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273642 WHITE - CITV CLERK " 1 i-MN•:� � FINANCE COl1I1C11 �CA�vARV - DEPARTMENT GI �Y OF SAINT PAUL BLUE -MAYOR File NO• �� . } • Ordin�nce Ordinance N�. � Presented By Referred To Committee: Date Out of Committee By Date An Ordinance establishing a mandatory retirement age of 65 for City employees in the uniformed division of the ?�±� � Fire Departmentl�. � THE COL'NCIL OF THE CITY OF SAINT PAUL DOES ORDAIN: Section 1. LEGISLATIVE BACKGROUND. In 1978 Congress passed an Act which amended the present Age Discrimination Act. This new law provides that as of January l, 1979 the City can no longer require mandatory retirement for its employees at age 65. However, this act also provides that it is not unlawful to have a mandatory retirement age under age 70 if age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where differentiation is based upon reasonable factors other than age. Pursuant to the provisions of this law, the City Council ha� held - - _._a hearing to determine whether a manda�c5�y retirement age of 65 for uniformed "_'__� �__� Fire employees is a bona fide occupational qualification. Section 2. FINDINGS OF FACT. Based upon evidence and testimony submitted to the City Council, the Council hereby makes the following findings: l. The duties of firefighter require that fire- fighters be in excellent physical condition. COUNCILMEIV Requested by Department of: Yeas Nays Butler [n Favor Hozza Hunt L.evine Against BY Maddox Showalter Tedesco Form A proved y Ci y A r ey Adop�te�d by Council: Date Certified Passed by Council Secretary BY • By Approved by Mayor: Date Approved by Mayor for Submission to Council By By , � .. . , .. I�� 1 � � �� 2. The duties of firefighter require that fire- �ighters periodically must be able to perform severely strenuous acts in the course of fire- fighting and life saving. � -�'-- �--�� - - .�.�_gv��ema�--�e�.��e—�t�a t th.r�,z-b� �--�e��e�t--��s�ea� ee��e�. �-��e-�s�}ee�e� �e-�e=�e�-�� t,P �� i-n ncr�n,�-�--��V�2a"c�7.�_s.}r ti, i � - --- -- -----1 ..__�._.,....�., r,�.x.��.�..� u.�.�� 31'1d �Fi��hor� �-l�o.� ro � � �}}A p0�-�-C�IY1aTl--�Q II��—av�l-remc.l�e> �i s��v.rr-�G��—�-��c�'= �'u'rCY'�"i ti � F�� 3 �. The normal operation and primary purpose of the l��e-� Fire Department� is to provide for the safety and protection of the citizens of the City, and would include the duties set forth above. 4 Y�. The failure of a -��' � ~-~-- �� fireman to perform L------••___ -- his duties could mean the difference between life and death for the citizens of Saint Paul. 5 �. There is medical evidence that there is a relationship between advancing age and the physical inability to respond to the needs or duties of i^'___�_..�__ _:a firemen. b "�. There is medical evidence that there is a relationship between advancing age and the mental inability to respond to the needs or duties of -�� ^� � °�-' firemen. °J '�. A mandatory retirement age of 65 for �e-- �ten-t�n� firemen is a bona fide occupational qualification necessary to fully protect the property and public safety of the citizens of the City. -2- WHITE - CITV CLERK ��1��T� �PINK � - FINANCE �COUI1C11 {� CANARV -DEPARTMENT GITY OF SAINT PAUL BI.UE -MAVOR File • ' , Ordin�nce Ordinance N�. �� Presented By Referred To Committee: Date Out of Committee By Date $ 1�9.. There is no alternative policy which could be established by the City and still fully protect the property and public safety of the citizens of the City. 5ection 3. MANDATORY RETIREMENT AGE. A mandatory retirement age of 65 for all uniformed �e��e��. fire employees is hereby established, pursuant to the above findings . This act requires that all employees in the uniformed ge3�ee� �- fire divisions must retire on the first day of the month immediately following the month in which the employee reaches age 65. This provision shall be effective as of the effective date of this ordinance. Section 4 . sixty (�0) This ordinance shall take effect and be in force ''c�irt�r (3�) days from and after its passage, approval and publication. -3- COUIVCILMEN Requested by Department of: Yeas Nays ��C`�� In Favor Hozza Hunt �j Levine _s.L Against BY Maddox Showalter T��" �g�9 Form pproved y Ci y torney Adopt ounc : Date �Efi i $ ertified P by C '1 SeCreta BY � � By l/!�� Ap r d by Mayor: e OCT 2 3 1979 Approved by Mayor for Submission to Council By By P�.tSH� 0 CT 2 7197� - . � � . .� . ��i1 _ STATEMENT OF EDWARD HEINEN, ASSISTANT FIRE CHIEF, GIVEN AT THE FINANCE, MANAGEMENT AND PERSONNEL COMMITTEE, AUGUST 27, 1979, RELATIIIE TO THE ORDINANCE DEALING WITH RETIREMENT AGE FOR POLICE AND FIRE PERSONNEL. ,� ,�:;;.