PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of section 80-5.5 and addition of new section 80-5.5 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided), 305(1), (2), 3003(1) and 3004(1); Retirement and Social Security Law, section 210 (not subdivided), 211(2) and (8)
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The purpose of the proposed amendment is to strengthen the standards for approval by the Commissioner of Education for the employment of retired persons in public school districts, boards of cooperative educational services and county vocational education and extension boards, as prescribed in Section 211 of the Retirement and Social Security Law. In order to address recent concerns over the approval process, on May 22, 2008, the Commissioner of Education suspended the approval process for 60 days to conduct a thorough review of the process and make any necessary improvements, with a particular focus on transparency, effectiveness and legislative intent. The proposed amendment incorporates several actions that the Commissioner believes will improve the approval process.
The recommended action is proposed as an emergency measure because such action is necessary to preserve the general welfare in order to strengthen the current regulatory standards relating to the approval process prescribed under Section 211 of the Retirement and Social Security Law and to ensure that such standards are in place immediately, so that the Commissioner may begin reviewing requests from the districts or boards for the employment of retired persons prior to the new school year.
Subject:
Employment of retired persons.
Purpose:
To employ retired persons in public schools, boards of cooperative educational services, and county vocational education and extension boards.
Text of emergency/proposed rule:
Section 80-5.5 of the Regulations of the Commissioner of Education is repealed and a new section 80-5.5 of the Regulations of the Commissioner of Education is added, effective June 27, 2008 as follows: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 by such district or board within the one-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 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 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) 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 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.
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 24, 2008.
Text of rule and any required statements and analyses may be obtained from:
Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, (518) 473-8296, e-mail: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Johanna Duncan-Poitier, Senior Deputy Commissioner of Education — P16, Education Department, 2M West Wing, Education Bldg., 89 Washington Ave., Albany, NY 12234, (518) 474-3862, e-mail: p16education@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Section 101 of the Education Law 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.
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.
Section 305 (1) of the Education Law 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) of the Education Law 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 3003(1) of the Education Law authorizes the Commissioner of Education to certify school superintendents employed in the public schools of the State.
Section 3004(1) of the Education Law authorizes the Commissioner of Education to prescribe, subject to the approval of the Regents, regulations governing the examination and certification of teachers employed in all public schools of the State.
Section 211 (2) of the Retirement and Social Security Law 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.
Section 211 (8) of the Retirement and Social Security Law 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.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment carries out the intent of the aforementioned statutes by strengthening the standards for approval by the Commissioner of Education for the employment of retired persons in public school districts, boards of cooperative educational services and county vocational education and extension boards, as prescribed in Section 211 of the Retirement and Social Security Law.
3. NEEDS AND BENEFITS:
The purpose of the proposed amendment is to strengthen the standards for approval by the Commissioner of Education for the employment of retired persons in public school districts, boards of cooperative educational services and county vocational education and extension boards, as prescribed in Section 211 of the Retirement and Social Security Law. In order to address recent concerns over the approval process, on May 22, 2008, the Commissioner of Education suspended the approval process for 60 days to conduct a thorough review of the process and make any necessary improvements, with a particular focus on transparency, effectiveness and legislative intent. The proposed amendment incorporates several actions that the Commissioner believes will improve the approval process.
4. COSTS:
(a) Costs to State Government: The amendment will not impose any additional costs on State government.
(b) Costs to local government: None.
(c) Costs to private regulated parties: None.
(d) Cost to the regulatory agency: As stated above in Costs to State Government, the proposed amendment does not impose additional costs on the State Education Department.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment requires all school districts, BOCES and county vocational education and extension boards seeking approval by the Commissioner to employ retired persons in such districts or boards to submit a written request, including satisfactory documentation to establish either of the following: (1) that the district or board conducted a thorough and good faith search for a certified and qualified candidate; considered all 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 (2) 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. Each written request 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; and (iii) if a school district or board 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 may participate in, but shall not lead the review and selection process for a permanent candidate of such position.
The proposed amendment also requires that, upon employment of a retired person under this section, a 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.
6. PAPERWORK:
The proposed amendment requires all school districts, BOCES and county vocational education and extension boards seeking approval by the Commissioner to employ retired persons in such districts or boards to submit a written request, including satisfactory documentation to establish either of the following: (1) that the district or board conducted a thorough and good faith search for a certified and qualified candidate; considered all 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 (2) 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. Each written request 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; and (iii) if a school district or board 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 may participate in, but shall not lead the review and selection process for a permanent candidate of such position.
