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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6425 March 5, 1987 RETIREMENT AND PENSIONS: State Employees' Retirement System--compulsory retirement A member of the State Employees' Retirement System, upon reaching the age of 70 years, may not be involuntarily retired based on age alone unless the member occupies an office or position expressly excepted by the Amendments of 1974, 1978 and 1986, to the Federal Age Discrimination in Employment Act of 1967, including: (1) correctional employees who are "supplemental members" of the System pursuant to MCL 38.45(b); MSA 3.981(45)(b) who may be mandatorily retired at age 56; and (2) non-Civil Service "exempt positions" under Const 1963, art 11, Sec. 5, first paragraph, to the extent such positions are described in the Amendment of 1974 to the Federal Age Discrimination in Employment Act of 1967, 29 USC 630(f), who shall be mandatorily retired at age 70. Mr. Richard L. Beers Director, Bureau of Retirement Systems Department of Management and Budget General Office Building Lansing, Michigan 48909 You have requested my opinion whether, in view of the Amendments of 1986 to the Federal Age Discrimination in Employment Act of 1967, 100 Stat ----, (PL 99-592) (1986), the 70 years of age mandatory retirement provision of the State Employees' Retirement Act remains enforceable. The State Employees' Retirement Act, MCL 38.19; MSA 3.981(19), has, since January 1, 1945, provided for mandatory separation of employees from state service upon the attainment of the age of 70 years. (1) As last amended by 1986 PA 1; MCL 38.19(3); MSA 3.981(19)(3), relevantly provides: "A member who is 70 years of age or older shall be separated from state service on the first day of the calendar month following the month in which the member becomes 70 years of age." See, Klammer v Department of Transportation, 141 Mich App 253, 257; 367 NW2d 78, lv den 422 Mich 978 (1985), which held the age discrimination provisions of the Elliott-Larson Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), did not impliedly repeal MCL 38.19(3); MSA 3.981(19)(3). In 1967, Congress enacted the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat 602 (1967), 29 USC 621 et seq. The ADEA, Sec. 12(a), 29 USC 631(a), prohibited various forms of age discrimination with respect to workers between the ages of 40 and 65 years. In 1974, Congress extended the substantive prohibitions of the ADEA to state and local governments. (2) Section 11(b), 88 Stat 74, 29 USC 630(b), provides: "The term 'employer' means ... (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State,...." The constitutionality of this amendment was upheld by the United States Supreme Court in Equal Employment Opportunity Commission v Wyoming, 460 US 226, 243; 103 SCt 1054; 75 LEd2d 18 (1983): "The extension of the ADEA to cover state and local governments, both on its face and as applied in this case, was a valid exercise of Congress' powers under the Commerce Clause." Accordingly, state governments, including their agencies and instrumentalities, are covered by the ADEA. State retirement and pension plans are subject to the age provisions of the ADEA, pursuant to Sec. 4(f)(2), 29 USC 623(f)(2), which states: "It shall not be unlawful for an employer ... to observe ... the terms of a bona fide employee benefit plan such as a retirement ... plan, which is not a subterfuge to evade the purposes of this chapter ... except that no such ... plan ... shall require or permit the involuntary retirement of any individual specified by section 631(a) [29 USC 631(a) ] of this title because of the age of such individual." By virtue of 1978 amendments to Sec. 12(a) of the ADEA, 92 Stat 189; 29 USC 631(a), federally guaranteed protection from involuntary retirement was extended to age 70 years. Thus, following the 1978 amendments to ADEA, the 70 years of age mandatory retirement provision within the State Employees' Retirement Act, MCL 38.19(3); MSA 3.981(19)(3), was consistent with controlling federal law. E.g., Simpson v Providence Washington Ins Group, 608 F2d 1171 (CA9, 1979), aff'g 423 F Supp 552 (D Alas, 1976) (extra protections accorded employees from age discrimination under state law may be validly applied to employees covered by ADEA). Congress recently acted to prohibit the involuntary retirement of employees covered by the ADEA by virtue of their age alone. Amendments of 1986 to the Federal Age Discrimination in Employment Act of 1967, 100 Stat ___; PL 99-592, Sec. 2(c)(1) amending Sec. 12(a) of the ADEA, 29 USC 631(a). (3) PL 99-592 was signed by the President on October 31, 1986, and took effect January 1, 1987. The amendment deleted the former language "but less than seventy years of age," so that the provision now reads: "The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age." As noted in 10C US Code Cong & Ad News 5628, 5637 (Dec, 1986), Sec. 2 of PL 99-592 "specifies the elimination of mandatory retirement age" by "removing the maximum retirement age limitation by striking out references to the upper age of 70." Accordingly, under Sec. 4(f)(2) of the ADEA, 29 USC 623(f)(2), quoted above, it is unlawful for employers to require under a retirement plan "the involuntary retirement of any individual" above the age of 40 years "because of the age of such individual." The language of the 1986 amendments and the legislative history indicate beyond doubt that Congress has extended the ADEA to