=�� .; I 'm Edward Heinen, Assistant Fire Chief, and when this was brought to our attention last week we didn't have time to really address Mr. Schmidt's letter, but since that time we went back and we kind of re-evaluated and we looked over the policy we have presented in the ordinance and we feel it still is valid, even for the supervisory personnel . I have a statement here to make and it says - Attorneys for George Schmidt, Second District Chief for the St. Paul Fire Department, have requested that supervisory personnel be excluded from the proposed ordinance concerning mandatory retirement for the police and fire departments. A bona fide occupationa] qualification is necessary to justify mandatory retirement for age 70. Because of the unusual physical strength and stamina demanded of firefighters, they are included in the occupational qualification. Attorneys for Chief Schmidt maintain that because he is in a supervisory position this occupational qualification does not apply. . The district chief position is not a desk job. District chiefs go to every regular alarm fire in their districts so that they may directly supervise the activities of their company. They enter burning buildings to give directions to the men inside. Mental ability is certainly a major qualification for the position, but the job is also physically demanding. We reviewed "injured on duty" records of the district chiefs , and we find that from 1972 to August of this year the district chiefs have submitted 104 injury reports. This averages almost 15 injuries per year for district chiefs. This affirms our position that this position is physical as well as supervisory. In breaking down the ages of these injuries, their ages range from 42 to 65 and it shows kind of a progress ive compilation of the injury reports of the district chiefs that as they increase in number of age, the �incidences are increasing. I don't want to make this personal , but Chief Schmidt has always been a good, intelligent chief and he is a very agressive chief, but to say that his is a strictly supervisory job with no physical attachment to it, r � -': ' , .' , ,-'�lt�� -2- I guess, his injury record is kind of proof that district chiefs also face the same physical hazards of all of the fire department. George, like I said, is very agressive in his firefighting activity and he has 25 injury reports since 1972 -- those are reoccurrences of course of original injuries, so to say it's strictly a supervisory job in our estimation it is also physical and a very demanding job. # � # � , . . )(�� , , . ; . STATETtEI1T OF DENI�IIS KESSLER, SR. P�lembers of the City Council, my name is Dennis Kessler and I am a captain in the St . Paul Fire Department . I am also president of the Uniformed Fire Fighters of St . Paul, Local 21, cvhich rep�esents all nonsupervisory firefighters in St . Paul . . ti'tembers of the Fire Administration and Local 21 have been working for some time on a problem which has a direct , substantial effect on our ability to provide effective fire protection to the citizens of this city. F.s you may know, fighting fires, the primary responsibility of th�: menbers of Local 21 , is, at times, a back breaking jdb . CarrS�ing heavy bundles of llose into sr�oke filled buildings in temp2l'�tui?s in excess of 100° is one of the rriariy strenuous tas�:s we are called upon to perform. During �,inter, we perform some ci our activities in subzero weather, then enter the very riot r�urn�ng o�aildin� and then r�turn to the cold outside . I i•�ill not dwell on 41_1 the thinbs firefighte�s do. It is enouGh to say that it is principally a young man' s game . Exper:�ence , �;ained only through working in the ranl;s for years , is invaluable . However, we need the s�rength of youth in order Lo provide tne fire pr•otection Lhe citizens of .St . Paul deserve . That is �•ahy Local 21 is in favor of the mandatory age 65 retirement _law. Al1 of' us realize that �enerally speaking, we �et less efficierit as Vre �et older . A 65 year old man can not peri orm n��avy , exhaustino tas�.s as t•:ell as a youn��er man � . s , . 