Retirement to avoid disciplinary action

Retirement to avoid disciplinary action

A Los Angeles Unified School District teacher arrested and accused of sexually abusing students retired from his position before administrative disciplinary action had been initiated by the school district. School District Superintendent John Deasy, when asked what action the school district planned to take responded “Can you go back and fire someone who’s already retired?”*

An appointing authority of a New York State or political subdivision of the State is able do just that insofar as certain employees are concerned.

For example, 4 NYCRR 5.3(b), which applies to employees of the State as the employer, in pertinent part, provides that, Resignation, 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 termination shall be recorded as a dismissal rather than as a resignation."**

Presumably the appointing authority could elect to disregard a “retirement” under similar circumstances.***

In the case of an individual serving in a position in the classified service not otherwise entitled to a pre-termination disciplinary hearing pursuant to law or a collective bargaining agreement, the appointing authority presumably could elect to disregard the resignation, schedule a disciplinary hearing in the exercise of its discretion and in the event the individual is found guilty of the charge[s], record the separation as a “termination for cause” rather than as a resignation.

Undertaking such a disciplinary action could be significant with respect to employment in the public service in the future as application forms for employment or examination with the State or a political subdivision of the State typically  include the following questions.

1. Were you ever discharged from any employment except for lack of work, disability or medical condition?  [ ] yes  [ ] no  

2. Did you ever resign from any employment rather than face discharge? [ ] yes  [ ] no 

Failing to answer these questions correctly could result in the applicant being disqualified for such employment pursuant to §50.4(e), and, or (f) and, or (g) of the Civil Service Law by the responsible Civil Service Commission or Personnel Officer.

Many local civil service commissions and personnel officers have promulgated rules similar to 4 NYCRR 5.3(b).

*  See Los Angeles Times article on the Internet at:

** State Education Law §1133.1 provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

*** See Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61