July 30, 2021

Reviewing a determination of the State Comptroller denying petitioner's application for accidental disability retirement benefits

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for accidental disability retirement benefits.

In September 2015, petitioner — a police detective — filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries to, among other things, his right hip and back that, in turn, were sustained while pursuing a fleeing suspect in October 2014. The New York State and Local Police and Fire Retirement System denied petitioner's application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

Petitioner acknowledged that, as a police officer, he had a duty to respond to an accident or a crime that he witnessed — even if he was "on [his] own personal time" — and the record reflects that, after the suspect fled the scene of the initial collision, petitioner immediately reported the event to his employer, sought assistance and gave chase. Petitioner acknowledged that "[p]ursuing and subduing a fleeing suspect is an ordinary employment duty of a police officer" (Matter of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal quotation marks and citations omitted]), and he agreed that such pursuits could entail "chasing [suspects] across all different types of terrain, uneven ground, jumping fences" and the like (see Matter of Sweeney v New York State Comptroller, 86 AD3d 893, 893-894 [2011]; Matter of Neidecker v DiNapoli, 82 AD3d 1483, 1484 [2011]).

Additionally, the particular hazard encountered by petitioner, i.e., the elevation change lying beyond the third fence, "could have been reasonably anticipated" (Matter of Stancarone v DiNapoli, 161 AD3d 144, 148-150 [2018]; see Matter of Scofield v DiNapoli, 125 AD3d 1086, 1087 [2015]), notwithstanding petitioner's testimony that vegetation partially obscured his view of the terrain.

Hence, even setting aside the inconsistencies between petitioner's testimony and the description of the incident as set forth in the relevant incident reports, which presented credibility issues for the Hearing Officer and respondent to resolve (see Matter of Verille v Gardner, 177 AD3d 1068, 1070 [2019]; Matter of Angelino v New York State Comptroller, 176 AD3d at 1379; see also Matter of Harris v New York State & Local Retirement Sys., 191 AD3d at 1086), substantial evidence supports respondent's finding that this incident was not an accident within the meaning of Retirement and Social Security Law § 363.

The full text of the Appellate Division's decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04409.htm

 

July 29, 2021

The Freedom of Information Law's application to evidence collected in a criminal action

To the extent that petitioner's contentions on appeal relate to the cotton swabs stored in evidence box number seven, we reject petitioner's contentions. In order to meet his burden on his motion, respondent was required to provide documentary evidence that "utterly refute[d] [petitioner's] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 127 AD3d 865, 866-867 [2d Dept 2015]). 

Here, in support of his motion, respondent established that Executive Law § 838-a deals with sexual offense evidence kits, whereas the only cotton swabs in evidence box number seven had been used to collect a "grease-like substance [found] on the washer/dryer" in the home of the victims, and thus no sexual offense evidence existed in petitioner's criminal case. 

Because respondent was "under no obligation to furnish [materials that he did] not possess" (Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [3d Dept 2000]; see generally Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 388 [2006]), the evidence submitted by respondent "utterly refute[d] [petitioner's] factual allegations" with respect to the cotton swabs in evidence box number seven, thereby "conclusively establishing a defense as a matter of law" thereto (Goshen, 98 NY2d at 326; see generally Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]).

The full text of the decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04416.htm

 

July 27, 2021

Elements considered in a court review of the denial of certain records demanded pursuant to the Freedom of Information

The Agency [Custodian] of certain records demanded in a Freedom of Information Law [FOIL] request appealed a Supreme Court judgment that, among other things, directed the Custodian to disclose certain documents to petitioner [Plaintiff].

The Appellate Division "unanimously modified on the law" the Supreme Court's judgment with respect to certain pages identified by "Bates stamp"* and certain emails attached to certain pages of documents that were otherwise subject to disclosure. In addition, with respect to certain documents containing identifying information of private citizens, the court ordered such personal information to be redacted from the documents. The Appellate Division then affirmed "as modified" the Supreme Court's judgment without costs."