9 � �� can . Given the life or death nature of the services we at times provide , the City cannot afford to allow firefighters who have reached retirement age to remain on active duty. To do so endangers the lives of other members of the fire department and the general public . Local 21 believes that , despite recent federal, legislation, the P�linnesota law which requires retirement at age 65 for all members of police and fire departments in cities of the first cl.ass is enforceable . As you may know, the Age Discrimination in Employment Act , as amended, prohibits certain discriminatory conduct on �he part of employers directed at employees between the ages of 40 and 70 . Ho�aever, employers may still enforce mandatory retire- ment recuirements at any aJe , "where age is a bona fide occupational qualific�t�on reasonably necessary to the normal operation of the particular business . " It is beyond doubt that age is a bona fide occupational qualiiication reasonably necessary to the normal operation of our fir•e department . The I�iinnesota retirement law was designed t;o remove from active duty fire fighters who have reached an age where the hazards of their occupation and the physical demands necessary to perf'orm their duties make it desirable that they be replaced by younger men . It is the position of Local 21 that the City should enforce this law, for the safety of its members and for• the safety of tlie citizens of St . Paul . Thank you . , .;� , ' � FOSTER. JENSEN & SHORT ATTORNEYS AT LAW ROBEFtT J. FOSTER B26 MIDLAND BANK BUILDING AraEa CODE 612 THOMAS H. JENSEN 401 SECOND AVE. SOUTH Tei..EPHON� 332-0337 � BRIAN P. SHORT MINNEAPOLIS. MINNESOTA 55401 July 2 , 1979 Mr. Dennis Kessler President Uniformed Firefig�ters of St . Paul, Local 21 1029 Edmund Avenue St . Paul, MN 55104 Dear Captain Kessler : You have asked this office for an opinion regarding the impact of the 1978 Amendments to the Age Discrimination in Employment Act of 1967 on the Minnesota State mandatory fire and police retirement law. Minn. Stat . §423 . 075 provides , in pertinent part : [e]very employee officer or person on the payroll of any fire . . . department in any city of the first class who is designated as a future beneficiary by the rules of any tax aided pension, relief, or retirement fund established and maintained by authority of laws of this state, shall retire upon reaching the age of 65 years . . . In the last session, the Legislature enacted a law prohibiting mandatory retirement of certain public and private employees before the age of 70 . 1979 Session Laws Ch. 40 . However, §423 • 075 was not affected by this new law and remains in full force and effect . In 1967 , the Congress of the United States enacted the Age Discrimination in Employment Act . That law, inter alia, made it unlawful for an employer : ..� � � Tir. Dennis Kessler July 2, 1979 Page Two (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions , or privileges of employment , because of such individual ' s age ; (2 ) to limit , segregate , or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual ' s age . 29 U.S .C . §623. The benefits of this Act were extended to all individuals between the ages of fourty and sixty-five. §631 . "Employer" is defined to include States and their political subdivisions. §630(b) . In 1978, §631 of the Act was amended to extend its coverage to all those who are "at least 40 years of age but less than 70 years of age. " However, under the federal law, it is not unlawful for an employer to enforce a mandatory retirement requirement "where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business . " §623(f) (1) . In enacting Minn. Stat . §423. 075, it is clear that the Minnesota legislature found that age is a BFOQ for most members of fire departments in cities of the first class . Therefore , this state statute is enforceable . As you might expect , §423. 075 has been the sub,�ect of a number of lawsuits since its enactment . Because of this, our Supreme Court has had an opportunity to analyze and discuss it . In Fabio v. City of St . Paul, 267 Minn. 273, 126 N.W. 2d 259 (196 , plaintiff sought an order of the court en3oining the City of St . Paul from requiring him to retire from the police department at age 65 and declaring that §423• 075 was unconstitutional . The Supreme Court concluded that §423 . 