Brenna Swift, The Union Democrat

A plan by Tuolumne County Superintendent of Schools Joe Silva to "retire" and be reappointed at lower pay is on hold because of legal questions from the state teachers' pension system.

Silva, 62, intended to retire Nov. 29 and be reappointed in December at a beginning teacher's salary while receiving his pension.

The Tuolumne County Office of Education would pay Silva's lower salary but is not responsible for his state pension, so Silva said the change would save the office money and help prevent layoffs.

But a Nov. 2 letter from the California State Teachers' Retirement System suggested he cannot legally retire and continue to work full-time as county superintendent without reducing his retirement benefits.

The letter miffed members of the Tuolumne County Board of Education, who met Monday and were set to approve Silva's plan to avoid staff reductions.

Under the proposal, Silva would finish out his four-year term as the county's elected superintendent of schools. His terms ends in 2014, at which point he plans to fully retire.

Though the exact amount of his lowered salary had yet to be hashed out, Silva named a likely figure of about $40,000 a year. Meanwhile, he would also collect his pension - approximately 90 percent of his superintendent pay.

Silva's annual salary is now almost $170,000, not including a $7,200 business allowance or health benefits. The pension combined with his reduced salary would put his annual earnings at somewhere around $190,000.

Silva received the Cal STRS letter Monday indicating that the plan would violate state education code.

Education code "requires a post-retirement position to be paid at a similar pay rate as the active position," according to the letter from Nancy Roberts, a pension program manager at CalSTRS.

However, the letter also stated Silva would be subject to an "earnings limitation" established earlier this year for public education employees who retire and return to work.

Under the rule, Silva could earn no more than $40,011 without also reducing his pension on a dollar-for-dollar basis.

Taken together, the two rules nix the notion that Silva can continue work full-time while receiving his full pension.

Byron Smith, a lawyer who works for several Tuolumne County school districts and the Tuolumne County Board of Education, said he disagreed with Roberts' interpretation of the education code.

He told the Board of Education that he'd spoken with Roberts and voiced his belief that the law allows the plan.

"Her response was, in essence, to make a threat of litigation," Smith said.

Fresno County Superintendent of Schools Larry Powell "retired" and was rehired at an annual salary of about $31,000 in a widely reported move last year.

Smith said he cited other California counties as an example to Roberts and was met with the reply that her office is investigating them.

Roberts and CalSTRS could not be reached for comment or confirmation Monday night.

Roberts' letter also said Silva could reduce his working time to stay below the earnings limitation.

To preserve his daily rate of pay while cutting his annual salary, Silva would only work about 50 days a year, according to Tuolumne County Office of Education Director of Human Resources Danna Fritz.

He now works 225 days a year.

Fritz said Monday she and Tuolumne County Office of Education staff members were "perplexed" by the CalSTRS letter.

The Tuolumne County Board of Education expressed anger at what it perceived as interference in its proceedings.

"I came here today fully intending to approve (the) proposal," said Board of Education member Joe von Herrmann. "For some mid-level bureaucrat to threaten eight elected officials with litigation, I find disgusting."

Von Herrmann's sentiment was echoed by Board of Education members Chucker Twining, Juliana Feriani and Sherri Brennan, who is running for a seat on the Tuolumne County Board of Supervisors.

"We're elected officials," Feriani said. "Joe's an elected official. It's the public who determines if we've done our job."

The question of Silva's "retirement" and reappointment was tabled until later this month to give Smith more time for research.

It will be discussed again at a special public meeting of the Board of Education at 4 p.m. Nov. 26 in the county schools office, 175 S. Fairview Lane, Sonora.