The opinion
=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 41
In the Matter of Grant Springer,
Appellant,
v.
Board of Education of the City
School District of the City of
New York, et al.,
Respondents.
Michael J. DelPiano, for appellant.
Devin Slack, for respondents.
DIFIORE, Chief Judge:
The issue presented on this appeal is whether a tenured
school teacher who resigns from teaching, and then subsequently
applies and is hired to teach at another school, is automatically
- 1 -
No. 41
entitled to tenure in the new position. Specifically at issue in
this determination is paragraph 29 of New York City Board of
Education Chancellor’s Regulation C-205 (C-205[29] or the
Regulation). The Regulation provides that a tenured teacher who
resigns "remain[s] tenured," but requires the teacher to first
submit a written request to withdraw his or her resignation,
subject to a medical examination and the approval of the
Chancellor. We hold that a tenured teacher who resigns, and
later seeks to return as a tenured teacher, must strictly comply
with the regulation and submit a written request to withdraw his
or her prior resignation.
I.
Petitioner was employed as a teacher in the catering
license area at M288 - Food and Finance High School, located in
Community School District No. 2 in Manhattan, beginning in
September 2001. In January 2011, after achieving tenure,
petitioner voluntarily resigned to pursue a career as a corporate
chef. He had never been the subject of formal disciplinary
charges nor had he ever received an annual rating of
"unsatisfactory" prior to his resignation. Several months later,
petitioner decided to return to teaching. After a stint as a
substitute teacher, petitioner applied for full-time teaching
positions in the summer of 2011.
In October 2011, petitioner was hired as a teacher in
the catering license area at M415 - Wadleigh Secondary School for
- 2 -
No. 41
the Performing and Visual Arts (Wadleigh), located in Community
School District No. 3 in Manhattan. He was hired under his prior
license and file number and at the same salary he received at the
time of his resignation. Herma Hall, the principal of Wadleigh
who hired petitioner, knew that he had resigned with tenure in
January 2011.
During the 2011-2012 school year, Hall was replaced by
a new principal, Tyee Chin. In April 2012, Chin informed
petitioner that he believed petitioner did not have tenure. At
that time, six months after his reinstatement, upon the advice of
his union representative, petitioner submitted a form to withdraw
his resignation. Respondents told petitioner that the form would
not be processed because it was submitted too late. In May 2012,
petitioner received a rating of "unsatisfactory" for the 2011-
2012 school year. As a result, petitioner was terminated
effective June 22, 2012. Prior to his termination, petitioner
was not served with disciplinary charges in accordance with the
procedures for removing a tenured teacher set forth in Education
Law § 3020-a.
Petitioner never filed a grievance or other
administrative proceeding related to the events detailed above.
Instead, in October 2012, petitioner brought this CPLR article 78
proceeding against respondents. Petitioner argued that under
paragraphs 28 and 29 of Chancellor's Regulation C-205, as well as
the collective bargaining agreement (CBA) between the Board and
- 3 -
No. 41
the teachers' union, he "was a tenured teacher upon his
reappointment" and, therefore, "[r]espondents' decision to
terminate his employment without just cause and without following
the procedures" in Education Law § 3020-a was unlawful and
"arbitrary and capricious, or an abuse of discretion."
Petitioner sought reinstatement to his teaching position at
Wadleigh and related relief.
Respondents cross-moved to dismiss the petition,
contending, among other things, that the petition failed to state
a cause of action and that petitioner failed to exhaust his
administrative remedies. Supreme Court granted the cross motion,
denied the petition, and dismissed the proceeding, concluding
that the petition was "premature for failure to exhaust
administrative remedies." Petitioner appealed.
The Appellate Division unanimously affirmed, but on a
different ground (121 AD3d 473 [1st Dept 2014]). The court
concluded that "[t]here is no question that petitioner failed to
comply with . . . C-205(28) and C-205(29), which govern
withdrawal of a resignation and restoration to tenure. Hence,
when petitioner was rehired by a principal, his tenure was not
ipso facto restored" (id. at 473-474). That same panel granted
the portion of petitioner's subsequent motion seeking leave to
appeal to this Court, certifying the following question of law:
"Was the [Appellate Division] order . . . properly made." We now
affirm.
- 4 -
No. 41
II.
Pursuant to Education Law § 2590-h, the Chancellor has
the authority to promulgate regulations "necessary or convenient"
to the administration of the public school system (Education Law
§ 2590-h [16]). Relevant to this appeal, paragraph 28 of
Chancellor's Regulation C-205, entitled "Withdrawal of
Resignation Generally," describes the general procedure for
withdrawing a resignation. Paragraph 29 of Chancellor's
Regulation C-205, entitled "Withdrawal of Resignation Within Five
Years by Tenured Staff," describes the procedure for the
withdrawal of resignation by tenured teachers to permit them to
return to teaching with tenure.
