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Requirements to effect a valid resignation

By Harvey Randall, Esq.

Requirements to effect a valid resignation
Plainedge UFSD v Raymond, Decisions of the Commissioner of Education 14644

The Commissioner's ruling in the Plainedge case points out the critical importance of the written resignation.

Early in 2001 Plainedge Union Free School District board member Donald Risucci announced that he was resigning from his position effective June 30, 2001. The district decided to include Risucci's seat on the ballot of its annual school election in order to save the school district the approximately $7,000 that a special election would cost.

Ralph Raymond won the election for Risucci's seat and asked to be seated immediately. He was told that "the seat would not become vacant until June 30, 2001, the effective date of Risucci's resignation.

The school attorney had advised the superintendent that "Risucci's resignation did not meet legal standards and was a nullity." Apparently Risucci had not submitted his resignation in writing as required by Section 31(2) of the Public Officer Law. An oral resignation does not satisfy the requirements of Section 31(2). Raymond, therefore, could not take office because no vacancy existed. In other words, Risucci was still a member of the board because he did not submit a lawful resignation. Raymond appealed his being denied a seat on the board to the Commissioner of Education.

The Commissioner's decision notes that the district "correctly determined that Risucci's March 8, 2001 announcement did not comply with the requirements of Section 31(2) and therefore was not a valid resignation." Risucci subsequently attempted to correct the situation by submitting his "June 1, 2001 resignation letter."

The Commissioner agreed that Risucci's March 8, 2001 announcement of his intention to resign at a board meeting did not constitute a valid resignation from the board. As the Attorney General indicated in a formal opinion [1971 Opinions of the Attorney General 12], a member of a school board, whether elected or appointed, is a public officer. Thus his or her resignation is subject to the mandates of Section 31 of the Public Officers Law. The Commissioner's decision notes that Section 31(2) requires that:

Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing.

It should be noted that Section 31(2) specifically addresses the "more than thirty day" situation -- i.e., what is the effective date of the written resignation if it specifies it is to take effect more than thirty days after its delivery?

Section 31(2) provides, in pertinent part, that if the written resignation specifies an effective date that is more than thirty days subsequent to the date of its delivery or filing the resignation shall take effect thirty days from the date of its delivery or filing.

In other word, had Risucci simultaneously submitted his written resignation at the time he orally announced his intention to resign indicating that the effective date of the written resignation was to be June 30, 2001, his resignation would have taken effect thirty days after his written resignation was delivered notwithstanding the fact that its terms demonstrated that Risucci intended that it not take effect until June 30, 2001.

Similarly, the same principle applies in cases involving the resignation of an individual in the classified service.

The State Civil Service Commission?s Rules for State employees in the classified service 4 NYCRR 5.3] provide:

5.3 Resignation. (a) Resignation in writing. Except as otherwise provided herein, every resignation shall be in writing.

(b) Effective date. 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. However, if a resignation is submitted while the employee is on leave of absence without pay, such resignation, for the purpose of determining eligibility for reinstatement, shall be deemed to be effective as of the date of the commencement of such absence. Notwithstanding the provisions of this subdivision, 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 termination shall be recorded as a dismissal rather than as a resignation.

c) Withdrawal or amendment. A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.

Courts have typically ruled that to be effective a resignation must be in writing and delivered to the appointing authority, or its designee. All that is required for a written resignation to become operative is its delivery to the appointing authority. The approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74).

On a related issue: May an appointing authority refuse to accept an employee's written resignation?

As noted earlier, an employee's written resignation becomes effective upon delivery; neither the appointing authority's acceptance or rejection is a factor insofar the effectiveness of the resignation is concerned.

The receipt of an employee's resignation may have an effect on other personnel actions under certain circumstances, however. For example, the employee may submit his or her resignation in the anticipation of disciplinary charges being filed against him or her or while disciplinary charges are pending. Will the employee's resignation prevent the appointing authority from proceeding with the disciplinary action?

Not necessarily as the appointing authority may elect to disregard the employee's resignation for the purposes of proceeding with the disciplinary action. The Rules of the State Civil Service Commission [4 NYCRR 5.3(b)], specifically provide that the appointing authority may elect to disregard the resignation and proceed with the disciplinary action. Many municipalities have adopted a similar rule or regulation.

Full post as published by New York Public Personnel Law on March 27, 2008 (boomark / email).