Opinion No. 70-115 (1970) Ag ( 1970 )

POLICEMEN — MANDATORY RETIREMENT AGE The City of Seminole, Oklahoma, has the authority to fix a mandatory retirement age of sixty-five (65) years for policemen. The Attorney General has had under consideration your recent letter wherein you state: "The City of Seminole is in need of an opinion in regard to the Police Pension and Retirement System. Oklahoma Statutes, Title 11, Chapter 13A, Sections 541 through 541x, govern the Police pension. Our question concerns Section 541k, 'When a Policeman reaches the age of 70 years he must retire, unless at the request of the Chief of Police of said city or town, the Board of Trustees or City Council grants him an extension of one year.' The City Codes regarding personnel, Title 1, Chapter 19, Section 3, concerning retirement, states, 'As a matter of policy, subject to review by the Mayor and Council, all employees shall be released from employment upon attaining the age of 65 years."' In connection therewith you in effect ask the following question: Does the governing board of the City of Seminole, Oklahoma, have the authority to fix a mandatory retirement age of 65 years for policemen? Title 11 O.S. 642j [11-642j] (1961) provides in part: "The mayor and council shall have the care, management and control of the city and its finances, and shall have power to enact, ordain, alter, modify or repeal any and all ordinances not repugnant to the laws of the United States and the Constitution and laws of this State, as they shall deem expedient and for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, and the benefit of trade and commerce, and the health of the inhabitants thereof, and such ordinances, rules and regulations as may be necessary to carry such power into effect. . . ." Title 11 O.S. Supp. 1969, 541k, [11-541k] provides in part: "Every city or town which has . . . established a Board of Trustees as by this act . . . is hereby authorized . . . to pay out of any funds, in its Pension and Retirement System, a service pension to any policeman eligible as hereinafter provided . . . When a policeman reaches the age of seventy (70) years he must retire, unless . . . the Board of Trustees or City Council grants him an extension. . . ." Title 11 O.S. 541a [11-541a] (1969), provides in part: "Once a city adopts the Police Pension and Retirement System, such city cannot disband any part of the Pension and Retirement System unless recommended by the Board of Trustees and in no event shall the city disband the Pension and Retirement System without a vote of a majority of the qualified electors voting thereon in the city or town whose pension system would be affected . . . ." Title 1, Chapter 19, Section 3 of the ordinances of the City of Seminole, Oklahoma (which we are advised has a statutory aldermanic form of city government, as opposed to other forms of city governments) provides: "As a matter of policy, subject to review by the Mayor and Council, all employees shall be released from employment upon attaining the age of sixty-five (65) years." Title 1, Chapter 19, Section 4 of the ordinances of the City of Seminole, Oklahoma, in part provides: "It is hereby declared to be the policy and purpose of the City, to extend to the employees and officials thereof, not excluded by law or this Ordinance, whether employed in connection with a governmental or proprietary function, the benefits of the System of Federal Old-Age and Survivors Insurance as authorized by the Federal Social Security Act and amendments thereto, including Public Law 734 — 81st Congress. In pursuance of said policy, and for that purpose, the City shall take such action as may be required by applicable State or Federal Laws or regulations. The Mayor of the City is hereby authorized and directed to execute all necessary agreements and amendments thereto with the State Department of Public Welfare, as agent or agency, to secure coverage of employees and officials as provided herein. "(d) There is hereby excluded from this Ordinance any authority to make any agreement with respect to any position any employee or official now covered or authorized to be covered by any other Ordinance creating any retirement system for any employee or official of the City." Title 2, Chapter 1, Section 3 of the ordinances of the City of Seminole provides in pertinent part: "There is hereby established in the City a Pension and Retirement System for the purpose of providing pension retirement allowances . . . to policemen. . . ." Title 2, Chapter 1, Section 7 of the ordinances of the City of Seminole provides in pertinent part: "Service pensions may be paid out of the System to any policeman . . . When a policeman reaches the age of seventy (70) years he must retire, unless . . . extended . . . ." Title 36 O.S. 312.1 [36-312.1] (1969) provides in part: "(b) Three-fourths (3/4) or seventy-five percent (75%) of the four percent (4%) taxes collected in premiums by insurance companies, other than fire insurance companies, on automobile liability and property damage, and burglary and theft insurance in this state, shall be allocated and disbursed annually to the Police Pension and Retirement System of each city or town of this state having such a system under the provisions of 11 O.S. 1961 541 [11-541] through 541w, in the proportion that the total amount of salaries paid to police officers participating and entitled to participate in all such systems, said disbursements to be deposited and expended by each system as, and for the same purpose other funds thereof are deposited and expended . . . ." In a recent Attorney General Opinion from this office (69-360) the last quoted language from Title 36 was interpreted as removing the question of eligibility of a policeman to pensions from the realm of matters which are of purely municipal concern. This office said: "A police officer over forty (40) years of age, employed since April 17, 1969, is not eligible to participate in the police pension or retirement plan of a city established pursuant to 11 O.S. 1961 541 [11-541] to 11 O.S.Supp. 1969, 541x." Section 11 O.S. 541x [11-541x], supra, required that a police officer, when accepted for the pension plan, could not be more than thirty-five years of age. The above cited opinion also held that, although the State of Oklahoma had an interest in whom a municipality attempted to make eligible for the provisions of the pension plan set up pursuant to the Title 11 and Title 36 provisions, supra: "A City in Oklahoma has the 'right and power' to employ a police officer over thirty-five (35) years of age who otherwise qualifies. Such officer, however, cannot be accepted for pension plan membership under Section 541s, supra." Therefore, based upon the above quoted statutes and ordinances and upon the reasoning in the earlier opinion, it is apparent that the State of Oklahoma has an interest in the pension plan set up by the City of Seminole pursuant to the provisions of 11 O.S. 1961 541 [11-541] through 11 O.S. 541x [11-541x] (1969) of which 11 O.S. 541k [11-541k] (1969) is a part. However, it is further recognized that a city has the 'right and power' to enact ordinances to put into effect the power the city possesses to manage and control the affairs of the city. Therefore, it is the opinion of the Attorney General that the City of Seminole does have the authority to fix a mandatory retirement age of sixty-five (65) years for policemen. However, it appears that the City of Seminole, in addition to its general ordinance concerning retirement, supra, has adopted an ordinance setting seventy as the age at which a police officer must retire (Title 2, Chapter 1, Section 7, supra). The general rule of construction provides that when there is a general statute which is broad enough to cover a subject and also a special statute which covers the particular subject, the special statute will control over the general. State ex rel Williamson v. Evans, Okl.319 P.2d 1112 (1957); In re Adoption of Lewis, Okl.,380 P.2d 697 (1963). It is therefore apparent that the City of Seminole has prescribed a mandatory retirement age for policemen at 70 years of age and has set the age of 65 as the mandatory retirement age for all other employees, subject to specific exceptions and extensions. We express no opinion on the effect, if any, upon the rights of the Seminole police officers in the Police Pension and Retirement System of Seminole, Oklahoma, should the City of Seminole lower its mandatory retirement age for policemen from 70 to 65 years of age. (William M. Bonnell) ** SEE: OPINION NO. 70-348 (1970) ** ** SEE: OPINION NO. 78-175 (1978) **