Request By:
Ms. Junetta Zakem, Secretary
Board of Trustees
City of Newport
Fourth and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
On behalf of the Board of Trustees of the Employees Retirement Fund of the city of Newport, a city of the second class, you request on opinion concerning the following:
"The Civil Service Ordinance provides among other things that no person could be hired beyond his 45th year, that is, have not yet attained his 46th birthday. We understand that this is discriminatory and that the City must hire any person who can pass the Civil Service examination and is physically qualified to do the job. If such a person is hired, is it mandatory that he be placed in the Retirement Fund? Our Ordinance creating a pension fund for non-uniformed City employees provides that a person in order to receive a pension must have served twenty years. It also establishes mandatory retirement age of 65."
You initially relate that the civil service ordinance provides that no person can be hired beyond his forty-fifth (45th) year, which you understand to be discriminatory.
This question was answered in OAG 74-138 [copy attached] in which we construed the age limitation designated in KRS 90.330 [which corresponds with Section 3 of the city ordinance] to have been repealed by implication pursuant to the Civil Rights Act as amended in 1972 prohibiting any employer (political subdivision) from refusing to classify and hire a person because he may be between the ages of forty (40) and sixty-five (65).
Assuming that a person over the age of forty-six (46) is hired, you raise the question as to whether or not it is mandatory that he be placed under the retirement system.
KRS 90.310(1) provides that in cities of the second class, the city may, by ordinance, classify employees and designate the class of employees it desires to include in its civil service program. Thus, the city has the right to include certain classes of employees and at the same time decline to include other classes. See American Federation of State, County and Municipal Employees v. City of Paducah, Ky., 471 S.W.2d 18 (1971). However, once a class of employees is included, it would appear that they must be made eligible for the pension benefits pursuant to KRS 90.400. This statute provides that any city of the second class adopting a civil service plan under KRS 90.310 shall provide by ordinance for the creation and maintenance of a pension fund for employees under civil service.
At the same time, it would appear that the city also has the right to establish a mandatory retirement age, which is sixty-five (65) under Section 10 of the city's retirement ordinance. The question of the right of a city to establish a mandatory retirement age was recently upheld by the Supreme Court of the United States in the late case of Massachusetts Board of Retirement v. Murgin, U.S., 49 L. Ed. 2d 520, 96 S. Ct. (1976). See also McQuillin, Municipal Corporations, Vol. 4, Section 12.235. We also note that Section 10 of of your retirement ordinance provides that any member able to perform his duties shall not be precluded from serving at least twenty (20) years in order to qualify under the 20-year service requirement found in Section 8.