075 was in fact constitutional, recognizing that its "basic object" was to "remove from active duty police officers who have reached an age where the hazards of their occupation and the physical demands necessary to perform their duties make it desirable that they be replaced by younger employees . " Id. at 276 . This conclusion was reaffirmed by the court in Scannell v. City of St . Paul, 163 IJ.W. 2d $72 (1969) . Mr. Dennis Kessler July 2 , 1979 Page Three . Thus, in my opinion, our Supreme Court has already recognized that age is a BFOQ for police and fire service and that the legislature was not acting unreasonably when it selected 65 as the mandatory retirement age . In 1974 , the Court of Appeals for the Seventh Circuit considered this issue of bona fide occupational qualifications and the burden of proof imposed on the employer. The court made a number of comments which shed some light on our problem. In that case, Greyhound Lines, Inc . , the employer, did not hire as a bus driver anyone over 35 years of age . The government sued it , alleging that its maximum hiring age policy for bus drivers violated the Age Discrimination in Employment Act . Greyhound admitted that it refused to hire individuals because of age, but that its maximum age hiring policy was premised on considerations of public safety and as such constituted "bona fide occupational qualifications . " In this case, the court held that it is proper to consider, in determining whether age is a BFOQ, not just the welfare of the job applicant but also the well being and safety of bus passengers and other highway motorists . In other� words , the general public . In our case, we would properly be able to consider the safety and well being of not only the over-65 firefighters , but that of his co-workers and the general public . The court held that : When the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great , the employer bears a correspondingly lighter burden to show that his employment criteria are �ob related. � � � Due to such compelling concerns for safety , it is not necessary that Greyhound show that all or substantially all bus driver applicants over fourty could not perform safely . Rather, to the extent that the elimination of Greyhound' s hiring policy may impede the attainment of its goal of � , , -. . . T�Ir. Dennis Kessler July 2 , 1979 Page Four safety, it must be said that such action undermines the essense of Greyhound' s operations . Stated differently , Greyhound must demonstrate it has a rational basis in fact to believe that elimination of its maximum hiring age will increase the likelihood of risk of harm to its passengers . Greyhound need only demonstrate, however, a minimum increase in risk of harm for it is enough to show that elimination of the hiring policy might jeopardize the life of one more person than might otherwise occur under the present hiring practice. Hod son v. Greyhound Lines Inc . , 7 EDP ¶9286 7th Cir. 197 . In conclusion, because the mandatory age of 65 retirement requirement of §423. 075 is a safety requirement , reasonably necessary to the safe , efficient operation of the Fire Department , it is a BFOQ. Therefore , P�Iinn. Stat . §423. 075 is enforceable . Minn. Stat . §423 . 075 imposes a nondiscretionary duty upon the city . Thus , if it is not enforcing this mandatory age 65 retirement law, Local 21, or any other interested party, could initiate a declaratory judgment action in district court , which, if successful, would compel the city to comply with the law. I would, of course, be happy to discuss a�l legal remedies available to Local 21 at your convenience . Sincerely, FOSTER, JENSEN & SHORT ',- �'"'- `��-�"'` / Brian P. Short BPS/crw cc : P�Ir. Warren Schaub / / / / �t � f4 �. 1! i7 `,/`/�� '�w '" � i �_ .� / • ` , • � �� • I RECEN7LY THE STATE OF MINNESOTA AtJD THE FEDERAL GOVERNMENT HAVE MADE TH� DECISION TO RAISE THE A6E OF RETIREMENT TO 70 . THE FIRE ADMINISTRATION WISHES TO EXEMPT FIREFIGHTERS FROM THIS RULING AND LEAUE THEIR AGE OF RETiREMENT AT 65. THE STATE OF MINNESOTA HAS DECIDED TO EXEMPT FIREFIGHTERS . ACCORDING 70 THE MINNESOTA MAN- DA70RY RETI REMEN7 ACT OF 1978 FI REF( GHTERS ARE SUE3,IECT TO COMPUL- SORY RETIREMEPlT AT 651 IF THE INDIVIDUAL CITY DESIRES , FIREFIGHTERS FOR THE FEDERAL GOVERP�MENT ARE EXEt1PT FROM THE NEW FEDERAL ACT BE- � � CAUSE OF A BONA FIDE OCCUPATIONAL QUALIFICATION WHICH "PROVIDES CpM- PULSORY AGE LIMITS FOR HIRING AND COMPULSORY RETIREMENT , WITHOUT REFERENCE TO THE INQIVIDUAL' S ACTUAL PHYSiCAL CONDITION AT THE TERMINAL AGc , WHEN SUCH CONDITIONS ARE CLEARLY IMPOSED FOR THE CON- VENIENCE OF THE PUBLIC.."� THESE LAWS SEEM TO INDICATE THAT IT WAS THE INTENT OF BOTH THE STATE AND THE FEDERAL GOVEP.NNENT TO EXEMPT FIREFIGHTERS FROM THE AMENDED ACTS , BECAUSE OF THE UNUSUAL NATURE OF THE WORK PERFORFIED BY THEt1. � THE EXEM°TIONS AP,E NOT MEATIT TO DISCRIMINATE AGAINST FIREFIGHTERS , OR TO IMPLY THAT THEY 41ILL 6ECOME SENILE BEFORE OTHER WORKERS . THEY ' MERELY REFLECT AN. UNDERSTANDiNG THAT A FIREFIGHTER' S JOB IS MUCH DI FFERENT THAN THAT OF THE AVERAGE WORKER , AND SHOULD BE TREATED �1S SUCH. SAINT Pl1Ul FIREFIGHTEFS HAVE �1 1JORK SCHEDULE , PENSION PLAN � PROMOTION , HIRING , AND COMPENSATION SYSTEM THAT IS DIFFERENT FROM THAT OF OTHER C17Y WORKERS . THESE DIFFEP,EN �ES ARE A 4tEFLECTlON OF THE PHYSICAL AND EMOTIONAL DEMANDS MADE UPON FIREFIGHTERS BY THEIR WORK , IT IS ONLY NATUP,AL THAT THE RETI REMENT AGE OF FI REFI GHTERS �`.LSO REFLECT DI FFERENCE5I �J THE WORK. , .t , 4 + ., 1 ,w 4 41�._ " v 1 �� • ,1; ', ~ '' �t •:.