EDU-28-13-00008-EP Employment of Retired Public Employees
7/10/13 N.Y. St. Reg. EDU-28-13-00008-EP
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 28
July 10, 2013
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. EDU-28-13-00008-EP
Filing No. 684
Filing Date. Jun. 25, 2013
Effective Date. Jul. 01, 2013
Employment of Retired Public Employees
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of section 80-5.5 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided) and 305(1), (2) and (20); Retirement and Social Security Law, sections 211(2) and (8) and 212(3); and L. 2013, ch. 55, part Y, section 1
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The proposed amendment to the Regulations of the Commissioner of Education is necessary to implement the amendment to section 212(3) of Retirement and Social Security Law made by Section 1 of Part Y of Chapter 55 of the Laws of 2013, which provides the Commissioner of Education with discretion to eliminate the earnings limitations for retired police officers employed by a school district as a school resource officer. Currently, earnings for retired persons are limited to $30,000. This new law became effective on March 28, 2013.
Emergency action is necessary at the June 2013 Regents meeting for the preservation of the general welfare in order to timely implement the provisions of the new law and to ensure that proper procedures are in place to ensure that the Commissioner can adequately process requests to eliminate the earnings limitations for retired police officers employed by a school district as a school resource officer.
Subject:
Employment of Retired Public Employees.
Purpose:
To implement Retirement and Social Security Law section 212(3), as added by Section 1 of Part Y of Chapter 55 of the Laws of 2013.
Text of emergency/proposed rule:
1. Subdivision (b) of section 80-5.5 of the Regulations of the Commissioner of Education is amended, effective July 1, 2013, to read as follows:
(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, or to the employment by any school district of a retired person as a school resource officer in the classified service as authorized by section 212(3) of the Retirement and Social Security Law, shall be obtained in accordance with the requirements prescribed in this section.
(2) . . .
(c) Written request for approval.
(1) . . .
(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, or in the case of a school resource officer a 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, or in the case of a school resource officer all 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) . . .
(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, or in the case of a school resource officer a 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) . . . .
(4) . . .
(d) . . .
(e) . . . .
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire September 22, 2013.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Peg Rivers, NYS Education Department, Office of Higher Education, EBA, Room 979, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: privers@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 charges the Department with the general management and supervision of all the educational work of the State and establishes the Regents as the head of the Department.
Education Law section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Education Law section 305 (1) authorizes the Commissioner of Education to enforce all laws relating to the educational system of the State and execute all educational policies determined by the Board of Regents. Section 305 (2) provides that the Commissioner shall have general supervision over all schools and shall advise and guide the school officers of all school districts in relation to their duties and the general management of schools under their control. Section 305(20) authorizes the Commissioner with such powers and duties as are charged by the Regents.
Retirement and Social Security Law section 211(2) permits a retired person to be employed in the unclassified service of a school district other than the city of New York, a board of cooperative education services or a county vocational education and extension board upon approval of the Commissioner of Education.
Retirement and Social Security Law section 211(8) authorizes the Commissioner of Education to promulgate regulations governing the employment of retired persons in public school districts, boards of cooperative educational services and county vocational education and extension boards.
Section 1 of Part Y of Chapter 55 of the Laws of 2013 amended Retirement and Social Security Law section 212(3) to provide the Commissioner of Education with discretion to waive the earnings limitations for retired police officers employed by a school district as a school resource officer. Currently, earnings for retired persons are limited to $30,000.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the legislative objectives of the above statutes and is necessary to implement Section 1 of Part Y of Chapter 55 of the Laws of 2013.
3. NEEDS AND BENEFITS:
Section 1 of Part Y of Chapter 55 of the Laws of 2013 amended Retirement and Social Security Law section 212(3) to provide the Commissioner of Education with discretion to waive the earnings limitations for retired police officers employed by a school district as a school resource officer. Currently, earnings for retired persons are limited to $30,000.
A school resource officer’s primary duties are to provide a safe learning environment within schools, provide valuable resources to school staff, and maintain an atmosphere where students can reach their fullest learning potential. Working with classroom teachers, other faculty members, and the school’s leadership team, school resource officers can present information and answer questions on a variety of topics, including drugs, safety concerns, crime prevention, violence prevention, laws and regulations, and general techniques for reducing crime. School resource officers may additionally assist in ongoing investigations that are occurring on school grounds in relation to criminal activity, in accordance with New York State Law and school district policy.
The current regulations only allow for the approval of section 211 waivers for individuals in “unclassified service” positions. As the position of a school resource officer is a “classified service” position, the proposed amendment is needed to conform the current regulations relating to the waiver of earnings limitations to the new law which allows the Commissioner to waive the earnings limitation for school resource officers.
4. COSTS:
(a) Costs to the State: none.
(b) Costs to local government: none.
(c) Costs to private regulated parties: none.
(d) Cost to the regulatory agency for implementation and continuing administration of the rule: none.
The proposed amendment is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013 and does not impose any additional costs on the State, local government, private regulated parties, or the State Education Department. Consistent with the statute, the proposed amendment provides for the approval of the Commissioner to the employment by any school district (other than the city school district of the City of New York) or BOCES of a retired person as a school resource officer, in accordance with existing requirements prescribed in the regulation. The proposed amendment will not any impose costs beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts and BOCES.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon local governments. The proposed amendment will not any impose costs beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts or BOCES. A school district (other than the City School District of the City of New York) or a BOCES that seeks to employ a retired person as a school resource officer shall follow the existing procedures in section 80-5.5 to obtain the Commissioner's approval.
6. PAPERWORK:
The proposed amendment does not impose any additional paperwork or record keeping requirements. A school district (other than the City School District of the City of New York) or a BOCES that seeks to employ a retired person as a school resource officer shall follow the existing procedures in section 80-5.5 to obtain the Commissioner's approval.
