Appeal of PATRICIA M. DELL AND LINDA R. TEDESCO, et al.,[1] from action of the Board of Education of the South Huntington Union Free School District relating to a personnel matter.

Decision No. 16,417

(September 26, 2012)

Richard E. Casagrande, Esq., New York State United Teachers, attorney for petitioners, Catherine V. Battle, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the decision of the Board of Education of the South Huntington Union Free School District (“respondent”) to classify petitioners as teacher aides.  The appeal must be remanded.

Pursuant to the 2004-2008 and 2008-2012 collective bargaining agreements between respondent and the South Huntington Paraprofessional Association, respondent recognizes two types of paraprofessionals, non-instructional and instructional.  With respect to instructional paraprofessionals, respondent categorizes them into four categories: special education, student support, English as a second language and kindergarten.  Respondent has recognized and employed petitioners as instructional paraprofessionals in one of the four categories and designated petitioners as teacher aides.  Respondent allegedly assigned petitioners to provide instructional services to students, while acting under the general supervision of licensed or certified teachers.  This appeal ensued.

Petitioners argue that respondent has assigned them to carry out duties of a teaching assistant, consistent with Education Law §3009(2)(b) and §80-5.6(b) of the Commissioner’s regulations, and that respondent’s designation of them as teacher aides, rather than teaching assistants, is unlawful.  Petitioners allege that respondent’s wrongful conduct is depriving petitioners of numerous rights to which they are lawfully entitled and that there has been no waiver of their right to be recognized as teaching assistants.  Petitioners request that I order respondent to cease and desist from designating petitioners as teacher aides and compel respondent to appoint petitioners to the title of teaching assistant retroactive to the respective dates on which each obtained a New York State teaching assistant certification, with the attendant rights to which teaching assistants are entitled.  In the alternative, petitioners ask that I direct that an audit be conducted by the State Education Department to assess petitioners’ job duties and make appropriate determinations concerning their job titles.

Respondents allege that petitioners may not maintain the appeal on behalf of a class, and that the appeal is untimely.  Respondents contend that the parties’ collective bargaining agreement precludes my review and, further, that petitioners have failed to establish a clear right to relief.

An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).

Petitioners bring this appeal on behalf of themselves and approximately 90 paraprofessionals whom respondent designated as teacher aides, but who are allegedly performing the duties of a teaching assistant.  Although petitioners identify each of these individuals in the exhibits to their petition, they fail to demonstrate that all the potential class members have the same interests or claims.  On the contrary, surveys submitted on behalf of these individuals reveal that they have differing job duties, and allege varying amounts of instructional duties.  The surveys also reveal that not all of these individuals hold a teaching assistant certificate.  Accordingly, petitioners have not clearly demonstrated that all questions of law and fact would be common to all members of the class.  Additionally, petitioners have identified each of the purported class members and requested, in the alternative, that they be added as petitioners.  This precludes a finding that the class members are too numerous.  Therefore, class certification is denied.  However, petitioners’ alternative request is granted and the individuals identified in Exhibit “A” to the petition have been added as petitioners in this appeal pursuant to 8 NYCRR §275.1.

Respondent contends that the appeal is untimely because petitioners have been performing quasi-instructional duties and/or some have held certification as teaching assistants for several years.  Respondent disputes petitioners’ assertion that its actions constitute a continuing wrong.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  In this case, I find that petitioners’ allegations that respondent failed and refused to appoint petitioners as teaching assistants, thus circumventing their rights to accrue tenure, would be intrinsically unlawful and constitute a continuing wrong.  I, therefore, decline to dismiss the appeal as untimely.

I must also reject respondent’s claim that the parties’ collective bargaining agreement precludes my review of this appeal.  Respondent asserts that the stipend provision in the June 10, 2009 “Memorandum of Agreement between South Huntington Union Free School District and South Huntington Paraprofessional Association, NYSUT, NEA-AFT, AFL-CIO” effected a waiver of petitioners’ right to challenge respondent’s designation of them as teacher aides.  The stipend language in the memorandum of agreement provides as follows:

A unit member’s possession of the teaching assistant certification does not confer an entitlement to the stipend.  Instead, the District will determine which positions require employees to possess the [teaching assistant] certification, and to therefore receive the stipend with that certification.

