July 24, 2007
RE: Mandatory retirement of fire chief
Dear City Administrator:
You asked whether the fire chief could be mandatorily retired. In my opinion the
fire chief and the police chief are protected by state statute from the mandatory retirement
provisions that apply to local government firefighters and police officers in the Tennessee
Consolidated Retirement System. Therefore the fire chief cannot be required to retire.
Tennessee Code Annotated, § 8-36-205, which deals with the mandatory
retirement of police officers and firefighters, provides in pertinent part in Subdivision
(a)(3)(C):
Notwithstanding any other provision of the law to the contrary, any member who
would otherwise be covered under the mandatory retirement provisions of this
section and who serves as the . . . chief of a police department or of a fire
department, may continue in service beyond the age requirement for receipt of old
age and survivors benefits under Title II of the federal Social Security Act . . . .
The language “who would otherwise be covered” in this Subdivision indicates that the
police chief and the fire chief are not covered by the mandatory retirement provisions.
They were covered before this language was added in 2005. My summary of this
provision in my annual public acts publication was: “This section exempts police chiefs
and fire chiefs from mandatory retirement and allows them to serve beyond the age of
eligibility for social security.”
The language “may continue in service” describes a decision to be made by the
chief and not the political subdivision. The chief cannot be forced to retire, but he/she
may retire or may continue in service.
The rationale for this exemption for police and fire chiefs was that they do not
generally perform the rigorous duties that the rank and file perform. Therefore there is no
real basis to require them to retire. Whatever the merits of this argument, the General
Assembly passed the bill and chiefs are exempt from mandatory retirement.
I hope this is helpful. If you have further questions, feel free to call.
Sincerely
Dennis Huffer
Legal Consultant