As a result of a recent decision of the Commissioner of Education (Appeal of deVente and Jesenof, No. 15822, August 15, 2008), NYSUT became aware of a significant problem that affects teachers on special assignment ("TOSA") who were not providing instruction to students within that assignment. Since TOSA positions were not certified as educational in nature under section 35-g of the Civil Service Law, over 3,000 teachers currently serving in these positions were not able to acquire tenure and seniority rights for the performance of these duties. Part 30 tenure areas establish how seniority is calculated within a tenure area, which is the primary determinant of who is laid off in the event of the abolition of a teaching position.
NYSUT, in the interest of the thousands of TOSAs presently at risk, worked collaboratively with the State Education Department and representatives of other statewide organizations to craft a regulation that would create uniformity, predictability and a "level playing field" for all teachers regarding issues of seniority, layoffs and recall. NYSUT strongly urged the Board of Regents to adopt this amendment.
Typically, individuals serving as TOSAs are experienced teachers, employed to provide a variety of educational support services that do not directly involve classroom instruction. These teachers are typically drawn from among the best and most experienced teachers in a school district. Sometimes, especially at boards of cooperative educational services (BOCES), teachers with particular expertise in working with other educators are hired specifically to provide instructional support services to other school personnel.
The amendment provides for an exception to the general rule that, to earn seniority credit, a teacher must devote at least 40 percent of his/her time working in classroom instruction in his/her tenure area. Part 30 now allows teachers to accrue tenure and seniority rights for the performance of instructional support duties in a tenure area for which they are properly certified.
This amendment authorizes the Commissioner to certify to the New York State Civil Service Commission that certified individuals providing instructional support services for the purpose of enhancing instruction and improving student performance are part of the teaching staff of a public school. Accordingly, similar to all other tenure titles under Part 30, these positions are part of the unclassified service, require an appropriate teaching certificate, and are subject to Education Law in regard to appointment and tenure.
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