If a Connecticut superintendent gets a state waiver instead of a teaching certificate, can they earn pension credit in the Teachers' Retirement System?

Plain-English summary

The Connecticut Attorney General concluded that a school superintendent who served under a state-issued waiver of certification, rather than holding an actual teaching certificate, was not eligible for pension credit in the State Teachers' Retirement System.

The State Teachers' Retirement Board had asked whether superintendents operating under a waiver granted by the Commissioner of Education under Conn. Gen. Stat. § 10-157(c) qualified as "members" of the retirement system. The AG examined the definitions of "member" and "teacher" in Conn. Gen. Stat. § 10-183b and concluded that both definitions required the individual to hold "a certificate or permit issued by the State Board of Education." A waiver letter from the Commissioner of Education was not the same as a certificate or permit, and the legislature had not amended the retirement statutes when it created the waiver process in 2007.

The opinion also noted that if contributions had already been collected from an ineligible superintendent, Conn. Gen. Stat. § 10-183ff(c) required the Retirement Board to refund those contributions and void the related service records.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Two intersecting statutory schemes drove the analysis. Chapter 167a governed the Teachers' Retirement System. Conn. Gen. Stat. § 10-183b(18) defined a "member" as "any Connecticut teacher employed for an average of at least one-half of each school day." Conn. Gen. Stat. § 10-183b(26) defined a "teacher" as a "teacher, permanent substitute teacher, principal, assistant principal, supervisor, assistant superintendent or superintendent employed by the public schools in a professional capacity while possessing a certificate or permit issued by the State Board of Education."

Chapter 166 governed teacher and administrator certification. Conn. Gen. Stat. § 10-145(a) required that no superintendent be employed unless he or she possessed an appropriate state certificate, except as provided in § 10-157. Before 2007, § 10-157(a) required written confirmation of proper certification from the Commissioner of Education before a superintendent could assume duties.

In 2007, Public Act 07-241, § 4 amended § 10-157 to let the State Board of Education waive the certification requirement for a superintendent who either had at least three years of out-of-state superintendent experience under another state's certificate or whom the Commissioner deemed "exceptionally qualified." When the Commissioner granted such a waiver under § 10-157(c), the State Board of Education did not issue a certificate or permit; the Commissioner instead issued a letter stating that the certification requirement was waived for that individual.

The AG concluded that the 2007 amendments to Chapter 166 had not been mirrored by any change to Chapter 167a's definitions. A waiver letter was not a "certificate or permit issued by the State Board of Education." There was no statutory authority to treat the waiver letter as equivalent to a certificate. So a waiver-holding superintendent did not satisfy the definition of "teacher" and therefore was not a "member" eligible for pension credit.

Common questions

Q: At the time, could a superintendent without a certificate still work in a Connecticut school?
A: Yes. The 2007 amendments to § 10-157(c) let the State Board of Education waive certification for qualifying candidates. Such a superintendent could be employed and earn a salary; the only thing the waiver did not do was create eligibility for teacher pension credit.

Q: What happened if the Retirement Board had been collecting pension contributions from such a superintendent?
A: The opinion pointed to Conn. Gen. Stat. § 10-183ff(c), which provided that upon a Board determination that a person had been erroneously included in membership, contributions and interest credited under Chapter 167a "shall be refunded and records of related service voided."

Q: Did the AG say the legislature could fix this?
A: Yes. The AG noted that the legislature was free to amend the retirement statutes to extend benefits to waiver-holding superintendents if it wanted to. The opinion turned on the absence of such an amendment, not on a constitutional bar.

Q: Did this opinion apply to acting superintendents under § 10-157(b)?
A: The opinion's footnote acknowledged that § 10-157(b) allowed a board to appoint an "acting" superintendent for up to 90 days, "who is or is not properly certified." The retirement-credit analysis followed the same logic: without a certificate or permit, the acting superintendent would not have qualified as a "teacher" under § 10-183b(26).

Citations

Statutes: Conn. Gen. Stat. § 10-183b (definitions in Teachers' Retirement System); § 10-183b(18) ("member"); § 10-183b(26) ("teacher"); § 10-157(a), (b), (c) (superintendent certification and waiver); § 10-145(a) (certification required for school employment); § 10-183ff(c) (refund of erroneously credited contributions); Public Act 07-241, § 4 (2007 amendment creating waiver process).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2011/051611darleneperez-pdf.pdf?rev=11460da248014206a335017c2d8a5d35