This provision only refers to the employee’s right to a stipend.  Waiver of a teacher's tenure rights must be knowingly and freely given (Matter of Gould v. Bd. of Educ. of the Sewanhaka CHSD, et al., 81 NY2d 446; Matter of Abramovich v. Bd. of Educ. of the Three Village CSD No. 1, 46 NY2d 450).  This stipend provision does not even mention or refer to petitioners’ tenure, seniority, layoff, recall or retirement rights.  Therefore, I do not find that petitioners knowingly waived these rights by negotiating this stipend provision.

Turning to the merits of this appeal, Education Law §§3009 (2)(a) and (b) provide, in pertinent part:

(a) Notwithstanding any other provision of law to the contrary, the school authorities of any school district shall have the power, in their discretion, to employ persons as teacher aides who shall assist the regular teacher or teachers of the district in the performance of their teaching functions by performing those nonteaching duties otherwise performed by such regular teacher or teachers. 

(b) Notwithstanding any other provision of law to the contrary, the school authorities of any school district shall have the power, in their discretion, to employ persons as teaching assistants ....

The position of teaching assistant is among those certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching and supervisory staff of a school district (In the Matter of the Certification of Classes of Positions of the Teaching and Supervisory Staffs of School Districts, Boards of Cooperative Educational Services and County Vocational Education and Extension Boards, dated January 13, 1971) (“Certification No. 3”).

As set forth in Certification No. 3, the duties of a teaching assistant “include some or all of the following duties ... under the general supervision of a licensed or certified teacher, assist a certified teacher in providing instructional services to students in a classroom or a laboratory setting by contributing either general or specialized skills.”  Certification No. 3 also provides that the qualifications for appointment to such a position are the qualifications and requirements set forth in Part 80 of the Regulations of the Commissioner of Education as approved by the Board of Regents of the University of the State of New York.

Section 80-5.6 of the Commissioner’s regulations clearly distinguishes the duties and qualifications of a teacher aide from those of a teaching assistant.  Specifically, section 80-5.6(a) of the Commissioner’s regulations provides:

(a)     Teacher aide.  A teacher aide may be assigned by the board of education to assist teachers in such nonteachingduties as:

1. managing records, materials and equipment;
2. attending to the physical needs of children; and
3. supervising students and performing such other services as support teaching duties when such services are determined and supervised by teacher.

Individuals appointed to teacher aide positions are governed by the civil service rules and regulations.  They are classified in the noncompetitive class of the civil service (Appeal of Latorre, et al., 27 Ed Dept Rep 366, Decision No. 11,978) and they have no tenure or seniority rights under the Education Law.

In contrast, teaching assistants must be given a probationary appointment and accrue tenure and seniority rights (seee.g., Board of Educ. of Beacon City School Dist. v. Story 212 AD2d 76; Education Law §3012(1)(a); 8 NYCRR §30-1.2).  Section 80-5.6(b)(1) of the Commissioner’s regulations sets forth the duties of a teaching assistant:

(i)  Description.  A teaching assistant is appointed by a board of education to provide, under the general supervision of a licensed or certified teacher, direct instructional service to students.

(ii)  Duties.

(a) Teaching assistants assist teachers by performing duties such as:

1. working with individual pupils or groups of pupils on special instructional projects;
2. providing the teacher with information about pupils that will assist the teacher in the development of appropriate learning experiences;
3. assisting pupils in the use of available instructional resources, and assisting in the development of instructional materials;
4. utilizing their own special skills and abilities by assisting in instructional programs in such areas as:  foreign languages, arts, crafts, music and similar subjects; and
5. assisting in related instructional work as required.

(see 8 NYCRR 80-5.6[b]).

Petitioners submit affidavits generally describing their duties and include varying combinations of the duties of a teacher aide and those of a teacher assistant, such as lending academic assistance in mainstream subjects either 1:1 or in a small group setting, modifying class work to fit the individual needs of the students, providing remedial instruction to individual students or small groups, pre-teaching concepts in math and other curriculum-related subjects, assisting classroom teacher with direct student academic instruction, and working with students (regular and inclusion, individual and groups) providing direct instructional service under the general supervision of teachers.

Petitioners also submit announcements for similar paraprofessional positions in the district.  These announcements indicate that certification as a teaching assistant is required and the positions include duties that appear to constitute direct instructional services (e.g., assisting teachers in daily activities, including such areas as class instruction, working with students on individual or in small groups to supplement teacher instruction, and follow-up work with individual students or groups on reading and mathematic exercises as directed).

