North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
Submit this request

May 25, 1977

Subject:

State Departments, Institutions and Agencies; Personnel Commission; Mandatory Retirement at Age 65

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 age 65 with no provision for extension on a year-to-year basis with the approval of the employee's employer?

Conclusion:

No. G.S. 135-5(a)(2) provides that an employee may continue on a year-to-year basis after he or she reaches age 65 with the approval of his employer.

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." The Commission has issued notice of a rule-making hearing at which it will consider changing its rule to allow an employee to retire on the first of July coincident with or next following his 65th birthday. However, the rules of the Commission do not provide for an individual to stay on, even on a year-to-year basis with approval of the employer, past his 65th birthday or the first of July following his 65th birthday except in a very few special situations, as when the employee is a physician whose services would be difficult to replace.

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."

Within the context of G. . 135-5(a)(2), the word "employer" refers to the head of the agency, commission, institution, division or department in which the employee is employed who has the authority to determine who should be hired, fired, or promoted.

May the State Personnel Commission require persons subject to the State Personnel Act to retire at age 65 notwithstanding the provisions of G.S. 135-5(a)(2) dictating that with the approval of his employer a member may be continued in service on a year-to-year basis? The obvious intent of the language in G.S. 135-5(a)(2) is to allow a person to serve beyond the year in which he turns 65 if he and his employer agree for him to do so.

The relevant provisions of the Retirement Act, G.S. 135-5(a)(2), were enacted in substantially the same form in the original Retirement Act, Section 5(1)(b), Chapter 25, of the 1941 Session Laws. That provision was rewritten, still with substantially the same provision, in Section 1 of Chapter 620 of the 1959 Session Laws and again rewritten in its present form in Section 11, Chapter 117 of the 1971 Session Laws. The relevant provisions of the State Personnel Act were adopted in 1965.

The basic provisions allowing an employee to remain in service on a year-to-year basis with the approval of his employer clearly pre-date the authority of the State Personnel Commission to adopt rules and regulations relating to age for retirement. The rule of statutory construction is that a repeal by implication is not favored. A later statute will not repeal a 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, Section 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, Section 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 could remain in service on a year-to-year basis with the approval of his employer beyond the year in which he turned 65. Moreover, the General Assembly amended G.S. 135-5(a)(2) by rewriting it in its present form after the passage of the provision authorizing the State Personnel Commission to make rules and regulations governing age of retirement. If there is a conflict, the express language allowing the employee to stay on on a year-to-year basis with the approval of his employer governs over the provision authorizing the State Personnel Commission to make rules and regulations governing age for retirement since it is more specific and since it was reenacted after the adoption of the relevant provisions of the State Personnel Act. 7 Strong's North Carolina Index 2d, Statutes, Section 11 (1968). Consequently, the State Personnel Commission's rule requiring persons subject to the State Personnel Act to retire during the year in which they turn 65, with no provisions for extensions on a year-to-year basis with approval of the employer, is invalid insofar 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