WSR 97-01-015

PERMANENT RULES

DEPARTMENT OF

RETIREMENT SYSTEMS

[Filed December 6, 1996, 4:46 p.m.]

Date of Adoption: December 7 [6], 1996.

Purpose: To amend the department WAC implementing RCW 41.32.570 to reflect the recent changes to that statute as they apply to TRS Plan I retirees returning to work.

Citation of Existing Rules Affected by this Order: Amending WAC 415-112-0152 and 415-112-540.

Statutory Authority for Adoption: RCW 41.50.050.

Adopted under notice filed as WSR 96-21-048 on October 11, 1996.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 1, amended 2, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 3, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 3, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Thirty-one days after filing.

December 6, 1996

Sheryl Wilson

Director

AMENDATORY SECTION (Amending WSR 95-16-053, filed 7/25/95, effective 8/25/95)

WAC 415-112-0152 Day--Definition. (("Day" means)) For purposes of administering RCW 41.32.570 and WAC 415-112-540 and 415-112-545:

(1) "Day" means seven compensated hours((. "Seventy-five days" means));

(2) "One hundred five hours" is the number of compensated hours in fifteen days. For purposes of evaluating the postretirement employment restrictions of RCW 41.32.570, fifteen days is equal to one hundred five cumulative compensated hours;

(3) "Five hundred twenty-five hours" is the number of compensated hours in seventy-five days. For purposes of evaluating the postretirement employment restrictions of RCW 41.32.570 seventy-five days is equal to five hundred twenty-five cumulative compensated hours.

[Statutory Authority: RCW 41.50.050. 95-16-053, 415-112-0152, filed 7/25/95, effective 8/25/95.]

AMENDATORY SECTION (Amending WSR 91-21-084, filed 10/18/91, effective 11/18/91)

WAC 415-112-540 ((Employment in public education limited for retirees.)) How will returning to work affect my TRS I monthly pension? (((1) A retiree who returns to any type of service with any public educational institution shall be considered to be employed throughout the time during which he or she is engaged in such service or is under contract for such employment, even though the retiree does not return to membership in the teachers' retirement system.

(2) The employer of a teachers' retirement system Plan I retiree must notify the teachers' retirement system when that retiree exceeds seventy-five days of employment for a public educational institution during a school year.

(3) If the retiree is employed under a written contract and is employed by a public educational institution for more than seventy-five days during a school year, the retiree's pension benefits cease. Any pension benefits paid to the retiree after he or she has been employed for more than seventy-five days in a school year will be treated as an overpayment by the department.

(4) If the retiree is employed by a public educational institution as a substitute and is employed for more than seventy-five days during a school year, the retiree's monthly pension benefit will be reduced by five percent for each day of employment beyond the seventy-five day limit until the monthly pension benefit is reduced to zero. Any pension benefits paid in excess of the amount allowed by this subsection will be treated as an overpayment by the department.

(5) A retiree's original monthly retirement allowance will be reinstated the day following termination of employment in a public educational institution, or at the end of the school year, whichever comes first.

(6) A teacher's Plan I retiree who enters the employment of a public educational institution may elect to return to membership. In that case the retiree's monthly retirement allowance will cease as of the first of the month that the member enters employment.

(7) Service as an independent contractor for a public educational institution shall not be considered employment for purposes of this section.)) This section implements RCW 41.32.570(1) which limits employment for TRS I retirees with public educational institutions to five hundred twenty-five hours regardless of the nature of service. In certain circumstances RCW 41.32.570 (2) and (3) allow additional service without suspension of your TRS I pension. Those limitations are discussed in WAC 415-112-545.

(1) You may return to any type of service with a public educational institution for up to five hundred twenty-five hours per school year without affecting your TRS I monthly pension. RCW 41.32.570(1).

(a) Your employer must notify the department if you work more than five hundred twenty-five hours for a public educational institution during a school year, unless you qualify for additional service under RCW 41.32.570 (2) or (3), see WAC 415-112-545.

(b) If you are a TRS Plan I retiree, you may elect to return to membership if you are employed by a public school. If you so elect, the department will suspend your monthly pension effective from the first of the month during which you return to employment.

(c) If you are a TRS Plan I retiree working for a public educational institution as a bona fide independent contractor as determined under WAC 415-02-110, you are not considered an employee of the institution and are not subject to the work limitations of RCW 41.32.570.

(2) If you work for more than five hundred twenty-five hours during a school year the department will suspend your monthly pension. In some cases you may be able to work an additional one hundred five hours, see WAC 415-112-545.

(a) If you return to any type of service with a public educational institution pursuant to a written contract or other continuing employment relationship, and you work for more than five hundred twenty-five hours during a school year, the department will suspend your monthly pension beginning with the five hundred twenty-sixth hour of employment.

(b) If you serve as a substitute teacher for more than five hundred twenty-five hours during a school year, the department will reduce your monthly pension by five percent for each day you work beyond the five hundred twenty-five hour limit until your monthly pension is reduced to zero.

(3) You must repay any monthly pension payment that you receive in excess of the amounts allowed under this section or WAC 415-112-545.

(4) The department will reinstate your pension at the end of the school year or after you terminate your employment. If the department suspends or reduces your monthly pension due to your reemployment, the department will reinstate the original amount of your pension, less deductions to recapture any overpayment, effective the day following your termination of employment, or at the end of the school year, whichever comes first.

