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3 No. 181
In the Matter of MadisonOneida Board of Cooperative Educational Services,
Appellant,
v.
Richard P. Mills, as Commissioner of Education of the State of New York, et al.,
Respondents.


2004 NY Int. 167

December 21, 2004

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Henry F. Sobota, for appellant.
Evelyn Tenenbaum, for respondent Mills.
Kevin H. Harren, for respondents Krason, Stevens, Moolenschot, Cunningham and Harding.
New York State School Boards Association, Inc., amicus curiæ. G. B. SMITH, J.: At issue on this appeal is whether teaching assistants (TAs) fall within the purview of Education Law § 3013(2) for the purpose of determining layoffs. We conclude that they do, and we affirm the order of the Appellate Division.

I
The Board of Cooperative Educational Services for the Madison-Oneida school districts ("BOCES") laid-off nine TAs on June 1, 2001, effective June 30, 2001. The lay-offs were not in accordance with the seniority system within the tenure track "teaching assistant"[1] pursuant to Education Law § 3013(2).[2] Five of the nine TAs were senior to teaching assistants who did not receive lay-off notices. Three of the nine TAs were the least senior within their respective areas and they did not appeal the lay-off decisions. One person was rehired prior to the start of the 2001-2002 school year.
On September 24, 2001, the five named TAs filed an article 78 petition challenging the layoffs. Supreme Court dismissed the petition, retaining primary jurisdiction but allowing the Commissioner of Education to determine whether or not the teaching assistants were included within the purposes of Education Law § 3013(2) and, consequently, whether the TAs should have been dismissed based on seniority. Following Supreme Court's decision, in November, 2001, the TAs appealed to the Commissioner for a determination that the TAs were teachers pursuant to Education Law § 3013(2). In March, 2002, the Commissioner rejected BOCES' arguments that the TAs were similar to vocational teachers because there were no specific educational, certification, or licensure requirements to be a TA. The Commissioner annulled BOCES' determination that the teaching assistants were not teachers, and did not have to be fired according to seniority, and reinstated TAs to full-time teaching positions with back pay and benefits, effective July 1, 2001. The Commissioner found that "teaching assistants are protected by Education Law § 3013(2)." Further, the Commissioner determined that the plain meaning of 8 NYCRR § 30.8 placed "all teaching assistants in the same special subject tenure area of teaching assistant which directly contradicts the argument that teaching assistants hold tenure” within a specific subject area of teaching assistant.
In July, 2002, BOCES commenced an article 78 proceeding to have the Commissioner's determination annulled. In December, 2002, Supreme Court annulled the Commissioner's determination, observing that Education Law §§ 3014-a and 3014-b had been amended in 1998 to include teaching assistants and teacher aides but that Education Law § 3013 had not been so amended. The Supreme Court stated, "An interpretation of the statute [§ 3013(2)] to include teachers assistant (sic) is inconsistent with the plain wording of the statute and would serve to preempt the function of the State Legislature." In December, 2003, Appellate Division reversed and found that: "Education Laws §§§ 2510(2), 2585(3) and 3013(2) are nearly identical statutes that provide lay-off seniority protection to tenured teachers employed by small city school districts, large city school districts and other boards of education, including boards of cooperative educational services. Each of these sections states that, when a position is abolished, "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued" * * *. "Significantly, we have noted that "teacher" has different meanings in different contexts in the Education Law" * * *." [T]he courts of this state have applied the term "teacher" to include other professional educators in interpreting Education Laws § 2510(2), § 2585(3) and § 3601- 1(27)(a)(1)" (citations omitted).
Further, Appellate Division determined, "It would be anomalous to construe Education Law § 3013(2) to deny TAs lay-off seniority at the time their positions are abolished while granting them recall seniority for reinstatement to similar positions after their positions are abolished" [emphasis in original]. This Court granted leave to appeal.
