Petitioner appealed Supreme Court's denial of his CPLR Article 78 petition to annul and rescind Petitioner's resignation from his probationary police officer position with the Metropolitan Transportation Authority [MTA]. The Appellate Division unanimously affirmed the lower court's ruling.
The Appellate Division said Supreme Court "correctly concluded that it lacked subject matter jurisdiction because the termination of [Petitioner's] employment was accomplished by his voluntary resignation rather than an administrative determination." The Appellate Division noted that the record indicated that Petitioner's resignation "was voluntary based on his desire to improve his chances of reinstatement in the future".
The court also held that Petitioner's claim of bias based on his ethnicity was unsupported by evidence in the record and he failed to present anything that indicated his termination was based on his ethnicity or any bias by the Field Training Officers who rated his performance as a probationary employee.
The Appellate Division opined that even had Petitioner's resignation not been voluntary, he failed to present evidence showing that his separation of his employment by MTA was arbitrary and capricious, an abuse of discretion, in bad faith, or violative of law and procedure as Petitioner's "performance in phases 2 and 3, and the remedial training phase was found below expectations and unacceptable by different Field Training Officers".
Smith v Kunkel,* is case involving an individual's seeking to have a court consider his efforts to withdraw his written resignation prior to its effective date.
Smith had submitted his resignation to the employer indicating that he was doing 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 for the classified service for employees of the State of New York as the Employer.
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.
** Said rules "apply to positions and employments 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". Many municipal civil service agencies in New York State have adopted a similar rule or regulation applicable to individuals subject to the municipal agency's jurisdiction.
Click HERE to access the Appellate Division's MTA decision posted on the Internet.