Citing Gould v New York CityPolice Dept., 89 NY2d 267, the Appellate Division noted that "All government records are ... presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)", typically referred to as FOIL.  However, observed the court, FOIL permits an agency to deny access to records or portions thereof that are "inter-agency or intra-agency materials" that are (i) not "statistical or factual tabulations or data"; (ii) not "instructions to staff that affect the public"; (iii) not "final agency policy or determinations"; or (iv) not "external audits, including but not limited to audits performed by the comptroller and the federal government."

Further, said the court, the agency bears the burden of establishing that a document is exempt from disclosure.

Following an in camera** review of the documents in issue, the Appellate Division concluded that the lower court erred in ordering the disclosure of certain documents that it identified by its "Bates number". However, contrary to the Custodian's contention, the Appellate Division opined that Supreme Court "properly ordered disclosure of the remaining documents and portions of documents submitted for [its] review on the ground that the Custodian failed to establish that Public Officers Law §87(2 (g) exempted them from disclosure."

* Bates Numbering, also known as Bates Stamping, is an indexing method used for legal, business and medical documents (PDFs in most cases).

** "In private" and typically taking place in the private chambers of a judge, with the press and public excluded.

Click HEREto access the Appellate Division's decision. 

 

July 26, 2021

Former police chief sentenced for "pension double-dipping"

In a press release issued on July 19, 2021, New York  State Comptroller Thomas P. DiNapoli announced that a former police chief was sentenced for "pension double-dipping." The former Village of Chatham Chief of Police Peter Volkmann is required to pay $92,829 in restitution and perform 200 hours of community service today for defrauding the New York State pension system by concealing his unlawful post-retirement public income and for stealing from the village through sham requests for reimbursement. 

The former police chief's fraud was discovered during a joint investigation by State Comptroller Thomas P. DiNapoli, Columbia County District Attorney Paul Czajka, and the New York State Police.

“No one is above law, including Volkmann who, as the chief law enforcement officer of the village, not only defrauded the state retirement system but also stole from his community,” said DiNapoli. “I thank District Attorney Paul Czajka and the New York State Police for their partnership in helping us bring justice to this case.”

"Mr. Volkmann stole funds from the citizens he was sworn to protect and serve as police chief of the Village of Chatham," District Attorney Paul Czajka said. "In doing so, he undermined much of the good he did in helping and providing assistance to so many suffering from addiction. With his conviction before Judge Koweek, those funds were returned in full to the Village of Chatham and the New York State Retirement System. I thank and commend the New York State Police, Comptroller Thomas DiNapoli and their highly trained and proficient investigators for bringing this complex case to a successful resolution. With the assistance of the Comptroller and the State Police, we continue to investigate the Village’s finances, as well as that of another institution."

“Our investigation determined that the suspect in this case violated the public trust by circumventing retirement laws and stealing from village funds,” said State Police Superintendent Kevin P. Bruen. “We will continue to aggressively investigate any case that involves public corruption, and I want to commend our members and the Comptroller’s Office and Columbia County District Attorney’s Office for their partnership to ensure that justice was served.”

Columbia Court Judge Richard Koweek also sentenced Volkmann to two years of conditional discharge and ordered that 100 hours of the 200 in community service he was sentenced to be done by July 2022. As part of his plea deal, Volkmann paid a total amount of $92,829 in restitution before his sentencing.

Volkmann pleaded guilty in February to grand larceny in the fourth degree for circumventing New York state’s post-retirement income restrictions and cheating the New York State and Local Retirement System out of $74,222. Volkmann hid public-source income from 19 municipalities and school districts in excess of the statutory limit by funneling the earnings through a private business, PF Volkmann & Associates. He also pled to official misconduct, a misdemeanor, for stealing $18,607 from the Village of Chatham by falsifying mileage vouchers and other reimbursements to increase his income. 

The practice of using a public office or position of trust for one's own gain or advantage is referred to as Jobbery [see https://educalingo.com/en/dic-en/jobbery].

July 24, 2021

Audits and reports issued during the week ending July 23, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending July 23, 2021

Click on the text highlighted in color to access the complete audit report.

