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Reemployment of retired State and municipal public employees by the State or a political subdivision of the State

Reemployment of retired State and municipal public employees by the State or a political subdivision of the State
New York State Department of Civil Service - Division of Staffing Services General Information Bulletin No. 09-07

Except in cases involving the election to public office and employment in one of the specified position listed in §150, §150 of the Civil Service Law mandates the suspension of a retired public employee's retirement allowance from a public retirement system of this State if he or she returns to public service and receives a "salary or emolument" as a result.

Under certain circumstances, however, the individual may be allowed to continue to receive, in whole or in part, his or her retirement allowance notwithstanding such reemployment [see, generally, §§210, 211 and 212, Retirement and Social Security Law].

§211 of the Retirement and Social Security Law (RSSL) authorizes the State Civil Service Commission to grant waivers,* under certain circumstances, authorizing individuals receiving a retirement allowance from a public retirement system of New York State** permitting government employment in classified service to earn compensation in excess of the statutory cap otherwise limiting the amount of such compensation without the suspension or reduction of their retirement benefits.***

Bulletin 09-07 also notes the new application form (CSC-1) that is to be used by employers when requesting NYS Civil Service Commission approval pursuant to Section 211. The form is available on the web site at:

http://www.cs.state.ny.us/forms/CSC-1.pdf

Only the appointing authority, rather than a designee of the appointing authority, is authorized to certify that the §211 waiver application satisfies the requirements of §211. Where the appointing authority is a board or commission, a current resolution of that body must be submitted with the application.

§211 approval must be secured prior to the effective date of employment. In the event the appointing authority expects to submit a subsequent waiver for a retiree, it must be submitted and approved prior to expiration the waiver then in force.

Failure to obtain the required waiver in a timely fashion may result in a financial liability to the retiree. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could ?recoup? over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.

Such wavers are not required with respect to such reemployments by an employer in the private section, by the federal government or by another state or a political subdivision of another state.

* N.B. §211 waivers are subject to the approval of:

a. The Commissioner of Education with respect to employments in positions in the unclassified service of a school district [other than the city of New York], a BOCES or a county vocational education and extension board;

b. The New York City Civil Service Commission if the individual is to be employed in a classified position in the service of the city of New York or in the classified service in the board of education or board of higher education of such city;

c. The Chancellor of the New York City School District with respect to employments in the unclassified service under the board of education of the city of New York;

d. The Board of Higher Education of the City of New York if such person is to be employed in the unclassified service under the Board?s jurisdiction;

e. The Chancellor of the State University of New York if such person is to be employed in the unclassified service of the State University, by a statutory contract colleges at Cornell and Alfred Universities or in the unclassified service of a community college other than those in the city of New York; or

f. The Chief Administrator of the Unified Court System such person is to be employed in a judicial or nonjudicial position by the Unified Court System.

** The Optional Retirement Plans, available to certain employees of the State University, the City University, the Education Department, the Statutory Contract Colleges at Cornell and Alfred Universities and the community colleges are not public retirement systems of New York State.

*** §212 of the Retirement and Social Security Law provides that there are no earning limitations that would otherwise apply under the provisions of §211 on or after the calendar year in which any retired person attains age sixty-five.

Full post as published by New York Public Personnel Law on March 17, 2010 (boomark / email).