The proposed amendment also requires that, upon employment of a retired person under this section, a 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.
7. DUPLICATION:
There are no other State or Federal requirements on the subject matter of this amendment. Therefore, the amendment does not duplicate other existing State or Federal requirements.
8. ALTERNATIVES:
An earnings limitation on retiree's salaries was considered and was rejected due to the need to attract qualified candidates, particularly in emergency circumstances when an immediate interim appointment may be necessary.
Consideration was also given to the alternative of requiring a district or board to provide the Commissioner with their rationale for not selecting a qualified, non-retired candidate. This alternative was rejected because the Department believes that such a provision would be duplicative of existing provisions in the regulation, i.e., the requirement that a district or board provide satisfactory evidence that it conducted a thorough and good faith search for a certified and qualified candidate and that the district or board considered all certified non retired candidates before requesting approval from the commissioner.
The Department also considered prohibiting superintendents from participating in the selection process of an interim superintendent. This prohibition was clarified to permit superintendents to participate in the selection process, but prohibit superintendents from leading the review process.
Another alternative considered was to prohibit a retired person from seeking employment in any district/board from which the retired person was employed in the two-year period preceding retirement. This requirement was adjusted to prohibit a retired person from seeking employment in the district/board from which he/she retired from for a year following retirement.
9. FEDERAL STANDARDS:
There are no Federal standards concerning the subject matter of this amendment.
10. COMPLIANCE SCHEDULE:
The proposed amendment must be complied with on its effective date. No additional period of time is necessary to enable regulated parties to comply.
Regulatory Flexibility Analysis
(a) Small Businesses:
The proposed amendment establishes the regulatory standards relating to the process for approval by the Commissioner of Education for the employment of retired persons in school districts, boards of cooperative educational services and county vocational education and extension boards, as required by section 211 of the Retirement and Social Security Law. 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 698 school districts and seven 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 persons in school districts, boards of cooperative educational services and county vocational education and extension boards, as required by section 211 of the Retirement and Social Security Law.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment requires all school districts, BOCES and county vocational education and extension boards seeking approval by the Commissioner to employ retired persons in such districts or boards to submit a written request, including satisfactory documentation to establish either of the following: (1) that the district or board conducted a thorough and good faith search for a certified and qualified candidate; considered all 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 (2) 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. Each written request 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; and (iii) if a school district or board 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 may participate in, but shall not lead the review and selection process for a permanent candidate of such position.
The proposed amendment also requires that, upon employment of a retired person under this section, a 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.
3. PROFESSIONAL SERVICES:
The proposed amendment does not mandate that school districts or BOCES contract for additional professional services to comply.
4. COMPLIANCE COSTS:
The proposed amendment does not impose any additional compliance costs on school districts or BOCES, beyond those imposed by the Retirement and Social Security Law.
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 strengthens current regulatory standards relating to the approval process for the employment of retired persons in school districts, BOCES or county vocational education and extension boards, as prescribed in Retirement and Social Security Law § 211. Because the statutory requirements specifically 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:
Comments on the proposed amendment were solicited from school districts across the State.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:
The Department estimates that it receives approximately 400 written requests for approval of employment under Section 211 of the Retirement and Social Security Law per year from school districts, boards of cooperative educational services (BOCES) and county vocational education and extension boards in all areas of New York State, including 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 requires all school districts, BOCES and county vocational education and extension boards seeking approval by the Commissioner to employ retired persons in such districts or boards to submit a written request, including satisfactory documentation to establish either of the following: (1) that the district or board conducted a thorough and good faith search for a certified and qualified candidate; considered all 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 (2) 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. Each written request 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; 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 may participate in, but shall not lead the review and selection process for a permanent candidate of such position.
The proposed amendment also requires that, upon employment of a retired person under this section, a 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.
3. COSTS:
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, BOCES and county vocational education and extension boards.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment strengthens the approval process for a school district, BOCES or county vocational educational and extension board seeking approval by the Commissioner for the employment of retired persons in such districts or boards. These requirements are in place to insure that school districts have the best available leadership and to improve the approval process with a particular focus on transparency, effectiveness and legislative intent. Because these statutory requirements specifically apply to school districts and BOCES located in all areas of the State, it is not possible to exempt them 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 purpose of the proposed amendment is to strengthen the standards for approval by the Commissioner of Education for the employment of retired persons in public school districts, boards of cooperative educational services and county vocational education and extension boards, as prescribed in Section 211 of the Retirement and Social Security Law. 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.