 MUNICIPAL AUDITS

Copiague Fire District – Procurement (Suffolk County)

District officials did not always use a competitive process to procure goods, services or professional services or ensure no conflicts of interest existed. Auditors found no competition was sought for professional services. Officials paid the 12 providers $388,628. In addition, required verbal or written quotes were not always obtained when goods and services were procured. Auditors also found 23 purchases totaling $129,696 reviewed required competition. Only one purchase totaling $2,076 was competitively procured. A Commissioner, employed by a company the district contracts with, did not disclose his company’s interests or abstain or recuse himself from approving claims and warrants. The district has been contracting with the company for about 10 years.

 

City of Glen Cove Industrial Development Agency – Project Approval and Monitoring (Nassau County)

The board and officials did not properly approve and monitor projects or take action when goals were not met. Auditors found required annual financial disclosure statements that are meant to help identify conflicts of interest were not filed. Payments in lieu of taxes (PILOTs) billing and collections were not monitored or correctly allocated to affected taxing jurisdictions. In fact, 52 of 115 payments were late and late fees totaling $259,303 were not billed or collected. In addition, Nassau County received $375,914 more than it should have. These funds should have been paid to the City of Glen Cove, $75,039, and to the school district and library, $300,875. Tax exemptions disclosed in audited financial statements were overstated.

 

Village of South Floral Park – Budgeting and Financial Oversight (Nassau County)

The board did not provide appropriate oversight and management of budgets and fund balance or ensure annual audits were completed. More real property taxes were assessed than necessary to fund operations each year. The board also failed to hold budget hearings before April 15 each year (from two to 11 days late) to discuss the 2017-18, 2018-19 and 2019-20 budgets, and the budgets presented were not in the proper form, as required. Inaccurate budgeting led to underestimated revenues totaling $289,565 (19%) over these years. As of May 31, 2020, unassigned fund balance was $463,948, which is 78% of the 2020-21 appropriations. The Village has excess fund balance and the board did not adopt a fund balance policy.

 

Henrietta Fire District – Financial Condition (Monroe County)

The board did not effectively manage the district’s financial condition and presented budgets indicating the district needed to both increase real property taxes and use appropriated fund balance to close projected budget gaps. As a result, more real property taxes were levied than needed. The board also did not adopt realistic budgets from 2017 through 2021. As a result, fund balance increased to $4.4 million on December 31, 2020, which is excessive and enough to pay 41.5% of the District’s 2020 expenditures.

In addition, the board unnecessarily overrode the 2019 and 2020 tax cap. The 2021 tax cap override will likely be unnecessary because the 2021 budget overestimated appropriations by approximately $1.4 million, and the $1 million appropriated fund balance will likely not be used. The board did not adopt budgeting, fund balance or reserve policies or multiyear financial and capital plans.

 

Town of Otselic – Records and Reports and Conflict of Interest (Chenango County)

The Supervisor did not maintain complete, accurate and timely financial records and reports, and the board did not ensure there were no prohibited conflicts of interest. Auditors found the supervisor did not provide the board with accurate financial reports and did not record deposits totaling $127,000, cash withdrawals totaling $199,000 and fund transfers totaling $874 in the accounting records. She also recorded one deposit for $25,000 twice. Auditors also found, the required 2016 through 2019 annual financial reports were not filed with the Office of State Comptroller, as required. As of May 5, 2021, the reports were late and remained unfiled. In addition, a board member had a prohibited interest in the contracts between the town and his auto parts businesses. The board did not comply with General Municipal Law by adopting a code of ethics and did not audit the supervisor’s records, as required..

SCHOOL DISTRICT AUDITS

Mount Pleasant Central School District – Information Technology User Accounts (Westchester County)

District officials did not establish adequate controls over the district’s user accounts to prevent unauthorized use, access and/or loss. Officials did not monitor compliance with the district’s acceptable use policy. Officials also did not adequately manage network user accounts. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

Williamson Central School District – Non-Payroll Disbursements (Wayne County)

The board did not ensure that non-payroll disbursements were appropriately procured, properly audited and approved, adequately supported and for valid district purposes. The claims auditor did not audit and approve claims before payment as required.

