Decision No. 12,797

(September 4, 1992)

Robert Clearfield, Esq., attorney for petitioner, Janet Axelrod, Esq., of counsel

Shaw and Silveira, Esqs., attorneys for respondent, David S. Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the President of the Beacon Teaching Assistants' Association (BTAA) and a certified teaching assistant employed by respondent school district, appeals from respondent's refusal to allocate funds on a per capita full-time equivalent basis from the Excellence in Teaching (EIT) apportionments to the BTAA as the bargaining representative for teaching assistants. The appeal must be sustained.

Respondent was the recipient of $156,218 in EIT funds for the 1989-90 school year, of which $60,928.50 was set aside to improve the salaries of first, second and third year teachers who provide classroom instruction to students in grades kindergarten through 12 on a full-time basis. Respondent is obligated to distribute the remaining $95,289.50 to eligible teachers in accordance with 8 NYCRR '175.35(e). The term "eligible teacher" is defined in 8 NYCRR '175.35(e)(1)(i) as a "school employee who provides nonsupervisory educational services" to students under one of the teachers' certificates or licenses listed in the regulation. Clause (K) of 8 NYCRR '175.35(e)(1)(i) includes in the definition of "eligible teacher" school employees providing educational services under "a license or certificate valid for service as a teaching assistant." Therefore, teaching assistants are "eligible teachers" and may receive a distribution of EIT funds.

It appears from the record that as of March 1990 there were 52 teaching assistants employed by respondent, 50 employed on a full-time basis and 2 on a half-time basis. The work day for a full-time teaching assistant consists of 6 hours, while the work day for a full time classroom teacher is 7 hours. The BTAA is the collective bargaining representative for all teaching assistants in the district, who are in a separate bargaining unit from all other eligible teachers.

Where there are eligible teachers in more than one collective bargaining unit, 8 NYCRR '175.35(e)(2)(i) requires that the EIT funds remaining after distribution of the set-aside amount:

The actual amount to be distributed as salary increases to eligible teachers within each bargaining unit is then determined through separate collective negotiations.

Because there is more than one collective bargaining unit representing "eligible teachers" in respondent's school district, respondent was obligated to allocate EIT funds to each bargaining unit on a "per capita full-time equivalent basis." Respondent has refused to make an allocation to the BTAA on behalf of teaching assistants, although the district appears to have escrowed $2,000 from the 1989-90 EIT funds for possible distribution to teaching assistants. Instead, respondent elected to bring a special proceeding in New York Supreme Court, Albany County to challenge the legality of 8 NYCRR '175.35(e)(1)(i) insofar as it makes teaching assistants eligible to receive EIT funds. Such proceeding was dismissed based upon respondent's failure to exhaust its administrative remedies.

Petitioner contends that respondent was obligated to allocate approximately $18,105 in 1989-90 EIT funds to the BTAA, based on 51 full-time equivalent teaching assistant positions and 221.1 full-time equivalent eligible teachers in the Beacon Teachers' Association bargaining unit. Respondent appears to take the position that if teaching assistants are found to be "eligible teachers", their allocation should be reduced to reflect that their work day is 6 hours while the work day for full-time classroom teachers is 7 hours. Thus, respondent has proposed to multiply the number of full-time equivalent teaching assistant positions by 6/7 or .875 to determine the allocation for teaching assistants.

I find that there is no basis in 8 NYCRR '175.35(e)(2) for making a reduction in the allocation to different categories of eligible teachers because of differences in the length of the work day. The phrase "full-time equivalent basis" is intended to indicate that there should be a prorated allocation for eligible teachers serving on a part-time basis. The determination of whether an individual is serving on a full-time or part-time basis should be based on the length of the work day for the category of eligible teacher to which the individual belongs, rather than a comparison with the workday of other eligible teachers. Thus, a full share of EIT funds should be allocated to each full-time teaching assistant in respondent's district.

I am unable to determine from the record whether $18,105 is the actual amount that should have been allocated to the BTAA on behalf of teaching assistants for the 1989-90 school year. Under 8 NYCRR '175.35(e)(2), the allocation must be based on the number of eligible teachers in each bargaining unit as of October 1st. I direct respondent to make the necessary computation and allocate EIT funds to the BTAA accordingly. If it turns out that there was no change in the number of eligible teachers in each bargaining unit between October 1, 1989 and March 1990, petitioner's computation would be correct.

Respondent asks that I reconsider the extension by 8 NYCRR '175.35(e)(1)(i) of EIT funds to teaching assistants, arguing that the regulation is contrary to the legislative intent of Education Law ''1950(15) and 3602(27). An appeal to the Commissioner is not the proper forum for review of the legality of a Commissioner's regulation, but in any event I must decline respondent's request. Respondent relies, in large part, on Matter of Anderson v. Cortland City School District, 147 Misc. 2d 7, aff'd 171 AD2d 1017, in which it was determined that the term "teachers" as used in Education Law '3014-b does not include teaching assistants. However, in the Matter of Civil Service Employees Association, Inc., Local 1000 v. Perillo, 171 AD2d 1029, the same appellate court that affirmed Matter of Anderson, supra, interpreted 8 NYCRR '175.35(e)(1)(i) to require a school district to allocate a share of its total EIT apportionment to a separate bargaining unit representing teaching assistants. This suggests, at the very least, a judicial recognition that the definition of "teachers" for purposes of the EIT apportionments may differ from that applicable to Education Law '3014-b. The regulation represents a judgment that the phrase "teachers of the district in general" in Education Law ''1950(15)(a) and 3602(27)(a) was intended to encompass teaching assistants, who are pedagogical employees required to hold a form of teachers' certificate and enjoy the benefits of tenure. I find no basis to reconsider that judgment.

I also reject respondent's further argument that making teaching assistants eligible for EIT funds is inconsistent with the decision of the Court of Appeals in Schneider v. Sobol, 76 NY2d 309 [1990]. At issue in that case was the eligibility of individuals such as department chairpersons whose positions involve both teaching and administrative duties. The Court did not purport to decide what categories of employees are full-time teachers for purposes of the EIT apportionments.

Finally, I find no merit to respondent's contention that the decisions in Schneider v. Sobol, supra, Appeal of Caraccilo, 30 Ed Dept Rep 22, and Appeal of Paradise, 30 Ed Dept Rep 24, require dismissal of this appeal on the ground that petitioner has failed to establish that teaching assistants are compensated under a teacher's salary schedule. Each of those cases involved school administrators and individuals having both administrative and teaching duties. In contrast, a teaching assistant is an eligible teacher rather than a school administrator and accordingly, a teaching assistant's salary schedule is by definition a teacher's salary schedule.

THE APPEAL IS SUSTAINED.

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