There is no dispute that petitioner was a tenured
teacher upon his resignation in January 2011; the question is
whether, upon his hire at a new school in October 2012, he was
reinstated with tenure. C-205(29) provides, in relevant part:
"[A] non-supervisory pedagogical employee who
had attained permanent tenure prior to the
date of resignation shall, remain tenured
and, upon written request, be permitted to
withdraw such resignation subject only to
medical examination and the approval of the
Chancellor, provided that reinstatement is
made on or before the opening of school in
September next following five years after the
effective date of resignation. If
reinstatement is made after this date, a two
year probationary period will be required."
By its very terms, C-205(29) provides that a tenured
teacher who has resigned may avoid a probationary term in a new
position by submitting a "written request" to withdraw the prior
- 5 -
No. 41
resignation. That request will be "subject only to medical
examination and the approval of the Chancellor," so long as
reinstatement is made in accordance with the timing requirements
set forth in the Regulation. The CBA between the Board and the
teachers' union contains a parallel provision.
Petitioner argues that he complied with the
requirements of the Regulation when he applied in writing for
various teaching positions. He maintains that when the Board
rehired him in October 2011, within five years of his prior
resignation, the Board effectively accepted the withdrawal of his
resignation. Therefore, petitioner submits that he was a tenured
teacher at the time of his termination in June 2012 and that the
Board violated his due process rights by failing to provide him
with the procedural protections required by Education Law § 3020-
a.
According to respondents, petitioner ignores the
important role of the written request for withdrawal, most
notably the Chancellor's role in the process. By virtue of the
written request, the Chancellor is afforded the opportunity to
assess the teacher's work history and competence and may reject a
request to withdraw a resignation. Further, the procedure
permits important hiring information to be conveyed to a hiring
principal, including the fact that the teacher would have full
tenure rights in the teacher's new position.
- 6 -
No. 41
III.
The tenets of statutory construction apply equally to
administrative rules and regulations (Matter of Cortland-Clinton,
Inc. v New York State Dept. of Health, 59 AD2d 228, 231 [4th Dept
1977]). We construe the Regulation in accordance with its plain
language (see Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98,
107 [1997]). By its plain terms, C-205(29) requires submission
of a written request for withdrawal of resignation prior to a
teacher's reinstatement with tenure. "It is an accepted rule
that all parts of a statute are intended to be given effect and
that a statutory construction which renders one part meaningless
should be avoided" (Rocovich v Consol. Edison Co., 78 NY2d 509,
515 [1991]). If, as petitioner argues, post-resignation
application and hiring alone were sufficient to withdraw a prior
resignation, then the language of the regulation requiring
"written request . . . subject only to medical examination and
the approval of the Chancellor," would have no meaning. C-
205(29)'s provision that a written request be subject to the
Chancellor's approval gives the Chancellor the opportunity to
reject a request to withdraw a resignation. Under petitioner's
theory, the Chancellor's role in the process is entirely
eliminated. Petitioner's interpretation of the Regulation is not
in keeping with its plain language.
Because petitioner did not withdraw his resignation
through the mechanism of a written request, the requirements of
C-205(29) were not met and petitioner was not reinstated with
- 7 -
No. 41
tenure.
This result does not minimize the public policy
interests that have prompted this Court to "construe the tenure
system broadly in favor of the teacher, and to strictly police
procedures which might result in the corruption of that system"
(Ricca v Board of Educ. of City School Dist. of City of N.Y., 47
NY2d 385, 391 [1979]; see Matter of Gould v Board of Educ. of
Sewanhaka Cent. High School Dist., 81 NY2d 446, 454 [1993]). Nor
does it undermine this Court's recognition that a tenured teacher
has a "protected property interest in [his or] her position" and
right to retain that position absent discharge in accordance with
Education Law § 3020-a (Gould, 81 NY2d at 451). As we have also
recognized, a teacher may "relinquish [his or] her tenured rights
. . . voluntarily by resigning" (id.). C-205(29) contains the
procedural requirements for a teacher who has voluntarily
resigned from a tenured teaching position to be reinstated with
tenure. Petitioner does not challenge the validity or
constitutionality of the Regulation itself, but argues only that
he complied with the Regulation by submitting applications for
jobs and being hired to a new position. He did not. Absent a
written request to withdraw his resignation, a request subject to
the Chancellor's approval, petitioner failed to meet the
requirements of C-205(29) for reinstatement with tenure.
We do not address the effect of petitioner's April 2012
written request to withdraw his resignation, which he submitted
- 8 -
No. 41
six months after he was hired at Wadleigh. Any argument related
to that request is not before the Court in this proceeding.
Accordingly, the order of the Appellate Division should
be affirmed, with costs, and the certified question not answered
as unnecessary.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs, and certified question not answered
upon the ground that it is unnecessary. Opinion by Chief Judge
DiFiore. Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and
Garcia concur.
Decided April 5, 2016
- 9 -