Appeal of LORRAINE KRASON, MICHELE STEVENS, JULIE MOOLENSCHOT, LISA CUNNINGHAM and SHARI HARDING from action of the Madison-Oneida Board of Cooperative Educational Services, Randy Thomas, Deborah Flagler, Diane Dingman, Tammy Foster, and Darlene Leuschner, regarding termination of services.

Decision No. 14,695

(March 7, 2002)

James R. Sandner, Esq., attorney for petitioners, Kevin H. Harren, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondent Madison-Oneida Board of Cooperative Educational Services, Henry F. Sobota, Esq., of counsel

MILLS, Commissioner.--Petitioners seek to annul a determination of the Madison-Oneida Board of Cooperative Educational Services ("respondent board") terminating their services at the end of the 2000-2001 school year. The appeal must be sustained.

Petitioners are five certified teaching assistants who were employed full-time by respondent board during the 2000-2001 school year. On June 1, 2001, respondent board terminated 9 of the approximately 75 teaching assistants it employed, including petitioners, effective June 30, 2001.

Petitioners claim, and respondent board admits, that three of the nine persons terminated were terminated properly because they were among the nine least senior teaching assistants. A fourth teaching assistant, less senior than petitioners, was recalled prior to the commencement of this appeal.

Petitioners, the remaining five persons terminated, claim that they were improperly terminated pursuant to Education Law ""2510 and 3013, and 8 NYCRR Part 30, because they were not the least senior persons in the tenure area of teaching assistant. Petitioners have named five individual respondents, all of whom are teaching assistants whose services were not terminated. Petitioners claim that these named respondents are among the nine least senior teaching assistants, and that all have less seniority than petitioners. (Although all five individual respondents have been personally served with copies of the notice of petition and petition, none has entered an appearance in this matter.)

This appeal arises because of respondent board"s maintenance, since at least 1979, of a policy of classifying tenure areas by both position and specific subject assignment. In applying this policy to teaching assistants, respondent board has created, and maintains, approximately 30 different specific tenure areas (e.g., "teaching assistant " heavy equipment" and "teaching assistant " science"), and teaching assistants receive probationary appointments to these specific subject-related areas.

Petitioners claim that the maintenance of these subject specific tenure areas for teaching assistants is illegal, and point to Part 30 of the Commissioner"s Regulations, which applies to all boards of education and boards of cooperative educational services, for probationary appointments made on or after August 1, 1975. Specifically, "30.8(d) 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." Finally, petitioners point out that the credential issued to teaching assistants by the State Education Department is not limited to any particular field or subject matter, but allows a teaching assistant to serve in any teaching assistant position. If all teaching assistants are included within the same tenure area, it is clear that the five petitioners are not among the nine least senior persons.

Respondent board contends that its system of multiple tenure areas for teaching assistants is, in all respects, consistent with all applicable statutes and regulations. It states that while a single teaching assistant tenure area may be appropriate for a small school district with "only a few teaching assistants for only similar clerical duties," it is highly inappropriate for the Madison-Oneida BOCES. It claims that the use of a single tenure area would be educationally unsound, and perhaps dangerous. It suggests a scenario in which, if all its teaching assistants were in the same tenure area, and if enrollment in its cosmetology program fell, it might be forced to terminate the services of a teaching assistant in the welding department having less seniority than a teaching assistant in the cosmetology department, retain the more senior teaching assistant, and assign the more senior teaching assistant from the cosmetology program to work with a welding teacher.

Respondent board points out that 8 NYCRR "30.1(e) defines a "professional educator" in such a way as to include teaching assistants. It then argues that "80-5.6(b)(2)(i)(a)(1) requires "training and experience appropriate to the position in question" for a temporary license. (I note, however, that "80-5.6[b][2][ii][a][1] requires no experience for a Level I teaching assistant certificate, where application is made on or after February 2, 2004.) It then argues pursuant to "30.8(c) that a professional educator who devotes a substantial portion of his or her time to instruction in certain vocational subjects "shall be deemed to serve in a special subject tenure area co-extensive with the certificate possessed by the individual at the time of the probationary appointment."