• . M ,n � '�.� • . ' � , . �� , � .� . . � . . `+ `�.. �,. • - . . � . , .. '•A , . 1�L~ . +.'Y'..•� ' ��. . � � , ' . � . �. . � . . �� MOST CITY JOBS DO NOT PHYSICALLY DEMAND ANYTHING MORE THAN MODERATELY GOOD HEALTH . THIS IS NOT TRUE OF FIREFIGhiTING. APPENDIX ' A' GIVES THE JOB SPECIFiCATIONS FOR FIREFIGHTERS IN THE CITY OF SAINT PAUL. THE WORK PERFORMED DEMANDS BOTN STRENGTH AND STAMINA. THE JOB AP- PLICANT IS REQUIRED TO PASS A RIGOROUS PHYSICAL EXAMINATION. THIS EXAMINATION PROCEDUR� IS ANOTHER EXAMPLE OF THE NEED TO TREAT SpME ASPECTS OF THE FIREFIGHTER ' S JOB DIFFERENTLY THAN OTHER CITY EMPLQY- MENT. � PHYS I CAL STRENGTH AND STAMINA ARE A VI TAL PART OF SUCCESSFUL Fi RE� � FIGHTIWG. TNE FIREFIGHTER 41H0 NO LONGER POSSESSES THESE QUALITIES ENDANGERS NOT ONLY HIMSELF , BUT THE PUBLIC , OTHER FIREFIGHTERS , AND PROPER7Y . THE JOB BECOMES INCREASINGLY DIFFICULT AS ONE GROWS OLDER. FIREFIGHTERS THEMSELVES REALIZE TNIS . THE GREAT MAJORITY (86� IN THE YEARS 1970- 1976) RETI RE BEFORE AGE 65 . � THE AVERAGE RETI REMENT AGE OF SAINT PAUL FIREFIGHTERS DURING THE YEARS 1970-1976 W AS 57. 8. THE PENSION SYSTEM IS DESIGNED SO THAT A FIREFIGHTER MAY RETIRE WITH FULL PENSION AFTER 25 YEARS OF SERVICE. FI REFI GHTERS WNO Ri:t�tAIN ON ACTI VE FI REFI GHTING DUTY PAS7 THE AGE OF 60 ARE MUCH MORE LIKELY TO BE INJURED IN THE LINE OF DUTY . . _3_ TF-�'�I ARE YOUNG�R FIREFIGH'I'IIZS• F3ACK PROBLF�`tiS �1ND IIF.111�r FAII�JRE p,RE 'I�,,�p C(1v1MON CAUSES OF DISABILITY IN TI�E OLDER FIREF'IGIfi1�R• J.D. TIME IAST 14 DAYS OR UJNGER JUNE 14, 1977 - JUNE 15, 1978 AGE OF PERSON:VE�, Ui�DER 40 40-49 50-59 60+ � 180 (approx) 107 145 27 � NUAIBER O� MEN 16 11 16 9 , I��IBER OF J.D. � 10.2� ll0 33� PERCE�i'T OF J.D. 8.8-s i3ecause type of duty, activity level of Campany, and exact nlmmber of inen varies, percentages may be slightly off. Sick Leave is not considered. �3EC'AUSE OF THE PF3YSICAL AND II�10TIONAL BF�IANDS OF FIRF�'IGHTING, A g�l �F�,�IIVT AGE OF 70 OR OLDER IS NOT PRACTICAL IOR EIZ'�IER THE E'IREF'IGIPi'ER OR `i'��. CITY. MOST FIRF�E'IC�PrEI'•S I�Ia� `i'f�IS ADID RE'i'IRE BEF'ORE THE AGE OF 60. RETI�'� AT AGE 65 SIP'[I'LY REINFORCES TEiE C�IOICE T�3�1T N10ST FI�'IGH`ITRS WILL M�KE �1NYfnT�Y. 1 lo t Act of 1967, a60.102, Age Discrimination in IInp y�i Bona fide occupational qualifications. : -• . -�'•� - g �,�G"� Attachment II ta CS� OL 338- i2 .,.. � � .. - � ' : , , ' L11TED STA"I'ES GOVER'��fE�T � �f U.S. GIVIL SERVICE COMMISSION ;;-; .� � --.' ri�� JL�VIlLO/ ��W� ��)� � R " U" aa►¢: FE S 1 1978 �;.:`'>:�i $ub�ect: -�_�'-'Qf�< Reec►p�oyment. of Lac� Enforcement Employees an d Fire fig h ters r:t-.,.. -. In Reply R¢fer 70: ��^�� 'nfio Are P.Qquired to Retire by 5 U.S.C. 8335(g) GC-LEG 1 �'-`> ''' Fr�rn: - r 77-393 ;L��::. x. Yatrick Swygert.. / `� �- Yo�� Rel�►��c�: �' ��J�—�:i�-�� ' :�:�;� Gen_ral Counsel .. 2�f . �).`# • Arch S. Ramsays Directar • -� jo: �:r'. =.:' Bureau of Recruiting and Examining , �4��! � Cr �_ ).� � r� ,� t �: ,� This responds to your memorandum of �fay 2, 1977f �:52rein you request our �`� advice concerning the reemployment in laW enforcemant or firefi�hting _ ::� positions of law enforcement employees or firefighters �aho have been ' �: required to retire .in accordance with the provisions of S U.S,C. 8335(g)� one of the provisions added to title S of the United States Code by P.L. �T � 43-350. _ ¥ ; Public Law 93-350s Ju2y 12s 1974, amended title S with r2spe:,t to ; providing improved retirement benefits for Federal law enforcemeni and • firefighting personnel. Senate Report ;:o. 919 of June 19, 1974, part of the legislative history of H.R. 9281 (P.L. 93-350�� states in pertinent � � �, pert as follo�vs (p. 2): , � � "The his[ory of retirement legislation dealing with Iaw ' enforcemen[ officers and firefighters shows Congressional intent to liberalize retirement provisions so as to make it teasible for these employees to retire at age 50. This �intent has been based on_ the nature of the Work _inyolvEd_and.. the determination that these occupations should be composed� � � insefar as possible, of young`men and�woman physically capable of ineeting the vigorous demands of occupations which are far more taxing physically than �ost in the Federal Service. 