II Pursuant to Education Law § 1950, BOCES provides occupational programs for students within a specific school district. The programs employ TAs to supplement the services of classroom teachers ( see 8 NYCRR § 80-5.6(b)(1)(ii)(b))[3] . TAs are in tenure-based positions pursuant to parallel statutes ( see §§ 3012[4] , 3014[5] ). Their credential and licensure requirements are outlined in 8 NYCRR § 80-5.6.
The five laid-off TAs were in the areas of special education, career exploration, community based occupation counseling, and pre-kindergarten. Effective June 30, 2001, the five teaching assistants on this appeal were laid-off due to declining enrollment in their respective programs. The TAs were not laid-off according to seniority but rather based upon the needs of BOCES. BOCES argues that teaching assistants are not teachers within the meaning of Education Law § 3013(2), and thus, are not protected by the same statutory tenure requirements. Further, BOCES argues that teaching assistants are different from other professional educators and that TAs can still have tenure protection without inclusion in § 3013(2).
The TAs counter that they are teachers within the meaning of Education Law §§ 3013(2)and 2510(2), and argue that the Commissioner of Education of New York State ("the Commissioner") should be given deference because of "the special knowledge and expertise of the Commissioner." The TAs argue for a broad definition of the word "teacher" which they support with case law ( see In the Matter of Volk v Bd. of Educ. City Sch. Dist. of Rochester, , 83 NY2d 930, 932 [1994] [tenure statute §2585(3), term teacher applied to School Administrator/ Supervisor]; Steele v Bd. of Educ. of NYC, , 40 NY2d 456, 460 [1976] [teacher applied to elementary school guidance counselors under § 2585[3]]).
First, as noted by the Commissioner, the duties of a teaching assistant are to aid those teachers who are trained to teach specific subjects to students. Pursuant to the Rules of the Board of Regents, professional educators may serve in the "special subject area of teaching assistant (8 NYCRR 30.8[d]). Thus, all teaching assistants are part of the same subject area.
In order to have an internally consistent interpretation between tenure track statutes, statutes of appointment (§§ 3012[1][a] and 3014[1], amended in 1996 to include TAs) must have a parallel interpretation with statutes of abolition (§§ 2510[6] , 3013[2]; see also Educ. Law §§ 3020 and 3020- a [pre-termination procedures]). The legislative history of § 3013(2) supports the conclusion that persons hired by a board of education or a BOCES should be laid off according to seniority. Thus, for lay-off purposes, TAs fall within the ambit of § 3013[2]). Teaching assistants, which is a separate tenure area from teachers, should not have their abolition rights judged by whether or not they meet the qualifications and credentials of teachers ( see 8 NYCRR Part 80-5.6(b)). Their separate credentials have been accorded tenure, and the TAs should have due process rights within that system. It is the due process rights of professional educators, not just those of teachers, which the legislature sought to protect in the abolition of position or office pursuant to § 3013(2).
III
At times deference is accorded to an administrative agency because of its expertise in a given area ( see Kurcsics v Merchants Mut. Ins. Co., , 49 NY2d 451, 459 [1980][7] ; In the Matter of Davis v Mills et al., , 98 NY2d 120, 125 [2002] ("It is for the Commissioner in the first instance and not for the courts, to establish and apply criteria to govern the selection and retention of qualified educators and staff"); In the Matter of the Brd. of Ed. of City. Sch. Dis. of the City of Oneida v Nyquist, , 45 NY2d 975, 976 [1978] (finding that dissent's reasoning at the Appellate Division, that the Commissioner's determination that a teacher had acquired tenure was due deference, was correct). However, in the instant case, this Court is faced with the interpretation of statutes and pure questions of law and no deference is accorded the agency's determination ( see Kurcsics, , 49 NY2d 451, at 459, supra)[8] ; In the Matter of the Claim of Gruber v NYC Dept. of Personnel, , 89 NY2d 225, 231 [1996]. Teaching assistants are professional educators for the purposes of the tenure track system as outlined in 8 NYCRR Part 30 ( see 8 NYCRR §§ 30.1[e], 30.8[d]). It makes no difference whether the teaching assistant is part of the board of education or board of cooperative educational services ( see id.). Further, for purposes of abolishing positions, the term "teacher" includes teaching assistants.
