Educator ineligible for unemployment insurance benefits between semesters after being assured of continued employment for the next semester

§590(10) of New York State's Labor Law provides that "professionals who are employed by educational institutions are precluded from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment."

A part-time adjunct instructor [Claimant] at community college [Employer], received a letter informing him that it had scheduled him to teach during the fall semester, noting that the schedule was "dependent on anticipated student enrollment." The letter also advised Claimant that "[i]f for any reason your course(s) has to be eliminated, you will be notified by the Department Chair."

In June Claimant filed an application for unemployment insurance benefits.* The Department of Labor issued an initial determination finding that Claimant was ineligible to receive benefits because Employer had informed him that continuing work was available during the next academic year. Ultimately the Unemployment Insurance Appeal Board reversed this decision and found that Claimant was entitled to receive benefits because Employer "had not provided [Claimant] with a reasonable assurance of continued employment." Employer appealed the Board's ruling.

The Appellate Division noted that record indicated that Claimant taught three courses, consisting of nine credit hours, for the spring semester and earned approximately $10,766.79, an amount determined by the collective bargaining agreement in effect between the Employer and Claimant's union and that during the Spring semester Employer posted its fall course schedule online, listing Claimant as again being the instructor for three courses, also totaling nine credit hours.

Finding that the record showed that Claimant received a reasonable assurance of continued employment for the fall semester sufficient to show that that he was ineligible to receive unemployment insurance benefits, the Appellate Division ruled that the  Board's decision "must be reversed"

* In completing a Department of Labor questionnaire, in response to the question "[h]ave you been informed by the educational institution shown above that you will or may be working for them on a regular or substitute basis following the academic break," Claimant answered "yes," indicated that the offered position was that of adjunct instructor, that the dates of employment were from August to December and that he would be compensated at the "same rate of pay from [the] previous term."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02229.htm

Employee found guilty of violating New York City's ethics rules fined $20,000

The New York City Conflicts of Interest Board determined Plaintiff's teaching at the entity when he was scheduled to be working at DOE involved a conflict of interest and found him guilty of violating New York City's ethics rules. The penalty imposed: a fine in the amount of $20,000.

Plaintiff brought an Article 78 action challenging the Board's determination and the fine it imposed. The Appellate Division unanimously confirmed the Board's ruling and dismissed Plaintiff 's Article 78 petition.

Finding that there was no basis to disturb the credibility determinations of the Administrative Law Judge, the Appellate Division said that substantial evidence supported the Board's determination that Plaintiff's actions violated New York City Charter §§2604(b)(2) and 2604(a)(1)(b).

Addressing the Board's imposing a $20,000 penalty on Plaintiff, the Appellate Division said that the penalty imposed "does not shock one's sense of fairness in light of the egregiousness of [Plaintiff's] conduct," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02163.htm

The penalty of termination held not so disproportionate to the offense so as to be shocking to one's sense of fairness” in light of the employee’s statement about “going postal”

A hearing officer, after a hearing conducted pursuant to Civil Service Law §75, found a “firehouse maintainer” [Petitioner] guilty of certain charges of misconduct and/or incompetence and recommended that the Petitioner be terminated from his position. The Fire District [District] adopted the findings and recommendation of the hearing officer and dismissed Petitioner from his position. Petitioner filed an appeal pursuant to CPLR Article 78 challenging the District’s decision.

The Appellate Division, sustaining the District’s action, noted that in addition to charges alleging excessive socializing and failure to complete assigned duties, Charge V, Specification 1, alleged that Petitioner stated that he "wanted to get a gun and go postal on this place."

Addressing Charge V, Specification 1, the hearing officer found that Petitioner had used the phrase "go postal" or "going postal," but he did not find that Petitioner used the word "gun." However, said the court, the hearing officer also determined that Petitioner understood the meaning of the phrase "going postal," and that the phrase reasonably could be interpreted as threatening.

Citing Matter of Thomas v Town of Southeast, N.Y., 168 AD3d 955 and other decisions, the Appellate Division explained that with respect to employee disciplinary cases, “judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence.”

Further, opined the court, "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists.”*

Further the court explained that any credibility issues were resolved by the hearing officer and substantial evidence in the record supported the determination that Petitioner was guilty of the misconduct and/or incompetence alleged some, but not all, of the Charges and Specifications filed against him.

Finally the Appellate Division noted that a court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, citing Matter of Waldren v Town of Islip, 6 NY3d 735 and indicated that although “... reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty." Here, said the court, “the penalty of termination was not so disproportionate to the offense so as to be shocking to one's sense of fairness”, especially in light of the disturbing nature of the Petitioner's statement about “going postal”.

* See Matter of Grimaldi v Gough, 114 AD3d 679, 680, quoting Berenhaus v Ward, 70 NY2d 436 at 444.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_01496.htm

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Rescinding a resignation

An individual's notice that he or she has decided to withdraw, cancel or rescind the resignation may be 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 [see Grogan v Holland Patent CSD, 262 AD2d 1009].

Although it is sometimes reported that "a resignation has been accepted," all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74) unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement.

4 NYCRR 5.3(a) which controls with respect to employees of the State as an employer, provides that “Except as otherwise provided herein, every resignation shall be in writing. Further, 4 NYCRR 5.3(c) provides that once a resignation is received by the appointing authority or its designee, “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority [emphasis supplied].

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town of Pawling, accepting the petitioner's resignation from the position of town attorney, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Dutchess County (James D. Pagones, J.), dated October 30, 2018. The order and judgment granted the respondents' motion to dismiss the petition, and dismissed the proceeding.

The Appellate Division "ORDERED that the order and judgment is affirmed, with costs."

The petitioner was appointed town attorney for the respondent Town of Pawling, effective January 3, 2018. By letter dated May 11, 2018, addressed to the Town Supervisor, the petitioner gave notice of his intent to resign from the position "as soon as my successor has been identified, and the Town Board is ready to appoint him or her." On May 14, 2018, at the direction of the Town Supervisor, the petitioner's letter was delivered to the respondent Town Clerk, Cathy Giordano, who stamped and filed it in the regular course of business.

Thereafter, despite the petitioner's subsequent attempts to rescind his resignation, which were addressed to the Town Supervisor and the Deputy Town Supervisor, the Town Board accepted his resignation during a meeting on June 13, 2018, and hired a replacement town attorney.

The petitioner commenced this proceeding pursuant to CPLR article 78, contending that his resignation was ineffective, and that he was improperly terminated from his position as town attorney. The Supreme Court granted the respondents' motion to dismiss the petition, finding that the petitioner's resignation was effective, and that he never sought the consent of the Town Clerk for his resignation to be withdrawn or cancelled, in accordance with Public Officers Law § 31(4). We affirm.

Although the petitioner's written resignation was presented to the Town Supervisor instead of the Town Clerk, as required by Public Officers Law § 31(1)(g) and (2), we find that the statute was substantially complied with when the resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business [*2](see Matter of Popp v Town of Cornwall , 244 AD2d 492; Matter of Brescia v Mugridge , 52 Misc 2d 859, 863 [Sup Ct, Suffolk County], affd 29 AD2d 632). Therefore, the petitioner's resignation was effective.

Moreover, since it is undisputed that the petitioner never sought the consent of the Town Clerk to withdraw or cancel the resignation, we agree with the Supreme Court's determination to dismiss the proceeding based on his failure to exhaust administrative remedies (see Public Officers Law § 31[4]; CPLR 7801[1]).

RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01175.htm