Justice Cynthia Kern
Hicks sought a declaration that the New York City Department of Education’s designation of her as “resigned or retired with charges pending” was arbitrary and should be removed, and the charges brought against her be declared null and void. Alternatively, she sought a declaration that she was entitled to due process under Education Law §3020-a if the court found the disciplinary charges were timely begun and served on her while still employed. Charges were brought against Hicks and a letter indicating same was sent on Sept. 27, 2011. Hicks submitted her retirement application the same day, but would not be effective until Sept. 28. She claimed she retired on Sept. 27, and that no charges were pending against her at that time, thus the indication on her record was incorrect. The court disagreed, finding service by mail was complete upon mailing, not receipt, and the department served her with the charges on Sept. 27. Thus, charges were pending against Hicks at the time of her retirement and the designation was accurate, hence would not be removed. Further, as nothing in §3020-a requires the employee to still be employed or tenured at the time of her hearing, the court granted same.
