Meeting of the Board of Regents | June 2008

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:	Higher Education Committee
FROM:	Johanna Duncan-Poitier
SUBJECT:	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
DATE:	June 17, 2008
STRATEGIC GOAL:	Goal 3
AUTHORIZATION(S):

 

SUMMARY

 

Issue for Decision

 

Should the Board of Regents adopt as an emergency action the proposed repeal and addition of section 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.

 

Proposed Handling

 

The proposed amendment is submitted for adoption as an emergency action at the June 2008 Regents Meeting.  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 September 2008 Regents Meeting. 

 

Procedural History

 

A Notice of Emergency Adoption and Revised Rule Making will be published in the State Register on July 16, 2008.  Supporting materials for the proposed amendment are available upon request from the Board of Regents. 

 

Background Information

 

              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 Section 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.  Right now, 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 another school district as an interim superintendent during a search, there have been some instances of individuals earning very high compensation when the interim salary is added to their retirement benefits.  While the law does not limit such earnings, there have been several concerns expressed about the level of compensation in these limited instances.

 

In order to address and resolve such public concerns about the approval process under Section 211 of the Retirement and Social Security Law, the Department is proposing a series of actions to strengthen the process. These actions include proposed amendments to Section 80-5.5 of the Commissioner’s Regulations to promote transparency and effectiveness in the 211 waiver process.

 

On May 22, 2008, the Commissioner suspended the 211 waiver process for 60 days 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 have been consulted in this review, including the Attorney General, the State Comptroller, and leaders of New York State United Teachers, the New York School Boards Association, District Superintendents, and the New York State Council of School Superintendents.

 

The main focus remains on insuring that school districts have the best available leadership.  Leadership is indispensable to effective district and school operations.  In some cases, such as the sudden departure of a leader, the failure of a search to locate a suitable candidate, or other special conditions, a school board must turn to an experienced retired person for an interim appointment. This applies not only to superintendents but also to school business officials, other administrators, and teachers.  Therefore, the waiver process must remain responsive to the legitimate needs of districts to provide well-qualified individuals to staff our schools. 

 

The changes we are recommending take into consideration the two major circumstances under which a waiver is required:

 

• The district is unable to find a non-retired qualified candidate after they have conducted a thorough and good faith search appropriate for the level of the position.
• Because there is inadequate time to conduct a full search appropriate for the position and the critical nature of the vacancy, an interim appointment is necessary to assure the proper functioning of the district.

 

              In circumstance #1, where due diligence has occurred, the Department will require 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 will require satisfactory documentation of the emergency circumstances and 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 will stress that the waiver is for an interim period and the school board must search diligently for a permanent replacement.

 

              In addition the proposed regulation would:

 

• Require that requests for waivers be made prior to employment (in any event, no later than 30 days after employment commences).  The requirement for timeliness will eliminate a forced choice situation that can arise when an application arrives while an interim is in a critical position and is close to the $30,000 limit.  This will prevent instances in which waivers are granted due to emergencies which could have been prevented.   
• Limit waivers to one year except in extraordinary cases and for instances of 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.
• Deny waivers to school leaders who have retired but seek reemployment in a district where they were employed within the two-year period immediately preceding the date of retirement.  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.
• Prohibit the interim superintendent from conducting 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.
• Require 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. 

 

Recommendation

 

VOTED:  That Section 80-5.5 be repealed and a new Section 80-5.5 of the Regulations of the Commissioner of Education be added, as submitted, effective June 27, 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 June 27, 2008.  A second emergency adoption will need to be taken in July to keep the emergency rule continuously in effect until the effective date of its adoption as a permanent rule.  If adopted in September, the effective date of the permanent rule will be October 9, 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.

              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 July 1, 2008 as follows:

              §80-5.5  Employment of retired public employees.

              (a)  Definition.  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.

              (b)  Applicability. 

(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 given for the employment of a retired person in any school district, BOCES or county vocational education and extension board if the retired person was employed within such district or board within the two-year period immediately preceding his/her date of retirement, except that a teacher in the classroom teaching service, as defined in section 80-1.1, may be approved by the commissioner to work in a high need school or a teacher shortage area provided that such employment does not commence for a period of six-months from 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 the district’s rationale for their non-selection of properly certified, non retired candidates that were interviewed for the particular position and satisfactory documentation to establish either of the following:

(i) That the district or board conducted a thorough and good faith search for a certified and qualified candidate; considered all certified non retired candidates before requesting approval from the commissioner; and 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 an emergency existed requiring an immediate interim appointment, precluding the district or board from conducting a thorough recruitment search.  In such cases of emergency interim appointments, the district or board shall describe the selection process employed for the interim appointment.

              (3)  Each written request for the 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, the district shall certify that the retired person will not participate in 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)  The commissioner may grant the initial approval or the renewed approval for a period of less than one school year. 

(3)  Upon expiration of any approval or renewal from the commissioner for the employment of a retired person, the district or board shall not apply to the commissioner for additional approval under this section for the same retired person, unless the retired person is employed in a position as a certified teacher in a teacher shortage area or in a high need school, 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 of education 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.