AGO 1993-071.

Case DateDecember 22, 1993
CourtOhio
Ohio Attorney General Opinions 1993. AGO 1993-071. December 22, 1993OPINION NO. 1993-071R.D. Huffman, Executive Director Highway Patrol Retirement System 6161 Busch Blvd., Suite 119Columbus, Ohio 43229-2553Dear Executive Director Huffman: You have requested an opinion regarding the application of the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. §§621-634, as amended (1988 & Supp. III 1991), to certain retirement and benefit provisions of R.C. 5505.16. Specifically, you wish to know whether the requirement of R.C. 5505.16(C) that any member of the Highway Patrol Retirement System (HPRS) who attains the age of fifty-five years and has been in the service of the State Highway Patrol for a period of twenty years as a uniformed patrol officer is to file an application for retirement with the State Highway Patrol Retirement Board is valid for purposes of the ADEA. You also have asked whether the provision of R.C. 5505.16(A) that permits a member of HPRS who has been in the service of the State Highway Patrol for a period of twenty-five years to make application for a pension, but that defers any such pension until the member attains age forty-eight, is valid for purposes of the ADEA. R.C. 5505.16(C) R.C. 5505.16 sets forth specific age and service requirements that, when satisfied, make a member of HPRS eligible to file with the State Highway Patrol Retirement Board an application for retirement and the receipt of a pension. Division (C) of R.C. 5505.16 reads as follows:
Any member who attains the age of fifty-five years and has been in the service of the patrol for a period of twenty years as a uniformed patrol officer according to the rules adopted by the board, shall file application for retirement with the board, and if he refuses or neglects to do so, the board may deem his application to have been filed on his fifty-fifth birthday. The member may, upon written application approved by the superintendent of the state highway patrol, be continued in service after attaining the age of fifty-five years, but only until the member has accumulated twenty years of service.
R.C. 5505.01 defines the following terms as used in R.C. Chapter 5505 (highway patrol retirement system):
(F) "Plan" means the provisions of [R.C. Chapter 5505].
(G) "Retirement system" or "system" means the state highway patrol retirement system created and established in the plan.
....
(I) "Retirement board" or "board" means the state highway patrol retirement board provided for in the plan.
(J) Except as provided in section 5505.18 of the Revised Code, "member" means any employee included in the membership of the retirement system, whether or not rendering contributing service.
....
(Q) "Retirement" means termination as an employee of the state highway patrol, with application having been made to the system for a pension or a deferred pension.
R.C. 5505.02 further provides that membership in HPRS "includes all state highway patrol employees, as defined in [R.C. 5505.01],(fn1) and such membership is mandatory for such employees." (Footnote added.) R.C. 5505.16(C) thus requires any member of HPRS who attains the age of fifty-five years and has been in the service of the State Highway Patrol for a period of twenty years as a uniformed patrol officer to file an application for retirement with the State Highway Patrol Retirement Board. A member may, upon written application approved by the Superintendent of the State Highway Patrol, be continued in service after attaining the age of fifty-five years, but only until the member has accumulated twenty years of service. Id. R.C. 5505.16(A) Division (A) of R.C. 5505.16 authorizes application for a pension by a member of HPRS who has been in the service of the State Highway Patrol for twenty-five years as an employee. R.C. 5505.16(A) further provides that if a member who makes such an application is under age forty-eight, such pension "shall be deferred until he attains age forty-eight."
Practices Prohibited by the Age Discrimination in Employment Act (ADEA) of 1967
The Age Discrimination in Employment Act of 1967, as amended, declares that its purpose is "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. §621(b) (1988). Consonant with those purposes, 29 U.S.C. §623(a) (1988) declares that it shall be unlawful for an employer
(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; or
(3) to reduce the wage rate of any employee in order to comply with this chapter. (Emphasis added.)
See also 29 U.S.C. §623(b) (prohibited practices for employment agencies); §623(c) (prohibited practices for labor organizations); §623(d) (declaring unlawful any discrimination by an employer against persons opposing practices made unlawful by §623); §623(e) (declaring unlawful the printing or publication of employment advertisements that indicate any age preference); §623(i) (prohibited practices in the case of employee pension benefit plans). 29 U.S.C. §631(a) (Supp. III 1991) states that the prohibitions of the ADEA "shall be limited to individuals who are at least 40 years of age."(fn2) Practices Permitted by the ADEA 29 U.S.C. §623(f) (1988 & Supp. III 1991) permits an employer to take certain actions otherwise proscribed by §§623(a)-(c) and 623(e). Section 623(f) states, in pertinent part, that it shall not be unlawful for an employer
(1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located;
(2) to take any action otherwise prohibited under subsection (a), (b), (c), or (e) of this section --
(A) to observe the terms of a bona fide seniority system that is not intended to evade the purposes of this chapter except that no such seniority system shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual; or
(B) to observe the terms of a bona fide employee benefit plan --
(i) where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker, as permissible under section 1625.10, title 29, Code of Federal Regulations (as in effect on June 22, 1989); or
(ii) that is a voluntary early retirement incentive plan consistent with the relevant purpose or purposes of this chapter....; or
(3) to discharge or otherwise discipline an individual for good cause.
The Highway Patrol Retirement System (HPRS) Qualifies As the Employer of Its Members for Purposes of the ADEA
29 U.S.C. §630 (1988) sets forth definitions of various terms for purposes of the ADEA. Section 630(b) provides that the term "employer" means, inter alia, "a State ... and any agency or instrumentality of a State," and §630(f) provides that the term "employee" means, inter alia, "an individual employed by any employer." It is likely that the Highway Patrol Retirement System qualifies as an "agency" or "instrumentality" of the State of Ohio for purposes of §630(b)'s definition of "employer." The ADEA does not separately define the terms "agency" and "instrumentality" as used in §630(b). With respect to the governmental context, however, the dictionary defines "agency" as "an administrative division of government with specific functions." Webster's New World Dictionary 25 (2d college ed. 1978). Cf., e.g., R.C. 1.60 (as used in R.C. Title 1 (state government), except as otherwise provided in that title, "state agency" means "every organized body, office, or agency established by the laws of the state for the exercise of any function of state government"). "Instrumentality" is defined similarly as "[a] subsidiary branch, as of a government, by means of which functions or policies are carried out." The American Heritage Dictionary 667 (2d college ed...

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