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Employee seeks reinstatement to his former position claiming that his resignation was ineffective and involuntary

Employee seeks reinstatement to his former position claiming that his resignation was ineffective and involuntary
Matter of Melber v New York State Educ. Dept., 2010 NY Slip Op 01723, Decided on March 4, 2010, Appellate Division, Third Department

Joseph Melber, a NYS Department of Education employee, ?became upset and left work early.? A few hours later he sent an e-mail to his supervisor ?in which he resigned his position, effective November 1, 2007.?

Melber attempted to withdraw his resignation on November 2, 2007, ?minutes after [employer] had accepted it.?* When Education declined to permit Melber to withdraw his resignation, Melber filed a grievance alleging that his resignation was invalid under the terms of the applicable collective bargaining agreement.

Ultimately the arbitrator held that Melber's resignation was valid under the terms of the collective bargaining agreement and applicable regulations.**

While the grievance process was pending, Melber initiated an Article 78 proceeding claiming that Education?s refusal to permit him to rescind, the resignation were arbitrary and capricious. Supreme Court dismissed Melber?s petition and the Appellate Division affirmed the lower court?s decision.

Addressing the merits of Melber?s claims that Education ?improperly accepted? his resignation because its employee handbook stating that "[t]he use of electronic mail is not an acceptable method of notification [of a resignation] unless a hard copy, signed by the employee is also received," Melber was required to "demonstrate reliance upon [the employee handbook's] terms and resulting detriment." The Appellate Division said that Melber failed to make such a showing.

Further, said the court, ?Melber refused to comply with [such a policy] stating in his resignation that he would not return to the building and that the e-mail message would "have to serve as [his] official letter."

* 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 ?(c) 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].

NYPPL Comments: Concerning the event triggering the effectiveness of a resignation, although both public employers and employees frequently characterize "acceptance" as the operative element in effecting a resignation, such a characterization is troublesome.

For example, Section 31 of New York?s Public Officers Law characterizes resignations by public officers as follows: written resignations take effect upon delivery to the appropriate authority.

Similarly, the New York State Civil Service Commission?s Rules for employees of the State as an employer provide, in pertinent part, that ?If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority. If an effective date is specified in a resignation, it shall take effect on such specified date.?

Clearly acceptance of the resignation is not the "operative" element with respect to effecting a resignation except in those situations where ?acceptance? is mandated by statute.

As an example of a situation where acceptance of a resignation mandated by statute, Section 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].

Additionally, in contrast to using a phrase such as "refuse to accept," in situations where disciplinary action is pending, an appointing authority may elect to "disregard" the employee's resignation and pursue disciplinary action against the individual notwithstanding the delivery of the resignation.

4 NYCRR 5.3(b) illustrates this option, where, in pertinent part, it provides that ?when 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.

Full post as published by New York Public Personnel Law on March 09, 2010 (boomark / email).