Filing an appeal to the Commissioner of Education as a class action.

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Filing an appeal to the Commissioner of Education as aclass action.
Decisions of the Commissioner of Education, Decision No.16,417

Some 90 paraprofessional employee of the school districtfiled an appeal to the Commissioner of Education challenging a decision of theboard of education classifying them as “teacher aides” rather than “teachingassistants,” which appeal was characterized as a “class action.”
Addressing the school district’s object to the filing of theappeal as a “class action,” the Commissioner observed that “An appeal may onlybe maintained on behalf of a class where the class is so numerous that joinderof all members is impracticable and where all questions of fact and law arecommon to all members of the class, citing 8 NYCRR §275.2.” In so doing, saidthe Commissioner, the petitioner is required to [1] set out the number ofindividuals he or she seeks to represent and [2] must show that all questionsof law and fact would be common to all members of the purported class.
The petitioners had filed the appeal “on behalf of themselvesand approximately 90 paraprofessionals” designated by the school district asserving in teacher aide* positions,but who allegedly were performing the duties of a teaching assistant.** 
The Commissioner, however, ruled that while the petitionershad identified each of these individuals in the exhibits to their petition,“they fail to demonstrate that all the potential class members have the sameinterests or claims.” Considering “the surveys submitted on behalf of theseindividuals,” the Commissioner said that the surveys indicated that theindividuals had “differing job duties, and allege varying amounts ofinstructional duties.” The Commissioner also noted that the surveys also showedthat not all of these individuals held a teaching assistant certificate.
The Commissioner decided that the petitioners: had not clearly demonstrated that allquestions of law and fact would be common to all members of the class.Further, the Commissioner noted that the petitioners subsequently identified additional individuals as purported class members and requested, in the alternative, that they be addedas petitioners, which request, he said, precluded a finding that the class members aretoo numerous.
The Commissioner denied the petitioners’ request for “classcertification” but granted its motion that the individuals so subsequentlyidentified be included in the appeal as “added petitioners” pursuant to 8 NYCRR§275.1.
After discussing a number of significant personnel issuesthat could affect the status of the petitioners in their respective positionsand issues related to the collective bargaining agreement between the parties,the Commissioner remanded the matter to the school district to make itsdetermination as to whether each of the petitioners was appropriately designatedas a teacher aide or should be designated as a teaching assistant. Theschool district's determination was to be based on an assessment of the natureand extent of the duties performed by each petitioner, consistent with the criteriaset out in the Commissioner’s decision.
In effect the district is to perform a “desk audit” of theduties of each individual to determine if he or she was performing the dutiesof a teacher aide or a teaching assistant.
For those individuals serving in a teacher aide positionperforming the duties of that title and those individuals serving in a teachingassistant position performing the duties of that title, and assuming that they arequalified to serve in that capacity, no further action would be required.
As to those individuals that the school district determines are serving in a teacher aide position but are  performing the duties of ateaching assistant, assuming, but not deciding, that each such individual isqualified for appointment to that title, the Commissioner directed that “anypetitioner ... who spends a substantial portion of time engaged in carrying outsuch duties, [is to] be appointed to a teaching assistant position and providedwith all seniority, tenure and retirement rights.”
The decision is silent with respect to those individuals theschool district determines are serving in a teaching assistant position but areactually performing the duties of a teacher aide. Presumably such persons areto be appointed to the title of teacher aide, subject to the approval of thecivil service commission having jurisdiction.
* Teacheraide positions are in the classified service in the civil service of the Stateand the incumbents of such positions are subject to the State’s Civil ServiceLaw and the rules and regulations promulgated thereunder. Such positions aretypically positions placed in the noncompetitive class of the classifiedservice.
** Teachingassistant positions are among those certified by the Commissioner of Educationto the New York State Civil Service Commission pursuant to Civil Service Law§35(g) as being in the teaching and supervisory staff of a school district andsuch positions are in the unclassified service of the civil service of theState.
The decisions is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume52/d16417.html