Based upon these provisions, respondent board argues that, for example, a teacher in the vocational trade subject of welding, having a certificate as a welding teacher, would have to be appointed to the tenure area of teacher-welding under "30.8(c). Respondent board then argues: "The same logic should hold true for a teaching assistant in the welding program. The welding teaching assistant, like the welding teacher, is a "professional educator," within the meaning of Section 30.1(e) of the Regents Rules."

Respondent board also argues that petitioners are seeking an impermissible retroactive restructuring of its teaching assistant tenure areas, and that Education Law "3013(2) should not even apply to this appeal, because teaching assistants are not "teachers" within the meaning of that provision.

I find that the tenure system for teaching assistants maintained by respondent board does not comply with the requirements of 8 NYCRR Part 30. Respondent board"s classification of tenure areas depends upon an assumed analogy between teaching assistants and teachers of vocational subjects covered by "30.8(c). There are several flaws with this approach. First, as petitioners point out, "the fundamental task of a teaching assistant is not to teach a particular subject to children, but rather to assist those certified teachers whose responsibility it is to provide an appropriate educational experience for the students." In that regard, no particular subject matter experience is required for a teaching assistant for either a temporary license or a continuing certificate under the Commissioner"s regulations. While respondent board points to the requirement in "80-5.6(b)(2)(i)(a)(1) of "training and experience appropriate to the position in question," this phrase has always been interpreted by the State Education Department as meaning training and experience appropriate to the position of teaching assistant, rather than to any particular employment. It must also be pointed out that the credentials issued to teaching assistants are neither position-specific nor subject-matter specific, and allow such certificate holders to assist a teacher in any subject matter area.

Respondent board"s argument also fails because it is inconsistent with a plain reading of "30.8(d), which places all teaching assistants in the same special subject tenure area of teaching assistant. The wording of this provision directly contradicts the argument that teaching assistants hold tenure in the special subject tenure areas enumerated in "30.8(c). Finally, I find respondent board"s argument unpersuasive to the extent that it fails to take into account those narrow tenure areas it has created in entirely non-vocational areas such as special education, English, early childhood education, mathematics, and others, which make up approximately one-third of the approximately 30 tenure areas it has maintained for teaching assistants. None of these non-vocational areas have any application to "30.8(c), and respondent board offers no justification as to why these areas are valid. While respondent board disagrees with the proposition that all teaching assistants serve in the same special subject tenure area, it is nevertheless abundantly clear that the regulations adopted by the Board of Regents mandate this result. As "30.2(a) indicates: "The provisions of this Part shall apply to all probationary appointments to professional education positions made by a board of education or a board of cooperative educational services by resolution on or after August 1, 1975 and to appointments on tenure based upon such probationary appointments."

Respondent board"s other arguments may be addressed summarily. Respondent board claims that the petition calls for an impermissible retroactive restructuring of its teaching assistant tenure areas, in violation of Bell v. Board of Education of Vestal Central School District, 61 NY2d 149. That case, however, dealt with an administrative appointment to which Part 30 has no application. The petition in this appeal asks an order annulling petitioners" termination, directing their reinstatement, and appropriate back pay and benefits. In Bell, there was no argument regarding the validity of the tenure system itself. However, in the present appeal, it is clear that the tenure system used by respondent board is invalid, and has been since its inception.

Finally, I find that teaching assistants are protected by Education Law "3013(2). Respondent board has cited no case which has held otherwise. If petitioners were not to receive the benefits of "3013(2), it is hard to imagine why a system of tenure was created for teaching assistants in the first place (see, 8 NYCRR ""30.8[d], 30.13).

THE APPEAL MUST BE SUSTAINED.

IT IS ORDERED that the determination of the Board of Education of the Madison-Oneida BOCES terminating petitioners" services as of June 30, 2001, be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that respondent board reinstate petitioners to their positions as full-time teaching assistants as of July 1, 2001, with back salary and benefits from the beginning of the 2001-2002 school year, less any compensation they may have otherwise earned; but

IT IS FURTHER ORDERED that the back salary and benefits ordered to be paid in the previous paragraph may be proportionately reduced by the salary and benefits paid to any petitioner who has been recalled by respondent board to full-time or part-time service since July 1, 2001.

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