Submitting, demanding and withdrawing a resignation from public employment

Submitting, demanding and withdrawing a resignation from public employment
2015 NY Slip Op 04408, Appellate Division, First Department

The rules of the New York State Civil Service Commission provide that "every resignation shall be in writing" [4 NYCRR 5.3(a)]. The rules further provides that if no effective date is specified in the resignation, it takes effect when delivered to or filed in the office of the appointing authority. If a date is specified, it takes effect on the date indicated. 4 NYCRR 5.3(c) also provides that a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.

Many local civil service commissions and personnel officers have adopted similar rules concerning resignations of employees subject to their respective jurisdictions.

The genesis of this appeal was Supreme Court’s order directing the New York City Department of Education (DOE) to reinstate an individual [Petitioner] to her teaching position with back pay and all other economic benefits of employment from August 28, 2008. DOE appealed and the Appellate Division unanimously reversed the lower court’s ruling, on the law and the facts.

The Appellate Division held that Petitioner’s action was time-barred because it was filed more than four months after Petitioner's receipt of DOE's letter notifying her that she was taken off the payroll as a result of her resignation. (see CPLR 217[1]; see also Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834 [1983]). The court explained that Supreme Court had failed to distinguish the regulations applicable to employee requests to "rescind" a resignation, which are made before the effective date of the resignation, and requests to "withdraw" a resignation, which are made after the effective date of the resignation. Further, the "delivery or filing" of a written resignation is the operative element and “acceptance” of the employee’s resignation by the appointing authority is not required.

In this instance Petitioner sought to rescind her resignation before it was effective. Under the relevant Chancellor's Regulation [C-205(26)], a resignation was deemed final upon submission and the Chancellor had no obligation to specifically notify Petitioner that her request to rescind was denied. The record, said the Appellate Division, indicates that DOE notified Petitioner on August 26, 2008 that she was being taken off the payroll based on her resignation. Thus, said the court, “[f]urther action by DOE was not required nor did Petitioner's letters to DOE after that date extend the statute of limitations, citing Lubin v Board of Education of the City of New York, 60 NY2d 974.

In any event, the Appellate Division noted that there was “a rational basis for DOE's determination terminating Petitioner’s employment based on her resignation in the face of disciplinary charges, and the determination was not arbitrary and capricious, made in bad faith, or made in violation of lawful procedure.”

In an earlier case, Smith v Kunkel, 152, AD2d 893 [appeal dismissed, 74 N.Y.2d 944] the Appellate Division considered the issue of an employee's attempt to withdraw his written resignation prior to its effective date. Smith, a permanent State employee had submitted his resignation for "personal reasons." The resignation was dated August 21 and was to take effect the following September 3. On August 29 Smith wrote the Division "seeking to withdraw and rescind" his resignation.

Kunkel, the Division's Administrative Officer, refused to approve Smith’s request to withdraw his resignation, citing 4 NYCRR 5.3(c) of the rules. Further, in Hazelton v Connelly, 25 NYS2d 74 the court said that all that is required for a resignation to become operative is its delivery to the appointing authority prior to the receipt of an employee’s request to withdraw or rescind the resignation prior to its receipt by the appointing authority. Approval or acceptance of the resignation is not required for the resignation to take effect

Smith had sued the agency contending that [1] Kunkel's refusal to permit him to withdraw his resignation was arbitrary and capricious and [2] 4 NYCRR 5.3(c) was unconstitutional as it deprived him of his public employment without notice and hearing.

As to Smith's constitutional challenge to the rule, the Appellate Division rejected Smith's argument that the rule was Unconstitutional noting that the argument overlooked a crucial fact: Smith had not been terminated but had voluntarily resigned his position. The court said 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... Having relinquished his position, [Smith] did not retain any constitutionally protected property interest in it."

On another point, sometimes an individual's notice that he or she has decided to withdraw, cancel or rescind the resignation is received by the appropriate official or body before the resignation is actually "delivered" to such person or body. In such situations the courts usually rule that the receipt of a withdrawal of a resignation before the resignation itself is delivered effectively voids the resignation.

Another issue that is sometimes raised in connection with an attempt to withdraw a resignation is a claim that the resignation was coerced from an employee or obtained under duress. Frequently an appointing authority will indicate to an employee that unless the worker submits his or her resignation, disciplinary charges will be filed against the individual.

The courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643].

Finally, where an employee has submitted his or her resignation after being served with disciplinary charges or in expectation of being served with disciplinary charges, an appointing authority may elect to disregard an employee’s resignation and proceed with the disciplinary action [see 4 NYCRR 5.3(b)].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04408.htm

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Unit member claims her employee organization breached its duty of fair representation when it refused to provide her with legal representation

Unit member claims her employee organization breached its duty of fair representation when it refused to provide her with legal representation

2015 NY Slip Op 04234, Appellate Division, First Department

A member [Member] of the collective bargaining unit sued the Member’s collective bargaining  organization [CBO]  after receiving a letter from the CBO advising her that:

[1] Her grievance concerning a salary adjustment was denied;

[2] The CBO did not believe that her claim was meritorious; and

[3] The CBO would not pursue the matter at arbitration.

Supreme Court dismissed Member’s Article 78 petition challenging the CBO's decision not to pursue the matter as untimely. The Appellate Division affirmed the lower court’s decision and, in addition, addressed a number of substantive issues raised by Member in her Article 78 petition

Considering Member’s claim that the Doctrine of Equitable Estoppel precluded the CBO from invoking the statute of limitations as a defense, the Appellate Division said that it disagreed with Member's theory the Doctrine barred the CBO's from arguing that her Article 78 action was untimely.

The court said that although Member alleged that her delay in filing her Article 78 petition was caused by the CBO’s alleged failure to advise her that it had access to her personnel records, her “claim is not dependent on knowledge of this fact.” Further, the Appellate Division commented that “in any event, mere silence is insufficient to invoke the doctrine of equitable estoppel, citing Ross v Louise Wise Servs. Inc., 8 NY3d 478.

Member also contended that the CBO had breached its duty of fair representation when it refused to provide her with counsel to defend herself in an action brought by her former employer to recover an alleged salary overpayment. The Appellate Division explained that such refusal “does not state a claim for breach of the duty of fair representation” as Member could have presented her own defense in the action, and any alleged misconduct

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04234.htm

Substantial evidence of guilt of “serious” offences supports imposing the penalty of dismissal from employment

Substantial evidence of guilt of “serious” offences supports imposing the penalty of dismissal from employment
2015 NY Slip Op 04252, Appellate Division, First Department

The New York City Police Commissioner dismissed a New York City police officer from his position following an administrative disciplinary hearing. The Appellate Division sustained the Commissioner’s determination and the penalty the Commissioner imposed.

The court said that there was substantial evidence supporting the findings that the police officer:

1. Committed larceny by withdrawing money from his girlfriend's bank account without consent;

2. Made false statements in an accident report; and

3. Had been absent on “an unapproved absence” and made false statements regarding a separate purported approval of an absence.

Characterizing the police officer’s offences as “serious” and noting that the Commissioner "is accountable to the public for the integrity of the Department," the Appellate Division said that the penalty of termination “does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04252.htm

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