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February 10, 2023

Removing a tenured State or municipal employee alleged to have abandonment the position from service

New York State Civil Service Rule 4 NYCRR 5.3(d), since repealed, permitted the appointing authority of a State department or agency employee to terminate a tenured employee in the Classified Service absent for a period of ten or more days without an explanation by deeming the employee to have resigned from his or her position. Many local commissions had adopted a similar rule or regulation. In Bernstein v Industrial Commissioner, 59 AD2d 678, the Appellate Division held that so terminating such a tenured employee under color of 4 NYCRR 5.3(d) violated the employee's right to administrative due process. 

Notwithstanding the Bernstein decision, such a provision has survived in collective bargaining agreements negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law", with respect to tenured employees in the Classified Service. For example, in Schacht v City of New York, 39 NY2d 28, the Court of Appeals noted that the relevant collective bargaining agreement expressly provided that the unauthorized absence of a tenured employee in the Classified Service for 10 consecutive workdays could be deemed to constitute a resignation by the appointing authority.

In Ciccarelli v West Seneca Central School District, 107 AD2d 105, a tenured teacher* challenged a Board of Education’s resolution terminating her from her position based on its finding that she had abandoned her position. Tracking Bernstein, the Appellate Division the court explained that the burden of proving that the educator had abandoned her tenured teaching position was upon the appointing authority and must be supported  "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, opined the court, a tenured teacher may be terminated only in accordance with the disciplinary procedures set out in §3020-a of the Education Law.

* Teachers serve in positions in the Unclassified Service.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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