 

July 23, 2021

Attendance and Leave Memoranda

 The New York State Department of Civil Service has published the following Attendance and Leave Memoranda:

Advisory Memorandum 2021-05, Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for Contract Year 2021–2022; and 

Transmittal Memorandum No. 47, 2022 Calendar of Legal Holidays and Days of Religious Significance. 

The text of Advisory Memorandum 2021-05 is found at:
https://www.cs.ny.gov/attendance_leave/AdvMemo21-05.cfm

The text of Transmittal Memorandum No. 47 will be found at:
https://www.cs.ny.gov/attendance_leave/TM_47.cfm

If you wish to print Advisory Memorandum 2021-05 the Department offers  a version in PDF format at https://www.cs.ny.gov/attendance_leave/am21-05.pdf.

If you wish to print Transmittal Memorandum No. 47 the Department offers a version in pdf format at https://www.cs.ny.gov/attendance_leave/TM-47.pdf.

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm.

 

July 22, 2021

The Intra-Military Immunity Doctrine bars judicial interference in discretionary military personnel decisions

A United States District Court granted the government’s motion to dismiss and, in the alternative, for summary judgment, on the Plaintiff-Appellant's [Cadet] claims that separation procedures of the United States Military Academy at West Point fail to provide due process and that the separation proceedings violated West Point’s own regulations in a manner that substantially prejudiced him. Cadet appealed the district court's ruling. 

The Circuit Court of Appeals held that West Point’s cadet separation procedures satisfy due process and that the intra-military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders the Cadet’s regulatory claims nonjusticiable.

Accordingly, the Circuit Court affirmed the district court's judgment.

Click HEREto access the Circuit Court's ruling.

 

 

July 21, 2021

Diminishing retiree health insurance benefits

NYPPL has received a number of requests concerning a 2008 New York State Supreme Court decision that addressed the unilateral diminishing of retiree health insurance benefits by the retiree's former public employer.

The text of the decision, DiBattista v County of Westchester, is set out below:

 

DiBattista v County of Westchester

Decided on July 29, 2008
Supreme Court, Westchester County

Carmine DiBattista, ANTHYONY EGIZIACO, KATHERINE JONES, ANTHONY P. DEL BORGO, KENNETH A. FISCHER and VIOLA WANCHO on behalf of themselves and certain other RETIRED EMPLOYEES of the COUNTY OF WESTCHESTER formerly in the CSEA BARGAINING UNIT, Plaintiffs,

against


County of Westchester and ANDREW J. SPANO, as County Executive of the County of Westchester, Defendants.

Paul S. Bamberger, Esq.,
Nancy E. Hoffman, Esq.
Attorneys for Plaintiffs
CSEA, Inc.
Box 7125, Capitol Station
143 Washington Avenue
Albany, New York 12224

Matthew B. Kogan, Esq.
Ohrenstein & Brown, LLP
Attorneys for Defendants
1010 Franklin Avenue
Garden City, New York 11530

Joan B. Lefkowitz, J.

In this certified class action involving approximately 1,600 persons who retired from Westchester County during the period of 1993 to 2004, plaintiffs allege that defendants breached their contracts by diminishing their health insurance benefits causing plaintiffs additional medical and health insurance costs of $3,610,181 to date.

Between 1993 - 2001, two collective bargaining agreements were executed between CSEA and Westchester County which provided for certain medical health insurance benefits. Those provisions remained in effect until May 2004 when a new agreement was made. That agreement changed the health benefits of active employees and Westchester County decided that such changes also affected retired employees. It had been the policy of Westchester County to treat retirees the same as active employees whenever a new collective bargaining agreement occurred.

Counsel have stipulated to the facts in this action rather than a trial and have submitted various exhibits and memoranda of law for the Court to consider.

Until 1993, prior collective bargaining agreements insofar as health insurance benefits were concerned were effective for the duration of the contract or the term of the contract. The immediate past two collective bargaining agreements (effective January 1, 1993 through May 2004) omitted language as to duration and specifically included retirees.

