It appears to be simple enough. 4 NYCRR 5.31 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 5.3, in general, applies to
employees of the State as the employer in the Classified Service2 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 position4 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.
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
Kelly8 the decision reports that the 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 example of what the
judiciary concluded was 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 demonstrated in a 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 TA's petition,
finding that: [1] TA's 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's written resignation
was presented to the Town Supervisor instead of the Town Clerk as required by
the relevant provisions of Public Officers Law §31, this constituted 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 Kunkel16 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 NYCRR5.3(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,
the 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, making the necessary record,
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 Safir18 sets out the general standards applied by the courts in
resolving litigation challenging an appointing officer's electing go forward
with 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.
In any event, the appointing
authority should be mindful of the decision in Matter of Vinluan v Doyle, 60 AD3d 237, where the
court held that except under "exceptional circumstances," an employer
cannot refuse to permit an individual to resign from his 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 election, 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 General19 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
"by operation 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-Bof 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 of the State as the employer 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 an employee of the State as the
employer 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 the 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.
Endnotes
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.” NYPPL 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.