Cross references. - Exemption from garnishment for funds or benefits from pension or retirement program, § 18-4-22 .

Reimbursement of Department of Law by Employees' Retirement System of Georgia, Teachers Retirement System of Georgia, for legal services provided by assistant attorney general, etc., § 45-15-37 .

Exclusion from taxable net income of amounts received from certain enumerated pension or retirement funds or systems, § 48-7-27 .

Editor's notes. - See the editor's notes under § 1-1-1 quoting in full the provisions of the annual reenactment of the Code and its supplement except for the provisions of this title.

Law reviews. - For article, "The Pension Game: Age- and Gender-Based Inequities in the Retirement System," see 25 Ga. L. Rev. 1 (1990). For article, "Pension Reform/Simplification - An Urgent Need: Practical Proposals from the Front Lines," see 25 Ga. L. Rev. 91 (1990).

RESEARCH REFERENCES

ALR. - Validity, construction, and effect of provision forfeiting or suspending benefits in event of competitive employment as part of retirement or pension plan, 18 A.L.R.3d 1246.

What constitutes employer's "withdrawal" from multiemployer pension plan, under §§ 4203 and 4205 of Employee Retirement Income Security Act (29 U.S.C. §§ 1383 and 1385), so as to result in liability to plan, 101 A.L.R. Fed. 173.

CHAPTER 1 GENERAL PROVISIONS

In General.

Restrictions and Prohibitions on

Membership in Public Retirement

or Pension Systems.

Increase of Benefits to Offset Taxes.

Creditable Service During Temporary Disability.

Establishing Creditable Service by Veterans.

Conformity with Federal Law.

RESEARCH REFERENCES

Wrongful Termination of Retirement Benefits, 13 POF2d 531.

ARTICLE 1 IN GENERAL

47-1-1. Intent of codification and enactment of this title.

The enactment of Title 47 of this Code is intended only as a recodification of the existing laws of this state relating to retirement and pensions. The codification and enactment of this title are not intended to nor shall they be construed to increase, diminish, grant, destroy, impair, alter, or otherwise affect any pension, retirement benefit or allowance, survivors benefit, membership or right to membership, creditable service or right thereto, prior service or right thereto, membership service or right thereto, or any option, election, or right of any kind which is in existence on November 1, 1982.

(Code 1981, § 47-1-1 ; Ga. L. 2000, p. 131, § 1.)

Editor's notes. - This Code section was created as part of the Code revision and was thus enacted by Ga. L. 1981, Ex. Sess., p. 8 (Code enactment Act).

RESEARCH REFERENCES

ALR. - Construction and application of Employee Retirement Income Security Act of 1974 (29 USCA § 1001 et seq.) by United States Supreme Court, 150 A.L.R. Fed. 441.

47-1-2. Pooling of funds by retirement systems for investment purposes; accounting practices with regard to pooled funds.

  1. The boards of trustees or directors, by whatever name known, of any two or more retirement systems created by general law, pursuant to the mutual consent of such boards, may pool their trust funds for the purposes of joint investment.  The board of trustees or directors, by whatever name known, of any two or more local retirement systems funded by a single political subdivision may likewise pool their trust funds for the purposes of joint investment.  When such pooling occurs, the board of trustees of the managing retirement system shall account for the pooled trust funds in accordance with generally accepted principles of accounting, in order to maintain separate accountability of such funds while under its management.
  2. The pooled trust funds may be invested in accordance with Chapter 2 of this title, relating to the Employees' Retirement System of Georgia, notwithstanding any other provisions of law to the contrary.
  3. Nothing in this Code section shall establish a legal provision for combining the Employees' Retirement System of Georgia with the Teachers Retirement System of Georgia.

    (Ga. L. 1974, p. 1178, § 1; Ga. L. 1991, p. 994, § 1.)

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 313.

47-1-3. Power of a local retirement system to hire an actuary; payment of the administrative costs of a local retirement system; periodic actuarial investigations; annual financial report.

