JAMES A. MONTZ, Complainant, and IOWA CIVIL RIGHTS COMMISSION,



VS.

CIVIL SERVICE COMMISSION and CITY OF ESTHERVILLE, IOWA, Respondents.


CONCLUSIONS OF LAW

Jurisdiction:

1. James A. Montz' complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code § 601A.15(11) (1989). See Finding of Fact No. 1. All the statutory prerequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing ' Iowa Code § 601A.15 (1989). See Finding of Fact No. 2.

2. James Montz' complaint is also within the subject matter jurisdiction of the Commission as the allegations that the Respondents instituted, maintained, informed him of, and rejected him due to its maximum age hiring limit all fall within the statutory prohibitions against unfair employment practices. Iowa Code § 601A.6 (1985). "It shall be a ... discriminatory practice for any person to refuse to hire, accept . . . for employment . . . or to otherwise discriminate in employment against any applicant for employment because of the age of such applicant ... unless based on the nature of the occupation." Id. at 601A.6(l)(a). "It shall be a . . . discriminatory practice for any . .. employer ... agents, or members thereof to directly or indirectly advertise or in any other manner indicate or publicize that individuals of any particular age . . . are unwelcome, objectionable, not acceptable, or not solicited for employment or membership unless based on the nature of the occupation." Id. at 601A.6(l)(c).

Official Notice:

3. Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. Iowa Code § 17A.14(4) (1991). Judicial notice may be taken of matters which are "common knowledge or capable of certain verification." In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980).

Federal Court Decisions as Precedent:

4. Federal court decisions applying Federal anti-discrimination laws are not controlling or governing authority in cases arising under the Iowa Civil Rights Act. E.g. Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829,831 (Iowa 1978). Nonetheless, they are often relied on as persuasive authority in these cases. E.g. Iowa State Fairgrounds Security v. I Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Although even decisions of the United States Supreme Court have been rejected as persuasive authority when their reasoning is inconsistent with the broad remedial purposes of the Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d at 831; Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866-67 (Iowa 1978), its opinions are often entitled to great deference. Quaker Oats Company v. Cedar Rapids Human Rights Commission at 866. In determining the persuasive value of any Federal decision, or decision of another state, or other legal authority, it must be borne in mind that the Act is a "manifestation of a massive national drive to right wrongs prevailing in our social and economic structures for more than a century" Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 765 (Iowa 1971); and that, when determining its legal effect, the Act "shall be broadly construed to effectuate its purposes." Iowa Code § 601 A.1 8. (1991).

Order and Allocation of Proof When Complainant Relies on Direct Evidence of Discrimination:

5. For reasons previously set forth in paragraphs 1 through 4 of the Ruling on Motion to Dismiss on pages 11 through 13 of this decision, the order and allocation of proof which applies in this case is that which is appropriate when the Complainant relies on direct evidence to meet his burden of persuasion with respect to age discrimination.

6. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second, to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the complainant because of the prohibited basis; third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act). Respondents must persuade the finder of fact by the preponderance of the evidence with respect to any of their affirmative defenses. See Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 11 1, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 473, 476 (2nd ed. 1989).

Direct Evidence of Violation of Iowa Code § 601A.6(l)(c) [indication by Employer or Its Agents That Individuals of Any Particular Age Are Not Acceptable for Employment]:

7. There is sufficiently probative direct evidence in the record to establish that Respondents Vindicated . . . that individuals of any particular age [i.e. individuals age 33 or over]..... are unwelcome, objectionable, not acceptable..... for employment." Iowa Code § 601A.6(l)(c). See Findings of Fact Nos. 20-21, 23-24, 27- 28.

Violation of Iowa Code § 601A.6(l)(a)[Prohibition Against Failing to Consider or Hire Applicants Based on Age]:

8. There is sufficiently probative direct evidence in the record to establish that Respondents "refuse[d] to hire, accept ... for employment ... or ... otherwise discriminated in employment against any applicant for employment because of the age of such applicant." Id. at 601A.6(l)(a). See Findings of Facts Nos. 20-21, 23-24, 25-30, 35-38.

9. The Respondents affirmative defenses shall be discussed below. It should be noted, however, that Respondents failed to meet their burden of persuasion with regard to establishing any of their affirmative defenses to these allegations.

The Same Decision Defense As Either A Complete or Partial Affirmative Defense to A Charge of Discrimination:

10. Respondents have asserted that they have a complete defense to Complainant Montz' allegations as, irrespective of his age, they would not have hired him in any event due to his failure to have ILEA certification or an Associate of Arts degree in law enforcement or the equivalent of such degree. Respondents' Brief at 7-8. Respondents have not established this defense, however, because they proved neither that they actually relied on these nonage reasons at the time Montz was rejected nor that Montz did not have qualifications which were equivalent to an AA degree in police science or criminal justice. See Findings of Fact Nos. 31-41, 108129. Even under Respondents' understanding of the same decision defense, that after-the-fact reasons not relied on at the time of Montz' rejection can provide a complete defense to liability, their failure to prove the later fact was fatal to their defense. Respondents' Brief at 7-8.

11. It should be noted that, under current Federal Title VII law, due to the amendments enacted under Section 107 of the Civil Rights Act of 1991, under no circumstances can the employer, by proving that it would have made the same decision irrespective of the fact that race, color, religion, sex or national origin was a motivating factor in its decision, effect a complete defense to liability. Such proof will only limit the remedies available to declaratory and injunctive relief, attorney's fees and costs. 42 U.S.C. §§ 20OOe-3(m); 20OOe-5(g)(2)(B). This section was enacted in order to legislatively overrule the United States Supreme Court's Price-Waterhouse decision, a Title VII decision, which allows such a complete defense. 4 Employment Discrimination Coordinator 58597 (RIA)(1992)(citing S. Rept. No. 101-315, 6/ 8/90, pp. 6, 7, 48); Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed. 2d 268, 293). Section 107, therefore, seriously weakens the persuasive effect of this holding of Price-Waterhouse.

12. Although Price-Waterhouse and the same decision defense have been discussed as a matter of legal theory in two Iowa Supreme Court opinions written prior to the Title VII amendments, the discussion was not essential to the decisions and the theory was never been applied to the facts of the cases. Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); HY-Vee Food Stores v. Iowa Civil Rights Commission, 453 N.W.2d 512, 517 (Iowa 1990). The discussion, in other words, may well be dicta, and not controlling law.

13. It is the Commission's position that the same decision defense should be limited, as it now is under Title VII, and was in the 8th and 9th Circuits prior to Price-Waterhouse, see Price-Waterhouse, 104 L.Ed. 2d at 280 n.2 (citing Bibbs v. Block, 778 F.2d 1318, 1320-24 (8th Cir. 1985), to limiting the damages remedy of the Complainant while not establishing a complete defense to liability. This would allow attorney's fees and injunctive relief to end discriminatory practices while ensuring that damages were not awarded in inappropriate cases. Nonetheless, the legal issues presented by the Respondents' same decision defense will be treated as if the statements in Landals and Hy-Vee are not dicta, but controlling law. Price-Waterhouse will be treated as persuasive authority.

14. In order for an employer to establish, as a complete defense to a charge of discrimination, that it would have made the same employment decision even in the absence of age discrimination, it must show that -it actually relied on, i.e. was influenced or motivated by, the factors which it asserts as legitimate reasons for the decision at the time the decision was made. Landals v. Rolfes Co., 454 N.W.2d 891, 89394 (Iowa 1990); Hy-Vee Food Stores v. Iowa Civil Rights Commission, 453 N.W.2d 512,517 (Iowa 1990); Price-Waterhouse v. Hopkins, 490 U.S. 228,109 S.Ct. 1775, 104 L. Ed. 2d 268, 289, 293).

15. "Where direct evidence is presented and the employer suggests other factors influenced the decision, the employer has the burden of proving by a preponderance of the evidence that it would have made the same decision even if it had not considered the improper factor." ' Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990)(citing Price Waterhouse v. Hopkins, 490 U.S. 228,109 S.Ct. 1775, 104 L.Ed. 2d 268, 293)(emphasis added). "When . . . an employer considers both [age] and legitimate factors at the time of making a decision, that decision was 'because of' [age]." Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed. 2d 268, 281 (1989) (emphasis added).

16. This defense is an affirmative defense. Id. at 287. The Respondent bears the burden of persuading the finder of fact by a preponderance of the evidence that "it would have made the same decision even if it had not taken the plaintiff's [age] into account." Id. & 293. A finding of liability can be avoided by the respondents only if they meet this burden of proof. Id. at 293.

[T]he employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive. Moreover, proving "that the same decision would have been justified ... is not the same as proving that the same decision would have been made." ... An employer may not, in other words prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Finally, an employer may not meet its burden in such a case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason.... The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.

Id. at 289. (emphasis added).

17. The above authorities demonstrate that a complete defense to liability cannot be established based on post-hoc reasons not relied on at the time the employment decision is made. In Price Waterhouse, "the Court only allowed a defendant to escape liability if he was motivated by a legitimate reason at the time of the decision, not if the justification for the decision was pieced together after the fact." Sabree v. Carpenters and Joiners, 921 F.2d 396, 54 Fair Empl. Prac. Cas. 1070, 1075 (lst Cir. 1990)(italics in original)(citing Price-Waterhouse, 109 S.Ct. at 1791). However, remedies may be limited if the employer proves through credible after-the-fact evidence that the Complainant would inevitably not have been hired. See Id.. Respondents have failed to prove this. See Findings of Fact Nos. 108- 129.

18. Although Respondents have failed to prove that complainant Montz would not have been hired even in the absence of discrimination, it should still be noted that the cases cited by Respondents do ' not support the proposition that a complete defense to a charge of discrimination can be made by demonstrating that lawful reasons not actually relied upon by the employer at the time of the employment decision would have resulted in a failure to hire the complainant. Respondents' Brief at 7-8. It is true that the Eighth Circuit quoted the Eleventh Circuit's Bell decision's statement that "Once an [illegal] motive is proved to have been a significant or substantial factor in an employment decision, defendant can rebut only by proving by a preponderance of the evidence that the same decision would have been reached even absent the presence of that factor." Perry v. Kunz, 878 F.2d 1056, 1061, 50 Fair Empl. Prac. Cas. 175, 179 (quoting Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557 (1 1 th Cir. 1983) (italics in Perry).

19. Nonetheless, the Bell decision, as noted in Perry, was quoting from a prior Eleventh Circuit decision. Id. (citing Lee v. Russell County Board of Education, 684 F.2d 769, 774, 29 Fair Empl. Prac. Cas. ' 1508,1513 (llth Cir. 1982)). In that case, the Eleventh Circuit held "if there was no evidence that asserted reasons for (the challenged employment action] were actually relied on, the reasons are not sufficient to meet defendant's rebuttal burden." Lee v. Russell, 29 Fair Empl. Prac. Cas. at 1513 (emphasis added). The Perry decision also cited Price-Waterhouse and Bibbs v. Block as authority sifter the Bell quotation. Perry v. Kunz, 50 Fair Empl. Prac. Cas. at 179. As previously noted, Price-Waterhouse stands for the proposition that "proving 'that the same decision would have been justified ... is not the same as proving that the same decision would have been made."' See Conclusion of Law No. 16. Bibbs and Price-Waterhouse are both consistent with the conclusion that a complete defense to liability cannot be established by after-the fact reasons. See Conclusions of Law Nos. 13,16.

Reliance on Legal Advice of Counsel or of the Director of the Iowa Law Enforcement Academy Is Not a Defense to a Charge of Discrimination Under the Iowa Civil Rights Act:

20. Respondents argue, on brief, that their reliance on a number of sources of authority, including advice of the City Attorney and of the Director of the ILEA, constitutes a defense in this case which is somehow similar to the defense of a city government's reliance, in enacting a mandatory retirement program for police officers, on a state legislature's enactment of a law expressly permitting such policies. Respondents' Brief at 32-36 (citing EEOC v. City of Janesville, 630 F.2d 1254 (7th Cir. 1980).

21. Unlike Janesville, this case involves a mandatory hiring age limit, and not a mandatory retirement plan. Janesville supports the proposition that Federal courts may accept and defer to state legislative judgments, including "the statutory presumption that age is a BFOQ for the class of protective service workers covered under the Wisconsin Public Employees Retirement Act," and recognize such judgments as a defense. Janesville at 1258-59. It does not support the proposition that a city is permitted to violate the will of the state legislature, as expressed in the Iowa Civil Rights Act, based on the advice of a city attorney or the head of a state agency or other government officer. Even reliance on the advice of this agency, if such had been shown to have been requested and given, would not constitute a defense to a prosecution by this agency:

Government officers "are but the servants of the law, and, if they depart from its requirements, the government is not bound. There would be a wild license to crime if their acts, in disregard of the law, were to be upheld to protect third parties, as though performed in compliance with it."

Schwartz, Administrative Law § 3.18 (1984)(quoting Moffat v. Limited States, 112 U.S. 24, 31 (1884)).

Iowa Code Section 400.8 Merely Recognized That Some Civil Service Commissions Set Age Limits and Required Those Commissions to Prescribe and Publish Any Such Limits In Their Examination Rules. It Neither Required Nor Empowered Civil Service Commission to Enact Such Age Limits.

22. Iowa Code section 400.8 consists of three subsections which describe the examination and appointment process for police and fire fighter positions which is administered by civil service commissions in Iowa. Iowa Code § 400.8. Subsection 1 states, in relevant part:

400.8 Original entrance examination--appointments.

Iowa Code § 400.8 (1991)(as amended effective May 22, 1989)(emphasis added). Language recognizing that some Civil Service Commissions established maximum age limits has been in the statute since 1937. Iowa Code Ann. § 400.8 (Historical Note). The anti discrimination language, which does not include age, and the language concerning the prescription of reasonable rules relating to strength, agility were added by amendment in 1976. Id.

The Interpretation and Construction of Statutes:

23. In interpreting and construing Iowa Code section 400.8, or any other statute, the following principles must be remembered. The interpretation of a statute refers to determining the sense and meaning of the written text of the statute. BLACK'S LAW DICTIONARY 734 (5th ed. 1979). The construction of a statute refers to determining its legal effect. BLACK'S LAW DICTIONARY 283,734 (5th ed. 1979). It is the process of determining the sense, real meaning, or proper explanation of obscure or ambiguous terms or provisions of a statute by reasoning in the light derived from extraneous connected circumstances or laws or writings bearing upon the statute or a connected matter or by seeking and applying the probable aim and purpose of the provision. BLACK'S LAW DICTIONARY 283 (5th ed. 1979).

24. The polestar of all statutory construction is the search for the true intention of the legislature. Iowa National Industrial Loan Co. v. Iowa State, 224 N.W.2d 437, 439 (Iowa 1974). All other rules of construction are designed to reach this goal and may even be disregarded if necessary to fulfill the legislature's intent. Id. In ascertaining the intent of the legislature, where a statute is ambiguous, the following, as well as other matters, may be considered:

1. The object sought to be attained.
2. The circumstances under which the statute was enacted.
3. The legislative history.
4. The common law or former statutory provisions, including laws upon the same or similar subjects.
5. The consequences of a particular construction.

Iowa Code § 4.6.

25. In construing statutes, strained, impractical or absurd results should be avoided. Iowa National Industrial Loan Co. v. Iowa State, 224 N.W.2d at 440. "Ordinarily, the usual and ordinary meaning is to be given the language used, but the manifest intent of the legislature will prevail over the literal import of the words used." Id. "Where language is clear and plain, there is no room for construction." Id. "It is necessary to look to the object to be accomplished and the evils and mischiefs sought to be remedied in reaching a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it." Id. "All parts of the enactment should be considered together and undue importance should not be given to any single or isolated portion." Id.

26.

If statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment by the general assembly prevails. If provisions of the same Act are irreconcilable, the provision listed last in the Act prevails.

Iowa Code § 4.8 (1991).

27.

If amendments to the same statute are enacted at the same or different sessions of the general assembly, one amendment without reference to the other, the amendments are to be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment by the general assembly prevails.

Iowa Code § 4.11 (1991).

Iowa Code § 400.8 and Maximum Hiring Age Limits:

28. Respondents assert that this statute requires the enactment of maximum age hiring limits. Respondents' Brief at 52. While there is ambiguity in the statute, there is no language mandating any such requirement. The act does not state, for example, that "the commission shall enact maximum age limits" or that "the commission must enact maximum age limits." See Iowa Code §§ 4.1(36)(a)(b)(the word "shall" imposes a duty-the word "must" states a requirement). The statute also does not empower the commissions to enact such rules. It does not state, for example, that "the commission may enact maximum age limits." See Iowa Code § 4.1(36)(c)(the word "may" confers a power).

29. The statute does impose a duty requiring that the rules governing the examination process be prescribed and published in advance of the examination. Iowa Code § 400.8. If the commission has minimum and maximum age limits, they are to be included in the rules and prescribed and published at the same time as the remaining rules. Id. The statute insures that all such age limits are included in the examination rules and published. This statute forecloses any technical argument to the effect that age limits need not be published as they are not "examination rules."

30. The statute in force prior to the 1937 amendment required the holding of examinations "under such rules as [the civil service commission] may prescribe." Iowa Code Ann. § 400.8 (Historical Note)(quoting Iowa Code § 5696 (1935)). It made no mention of publication and posting of the rules nor of any age limits. Id. Because there is only a limited legislative history available in Iowa, it is impossible to know precisely why the statute was amended, but the legislature probably believed it was necessary that all potential applicants have access to the examination rules in advance of the test in order to prevent abuses of the examination process. Perhaps some applicants had not learned of unpublished age limits until after the examination process was over. Perhaps there was a suspicion that, without these safeguards, rules could be manipulated to pre-select favored candidates, a result contrary to the legislative intent that selection be based on ability. See Iowa Code § 400.8. Whatever the reason for the statute's amendment, considered either alone or in the context of chapter 400, it recognizes the existence of age limits, but does not require the establishment of age limits. Id.

31. The 1976 anti-discrimination amendment prohibits only discrimination on the bases of "height, weight, sex, or race in determining physical or mental ability of the applicant." Id. Respondents argue that the absence of age in this anti-discrimination language indicates continuing legislative approval of age limits. Respondents Brief at 52- 53.

32. It seems curious that the legislature would ban only these four bases for discrimination with respect to civil service positions when, in the previous year, it had already prohibited discrimination in civil service commission appointments on the basis of "political or religious opinions or affiliations, race, national origin, sex, or age." Iowa Code Ann. § 400.17 (Historical Note)(citing 1975 Iowa Acts ch. 200 §§ 4, 5). Why the redundancy in again prohibiting sex and race discrimination? Why ban discrimination on the bases of height and weight? Why specifically address determinations of physical and mental ability?

33. The interrelationship between sex and race, on the one hand, and height and weight standards, and tests of physical and mental ability, on the other hand, can be summed up in two words, "disparate impact." By 1976, the disparate impact theory of discrimination, one of the major theories of discrimination law, had been recognized by both the United States Supreme Court and the Iowa Supreme Court. Griggs v. Wilson Sinclair, 211 N.W.2d 133, 140 (Iowa 1973); Griggs v. Duke Power Co., 401 U.S. 424 (1971). Under the disparate impact theory, practices which are evenly applied and are, therefore, "fair in form," but which tend to exclude minorities or women at a disproportionate rate are illegal unless they can be proven to be justified by business necessity, i.e. unless they can be shown to be job related. Hy-Vee Food Stores, Inc.
v. Iowa Civil Rights Commission, 453 N.W.2d 512,517, 18 (Iowa 1990).

34. By 1976, police departments, fire departments, and correctional institutions nationwide were involved in litigation where plaintiffs utilized the disparate impact theory to attack (1) height and weight standards on the basis of sex and race discrimination, e.g. Smith v. City of-East Cleveland, 363 F. Supp. 1131 (D.C. Ohio 1973); EEOC Decision No. 71-1529 (1971); (2) physical ability tests on the basis of sex discrimination, e.g. Officers for Justice v. Civil Service Commission, 11 Empl. Prac. Dec. 10618 (D.C. Ca. 1975), and (3) written mental ability tests on the basis of race discrimination, e.g. NAACP v. Civil Service Commission, 6 Empl. Prac. Dec. R 8956 (D.C. Ca. 1973); NAACP v. Allen, 7 Empl. Prac. Dec. 9 9287 (5th Cir. 1974).

35. It is more likely than not that the legislature enacted this anti-discrimination clause in order to emphasize the prohibition of this less obvious form of discrimination, see Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977), to end these discriminatory practices, and, not incidentally, to protect local governments from becoming liable for such practices. This clause does not signify any legislative tolerance of age discrimination.

36. This construction of Iowa Code section 400.8(l) is consistent with the rules of construction previously discussed. See Conclusions of Law No. 23-27. The legislature's intention in enacting 400.8 is not to institutionalize age discrimination but to ensure that selection of fire fighters and police officers is done fairly and on the basis of true measures of ability. This construction also harmonizes Iowa Code Section 400.8 and the anti-discrimination provision of Iowa Code Section 400.17, which provides:

A person shall not be appointed ... to ... a civil service position or in any other way favored or discriminated against in that position because of political or religious opinions or affiliations, race, national origin, sex, or age. However, the maximum age for a police officer or fire fighter covered by this chapter and employed for police duty or the duty of fighting fires is sixty-five years of age.

Iowa Code § 400.17 (1991) (emphasis added).

37. This provision prohibiting age discrimination in civil service appointments was enacted in 1976, 1976 Iowa Acts Ch. 1189 § 2, thirty-nine years after the enactment of the language in Iowa Code section 400.8 mentioning maximum age limits. 1937 Iowa Acts Ch. 56 § 7. The mandatory retirement age was enacted in 1979.1979 Iowa Acts Ch. 35 § 6.

38. By prohibiting an appointment to a civil service position or any other discrimination against a person with respect to that position "because of . . . age," the legislature essentially prohibited the use of age as a factor in the appointment process. See Price Waterhouse v. Hopkins, 490 U.S. 228,109 S. Ct. 1775, 104 L. Ed. 2d 268, 281-82 (1989)(discussion of "because of . . . sex"). While there are exceptions, as evidenced by the mandatory retirement age of 65, if section 400.8 were construed as either requiring local civil service commissions to set maximum age hiring limits or empowering them to do so, the prohibition in section 400.17 would be rendered meaningless. The maximum age limit provision of 400.8 and the prohibition against age discrimination in the appointment process of 400.17 would be irreconcilable. Iowa Code section 400.17 would prevail as it is the later enactment and it is listed later in the chapter than section 400.8. Iowa Code §§ 4.8, 4.1 (1991). See Conclusions of Law Nos. 26-27. Under the present construction of section 400.8, however, it is not necessary to reach this issue.

Ruling In the Alternative: If a Portion of Iowa Code Section 400.8 Actually Either Empowered or Required Civil Service Commissions to Establish Maximum Age Hiring Limits for Police Officers, the Anti-Discrimination Language of Iowa Code Section 400.17 Prevails Over It:

39. While, under the construction of section 400.8 set forth above, it is not necessary to reach this issue, the prevailing status of the anti-discrimination provision of Iowa Code section 400.17 over the maximum age limit provision of section 400.8 is adopted as a ruling in the alternative in the event it should later be determined that section 400.8 either mandates or empowers civil service commissions to set maximum age hiring limits. The reasoning for this alternative ruling is set forth in Conclusions of Law Nos. 37-38 above.

Iowa Code Section 411.6(l)(a), Which Establishes A Voluntary Retirement System for Law Enforcement Officers, Provides No Justification For Respondents' Maximum Age Hiring Limit:

40. Iowa Code Chapter 411 establishes and defines separate retirement systems for municipal police officers and firefighters appointed under the civil service laws of Iowa. It is undisputed that this chapter creates a voluntary, not a mandatory, retirement plan allowing police officers to retire once they have at least 22 years of service and have reached age 55. See Respondents Brief at 33 ("permits the early retirement"). See Finding of Fact No. 46.

41. Iowa Code Section 411.6(l)(a) provides:

411.6 Benefits.

1. Service retirement benefit. Retirement of a member on a service retirement allowance shall be made by each board of trustees as follows:

a. any member in service may retire upon application to board of police or fire trustees as the case may be, setting forth at what time, not less than thirty nor more than ninety days subsequent to the execution and filing of the application, the member desires to be retired. However, the member at the time specified for retirement shall have attained the age of fifty five and shall have served twenty-two years or more, and notwithstanding that, during the period of notification, the member may have separated from service.

Iowa Code § 411.6(l)(a)(1989)(emphasis added).

42. Respondents argue that this section demonstrates a legislative policy encouraging early retirement of police officers. They argue that they relied on this policy in establishing the not-yet-33 maximum age hiring limit, and that this reliance justifies this age limit under the Janesville case cited previously. Respondents' Brief at 33- 34, 37. See Conclusions of Law No. 20-21.

Conclusions of Law Continued