ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR OPINION REQUEST IN WHICH YOU ASKED, IN EFFECT, THE FOLLOWING QUESTION:
IS IT A VIOLATION OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT FOR A RURAL ELECTRIC COOPERATIVE ("COOPERATIVE") ORGANIZED PURSUANT TO 18 O.S. 437 (1991), ET SEQ,. TO HAVE A BYLAW PROVISION THAT PROHIBITS A MEMBER OF THE BOARD OF TRUSTEES OF THE COOPERATIVE FROM SERVING AFTER THE AGE OF SEVENTY YEARS?
BECAUSE YOUR QUESTION MAY BE ANSWERED BY REFERENCE TO THE CONTROLLING STATUTES AND CASE LAW AND IN CONSIDERATION OF SPECIFIC FACTS, THE ISSUANCE OF A FORMAL OPINION OF THE ATTORNEY GENERAL IS NOT NECESSARY. THE DISCUSSION WHICH FOLLOWS IS, THEREFORE, NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL BUT RATHER REPRESENTS THE ANALYSIS AND CONCLUSIONS OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
IN ORDER TO RESPOND TO YOUR QUERY, IT IS NECESSARY TO REVIEW BOTH THE AGE DISCRIMINATION IN EMPLOYMENT ACT ("ADEA"),29 U.S.C.A. 621, ET SEQ., AND STATUTES GOVERNING THE RURAL ELECTRIC COOPERATIVES, 18 O.S. 437, ET SEQ. THE ADEA GENERALLY PROHIBITS DISCRIMINATION AGAINST AN INDIVIDUAL BY AN EMPLOYER, EMPLOYMENT AGENCY OR LABOR ORGANIZATION ON THE BASIS OF AGE. THE ADEA STATES "IT SHALL BE UNLAWFUL FOR AN EMPLOYER - (1) TO FAIL OR REFUSE TO HIRE OR TO DISCHARGE ANY INDIVIDUAL OR OTHERWISE DISCRIMINATE AGAINST ANY INDIVIDUAL WITH RESPECT TO HIS COMPENSATION, TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT, BECAUSE OF SUCH INDIVIDUALS' AGE."29 U.S.C.A. 623(A)(1). IN LOOKING AT THE ADEA, VARIOUS TERMS ARE DEFINED BY STATUTE. TITLE 29 U.S.C.A. 630(B) DEFINES EMPLOYER AS "A PERSON ENGAGED IN AN INDUSTRY AFFECTING COMMERCE WHO HAS 20 OR MORE EMPLOYEES FOR EACH WORKING DAY IN EACH OF 20 OR MORE CALENDAR WEEKS IN THE CURRENT OR PRECEDING CALENDAR YEAR(.)"
WHETHER A RURAL ELECTRIC COOPERATIVE IS AN EMPLOYER UNDER THIS PROVISION IS A QUESTION OF FACT WHICH THIS OPINION DOES NOT ADDRESS. THE TERM "EMPLOYER" ALSO MEANS (2) A STATE OR POLITICAL SUBDIVISION OF A STATE AND ANY AGENCY OR INSTRUMENTALITY OF A STATE OR A POLITICAL SUBDIVISION OF A STATE(.)" A.G. OPIN. NO. 89-072 CONCLUDED THAT A COOPERATIVE IS NOT A GOVERNMENTAL ENTITY BUT A PRIVATE CORPORATION. THEREFORE, A RURAL ELECTRIC COOPERATIVE IS NOT AN "EMPLOYER" UNDER 29 U.S.C.A. 630(B)(2).
BECAUSE THE ADEA PROHIBITS AGE DISCRIMINATION AGAINST AN INDIVIDUAL WITH RESPECT TO TERMS OF EMPLOYMENT, WE MUST DETERMINE WHETHER THE TRUSTEES OF A COOPERATIVE SERVE IN AN EMPLOYMENT RELATIONSHIP. THE ADEA DEFINES EMPLOYEE AS "AN INDIVIDUAL EMPLOYED BY AN EMPLOYER." 29 U.S.C.A. 630(F). IN THE CONTEXT OF THE QUESTION POSED TO THIS OFFICE, A MEMBER OF THE BOARD OF TRUSTEES OF A COOPERATIVE FORMED UNDER THE PROVISIONS OF 18 O.S. 437 (1991), ET SEQ., WOULD NOT MEET THE CRITERIA OF AN EMPLOYEE UNDER THE ADEA. TITLE 18 O.S. 437.8 STATES "(A) THE BUSINESS AND AFFAIRS OF A COOPERATIVE SHALL BE MANAGED BY A BOARD OF NOT LESS THAN FIVE (5) TRUSTEES, EACH OF WHOM SHALL BE A MEMBER OF THE COOPERATIVE(.)" THE STATUTORY DUTY OF THE BOARD OF TRUSTEES TO MANAGE