Meeting of the Board of Regents | July 2008
THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234
Higher Education Committee
Proposed Amendment to Regulations of the Commissioner of Education Relating to the Employment of Retired Persons in Public School Districts, Boards of Cooperative Educational Services and County Vocational Education and Extension Boards
July 22, 2008
Issue for Decision
Should the Board of Regents adopt as an emergency action the proposed repeal and addition of §80-5.5 of the Commissioner’s Regulations relating to the employment of retired persons in public school districts, boards of cooperative educational services (BOCES) and county vocational education and extension boards?
Reason(s) for Consideration
Review of policy and State statute.
The proposed amendment is submitted for adoption as an emergency action at the July 2008 Regents Meeting. A Notice of Emergency Adoption and Revised Rule Making will be published in the State Register on August 20, 2008. A Statement of Facts and Circumstances which Necessitate Emergency Action is attached. Confirmation of the proposed amendment as a permanent rule is scheduled for the October 2008 Regents Meeting. Supporting materials for the proposed amendment are available upon request from the Board of Regents.
At their June 23-24, 2008 meeting, the Board of Regents adopted the proposed amendment as an emergency rule, effective June 27, 2008. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on July 16, 2008.
In an educational system as large as New York’s (approximately 170,000 certified personnel in 696 public school districts outside of New York City), it is a regular occurrence for some teachers, pupil personnel service providers, and school leaders to leave during the school year for other jobs, medical leaves of absence, and other reasons. Such disruptions to the staffing of school districts and BOCES can be difficult to manage. In critical school leadership positions, thorough searches for a permanent replacement involving the school community may take many months, during which the position cannot remain vacant. It is important to be sure the school districts that educate our children are led every day by the best people we can find. In the circumstances above, an interim appointment is frequently necessary pending the completion of a thorough search for a permanent replacement.
The supply of qualified and properly certified people interested in an interim appointment pending the search for and appointment of a permanent replacement is dependent upon the position and the geographic area of the state. Qualified active school district employees are frequently not interested in a temporary short-term appointment. Accordingly, it is not surprising that a district would identify a qualified retiree to take such a short-term appointment, especially in situations where an interim superintendent of schools is needed. An experienced school superintendent, who has a track record as a successful school leader, is well qualified to step in quickly and run a school district without an extended training period. A superintendent of schools is a key leadership position critical to the district’s success in educating its students and, in certain areas of the state, may be responsible for an annual operating budget of at least a hundred million dollars.
Section 211 of the Retirement and Social Security Law permits retired persons between the ages of 55 and 64 to earn compensation when returning to employment in school districts other than the City of New York, BOCES and county vocational education and extension boards and continue to receive their pensions, subject to the Commissioner’s approval. Section 80-5.5 of the Regulations of the Commissioner of Education establishes the standards under which a district or board may seek the Commissioner’s approval of a waiver for the employment of retired persons beyond the $30,000 earnings limitation prescribed by §212 of Retirement and Social Security Law. Under current statute, there is no earnings limitation for retired persons 65 or older.
The use of such qualified retirees as approved by the Commissioner amounts to a total of approximately 400 retirees per year, with approximately two-thirds of them being administrators. It is also important to remember that this provision is used infrequently. Currently, we estimate that waivers represent fewer than two percent of all school administrators statewide.
In the case of interim appointments of retired school superintendents to serve in another school district as an interim superintendent during a search, there have been some instances of individuals earning extremely high compensation when the interim salary is added to their retirement benefits. While the law does not limit such earnings, the public has a right to be concerned about how their tax money is used.
In order to address and resolve such public concerns about the approval process under §211 of the Retirement and Social Security Law, the Commissioner suspended the 211 waiver process for 60 days on May 22, 2008, in order to conduct a thorough review of the process and make any necessary improvements, with a particular focus on transparency, effectiveness, and legislative intent. Many interested parties were consulted in this review, including the Attorney General, the State Comptroller, and leaders of New York State United Teachers, New York School Boards Association, and New York State Council of School Superintendents.
At the June Regents Meeting, the Department adopted, as an emergency measure, proposed amendments to §80-5.5 of the Commissioner’s Regulations to strengthen the 211 waiver process.
These changes included the consideration of two major circumstances under which a waiver is required:
- After a thorough and good faith search appropriate for the level of the position the district is unable to find a non retired qualified candidate.
- Due to emergency circumstances, leading to inadequate time to conduct a full search appropriate for the position and the critical nature of the vacancy, an interim appointment is required for proper functioning of the district.
In circumstance #1, where due diligence has occurred, the Department requires evidence that the district conducted a thorough and good faith search appropriate to the position, considering prior experience with recruitment for that position in that geographic location.
