Can Resignation of a Public Office Take Effect Until It Is Formally Accepted ?
Davis v. Marion Cty. Engineer (1991), 60 Ohio St.3d 53, 573 N.E.2d 51 is instructive with respect to the necessity for acceptance of a resignation from public employment.
After reviewing Ohio case law predating the creation of the civil service in the state of Ohio and cases from other jurisdictions, the Supreme Court stated that, "in the absence of a constitutional or statutory provision to the contrary, ' the greater weight of authority holds that the resignation of a public office cannot take effect until it is accepted.' " Davis at 55, quoting Annotation (1962), 82 A.L.R.2d 750, 751.
The court stated, "acceptance of a resignation should be in writing, and should encompass some type of affirmative act that clearly indicates that the tender of resignation is accepted by someone empowered by the public employer to do so." Id.
In Davis, upon being advised of the appellant's tendered resignation, the Marion County Engineer urged the appellant to carefully consider his decision, requested the appellant's recommendations for his replacement, and interviewed nine people to fill the vacancy created by the appellant's resignation.
Despite such affirmative actions by the employer, the majority concluded that the Marion County Engineer had not effectively accepted the appellant's resignation.
As the Eighth District Court of Appeals has recognized, "the Davis Court set a very high standard for the establishment of formal acceptance." Gusman v. Strongsville Bd. of Edn., Cuyahoga App. No. 83042, 2003 Ohio 7077, at P24.