Education Law §§ 3012(a)(1)(a) and 3014(1) which are tenure sections of the Education Law, address appointments of "teachers and members of the teaching staff" ( see Education Laws §§ 3012(1)(a) and 3014(1)). The laws are not intended to allow distinctions which only benefit the school system, and ultimately harm the teachers ( see Ricca v Bd. of Educ. of NYC, , 47 NY2d 385, at 391, [1979] ["The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles on a qualified teacher's trail to tenure"] [ citing Matter of Baer v Nyquist, , 34 NY2d 291, 1974]).
Education Laws §§ 3013(2) and 2510(2) address the abolition of a position or lay-off ( see Education Law §§ 2) and 2510(2)). In both statutes, "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued." The phrase "services of the teacher" is to be distinguished from services of supervisory and administrative staff, rather than from those of a teaching assistant or teacher aide ( see 8 NYCRR Part 80). If in fact it was the intent of the legislature to exclude teaching assistants from the tenure track system for purposes of abolition, then there would be no protection from layoffs for teaching assistants who gain tenure in that position ( see Steele, , 40 NY2d 456, at 463, [ supra] [legislature created various tenure areas under 8 NYCRR Part 30]). Because such protection appears to have been contemplated in other relevant statutes, it is probable that the legislature intended to include teaching assistants in Education Law § 3013(2) for purposes of layoffs ( see 1992 NY Assembly Bill A 11062-A)[9] ; see also 1992 NY Senate Bill S 3426-C)(under §3014-a and §3014-b, extending benefit in rehiring not just to teachers but to teaching assistants).
IV
Section IV of the Personnel Policy on Tenure addresses seniority for teachers, teaching assistants, coordinator, and director, etc. The policy states in pertinent part: "Seniority for purposes of abolition of positions shall be determined by length of service within a tenure area." From its personnel policy, the Madison-Oneida BOCES contemplated inclusion of teaching assistants into the tenure system and intended that the system be based on a formula for seniority ( see Steele, , 40 NY2d 456, at 463, [ supra] [court upholds seniority formula applied to elementary school teachers]). BOCES, in the instant action, appears to be going against its own policies for the purposes of dismissing teaching assistants.[10]
V
Previous case law supports the use of the term "teacher" for positions other than an actual classroom teacher ( see Matter of Volk, , 83 NY2d 930, at 932, [ supra] [applying Education Law § 2585[3][11] to School Administrator/Supervisor requiring that the "teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued"]; Steele, at 463, supra [applying Education Law § 2585(3) to elementary school guidance counselors]). Thus, applying the term "teacher" to teaching assistants would not create precedent in terms of using the term for persons other than teachers. In fact, contrary to BOCES's view, applying the term teacher to a TA would be a logical extension of the term.
BOCES's hands will not be tied because they are unable to abolish positions in areas where TAs are no longer needed[12] ( see Matter of Davis, , 98 NY2d 120, at 124-25, supra)(former school psychologist not entitled to position as elementary school counselor which required different certifications); Matter of Young v Brd. of Educ. of Cent. Sch. Dist. No. 6, , 35 NY2d 31, 34 [1974] (no violation of tenure system when position of attendance teacher was abolished and duties transferred to those of assist. principal and principal); In the Matter of Cohoes City Sch. Dist. v Cohoes Teachers Assoc., , 40 NY2d 774, 777 [1976] (school board required to exercise authority in making tenure decisions). However, applying Education Law § 3013(2) to teaching assistants will prevent BOCES from acting in an arbitrary manner in abolishing positions within the sub-tenure area of teaching assistant ( see Matter of Baer, , 34 NY2d 291, at 295,supra), overruled on other grounds, ["Radical restructuring of tenure areas, compatible with the purpose of the tenure statutes, should not be free of controlling regulations or express standards propounded by the Board of Regents or enacted by the Legislature"]).
Accordingly, the order of the Appellate Division should be affirmed, with costs.


