Mandatory Retirement-End of Calendar Month in which Employee Reaches Age 65

Subject:

Requested By: Nathan H. Yelton, Assistant Secretary Office for Aging Department of Human Resources

Question: May the State Personnel Commission require employees subject to the State Personnel Act to retire at the end of the calendar month in which they reach age 65?

Conclusion: No.

G.S. 126-4(3) authorizes the State Personnel; Commission, subject to the approval of the Governor, to establish policies and rules governing "reasonable qualifications, as to age, character, physical condition, and other attributes pertinent to the work to be performed," for each class of positions. G.S. 126-4(5) authorizes the Commission, subject to the approval of the Governor, to establish policies and rules governing "(hours) and days of work, holidays, vacation, sick leave, and other matters pertaining to the conditions of employment." Under the ostensible authority of G.S. 126-4, the Commission has adopted a rule which requires an employee to "retire or be terminated at the end of the calendar month in which the employee reaches age 65."

Chapter 135 of the General Statutes establishes the Teachers’ and State Employees’ Retirement System of North Carolina and includes as members all full-time employees, agents or officers of the State or any of its departments, bureaus and institutions other than educational, whether the employees are elected, appointed or employed. G.S. 135-5(a)(2) provides as follows:

(2) A member in service who attains age 65 shall make timely application for retirement, in accordance with (1) above, to be effective no later than the first of July coincident with or next following his sixty-fifth birthday: Provided that, upon the approval of his employer, any member may be continued in service on a year-to-year basis."

May the State Personnel Commission require persons subject to the State Personnel Act to retire at the end of the calendar month in which they turn 65 notwithstanding the provisions of G.S. 135-5(a)(2) dictating that a person must retire no later than the first of July coincident with or next following his sixty-fifth birthday? The obvious intent of the language in G.S. 135-5(a)(2) is to allow a person to serve until the first of July coincident with or next following his sixty-fifth birthday. The relevant provisions of the Retirement Act, G.S. 135-5(a)(2), were enacted in substantially the same form in Chapter 620 of the 1959 Session Laws. The relevant provisions of the State Personnel Act were adopted in 1965.

The rule of statutory construction is that a repeal by implication is not favored. A later statute will not repeal former statute unless the two are in irreconcilable conflict. Whenever possible, two statutes dealing with the same subject matter should be construed to give effect to each. 7 Strong’s North Carolina Index 2d, Statutes § 11 (1968). Administrative agencies may exercise only such powers as the General Assembly gives them and may not adopt rules contrary to statutory provisions. 3 Strong’s North Carolina Index 3rd, Constitutional Law, § 7.1 (1976). It is thus apparent that the General Assembly did not intend for the State Personnel Commission to adopt rules and regulations which would conflict with the provisions of G.S. 135-5(a)(2) that a State employee or other employee subject to the Retirement Act should retire no later than July 1 coincident with or next following his sixty-fifth birthday. Consequently, the State Personnel Commission’s rule requiring persons subject to the State Personnel Act to retire at the end of the calendar month in which their sixty-fifth birthday falls is invalid, at least so far as it applies to State employees subject to the provisions of the Teachers’ and State Employees’ Retirement Act, Chapter 135 of the General Statutes.

Rufus L. Edmisten Attorney General

Norma S. Harrell Associate Attorney