Employment Law – Some Bargaining and Non ‐ Bargaining Issues Presented by: John H. Gross, Esq. Gregory J. Guercio, Esq. Ingerman Smith, LLP Guercio & Guercio, LLP 150 Motor Parkway, Ste. 400 77 Conklin Street Hauppauge, NY 11788 Farmingdale, NY 11735 (631) 261 ‐ 8834 (516) 694 ‐ 3000 Eugene Barnosky, Esq. Jeffrey D. Honeywell, Esq. Lamb & Barnosky, LLP Honeywell Law Firm, PLLC 534 Broadhollow Rd., Ste. 210 3 Winners Circle, Ste. 200 Melville, NY 11747 Albany, NY 12205 (631) 694 ‐ 2300 (518) 512 ‐ 4580 Collective Bargaining Implications of New York’s ESSA Plan 1
Background to ESSA (The Every Student Succeeds Act) • Federal Reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA) – provides federal funds to states to improve public elementary of secondary education. • ESSA Supersedes the No Child Left Behind Act of 2001 (NCLB) • President Obama signed into law on December 10, 2015 • Final Federal Regulations Issued November 29, 2016, and were effective January 30, 2017 • 81 FR 86076 ‐ 86248 ESSA Goals • As a condition of this federal funding, states and school districts are required to take certain actions to ensure all children are provided the education they need for future success. • Intended to provide significantly more flexibility to states and LEAs than NCLB, especially in terms of standards, accountability, and educator evaluation systems. 2
New York State ESSA Plan • In order to receive funds under ESSA, states must develop and submit an ESSA accountability plan to the U.S. DOE. • New York State submitted its ESSA Plan on September 17, 2017 to the U.S. DOE for review. • U.S. DOE approved the plan in January 2018. SED Implementation of New York’s ESSA Plan • At its April 2018 meeting the Board of Regents voted to authorize SED to publish, with a 60 ‐ day comment period, proposed amendments to §§100.2(ff), 100.18, 100.19 and Part 120 of the Commissioner’s Regulations and a new §100.21 of the Commissioner’s Regulations in order to implement New York’s ESSA Plan. • A Notice of Proposed Rulemaking was published in the State Register on May 9, 2018. • Based on public comments, revisions were made to the proposed amendments to the Regulations. • At its June 2018 meeting, the Board of Regents adopted the revised proposed amendments and new Regulations as an emergency measure, effective July 1, 2018. • The Notice of Emergency Adoption and Revised Rulemaking was published in the State Register on July 18, 2018 with an additional 30 ‐ day comment period. 3
Public Comment • According to SED, from May 9, 2018 through August 17, 2018 approximately 1,900 comments were received, more than 1,400 of which were submitted as part of four form letter campaigns. • Most of the comments concerned requirements in the Regulations related to student participation in state assessments • However, one of these form letter campaigns was in opposition to certain provisions of the amended and new Regulations that the commentators believed impinged upon decisions that should be addressed in collective bargaining • These collective bargaining comments were addressed in the revisions to the proposed amendments adopted by the Board of Regents as an emergency measure at its July meeting. • http://www.regents.nysed.gov/common/regents/files/918P1 2A6REVISED.pdf Additional Revisions and Amendments • On September 14, 2018 SED announced that it would be presenting to the Board of Regents at its September 2018 meeting additional revisions and changes to the Regulations, again based on public comments. • These September revisions primarily related to issues surrounding student participation in state assessments • At its September 18, 2018 meeting the Board of Regents adopted as a second emergency action, the revised amendments to the Commissioner’s Regulations to implement the State’s approved ESSA Plan effective as of September 18, 2018. • SED anticipates that the amendments will be presented for permanent adoption at the December 2018 Board of Regents meeting after publication of Notice of Emergency Adoption and Revised Rulemaking in the State Register on October 3, 2018 and expiration of a new 30 ‐ day public comment period. 4
School and District Accountability and Support and Interventions for Designated Schools – Section 100.21: ESSA Accountability System • The amendments to the Commissioner’s Regulations implement the new accountability system and support and interventions set forth in the State’s approved ESSA Plan commencing with the 2018 ‐ 2019 school year. New York’s Approved ESSA Plan Includes New Accountability and Support and Interventions (continued) • Section 100.2(e): each school year, commencing with the 2017 ‐ 2018 school year results, the Commissioner shall review the performance of all public schools and school districts in the State and determine whether such public schools shall be identified as a: • Comprehensive Support and Improvement (CSI) School, or a • Targeted Support and Improvement (TSI) School, and/or • whether each school district shall be identified as a Target District 5
Collective Bargaining Implications For CSI Schools • CSI Schools Must, as a Required Intervention Include, among other things, in its school comprehensive education plan, • A description of goals, targets, and activities, and include timelines for the implementation of school ‐ level evidence ‐ based interventions and job ‐ embedded professional development • Section100.21(i)(1)(i)(b)(6) • limit incoming teachers transfers to teachers rated effective or highly effective pursuant to Education Law 3012 ‐ d by a school district in the previous school year, subject to collective bargaining as required under article 14 of the Civil Service Law, and require that any successor collective bargaining agreement authorize such transfers unless otherwise prohibited by law • Section 100.21(i)(1)(i)(c) Job ‐ Embedded Professional Development • Job ‐ embedded professional development means: Professional development for teachers and leaders that is informed by the results of comprehensive needs assessment or progress needs assessment of the school and by the teacher or leader evaluation system and any applicable supports, and addresses identified teacher and student needs • Section 100.21(b)(3)(ix) 6
Collective Bargaining Implications For TSI Schools • TSI Schools Must, as a Required Intervention • Develop a school comprehensive education plan that, among other things, includes timelines for the implementation of school ‐ level evidence ‐ based interventions and job ‐ embedded professional development • Section 100.21(i)(2)(b)(6) Collective Bargaining Implications for Target Districts • Target Districts must develop a district comprehensive improvement plan that, among other things, • Includes a description of the goals, targets, and activities, and include timelines for the implementation of interventions and professional development that address the needs identified by the district and school needs assessment • Section 100.21(i)(3)(i)(b) 7
Schools Under Registration Review (SURR) • The Commissioner • shall place under preliminary registration review schools identified for receivership; and • may place under preliminary registration review any school identified as a CSI school for • at least 3 consecutive years; or • schools that have conditions that threaten the health, safety, and/or educational welfare of students; • or has been the subject of persistent complaints to SED by parents and has been identified by the Commissioner as a poor learning environment based on a combination of factors affecting student learning; or • Any school for which the district fails to provide in a timely manner the student performance data required for the Commissioner to perform the annual assessment; or • Any school in which excessive percentages of student fail to fully participate in the State assessment program. • Regulations include procedures for placing schools under registration review and for revoking a school’s registration • Section 100.21(k) Collective Bargaining Where Registering a New School to Replace a SURR or Struggling or Persistently Struggling School • In the event a school district seeks to register a new school to replace a SURR that is being closed or phased out or to close and replace a struggling or persistently struggling school, the Commissioner may require information regarding: • The process for identifying and appointing the leadership and staff of the new school, which must result in the selection of school leaders with a track record of success as school leaders and a staff that consists primarily of experienced teachers (i.e., at least 3 years of teaching experience) who are certified in the subject area(s) they will teach, have been rated Effective or Highly Effective…in each of the past 3 years, and are not currently assigned to the school to be closed or phased out, unless waived by the Commissioner, subject to collective bargaining as required under article 14 of the Civil Service Law, and require that any successor collective bargaining agreement authorize such appointments unless otherwise prohibited by law. • Section 100.21(l)(5)(iv) 8
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