Relates to teachers' rights; adds other specified personnel to teachers and teaching assistants where the board of cooperative educational services takes over a program.

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S1588A-2011 Actions

• Jan 13, 2012: PRINT NUMBER 1588A
• Jan 13, 2012: AMEND AND RECOMMIT TO EDUCATION
• Jan 4, 2012: REFERRED TO EDUCATION
• Jan 10, 2011: REFERRED TO EDUCATION

S1588A-2011 Memo

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.

S1588A-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   1588--A

                         2011-2012 Regular Sessions

                              I N  SENATE

                              January 10, 2011
                                 ___________

  Introduced  by  Sen.  OPPENHEIMER -- read twice and ordered printed, and
    when printed to be committed to the Committee on Education  --  recom-
    mitted to the Committee on Education in accordance with Senate Rule 6,
    sec.  8  --  committee  discharged, bill amended, ordered reprinted as
    amended and recommitted to said committee

  AN ACT to amend the education law, in relation to teachers' rights

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section  1. Section 3014-a of the education law, as amended by chapter
  511 of the laws of 1998, is amended to read as follows:

    S 3014-a. Teachers' rights as a result of a board or boards of cooper-
  ative educational services taking over a program formerly operated by  a
  school  district  or  districts  or by a county vocational education and
  extension board. 1. In any case in which a board or  boards  of  cooper-
  ative  educational  services  duly  take over the operation of a program
  formerly provided by a school district or school districts or by a coun-
  ty vocational education and  extension  board,  each  teacher,  teaching
  assistant [and], teacher aide, AND OTHER SPECIFIED PERSONNEL employed in
  such  a  program  by  such a school district or such a county vocational
  education and extension board at the time of such takeover by the  board
  or  boards  of  cooperative educational services, shall be considered an
  employee of such board or boards  of  cooperative  educational  services
  with  the  same  tenure  or civil service status he OR SHE maintained in
  such school district or in such county vocational education  and  exten-
  sion board.
    2.  If the number of teaching positions needed to provide the services
  required by such program by the board or boards  of  cooperative  educa-
  tional services is less than the number of teachers, teaching assistants
  [and],  teacher  aides,  AND  OTHER  SPECIFIED  PERSONNEL eligible to be
  considered employees of such board or boards of cooperative  educational
  services as provided by subdivision one of this section, the services of

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD05313-02-2

 S. 1588--A                          2

  the teachers, teaching assistants [and], teacher aides, AND OTHER SPECI-
  FIED  PERSONNEL  having  the  least  seniority in the school district or
  school districts or county  vocational  education  and  extension  board
  whose  programs  are  taken  over  by the board or boards of cooperative
  educational services within the tenure area or civil  service  title  of
  the  position  shall be discontinued. Such teachers, teaching assistants
  [and], teacher aides, AND OTHER SPECIFIED PERSONNEL shall be placed on a
  preferred eligible list of candidates for appointment to a vacancy  that
  may  thereafter occur in an office or position under the jurisdiction of
  the board or boards of cooperative educational services similar  to  the
  one  such  teacher,  teaching  assistant  [and], teacher aide, AND OTHER
  SPECIFIED PERSONNEL filled in such school district or  school  districts
  or  such  county vocational education and extension board. The teachers,
  teaching assistants [and], teacher aides, AND OTHER SPECIFIED  PERSONNEL
  on  such  preferred list shall be reinstated or appointed to such vacan-
  cies in such corresponding or similar positions under  the  jurisdiction
  of  the board or boards of cooperative educational services in the order
  of their length of service in such school district or  school  districts
  or in such county vocational education and extension board, within seven
  years from the date of the abolition of such office or position.
    3.  For  any such teacher, teaching assistant [and], teacher aide, AND
  OTHER SPECIFIED PERSONNEL as  set  forth  in  subdivision  one  of  this
  section  for  salary,  sick  leave and any other purposes, the length of
  service credited in such school district or in  such  county  vocational
  education  and extension board shall be credited as employment time with
  such board or boards of cooperative educational services.
    4. This section shall in no way be construed to limit  the  rights  of
  any  of  such  employees  set forth in this section granted by any other
  provision of law.
    5. Program takeovers pursuant to this section shall  be  considered  a
  transfer pursuant to section seventy of the civil service law.
    6. FOR THE PURPOSES OF THIS SECTION, "OTHER SPECIFIED PERSONNEL" SHALL
  MEAN  ANY  PERSON CERTIFIED TO THE STATE CIVIL SERVICE COMMISSION BY THE
  COMMISSIONER PURSUANT TO SUBDIVISION (G) OF SECTION THIRTY-FIVE  OF  THE
  CIVIL  SERVICE  LAW  PROVIDING  INSTRUCTIONAL,  ANCILLARY, OR SUPPORTIVE
  EDUCATIONAL SERVICES AND ANY LICENSED HEALTH PROFESSIONAL WHO IS PRINCI-
  PALLY ENGAGED IN PROVIDING HEALTH SERVICES.
    S 2. Section 3014-b of the education law, as amended by chapter 511 of
  the laws of 1998, is amended to read as follows:

