Labor & Employment Law

Abandonment of a position in the public service

By Harvey Randall, Esq.

Abandonment of a position in the public service
Matter of Michael Diggins v Honeoye Falls-Lima Cent. School Dist., 2008 NY Slip Op 03742, Decided on April 25, 2008, Appellate Division, Fourth Department

The Appellate Division, 4^th Department, directed the Board of Education of the Honeoye Falls-Lima Central School District to reinstate Michael Diggins to his position as a tenured teacher with back pay and benefits retroactive to September 1, 2006. The court concluded that the school district ?failed to establish by clear and convincing evidence? that Diggins intended to abandon his position as a tenured teacher. Accordingly, said the court, Diggins was entitled to, but was not afforded, notice and a hearing ? i.e. ?administrative due process? -- before his employment was terminated.

According to the ruling, the school district was aware that it had assigned Diggins to work at a location to which it knew he could not legally report. Thus, said the court, his not returning to work ?did not constitute an abandonment of his position.? Further, the Appellate Division decided that, ?inasmuch as that reason was known to [the district] and was reasonable, the fact that Diggins failed to advise the school district of his reason for not returning to work did not constitute an abandonment of his position.

In an earlier case involving a teacher?s alleged abandonment of her position, (Ciccarelli v West Seneca Central School District, 107 AD2d 1050), the Appellate Division, Fourth Department, rejected a Board of Education?s resolution holding that Rebecca Ciccarelli had abandoned her position and terminating her. The court said that the burden of proving that Ciccarelli had abandoned her tenured teaching position was upon the District. This must be established "by clear and convincing evidence" that Ciccarelli, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, a tenured teacher may be terminated only in accordance with §3020-a of the Education Law.

The Ciccarelli court held that "the record is devoid of evidence" that Ciccarelli abandoned her teaching position. The action by the Board was declared null and void and it was ordered to reinstate Ciccarelli to her position with back salary and appropriate benefits.

In contrast, in McKnight v NYS Dormitory Auth., 267 A.D.2d 708, the Appellate Division sustained Supreme Court Justice Harold J. Hughes? ruling that Lucille M. McKnight had abandoned her position when she failed to either report to work as directed or provide satisfactory medical documents supporting her continued absence. According to the ruling, McKnight's failure comply with a directive to do either "could serve as a legitimate basis" for the New York State Dormitory Authority's conclusion that McKnight had abandoned her position "notwithstanding [her] continued interest in her job."

McKnight, a Dormitory Authority employee, stopped coming to work. From time to time "she presented belated, back-dated, sketchy notes and letters from health care providers that consistently evaded the Authority's request for information" concerning her ability to work. The Authority told McKnight that either she return to work or present medical documentation that she was totally unable to perform her duties. It also offered to provide a "reasonable accommodation" that would allow her to resume work. Ultimately the Authority wrote McKnight that if she did not return to work by a specified date, or provide satisfactory medical evidence of her inability to do so, it would deem her to have abandoned her position. When McKnight failed to report as directed, she was terminated from her position.

Justice Harold J. Hughes ruled that, under the circumstances, the Authority's ultimatum was appropriate. He decided that McKnight had abandoned her position by failing to either report to work or provide satisfactory medical documents supporting her continued absence.

The Appellate Division said that in view of McKnight?s failure to provide the necessary medical documentation justifying her complete incapacity and her failing to communicate her intention to return to work by the date specified by the Authority, Supreme Court's dismissal of her petition challenging her termination was neither arbitrary nor capricious in light of the vague nature of medical documentation submitted to the Authority on her behalf.

In another ?abandonment of position? case, Mitchell v. County of Essex, 19 A.D.3d 797, the court sustained the termination of an Essex County Deputy Sheriff following a hearing pursuant to Civil Service Law §75 in which the deputy was found guilty of taking unjustified and unauthorized leave and of abandoning his position.

NB: A former rule of the New York State Civil Service Commission [4 NYCRR 5.3(d)] providing that a State employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position was held to violate the employee's right to due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. Such a provision, however, has been held lawful if the parties had agreed to such a result through the collective bargaining process [Manhattan & Bronx STOA v TWU Local 100, Appellate Division, 1st Department]. Typically the courts will decline to void the provisions of collective agreements negotiated pursuant to the Taylor Law except in cases where it finds the provision constitutes a violation of a strong public policy.

Full post as published by New York Public Personnel Law on April 28, 2008 (boomark / email).