(5) Defined terms used. Definitions for the following terms used in this section may be found in the sections listed.

(a) "Day"; "five hundred twenty-five hours" - WAC 415-112-0152.

(b) "Public educational institution" - WAC 415-112-0157.

(c) "School year" - WAC 415-112-0161.

(d) "Substitute teacher" - RCW 41.32.010(36).

[Statutory Authority: RCW 41.50.050 and 41.32.570. 91-21-084, 415-112-540, filed 10/18/91, effective 11/18/91. Statutory Authority: RCW 41.50.050(6) and 41.50.090. 78-03-023 (Order IV), 415-112-540, filed 2/15/78. Formerly WAC 462-28-040.]

NEW SECTION

WAC 415-112-545 How can I qualify for an additional one hundred five hours of service without having my TRS I monthly pension reduced? In addition to the five hundred twenty-five hours of service permitted for TRS I retirees under RCW 41.32.570(1), you are eligible to also serve for up to one hundred five more hours as a substitute teacher or substitute administrator without affecting your pension if you meet each of the following criteria. See RCW 41.32.570 (2) and (3).

(1) You must be employed by a school district. The option for TRS I retirees to work an additional one hundred five hours during a school year without affecting their pension is only available to school district employees. An employee of a school district participating in a multidistrict substitute cooperative is also covered. An employee of an educational service district, the State Schools For the Deaf or Blind, or an institution of higher education is not covered.

(2) You must be employed as a substitute teacher or substitute administrator.

(a) The term "substitute teacher" as used in RCW 41.32.570(2) is limited to classroom teachers serving on an on-call basis. A person working under a contract with a guaranteed number of hours or days does not qualify as a substitute teacher, see RCW 41.32.010(36).

Example: A school district employs a retiree as a substitute teacher under a contract for ninety days. Because the retiree is employed under a contract and not on an on-call basis, she may not serve for more than five hundred twenty-five hours as a substitute teacher without having her monthly pension suspended.

(b) A substitute administrator is a person who fills in for an absent administrator on a temporary basis. A substitute administrator can be employed under a contract with a guaranteed number of hours. Substitute administrator positions include but are not limited to:

(i) Principal and assistant principal;

(ii) Superintendent and assistant superintendent;

(iii) Personnel manager;

(iv) Business manager; and

(v) School librarian.

(3) Your school district employer must adopt a resolution. Before a school district can employ a TRS Plan I retiree for an additional one hundred five hours in a fiscal year without affecting his or her TRS I pension, the district must adopt a resolution establishing the need for the additional employment. Each resolution is valid only for the school year in which it is adopted. The resolution authorizes additional employment only on or after the date it has been adopted and cannot be applied retroactively.

(a) Authorizing additional hours for substitute teachers: To authorize a TRS Plan I retiree to work an additional one hundred five hours in a fiscal year as a substitute teacher, a school district must adopt a resolution stating that it has exhausted or can reasonably anticipate exhausting its list of qualified and available substitutes, and therefore, the services of retired teachers or administrators are necessary to address that shortage.

(i) If a school district is a member of a multidistrict cooperative, the board of each school district in the cooperative must adopt such a resolution.

(ii) After a resolution has been adopted, a school district may employ a TRS Plan I retiree as a substitute teacher for up to an additional one hundred five hours once its list of other qualified and available substitutes has been exhausted.

(b) Authorizing additional hours for substitute administrators: To authorize a TRS Plan I retiree to work an additional one hundred five hours in a fiscal year as a substitute administrator, a school district must adopt a resolution stating that an emergency exists and the services of a retired administrator or retired teacher are required because the school district cannot find a replacement administrator to fill a vacancy.

(4) Your school district must provide information to the department. If your school district employer is not a member of a multidistrict substitute cooperative, the district must:

(a) Within thirty days after a resolution is adopted:

(i) Send a copy of the resolution; and

(ii) If the resolution is for substitute teaching, send a list of all TRS Plan I retirees working for the school district as substitute teachers.

(b) During the fiscal year:

(i) Send a copy of any amendments to the resolution or to the list of TRS Plan I retirees working as substitutes;

(ii) Send written notice immediately if any TRS Plan I retiree works beyond six hundred thirty hours.

(c) At the end of the fiscal year: Send a letter indicating the total number of hours worked by each TRS Plan I retiree that exceeded the six hundred thirty hours.

(5) If your employer is a member of a multidistrict substitute cooperative, the cooperative must provide the information.

If you are employed by a school district which is a member of a multidistrict substitute cooperative, the cooperative must provide the information specified in subsection (4) of this section on behalf of each participating school district.

(6) If you serve as a substitute teacher or substitute administrator for the additional one hundred five hours but you are not eligible to do so, the department will reduce your monthly pension. If you and your school district employer do not meet each of the criteria under this section, you are not eligible to serve as a substitute teacher for the additional one hundred five hours under RCW 41.32.570 (2) or (3). If you serve for more than five hundred twenty-five hours during a school year, the department will reduce your monthly pension as provided under WAC 415-112-540(3).

(7) Defined terms used. Definitions for the following terms used in this section may be found in the sections listed.

(a) "Day"; "one hundred five hours"; "five hundred twenty-five hours" - WAC 415-112-0152.

(b) "School year" - WAC 415-112-0161.

(c) "Substitute teacher" - RCW 41.32.010(36).