In circumstance #2, the Department requires satisfactory documentation of the emergency circumstances and the need for an interim appointment. In addition, the district must provide satisfactory documentation of the abbreviated selection process for the interim appointment.
In both instances the district must provide a detailed recruitment plan to replace the retiree by the end of the waiver period and its rationale for not selecting any non retired properly certified candidates who were interviewed for the position. This stresses that the waiver is for an interim period and the school board must search diligently for a permanent replacement.
In addition, the proposed regulation:
- Requires that requests for waivers be made prior to employment (in any event, no later than 30 days after employment commences). The requirement for timeliness eliminates a forced choice situation that can arise when an application arrives while an interim is in a critical position and close to the $30,000 limit. This also prevents instances in which waivers are granted due to emergencies which could have been prevented.
- Limits waivers to one year except in extraordinary cases and for classroom teachers serving in a high need school or a subject shortage area as defined by the Commissioner. This will underscore the interim nature of the appointment. The local board must commit to permanent employment as soon as possible.
- Denies waivers to school leaders who have retired but seek reemployment in the district they retired from for a period of one-year. Classroom teachers in high need schools or subject shortage areas would be employable 6 months after the date of their retirement however their earnings are restricted by the Teacher Retirement System. This will underscore the responsibility of the board to conduct a search.
- Prohibits the interim superintendent from leading the search for the next leader. The search is the responsibility of the board, and the prohibition will prevent real or perceived conflicts of interest.
- Requires a public announcement of the need for an interim appointment, and if the waiver is approved, an announcement of the compensation package, including that the retiree will receive his/her pension while so employed. This will provide transparency to the process.
On June 24, 2008, Senate Bill No. 8669 passed both the Senate and Assembly and we are anticipating that this bill will be signed by the Governor. This bill amends, among other things, Retirement and Social Security Law §211 to establish statutory standards to strengthen the approval process for the employment of retired persons in public service. The new standards provide that an approval will only be granted when either: (1) there is an urgent need for the retiree’s services in such position as a result of an unplanned, unpredictable and unexpected vacancy where sufficient time is not available to recruit a qualified individual; or (2) a prospective employer has undertaken extensive recruitment efforts to fill such vacancy and as a result thereof, has determined that there are no available non retired persons qualified to perform the duties of such position. Such approvals may be granted for periods not to exceed two years each, provided that such person may not return to work in the same or similar position for a period of one year following retirement.
The Department has revised §80-5.5 of the Commissioner’s Regulations to conform the regulation to the proposed amendments to §211 of the Retirement and Social Security Law made by Senate Bill No. 8669. The proposed amendment makes the following major changes:
- Denies waivers to retired persons who have retired but seek reemployment in the same or similar position that the retired person retired from for a period of one-year following the date of his/her retirement. The language in the previous version of the regulation was changed to conform to the bill language.
- Prohibits a district or board from applying to the commissioner for additional approvals under §211 of the Retirement and Social Security Law for a retired person seeking employment in the same position, in the same district except in extraordinary cases or classroom teachers serving in a high need school or a subject shortage area as defined by the Commissioner, or in extreme circumstances where a district, BOCES or county vocational education and extension board is prohibited by law or otherwise from hiring a permanent replacement for a position, and such employment has been approved pursuant to this section. This will underscore the interim nature of the appointment and prohibit retired persons from seeking multiple approvals for the same position, in the same district. The local board must commit to permanent employment as soon as possible.
VOTED: That the emergency action taken at the June 24, 2008 meeting of the Board of Regents, which repealed Section 80-5.5 of the Regulations of the Commissioner of Education and added a new Section 80-5.5, is repealed, effective July 31, 2008, and it is further
VOTED: That §80-5.5 be repealed and a new §80-5.5 of the Regulations of the Commissioner of Education be added, as submitted, effective August 1, 2008, as an emergency action upon a finding by the Board of Regents that such an action is necessary for the preservation of the general welfare in order to strengthen the approval process for employment of retired persons in public school districts other than the City of New York, boards of cooperative educational services and county vocational educational and extension boards and to provide transparency and effectiveness in the approval process in order to resolve recent concerns about the approval process.
Timetable for Implementation
The emergency adoption will become effective August 1, 2008. A third emergency adoption will need to be taken in September to keep the emergency rule continuously in effect until the effective date of its adoption as a permanent rule. If adopted in October, the effective date of the permanent rule will be November 13, 2008.
AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
Pursuant to sections 101, 207, 305, 3003 and 3004 of the Education Law and sections 210, 211 and 212 of the Retirement and Social Security Law.
1. The emergency action taken at the June 24, 2008 meeting of the Board of Regents, which repealed Section 80-5.5 of the Regulations of the Commissioner of Education and added a new Section 80-5.5, is repealed, effective July 31, 2008.
