New York State Civil Service Rule 4 NYCRR 5.3(d), since repealed, permitted the appointing authority of a State department or agency employee to terminate a tenured employee in the Classified Service absent for a period of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.