The rule was adopted by emergency action on April 21, 2009, effective May 1, 2009. A Notice of Proposed Rule Making was published in the State Register on May 13, 2009. Below is a summary of written comments received by the State Education Department concerning the emergency rule and the Department’s assessment of these comments.

COMMENT #1: One commenter stated that the rule adopted by the Board of Regents at their April 2009 meeting ignores the concerns of BOCES, due to the differences in the way BOCES and school districts employ teachers to provide instructional support services. The commenter noted that BOCES hire and assign instructional support staff to provide specialized services to component school districts under cooperative service agreements (CO-SERS) while districts often assign already-employed classroom teachers to instructional support service positions. The commenter believes that, in the event of staff cuts, the new rule will have a negative impact on the quality of BOCES services and their customer relationships with component school districts, and that it is unfair to the individuals BOCES hire. The commenter requested that the emergency regulations be revised so that either BOCES and school districts are treated differently or BOCES staff are covered by a grandfathering clause. Further, the commenter requested an in-depth analysis of the impact on BOCES.

RESPONSE #1: These comments reflect the concerns of some of the BOCES district superintendents. Prior to the April Regents meeting, the Department engaged in extensive consultation with representatives of the district superintendents, New York State United Teachers, Council of State School Superintendents, School Administrators Association of New York State, the New York State School Boards Association, and others to explore potential solutions for the inclusion of individuals performing instructional support services in a school district or BOCES as part of the teaching staff. The primary options discussed were to either create new tenure areas for teachers performing instructional support duties or to credit teachers for the performance of duties in instructional support services in their existing tenure area or if they did not already have one, in a tenure area in which they are properly certified.

After extensive discussions, it became clear that not all parties could agree on one approach. The majority of parties favored crediting teachers for the performance of instructional support services in their existing tenure area or if they did not already have one, in a tenure area for which they are properly certified. Based upon meetings with BOCES district superintendents, the majority of BOCES district superintendents recommended this solution; although, there were some BOCES district superintendents who recommended the solution of creating new tenure areas. The determination of the Board of Regents to adopt these regulations at their April 2009 meeting was based upon the following principles:

• Many teachers are selected for an assignment in instructional support services based on expertise gained from years of quality service to the district and possibly additional education or training attained. These teachers literally “bubble up” from the ranks of the various teaching areas as a result of exemplary service. It, therefore, makes sense to treat these additional responsibilities as an extension of their teaching duties and permit them to remain in their tenure area and continue to accrue seniority while performing instructional support services.

• This approach provides for flexibility in assignments within the same tenure area so that school leaders can best utilize their teaching workforce.

• Grandparenting provisions provide equitable relief to tenured teachers who accepted instructional support positions in good faith and were appointed by their school district or BOCES to one of the existing tenure areas in Part 30 of the Rules of the Board of Regents or to a tenure area that does not currently exist in the Rules of the Board of Regents.

At the time that the emergency rules were adopted, all parties agreed that it was absolutely necessary to have rules in place so that school districts and BOCES would be able to follow a set of rules as they implemented the reduction in force for the 2009-10 school year. While the rules that were put in place satisfied the majority of school districts and BOCES, they did not address the concerns of all BOCES.

The Senior Deputy Commissioner, in her ongoing discussions with the district superintendents, has asked the district superintendents to provide documentation of the problems that have occurred as a result of implementation of the emergency Regents Rules. While the Department does not anticipate recommending to the Regents any retroactive change to the rules, the concerns expressed by some of the BOCES need to be fully explored to determine if prospective changes in the tenure rules or the Education Law are necessary for certain instructional support services positions in the BOCES.

COMMENT #2: A second commenter concurred with concerns of the first regarding what they see as the negative impact on some BOCES, particularly those that contract with the Department to be the LEA for essential functions. The commenter stated that the emergency rule diminishes the work that BOCES do to improve student achievement on behalf of the Department and will result in teachers being placed in classrooms and in instructional support positions where they have no experience.

RESPONSE #2: The response provided to Comment #1 applies to this comment as well. The essence of Comment #2 appears to be that some teachers may be placed in classroom assignments or instructional support assignments where they have no work experience. SED agrees that this is a possibility as a result of the new rules. However, at the time these regulations were adopted, it was understood that this was a potential consequence and there was agreement by most of the interested parties that these positions should be part of the teaching force of a school district or BOCES.

