1. The title of Part 30 is amended, effective October 9, 2008, to read as follows:

Part 30

Tenure [Areas]

2. Each respective section of Part 30 of the Rules of the Board of Regents is renumbered to be a respective section of a new Subpart 30-1 of the Rules of the Board of Regents, effective October 9, 2008.

3. The title of new Subpart 30-1 is added, effective October 9, 2008, to read as follows:

4. Subdivision (h) of renumbered section 30-1.1 is amended, effective October 9, 2008, to read as follows:

(h) Tenure area means the administrative subdivision within the organizational structure of a school district in which a professional educator is deemed to serve in accordance with the provisions of this [Part] Subpart.

5. Renumbered section 30-1.2 is amended, effective October 9, 2008, to read as follows:

30-1.2 Applicability.

(a) The provisions of this [Part] Subpart shall apply to all probationary appointments to professional education positions made by a board of education or a board of cooperative educational services by resolution on or after August 1, 1975 and to appointments on tenure based upon such probationary appointments.

(b) Each board of education or board of cooperative educational services shall on and after the effective date of this [Part] Subpart make probationary appointments and appointments on tenure in accordance with the provisions of this [Part] Subpart.

(c) This [Part] Subpart shall not be applicable to city school districts located within cities having a population in excess of 400,000 inhabitants or to school districts employing fewer than eight teachers.

6. Subdivisions (a), (c) and (d) of renumbered section 30-1.9 are amended, effective October 9, 2008, to read as follows:

(a) A board of education or a board of cooperative educational services shall appoint and assign a professional educator in such a manner that he shall devote a substantial portion of his time throughout the probationary period in at least one designated tenure area except that a professional educator who teaches in an experimental program as defined in subdivision (i) of section [30.1] 30-1.1 of this [Part] Subpart and who does not devote 40 percent or more of his time to service in any one tenure area may be appointed to a tenure area for which he holds the proper certification.

(c) If a professional educator possesses certification appropriate to more than a single tenure area and the board of education or board of cooperative educational services proposes at the time of initial appointment to assign such individual in such a manner that he will devote a substantial portion of his time during each of the school years constituting the probationary period in more than one of the tenure areas established by this [Part] Subpart, the board shall in its resolution of appointment designate each such tenure area and shall thereafter separately confer or deny tenure to such individual in the manner prescribed by statute in each designated tenure area.

(d) Where a board of education or board of cooperative educational services proposes to assign a professional educator having tenure or in probationary status in a tenure area created by this [Part] Subpart in such a manner that he will devote a substantial portion of his time in a tenure area to which he has not previously been appointed, the board shall prior to such assignment confer a probationary appointment in accordance with section [30.3] 30-1.3 of this [Part] Subpart, designating such additional tenure area. Thereafter, the board shall separately confer or deny tenure to such individual in the designated tenure area in the manner prescribed by statute.

7. Renumbered section 30-1.10 is amended, effective October 9, 2008, to read as follows:

Where a professional educator acquires tenure in a tenure area created by this [Part] Subpart, he shall retain such tenure while he remains continuously employed by the board of education or board of cooperative educational services as a full-time member of the professional staff of the district, notwithstanding subsequent appointments to tenure or to probation in other tenure areas.

8. Renumbered section 30-1.12 is amended, effective October 9, 2008, to read as follows:

Subject to the provisions of sections 2510 and 2585 of the Education Law, where a board of education, on or after the effective date of this [Part] Subpart, modifies the organizational structure of a school in such a manner that instruction in the core academic subjects is departmentalized in a grade or grades previously taught by professional educators deemed to serve in the middle grades tenure area, each tenured professional educator or probationer serving in such grade or grades at the time of such departmentalization shall retain such status and shall be eligible to teach any core academic subject or special subject for which such professional educator possesses appropriate certification; provided that such tenure shall pertain only to grade levels not higher than those formerly associated with the middle grades tenure area in such school district.

9. Subdivision (c) of renumbered section 30.13 is amended, effective October 9, 2008, to read as follows:

(c) Should the individual so identified have tenure or be in a probationary status in additional tenure areas created by this [Part] Subpart, he shall be transferred to such other tenure area in which he has greatest seniority and shall be retained in such area if there is a professional educator having less seniority than he in such other tenure area.

10. A new Subpart 30-2 is added, effective October 9, 2008, to read as follows:

11. Item (vi) of subclause (1) of clause (b) of subparagraph (iii) of paragraph (2) of subdivision (o) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective October 9, 2008, as follows:

(vi) student assessment, the teacher shall demonstrate that he or she implements assessment techniques based on appropriate learning standards designed to measure students' progress in learning and that he or she successfully utilizes analysis of available student performance data (for example: State test results, student work, school-developed assessments, teacher-developed assessments, etc.) and other relevant information (for example: documented health or nutrition needs, or other student characteristics affecting learning) when providing instruction.