  1. As used in this Code section, the term "local retirement system" means any retirement, pension, or emeritus system covering an employee or employees of a county, municipality, local board of education, or other political subdivision, or any groups or classifications of such employees which is funded at least in part by such political subdivisions.
  2. The board of trustees or other governing authority of each local retirement system is authorized and directed to designate and retain the services of a qualified actuary to provide technical advice and assistance to the board of trustees or governing authority in the management of the retirement system and in the preparation of surveys or reports required under this Code section.
  3. Any political subdivision maintaining a local retirement system for an employee or employees or for classifications of employees is authorized to expend any public funds available to it to pay any portion of the administrative costs of the retirement system, if the funds available to the retirement system are not adequate to pay the administrative costs, notwithstanding any contrary provisions of any laws relative to such local retirement system.
  4. Once every two years, the board of trustees or other governing authority of each local retirement system shall have the system's actuary make an actuarial investigation. Such actuarial investigation shall include the results of any actuarial investigation into the then current assumptions as to rates of interest, mortality, disability, withdrawal, and retirement. The actuarial investigation shall also include consideration of the experience of the retirement system under its assumptions and a comparison of results with the previous actuarial investigations and may also include such other studies as may be necessary or desirable for the completeness and accuracy of the actuarial investigation. The actuarial investigation shall also include a valuation of the contingent assets and liabilities of the retirement system and a determination of the payments necessary to amortize over a stated period any unfunded accrued liability disclosed. As an exhibit to the actuarial investigation, the local retirement system board of trustees or other governing authority thereof shall attach a copy of all the provisions of the plan for the local retirement system, including the requirements and conditions for qualifying to participate, the nature of benefits under the plan, and the manner in which the local retirement system is funded. Beginning on October 1, 1996, and every two years thereafter on such date, the board of trustees or other governing authority of each such local retirement system shall have on file with the state auditor an actuarial investigation meeting the requirements of this subsection. This subsection shall not apply to a retirement or pension program which is established pursuant to an insurance contract between an insurer and a county, municipality, local board of education, or other political subdivision or between an insurer and any commission, board, or other agency of any such political subdivision. As used in the preceding sentence, the word "insurance" and the word "insurer" shall have the meanings set forth, respectively, in Code Section 33-1-2. Municipalities providing a retirement program for their employees pursuant to a contract with the Board of Trustees of the Georgia Municipal Employees Benefit System shall not be required to submit actuarial investigations under this subsection or financial reports under this Code section. In lieu of such actuarial investigations and reports, the Board of Trustees of the Georgia Municipal Employees Benefit System shall prepare a comprehensive report once every two years based on the information required under Code Sections 47-5-26 and 47-5-30. Such comprehensive reports shall be filed with the state auditor at the same time as actuarial investigations are filed as provided in this subsection. Any county providing a retirement program for its employees pursuant to a contract with, or a program offered by, the Association County Commissioners of Georgia shall also be exempt from the requirements of this subsection or financial reports under this Code section, if the Association County Commissioners of Georgia files with the state auditor, at the same time actuarial investigations are filed under this subsection, a comprehensive report substantially equivalent to the comprehensive report filed by the Board of Trustees of the Georgia Municipal Employees Benefit System as provided in this subsection. Nothing in this subsection shall be construed as to exempt either the Georgia Municipal Employees Benefit System or the Association County Commissioners of Georgia from the provisions of Code Section 47-20-4.
  5. The board of trustees or other governing authority of each local retirement system shall file a financial report on such local retirement system with the state auditor at the same time each actuarial investigation is filed with the state auditor as provided by subsection (d) of this Code section.
  6. The financial report shall include, for each of the two fiscal years covered by the report, the following information:
    1. The receipts of the local retirement system, including member contributions, employer contributions, any other contributions, investment income, gains from the sale of the system's assets, and any other receipts from whatever source derived;
    2. The disbursements of the local retirement system, including benefit payments to retirees or beneficiaries, refunds to members, losses from the sale of the system's assets, and administrative expenses of the system; and
    3. The certificate of the chairperson of the board of trustees stating that the investment practices of the fund have been in compliance with the provisions of Article 7 of Chapter 20 of this title at all times during the reporting period or, if the practices have at any time been out of compliance with such provisions, providing a description of the noncompliance, the reason for the noncompliance, and the corrective action taken.
  7. The financial report shall also include statistics on the membership and beneficiaries of the local retirement system. There shall be attached to the financial report an exhibit showing all amendments to or changes in the local retirement system which have been made since the filing of the previous actuarial investigation under subsection (d) of this Code section.
  8. The first financial report shall be filed on October 1, 1996, and subsequent reports shall be filed every two years thereafter on October 1.
  9. The financial reports, the actuarial investigations, and all exhibits thereto and modifications thereof shall be a matter of public record open to inspection by the public.
  10. The financial reports required by this Code section shall apply to retirement or pension programs established pursuant to an insurance contract, as described by subsection (d) of this Code section.

    (Ga. L. 1974, p. 1407, §§ 1-3; Ga. L. 1981, p. 931, §§ 1, 2; Ga. L. 1982, p. 3, § 47; Ga. L. 1987, p. 146, § 1; Ga. L. 1990, p. 190, § 1; Ga. L. 1996, p. 651, § 1; Ga. L. 2000, p. 2, § 14; Ga. L. 2001, p. 21, § 1.)

Cross references. - Triennial actuarial investigations required for each retirement system of a political subdivision, § 47-20-21 .

Law reviews. - For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981).

RESEARCH REFERENCES

ALR. - Statute of limitations in respect of action or proceeding to establish right to, or recovery of benefits of, pension, 136 A.L.R. 809 .

