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Tenure for Teachers in Instructional Support Service Positions

To:

District Superintendents; Superintendents of Public Schools; Superintendents of State-Operated and State-Supported Schools; School Personnel Administrators; New York State Council of School Superintendents (NYSCOSS); School Administrators Association of New York State (SAANYS); New York State United Teachers; New York State School Boards Association (NYSSBA); Big 5 Conference; Other Interested Parties
From: Johanna Duncan-Poitier, Senior Deputy Commissioner of P16: Office of Elementary, Middle, Secondary and Continuing Education and Office of Higher Education
Date:

May 6, 2009

Subject:

Tenure for Teachers in Instructional Support Service Positions
Attachements:

I write in follow-up to our previous communications regarding teachers on special assignment.  As mentioned, the Board of Regents would work on a resolution to this longstanding issue.  This memo is to inform you of recent changes the Board of Regents made regarding tenure for teachers providing instructional support services in school districts and BOCES and to provide guidance in the application of these new rules.  First, I want to thank all of you who have worked closely with staff from the Office of Higher Education to provide advice and reactions to the various potential solutions that parties suggested.  You have been helpful with working with us to evaluate different courses of action and providing the Regents with a well vetted proposal.   

In April, the Board of Regents, by emergency action, added provisions to address tenure and seniority rights for teachers currently employed in instructional support service positions in BOCES and public school districts, as well as for new appointments. The emergency adoption took effect on May 1, 2009 and is anticipated to become a permanent rule on August 20, 2009.

Regents action was necessary because, while the number of individuals serving in these types of positions has grown considerably in the past three decades, these positions have never been formally recognized as being educational in nature under section 35-g of the Civil Service Law.  Existing regulations required teachers to be engaged in classroom instruction in their tenure area at least 40% of their time in order to accrue seniority in that tenure area.  When a teacher takes on an instructional support assignment that prevents the teacher from teaching at least 40% of the time, seniority is not earned.  The effect is that teachers appointed to such positions were not required to have a teaching certificate and teachers in these positions have not been able to acquire tenure and/or seniority rights while serving as instructional support service providers.

Based upon this Regents action, the Commissioner has certified to the New York State Civil Service Commission that positions providing direct instructional support to other educators for the purpose of enhancing instruction and improving student performance are part of the teaching staff of a public school.  These positions are now in the unclassified service, require an appropriate teaching certificate, and are subject to statutes, rules and regulations regarding appointment and tenure.

The actions taken by the Board of Regents:

  1. Establish qualifications for individuals to be appointed to a position where they perform instructional support services.  These qualifications are: a valid Permanent or Professional teaching certificate and at least three years of satisfactory teaching experience, or a valid Initial, Provisional, Permanent or Professional certificate and an educational degree(s) beyond the baccalaureate level that qualifies an individual to be competent to deliver instructional support services in a specific area. (Districts or BOCES may establish additional requirements for a specific position beyond these minimum certification requirements.)

  2. Authorize teachers who are performing instructional support services in a school district or BOCES to accrue tenure and/or seniority rights in a tenure area for which they are properly certified.

  3. Permit teachers who did not provide knowing consent to an instructional support assignment outside of their previous tenure to receive retroactive credit for their prior service in such instructional support position and continue to receive credit in their previous tenure area while assigned to perform instructional support services.

  4. Authorize teachers who were appointed to an improper tenure area (e.g. a teacher assigned to an administrative tenure area without requiring an administrative certificate) or a tenure area not authorized by Part 30 of the Rules of the Board of Regents (e.g. a professional development tenure area) to receive retroactive credit for their prior service in instructional support services in a tenure area for which they are properly certified and to continue to receive such credit while assigned to perform instructional support services.

  5. Require that by July 1, 2009, any school district or BOCES that currently employs certified individuals who are not appointed to tenure or a probationary period and who are working in an instructional support service position make a probationary appointment for these individuals in a tenure area in which they are properly certified if the district/BOCES intends to continue to employ such individuals.

  6. For professional educators appointed to a position in instructional support services on or after May 1, 2009, the regulation provides for an exception to the general rule that, to earn seniority credit, teachers must devote at least 40% of their time working in classroom instruction in their tenure area and allow teachers to accrue tenure and seniority rights for the performance of instructional support duties in any tenure area where they are properly certified. 

The Regents decision is based upon the following principles:

  • Instructional support services duties should be considered an extension of teachers’ duties and, therefore, teachers should earn seniority credit in their existing tenure area while performing instructional support duties. This approach provides flexibility of assignments within the same tenure area that allows school leaders to best utilize the teaching work force.

  • Grand-parenting provisions provide equitable relief to tenured teachers who accepted instructional support positions in good faith.

  • Certified individuals hired solely for instructional support who were hired by a BOCES or a district with the clear understanding that they were not being appointed to a tenured position are not grand-parented and not given tenure or seniority credit for past service.

Application of Tenure Rules

  • Teachers who were assigned to perform instructional support services prior to May 1, 2009, will be grand-parented, as follows (and in chart form in Attachment A):

    • Situation 1:  Teachers already employed in a district/BOCES who were appointed prior to May 1, 2009 to instructional support duties outside of their former tenure area without their knowing consent to leaving their prior tenure area:

      Teachers will be given credit for their past and future service in instructional support services by accruing tenure and seniority rights in their previous tenure area from the date of their initial assignment to instructional support services.  

    • Situation 2: Teachers hired for instructional support positions prior to May 1, 2009, and appointed with their knowing consent to either an improper or nonexistent tenure area. 

      Teachers will have their past and future service in instructional support services applied to a tenure area in which they are properly certified.

    • Situation 3: Certified individuals hired for instructional support positions prior to May 1, 2009, but not appointed to a tenured position.

      For each teacher the district or BOCES wishes to continue to employ, the district or BOCES will need to make a probationary appointment by July 1, 2009 to a tenure area for which the teacher is properly certified.  The new Regents rules do not require these teachers be credited for any past service prior to their probationary appointment.
  • Teachers who are appointed to an instructional support position on or after May 1, 2009 will be appointed as follows:

    • Situation 1:  Teachers already employed in a district/ BOCES and serving in a proper tenure area:

      Teacher will continue to accrue tenure and seniority rights in the same tenure area while performing the new instructional support duties.

    • Situation 2: Teachers newly hired for instructional support positions by a district/ BOCES:
       
      Teachers will receive a probationary appointment to a tenure area for which they are certified.

The full text of the amendments to 30-1 of the Rules of the Board of Regents and sections 80-1 and 80-5 of the Regulations of the Commissioner of Education are available on the Board of Regents web page, under Regents Meetings.  
The link is http://www.regents.nysed.gov/meetings/2009Meetings/April2009/0409hea2.docMicrosoft Word Image Icon (115KB)

Attachment B provides Q&As designed to address questions regarding implementation of these requirements. The Q&As will be posted on the Office of Teaching Initiatives web site and added to as we receive additional questions from the field.

We very much appreciate the involvement and input that helped us to arrive at a solution, which we believe will provide a fair and workable system for both school districts and BOVCES and the teachers they employ.  If you have any additional questions, please contact Robert Bentley at (518) 474-4661.

Attachments

cc:       Joseph P. Frey
            Robert G. Bentley
            Rebecca Cort
            Erin O’Grady-Parent
            Shannon Tahoe
            Raymond Kesper
            Jean Stevens
            Shelia Evans-Tranumn

Attachment A: Chart of Teachers who were assigned to perform instructional support services prior to May 1, 2009, will be grand-parented

Attachment B: Questions & Answers

Last Updated: April 19, 2012