Request By:
Mr. James E. Parsons
City Solicitor
City of Newport
Fourth and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
In your letter of February 17 you relate the following facts, question and conclusion:
"The City of Newport is currently seeking applicants for the position of Fire Chief. KRS 95.440 sets the basic qualifications for members of the police and fire departments in cities of the second class. Pursuant to KRS 95.440 no person shall be appointed a member of either of such departments (police or fire) if he is over 50 years of age. In the past, the city has ignored the maximum age limit in KRS 95.440 because of the provisions of the Federal Age Discrimination In Employment Act. However, the federal act was recently amended to exclude members of the police and fire departments from the requirement of the Federal Age Discrimination Act.
"Even though the federal act has been amended, KRS 344.040 still prohibits discrimination against an individual on the basis of his age. Therefore, there is a conflict between the provisions of KRS 95.440 and KRS 344.040. In addition, KRS 344.040 was adopted July 15, 1980 and KRS 95.440 was re-enacted with amendments effective July 19, 1985. Therefore, under normal rules of this construction KRS 95.440 would govern over the provisions in KRS 344.040, since the statute dealing with the qualifications of members of the police and fire departments was adopted later.
"Please review this matter and issue a formal opinion as to whether the City of Newport is required to comply with the provisions of KRS 95.440, as it relates to the maximum age of a person hired in the police and fire departments. "
After reviewing the above matter we are of the opinion that the city of Newport is required to comply with the maximum age requirements for hiring police and fire department personnel found in KRS 95.440 for the following reasons. The Federal Age Discrimination In Employment Act preempts any state law on a subject that is in conflict with it. See the U.S. Constitution, Article VI, Sec. 2, Clause 2, and the case of
Straight Creek v. Saylor, Ky., 185 S.W.2d 253 (1945), Appeal Dism'd., 325 U.S. 835, 89 L. Ed. 1962, 65 S. Ct. 1201. See OAG 87-12. The federal act as amended in 1986, effective January 1, 1987, allows exemptions from the act's prohibition against mandatory retirement for law enforcement officers and fire-fighters pursuant to Section 3 which reads as follows:
Sec. 3, EMPLOYMENT AS FIREFIGHTERS OR LAW ENFORCEMENT OFFICERS
"(a) GENERAL RULE. - Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is amended by adding at the end thereof the following new subsection:
"'(i) It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken --
"'(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer and the individual has attained the age of hiring or retirement in effect under applicable State or local law on March 3, 1983, and
"'(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this Act.'
"(b) TERMINATION PROVISION. - The amendment made by subsection (a) of this section is repealed December 31, 1993."
KRS 95.440(2) as amended in 1985, 1st Ex. Ses., Chapter 4, Sec. 1, continues to provide that in any city of the second class or urban-county government no person shall be appointed a member of either such department (police or fire) if over 50 years of age.
KRS 344.040 as last amended in 1980, Acts, Chapter 245, Section 4, makes it unlawful to fail or refuse to hire or to discharge an employee because of age between 40 and 70.
The Kentucky Supreme Court in the case of
Bogard v. Commonwealth, Ky., 687 S.W.2d 533 (1985) declared that the provisions of KRS 15.335 providing that peace officers cannot be disqualified by reason of any residency requirements were repealed by implication by a subsequent amendment to KRS 95.440 which continued requiring county residency for police and fire-fighters. See also
Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939),
Head v. Commonwealth, 165 Ky. 603m 177 S.W. 731 (1915),
Commonwealth v. Schindler, Ky., 685 S.W.2d 544 (1984) and
Heady v. Commonwealth, Ky., 597 S.W.2d 613 (1980).
Thus the age limitation requirement presently found in KRS 95.440 would prevail over the age limitation found in KRS 344.040 since the former statute was amended subsequently to the latter enacted statute. This being the case, the 1986 amendment to the Federal Age Discrimination Act referred to above would in effect activate the age limitation imposed by KRS 95.440 on police and firefighters in cities of the second class. However, it should be noted that the federal amendment detailed certain conditions that must be complied with.