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Commissioner distinguishes between positions in the Unclassified Service and the Classified Service in determining an employee?s tenure status

Commissioner of Education distinguishes between positions in the Unclassified Service and the Classified Service in determining an employee?s tenure status
Appeal of Kristine deVente and Jocelyne Jesenof from action of the Broome-Delaware-Tioga Board of Cooperative Education Services, Jennifer Mondolfi and Mary Jo Rankin, regarding termination of employment, Decisions of the Commissioner of Education, Decision No. 15,822, decided August 14, 2008

This decision by the Commissioner of Education illustrates the fact that some ?professional positions? established by a school district or a BOCES are not in the unclassified service as defined in Section 35 of the Civil Service Law and are thus subject to the jurisdiction of the responsible civil service commission for the school district or BOCES.

The Broome-Delaware-Tioga Board of Cooperative Educational Services (BOCES) hired Kristine deVente in 1997 as a part-time ?Professional Development Specialist.? The duties of her position involved training teachers, administering a number of BOCES programs and occasional teaching. Effective July 1, 1999, deVente?s position became full-time, and ultimately BOCES granted deVente ?tenure? effective August 7, 2002.

On September 16, 1998, the BOCES appointed Jocelyne Jesenof (?Jesenof?) to the position of ?Professional Development Specialist? for a three-year probationary period in the tenure area of elementary education. Her duties of her position involved providing multi-cultural educational services and some classroom instruction and she was granted ?tenure? effective September 15, 2001.

In 2003 deVente?s position was made part-time (.5) and Jesenof?s position was abolished.

In this appeal to the Commissioner of Education both deVente and Jesenof claim that they have greater seniority in the elementary education tenure area than two other BOCES teachers, Mondolfi and Rankin. They ask that the Commissioner direct the BOCES ?to reinstate them to full-time positions in the elementary education tenure area, nunc pro tunc, as of September 1, 2003, along with benefits incident to such reinstatement.?

Although BOCES attempted to have the Commissioner dismiss the appeals filed by deVente and Jesenof as untimely, the Commissioner excused their failure to commence this appeal within 30 days because their delay was due to an attempt to litigate this dispute in court.

This, however, proved to be an illusory victory for both deVente and Jesenof as the Commissioner ruled that neither of them established that they were employed as professional educators within the meaning of Part 30 of the Rules of the Board of Regents. In §30.1(e) of the Rules, a professional educator is defined as:

[A]n individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the commissioner to the State Civil Service Commission pursuant to the provisions of 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.

Both deVente and Jesenof conceded that BOCES had appointed them to positions of Professional Development Specialist. The position of Professional Development Specialist, however, is not among the positions certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school district. Since petitioners were not employed as professional educators as that term is defined in Part 30 of the Commissioner?s regulations, the protections of that Part do not apply to their employment.

Further, the Commissioner found that neither deVente nor Jesenof established that the work that they performed was in the tenure area of elementary education. Part 30 of the Rules of the Board of Regents establishes the various subject tenure areas that must be used for teachers hired after August 1, 1975. In regard to the tenure area of elementary education, §30.5 of the Rules of the Board of Regents provides:

A professional educator who is employed to devote a substantial portion of his time to classroom instruction in the common branch subjects at the kindergarten (including pre-kindergarten) level and/or in any of the first six grades shall be deemed to serve in the elementary tenure area.

Section 30.1(g) of the Rules defines ?substantial portion of his time? as:

40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities.

While both deVente and Jesenof hold permanent certification in elementary education, the Commissioner said that they never devoted at least 40% of their work time to classroom instruction. Rather, the BOCES employed petitioners in its ?Center for Education Support and Technology.? As such, deVente and Jesenof never served in the elementary education tenure area while employed by the BOCES.

Accordingly, said the Commissioner, neither deVente nor Jesenof can now claim that they have more seniority in elementary education than respondents Mondolfi and Rankin.

The Commissioner then commented that ?Although I am constrained to dismiss this appeal, I note that when [deVente and Jesenof] commenced their employment with the BOCES, respondent board lacked the authority to offer them tenured positions as Professional Development Specialists. I remind respondent board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.?

In other words, the positions to which both deVente and Jesenof had been appointed jurisdictionally were in the classified service and therefore subject to position classification by the responsible civil service commission and subject to the relevant provisions of the Civil Service Law with respect to appointment, retention and related attributes of such an employment status in the public service.

The full text of the Commissioner?s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume48/d15822.htm

Full post as published by New York Public Personnel Law on September 05, 2008 (boomark / email).