PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Repeal of section 80-5.5 and addition of new section 80-5.5 to Title 8 NYCRR.

Preservation of general welfare.

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.

Employment of retired persons in public school districts, BOCES and county vocation education and extension boards.

To strengthen the standards for approval by the Commissioner of Education for the employment of retired persons.

Section 80-5.5 of the Regulations of the Commissioner of Education is repealed and a new section 80-5.5 of the Regulations of the Commissioner of Education is added, effective September 30, 2008 as follows:

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-29-08-00004-ERP, Issue of August 20, 2008. The emergency rule will expire November 28, 2008.

Lisa Struffolino, Office of Counsel, New York State Education Department, Counsel's Office, Room 148, 89 Washington Avenue, Albany, New York 12234, (518) 473-4921, email: [email protected]

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 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, including satisfactory documentation that the district or board considered all certified and qualified 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 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 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.

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 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, including satisfactory documentation that the district or board considered all certified and qualified 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 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 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.

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.

(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 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, including satisfactory documentation that the district or board considered all certified and qualified 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 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 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. 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.

1. TYPES AND ESTIMATE OF THE NUMBER 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 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, including satisfactory documentation that the district or board considered all certified and qualified 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 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 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.

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.