April 07, 2020

Attempting to withdraw a resignation after filing it with the appropriate individual or body

A Town Attorney [Attorney] sent a letter to the Town Supervisor  "giving notice" that the TA intended to resign from his position "as soon as [his] successor has been identified, and the Town Board is ready to appoint him or her." The Town Supervisor had Attorney's letter  delivered to the Town Clerk, whereupon the Town Clerk "stamped and filed it in the regular course of business." 

Notwithstanding Attorney's letters addressed to the Town Supervisor and the Deputy Town Supervisor "rescinding" his resignation, the Town Board hired a replacement town attorney. 

Attorney initiated an Article 78 action, contending that his resignation was ineffective and thus he had been "improperly terminated from his position as town attorney." The Supreme Court granted the Town's motion to dismiss Attorney's petition, finding [1] that Attorney's resignation was effective and [2] that Attorney never sought the consent of the Town Clerk to withdraw or cancel his resignation, an administrative procedure set out in Public Officers Law §31.4 that was available to him.*

The Appellate Division affirmed the Supreme Court's rulings, explaining that although Attorney's written resignation had been presented to the Town Supervisor instead of the Town Clerk as required by Public Officers Law §31(1)(g) and (2), opining that the relevant provisions of Public Officers Law §31 had been "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."**

Further, said the Appellate Division, Attorney "never sought the consent of the Town Clerk to withdraw or cancel the resignation," agreeing with the Supreme Court's decision to dismiss the proceeding based on Attorney's failure to exhaust his administrative remedies.

Subdivision 4 of Public Officers Law §31 provides as follows: "A resignation delivered or filed pursuant to this section, whether effective immediately or at a specified future date, may not be withdrawn, cancelled, or amended except by consent of the officer to whom it is delivered or body with which it is filed." Similarly, 4 NYCRR 5.3(c), which applies to employees of the State as the employer and employees of entities for which the Civil Service Law is administered by the NYS Department of Civil Service, 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." 

** See Hazelton v Connelly, 25 NYS2d 74. In contrast, the courts typically rule that the receipt of a withdrawal of a resignation by the appropriate individual or body before the resignation itself is delivered to that entity effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

The decision is posted on the Internet at:

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