by the appointing authority is not required to validate the resignation and it would suffice for the appointing authority to merely “acknowledge the receipt" of the officer’s or the employee's resignation, an action consistent with good personnel practice.
In contrast, in Atkinson v Kelly the decision reports that then serving appointing authority "authorized" Atkinson's supervisor to resolve a disciplinary issue by obtaining a letter of resignation from Atkinson.
In so doing, the supervisor told Atkinson that if he did not resign from his position a formal disciplinary proceeding would be commenced against him. Atkinson tendered his resignation letter immediately after his meeting with his supervisor.
The following day, however, Atkinson sent a letter to his supervisor rescinding his resignation. When Atkinson was advised that the appointing authority had rejected his effort to rescind his resignation, Atkinson commenced a CPLR Article 78 proceeding seeking a court order directing the appointing authority to  vacate his termination;  reinstate him to his former position; and  pay him "damages and back pay." Supreme Court granted Atkinson's petition and the appointing authority appealed.
The Appellate Division, conceding 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," nevertheless sustained the Supreme Court's decision.
The court explained that in this instance the appointing authority was not authorized to designate another individual to receive an employee's written resignation in lieu of the resignation being delivered to him.
The Appellate Division's decision noted that 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 instant appointing authority "did not specifically provide for any such delegation [of this authority] to a subordinate."
Accordingly, the Appellate Division opined that Atkinson's supervisor "was without authority to receive delivery of Atkinson resignation letter" on behalf of the Department's appointing authority. As was no indication in the record that Atkinson's letter of resignation was delivered to the appointing authority or filed by, or on behalf of, Atkinson with the appointing authority's office prior to the Atkinson's request to rescind it, the appointing authority's consent to Atkinson withdrawal of his resignation was not required to validated Atkinson's withdrawal of his resignation. In the words of the court, Atkinson was not precluded from "unilaterally rescinding his resignation."
The Atkinson decision confirms that an individual is able to unilaterally void his resignation provided the written notice that he withdrew or rescinded his resignation is received by the appropriate official or body before his resignation was actually "delivered" to the appointing authority. Courts have typically ruled that the receipt of a withdrawal or cancellation of a resignation before the resignation itself is delivered to the appointing authority or a designated representative effectively voids the resignation.
Absent a timely withdrawal or cancellation of a resignation, 4 NYCRR 5.3(c) controls and the officer or employee cannot withdraw his resignation after it is delivered to the appointing authority without the consent of the appointing authority. Again, as the court ruled in Hazelton v Connelly, all that is required for a resignation to become operative is its delivery to the appointing authority prior to the appointing authority's receipt of an employee’s request to withdraw or rescind the resignation. Again, approval or acceptance of the officer's or employee's resignation by the appointing authority is not required as a condition precedent for the resignation to take effect.
An ineffective effort to cancelled or amended a resignation after it was delivered to the appointing authority without the consent of the appointing authority is illustrated in a recent decision handed down by the Appellate Division.
A few months after his appointment, a Town Attorney [TA] sent a letter to the Town Supervisor notifying the Supervisor of his intent to resign from the position "as soon as my successor has been identified, and the Town Board is ready to appoint him or her." The Supervisor had TA's letter to delivered to the Town Clerk "who stamped and filed it in the regular course of business."
TA's subsequent attempts to rescind his resignation were unsuccessful and ultimately he commenced a CPLR Article 78 proceeding in which he contended that his resignation was ineffective and that he had been improperly terminated from his position as town attorney.
Supreme Court granted the Town's motion to dismiss the petition, finding that:
 TA resignation was effective; and
 TA never sought the consent of the Town Clerk to withdraw or cancel his resignation in accordance with Public Officers Law §31(4).
Affirming the Supreme Court's ruling, the Appellate Division explained that although TA written resignation was presented to the Town Supervisor instead of the Town Clerk as required by the relevant provisions of Public Officers Law §31. It then held that there was substantial compliance with the statute when TA's resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business. Thus, concluded the court, TA's resignation satisfied the requirements of the law.
In addition, the Appellate Division agreed with the Supreme Court's dismissal of the proceeding based on TA's failure to exhaust his administrative remedies in that TA did not asked the Town Clerk to disregard his resignation.
Smith v Kunkel is a case involving an effort to have a court consider an employee's attempt to withdraw his written resignation prior to its effective date.
