Wednesday, May 22, 2013

A school district employee serving in a position in the Classified Service may not perform duties involving the supervision of pedagogical personnel unless he or she obtains the appropriate school leader certification

A school district employee serving in a position in the Classified Service may not perform duties involving the supervision of pedagogical personnel unless he or she obtains the appropriate school leader certification
Appeal of Johnny G. Destino, Decisions of the Commissioner of Education, Decision No. 16,461

Johnny G. Destino, a member of the Board of Education of the City School District of the City of Niagara Falls, appealed the school board’s appointment of Maria A. Massaro, Esq. (Massaro) to the position of Administrator for Human Resources, a position in the Classified Service.

Among the several issues addressed in this Decision of the Commissioner of Education was Destino’s challenge to Massaro’s appointment based on the allegation that Massaro unqualified to hold the Human Resources Administrator’s position because she lacked New York State certification as a School District Administrator (“SDA”).*

The school district's retiring Human Resources Administrator had sent an email dated October 18, 2010 to the Board containing the job description the position that had been adopted by the Municipal Civil Service Commission on March 22, 2007.

He also advised the school board that the posting of the vacancy dated September 13, 2010 reflected the 2007 job description and that “No changes were made to the job description.” The e-mail also reported that the minimum qualifications for the position were expanded to include candidates with a Bachelor’s degree and appropriate "HR experiences," thus permitting candidates for the position to come through either the certificated pathway (School Administrators with a Certificate) or the classified pathway (those candidates who would fall under Civil Service review).

The minimum qualifications attached to the 2007 job description were: “Graduation from a regionally accredited or New York State registered college or university with a Master’s degree and New York State permanent [SDA]certification and three (3) years experience in school administration or human resources” while the  expanded qualifications for the September 2010 job posting stated, in pertinent part:

1. A New York State permanent certification as a School District Administrator (SDA), School Administration and Supervisor (SAS), or New York Sate certification as a School District Leader (SDL) and three (3) years experience in school administration or human resources; or

2. Graduation from a regionally or New York State registered college or university with a Bachelor’s Degree including coursework in personnel management, labor relations, law or education and three (3) years experience in human resources management. 

The announcement also stated that "Additional education beyond a Bachelor’s Degree can be substituted for the required three (3) years experience. Experiences in the areas of labor relations, policy compliance, employee benefits and staff development may be used to fulfill the human resources requirement."

Noting that the position of "Human Resources Administrator" was not among the titles specifically listed in the Commissioner's certifications 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, the Commissioner explained that it such a position would only be considered a pedagogical position for which certification was required if it involved “the function of administration of teaching, i.e., supervision and direction of supervisors, principals and all other members of the teaching and supervisory staffs.”

The Commissioner noted that with one limited exception, the duties described for Human Resources Administrator did not involve supervision and direction of members of the teaching and supervisory staffs. Therefore, said the Commissioner, the position is not one whose routine duties squarely fall within the positions certified as pedagogical in Certification.**.

The Commissioner, however, found that among the 21 “typical work activities” set out in the job description, which remained unchanged notwithstanding the change in qualifications for appointment to the position, it “impermissibly included one pedagogical duty as part of the Human Resources Administrator position that would require an incumbent to possess certification pursuant to Part 80 of the Commissioner’s regulations” --  “[a]cts as chief school officer in the absence of the Superintendent and Deputy Superintendent of schools.”

Citing Education Law §3003(1); 8 NYCRR §80-2.4, the Commissioner said that “Although [the school district] disputes that this is a “primary” responsibility of the position, nonetheless, to the extent that Massaro could be required to act as chief school officer in the district in the absence of the superintendent or deputy superintendent and carry out the duties of those positions at any time, she would need to be properly certified. As Massaro is not a certified individual, she may not be assigned as acting superintendent as such a position clearly involves supervision and direction of pedagogical personnel.

However, in light of the facts that this [1] was only one of 21 listed job activities, [2] was not a routine function of the position and [3] would only apply as a contingency in the event of the absence of the superintendent and deputy superintendent, the Commissioner declined to annul Massaro’s appointment, finding that the proper remedy on these facts is to order the school district to remove “acting as chief school officer in the absence of the superintendent and deputy superintendent from Massaro’s duties as Human Services Administrator and [to] refrain from assigning her to serve as chief school officer unless she obtains the appropriate school leader certification.”

Turning to a procedural issue raised by the school district – the timeliness of the appeal – after determining that Destino’s appeal had been timely fined, the Commissioner noted that he “would decline to dismiss the appeal as untimely in any event, because the unlawful employment of an unqualified individual is a continuing wrong.”

Finally, the Commissioner considered the board requests a certificate of good faith “as to the individuals” named in the appeal as respondents pursuant to Education Law §3811(1).

Such certification is solely for the purpose of authorizing the board to defend and indemnify school district officers for legal fees and expenses incurred in defending a proceeding brought against them arising out of the exercise of powers or performance of their duties under the Education Law. Destino challenged only the actions of the board and the superintendent. Noting that “It is appropriate to issue such certification unless it is established on the record that the requesting individuals acted in bad faith,” the Commissioner said that on the record before him he would issue the requested certification for the limited purpose of Education Law §3811(1).

* In addition, Destino asserted that there was an appearance of, or actual, conflict of interest because Angelo Massaro, the board’s general counsel, is Maria A. Massaro’s father. Maria Massaro had been employed with the district since July 1, 1999 in various capacities, including attorney, in-house counsel, member of the administrative staff responsible for district policies and health care insurance, hearing officer and district negotiator in union negotiations.

** The school district received nine applications after posting employment notices in two newspapers, on the district's website, with the Orleans-Niagara Board of Cooperative Educational Services and with an Association for personnel administration.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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