eliminate the maximum retirement age. While the provisions of PL 99-592 took effect January 1, 1987, there are several provisions which, while not directly raised by your question, are sufficiently important to discuss separately. It is noted that Secs. 3 and 4 of PL 99-592 added new subsections to 29 USC 623 to deal with bona fide retirement systems for firefighters and law enforcement officers (4) (including certain corrections employees assigned to guard individuals incarcerated in any penal institution) which had mandatory retirement age provisions in effect on March 3, 1983 pursuant to State law. PL 99-592, Secs. 3 and 4, similarly permit the mandatory retirement of corrections "employees assigned to guard individuals incarcerated in any penal institution" (see text at footnote 4) where provided for in bona fide requirements of law in effect on March 3, 1983. 1976 PA 302 added Secs. 45-47 to the State Employees' Retirement Act; MCL 38.45-47; MSA 3.981(45)-(47). These provisions deal with corrections employees described in MCL 38.45(a); 3.981(45)(a), (5) who may elect to be "supplemental members" of the State Employees Retirement System (MCL 38.45(b); MSA 3.981(b)) and who may be mandatorily retired upon reaching age of 56 years. MCL 38.46(2); MSA 3.981(46)(2). The first paragraph of Const 1963, art 11, Sec. 5, provides: "The classified state civil service shall consist of all positions in the state service except those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and within each principal department, when requested by the department head, two other exempt positions, one of which shall be policy-making. The civil service commission may exempt three additional positions of a policy-making nature within each principal department." These Civil Service "exempt" positions are not subject to the protections of the ADEA to the extent they are described in ADEA Sec. 11(f); 29 USC 630(f) (see footnote 2), namely: elected State officials, personal staff of such officials, appointees on the policy-making level, or an immediate adviser with respect to the constitutional or legal powers of the office. While under MCL 38.13; MSA 3.981(13), the Legislature has permitted certain classes of non-Civil Service "exempt" employees described in Const 1963, art 11,Sec. 5, first paragraph, to become members of the State Employees Retirement System, such individuals are not thereby entitled to the protections of ADEA since those persons within Sec. 11(f); 29 USC 631(f) are specifically excluded from ADEA protections. Pursuant to MCL 38.19(3); MSA 3.981(19)(3), supra pg 2, such members shall be mandatorily retired at age 70. It is my opinion, therefore, that after January 1, 1987, pursuant to the Amendments of 1986 to the Age Discrimination in Employment Act of 1967, a member of the State Employees Retirement System who attains the age of 70 years (or older) shall not be involuntarily retired based on age alone unless the member occupies an office or position expressly excepted by the Amendments of 1974, 1978 and 1986 to the Federal Age Discrimination in Employment Act of 1967, including: (1) correctional employees who are "supplemental members" of the System pursuant to MCL 38.45(b); MSA 3.981(45)(b) who may be mandatorily retired at age 56; and (2) non-Civil Service "exempt positions" under Const 1963, art 11, Sec. 5, first paragraph, to the extent such positions are described in the Amendment of 1974 to the Federal Age Discrimination in Employment Act of 1967, 29 USC 630(f), who shall be mandatorily retired at age 70. Frank J. Kelley Attorney General (1)
(2)
The ADEA does not apply to elected state or local government officials, their personally selected staff, or an appointee on the policy-making level, or an immediate adviser concerning the legal powers of the office, as long as such persons are not within the jurisdiction's civil service laws. ADEA Sec. 11(f); 29 USC 630(f).(3)
PL 99-592, Sec. 2(c)(2), also amended 29 USC 631(c)(1), by striking language referring to age 70, thereby continuing the limited authority for an employer to provide compulsory retirement at age 65 of certain eligible individuals "employed in a bonafide executive or a high policymaking position."The Michigan Legislature has not provided within the State Employees' Retirement Act, or other law, for mandatory retirement at age 65 years or above of such employees.
(4)
Subsection (k) was added by 100 Stat _____, (PL 99-592) (1986) to 29 USC 630 to read: "The term 'law enforcement officer' means an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of a State, including an employee engaged in this activity who is transferred to a supervisory or administrative position. For the purpose of this subsection, 'detention' includes the duties of employees assigned to guard individuals incarcerated in any penal institution."(5)
"(a) ... a work station within the confines of a prison system which entails the authority and responsibility to write disciplinary tickets; a position which requires substantial work time in the supervision and custody of inmates; or a position which entails the responsibility for discipline, enforcing institution rules, and the authority to write disciplinary tickets. In addition, covered position includes that period of time a person is employed as a security officer at a hospital for the criminally insane if the person is presently employed by the department of corrections."
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