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Subject: Retirement and Social Security Law Section 211 Waiver Approvals

Supersedes: Personnel Policy and Procedure No. 781-80

Source: Civil Service Law, Section 150; New York City Charter, Section 1117; Retirement and Social Security Law, Sections 211 and 212.

Date: October 1, 1997

I. Policy

Civil Service Law, Section 150 (CSL § 150) and New York City Charter, Section 1117 (Charter § 1117) require the suspension of a pension received by a retiree from a State retirement system or a subdivision thereof if that retiree receives any compensation from post-retirement public service with New York State or a subdivision thereof. Employees who have vested/deferred but who have not reached payability are not restricted under this policy.

Retirement and Social Security Law, Section 211 (RSSL § 211) modifies CSL § 150 and Charter § 1117 by providing that no person retired from the service of New York State or any political subdivision thereof may be employed subsequently in the classified service of the City of New York without suspension or forfeiture of the pension portion of the retirement allowance, except upon approval of a waiver by the New York City Department of Citywide Administrative Services (DCAS). DCAS also approves RSSL § 211 requests for the classified service of the Comptroller, the City Council, the Board of Education, CUNY and the Offices of the District Attorneys, Public Administrators, Borough Presidents and Community Boards. RSSL § 211.1(b) allows a service retiree who has received such an approval to reenter public service without diminution of retirement allowance if he or she is reemployed in a position which is not in the service of a former employer (e.g., a Parks Department retiree returning to work for CUNY). If, however, a service retiree who has a RSSL § 211 approval is returning to the service of a former employer, an earnings restriction calculated by the applicable pension system would apply under RSSL § 211.1(a) (e.g., a Parks Department retiree returning to work in the Finance Department). Approval of a RSSL § 211 waiver is generally for a period of two years, at which time a request for an extension must be submitted to DCAS by the hiring agency.

Alternatively, a service retiree may be hired under RSSL § 212, whereby the retiree may, without the benefit of a RSSL § 211 approval, earn up to $13,500 in a calendar year (effective January 30, 1997) from employment in the public service of New York State or a subdivision thereof, without diminution or suspension of his or her retirement allowance. In addition, there is no earnings limitation under RSSL § 212 if a service retiree has attained the age of seventy. Employees working under RSSL § 212 must notify the appropriate retirement system.

II. Procedure

A waiver under RSSL § 211 from DCAS or RSSL § 212 from the appropriate pension system is required for a retiree who joined an applicable pension system on or after May 31, 1973 and who is returning to work for a covered employer as a consultant. PVB Hearing Officers employed at the Department of Finance are neither employees nor consultants; thus, they are not bound by Charter § 1117/CSL § 150/RSSL §§ 211/212.

Employees retired on a disability pension are not covered under RSSL §§ 211 or 212. Disability retirees are subject to Charter § 1117 and to the applicable New York City Administrative Code/BERS Rules pertaining to disability retirement safeguards. All such employment for disability retirees is to be reported to the applicable pension system.

A recent opinion from Corporation Counsel has determined that Public Benefit Corporations (New York City Transit Authority, New York City Housing Authority, Off-Track Betting Corporation and Triborough Bridge and Tunnel Authority) do not have to comply with the provisions of Article 7 of the RSSL, and such retired City employees who become employed by a Public Benefit Corporation are not subject to the RSSL § 211 guidelines.

DCAS approval of RSSL § 211 waiver requests is subject to submission of proof by the hiring agency that there are not readily available suitable nonretirees capable of performing the duties of the position; that there is a need for the position; that the retiree is qualified; and that the employment is in the best interests of the City. When requesting approval under RSSL § 211, whether it be a new submission or an extension, an original Request for Approval To Employ Retiree form (DP-68) must be submitted to DCAS. Accompanying the DP-68 must be a letter from the agency head explaining the duties of the position; the need for the position; the recruitment search conducted; the qualification requirements of the position and the unique qualifications of the retiree; the justification for hiring the retiree; why it is in the best interests of the City to hire the retiree; and the impact which failing to select the retiree would have on the project or agency. A hiring disposition must be included, outlining specific data on recent recruitment and selection for a position with similar duties in the same title. The hiring disposition must include copies and dates of all advertisements and postings. (At least two newspaper ads are required for most positions.) Postings should reach as broad a base as possible. Statistics should be provided on the total number of candidates who applied for the position, the number screened out, the number interviewed, the number hired and the reason(s) for each candidate's selection/nonselection. Stating "not as qualified as selected candidate" is not an acceptable rationale for hiring a retiree over a nonretiree. RSSL § 211 approvals are generally not granted where there is a viable civil service list in existence. For new hires, regular hiring approvals must still be obtained and appointment paperwork submitted to DCAS.

Although retirees may work for a limited period under RSSL § 212, a retroactive RSSL § 211 waiver request places the retiree at risk and may make the retiree liable to reimburse funds to the pension system if the request is subsequently denied. It is, thus, important that the retiree be made aware of the possibility of pension suspension where such a retiree is commencing employment prior to receiving approval of a RSSL § 211 waiver.

Effective March 17, 1997, the changes outlined below were implemented by DCAS in administering RSSL § 211 requests. These changes involve retirees more directly in the process, thereby reducing instances where such retirees claim they did not realize a RSSL § 211 waiver was required and/or they did not realize that approval had been denied or was subject to restrictions on earnings.

• Retirees will be copied on approval/denial letters. Pension systems will continue to be copied.

• DCAS will issue notice letters to the retiree, the pension system and the agency approximately one month prior to expiration of approvals.
  
  
• Changes have been made to the DP-68:

  Retiree home address has been added to facilitate mailing copies of approvals/denials and reminder notices to retirees. Where no retiree address is presently available at DCAS for waivers approved prior to March 17, 1997, the retiree's reminder notices will be sent to the agency personnel office for forwarding.
  
  Retirees will sign an affirmation statement.
  
  Former employer salary calculations have been removed, since such retirees are referred to their pension system to determine earnings restrictions.
  
  Additional miscellaneous fields have been added or deleted.

William J. Diamond
Commissioner

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