1fi ey are occupations calling for [he strength an� stamina of the y.oung rather than the middle aged. Older e�:ployees in these occupations should be encouragad to retire." , Nouse Report r:o. 93-463� on H.R. 9281, September 11, I°73, at pp. 2-3 . �akes clear that to achieve the basic oojective as noted c►bove--of the maintenance of s relatively young, vigorous, and effective law enforcenent and firefighting work force--the bill required for the first time the �andatory re[ire^�ent of sn other�ise eligible e�ployee upon his sttainment of age SS, or upon completion of 20 years of Iaw enforcement and/or fighting service, if beyond that ag2. r �� K�ep ITrr�dom in Yor�r Frrturr Ii�itl� U.S. Sau�r:gf B��rds . csc coRn+ 63I MOYEMBER 19St � � . . .. , Provision was made for an employing aoe�cy to exempt an employee from automatic separation at age SS when it is deemed to be in the public inLerest.` However, such exemption .;ay not extend beyond the employee�s 60th birthday. TEiese mandatory retireu:ent provisions are codified at ' S U.S.C. 8335(g), which state in pertinent part: � - , "(g) A law enforcement officer or a firefighter who is otherwise eligitile for i�cnediate retzrement under section 8336(c) of this title shall be separated from the service on the last day of the month in which he becomes 55 years of age or comoletes 20 years of service � if then over that age. The hezd of the agency� when in • _ his jud�ment the public interest so requires, may exempt such an employee from automatic separation under this subsection until that employee becomes b0 years of age. To facilitate compulsory retirement at aoe 553 the bill also suthorized ' [he administrative fixing of mini�num and maximum limits of age within which original appointments to such positions may be snade. This section of the bill is codified at 5 U.S.C. 3307(d) which provides as follows: "The head of any agency may, with the concurrence of such agent as the President may designate, de[ermine and fix the minzmum and maximum limits of age within which an original appointment may be made for position as a law enforcement officer or firefighters as defined by section 8331(20) and (21)� respectively, of this title." Under E.O. 11817, November 5s 1974s the Civil Service Couaniasion was designated as the President's agent f�r this purpose. , The legislative history and the statutory provisions set forth above are, in our views clearly indicative of an intent on the part of Congress to provide specifically for the peremptory separation of law enforcement employees and firefighters to effectuate its goals of attaining a young and vigorous work force. The only exception to the mandatory retiremenC provision is one to be made by the head of the agency when in his judgment the public interest so requiress and then only until the employee becomes 60 years of age (section 8335(g)). Given this legislative intent, it is our opinion that annuitants would be foreclosed from reemployrient in law enforcer.:ent and firefighter positioas. To hold otherwise would be to frustrate ttie purpose of P.L. 93-350} to � ----------- - ,�_. ;� . . . �� :. ; Attachr,.ecit II to CSC OL 338- 2� ( V �1:: . • �if w'� «.�L r� ':� • . _ " r .. • A�.. J:, . 1: ' . f,�'r:'f r,1 '��e_4;( . ' �`:1 =�s w •r.::��1 � , Z�r.} " - � . � . t '`'t� maintain a young and vigorous force. By including the mandatorp' . :,.,-t . . �.. ;';� separation proyision together with the entry age zestriction Congress• - _ ��`� sought to assure the continuance of a youthful force. TEiuss the law• . • :�=.� ;�'.; would serve to defeat the purpose if an employee could be forced out by ,:,.�. be reen Io ed uzeder ;� the manda[ory provision and then the next day, p y C. 4 3323 c.:y � rules applicable to reemployed annuitants generally (S U.S. ��'�� (b)). Furthers were the law so construed, the courts may view the ��= mandatory provisio^ as. arbitrary for it would operate to denp continued employment to those not offered reemployment by the agency. � okin to the rules of statutory construction, additional support��may � Lo $ � be found for interpreting the �andatory provision as complemeriLing the Congressional purpose and for reconciling any apparent confli�ts with � other Iaws• The legal principle of applying Congressiona2 intent is� �; decidedly expressed in Sutherland Statutory Construction : as "For the . '� interpzetation of statutes, 'intent of the legislature'. is the ` ' : criterions