Absent consent of all parties, a union does not represent retirees when it negotiates with an employer in collective bargaining. Allied Chem. Wkrs. v. Pittsburgh Plate Glass Co., 404 US 157, 180 footnote 20 (1971). Indeed, "vested retirement rights may not be altered without the pensioner's consent". Ibid. Where, as here, there is no durational limit in the immediate prior collective bargaining agreements as to retiree health insurance benefits "it is unlikely that such benefits, which are typically understood as a form of delayed compensation for past services, would be left to the contingencies of future negotiations". International Union, UAW v. Yard-Man, Inc., 716 F2d 1476, 1482 (6th Cir. 1983), cert. den. 465 US 1007 (1984). Retiree benefits "carry with them an inference that they continue so long as the prerequisite status is maintained". Ibid. This inference trumps any general duration clause as to the life or termination of the agreement. Id. at 1482-83. Therefore, pursuant to settled principles of law involving interpretation of collective bargaining agreements, it is clear that plaintiffs' health insurance benefits in the prior collective bargaining agreements survived those agreements and may not be diminished without their consent. Hudock v. Village of Endicott, 28 AD3rd 923 (3rd Dep't 2006); Della Rocco v. Schenectady, 252 AD2d 82 (3rd Dep't 1998); Myers v. City of Schenectady, 244 AD2d 845 (3rd Dep't 1997).

Defendants' reliance on McDonald Police v. Geneva, 92 NY2d 326 (1998) is misplaced as the collective bargaining agreements there did not address the benefits in issue whereas the prior collective bargaining agreements at bar do.

Accordingly, judgment in favor of plaintiffs is granted. Submit Order on notice. [*2]

DATED: July 29, 2008

ENTERED: /S/

JOAN B. LEFKOWITZ, J.S.C. 

 

July 17, 2021

Audits and reports issued during the week ending July 16, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending July 16, 2021. 

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

City of Binghamton – Joint Sewage Treatment Facility Capital Project Planning and Monitoring (Broome County)City officials properly planned and monitored the project by establishing a sound process for overseeing project activities that included daily onsite inspections documenting the following: daily onsite personnel; leak testing results for treatment lines; concrete inspection and testing results, including core samples and composition and work progress through photographic evidence. In addition, city officials ensured construction change orders were made only when warranted and after a thorough review. They avoided $11.3 million in interest and financing costs over 30 years by obtaining a $15 million interest-free loan and securing grants to fund 27 percent of project costs. In addition, city officials withheld payments to contractors to recover some of the $3.1 million in additional costs that were due to project delays.

Incorporated Village of Garden City – Check Signing (Nassau County) The village’s check signing process does not comply with village policy and the village treasurer did not maintain control of her electronic signature. In addition, the treasurer allowed her signature to be affixed to checks without her being present. Alternate signatories did not sign in the absence of the treasurer and deputy treasurer.

Selkirk Fire District – Procurement of Professional Services (2021M-55) (Glens Falls Regional Office)District officials did not solicit competition for professional services. During the audit period, district officials paid 12 professional service providers $759,029 without soliciting competition. Officials also did not issue a request for proposals for audit services totaling $25,200, although required by policy. In addition, officials could not provide documentation that they used other methods to assess the accountability, reliability, responsibility, skill, education and training, judgment, integrity and moral worth of the professional service providers as required by the district’s procurement policy.

 

SCHOOL DISTRICT AUDITS

Watervliet City School District – Information Technology (Albany County) The board and district officials did not ensure the information technology (IT) assets and data were safeguarded. Officials did not establish written procedures for managing, limiting and monitoring user accounts. Auditors determined officials also did not disable 72 unneeded network accounts in a timely manner. Officials also did not monitor compliance with the acceptable computer use policy. As a result, 12 of 13 computers auditors tested accessed nonbusiness websites prohibited by the policy. Sensitive IT control weaknesses were communicated confidentially to officials.

Westhill Central School District – Information Technology (Onondaga County) District officials did not implement adequate information technology (IT) controls over the district office’s network to safeguard personal, private and sensitive information. District officials also did not monitor employee Internet use. Auditors found eight of 10 employees’ computers they reviewed were used for personal internet activity. District officials did not properly manage network user accounts. Auditors examined all 31 enabled network user accounts on the district office domain controller. Six unneeded network user accounts, seven shared user accounts and three user accounts were found with unneeded administrative permissions. In addition, district officials did not provide formalized IT security awareness training to staff. Sensitive IT control weaknesses were communicated confidentially to district officials.

