Recent Statutory and Regulatory Changes Regarding §211 Waiver Requests
| To: | District Superintendents |
| From: | Johanna Duncan-Poitier, Senior Deputy Commissioner of P16: Office of Elementary, Middle, Secondary and Continuing Education and Office of Higher Education |
| Date: | December 10, 2008 |
| Subject: | Recent Statutory and Regulatory Changes Regarding §211 Waiver Requests |
II am writing to share with you updated information on recent statutory and regulatory changes pertaining to requests for approval of employment of retirees in school districts (other than NYC), BOCES and County Vocational Education and Extension Boards. Since I last communicated with you on this issue in memos dated June 24 and July 9, 2008, Governor Paterson signed into law Chapter 640 of the Laws of 2008 (formerly Senate Bill No. 8699) amending the Education Law and the Retirement and Social Security Law (RSSL) concerning the employment of retired public employees. In addition, the Board of Regents adopted revised regulations conforming to the statutory changes. The Regents revisions, which became a permanent rule on November 13, 2008, are available on the Web at: http://www.highered.nysed.gov/tcert/resteachers/sdretireereg.html#1.
Most of the statutory provisions related to §211 of RSSL mirror the regulations the Regents initially adopted in June. However, there is one important change that this memo is intended to highlight. Chapter 640 of the new law added a one-year waiting period to prevent an employee from retiring and continuing in the same capacity as a full time employee. Specifically, the law prohibits a person from returning to work “in the same or similar position for a period of one year following retirement.” The statute does not limit the waiting period to certain types of positions; thus, the restriction applies equally to teachers and administrators. Also, the statute does not limit the restriction to the original place of employment. Therefore, the restriction applies equally whether the subsequent position is in the same district or in another district.
For example, under these provisions of the new law, a person who retires from a superintendency would have to wait one year from the date of retirement before any district may seek a 211 waiver for the person’s service as a superintendent. Similarly, a person who retires as a math teacher would have to wait one year from the date of retirement before any district may seek a 211 waiver for the person’s service as a math teacher. The provisions, however, are not intended to bar all employment merely because the same types of skills are required for the new position (see Governor’s Approval Memo No. 46 Chapter 640). For instance, a district seeking to hire a recently retired superintendent as a Director of Pupil Personnel Services or Building Principal may still apply for a 211 waiver. In these cases, the Department will compare the duties and responsibilities of the two positions; the titles of the positions alone will not necessarily be determinative.
It is also important to reiterate that, when seeking a waiver for any position, a district must undertake a thorough and good faith recruitment search for a certified and qualified individual who is not retired, or otherwise demonstrate that there is an urgent need for a retiree’s services as a result of an unplanned, unpredictable and unexpected vacancy, and comply with the regulations and law in all other respects. The retiree will also need to comply with any requirements made by the retirement system of which the person is a member.
Further Questions
I hope this information is helpful. Additional information about requests for approval under §211 is provided on the Office of Teaching Initiatives Web site at: http://www.highered.nysed.gov/tcert/resteachers/sdretireeqa.html. If you have any additional questions, please feel free to send them to 211requests@mail.nysed.gov or call (518) 474-4661 and speak with Assistant Commissioner Robert Bentley in the Office of Teaching Initiatives.
cc: Joseph P. Frey
Robert G. Bentley
Linda Delfs
Sanford Lake