Original opinion text

55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

GEORGE JEPSEN
ATTORNEY GENERAL

Office of the Attorney General

State of Connecticut
May 16, 2011

Ms. Darlene Perez
State Teachers' Retirement Board
765 Asylum Avenue
Hartford, CT 06106
Dear Ms. Perez:
You have inquired of our office whether a superintendent who received a
waiver of certification pursuant to Chapter 166 of our general statutes is eligible
for pension credit under Chapter 167a, the Teachers' Retirement System
("System").
To answer this question, it is necessary to examine the definitions of
"member" as contained in Conn. Gen. Stat. § 10-183b, and "teacher" as contained
in Conn. Gen. Stat. §10-183b(26). We can then proceed to analyze those
definitions in light of the certification requirements of Conn. Gen. Stat. §10-157(c).
For purposes of describing who may receive benefits from the System,
Conn. Gen. Stat. § 10-183b(18) defines a "member" in relevant part as "any
Connecticut teacher employed for an average of at least one-half of each school
day . . . ." (emphasis added). In turn, Conn. Gen. Stat. § 10-183b(26) requires
that to be a Connecticut "teacher" for purposes of the System, one must be "any
teacher, permanent substitute teacher, principal, assistant principal, supervisor,
assistant superintendent or superintendent employed by the public schools in a
professional capacity while possessing a certificate or permit issued by the State
Board of Education . . . ." (emphasis added). Therefore, for a superintendent to
be a "member" who is eligible for pension credit under the System, he or she must
possess a "certificate or permit issued by the State Board of Education." Id.

Prior to 2007, Conn. Gen. Stat. § 10-157(a) provided:

Except as provided in subsection (b) of this
section, no person shall assume the duties and
responsibilities of the superintendent until the board
[of education electing that person] receives written
confirmation from the Commissioner of Education
that the person to be employed is properly certified.
The commissioner shall inform any such board, in
writing, of the proper certification or lack thereof of
any such person within fourteen days after the name
of such person is submitted to him pursuant to
section 10-226.

In 2007, the Legislature amended the statute to permit the State Board of
Education ("SBE") to waive the requirement that a superintendent be "properly
certified." Specifically, Public Act 07-241, § 4 amended Conn. Gen. Stat. § 10-157(a) to provide that "no person shall assume the duties and responsibilities of
the superintendent until the board receives written confirmation from the
Commissioner of Education that the person to be employed is properly certified or
has had such certification waived by the commissioner pursuant to subsection (c)
of this section." (emphasis denotes new language).

Subsection (c) of Public Act 07-241, § 4, as amended and now codified at
Conn. Gen. Stat. § 10-157(c), provided:

The commissioner may, upon request of an
employing local or regional board of education,
grant a waiver of certification to a person (1) who
has successfully completed at least three years of
experience as a certified administrator with a
superintendent certificate issued by another state in
a public school in another state during the ten-year
period prior to the date of application, or (2) who
the commissioner deems to be exceptionally
qualified for the position of superintendent. In
order for the commissioner to find a person
exceptionally qualified, such person shall (A) be an
acting superintendent pursuant to subsection (b) of
this section, (B) have worked as a superintendent in
another state for no fewer than fifteen years, and (C)
be certified or have been certified as a
superintendent by such other state.

Thus, under current Connecticut law, a person may be eligible for election as a
superintendent in one of two ways: obtain proper certification from the SBE, or
upon the request of the employing local or regional board obtain a waiver of
certification from the SBE.

However, in amending Conn. Gen. Stat. § 10-157 to permit the SBE to
waive the certification requirement, the Legislature did not amend the definition
of those eligible to obtain a pension as a "member" of the State Teachers'
Retirement System. Thus, the recipient of the § 10-157(c) waiver is not a
"teacher" for purposes of the System because he only possesses a letter from the
Commissioner of Education and not "a certificate or permit issued by" the SBE.
Conn. Gen. Stat. §10-183b(26) (emphasis added). In turn, an individual's failure
to meet the statutory requirement of "teacher" for purposes of the System compels
a conclusion that he is not a "member" because he is not "any Connecticut
teacher." Conn. Gen. Stat. § 10-183b(18) (emphasis added). Furthermore, there
is no statutory authority to waive the "certificate or permit" requirement for a
"teacher," or to provide that a "letter" from the Commissioner is the equivalent of
either a "certificate or permit." See §§ 10-183b, et seq.

Thus, we conclude based on current law, that, a superintendent who
received a waiver of certification pursuant to Chapter 166 of our general statutes
is not eligible for pension credit for such service as a superintendent under
Chapter 167a based on that individual's failure to qualify statutorily as a "teacher"
and "member" for purposes of the System. Of course, the Legislature is free to
amend the statutes governing the Teachers' Retirement System if it is of the view
that benefits should be extended to those who receive a waiver. To the extent that
any employer or the Teachers Retirement Board itself has been treating this
individual as eligible for a pension by collecting contributions, Connecticut
statutes anticipate this scenario. Specifically, Conn. Gen. Stat. § 10-183ff(c)
provides in relevant part that "[u]pon determination by the . . . Board that any
person has erroneously been included in membership in the teachers' retirement
system, contributions and interest credited under the provisions of this chapter
shall be refunded and records of related service voided." (emphasis added).

Very truly yours,

GEORGE JEPSEN
ATTORNEY GENERAL