Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1972 No. 19 - Sep 11 1972
Attorney General Slade Gorton


The board of trustees of a community college may not adopt a rule establishing a mandatory retirement age of 65 years for all of its classified civil service employees who are also members of the Washington public employees' retirement system, without regard to the particular jobs which they hold.

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                                                              September 11, 1972

Honorable Gordon Farrar
Chairman, Board of Trustees
Community College District No. 3
Bremerton, Washington 98310

                                                                                                                 Cite as:  AGO 1972 No. 19

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            May the board of trustees of a community college adopt a rule establishing a mandatory retirement age of sixty-five years for all of its classified civil service employees who are also members of the Washington public employees' retirement system, without regard to the particular jobs which they hold?

            We answer this question in the negative for the reasons set forth in our analysis.


            The first statute to be noted in responding to your question is RCW 41.40.180.  This statute, dealing with the retirement of state or local governmental employees who have become members of the Washington public employees' retirement system, provides in material part that:

             [[Orig. Op. Page 2]]

            ". . . any member who has attained age seventy shall be retired forthwith on the first day of the calendar month next succeeding that in which the said member shall have attained the age of seventy: . . ."

            While it has been suggested that this statute precludes an employer of public employees who are members of the public employees' retirement system from establishing a lower mandatory retirement age for such employees (e.g., here, sixty-five), we do not here base our negative answer to your question upon this line of reasoning.  As we view it, RCW 41.40.180 merely sets a qualified outside limit upon the age of covered employees;1/ it does not grant any sort of tenure to employees who have not yet reached that age.  As we said in an earlier opinion dated May 22, 1968, to State Senator Lowell Peterson, copy enclosed,

            ". . . a public employees' pension statute such as . . . [RCW 41.40.180, supra] by establishing a mandatory retirement age, does not operate to grant to employees covered by the statute a right to continue in service with their particular employer until they reach that age."

            Although there would appear to be a split of authority in the few cases which have reached the issue of the effect of pension statutes upon a public employer's authority to set a lower mandatory retirement age, the better reasoned cases would appear to support this conclusion; i.e., that a public employees' pension statute does not insure tenure for the period of service specified as necessary to fulfill the pension requirements.  See,Coopersmith v. City and County of Denver, 156 Colo. 469, 399 P.2d 943 (1965), andBoyle v. City of Philadelphia, 338 Pa. 129, 12 A.2d 43 (1940).  But seeFinch v. State Department of Public Welfare, 80 Ariz. 226, 295 P.2d 846 (1956).

            From this premise we concluded in the above noted opinion that the 1967 legislature's increase of the mandatory  [[Orig. Op. Page 3]] retirement age for uniformed personnel of cities governed by the state‑wide city employees' retirement system2/ from fifty-five to sixty-give years3/ did not preclude such a city from continuing to require such personnel to retire at age fifty-five.  Accord, AGO 63-64 No. 36 [[to Perry B. Woodall, State Senator on July 17, 1963]](copy enclosed) in which we concluded that cities may, consistent with civil service concepts, establish maximum age limitations for their civil service police officers and firemen based upon the requirements of their particular jobs.4/

             From this latter opinion it will be seen that if your present question were, likewise, limited to a class of employees for which maximum age qualifications could generally be said to bear a reasonable relationship to job requirements it (together with our 1968 opinion to Senator Peterson,supra) would actually call for an affirmative rather than a negative answer to this question.  However, because the question presented is not so limited, we must proceed further.

            In addition to being covered by the public employees' retirement system the employees who would be governed by the rule in question are also covered by a civil service merit system of employment as provided for in chapter 28B.16 RCW.  This chapter, like the general state employees' civil service system covered by chapter 41.06 RCW, has as its stated purpose the establishment of a system of personnel administration which is

             [[Orig. Op. Page 4]] ". . . based on merit principles and scientific methods, and which governs the appointment, promotion, transfer, layoff, recruitment, retention, classification and pay plans, removal, discipline, and welfare of employees covered under this chapter."5/

            In an opinion written to the Board of Trustees of Olympic College on January 14, 1969, copy enclosed, in which we were considering the enforceability of a "union shop" clause in a collective bargaining agreement covering your classified civil service employees, we said:

            "The basic concept of civil service, manifested in the provisions of our state civil service law, is that the underlying purpose and requirement of the civil service law is to insure that entry and promotion in the state civil service will be governed by competition of qualified candidates and that employees will be retained in service so long as their standards of work performed do not justify termination for cause.  Gogerty v. Dept. of Institutions, 71 Wn.2d 1, 426 P.2d 476 (1967); 15 Am.Jur.2d, Civil Service, § 1, p. 465;Reynolds v. Kirkland Police Comm., 62 Wn.2d 720, 384 P.2d 819 (1963)."

            Where an age qualification for employment is demonstrably related to the requirements of a particular job, its imposition will be consistent with this concept.  Accord, AGO 63-64 No. 36,supra.  See, also, the more recent terms of AGO 1972 No. 12 (copy enclosed), in which we applied this same rationale in connection with the enforceability of aminimum age for certain civil service employees.  In that opinion we accepted and applied to such a situation the general rule as stated in Civil Service Law, by Oliver Peter Field (1962), at p. 80, as follows:

            "'Age limitations, both minimum and maximum, can be imposed by administrative regulation, providing they are reasonable and have a close connection with the qualities  [[Orig. Op. Page 5]] that are deemed essential to effective performance of the duties of the positions involved.  For example, an age range from twenty-five to thirty-five years is valid for traffic patrol officers because of the nature of the work to be performed and the relation that age bears to the performance of the work.* . . .

            "'The commission must be careful not to provide for any preferences or requirement, other than the age requirement, that may reveal a belief on the part of the commission

            "'*  Shubert v. Dept. of Motor Vehicles, 16 Cal. App.2d 353, 60 P.2d 538 (1939).

            that the age fixed is not really related to the duties of the position for which the examination is being conducted. . . .'"

            On the other hand where an age qualification (whether maximum or minimum) isnot so related to job requirements for a civil service employee, a contrary result appears to be dictated.  Although we have found no Washington cases addressed to the precise point of mandatory retirement, our research has disclosed a most persuasive ruling from the state of Louisiana.  InMorrison v. Department of Highways, 229 La. 116, 85 So.2d 51 (1955), the Supreme Court of Louisiana held that ". . . age alone cannot constitute cause" for removal within the purview of a civil service situation unless the employee is also covered by a statutory retirement system and the age in question also constitutes the mandatory retirement age apecified in the laws governing that system.

            The specific issue which was before the court in the Morrison case was whether either the plaintiff's employer or the governing civil service board could, by rule, establish a mandatory retirement age for those classified employees who had elected not to become members of the Louisiana's public employees' retirement system under an option afforded them by the statutes governing that system.  Because of the above noted rationale, i.e., thatage alone does not constitute cause for removal independent of the governing provisions of a retirement system, the court held that neither the employer nor the personnel board could establish such a blanket policy.

             [[Orig. Op. Page 6]]

            While it is true that the Washington Supreme Court would not be bound to follow this Louisiana decision, it is, in our considered judgment, sufficiently well reasoned to cause us to anticipate that it most likely would be applied by our courts should the question of the enforceability of a rule such as you have postulated be presented to it ‑ i.e., a rule of general applicability purporting (in effect) to characterize the attainment of age sixty-five as "cause" for the removal ofall of the classified civil service employees of your institution without regard to the individual employee's physical and/or mental infirmities or to any extraordinary physical effort requirements of the particular position or class of work.  For this reason, we do not believe that such a rule would be enforceable.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Qualified because even this limit may be exceeded upon employer application to the retirement board under certain circumstances, by virtue of a proviso appearing in the statute.

2/See, chapter 41.44 RCW

3/See, § 4, chapter 28, Laws of 1967, Ex. Sess., amending RCW 41.44.140.

4/While this 1963 opinion on its face is not expressly limited to these personnel, they were the only city employees having a statutory civil service status in this state at the time this opinion was written.  See, chapters 41.08 and 41.12 RCW.  Hence, it follows that these were the only employees covered by this opinion even though this fact was not expressly stated therein.  Consistent therewith, the various cases therein relied upon also dealt only with the retirement of uniformed personnel covered by a civil service system.

5/See, RCW 28B.16.010, which is identical in this respect to RCW 41.06.010.