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October 19, 2010

Are school counselors teachers?

Are school counselors teachers?
North Tonawanda CSD v Mills, App. Div. 3rd Dept., 263 AD2d 574, Motion for leave to appeal denied, 94 NY2d 751

Teachers have many rights and entitlements under the Education Law. Should school counselors and social workers be considered teachers when determining their rights and benefits? Generally, the answer is no, as the North Tonawanda case shows.

Effective September 1996, the North Tonawanda City School District discontinued using the Orleans-Niagara BOCES to provide counseling and social work services to its special education students in favor of using its own employees to provide such services. The district appointed eight former BOCES employees for this purpose.

Seven of these former BOCES employees were certified school social workers; the eighth was a school counselor.

The appeal concerned the district’s denial of certain prior service credits for salary purposes and sick leave credits granted to the eight former BOCES employees upon their appointment by the district.

While at BOCES, the employees’ salaries reflected both their service and experience prior to their being employed by BOCES, together with their actual years of service at BOCES. When appointed by the district they were only given service credit for salary purposes for their actual BOCES service; no service credit was allowed for any pre-BOCES employment. In addition, the eight were not credited with any “BOCES sick leave” accruals.

The eight claimed that the district’s decision violated their rights under Section 3014-b (3) of the Education Law, which sets out the rights of teachers where a school district has taken over a program formerly operated by a BOCES. However, the term “teacher” is not defined in Article 61, where Education Law Section 3014-b is found.

The eight appealed to the Commissioner of Education. The then-Acting Commissioner ruled in favor of the employees and ordered the district to place them at the same salary step they had at BOCES and give them their BOCES sick leave credits.

North Tonawanda appealed the Acting Commissioner’s determination, contending that the former BOCES employees were not teachers and, therefore, not entitled to the rights given BOCES teachers by Education Law Section 3014-b. A State Supreme Court judge agreed and annulled the Acting Commissioner’s determination and the employees, together with the Department of Education, appealed. The Appellate Division concurred with the lower court, holding that counselors and social workers are not “teachers” for purposes of Section 3014-b.

The Appellate Division noted that the Legislature recently amended Section 3014-b to include “teaching assistants and teachers’ aides.” This, said the court, indicates that the term “teacher” has a very narrow meaning for the purposes of Section 3014-b.

The court also cited Fink v Avon Central School District, 207 AD2d 973, in which the Appellate Division, 4th Department, concluded that “the position of school psychologist does not fall within the scope of the term ‘teacher’ as used in Education Law Section 3014-b”. Because the positions of school psychologist, social worker and counselor are similar, the Fink decision suggested that school social workers and counselors are not “teachers.”
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