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Decision No. 13,148

Appeal of PETER ROSENSTEIN, as President of the Plainedge Supervisors' Association, and MAXINE ARGIZ, RUBEN FRIEDMAN, WILLIAM HODINSKY, CLEMENT PANE AND CAROLE REECE from action of the Board of Education of the Plainedge Union Free School District and the Plainedge Federation of Teachers relating to the Excellence in Teaching apportionments.

Decision No. 13,148

(April 8, 1994)

Robert Saperstein, Esq., attorney for petitioners

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich and Scricca, Esqs., attorneys for respondent Board of Education, Lawrence W. Reich, Esq., of counsel

Schlachter & Mauro, attorneys for respondent Plainedge Federation of Teachers, David Schlachter, Esq., of counsel

SOBOL, Commissioner.--Petitioners, the President of the Plainedge Supervisors' Association (PSA) and five individual supervisors, challenge the denial by respondent Board of Education of the Plainedge Union Free School District of supervisors salary increases from Excellence in Teaching (EIT) apportionments. Respondent Plainedge Federation of Teachers (PFT) cross-appeals, requesting that the board of education distribute certain EIT funds held in escrow to the members of the PFT bargaining unit. The appeal and cross-appeal must be dismissed.

PSA is the collective bargaining representative for supervisors in the Plainedge Union Free School District. The supervisors are administrative or supervisory personnel who serve as department chairpersons and teach up to two classes per day under a teaching certificate. Article IV of the collective bargaining agreement between the PSA and respondent board of education for July 1, 1988 to January 30, 1991 contains a provision for the computation of the salary of supervisors:

Salary - Effective July 1, 1988, annual salaries for Department Supervisors shall be determined by adding the following percentages to Step 20 of the Master's plus 60 column on the teacher salary schedule:

Step 1 - None

Step 2 - 3%

Step 3 - 5%

Step 4 - 7%.

Although petitioners request that I order the distribution of EIT funds to supervisors for school years subsequent to January 30, 1991, there is no evidence in the record before me that this contract language appears in any subsequent collective bargaining agreement.

Since the inception of the EIT apportionments in the 1988-89 school year, respondent board of education has placed a portion of its EIT apportionments in escrow, in amounts representing the pro rata share to which supervisors would be entitled based on the number of periods they taught. This was done in response to litigation over the constitutionality of the definition of "eligible teacher" in 8 NYCRR 175.35(e)(1)(i), which culminated in the decision of the Court of Appeals in Schneider v. Sobol, 76 NY2d 309. There does not appear to be any dispute over the amounts held in escrow.

Petitioners claim that they are "eligible teachers" as defined in 8 NYCRR 175(e)(1)(i), which provides in pertinent part:

eligible teacher shall mean a school employee who provides nonsupervisory educational services ... to pupils in grades kindergarten through 12 ... under one of the following teachers' certificates ... provided that such term shall not include a school employee who is compensated under an administrative or supervisory salary schedule ....

Petitioners assert that they are compensated for their teaching duties under a teachers' salary schedule, rather than an administrative or supervisory salary schedule, and, therefore, are eligible teachers. Respondents contend that under Article IV of the PSA collective bargaining agreement, supervisors are actually compensated as administrators, since their salaries are not determined by adding a stipend for administrative duties to the salary to which they would be entitled as a full-time teacher based on their longevity and education.

A professional educator who teaches under a teachers' certificate other than a certificate for administrative and supervisory service and is compensated as a teacher for performing teacher services and receives a stipend for administrative duties, is an eligible teacher within the meaning of 8 NYCRR 175.35(e)(1)(i) (Appeal of Paradise, 30 Ed Dept Rep 24; Appeal of Carlin, 32 id. 222). In this case, Article IV of the PSA collective bargaining agreement contains a cross-reference to a particular step on the teachers' salary schedule, and computes the base salary of a supervisor as if the supervisor were a teacher with a Master's degree plus sixty credits and had the years of service required for a teacher at step 20 of the teachers' salary schedule. A percentage increase is then added, based on years of service as a supervisor.

I find that petitioners were compensated for the 1988-89, 1989-90 and 1990-91 school years under an administrative or supervisory salary and, therefore, were not eligible to receive EIT salary increases. The EIT apportionment statutes are not intended to provide salary supplements to administrators or supervisors who are compensated for teaching at the higher salary rate payable to administrators (Schneider v. Sobol, supra). Although the PSA collective bargaining agreement contains a reference to the teachers' salary schedule, such reference is to an arbitrary step and column in the teachers' salary schedule without regard to the education or years of service as a teacher that the particular supervisor actually possesses. Unlike the situation in Appeal of Carlin, supra, the supervisor is not being paid at the salary rate he or she would receive as a teacher, with an additional stipend for administrative duties performed. This type of arbitrary cross-referencing or indexing to the highest teachers' salary payable is obviously intended to assure that supervisors will always receive a higher salary than a teacher. Absent proof that all supervisors are being paid the same salary for their teaching duties that they would receive as teachers, the mere existence of a cross-reference to a teachers' salary schedule does not convert an administrators' salary to a teachers' salary.

On the present record, I have no basis for determining the petitioners' eligibility for EIT supplements for the 1991-92 or subsequent school years. Presumably, supervisors could be eligible teachers if they are compensated as teachers for their teaching duties under their subsequent collective bargaining agreements.

Finally, respondent PFT's request that I direct the board of education to distribute the EIT funds held in escrow to PFT members must be denied. Under 8 NYCRR 175.35 (e)(2), the board of education is required to allocate the EIT funds among all bargaining units representing eligible teachers. Respondent PFT has failed to establish that it represents the only bargaining unit in the district containing eligible teachers. Rather than direct respondent board of education to distribute the escrowed funds to PFT members, therefore, I will direct respondent to allocate funds to each bargaining unit containing eligible teachers in accordance with 8 NYCRR 175.35(e)(2) and this decision.

THE APPEAL IS DISMISSED.

IT IS ORDERED that respondent Board of Education of the Plainedge Union Free School District, within 30 days of receipt of this decision, allocate the EIT funds held in escrow for the school years 1988-89, 1989-90 and 1990-91 among the collective bargaining units representing eligible teachers in accordance with 8 NYCRR 175.35(e)(2) and this decision.

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