or test� that is most of[en recited. An alinost overwhelming majority of judicial opinions on statutory issues are written in the � . idiom of legislative intent. The reason £or this doubtless lies in an assumption Chat an obligation to construe statutes �n such a way as to � • �'1 carry out the wills real or attributed� of the la•,amaking brar�ch :of. ihe government is mandated by grinciples of separation of..powers". , � - __. _ _ _ - : -` While we recognize that an apparent conflict exists between 5 U.S.C:. � S 3323 (b), the general law authorizing. the reemploynent of annuitants.i aad P.L. .93-350� which in most cases would deny Iaw eaforcement and � � firefighter employees the reenployment option with respect to law' . , enfor�ement and firef ighter positionss we believe the laws can be .� . : xeconciled under estab2ished rules of �statutory construction. There is � the general principle that Acts of Congress should be held to harmqrii.ae � if anp reasonable nonconflicting interpretation could be placed upon , them. � ' - . The Supreme Couzt addressed the issue of conflicting statutes' in Morton v. Mancari� 417 U.S. 535 (1973) stating: - . "The courts are not at liberty to pick and choose among congressional enactments and when two statutes are capable o£ co-existence, it is the duty of the courts absent a clearly expressed congressional intention to the contrary, to regard each as effective". _ �� - - -- --- �— - .. -- . � � � / . lst /? 2nd �// �� 3rd 9�f-� Adopted " �� ,� _ Yeas Nays BU�R 9 �� HUNT /�/ 1 �/� � LEVINE z��s�� MADDOX SHOWALTER TEDESCO PRESIDENT (HOZZA) e . � � � Section 3323 (b) was enacted into law in 1956 as part of a major revision in the Civil Service Retirement law affecting most Government employees. Section 3323 (b) states: � Notwithstan3ing other statutes: an annuitant as � defined by sectioa 8331. of this title receiving annuity from the Civil Service Retirement and , Disability Fund is not barred by reason of his r�tired :.tatus from empZoyment in an appointive � position for which he is qualified. An annuitant so reemployed aerves at the will of the appointing suthority. The section serves as an exception to section 3323 (a) which is the � basic provision prescribing automatic separation at retirement age � �end prohibiting appointc�ents after retirement age. Although 5 O.S.C. � 3323 (b): and 5 U.S.C. § 8335 (g) the csandatory separation pravision vhich we read to normalZy bar law enforcement and firefighter annuitants from being reemployed in those positions, have equal etanding� we Could reconcile the apparent conflict in the two Acts • by considering the reeraployed �nnuitant restriction deduced from section 8335 (g} as an imp2ied exception to the general authority for reemploying annuitants in section 3323 (b). It is also noted that ihe rules vf atatutory construction permit the provisions of the more �pecific and later statute, P.�.. 93-350s to govern over the more general and earlier statute, S iJ.S.C. § 3323 (b). I.BStlys since Congress hae not addressQd the co-relation betweea the two Acts when it enacted P.L. 93-350 it is reasonable ta surmise that Congress did not contemplate or anticipate that so�e of the statutary • provisions may conflict. Rather one can assume that in Congress' desire to impgse the mandatory separation provision it mezely overZooked S II.S.C. 4 3323 {b). However, hy separating out the select group of employees for the mandatory separation requirement we concluc that Congress intended to set different separation standards far Isw enforcement and firefighter enployees and in so doing essentially exclude them from coverage under the general reemployed annuitant lnws S U.S.C. S 3323 (b). Arivnnc•�: edit'iw� I/12/79 +.� >�i ` Otiice of Pcrsonnel Mana�;�ment ;Y� � �� ` =*� � F{'M LeEter �04-zF . J �j p i�,, ,...� � f•- t{ Federat Personr�el tl1an�a! � st�s�� , �� °� Y �'-` �� Publ�.hed m adv�ncc FPM Letter 30p-26 0l �ntorporaUUn �n FPM wB�ECT: -•`~"-w�'... (:hapter 30U �t�temptoyment of Ftre�Ffghtecs and La� � � r��nt�� RETAW UNT� SUPfRSEDfD �Whca Are Required to Retin by S U.3.C. 8335(g) � T"'�1 �"�r� ��.•l CFF washington, D. C. 20415 L'.S.(:.$�� Februery 5� 1979 Heads o( D�partments and inde{�enden► Es�ablish+nents: 1. PPM Letter 300-23* advi;cd :�.�;encics thr,l fire fightcrs und law enforcement personne! who arc required to retire by 5 U.S.C. 5335(g) r�ay not t�e recmployed after eoe S5. Af the ret;uest of a � number of agencies, this opinion has been rec:onsidered by our General Cour.sel. � 2. Our General Counset now advises thai pecsons required to retire by 5 U.S.C. 8335(�} may be rcemploycd until age 60. �. The prohibition IIdII1TiSt the reemployment of fire fi�;hicrs nnd law enforcement perso��nel after age_60_t�pplies only to those_positions invol�•ed with the performnnce uf Rctur�i fir�ighlu?,�.