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HomeMy WebLinkAboutT4-97 (2) Ordinance No. T4-97 AN ORDINANCE EXTENDING A MORATORIUM ON ENFORCEMENT OF ELGIN MUNICIPAL CODE SECTION 2 . 52 . 130 WHEREAS, the employment of police officers is intimately related to the public health, safety, comfort and welfare; and WHEREAS, Article VII of the Illinois Constitution, 1970, includes the protection of the public health, safety, morals and welfare among the government and affairs that home rule units may regulate; and WHEREAS, the City of Elgin is a home rule unit within the meaning of the Constitution of Illinois, 1970; and WHEREAS, it is in the best interests of the City of Elgin and in furtherance of the public health, safety and welfare that the individuals who are employed by the City of Elgin as police officers are the most capable persons available to carry out the responsibilities and duties of police officers; and WHEREAS, the City Council is aware that age alone is not universally determinant of each individual 's mental or physical capabilities to perform the duties and responsibilities of police officers, and that certain individuals of advanced age may in fact be more capable than individuals with lesser experience; and WHEREAS, the City Council is equally aware of its obligation to establish standards and practices which will tend to maintain the most efficient and effective possible police service to the citizens of the City of Elgin; and WHEREAS, Elgin Municipal Code Section 2 . 52 . 130 provides for the mandatory retirement of police department members who have attained the age of 63 years; and WHEREAS, the federal Age Discrimination in Employment Act of 1967 ( 29 U.S .C. 623) has recently been amended to permit the imposition of a mandatory retirement age for law enforcement officers, and to direct the Secretary of Health and Human Services to conduct a study and submit a report based on the results of that study within 3 years of appropriate tests for the assessment of abilities of law enforcement officers; and WHEREAS, pending legislation would amend 775 ILCS 5/2-104 to remove currently existing ambiguities in the Illinois law regarding mandatory retirement; and WHEREAS, the City Council has determined that it is in the best interests of the City of Elgin to impose a moratorium on the enforcement of the mandatory retirement provisions of Elgin Municipal Code Section 2 . 52 . 130 to consider and evaluate the merits of retaining, amending or abolishing Elgin Municipal Code Section 2 . 52 . 130 . NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that it hereby declares and directs a moratorium on the enforcement of Elgin Municipal Code Section 2 . 52 . 130 for a period of one hundred twenty ( 120) days so as to permit consideration, study and review of the merits of retaining, amending or abolishing the mandatory retirement of police officers who have attained the age of 63 years . s/ Kevin Kelly Kevin Kelly, Mayor Presented: March 26, 1997 Passed: March 26, 1997 Vote: Yeas 7 Nays 0 Recorded: March 27 , 1997 Published: Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk jj OF f< ° ', City of Elgin Agenda Item No. AO ..5) 1rf l,, % • March 20, 1997 TO: Mayor and Members of the City Council FROM: Robert O. Malm, Interim City Manager SUBJECT: Moratorium on Mandatory Retirement Ordinance PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider a one hundred twenty ( 120) day moratorium on the enforcement of the Mandatory Retirement provision of the Elgin Municipal Code. (EMC 2 . 52 . 130) BACKGROUND The City of Elgin has an ordinance requiring police officers to retire at the age of 63. (EMC 2 .52 . 130) An enforcement moratorium was approved by the City Council on January 22, 1997, which expired on March 23, 1997. The Illinois Human Rights Act (at 775 ILCS 5/2-104 (8) ) pro- vides that mandatory retirement is permissible for law en- forcement officers if the local law was in effect on or before March 3, 1983. The state statute further provides that the allowability of police mandatory retirement shall remain in effect until either December 31, 1993 or until "similar provisions" of section 4 of the federal Age Discrimi- nation in Employment Act of 1967 are deleted or repealed, whichever is later. The aforementioned "similar provisions" of the federal Age Discrimination Act of 1967 appear to have been repealed effective December 31, 1993 (by sec. 3(b) of Pub.L. • 99-592) , so that the provisions of the