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Resigning from a teaching position in one tenure area to accept atenured appointment in a different tenure area could affect seniority rights for the purposes of layoffAppeal of Erika L. Kwasnik, Decisions of the Commissioner ofEducation, Decision #16,419
This decision by the Commissioner of Education succinctlysets out the controlling consideration in determining the rights of an educatorresigning from his or her tenured position in one tenure area to accept atenured appointment in a different tenure area in the event of the abolishmentof his or her position.
Essentially there was no dispute that following herappointment to a library media specialist position, Erika L. Kwasnik submitteda letter of resignation from her English teacher position. When the librarymedia position was abolished and Kwasnik was advises that she would be excessedand her name place on a reinstatement list, she contended that because she wascontinuously employed within the district, she maintained her tenure, andtherefore her seniority rights, in the English teacher position.
The Commissioner indicated that in a layoff situation, therelevant rules of the Board of Regents provided as follows:
1. 8 NYCRR §30-1.10, a professional educator who acquirestenure in a new tenure area generally retains tenure in his or her originaltenure area while he or she remains continuously employed as a full-time memberof the professional staff of the district.
2. 8 NYCRR §30-1.13(c) provides that upon abolition of his orher position, a professional educator who has tenure status in additionaltenure areas must be transferred to such other tenure area in which he or shehas greatest seniority.
The Commissioner noted that both regulations apply “only toprofessional educators who have tenure and seniority rights in another tenurearea at the time tenure was acquired in a new tenure area or the position wasabolished, as applicable.”
In this instance, however, the school district claimed thatKwasnik had resigned from her tenured English teacher position and thus theissue before the Commissioner in this appeal is whether she had knowingly andfreely waived her tenure and seniority rights in the English tenure area byresigning from her position as an English teacher.
Citing Matter of Middleton (16 Ed Dept Rep 50,Decision No. 9,296, reopening denied 16 id. 366, Decision No. 9,433),the Commissioner noted that where a teacher had resigned from a full-timeposition but was simultaneously appointed to a non-probationary, part-timeposition in the district it was held that the resignation served to terminatethe employment relationship and any reinstatement rights.
Similarly, said the Commissioner, although Kwasnik continuedto work in the district and her benefits accrued without interruption, “I mustconclude that her resignation from her position as a tenured English teacherconstituted a relinquishment of her tenure and seniority rights with respect toan English teacher position.”
The Commissioner then observed that to be enforceable, sucha waiver of tenure rights must be knowingly and freely given and not theproduct of coercion. Further, “[a]bsent a showing of fraud, duress, coercion,or other affirmative misconduct on the part of school officials which renders aresignation involuntary, a resignation cannot be withdrawn once it has beenaccepted* by school authorities.”
Kwasnik asserted that that she expressed reservations to thedistrict’s previous superintendent about resigning but was told that “it wasthe only way she would be able to take on the duties of a Library MediaSpecialist.” She then claimed that she “reluctantly” agreed to provide aletter of resignation. The Commissioner, however, said that “The record indicatesthat petitioner knowingly and freely resigned from her position of Englishteacher once she was assured that she would be receiving the position of alibrary media specialist.” The Commissioner continued: “While [Kwasnik] mayhave expressed reservations about providing a letter of resignation, she didnot seek the assistance of counsel or her union before submitting the letter,nor did she indicate in her letter that she wished to maintain her tenure andseniority rights to the English teacher position.”
Finding that Kwasnik “has not demonstrated that she wascoerced into submitting a letter of resignation” or that the district engagedin any other affirmative conduct that rendered her resignation involuntary, theCommissioner ruled that the school district acted reasonably when it viewed Kwasnik’sresignation “as a voluntary end to her employment as an English teacher,thereby terminating her seniority and tenure rights to that position.”
* COMMENT: Except as otherwise provided by law, rule or regulation, or by the terms of a collective bargaining agreement, a resignation need only be received by the appointing authority, or its designee, prior to receipt of a notice that the individual has rescinded or withdrawn it to be effected – acceptance of the resignation is not required for it to be operative [Hazelton v Connelly, 25 NYS2d 74]. 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].
The decision is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume52/d16419.html
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