Rehiring retirees

The purpose of this Communiqué is to alert you to two new statutes concerning the reemployment of retirees. The new statutes were part of the budget bill, Amended Substitute House Bill 95. The provisions, Ohio Revised Code Section (RC) 3307.353 and 3309.345, become effective on September 26, 2003, and require boards of education that wish to reemploy retirees from the school district after that date to take several steps prior to reemployment.

What does the law say?

In order for a board to reemploy a retiree from the same school district, the board must give public notice 60 days before the reemployment begins that the person is or will be retired and is seeking reemployment with the district. This notice must include the time, date and location of the public meeting that will be held on the issue.

After the notice is issued, between 15 and 30 days before the reemployment begins, the board must hold a public meeting on the issue of the person being employed by the board.

The statutes also state that the State Teachers Retirement Board (STRS) and School Employees Retirement Board (SERS), will make rules necessary to implement the new law " and prevent the abuse of the rights and privileges thereunder." The rules have not yet been published. They have been drafted and soon will be presented to the Joint Committee on Agency Rule Review (JCARR).

Who is affected?

The statutory changes affect all employees whose positions are " customarily filled by a vote of members of a board or commission." This would include boards of education. The new law applies to employees who retire and seek to be rehired by the same school district, either as STRS (RC 3307.353) or SERS (RC 3309.345) retirees. STRS retirees also are referred to as "superannuates." (RC 3307.01(M))

The language, which is practically identical in RC 3307.353 and RC 3309.345, states, "A board or commission that proposes to continue in employment as a reemployed retirant [superannuate] or rehire as a reemployed retirant [superannuate] to the same position."

This phrasing leaves something to be desired in terms of understanding the applicability to different types of situations. However, it appears that the law applies only to persons who retire from, and seek to be rehired to the same position. Thus, an individual who retires as a principal who seeks reemployment in the same district as a teacher probably would not be subject to the notice and meeting requirements.

How do boards of education comply with the new rule?

The law goes into effect on September 26, 2003. After that date, districts must comply with the new notice and hearing provisions. It appears that the requirement of the 60-day notice prior to a board's action to reemploy could be accomplished by using the same method the board uses to notify the public of its meetings. In other words, by publication in a newspaper of general circulation or by a "reasonable method whereby any person may determine the time, place, and purpose of all special meetings." Nothing in the new statutes suggests that the board may not hold the public hearing at a regularly scheduled, as opposed to a special, meeting of the board. However, the notice must clearly indicate " that the person is or will be retired and is seeking employment with the employer." Therefore, it appears that the notice of the time and place of the public meeting must include the purpose as indicated.

To meet the 60-day requirement, it appears that boards should count back from the date planned for board action on the reemployment of the retiree. However, some persons might interpret the law as using the date the reemployed retirant is to begin work, rather than the date of board action. It seems more consistent with the apparent purpose of the statute to use the former date. For example, suppose that a board wishes to reemploy a retired principal in the same position and acts on that reemployment in June for work beginning the next school year, in August. It would seem that the statute contemplates that the time for notice and hearing before the public on the issue of reemployment would occur prior to the board acting to reemploy the retired principal. Public comment and notice after the board action to employ, regardless of the date work is to begin, would be irrelevant if the board has already acted to employ the retirant.

The hearing provision states: "Between fifteen and thirty days before the employment as a re-employed superannuate (re-employed retirant) is to begin [the board or commission shall] hold a public meeting on the issue of the person being employed by the employer." (RC 3307.353 and 3309.345, respectively) In terms of the content required at the hearing, nothing in the new statutes or in existing law requires public participation at this or any other meeting of the board. However, the intent of the new provision appears to contemplate the possibility of providing public participation. The language states, " hold a public meeting on the issue of the person being employed by the employer." (RC 3307.353(B)(2), RC 3309.345(B)(2), italics added) If the board of education typically provides public participation at its regular meetings, it should consider following that already-established practice.

What is the practical impact of the new rule?

It is likely the most controversial rehires will involve superintendents and other high-ranking administrators. Rehiring retired teachers and nonteaching employees generally will raise less public scrutiny.

This heightened public awareness about the terms of employees' contracts may have an unintentionally positive effect. Boards probably will, as a result of the increased media and/or public attention to the issue, have an opportunity to explain the philosophy of why they have chosen to consider reemploying a system retirant. Consideration of these reasons should be communicated to the public as part of the discussion at the public hearing. The reasons might include retaining continuity in administrative services and programs, the value of a seasoned administrator's experience, the cost savings to the district in terms of a frozen salary or of reduced health care costs, and/or the appeal of a limited contract. It may also include other contract provisions as agreed between the parties, such as no second severance or pay-out of accumulated vacation days.

Collective bargaining implications

There may be an interesting interplay between the provisions of the new laws and the provisions of current collective bargaining agreements with respect not only to the hiring of employees in general, but also to those contracts that have provisions specifically addressing the procedures for rehiring retired employees. Collective bargaining contract provisions, if written correctly, can supersede applicable provisions of the law. If the district currently has a negotiated provision that addresses how retired employees will be rehired into the district, theoretically, the board should follow that procedure, whatever it is. However, if the procedure as written in the contract does not specifically state that it supersedes or replaces applicable law on point, then districts should err on the side of caution and follow the procedures outlined in the new laws.

Policy Implications

In the area of policy a district should add language to policy GCD, Professional Staff Hiring, and GDD, Support Staff Hiring. The language to be added is as follows:

"Notice must be given 60 days prior to the date re-employment is to begin. The notice must state that the person is or will be retired and is seeking employment in the District. The notice must include the time, date and location of a public meeting, which must take place 15 to 30 days prior to employment."

Conclusion

It is possible that once the STRS/SERS rules are issued, they will clarify some of the unanswered questions raised by the new statutes. A subsequent communication will be issued to inform our members when the rules are issued.

In the meantime, if your board is considering acting to reemploy a retiree after September 26, it should follow the new timelines for notice and hearing set out in the statutes. Please contact your board counsel for specific questions or the OSBA Legal Division for additional information.

The information in this Communiqué is intended as general information. It should not be relied upon as legal advice. If legal advice is required, the services of an attorney should be obtained.

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© Ohio School Boards Association, 2004