NY Court Rules That Resignation Terminates Firefighter’s Ability to Appeal Termination

The Rockland County Supreme Court has ruled that a firefighter who resigns in lieu of being terminated, cannot challenge the grounds for discipline. That decision came in the case of Robert Doremus, formerly a firefighter with the Tallman Fire District.

The factual basis for the disciplinary charges against Doremus were explained as follows:

• Petitioner began his career as a volunteer firefighter with Respondent in December 1982.
• On November 8, 2022-almost forty years later-Petitioner responded to a small fire on Lichult Court in Airmont, New York.
• At least one firefighter, Kyle Lynch arrived before Petitioner.
• Petitioner parked his vehicle alongside Lynch’s truck.
• Petitioner states that he parked his vehicle “approximately two feet to the left side of Lynch’s truck, stopping short of the cab and leaving room for Lynch to reach the necessary equipment on his truck….”
• Lynch saw things differently.
• The next day, November 9, 2022, Lynch e-mailed Respondent’s leadership to complain that Petitioner “parked his truck inches from Lynch’s truck, that the location impeded the use of the discharges and intakes on the left side of the truck and caused . . . difficulty in exiting.”
• Lynch reported further that Petitioner “almost struck a firefighter pulling up to the scene,” and that his overall behavior reflected “a blatant failure to conduct oneself with the level of care owed to others as a reasonabl[y] prudent person . . . .”
• Petitioner was given a Notice of Disciplinary Hearing, Notice of Rights, and Statement of Charges on November 15, 2022.
• The hearing was held on November 29, 2022, and the decision issued on January 2, 2023.
• Per that decision, “termination is the only appropriate remedy.”
• Respondent’s Board of Fire Commissioners, on January 10,2023, accepted the recommendation and resolved that Petitioner could “resign in 48 hours or be terminated.”
• Respondent’s Chair, Michael Rosenblum, e-mailed Petitioner on January 12, 2023.
• Rosenblum, in that message, advised Petitioner of the resolution and asked for a response (i.e., resignation or refusal) by “5 pm on January 17 2023.”
• Petitioner submitted his resignation via e-mail at 3:32 p.m. on January 17, 2023.
• The letter, self-stylized as a ‘Notice of Involuntary Resignation,” alleged a variety of infirmities with the hearing process and closed with a reservation of the “right to challenge this outcome by Article 78 proceeding or a lawsuit for money damages.”
• Rosenblum, at 5:07 p.m. that day, mistakenly advised Petitioner that he had been terminated.
• About thirty minutes later, at 5:40 p.m., Rosenblum-after being referred to the timely submission – confirmed that Petitioner’s resignation was accepted.

Doremus filed suit in Rockland County Supreme Court under Article 78, a New York law that allows those who are harmed by an administrative decision by a governmental agency, to challenge the lawfulness of the decision. It is used by many firefighters in New York to challenge disciplinary decision-making.

The Supreme Court began its analysis of Doremus’ suit by reviewing its legal authority (jurisdiction) to hear Article 78 claims. Quoting from the decision:

• The Court, under Article 78, has jurisdiction to review final determinations.
• Generally, where an individual resigns before termination, no final (i.e., reviewable) determination exists.
• It is, however, “well settled that ‘[a] resignation under coercion or duress is not a voluntary act and may be nullified.”‘
• Although Respondent resolved to terminate Petitioner, the latter was given a choice: (1) accept termination with the opportunity to appeal the litany of alleged infirmities under Article 78; or (2) forego that review and resign.
• Petitioner opted for the latter. In making this decision, Petitioner-not Respondent-terminated the employment relationship.
• Indeed, as the Appellate Division, First Department, explained persuasively in a similar case:
  • [s]ince petitioner’s cessation of his employment with the Department of Correction was accomplished by voluntary resignation, rather than by administrative determination, petitioner’s present challenge to the termination…  does not implicate any determination by respondent Department of Correction. and in the absence of such a determination to review, this proceeding was properly dismissed for lack of subject matter jurisdiction.
• Petitioner counters that his resignation was involuntary because, if he failed to resign, he would have been “deprive[d]… of numerous tangible benefits such as annual annuity earnings, life insurance coverage, additional accruals to length of service award programs, tax credits, tax rebates, real property tax exemptions, and drill incentive program benefits….”
• While threat of termination depriving Petitioner of retirement benefits might render a resignation invalid, that is not the case here.
• Petitioner, in short order, has: (1) under N.Y. Gen. Mun. Law §217(b), a “nonforfeitable” right to 100% of the service award he has earned; (2) like all volunteer firefighters, cancer disability benefits for five years after separation; (3) given his length of service, entitlement to a tax exemption under N.Y. Real Prop. Tax Law §a66-a(3); and (4) no right to (or need for) drill incentives or life insurance coverage offered to active volunteer firefighters because he no longer serves as a volunteer firefighter.
• The Court, on this record, finds no evidence of coercion or duress that could render the resignation involuntary.

To fully understand the court’s ruling here, and how it relates to other cases we more commonly cover, an important distinction must be drawn. Doremus sought to challenge the board’s decision under Article 78. He did not allege unlawful discrimination, a breach of contract, or make a claim like whistleblower retaliation. Each of those grounds may have given him the opportunity to ask the court consider his resignation to be a constructive discharge. That is not the case with an Article 78 proceeding, where the court’s jurisdiction (its legal ability to hear a case) depends upon a governmental agency having made make a final determination. The court acknowledged that Article 78 had a very narrow opportunity for a non-voluntary resignation to be the equivalent of a dismissal, but held the criteria for that had not been met in this case. Accordingly, Doremus’ resignation meant there was no final decision for the court to review.

Here is a copy of the decision: