Carlyle v. Independent School District No. I-71 of McCurtain County , 62 O.B.A.J. 1905 ( 1991 )

MEMORANDUM OPINION

HANSEN, Judge:

Rosalie Carlyle (Carlyle) was a public school teacher, with tenure, employed by Independent School District No. 1-71 of McCurtain County, Oklahoma (School Board). The Oklahoma State Board of Education was dismissed as an unnecessary party to this action.

The following were among an extensive number of facts stipulated to by the parties. Carlyle, who at the time was 65 years old, was initially employed by School Board for the 1981-82 school year. Although School Board then had a policy of mandatory retirement at age 65, they chose not to enforce the policy in the belief it was rendered invalid by a 1978 amendment to the Federal Age Discrimination in Employment Act (29 U.S.C. §§ 621 et seq.). The amendment extended the upper limits of the Act s protection from 65 to 70 years of age. On August 12, 1985, School Board adopted a policy requiring mandatory retirement at age 70 for all employees. At that time Carlyle was the only teacher who had reached, or would reach, age 70 during the 1985-86 school year. School Board notified Carlyle in March 1986 that her contract would not be renewed. The parties further stipulated the sole reason for not renewing Carlyle’s contract was the mandatory retirement policy, and that she was an otherwise competent teacher.

Pursuant to the rights stated in the notification letter, Carlyle requested an administrative hearing under 70 O.S.1981 § 6-103.4. The written decision of the hearing judge found no authority for the hearing panel to rule on School Board’s actions in this case, in essence because mandatory age retirement was not one of the enumerated grounds for “nonreemployment” found in 70 O.S. 1981 § 6-103 (now 70 O.S. 1989 Supp. § 6-101.22).

Carlyle then filed this action, seeking a stay of the nonrenewal and reinstatement, or in the alternative, an order remanding the matter to the hearing panel for determination on the merits. The trial court affirmed School Board’s action, stating, in relevant part:

... it is the finding of the Court that the School Board did have the authority to make a mandatory retirement age, so long as such age was not discriminatory. Under the statutes of the United States and statutes of the State of Oklahoma, the drawing of that mandatory retirement age at age 70 does not appear to be discriminatory on its face.

Although the trial court expressly found authority for School Board to adopt its mandatory retirement age, it does not state the basis for such finding. Reading the trial court’s order as a whole, it is clear the possible discriminatory effect of the policy was the court’s main concern. ",Ve disagree with the finding of authority, making consideration of discriminatory effect unnecessary.

School districts are separate municipal corporations created by statute, with boards of education as their governing bodies. 70 O.S.1981 §§ 5-101 et seq. It has long been the law in Oklahoma that:

The school board has and can exercise those powers that are granted in express words; those fairly implied in or necessarily incidental to the powers expressly granted, and those essential to the declared objects and purposes of the corporation. Board of Education of Oklahoma City v. Cloudman, 185 Okla. 400, 92 P.2d 837, 841 (1939).

Carlyle asserts there is no express statutory authority empowering a local school board to establish mandatory retirement age. School Board directs us to no such authority, nor are we aware of any. The powers and duties of a board of education are set forth in considerable detail at 70 O.S.1989 Supp. § 5-117, which neither at the time of School Board’s action, nor now, makes any specific reference to retirement.

School Board directs our attention to § 5-117(E), which provides:

The Board of Education of each school district shall adopt and maintain on file in the office of the superintendent of schools an appropriate personnel policy and sick leave guide. The guide shall be made available to the public.

Although School Board does not actually say so, we assume it contends authority to establish a mandatory retirement age is either “necessarily incidental to” or can be “fairly implied in” § 5-117(E). Once again, we disagree. We view § 5-117(E) as ministerial direction from the State Legislature to ensure school policy, otherwise authorized, is in writing and available to those with a need to review that policy. We do not consider § 5-117(E) to be a “catch-all” authority to adopt substantive personnel policies which the Legislature may not have addressed, either intentionally or unintentionally. School Board cites no other statutory basis from which its purported authority may derive.

School Board does refer us to 70 O.S. 1981 §§ 17-101 et seq, Teachers’ Retirement System, to point out the definition therein of “normal retirement age”. We find that definition irrelevant to the question under consideration, but do note with interest the following language from § 17-105(d), discussing contributions to the system:

Members currently teaching in the public schools of Oklahoma past the fiscal year during which age seventy (70) is attained and who have not retired shall be granted the privilege of making up ... contributions, ... for the years taught after age seventy (70). (emphasis added)

The Legislature not only has not chosen to provide a mandatory retirement age for teachers, but to the contrary, clearly contemplates teachers remaining active beyond age 70.

The question of a mandatory retirement age for teachers has not been decided by our appellate courts. Both parties did cite two Oklahoma Attorney General Opinions dealing specifically with the issue, but School Board concedes the opinions are “somewhat at opposition to each other”. The first, which opines that school boards may establish a mandatory retirement age, gives little consideration to that question, but deals for the most part with nonrenewal for financial reasons. Atty. Gen. Op. No. 73-1)1, May 31, 1973, to Dr. Leslie Fisher, State Superintendent of Public Instruction. The rationale concerning mandatory age retirement in the opinion is the same as presented by School Board here, inferring authority from the statutory mandate to adopt and maintain a personnel policy. We find the opinion’s reasoning no more persuasive than School Board’s, particularly in view of the limited applicability of the opinion. The second opinion determined a mandatory age limit could not be established because of the absence of statutory authority. Atty. Gen. Op. No. 81-260, January 26, 1982, to Mr. Francis Tuttle, Director, State Department of Vocational and Technical Education.

Finally, we do not find a mandatory retirement age is “essential to the declared objects and purposes of the corporation”. Board of Education of Oklahoma City v. Cloudman, 185 Okla. 400, 92 P.2d 837 (1939). School Board’s only argument even peripherally related to this point is that a teacher’s abilities to manage and control large groups of young people may be lessened after a certain age, and prove to be an undue strain upon the teacher. We view this contention as an unfounded predetermination of incompetency. While we recognize School Board’s legitimate interest in assuring competency in its teachers, its brief provides no factual basis for the supposition that age as a single factor is inimical to the objects and purposes of the school district. Further, the case cited in support of School Board’s argument, Lewis v. Tucson School District, 23 Ariz.App. 154, 531 P.2d 199, cert. denied 423 U.S. 864, 96 S.Ct. 123, 46 L.Ed.2d 92 (1975), dealt with a Legislative enactment, not a local policy. Also, School Board had clear statutory authority to refuse to renew contracts on competency grounds, if a teacher is in fact not a competent teacher because of the effects of age. 70 O.S.1981 § 6-103.

In the absence of statutory authority— express, implied, incidental or essential— School Board was not empowered to adopt a mandatory retirement policy based solely on age. It was error, as a matter of law, for the trial court to have upheld such a policy.

REVERSED AND REMANDED with direction to enter a finding consistent with this opinion.

HUNTER, C.J., concurs with specially concurring opinion. GARRETT, P.J., dissents with separate opinion.