Gift to or for employees' pension fund as valid charitable gift or trust, 28 A.L.R.2d 428.

Vested right of pensioner to pension, 52 A.L.R.2d 437.

Unemployment compensation: eligibility of employee laid off according to employer's mandatory retirement plan, 50 A.L.R.3d 880.

Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.

47-1-4. Report of the state auditor on the condition of local retirement systems.

Based on the most recent actuarial investigations on file pursuant to subsection (d) of Code Section 47-1-3 and financial reports submitted under subsections (e) through (j) of Code Section 47-1-3, the state auditor, once every two years beginning on January 1, 1997, shall submit a report on the condition of local retirement systems to the Governor and each member of the General Assembly. The report shall deal specifically with any local retirement system which the state auditor has reason to believe is not in actuarially sound condition or has not been in compliance with the provisions of Code Section 47-1-12. A copy of the state auditor's report shall also be sent to the Attorney General and to the applicable governing authority of the political subdivision and the applicable board of trustees or other governing authority of the local retirement system which the state auditor finds is not in actuarially sound condition or has not been in compliance with the provisions of Article 7 of Chapter 20 of this title.

(Ga. L. 1981, p. 931, § 3; Ga. L. 1996, p. 651, § 2; Ga. L. 2001, p. 21, § 1.)

Cross references. - Triennial report to include list of local retirement systems not in conformance with minimum funding standards, § 47-20-21 .

47-1-5. Duty of governing authorities to make and file actuarial investigations and to file financial reports; withholding of state funds for failure to meet this duty.

It shall be the duty of the governing authority of each county, municipality, or other political subdivision whose employees are covered under a local retirement system and the duty of a local board of education whose employees are covered under a local retirement system to cause the actuarial investigations required by subsection (d) of Code Section 47-1-3 to be made and to cause such actuarial investigations to be filed with the state auditor as required by that subsection. It shall also be their duty to cause financial reports to be submitted to the state auditor as required by subsections (e) through (j) of Code Section 47-1-3. If a required actuarial investigation and financial report are not submitted, then within 30 days after the date on which such investigation and report were due in the office of the state auditor, the state auditor shall notify, in writing, the governing authority of the county, municipality, or other political subdivision whose employees are covered under the applicable local retirement system. If the actuarial investigation and financial report are not received by the state auditor within 60 days after the date such notice is sent to the governing authority, the state auditor shall notify the state treasurer; and it shall be the duty of the state treasurer to withhold any state funds payable to the applicable political subdivision or local board of education until the actuarial investigation and financial report are submitted to the state auditor. The state auditor shall advise the state treasurer within five days after receiving the actuarial investigation and financial report to release any state funds payable to the applicable political subdivision.

(Ga. L. 1981, p. 931, § 3; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, §§ 3, 4/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" in the fourth and fifth sentences and substituted "state treasurer" for "director" in the fourth sentence.

47-1-6. Effect of World War II armed forces service on retirement benefits; payments to retirement systems for such periods.

  1. No veteran of World War II who was discharged other than dishonorably and who was furloughed from a position of employment with a county or municipal government which has a retirement or pension plan for the position occupied shall suffer or otherwise lose any seniority toward his retirement or pension by virtue of such service in the armed forces of the United States.
  2. No such veteran shall be required to make any payments to any such retirement or pension fund for and during his period of service with the armed forces of the United States.
  3. This Code section shall apply to a political subdivision of any county or municipality where such a retirement or pension plan is in effect.

    (Ga. L. 1947, p. 858, §§ 1-3.)

Cross references. - Rights of public officers and employees absent on military duty as members of organized militia or reserve forces, as such rights relate to retirement systems, § 38-2-279(f) .

RESEARCH REFERENCES

Am. Jur. 2d. - 60 Am. Jur. 2d, Pensions and Retirement, § 44; 63C Am. Jur. 2d, Public Officers and Employees, §§ 4, 87 et seq., 103 et seq., 149 et seq. 77 Am. Jur. 2d, Veterans and Veterans' Laws, §§ 3, 82, 85.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 46 et seq., 95 et seq.

ALR. - Constitutionality of welfare Acts for veterans of World War, 22 A.L.R. 1542 .

Re-employment or reinstatement of public officer or employee as restoration of original status as regards incidental rights privileges, 89 A.L.R. 684 .

Constitutionality of statutes providing for bounty or pension for soldiers, 147 A.L.R. 1432 ; 156 A.L.R. 1458 .

Re-employment of discharged servicemen, 29 A.L.R.2d 1279; 9 A.L.R. Fed. 225.

Applicability to fringe benefits of Vietnam Era Veterans' Readjustment Assistance Act provision establishing veterans' reemployment rights (38 USCS sec. 2021), 83 A.L.R. Fed. 908.

