This CPLR Article 78 petition filed by a town attorney [Petitioner] asked the Supreme Court to review the Town Board [Respondent] deeming Petitioner's resignation effective based on its having been "accepted" during a meeting of the Town Board.* Petitioner contended that his resignation was ineffective, and that he was improperly terminated from his position as town attorney. Supreme Court granted Respondent's motion to dismiss the petition, dismissed the proceeding and Petitioner appealed the court's ruling
Petitioner had been appointed town attorney effective January 3. By letter dated May 11 of that same year addressed to the Town Supervisor, Petitioner gave notice 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." On May 14 the Town Supervisor had Petitioner's letter delivered to the Town Clerk, who stamped and filed it in the regular course of business.
Although Petitioner subsequently attempted to rescind the resignation addressed to the Town Supervisor and the Deputy Town Supervisor, the Town Board "accepted his resignation" during a meeting in June of the same year and employed a replacement town attorney.
The Appellate Division affirmed Supreme Court's ruling.
Although the Petitioner's written resignation was sent to the Town Supervisor instead of the Town Clerk as required by Public Officers Law §31(1)(g) and (2), the Appellate Division said that it found that "the statute was substantially complied with when the 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. Therefore, the [Petitioner's] resignation was effective."
Moreover, as it was undisputed that Petitioner never sought the consent of the Town Clerk to withdraw or cancel the resignation, the court said it agreed with the Supreme Court's determination to dismiss the proceeding based on Petitioner's "failure to exhaust administrative remedies."
There may be other elements to be considered in determining the "effectiveness" of a resignation.
Although an appointing authority may characterize "acceptance" as the operative element in effecting a resignation, such a characterization is troublesome. For example, §31 of New York’s Public Officers Law provides that written resignations by public officers take effect upon delivery to the appropriate authority [emphasis supplied].
Similarly, the New York State Civil Service Commission’s Rules for employees of the State as an employer provide, in pertinent part, as follows:
“If no effective date is specified in a 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.” Clearly acceptance of the resignation is not the "operative" element with respect to effecting a resignation except in those situations where “acceptance” is mandated by statute.
§2111 of the Education Law is an example of a situation where "acceptance of the resignation" is mandated by statute.
§2111 provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].
It should also be noted that the withdrawal of a written resignation may be effected by an individual if such written withdrawal is delivered to the appropriated body or officer before that body or officer receives the individual's written resignation.
In Hazelton v Connelly, 25 NYS2d 74, the Court of Appeals opined that all that is required for a resignation to become operative is its delivery to the appointing authority prior to the receipt of an employee’s notice of the employee's withdrawal or rescinding of the resignation. Approval or acceptance of the resignation is not required for the resignation to take effect except as otherwise mandated by statute, by a relevant rule or regulation or by a relevant term or condition of employment set out in a collective bargaining agreement.
The decision is posted on the Internet at: