March 6, 1975
Colonel Dennis Eisnach
Supt. of Highway Patrol
118 West Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-46
Mandatory retirement age for highway patrolmen
Dear Colonel Eisnach:
You have asked whether there is a mandatory retirement age for highway patrolmen and agents of the Division of Criminal Investigation.
SDCL 3-13-27 (which contained a mandatory retirement age of sixty years) was repealed by section 80 of chapter 35 of the 1974 session laws. No similar provision exists in the 1974 "South Dakota Retirement Act," SDCL 3-12-46 through 3-12-128.
SDCL 3-12-47 (35) defines "normal retirement age" as follows:
age sixty-five for all members of the system, except law enforcement officers, municipal policemen, or municipal firemen for whom the normal retirement age is fifty-five.
However, normal retirement age is not mandatory. SDCL 3-12-90 contains provisions for retirement after reaching normal retirement age. SDCL 3-12-93 also allows retirement after the normal retirement age. Therefore, the normal retirement age is not a mandatory retirement age. In answer to your first question, it is my opinion that there is no mandatory retirement age for highway patrolmen or agents of the Division of Criminal Investigation.
You have also asked whether the police civil service commission has the authority to set a compulsory retirement age by rule.
SDCL 3-7-18 provides:
The [police civil service] commission shall make rules . . . for . . . removals . . . .
Mandatory retirement is a form of removal. Therefore, it is my opinion that the police civil service commission may set a mandatory retirement age by rule for highway patrolmen and agents of the Division of Criminal Investigation.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:MAG:dh
cc: Jim Boocock, police civil service commission.
