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Decision No. 16,123

Appeal of STACI BEAUCHAMP from action of the Board of Education of the City School District of the City of Glen Cove and Melanie Tuthill Odone relating to preferred eligibility rights.

Decision No, 16,123

(August 9, 2010)

James R. Sandner, Esq., New York State United Teachers, attorney for petitioner, Garfield A. Heslop, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondents, Warren H. Richmond, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Glen Cove (“board”) to appoint Melanie Tuthill Odone (“Odone”, collectively “respondents”) as a reading teacher.  The appeal must be dismissed.

On or about January 28, 2002, the board appointed petitioner as a reading teacher in the district; she was granted tenure in the reading tenure area effective January 28, 2005.  By letter dated March 29, 2006, the board notified petitioner that .6 of her position as a reading teaching would be abolished, effective September 1, 2006.    On June 5, 2006, petitioner was appointed to a .4 reading teacher position and on June 13, 2006 petitioner accepted this appointment.  By letter dated June 23, 2006, petitioner submitted her resignation from her part-time position, which was accepted by the board at its June 27 meeting. 

In early 2009, petitioner became aware of a reading teacher vacancy in the district and she called the district to inquire about the position.  By letter dated March 10, 2009, the Assistant to the Superintendent for Personnel notified petitioner that since she resigned from her position, she did not qualify for reappointment.  Odone was subsequently hired to fill the reading teacher position.  On July 8, 2009, petitioner commenced an Article 78 proceeding, and in decision dated December 22, 2009, Justice Phelan dismissed the proceeding without prejudice, based on jurisdictional grounds.  This appeal ensued. 

Petitioner seeks an order declaring her resignation a nullity and reinstatement to the reading teacher position, with back pay, seniority and other benefits.  Petitioner argues that she was fraudulently and/or falsely induced to resign by the board’s Executive Director of Human Resources (“Executive Director”) and that a resignation was a condition precedent to working in another school district and remaining on the preferred eligibility list in Glen Cove.

Respondents allege that petitioner relinquished all rights to a teaching position in the district when she submitted her unconditional resignation, which was subsequently accepted by the board.  The board further alleges that at no time did any agent or employee of the board make any false statement to petitioner in order to induce her to resign her teaching position.

Education Law §§2510(3)(a) and 3013(3)(a) govern the rights of a former employee to re-employment and provide, in pertinent part:

If an office or position is abolished ... the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled ....  The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position. 

It is clear that a teacher who severs his or her service with a district, through retirement or resignation, no longer has recall rights pursuant to Education Law §§2510 and 3013 (seeMatter of Gerson v. Bd. of Educ. of Comsewogue Union Free School Dist., et al., 214 AD2d 732; Appeal of Lamb, 42 Ed Dept Rep 406, Decision No. 14,895; Appeal of Morehouse, 37 id. 428, Decision No. 13,896, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Bradley, J.], November 5, 1998; n.o.r.; affd 268 AD2d 767; lv to appeal den 95 NY2d 751).  “[A]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted by school authorities” (Schmitt v. Hicksville UFSD No. 17, 200 AD2d 661; seealsoMatter of Gould v. Board of Educ., 184 AD2d 640, 641).  No such compelling circumstances exist in this case. 

Petitioner’s proof fails to establish that her resignation was involuntary.  It is undisputed that petitioner resigned and the board accepted her resignation.  Petitioner, however, asserts that her resignation was tendered through duress, coercion or a material misrepresentation of fact.  “A crucial element of coercion or duress is lack of free choice. The circumstances involved must be such that the party * * * had no practical alternative open to him” (Korn v. Franchard Corp., 388 F.Supp. 1326, 1333; see also Podmore v. Our Lady of Victory Infant Home, 82 AD2d 48). While the Executive Director’s alleged false statement may have provided motive for petitioner’s resignation, it cannot be said that her will was overcome and that she was not capable of exercising free choice.  Therefore, petitioner’s allegations of duress and coercion must be dismissed.

Petitioner argues in the alternative that her resignation should be declared a nullity because it was entered into under a mutual mistake of fact, i.e. that she had to resign to work elsewhere and be placed on the school district’s preferred eligibility list.  In Matter of Gould v. Bd. of Educ. of the Sewanhaka Cent.High School Dist. et al. (81 NY2d 446), the Court of Appeals held that a resignation entered into under a mutual mistake of fact is voidable and subject to rescission.  The mutual mistake must exist at the time the contract is entered into and must be substantial (Matter of Gould v. Bd. of Educ. of the Sewankhaka Cent. High School Dist. et al., 81 NY2d 446). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Here, petitioner has failed to demonstrate that there was a mutual mistake of fact.  The school district justifiably assumed that petitioner, by submitting a letter of resignation, wished to sever her ties with the district.  Petitioner’s letter of resignation does not indicate that she wished to remain on the preferred eligibility list, or indicate any expectation that she would so remain.  Instead, the letter thanked the school district for all it had done for her over the preceding years and appeared to be a letter of finality.  In accepting the resignation, the school district thanked her for her service and wished her luck in her future endeavors.  Nowhere in its acceptance letter did the board indicate that petitioner would have any preferred eligibility rights.  Therefore, I find that the school district reasonably construed the letter as a voluntary end to petitioner’s employment. 

Moreover, the determination of materiality of a mutual mistake of fact can turn on whether the party seeking rescission or other remedy had the opportunity to investigate the facts, and whether the party’s mistake of fact is attributable to the party’s own negligence in failing to seek further information (seeBellinv. Pulsifer, 195 AD2d 665).  The record is clear that the Executive Director’s alleged advice to her, even if incorrect, was information available to her and she could have reasonably sought input or verification of the alleged statements from her union, which represents her in this appeal. In any event, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, et al., 71 NY2d 274).

In light of the foregoing disposition, I need not address the parties’ remaining contentions.