Since publication of a Notice of Proposed Rule Making in the State Register on April 2, 2008, the following substantial revisions were made to the proposed rule:

The rule was revised, in response to Chapter 57 to the Laws of 2008, to state that Subpart 30-2, relating to teacher tenure determinations, shall only apply to the extent Education Law § 3012-b remains in effect.

In order to conform to Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008, the rule was revised to reflect that the provisions of Subpart 30-2 shall apply to tenure determinations for teachers of all school districts and boards of cooperative educational services whose probationary periods commence on or after July 1, 2008; as opposed to tenure determinations made on or after July 1, 2008 as required under the previous version of the rule.

Section 30-2.3(b) of the rule was revised to delete the reference to “but need not be limited to”, in order to conform to the requirements of 3012-b of the Education Law and to state that the process for evaluation of a teacher for tenure shall include a combination of the minimum standards set forth in paragraphs (1), (2) and (3) of subdivision (b) of this section.

Sections 30-2.3(b)(1) and 100.2 of the previous version of the rule were revised to amend the phrase “such as” to “for example”.

Section 30-2.3(b)(1) was also revised to prohibit teachers from being granted or denied tenure based on student performance data, in order to conform with Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008.

The above revisions to the proposed rule require that the “Statutory Authority”, “Legislative Objectives”, “Needs and Benefits”, “Costs”, “Local Government Mandates”, and “Compliance Schedule” sections of the previously published Regulatory Impact Statement be revised to read as follows:

1. STATUTORY AUTHORITY:

Section 207 of the Education Law grants general rule making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Section 3012-b of the Education Law, as added by Section 9 of Part A of Chapter 57 of the Laws of 2007 and amended by Chapter 57 of the Laws of 2008, establishes the minimum standards for tenure determinations for teachers whose probationary period commences on or after July 1, 2008.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the legislative objectives of the above- referenced statutes by establishing minimum standards for tenure determinations for teachers whose probationary period commences on or after July 1, 2008.

3. NEEDS AND BENEFITS:

The purpose of the proposed amendment is to implement the requirements of Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008, by establishing the minimum standards for tenure determinations for teachers whose probationary period commences on or after July 1, 2008.

4. COSTS:

(a) Costs to State government: The proposed amendment will not impose any additional costs on State government, including the State Education Department.

(b) Costs to local governments: Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008, may impose costs on local governments, over and above the current costs for making tenure determinations, depending on the current practices followed by school districts and BOCES. However, the proposed amendment will not impose any additional costs, beyond those imposed by the statute.

(c) Costs to private regulated parties: The proposed amendment will not impose any additional costs on private regulated parties, beyond those imposed by the statute.

(d) Costs to regulating agency for implementing and continued administration of the rule: As stated above in “Costs to State Government,” the amendment will not impose any additional costs on the State Education Department beyond those imposed by statute.

5. LOCAL GOVERNMENT MANDATES:

Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008, requires a superintendent of schools or district superintendent of schools, to evaluate all relevant factors prior to recommending a teacher for tenure, including an evaluation of the candidate's effectiveness over the applicable probationary period, or over three years in the case of a regular substitute with a one-year probationary period, in contributing to the successful academic performance of his or her students.

Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008, requires all school districts and boards of cooperative educational services, when evaluating a teacher for tenure to: (1) evaluate the extent to which the teacher successfully utilized analysis of available student performance data and other relevant information when providing instruction but the teacher shall not be granted or denied tenure based on student performance data; (2) consider peer review by other teachers, as far as practicable; and (3) provide an assessment of the teacher's performance by the teacher's building principal or other building administrator. The proposed amendment aligns the Regents Rules with the statutory requirements and requires the use of the Annual Professional Performance Review criteria set forth in Section 100.2 of the Regulations of the Commissioner of Education in tenure determinations, which has been a regulatory requirement since 2000.

Consistent with the statute, the proposed Rule would permit the consideration of locally developed standards. This approach would not prescribe the types of locally developed standards designed to measure a teacher's effectiveness in contributing to the successful academic performance of his or her students but does prohibit a teacher being granted or denied tenure based on student performance data. Such locally developed standards may or may not be mandatory subjects of collective bargaining.

The proposed amendment further clarifies that school districts and BOCES shall, when making a tenure determination, consider available student performance data (for example: State test results, student work, school-developed assessments, etc.) and other relevant information (for example: documented health or nutrition concerns or other student characteristics affecting learning) but the teacher shall not be granted or denied tenure based on student performance data.

To be consistent with the new statute, an amendment was also made to Section 100.2 of the Regulations of the Commissioner of Education, to the “student assessment” factor of the Annual Professional Performance Review regulations to explicitly mention the teacher's use of available student performance data and other relevant information when providing instruction.

10. COMPLIANCE SCHEDULE:

School districts and boards of cooperative educational services will be required to comply with the proposed amendment on its stated effective date in order to comply with section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008.

Since publication of a Notice of Proposed Rule Making in the State Register on April 2, 2008, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement filed herewith.