    S 3014-b. Teachers' rights as a result of  a  school  district  taking
  over  a  program formerly operated by a board of cooperative educational
  services. 1. In any case in which a school district duly takes over  the
  operation  of  a  program  formerly  provided  by a board of cooperative
  educational services, each teacher, teaching  assistant  [and],  teacher
  aide, AND OTHER SPECIFIED PERSONNEL employed in such a program by such a
  board  of  cooperative educational services at the time of such takeover
  by the school district shall be considered an employee  of  such  school
  district,  with  the same tenure or civil service status he OR SHE main-
  tained in such board of cooperative educational services.
    2. If the number of teaching positions needed to provide the  services
  required  by such program by the school district is less than the number
  of teachers, teaching assistants [and], teacher aides, AND OTHER  SPECI-
  FIED  PERSONNEL  eligible  to  be  considered  employees  of such school
  district as provided by subdivision one of this section, the services of
  the teachers, teaching assistants [and], teacher aides, AND OTHER SPECI-
  FIED PERSONNEL having the least seniority in the  board  of  cooperative

 S. 1588--A                          3

  educational  services  whose  programs  are  taken  over  by  the school
  district within the tenure area or civil service title of  the  position
  shall be discontinued. Such teachers, teaching assistants [and], teacher
  aides,  AND  OTHER  SPECIFIED  PERSONNEL  shall be placed on a preferred
  eligible list of candidates for appointment to a vacancy that may there-
  after occur in an office or  position  under  the  jurisdiction  of  the
  school  district  similar  to  the  one such teacher, teaching assistant
  [and], teacher aide, AND OTHER SPECIFIED PERSONNEL filled in such  board
  of  cooperative  educational services. The teachers, teaching assistants
  [and], teacher aides, AND OTHER SPECIFIED PERSONNEL  on  such  preferred
  list  shall  be reinstated or appointed to such vacancies in such corre-
  sponding or similar positions  under  the  jurisdiction  of  the  school
  district  in the order of their length of service in such board of coop-
  erative educational services, within seven years from the  date  of  the
  abolition of such office or position.
    3.  For  any such teacher, teaching assistant [and], teacher aide, AND
  OTHER SPECIFIED PERSONNEL as  set  forth  in  subdivision  one  of  this
  section  for  salary,  sick  leave and any other purposes, the length of
  service credited in such board of cooperative educational services shall
  be credited as employment time with such school district.
    4. In the event that more than one school district duly takes over the
  operation of a program formerly  provided  by  a  board  of  cooperative
  educational  services,  then  each  teacher,  teaching  assistant [and],
  teacher aide, AND OTHER SPECIFIED PERSONNEL employed in such program  by
  such board of cooperative educational services at the time of such take-
  over  by  more  than  one  school  district, shall select the particular
  school district in which he OR SHE shall be considered an employee, with
  all of the rights and privileges provided by  the  other  provisions  of
  this  section.  Such selection of the particular school district by such
  teacher, teaching assistant [and], teacher  aide,  AND  OTHER  SPECIFIED
  PERSONNEL  is  to  be based upon the seniority of each teacher, teaching
  assistant [and], teacher aide, AND OTHER  SPECIFIED  PERSONNEL  in  such
  board  of  cooperative educational services, with the right of selection
  passing from such teachers, teaching assistants  [and],  teacher  aides,
  AND  OTHER SPECIFIED PERSONNEL with the most seniority to such teachers,
  teaching assistants [and], teacher aides, AND OTHER SPECIFIED  PERSONNEL
  with  least  seniority.    Any  such  teacher, teaching assistant [and],
  teacher aide, AND OTHER SPECIFIED PERSONNEL who is unable  to  obtain  a
  teaching  position  in  any  such school districts because the number of
  positions needed to provide the services required in such programs  with
  such  school  districts  are  less than the number of teachers, teaching
  assistants [and], teachers aides, AND OTHER SPECIFIED PERSONNEL eligible
  to be considered employees of such school districts, shall be placed  on
  a preferred eligible list in all such school districts in the method and
  with all of the rights provided by the other provisions of this section.
    5.  This  section  shall in no way be construed to limit the rights of
  any of such employees set forth in this section  granted  by  any  other
  provision of law.
    6. FOR THE PURPOSES OF THIS SECTION, "OTHER SPECIFIED PERSONNEL" SHALL
  MEAN  ANY  PERSON CERTIFIED TO THE STATE CIVIL SERVICE COMMISSION BY THE
  COMMISSIONER PURSUANT TO SUBDIVISION (G) OF SECTION THIRTY-FIVE  OF  THE
  CIVIL  SERVICE  LAW  PROVIDING  INSTRUCTIONAL,  ANCILLARY, OR SUPPORTIVE
  EDUCATIONAL SERVICES AND ANY LICENSED HEALTH PROFESSIONAL WHO IS PRINCI-
  PALLY ENGAGED IN PROVIDING HEALTH SERVICES.
    S 3. This act shall take effect September 1, 2012.