Refusing to accept the resignation submitted by an employee

Refusing to accept the resignation submitted by an employee

Decisions of the Commissioner of Education, Decision No. 17,007

In this appeal to the Commissioner of Education, the petitioner [Petitioner] challenged a school district’s rejection of his resignation from his probationary appointment and its subsequent terminating him from his position instead. He asked the Commissioner to direct the district to either [1] rescind his appointment as a probationary employee or, in the alternative, [2] to accept Petitioner’s previously tendered letter of resignation.

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 Petitioner’s appeal the Commissioner said that “In 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.”

Here, said the Commissioner, Petitioner failed to allege that his termination from his probationary appointment was for an unconstitutional reason or in violation of any statute. Accordingly, the Commissioner ruled that Petitioner “failed to meet his burden” and dismissed his appeal. Thus, in this instance, the school district’s records would record Petitioner’s separation from employment as a “probationary termination” rather than a “resignation” from his position. 

Technically, in this instance the school district elected to ignore Petitioner's resignation rather than refuse 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. Indeed, the officer or employee usually may not withdraw or rescind his or her resignation once it has been delivered to the appointing authority without the approval of the appointing authority. 

Although an appointing authority may acknowledge the "receipt" of a resignation received from an officer or an employee or report that an individual's resignation has been accepted, all that is required for a resignation to become operative is its delivery to the appointing authority. In other words, the approval or acceptance of the resignation is not required for the resignation to take effect  unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement (see Hazelton v Connelly, 25 NYS2d 74).

As an example of a situation where the acceptance of a resignation is mandated by statute, §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" [emphasis supplied].

In contrast to "refusing to accept a resignation," an appointing authority may elect to disregard the resignation submitted by the individual under certain circumstances.

For example, 4 NYCRR 5.3(b), which applies to employees of the State as the employer  provides that in the event “… charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."

Another example: §1133.1 of the State Education Law 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, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made."

Presumably an appointing authority could elect to disregard an employee's “retirement” from his or her position under similar circumstances [See Mari v.Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61].

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Teacher fined $10,000 after subjecting student to corporal punishment

Teacher fined $10,000 after subjecting student to corporal punishment

2016 NY Slip Op 08301, Appellate Division, First Department

The Appellate Division dismissed a petition to vacate an Education §3020-a disciplinary arbitration award finding that a special education teacher [Educator] inflicted corporal punishment on a special education student. The court then sustained the penalty imposed: a $10,000 fine, indicating that the penalty “does not shock our sense of fairness.”

The court found that the hearing officer’s determination:

1. Did not violate the Educator's due process rights as she was provided with notice, an appropriate hearing, and the opportunity to present evidence and cross-examine witnesses; and

2. Was supported by adequate evidence, was rational, and was not arbitrary and capricious.

As to the penalty imposed on  Educator, §3020-a(4)(a) of the Education Law, which applies to members of the teaching and supervisory staff of a school district, a board of cooperative educational services or a county vocational education and extension board, regardless of title, as described in subdivision (d) of §35 of the Civil Service Law, provides, in pertinent part, that “[i]n those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal"

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Redacting certain content in a public record when responding to a Freedom of Information request

Redacting certain content in a public record when responding to a Freedom of Information request

Laveck v Village Bd. of Trustees of the Vil. of Lansing, 2016 NY Slip Op 08150, Appellate Division, Third Department

Responding to a Freedom of Information [FOIL] request, the Village of Lansing redacted certain information, including names and addresses of individuals contained in the record, contending that such redaction was necessary "to protect information that would, if disclosed, result in an unwarranted invasion of personal privacy and could, if disclosed, endanger the life and safety of persons."

The Appellate Division, explaining that under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)," said that these exemptions are construed narrowly and the burden rests on "the public agency to demonstrate that 'the material requested falls squarely within the ambit of one of the statutory exemptions,'" and must provide a “'particularized and specific justification' for not disclosing requested documents."*

As to the personal privacy exemption, the Appellate Division said that the Village “failed to demonstrate that the redacted information fell into any of the categories of information that the Legislature has specifically determined would qualify as an unwarranted invasion of personal privacy if disclosed.” In the absence of such evidence, the court said it was necessary to evaluate whether disclosure would constitute an unwarranted invasion of personal privacy "by balancing the privacy interests at stake against the public interest in disclosure of the information."

Here, said the court, the Village “failed to establish that disclosure of the … names, home addresses or other personal identifying information would constitute an unwarranted invasion of personal privacy.”

Further, said the Appellate Division, the Village did not demonstrate that disclosure of the redacted information "could endanger the lives or safety" of the individuals listed in the documents.

The Village, having failed to establish the applicability of a statutory exemption, was held to have “improperly redacted the names, addresses and other identifying information” in the records and was directed to respond to the FOIL request “with unredacted copies of the requested documents, in electronic form if possible.”

The release of some public records pursuant to a FOIL regquest, however, may be  limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute. Submitting a formal FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to simply provide the information or record requested. In such cases the individual or organization must file a formal FOIL request in order to obtain the desired record or information. 

It should also be noted that there is no bar to the custodian of the public record providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. 

In some instances, however, a statutory exception may have “sublimated” as the Appellate Division observed in DeFreitas v New York State Police Crime Lab.,2016 NY Slip Op 05676, quoting Matter of Lesher v Hynes, 19 NY3d 57. In DeFreitas the court said “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies [after the individual’s] criminal proceedings and judicial review have concluded.”