The above revisions to the proposed rule require that the “Small Businesses”, “The Effect of the Rule” and the “Compliance Requirements for Local Governments” sections of the previously published Regulatory Flexibility Analysis be revised to read as follows:

(a) Small Businesses:

The proposed amendment applies to school districts and boards of cooperative educational services (BOCES) and relates to standards for teacher tenure determinations in order to implement the requirements of section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008. The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

(b) Local governments:

1. EFFECT OF RULE:

The proposed amendment applies to the 698 school districts and seven BOCES located in New York State and relates to standards for teacher tenure determinations in order to implement the requirements of section 3012-b of the Education Law, as amended by Chapter 57of the Laws of 2008.

2. COMPLIANCE REQUIREMENTS:

Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008, requires a superintendent of schools or district superintendent of schools, to evaluate all relevant factors prior to recommending a teacher for tenure, including an evaluation of the candidate's effectiveness over the applicable probationary period, or over three years in the case of a regular substitute with a one-year probationary period, in contributing to the successful academic performance of his or her students.

Section 3012-b of the Education Law requires all school districts and BOCES, when evaluating a teacher for tenure to: (1) evaluate the extent to which the teacher successfully utilized analysis of available student performance data and other relevant information when providing instruction but the teacher shall not be granted or denied tenure based on student performance data; (2) conduct peer review by other teachers, as far as practicable; and (3) provide an assessment of the teacher's performance by the teacher's building principal or other building administrator. The proposed amendment aligns the Regents Rules with the statutory requirements and requires the use of the Annual Professional Performance Review criteria set forth in Section 100.2 of the Regulations of the Commissioner of Education when making tenure determinations, which has been a regulatory requirement since 2000.

The proposed amendment also clarifies that school districts and BOCES shall consider available student performance data (for example: State test results, student work, school-developed assessments, etc.) and any other relevant information (for example: documented health or nutrition concerns, or other student characteristics affecting learning) when making teacher tenure determinations but the teacher shall not be granted or denied tenure based on student performance data.

To be consistent with the new statute, an amendment was also made to Section 100.2 of the Regulations of the Commissioner of Education, to the “student assessment” factor of the Annual Professional Performance Review regulations, to explicitly mention the teacher's use of student performance data and other relevant information when providing instruction but the teacher shall not be granted or denied tenure based on student performance data.

Since publication of a Notice of Proposed Rule Making in the State Register on April 2, 2008, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement filed herewith.

The above revisions to the proposed rule require that the “Reporting, Recordkeeping, and other Compliance Requirements and Professional Services” and “Costs” sections of the previously published Rural Area Flexibility Analysis be revised to read as follows:

2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008, requires a superintendent of schools or district superintendent of schools, to evaluate all relevant factors prior to recommending a teacher for tenure, including an evaluation of the candidate's effectiveness over the applicable probationary period, or over three years in the case of a regular substitute with a one-year probationary period, in contributing to the successful academic performance of his or her students.

Section 3012-b of the Education Law requires all school districts and BOCES, when evaluating a teacher for tenure to: (1) evaluate the extent to which the teacher successfully utilized analysis of available student performance data and other relevant information when providing instruction but the teacher shall not be granted or denied tenure based on student performance data; (2) conduct peer review by other teachers, as far as practicable; and (3) provide an assessment of the teacher's performance by the teacher's building principal or other building administrator. The proposed amendment aligns the Regents Rules with the statutory requirements and requires the use of the Annual Professional Performance Review criteria set forth in Section 100.2 of the Regulations of the Commissioner of Education when making tenure determinations, which has been a regulatory requirement since 2000.

The proposed amendment also clarifies that school districts and BOCES shall consider available student performance data (for example: State test results, student work, school-developed assessments, etc.) and any other relevant information (for example: documented health or nutrition concerns or other student characteristics affecting learning) when providing instruction but the teacher shall not be granted or denied tenure based on student performance data.

To be consistent with the new statute, an amendment was also made to Section 100.2 of the Regulations of the Commissioner of Education, to the “student assessment” factor of the Annual Professional Performance Review regulations, to explicitly mention the teacher's use of student performance data to inform future instruction.

The amendment does not impose recordkeeping requirements or require candidates seeking certification to retain professional services in order to comply.

3. COSTS:

Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008, may impose costs on private regulated parties, over and above the current costs for making tenure determinations, depending on the current practices followed by school districts and BOCES. However, the proposed amendment will not impose any additional costs, beyond those imposed by the statute.

Since publication of the Notice of Proposed Rule Making in the State Register on April 2, 2008, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement filed herewith.

The proposed rule, as so revised, relates to teacher tenure determinations. The revised rule will not have a substantial adverse impact on job or employment opportunities. Because it is evident from the nature of the revised rule that it will have no impact on jobs or employment opportunities, no further measures were taken. Accordingly, a job impact statement is not required and one has not been prepared.

The agency received no public comment.