Upon a review of the record, some of the duties required of petitioners, although not clearly quantified, appear to be instructional services that must be provided by a teaching assistant rather than a teacher aide.  In light of the foregoing, it appears that some of the petitioners may have been improperly designated in the classified service as teacher aides and have been denied tenure rights afforded to teaching assistants, in violation of the Education Law.

Section 30-1.3 of the Rules of the Board of Regents requires that a board of education shall, in each resolution making a probationary appointment, set forth the tenure area in which the professional educator will devote a substantial portion of his time.  Section 30-1.8(d) of the Rules of the Board of Regents specifically provides:

A professional educator employed by a board of education or board of cooperative educational services as a teaching assistant pursuant to the provisions of Education Law section 3009, subdivision 3 shall be deemed to serve in the special subject tenure area of teaching assistant.

Thus, teaching assistants are members of the teaching staff of a school district who have tenure rights (Education Law §3012[1][a]).  Teaching assistants also have the right to participate in the New York State Teachers Retirement System, pursuant to Education Law §§501 and 503.  Moreover, the Court of Appeals has found that for the purposes of the abolition of positions and layoffs, seniority protection afforded tenured teachers also applies to teaching assistants, who serve in the special subject tenure area of teaching assistant (Matter of Madison-Oneida BOCES v. Mills, et al., 4 NY3d 51).

Respondent erred to the extent that it designated any petitioner as serving in the classified service as a teacher aide, yet assigned them teaching assistant duties in the unclassified service.  Civil Service Law §61(2) contains a general prohibition against assignment of civil service employees, such as teacher aides, to out-of-title work, and the instructional duties of a teaching assistant as certified under Civil Service Law §35(g) require certification under 8 NYCRR §80-5.6 and are exclusively those of a teaching assistant (cf.Scarsdale Assn. of Educational Services v. Bd. of Educ. of Scarsdale Union Free School Dist., 53 AD3d 572 [secretaries and typists assigned to use surveillance monitors and buzzers and issue badges to contractor were not assigned out-of-title work of security workers where duties overlapped and their duties included receiving visitors or public contact]; CSEA v. Groton Cent. School Dist., 27 Misc 3d 123 [assignment of teacher aides as library aides were not assigned out-of-title work of library clerks because duties overlapped and did not include duties exclusive to the library clerk title].  Moreover, to the extent that any petitioner is employed in a full-time position[2] and devotes a substantial portion of time as a teaching assistant, respondent’s actions in appointing them to teacher aide positions would evades the tenure laws and deprives petitioners of seniority and retirement rights.

In view of the retirement, tenure and seniority issues attendant to respondent’s designation of petitioners’ respective positions and the differing duties assigned to the various petitioners, it is appropriate to remand this matter to respondent for a case-by-case determination, consistent with this decision, as to whether each of the petitioners has been appropriately designated as a teacher aide or should be designated as a teaching assistant.  For any petitioner who should have been designated as a teaching assistant, respondent must determine whether such petitioner devoted a substantial portion of time engaged in the duties of teaching assistant, and is entitled to retroactive status and benefits.

To the extent that petitioners request that I conduct an audit to assess petitioners’ job duties and make appropriate determinations concerning their job titles, this claim must be dismissed.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).

I recognize that differentiating between the instructional duties that only a teaching assistant may perform and the non-teaching services that a teacher aide may provide to support teaching duties is not always an easy task and requires pedagogical judgment.  However, many of the petitioners in this case are assigned duties that are patently instructional in nature, and in those instances in which respondent has required that they hold certification as a teaching assistant or teacher, respondent has already determined that their positions are instructional.  On remand, respondent must assess the nature and extent of their duties performed to determine whether petitioners were appropriately designated as teacher aides.

THE APPEAL IS REMANDED.

IT IS ORDERED that within 90 days of the date of this order, respondent make a determination as to whether each of the petitioners was appropriately designated as a teacher aide or should be designated as a teaching assistant, based on an assessment of the nature and extent of the duties performed, consistent with this decision; and

IT IS FURTHER ORDERED that any petitioner designated as a teaching assistant who spends a substantial portion of time engaged in carrying out such duties, be appointed to a teaching assistant position and provided with all seniority, tenure and retirement rights.

END OF FILE.