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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
October 19, 2010
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.”
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on
The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Challenging Adverse Personnel Decisions
- COVID-19 - New York State maps and data
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- St. Lawrence County Civil Service Web Site
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