Illinois Human Rights Act permitting mandatory retirement became ineffective as of that date. Federal statute Pub.L 104-208, effective September 30, 1996, however, amended the federal Age Discrimination in Employment Act of 1967 to effectively repeal therepeal of December 31, 1993. This legislative history therefore creates an ambigui- ty -in the law as to whether the provision of the Illinois Human Rights Act which permits mandatory retirement for law enforcement officers has now effectively been resurrected. In the event that it has, the local ordinance requiring mandatory retirement is effective and must be complied with. Due to the ambiguity that has been created by the aforemen- Moratorium on Mandatory Retirement Ordinance March 20, 1997 Page 2 tioned legislative history, however, it would not be prudent to simply disregard the local ordinance based on a reading of the law which ignores the ambiguity in favor of an interpreta- tion which presumes the local ordinance to be ineffective. The amendments to the federal law which were enacted in September, 1996 also require the Secretary of Health and Human Services to submit a report to Congress which reviews and examines available ability assessment tests within 3 years and to develop guidelines for such tests within 4 years. Attached as Exhibit A is a proposed amendment to the Illinois Human Rights Act which has already been drafted and intro- duced in the Illinois legislature. This amendment, if enact- ed, would clarify the situation and allow for the imposition of a local mandatory retirement provision by the city. It appears likely that the attached amendment will be enacted in the near future. The current local mandatory retirement ordinance provision (EMC 2 . 52 . 130) first became effective sometime between 1907 and 1939. The probable rationale for the original implementa- tion of the mandatory retirement ordinance was that at the time of the ordinance's enactment, it had been assumed or determined that a person aged 63 years or older was unable to perform the relatively rigorous duties of a police offi- cer. Typically those duties included extensive foot patrols which frequently entailed chases and physical confrontation. Additionally, medical science was less able to maintain the physical condition of individuals into their 60s to the extent to which modern science is able. Life expectancy in general has of course increased substantially since the time of the ordinance's enactment. The applicable Illinois state statutes as to employment ages which were effective prior to the subject amendments to the federal Age Discrimination in Employment Act (65 ILCS 5/10-2 . 1-17 ; 65 ILCS 5/10-2/1-6; and Illinois Municipal Code Section 10-2-6 ) provided a mandatory retirement age of 65 years, a minimum application age of 20 years and a maximum application age of 35 years, respectively. Pensions for police officers begin paying out upon reaching 50 years of age at 50% following 20 years of service, and increase at the rate of 2% per year thereafter for each year worked. 40 ILCS 5/3-117, however, provides that the pension statutes shall not be construed so as to require retirement at age 50. Attached are excerpts from the Congressional Record of testi- mony and comments made by various individuals regarding the issue of mandatory retirement. These excerpts provide in- sight into the context and circumstances of the amendments to the federal act, including recitations of the legislative Moratorium on Mandatory Retirement Ordinance March 20, 1997 Page 3 history of mandatory retirement as well as arguments support- ing and opposing mandatory retirement provisions in general . COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None. FINANCIAL IMPACT None. LEGAL IMPACT Extension of the moratorium will permit the matter to be resolved through state legislative amendment. ALTERNATIVES The City Council may choose to not continue the mandatory retirement moratorium forcing one current employee to be terminated immediately. The Council may also choose to abol- ish the Mandatory Retirement Ordinance entirely (EMC 2.52 . 130) . eft- RECOMMENDATION The staff recommends a one hundred twenty ( 120) day extension of the moratorium so that this matter can be resolved in the legislature. Respectfully submitted, • • O emi 'olar Director an Resources Erwin W.�:Jentsch Corporation Counsel tiLa-t4 Charles A. Gruber Chief of Police gar öfl�ih./``5. eft- Robert 0. Malm Interim City Manager JD/jb