Relates to teachers' rights

BILL NUMBER:S1588A

Title of bill

An act to amend the education law, in relation to teachers' rights

Purpose

The purpose of this legislation is to protect the rights of certain specified school district personnel when a school district takes over program formerly operated by a Board of cooperative Educational Service (BOCES) and vice versa.

Summary of provisions

This legislation amends sections 3014-a and 3014-b of the Education Law to include "other specified personnel" under the protections of each section. Sections 3014-a and 3014-b are each amended to include a new subdivision 6 to define the term "other specified personnel." The new subdivisions define other specified personnel to mean any person certified to the state civil service commission by the commissioner pursuant to section 35(g) of the civil service law providing instructional, ancillary or supportive educational services and any licensed health professional who is principally engaged in providing health services.

Justification

This legislation is in response to years of unnecessary litigation and judicial holdings surrounding the transfer and recall rights of BOCES and school district personnel. These amendments are not intended to reflect a change in the law, but rather are intended as a clarification that the Legislature did not intend to exclude other education professionals from the protections of the Education Law. The legal question revolved around what other professional employees other than class.room teachers are considered "teachers" for purposes of being afforded 3014 and 3014-b protections. First, teaching assistants were excluded (Anderson v. Cortland City School District, 147 Misc. 2d 7 (Sup. Ct., Onondaga Co., 1990), affd 171 AD.2d 10 17 (4th Dep't 1991 , then the concept was expanded to exclude school psychologists (Fink v. Avon Central School District, 207 AD.2d 973 (4th Dep't 1995), Iv. app. den., 85 N.Y.2d 804 (1995), and lastly, school counselors and social workers were excluded from the protections of the statute (North Tonawanda City School District v. Mills, 263 AD.2d 574 (3rd Dep't 1999), Iv. app. den., 94 N.Y.2d 751 (1999).

In 1998, the Legislature corrected the problem presented by the Anderson case and the statutes were amended to extend protections to teaching assistants and teacher aides (L.1998, c.511 § 1), however, nothing further was done to clarify the status of other school professionals. In fact, in holding that school counselors and social workers were excluded from the protection of the statutes, the court noted that "the Legislature's recent amendment of Education Law §3014b to include 'teaching assistants and teacher aids' reveals that the term 'teacher' has a very narrow meaning as used in the section at issue." As the legislature never intended the results of these holding this bill would correct years of litigation where by other BOCES and

school district personnel were excluded from the transfer and recall rights to which they were entitled. Education Law sections 3014-a and 3014-b should protect other professionals, including, but not limited to school psychologists, guidance counselors, social workers, other pupil personnel service providers, and licensed health professionals, including but not limited to physical therapists and occupational therapists.

Legislative history

S.6272 of 2008 Passed Senate and Assembly in 2009. Vetoed by Governor, Veto Number 9.

Fiscal implications

To be determined.

Effective date

This act shall take effect September 1, 2012.