��r l,nw enforcement duties. It does not appfy—To r�emp oymenf in position�ir�v`olvEd with the supervis►o�� o� • ad�ninistration of fire fighting and law enforeement fu�etions. 4. Persons reemployed in fire fighter or law enforeement positions who re�ch age 60 must be reassigned to other positior.:.� or must be ierminated. --- -- . �� • Jule M. Subarman Deputy Dfrector *FPN Letter 300-23 was �i�persedeci by Basic Instellment 251. • ��N�: Stuffin� Services 632-1533 Code: 300, �mployment (�;e�er.�l) � DiStr�ut►on: FY*f (actv^ncc cdi[i:�n liint[�•o). . f • 1 � APP�IDIX A Title o:: clus�: ` 1�I.i.l: FlGtilE1� Duties anci res��ur.sil�ilities: L''nder supervision, to perfon� ��ork as ordered hy �i :>«i��ricr, in tlie }�ro- tectio: oL life and property �ro..i Fire, an1 tlie e:titinbuistiin� af fir�s; anu to }�crforia r�latcu work <is assi�uecl. Faa_-�ples of work perFormed: � To respond to Iir�s ��ritt� a co:�,any, to connect up an�l tianclle ti�se lines and nuzzles, to place or hoist ladders, to turn wate►- on or oft, to use chemical e:titii��uist�ers, a:�es, bars, or hook:; as direeted, and to raise or low�r liosc to or Lro�i up�er and lowrr l�:vels. To ventil�:tc buinin�; buildin�s by oi eninn or brec�I:in�; doors or winuows o: cuttinf; l:��les tliroii�li �aalls or floors, and �o forcce entry by brel�:ic:, ��aSS� S�)C1Il��llli; Or forcin� G�OOrS� W1IlC1UWS O�C �,1CC'.;;� CL1tC1riS; �.00�S� b:�i:l� or �;ire �ratiii�;, or brealcing walls. To lubricate, CZC111 1r.d polish fire fi�htin� equiEncent. . To assist in tl�e r��ainteiiance ans care of quarters. 'ro act as a tillE•r mrin oi. a liook and ladder truck. to drive a Fir�� Ucl�artment a�:�bulance iahen assi��ie�l. To act as a membc+r oL a �'ire Del��rtment ar.ibulance crew an�l to att�nd sic�: � an:l injuii�d E,ersons wl:en assif;ned. To act in ea.er.t;cncies as F'i:e Equi��cnt O��e.rator or �'ire� Captain ot a compa:ly 4;heu a:;si�,ned. To act as aclmiriisLrative assistant to the Fire Cliicf:. . Tu act as chauft�ur Lor a ctiief officer. To act as aide to a chi_eL oFficer by tran5i�;ittin; l�.i� or�li�rs to cor.ip�n}' co;.::;,nclers or vtli�r .:ubordinates at fires, by tra.is.nittin�; messaEes by ra:lio, tele�h��ne or £ir� box, and by bein� respun�ible for the proper ca�e of tlie equi�rsent belonoin� to a cliief offic�r. Tlini�um qt:aliLica.tions: 1?i�li sc:�ool �;ruc�<<ation . Tlu�t be at least 15 years of age. Ttie age li�ait o£ tilis posit:ic�n will bc govecn�;l by aE�plicable St<zte Law. For ac;v,nce^rnt t� secon�l ycar, completion of the E irst ye.ir prabation I,cr�<>cl wl�.icl� iuclucic:.; _;cstistactory co:nl�letion ot f irst ycar ai��rcuticc- shi�� tr�ii.;ziu,�,. 1 i_ L�� IillC.� \'t':II- ;it:�� .;t�UTill`1''..<l;l .:C:tllt: , ..:it1 i ;ll:[_l)Y)' l'�t� ��tt•LiV:I CIIL :tu�:.l::�.�'i.l�':l i . ' Oi e�1Ci1 I7:CV1c)lt5 )'C:1C :� Ftl)�)ii::1C�Ci_Sllli) tC::111i11�;. / LCLCC�1Vi'_ Jlnuaty' 2/ , Z=+ l�} }�' I i:F. I'i�;1: ::;!C ' • �! ��,/_�� _�L.r �'(.)_ � �_).f.1. ��1'.� .�t.�.tt �j��_� �`�;�g " ___�.,�� 4� fl �� !r �, :\ O��.l�`.� _l�i �:_ _A.�t:l.,['. �. �'�'.� !'/�s' � , t i , � �'1' �l f )i_L� i•lllf`�s��J -' �;- ---- �� :.1��- �, . ; ,.. . :1. :`,;.' - _ :t l.:�� - �,��:��` �. :. �i.�;`� D a t� � August 27, 1979 : ��_ /�� . �.r � �:r�i �'J ;�fi � i� '~ �? � r� �l � `� i� f � i..._ � � 1.r i� l� 1 t 1 . ' - 3 O : �Qinr �u�l Ci i� �ounc�t - � i� C7 �~1� = C b;?�iiT f�l'�� O i7 F,�NANCE, MANAGEMENT AND PERSONNEI _ � , RUBY HUNT";`��ifmcn, mci;es fihe �€otic:lir�g repori on C. F. � � Clydinnnc� - � . . �) [� Resot�.�'rion � - . . - . � \ � . _ . • � O;�h 2r . � � �l �.,� ; ' The Finance Committee, at its meeting of August 27, 1979, recommended approva�l of the following: _ __ _ _ _ _ _ 1 . Recommended approva� of the resolution authorizing the Community Devel�opmEnt � , Block Grant Program budget transfers. - 2. Recommended approval. of the ordinance as drafted setting the age of retirement • . for police and fire .personnel at 65, and amending the ordinanee to become effective 60�days af�er passage rather than 30 days. Testimony by fire admin- istration to be attached ta ordinance. . - 3. R�commended approval of executing the contr.act to close out with HUD. the Neighborhoad Development Program. . j 7, SF.'.VF;�-I'�: x�I.CC)c: 5:11\T� I'_.L+E., :�!!:�\Lsa�e:ti S�!i': � f :' �I�i.