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Decision No. 12,711

Appeal of CHARLES SAMUELS from action of the Board of Education of the City School District of the City of New York, Thomas Shoener, Esq., and Donald Congress, Esq., concerning the resignation of a teacher.

Decision No. 12,711

(June 8, 1992)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondents board of education and Thomas Schoener, Isaac Klepfish, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks an order to enable him to withdraw his resignation from his position as a teacher in respondent's school district and directing respondent to reinstate him. Petitioner also requests that his personnel file with respondent board of education and the State Education Department be sealed and expunged. The appeal must be dismissed.

Petitioner was employed as a teacher in respondent's school district since September 1, 1984. On March 21, 1990, respondent preferred charges against him pursuant to Education Law "3020-a, based on allegations of incompetence and neglect of duty. On April 27, 1990, petitioner was arrested and charged with criminal possession of a controlled substance. On May 16, 1990, respondent preferred additional "3020-a charges against petitioner based on the acts underlying his arrest and consolidated them with the charges previously preferred against him.

Thereafter, as part of an agreement reached with the district attorney's office, petitioner resigned from his teaching position. Respondent accepted petitioner's resignation on April 8, 1990 and did not go forward with the "3020-a proceeding. Apparently, the district attorney also agreed to recommend that the criminal charges be dismissed upon petitioner's resignation. On April 10, 1990, the district attorney moved to dismiss the criminal charges and the motion was granted.

Petitioner now alleges that his resignation was coerced and that he should therefore, be permitted to rescind it. Except for petitioner's own conclusory statements, petitioner offers no evidence to support his allegations. Respondent submits a transcript of the proceedings before the criminal court in which petitioner states that his resignation was made voluntarily, without coercion. I note that petitioner was represented by counsel throughout the proceedings and had ample opportunity to confer before making his decision. Therefore, upon the record before me, I must conclude that petitioner's resignation was a deliberate act, carried out after ample time to consider the consequences. Absent any evidence of coercion, a teacher's resignation, once accepted, cannot be withdrawn without consent by the board of education (see, Matter of Schwartz v. Board of Educ. of Central School District No. 1, 45 AD2d 1011, 358 NYS2d 48; Matter of Sherman v. Board of Educ. Hendrick Hudson CSD, 88 Misc. 2d 661, 389 NYS2d 515; Appeals of Bodner and DeGiglio, 29 Ed Dept Rep 516). Having voluntarily resigned his position, petitioner is not entitled to rescind his resignation. I have also considered petitioner's request to seal and expunge his personnel file and find no basis to award such relief.

Petitioner also names Thomas Shoener, an attorney in respondent's Office of Legal Services, and Donald Congress, attorney for the United Federation of Teachers, as respondents in this appeal. However, petitioner neither served those individuals with a copy of the petition nor stated a claim against them. I conclude, therefore, that they are not proper respondents in this appeal.