Smith had submitted his resignation, indicating that he had done so for "personal reasons." The resignation was dated August 21 and was to take effect the September 3 next following. On August 29 Smith wrote Kunkel, the agency's Administrative Officer, "seeking to withdraw and rescind" his resignation. Kunkel declined to approve Smith’s request to withdraw his resignation, citing 4 NYCRR 5.3(c) of the rules.
Smith sued the agency contending that Kunkel's refusal to permit him to withdraw his resignation was arbitrary and capricious and that 4 NYCRR 5.3(c) was unconstitutional as it deprived him of his public employment without notice and hearing.
Addressing Smith's constitutional challenge to 4 NYCRR 5.3(c), the Appellate Division rejected Smith's argument noting his contention overlooked a crucial fact -- Smith had not been terminated by the appointing authority but rather had voluntarily resigned from his position. The court indicated that the "voluntariness of [Smith's] resignation is not vitiated by the fact that Kunkel rejected his withdrawal request prior to the effective date of his resignation."
The Appellate Division concluded that Smith, having by his own action relinquished his position, did not retain any constitutionally protected property interest in it.
Another issue that is sometimes raised in connection with an attempt to withdraw a resignation is a claim that the employee resigned as the result of coercion in that his resignation had been obtained under duress because he had been threatened that unless he submitted his resignation from his position, disciplinary charges would be filed against him.
However, as the Court of Appeals explained in Rychlick v Coughlin, where an appointing authority has the right to take disciplinary action against an officer or employee, "it was not duress to threaten to do what one had the legal right to do."
Further, in the event an officer or an employee has submitted his resignation after being served with disciplinary charges, or in expectation of being served with disciplinary charges, 4 NYRR 5.3(b) authorizes the appointing authority, as a matter of the exercise of discretion, to disregard the individual's resignation and proceed with the disciplinary action.
Where so otherwise entitled, individual is then to be provided with "administrative due process" whereby he is given notice of the charges and specifications alleged against him. A disciplinary hearing would be then conducted in accordance with law or a disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, typically referred to as the Taylor Law.
Should the individual fail or refuse to participate in the disciplinary hearing, the appointing officer could elect to withdraw the disciplinary charges or, in the alternative, proceed to hold a disciplinary hearing in absentia.
If the appointing authority elects to go forward with a disciplinary action and hold the hearing in absentia and the individual is found guilty of one or more of the charges and specifications served on him and the penalty imposed is dismissal from his employment, 4 NYCRR 5.3(b) provides that individual's termination shall be recorded as a dismissal rather than as a resignation.
The decision in Mari v Safir sets out the general standards applied by the courts in resolving litigation challenging an appointing officer's electing go forward with a disciplinary hearing to be held in absentia and demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him by refusing to appear at the disciplinary hearing.
A decision of the Commissioner of Education, Decision No. 17,007, provides an insight into a variation of an appointing authority's authority to act upon its receipt of a resignation submitted by an employee.
In this appeal to the Commissioner of Education, a probationary teacher challenged a school board’s rejection of his resignation from his position and the board's decision to terminating him from his position, presumably for failure to satisfactorily complete the probationary period.
The teacher asked the Commissioner to direct the school board to either rescind his appointment as a probationary employee or, in the alternative, to accept his previously tendered letter of resignation from his position.
The Commissioner said that as a general rule, "... a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.”
Addressing the merits of the teacher's appeal, the Commissioner said that “[i]n an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.” Finding that the teacher failed to allege that his termination from his probationary appointment was for an unconstitutional reason or in violation of any statute, the Commissioner ruled that the teacher had “failed to meet his burden” and dismissed his appeal.
In this instance the school district "technically" elected to ignore Petitioner's resignation rather than refuse to accept it as an appointing authority may not “refuse to accept” a resignation tendered by an officer or an employee and the resignation becomes operative upon its delivery to the appointing authority.
Presumably the school district’s records would record the educator’s separation from employment as a “probationary termination” rather than a “resignation” from the position.
Early in the school year a school board member announced that he was resigning from his position effective the June 30 next following. The school board decided to include the “soon to be vacant” board seat on the ballot of its annual school election in order to save the school district the cost of conducting a special, approximately $7,000. The winning candidate in election then sought to be seated immediately but was told that the seat would not become vacant until June 30, the designated effective date of the sitting board member's resignation.