2. Section 80-5.5 of the Regulations of the Commissioner of Education is repealed and a new section 80-5.5 of the Regulations of the Commissioner of Education is added, effective August 1, 2008 as follows:
§80-5.5 Employment of retired public employees.
(a) Definitions. As used in this section:
(1) “High need school” means a school designated by the commissioner of education as a high need school. Such term shall include, but not be limited to, schools under registration review, low performing schools, and other high need schools, in which there was a shortage of certified teachers in the previous school year and there is a projected shortage in the current school year.
(2) “Teacher shortage area” means a subject area designated by the commissioner of education as a having a shortage of certified teachers in the previous school year and a projected shortage in the current school year.
(3) “Retired person” means a retired person as defined in section 210 of the Retirement and Social Security Law.
(1) The approval of the commissioner to the employment of a retired person by any school district (other than the city school district of the city of New York), or by any board of cooperative educational services (“BOCES”) or any county vocational education and extension board, in the unclassified service pursuant to section 211 of the Retirement and Social Security Law, shall be obtained in accordance with the requirements prescribed in this section.
(2) The approval of the commissioner shall not be granted for the employment of a retired person in any school district, BOCES or county vocational education and extension board if the retired person is seeking to return to work in the same or similar position that the retired person retired from for a period of one year following the date of his/her retirement.
(c) Written request for approval.
(1) The prospective employer shall file with the commissioner a written request for approval, which shall certify to the commissioner the following:
(i) That the retired person is duly qualified and competent.
(ii) That the retired person is physically fit to perform the duties to be assigned.
(iii) That the retired person is properly certified as a teacher where such certification is required.
(iv) Specific reasons why there is a need for the services of the particular retired person.
(v) Specific reasons why the employment of the particular retired person is in the best educational interests of the district, or the board.
(vi) That there are not readily available other persons who are not retired persons qualified to perform the duties to be assigned, in accordance with section 211 of the Retirement and Social Security Law.
(2) The written request shall also include satisfactory documentation to establish either of the following:
(i) That the district or board has undertaken an extensive and good faith recruitment search for a certified and qualified candidate and determined that there are no available non retired persons qualified to perform the duties of such position. Satisfactory documentation of an extensive and good faith recruitment search shall include, but not be limited to, evidence that the district or board:
(a) considered all certified and qualified non retired candidates before requesting approval from the commissioner under this section; and
(b) advertised for the particular position in a sufficiently broad manner appropriate for that position, based on the geographic location of the district or board and on any prior historical shortages for that position in the district or board; or
(ii) That there is an urgent need for the retired person’s services in such position as a result of an unplanned, unpredictable and unexpected vacancy requiring an immediate temporary interim appointment, precluding the district or board from conducting an extensive recruitment search. In the case of an emergency interim appointment, the district or board shall describe the selection process employed for the interim appointment.
(3) Each written request for approval of employment of a retired person shall be accompanied by:
(i) a copy of the resolution of the board authorizing such employment, subject to the approval of the commissioner;
(ii) a recruitment plan, detailing how the prospective employer plans to replace the retired person with a certified and qualified person by the conclusion of the approved temporary employment period. The recruitment plan shall specify the selection criteria, the media outlets the district or board will utilize to recruit a candidate and contingency plans for expanded recruitment if the initial recruitment procedures do not yield sufficient, certified non retired candidates; and
(iii) if a school district is seeking the commissioner’s approval of employment of a retired person to the position of superintendent of schools, a certification that the retired person may participate in, but shall not lead the review and selection process for a permanent candidate of such position.
(4) The written request shall be signed by the prospective employer and the retired person and filed with the commissioner prior to employment, but in no event more than 30 days after employment commences.
(e) Duration of Approval.
(1) Approval of the commissioner shall be for a period of up to one school year; and may be renewed once for up to an additional school year, but only in instances of demonstrated extreme hardship or other unexpected and unforeseen circumstances beyond the control of the district or board.
(2) Upon expiration of any renewal of the commissioner’s approval for the employment of a retired person, a district or board shall not apply to the commissioner for additional approval under this section for a retired person seeking employment in the same position, in the same district unless the retired person is employed in a position as a certified teacher in a teacher shortage area or in a high need school, or in extreme circumstances where a district, BOCES or county vocational education and extension board is prohibited by law or otherwise from hiring a permanent replacement for a position, and such employment has been approved pursuant to this section.
(f) Notification to Taxpayers. Upon employment of a retired person under this section, the district, BOCES or county vocational education and extension board shall notify all resident taxpayers that a retired person has received the approval of the commissioner for employment in the district pursuant to section 211 of the Retirement and Social Security Law and the district shall notify such taxpayers of the retired person’s compensation package and of the retired person’s right to receive a pension while employed with the district or board.