 

 

July 16, 2021

Redistricting for the 2022 Elections

Redistricting for the 2022 Elections, an article addressing New York State's engaging "in a new and untried procedure in creating legislative and congressional districts following the 2020 census," was posted July 16, 2021 by Richard Rifkin, Legal Director of Albany Law School's Government Law Center. 

Click HERE to access Mr. Rifkin's article.

About Submitting a Resignation, Withdrawal of a Resignation and Disregarding a Resignation

It appears to be simple enough. 4 NYCRR 5.3[1]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[2]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.[3][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[4] frequently report that the appointing authority "accepted" the individual's resignation. This is not entirely accurate, however.

Except where otherwise provided by law,[5]rule, regulation or a provision set out in a collective bargaining agreement,[6]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.

What constitutes delivery of the resignation to the appointing authority? In Grogan v Holland Patent Central School District,[7]the Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the board.” Therefore, the resignation could not be withdrawn without the board’s consent.

In contrast, in Atkinson v Kelly[8]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.[9]

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 [1] vacate his termination; [2] reinstate him to his former position; and [3] 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.[10]

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,[11]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 preclude 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.[12]

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,[13] 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.[14]

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.[15] 

 

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:

[1] TA resignation was effective; and [2] 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[16]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,[17] 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[18] 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.

Decisions 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. 

On occasion the terms set out in a written resignation submitted by an individual  may prove troublesome as was the case in Plainedge UFSD v Raymond, Decisions of the Commissioner of Education, Decision No. 14,644.

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[19]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.[20] 

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.[21]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.[22]In Bernstein v Industrial Commissioner[23]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"[24], §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,[25]where the court held that except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his position.



[1] 4 NYCRR, in general, applies to officers and employees in the Classified Service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Municipal Civil Service Commissions and Personnel Officers typically have adopted similar rules and regulation pursuant to §20 of the Civil Service Law.

[2] Although not all public employees are public officers, all public officers are public employees.

[3] 4 NYCRR 1.1, Application of Rules. Many local civil service commissions and personnel officers serving in lieu of a civil service commission have adopted similar rules or regulations pursuant to §20 of the Civil Service Law.

[4] §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” The author of this article follows this protocol.

[5] For example, §2111 of the Education Law 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."

[6] Decisions of the of Education, Decision No. 17,688 where a collective bargaining agreement, in pertinent part, provided that teachers who are absent for 20 consecutive school days without notice shall be deemed to have resigned unless they have reasonable cause for failure to notify. 

[7] 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756

[8] 175 AD3d 1406.

[9] It should be noted that payments to an employee to induce him or her to resign rather that being served with charges not included in final average salary calculation [Horowitz v NYS Teachers' Retirement System, 293 AD2d 861].

[10] See City of Mount Vernon Charter Article X, §§114-116.

[11] See City of Mount Vernon Charter Article X, §§Articles VIII, VIII-s and IX.

[12] Grogan v Holland Patent CSD, 262 AD2d 1009.

[13] 25 NYS2d 74.

[14] In contrast, the Appellate Division rejected an educator's motion to rescind a settlement agreement resolving a disciplinary action because the educator had a change of mind, Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y., 166 AD3 527.

[15] Shadur v Town of Pawling, 2020 NY Slip Op 01175.

[16] 152 AD2d 893, appeal dismissed, 74 N.Y.2d 944.

[17] 63 NY2d 643.

[18] 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613.

[19] 1971 Opinions of the Attorney General 12.

[20] Mari v.Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61.

[21] In determining this one-year period, credit is given for time spent in active military service and, or, in service with the State or another political subdivision of the State.

[22] Formerly Rule 37.4 of the Rules for the Classified Service. See, also, Stutson v O'Connell, 276 AD 602.

[23] 59 AD2d 678.

[24] The State's "Organized Militia" consists of the New York National Guard, the New York Air National Guard, the Naval Militia and the New York Guard.

[25] 60 AD3d 237



 

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