Order affirmed, with costs. Opinion by Judge G.B. Smith. Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Decided December 21, 2004


Footnotes

1  BOCES appealed the designation of teaching assistant as a tenure track grouping at the Appellate Division, Third Department. The Appellate Division found that teaching assistant is a tenure track designation pursuant to 8 NYCRR § 30.8(d). However, BOCES has not appealed the tenure track areas of teaching assistants to this court.

2  Education Law § 3013(2)_-"Whenever a trustee, board of trustee, board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

3  8 NYCRR § 80-5.6(b)(1)(ii)(b)--(in pertinent part)"Teaching assistants who hold the pre-professional teaching assistant certificate shall have the same scope of practice as other teaching assistants, in accordance with the duties prescribed in clause (a) of this subparagraph. Within that scope of practice, teaching assistants holding a pre-professional teaching assistant certificate may, at the discretion of the employing district, and while under the general supervision of a teacher, perform such duties as....”

4  Education Law § 3012(1)(a)--(in pertinent part)--"Teachers and all other members of the teaching staff of school districts, including common school districts and/or school districts employing fewer than eight teachers, other city school districts, shall be appointed by the board of education, or the trustees of common school districts, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of the teacher who has rendered satisfactory service as a regular substitute for a period of two years or as a seasonally licensed per session teacher of swimming in day schools who has served in that capacity for a period of two years and has been appointed to teach the same subject in day schools, on an annual salary, the probationary period shall be limited to one year; provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services...."

5  Education Law § 3014(1)--(in pertinent part)--- "Administrative assistants, supervisors, teachers and all other members of the teaching and supervising staff of the board of cooperative educational services shall be appointed by a majority vote of the board of cooperative educational services upon the recommendation of the district superintendent of schools for a probationary period of not to exceed three years; provided, however, that in the case of a teacher who has been appointed on tenure in a school district within the state, the board of cooperative educational services where currently employed, or another board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to subdivision one of section three thousand twenty-a of this chapter, the probationary period shall not exceed two years."

6  Education Law § 2510(2)_ - "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

7   see , 49 NY2d 451, at 459, supra, ("Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom, the courts regularly defer to the governmental agency charged with the responsibility for administration of the statute. If its interpretation is not irrational or unreasonable, it will be upheld.")

8   see id. at 459-60 ("Where, however, the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight.")

9  "The bill aims to prevent the use of favoritism by a school board or BOCES in the retention of staff and to protect tenured personnel by clarifying the process by which staff are dismissed and subsequently rehired. In addition, the bill prevents school boards from abolishing a position as means for disposing of unwanted tenured personnel, when in fact, no savings in cost or increase in efficiency is expected to be realized." "Identical language appears in Article 51 of the Education Law, which governs small city school districts. However, the courts and the Commissioner of Education have interpreted this provision to apply to school districts and boards of cooperative educational services generally. This bill will clarify that these provisions apply to all school districts."

10  IV. Seniority Seniority for purposes of abolition of positions shall be determined by length of service within a tenure area. Any unpaid leave time shall not be included in determining length of service. In instances where length of service is identical, seniority shall be determined as follows:

1.

By the date of Board appointment, where individuals are appointed at different Board meetings, then if equal;

2.

If appointed by different Board resolutions at the same Board meeting, by order of appearance of the resolutions in the Board minutes, then if equal;

3.

If appointed by the same Board resolution, by the order of appearance of names in such resolution.

11  Education Law § 2585(3)_- "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

12  Amicus Curiae, NYS Sch. Bd. Assoc., Inc. argues that applying section 3013(2) to teaching assistants circumscribes the ability of school districts to consider knowledge and skill when circumstances necessitate laying off teaching assistants because it causes districts to shuffle teaching assistants around based on seniority, rather than based on their knowledge and skills.