T4-97 (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
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° ', City of Elgin Agenda Item No. AO ..5)
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•
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
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