The school district's attorney, however, advised the school board that an oral resignation does not satisfy the requirements of Public Officers Law §31(2) and, therefore, the recently elected candidate could not take office because no vacancy then existed as the then sitting member of the school board was still a member of the board because he had not submitted a lawful written resignation from the school board.
Addressing the newly elected candidate's appeal, the Commissioner of Education agreed and held that an announcement of an intention to resign at a board meeting did not constitute a valid resignation from the board.
In support of his ruling, the Commissioner cited an opinion of the Attorney General in which the Attorney General opined that a member of a school board, whether elected or appointed, is a public officer and thus his resignation is subject to the mandates set out in §31 of the Public Officers Law.
The Commissioner's decision also noted that Public Officers Law §31(2) provides that "in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing."
Had the resigning board member submitted his written resignation at the same time he orally announced his intention to resign indicating in his written resignation that the effective date of the his resignation was to be June 30 next, his resignation would have taken effect thirty days after his written resignation was submitted, notwithstanding the fact that its terms clearly set out the fact that he intended that it not take effect until the next June 30.
Simply said, the board member's resignation would have been deemed to take effect 30 days after its delivery "as a matter of law."
Another aspect of a school board's processing of an educator's resignation that must be considered is that the resignation may subject to the provisions of §1133.1 of the State Education Law.
§1133.1 provides that a school administrator or superintendent "shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, allegations of child abuse in an educational setting by an employee or volunteer within the meaning Article 23-B of the Education Law" in return for the resignation or voluntary suspension of the individual from his position. Presumably an appointing authority could apply the rational in the event of an employee's “retirement” from his position under similar circumstances.
Turning to yet another element flowing from a resignation from public service, sometimes a former officer or employee will seek to be reinstated to his former position following his retirement. With respect to officers and employees in the Classified Service, such reinstatement is controlled by the provisions of 4 NYCRR 5.4.
4 NYCRR 5.4 authorizes the appointing authority to reinstate a former "permanent employee" to his former position, if vacant, or to any position to which he was eligible for transfer or reassignment, within one year of the date of the individual's resignation. Further, "for good cause shown and where the interests of the government would be served," the civil service commission or personnel officer having jurisdiction may authorize the reinstatement of a former officer or employee more than one year after the effective date of the former employee's resignation.
It should be noted, however, in the event a resignation is submitted while the employee is on leave of absence without pay, such resignation, for the purpose of 4 NYCRR 5.4, is deemed to be effective as of the effective date of the commencement of his absence without pay. In such cases, however, the actual date of resignation for the purposes of 4 NYCRR 5.4 will be determined in consideration of "any time spent in active service in the military or naval forces of the United States or of he State of New York, and any time served in another position in the civil service of the same governmental jurisdiction ...."
Another potential situation to be considered is an employee's "abandoning his position."
Former 4 NYCRR 5.3(d), repealed effective February 27, 1979, provided that a state officer or employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his position. In Bernstein v Industrial Commissioner 4 NYCRR 5.3(d) was held to violate the employee's right to due process.
Notwithstanding Bernstein, such a provision has been held lawful if the parties had agreed to memorializing such a term or condition of employment in a collective bargaining agreement as a result negotiations within the meaning of Article 14 of the Civil Service Law. Typically the courts will decline to void the provisions of such agreements except in cases involving a violation of a strong public policy.
Turning to another aspect of the State's "table of organization of personnel", it should be remembered that the public service of the State of New York consists of both a "civil service" and a "military service."
Thus far this article has addressed situations involving the resignation of individuals in the civil service of the State. With respect to personnel serving in the State's "Organized Militia", §77 of New York's Military Law provides for the resignations of personnel serving in the State's military service as follows:
1. A commissioned officer of the organized militia may tender his resignation at any time to the governor. If the governor shall accept the resignation, the officer shall receive an honorable discharge but if the officer tendering his resignation shall be under arrest or if charges have been preferred against him for the commission of an offense punishable by a court-martial, he may be given a discharge in such form as the governor may direct.
2. Enlistment in the regular army, air force, navy, marine corps or coast guard of the United States shall be deemed a resignation by the person so enlisting of all commissions in the militia held by him.
3. The acceptance of a commission in the organized militia shall be deemed a resignation by the person accepting the same of any other commission held by him in the militia.
Finally, the appointing authority should remain mindful of the decision in Matter of Vinluan v Doyle, where the court held that except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his position.