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August 06, 2010

Preferred lists and retirees

Preferred lists and retirees
Decisions of the Commissioner of Education #13896

Does a public employee retain his or her “preferred list right” resulting from his or her being laid-off into retirement? This was the significant issue in Dakin Morehouse’s appeal to the Commissioner of Education.

Morehouse was a full-time teacher of industrial arts until the Hunter-Tannersville Central School District reduced his position to a half-time position.

A year later the Otsego-Northern Catskill BOCES took over the district’s industrial arts/technology program and the district abolished Morehouse’s position. Morehouse became a BOCES employee as provided by Section 3014-a of the Education Law. Further, with the BOCES takeover Morehouse again became a full-time teacher. Morehouse served with BOCES until he elected to take “early retirement.”

Subsequently Hunter-Tannersville announced that a full-time technology teacher position was available. Morehouse contended that he should be appointed to the vacancy because he was on a preferred list that was created when his former full time position was abolished in favor of a half-time position. Morehouse pointed out that a teacher’s eligibility for appointment from a preferred list lasts seven years under state law, and that only five years had passed since his name was placed on the list.

The key issue was Morehouse’s retirement and whether that event ended his eligibility for appointment from the preferred list. The Commissioner of Education ruled it did, holding that Morehouse’s retirement from teaching “effectively removed him from such list.” In other words, retirement extinguished all preferred list rights insofar as any preferential status for appointment to a vacancy is concerned.

In contrast, an excessed individual who accepts other employment, public or otherwise, does not forfeit his or her preferred list rights. But, according to the Commissioner, retirement changes the individual’s status -- he or she no longer is an employee for many statutory purposes, including appointment from a preferred list.*

In support of this view, the Commissioner noted that an employee’s application for, and receipt of, termination benefits constitutes a waiver of the right to challenge the abolishment of his or her position, citing Gerson v Comsewogue UFSD, 214 AD2d 732.

What if an employer wants to rehire an employee who has retired? Such reemployment is typically viewed as a “new employment” rather than as a “reinstatement from a preferred list” or a reinstatement to his or her former position. For example, in most instances a public retiree seeking a permanent appointment to a position in the competitive class of the civil service must take, pass and be reachable for appointment from the appropriate eligible list.

Further, the reemployment of a retired public employee automatically results in the suspension of his or her retirement allowance (Section 150, Civil Service Law [CSL]) for the period of such reemployment.

Only if the retiree obtains a “waiver” in accordance with the provisions of Section 211 of the Retirement and Social Security Law [RSSL] may an individual who is under 65 years of age simultaneously receive his or her retirement allowance and his or her salary to the extent that such compensation exceeds the amount specified in Section 212, RSSL.

There are exceptions to this general rule. One exception: Individuals elected to public office following retirement [Section 150, CSL]. Another exception: a limited number of retirees – so-called “pre-Axelrod retirees – may be employed as independent contractors by a public employer without having their retirement allowance discontinued while performing such public service regardless of age [Section 210, RSSL].

The Commissioner also advanced another theory in support of his determination. He said that 8 NYCRR 80.35(a)(6) “restricts the employment of retired persons generally to situations where no other qualified person is readily available,” a standard reflecting one of the criteria set out in Section 211, Retirement and Social Security Law providing for a “waiver” permitting the reemployed individual to continue receiving his or her retirement allowance.

Under the circumstances, the Commissioner concluded, “this policy would be difficult to advance if retired persons were allowed to remain for extended periods on preferred eligible lists.”

* N.B. Section 81.9 of the Civil Service Law provides as follows: "9. An employee who is eligible to be placed on a preferred list pursuant to this section and who elects, as a member of a public employee retirement system, to retire upon a suspension or demotion, shall be placed on a preferred list and shall be eligible for reinstatement from such list."

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