COMMENT #3: A third commenter requested reconsideration of the rule because of what they feel will be unintended negative consequences for employees and employers. The commenter requested that the Regents delay implementation of the emergency measure in order to give serious consideration to adding the option of a new tenure area for teachers serving in instructional support positions and to allow more time to collect information regarding the impact of the rule.

RESPONSE #3: The implementation of the emergency regulations adopted by the Regents in April of this year has proceeded with school districts and the majority of BOCES satisfied with the provisions of these new rules and regulations. Some of the BOCES organizations have experienced problems based on the provisions of the new regulations in combination with statutory provisions which apply to a reduction in force. To delay the implementation of these regulations would not provide for a satisfactory solution for all districts and BOCES.

One of the considerations upon which all interested parties involved in the consultation process prior to the April Regents meeting were in agreement, was that there needed to be Regents Rules that would provide for how teachers performing instructional support services duties should be treated in a reduction in force situation. Even though all parties could not unanimously agree on exactly the approach to be used in those rules, they did agree that the Regents and SED should not force school districts and BOCES into a situation of coping with necessary reductions in force without giving them Rules to follow. Accordingly, the Department recommended, and the Regents adopted, emergency Rules in April which gave guidance to all school districts and BOCES for any required reductions in force.

As mentioned in response #1 above, based on meetings with the district superintendents, the majority of the BOCES district superintendents have found the emergency regulations acceptable. It is a smaller group of BOCES where operational problems have been identified and the concerns expressed by such BOCES need to be fully explored to determine if prospective changes in the tenure rules or the Education Law might be necessary for certain instructional support services positions in the BOCES.

COMMENT #4: A fourth commenter pointed out that BOCES professional development positions have distinctive job qualifications that differ from those of classroom teachers, although they may hold the same certification. The commenter stated that the new requirements will create havoc with BOCES ability to staff and retain these CO-SER positions. The commenter provided a possible scenario in which, in the event of layoffs, a classroom teacher with no experience in providing instructional support may bump the incumbent in an instructional support position. The commenter predicts an adverse impact on BOCES employees and the continued delivery of certain BOCES services, stating that the new rule takes away flexibility in recruiting and retaining qualified staff development specialists and may have the effect of shifting who is laid off from areas of actual reduction in force to other divisions in the BOCES organization. The commenter noted that this sets teachers up for potential failure when placed in positions based on tenure alone. The commenter urges the Regents to seek alternative tenure structures that recognize BOCES as a unique service provider that needs flexible staffing options.

RESPONSE #4: Response #2, above, is also applicable to this fourth comment. In addition, part of this comment relates to the situation that existed prior to the Commissioner’s August 2008 decision in a Section 310 appeal and the Regents resulting emergency regulations adopted in April 2009. The situation that existed prior to August 2008 was problematic in that, as clarified by the Commissioner’s 310 decision, individuals performing instructional support services were not considered to be part of the teaching workforce of a school district.

There was substantial confusion in school districts and BOCES in regard to the employment status of such individuals. In some cases, individuals were hired as permanent Civil Service employees. In other cases, they were hired as teachers and appointed to tenure areas which did not exist, or they were hired as teachers and appointed to a tenure area for which they were properly certified, or in some cases, individuals were hired as teachers but not granted tenured appointments. Needless to say, this created substantial confusion over the rights and responsibilities of both employers and employees in these situations. It became clear after the Commissioner’s August 2008 decision on the Section 310 appeal that there needed to be clarification as to whether teachers employed to perform instructional support services were part of the teaching service of a school district or whether they were classified Civil Service employees that did not require a teaching certificate. After consultation with all interested parties, there was a consensus that these positions were, in fact, teaching positions and should be part of the teaching service of a school district or BOCES.

Once having determined that these positions are part of the teaching service, it follows that appointment to such positions must be made in accordance with the Education Law and that probationary appointments should be made and tenure and seniority rights provided, in accordance the Education Law and the Rules of the Board of Regents.

However, as mentioned in the earlier responses to the above comments, some of the BOCES have expressed concerns as to the negative impact on BOCES programs for component school districts when a reduction in force situation occurs and teachers performing instructional support services are credited with seniority in their existing tenure area or a tenure area for which they are properly certified. The Department believes that it is appropriate to continue to investigate exactly the nature of the problems that have occurred and determine whether prospective changes in the tenure rules or the Education Law might be necessary to address certain instructional support services positions in the BOCES.