7. DUPLICATION:
The proposed amendment will not duplicate, overlap or conflict with any other State or federal statute or regulation, and is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013.
8. ALTERNATIVES:
The proposed amendment is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013. Consistent with the statute, the proposed amendment merely provides for the approval of the Commissioner to the employment by any school district (other than the city school district of the City of New York) or BOCES of a retired person as a school resource officer, in accordance with existing requirements prescribed in the regulation. There were no significant alternatives and none were considered.
9. FEDERAL STANDARDS:
There are no Federal standards concerning the subject matter of this amendment.
10. COMPLIANCE SCHEDULE:
The proposed amendment merely conforms the Commissioner's Regulations to a recent statutory change, and does not impose any additional compliance requirements or costs beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts and BOCES. It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.
Regulatory Flexibility Analysis
(a) Small businesses:
The proposed amendment relates to the process for approval by the Commissioner of Education for the employment of retired police officers as a school resource officer in school districts and boards of cooperative educational services (BOCES), as required by Retirement and Social Security Law section 212(3). The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
(b) Local governments:
1. EFFECT OF RULE:
The proposed amendment applies to the 695 school districts and 37 BOCES located in New York State and establishes the regulatory standards relating to the process for approval by the Commissioner of Education for the employment of retired police officers as a school resource officer in school districts and boards of cooperative educational services, as required by Retirement and Social Security Law section 212(3).
2. COMPLIANCE REQUIREMENTS:
The proposed amendment is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013, and does not impose any additional compliance requirements upon local governments beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts and BOCES. Consistent with the statute, the proposed amendment merely provides for the approval of the Commissioner to the employment by any school district (other than the city school district of the City of New York) or a BOCES of a retired person as a school resource officer. The school district or BOCES shall follow the existing procedures in section 80-5.5 to obtain the Commissioner's approval.
3. PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional services requirements.
4. COMPLIANCE COSTS:
The proposed amendment is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013 and does not impose any additional costs on local governments beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts and BOCES. Consistent with the statute, the proposed amendment provides for the approval of the Commissioner to the employment by any school district (other than the city school district of the City of New York) of a retired person as a school resource officer, in accordance with existing requirements prescribed in the regulation. The school district or BOCES shall follow the existing procedures in section 80-5.5 to obtain the Commissioner's approval.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any additional technological requirements. Economic feasibility is addressed under the Compliance Costs section above.
6. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013 and does not impose any additional costs or compliance requirements on local governments beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts and BOCES. Consistent with the statute, the proposed amendment merely provides for the approval of the Commissioner to the employment by any school district (other than the city school district of the City of New York) of a retired person as a school resource officer, in accordance with existing requirements prescribed in the regulation. The school district or BOCES shall follow the existing procedures in section 80-5.5 to obtain the Commissioner's approval.
Because the statutory requirements apply to school districts and BOCES, it is not possible to exempt them from the proposed amendment or impose a lesser standard. The proposed amendment has been carefully drafted to meet statutory requirements while minimizing the impact on school districts and BOCES.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment.
8. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment merely conforms the Commissioner's Regulations to statutory requirements under section 1 of Part Y of Chapter 55 of the Laws of 2013 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATE OF THE NUMBER OF RURAL AREAS:
The proposed amendment applies to the 695 school districts and 37 BOCES located in New York State and establishes the regulatory standards relating to the process for approval by the Commissioner of Education for the employment of retired police officers as a school resource officer in school districts and boards of cooperative educational services, as required by Retirement and Social Security Law section 212(3), including those located in the 44 rural counties with fewer than 200,000 inhabitants and the 71 towns and urban counties with a population density of 150 square miles or less.
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:
The proposed amendment is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013, and does not impose any additional compliance requirements upon entities in rural areas beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts and BOCES. Consistent with the statute, the proposed amendment merely provides for the approval of the Commissioner to the employment by any school district (other than the city school district of the City of New York) or a BOCES of a retired person as a school resource officer. The school district or BOCES shall follow the existing procedures in section 80-5.5 to obtain the Commissioner's approval.
3. COSTS:
The proposed amendment is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013 and does not impose any additional costs on entities in rural areas beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts and BOCES. Consistent with the statute, the proposed amendment provides for the approval of the Commissioner to the employment by any school district (other than the city school district of the City of New York) of a retired person as a school resource officer, in accordance with existing requirements prescribed in the regulation. The school district or BOCES shall follow the existing procedures in section 80-5.5 to obtain the Commissioner's approval.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement Education Law section 212(3), as added by section 1 of Part Y of Chapter 55 of the Laws of 2013 and does not impose any additional costs or compliance requirements on entities in rural areas beyond those currently required to comply with statutory and regulatory requirements for the employment of retired persons in school districts and BOCES. Consistent with the statute, the proposed amendment merely provides for the approval of the Commissioner to the employment by any school district (other than the city school district of the City of New York) of a retired person as a school resource officer, in accordance with existing requirements prescribed in the regulation. The school district or BOCES shall follow the existing procedures in section 80-5.5 to obtain the Commissioner's approval.
Because these statutory requirements apply to school districts and BOCES located in all areas of the State, it is not possible to exempt those located in rural areas from the proposed amendment or impose a lesser standard.
5. RURAL AREA PARTICIPATION:
The proposed rule was submitted for comment to the Department’s Rural Education Advisory Committee that includes representatives of school districts in rural areas.
Job Impact Statement
The proposed amendment relates to the process for approval by the Commissioner of Education for the employment of retired police officers as a school resource officer in school districts and boards of cooperative educational services (BOCES), as required by Retirement and Social Security Law section 212(3). Because it is evident from the nature of the rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.
