Decision No. 13,779

(June 23, 1997)

MILLS, Commissioner.--Petitioners appeal respondent's backdating of their resignations. The appeal must be sustained in part.

The facts in this case are not in dispute. By letter dated July 3, 1996, petitioner Cynthia Totolis, a tenured foreign language teacher in respondent's school district, submitted her resignation effective August 2, 1996. She rescinded her resignation by letter dated July 10, 1996, which respondent received and acknowledged. On August 2, 1996, Ms. Totolis submitted a second letter of resignation, effective September 1, 1996. On August 6, 1996, respondent sent her a refund for her health insurance contributions for July and August. By letter dated August 19, 1996, respondent notified Ms. Totolis that her resignation had been accepted at its August 8, 1996 board meeting, with an effective date of June 30, 1996.

By letter dated June 16, 1996, petitioner Pamela Richard, a special education teacher in respondent's school district, submitted her resignation effective July 31, 1996. On July 9, 1996, Ms. Richard received notification that her health insurance would terminate as of July 5, 1996. Ms. Richard rescinded her resignation by letter dated July 10, 1996, which respondent received and acknowledged. On August 2, 1996, petitioner Richard submitted a second letter of resignation, effective September 3, 1996. On August 6, 1996, respondent sent Ms. Richard a refund for her health insurance contributions for July and August, indicating that her resignation was effective June 30, 1996. On August 22, 1996, respondent notified Ms. Richard that it had accepted her resignation on August 19, 1996, effective July 31, 1996. Respondent subsequently replaced the insurance refund check for July and August with one for the month of August only.

Petitioner Totolis contends that she and her family were without health insurance during the months of July and August, 1996 and incurred various prescription costs and medical bills which would have been covered by her health insurance, but for respondent's improper actions. Petitioner Richards contends that she was without health insurance for the month of August, 1996. Petitioners request that I order respondent to reimburse petitioner Totolis for medical, dental prescription and related expenses she incurred during the period that she was without insurance. Petitioners further request that I order respondent to refrain from the practice backdating teachers' resignations without their consent.

As a threshold matter, respondent requests that I disregard material set forth in petitioners' reply, which is not found in the petition and is beyond the scope of what may be included in a reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR '275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition, and I will not consider material that has been belatedly added by petitioners in the reply which is not responsive to respondent's answer (Appeal of DiStefano, 36 Ed Dept Rep 217; Appeal of Crawmer, 35 id. 206).

Respondent contends that the appeal is moot, that petitioners have provided no proof of damage, that petitioner Richard was not damaged since her resignation became effective on July 31, 1997 -- the date that she originally requested, that petitioner Richard did not submit an affidavit of evidence in support of the petition, and that petitioners have not complied with Education Law '3813.

First, respondent asks that I dismiss the appeal as moot. Indeed, the Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Warner, 32 id. 533; Appeal of Langenmayr, 30 id. 322). However, respondent acknowledges that it is common practice for it to backdate resignations and because of the short time frame involved, the issue is "capable of repetition, yet evading review" (Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 US 498, 515) and therefore is justiciable.

Respondent contends that petitioners have provided no proof of the expenses for which they seek reimbursement. However, it is well settled that the Commissioner of Education lacks authority to award damages, costs or attorney's fees (Appeal of Rackley, 35 Ed Dept Rep 5; Appeal of Martin, 32 id. 381; Appeal of Silano, 33 id. 20; Appeal of Martin, 31 id. 441). Therefore, to the extent that petitioners seek damages, the appeal is dismissed.

Respondent contends that petitioner Richard was not damaged because her resignation became effective on July 31, 1997, which was the date that she originally requested. However, respondent's argument fails to address the undisputed fact that on July 10, 1996, Ms. Richard rescinded her resignation by a letter which it acknowledged, and that respondent acted on a second resignation letter dated August 2, 1996 which was to be effective September 3, 1996.

Respondent contends that petitioner Richard has not submitted an affidavit or any other evidence in support of her petition. There is no requirement for her to do so. Commissioner's regulation '275.5 requires that the petition be verified by at least one of the parties, and the petition in this case was verified by Cynthia Totolis.

Respondent contends that petitioners have not complied with Education Law '3813. Section 3813 requires a notice of claim for the prosecution of any "action or special proceeding" against a school district. However, an appeal to the Commissioner of Education pursuant to '310 of the Education Law is not an "action or special proceeding" within the meaning of the statute (Appeal of Bodnar, 29 Ed Dept Rep 516; Matter of Shusterman, 18 id. 516).

With respect to the merits, respondent maintains that its practice is to backdate resignations to be effective on the last day of service rendered to the district, to notify the employees of their rights under the Consolidated Omnibus Recollection Act of 1985 (COBRA) and to refund employees' prorated health insurance contributions. Respondent argues that petitioners were ten-month employees and that Ms. Richard accepted a summer position through July 31, 1996. They allege that petitioners "severed the employment relationship" with respondent's district when they last rendered service to the district (June 30, 1996 for Ms. Totolis and July 31, 1996 for Ms. Richard), not intending to return. Respondent argues that returning teachers have their health insurance premium paid by the district over the summer as a quid pro quo for returning to the district in the fall. Respondent analogizes this payment to the situation where a school district provided returning teachers an advance salary payment shortly after school started in September (Matter of Board of Educ., (Ramapo Teachers' Ass'n.), 200 AD2d 62). In that case, the court held that the advance was not an unconstitutional gift or loan to the teachers, but rather a prepayment for contracted services. Respondent argues, therefore, that if these payments are not a prepayment for returning to the district, they are a gift of public money prohibited by Article VIII, '1 of the New York State Constitution. In the alternative, respondent argues that since a district has no responsibility to a teacher until they start rendering service, a district should have no responsibility to a teacher who has stopped rendering service with no intention of returning.

I disagree. Unless a statute otherwise specifies, a resignation need not be accepted in order to become effective and, provided all statutory requirements are met, takes effect on the date specified therein (1965 Op Atty Gen (informal) 127; Matter of Cammiso, 19 Ed Dept Rep 34). Education Law '3019-a requires a teacher to give a minimum of 30 days notice prior to termination of services, but does not require that a resignation be accepted. Therefore, a board of education may not accept a teacher's resignation effective on some date other than that specified in the resignation (Matter of Cammiso, supra; Matter of Zeldow, 12 Ed Dept Rep 125; Matter of Leake, 11 id. 179).

Apparently, petitioners had ten-month teaching assignments for which they received a salary and twelve months of benefits. Thus any payments scheduled for the months of July and August can hardly be characterized as unconstitutional gifts of public moneys. Moreover, respondent's argument that a district is not responsible to a teacher until services are rendered further indicates that health insurance benefits for the months of July and August were not a prepayment for services to be rendered in the upcoming school year, but rather compensation for services rendered.

Accordingly, I hereby annul respondent's action of August 8, 1996 accepting the resignation of Cynthia Totolis effective June 30, 1996. I also annul respondent's action of August 19, 1996 accepting the resignation of Pamela Richard effective July 31, 1996. The effective dates of the resignations of petitioners Totolis and Richards were September 1, 1996 and September 3, 1996, respectively. Furthermore, I direct respondent to discontinue its improper practice of backdating the effective date of teachers' resignations.

THE APPEAL IS SUSTAINED to the extent indicated.

IT IS ORDERED that respondent correct its employment records of Cynthia Totolis and Pamela Richard to properly reflect the effective dates of their resignations.

IT IS FURTHER ORDERED that respondent discontinue its practice of changing the effective date of teachers' resignations.

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