47-1-7. Powers of retirement, pension, or emeritus systems or funds with regard to agents employed to act as custodians of assets or investment advisers.

The board of trustees or other person or body having the power to manage, invest, and reinvest the assets of any retirement, pension, or emeritus system or fund created under the laws of this state may authorize any agent, including a bank or trust company, employed to act as custodian of such assets or to act as an investment adviser and to make investments for such retirement, pension, or emeritus system or fund, provided that such agent has a nominee or nominees in whose name securities, including, without limitation, bonds, stocks, notes, and other evidence of title to intangible personal property, held by the agent may be registered, to register securities which are held under the terms of such agency in the name of the nominee or nominees, without mention of the agency relationship in the instrument evidencing such securities or on the books of the issuing entity. The records of such agent shall at all times clearly show that such securities are held in such agency capacity and shall indicate the beneficial owner of the securities. Such agent shall not be relieved of liability for the safe custody, control, and proper distribution of such securities or the income therefrom by reason of the registration of those securities in the name of any nominee. The authorization of any such agent to register securities in the name of such nominees shall be in writing and may contain such other restrictions as the board of trustees or other person or body charged with the management and investment of the assets of any such retirement, pension, or emeritus system or fund may deem appropriate.

(Ga. L. 1972, p. 427, § 1; Ga. L. 1987, p. 146, § 1; Ga. L. 2010, p. 1207, § 65/SB 436.)

The 2010 amendment, effective July 1, 2010, substituted "adviser" for "advisor" in the middle of the first sentence.

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-1-8. Restrictions on ability of members of the General Assembly to receive pension plan credit for service in the General Assembly.

No person becoming a member of the General Assembly for the first time on or after July 1, 1984, shall be entitled to receive or shall receive any creditable service under any local retirement or pension system for service as a member of the General Assembly unless the law, ordinance, or resolution which is the source of authority for such local retirement or pension system specifically authorizes creditable service to be obtained under such local retirement or pension system for service in the General Assembly.

(Code 1981, § 47-1-8 , enacted by Ga. L. 1984, p. 758, § 1.)

Cross references. - Crediting of time served in General Assembly to pension plan of political subdivision, § 28-1-9 .

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq.

47-1-9. Crediting of time toward Georgia Legislative Retirement System; restriction on crediting; options for members; refund of contributions; construction of conflicting provisions.

  1. Except as provided by subsection (b) of this Code section, any member of the General Assembly holding office on January 1, 1986, may obtain creditable service for membership in the General Assembly obtained on and after that date only for the purposes of the Georgia Legislative Retirement System, and no service as a member of the General Assembly which is obtained after December 31, 1985, by any such member shall be creditable or used as creditable service for the purposes of any other public retirement or pension system of this state.
    1. Subject to the limitations of paragraph (2) of this subsection, the provisions of subsection (a) of this Code section shall not apply to any member of the General Assembly holding office on January 1, 1986, who:
      1. Was a member of the Employees' Retirement System of Georgia on that date; and
      2. Received annual compensation as a member and officer of the General Assembly during calendar year 1985, on which employee contributions to the Employees' Retirement System of Georgia were based, exceeding the average annual compensation of all members of the Employees' Retirement System of Georgia for calendar year 1985.
    2. Any member of the General Assembly subject to the provisions of paragraph (1) of this subsection who continues to receive annual compensation on and after January 1, 1986, as a member and officer of the General Assembly exceeding the average annual compensation of all members of the Employees' Retirement System of Georgia may continue membership in said retirement system.
  2. Any person becoming a member of the General Assembly after December 31, 1985, shall be eligible to obtain creditable service as a member of the General Assembly only for the purposes of the Georgia Legislative Retirement System, and no service as a member of the General Assembly which is obtained on or after January 1, 1986, by any such person shall be creditable or used as creditable service for the purposes of any other public retirement or pension system of this state.
  3. Notwithstanding any provisions of Chapter 6 of this title or any other law, any member of the General Assembly may withdraw from membership in the Georgia Legislative Retirement System and receive a refund of contributions to such system under Code Section 47-6-85. Any member exercising the option provided by this subsection may not at any time thereafter reestablish membership in the Georgia Legislative Retirement System or become a member of any public retirement or pension system while serving as a member of the General Assembly.
  4. The provisions of this Code section shall control over conflicting or inconsistent provisions of any other law of this state, specifically including any law relating to any public retirement or pension system of this state. It is the intention of the General Assembly that this Code section may not be repealed, superseded, or modified by implication through the enactment of any other law or through the amendment of any existing law, and any modification or repeal of the requirements of this Code section shall be accomplished only by amendment to or repeal of this specific Code section. (Code 1981, § 47-1-9 , enacted by Ga. L. 1985, p. 1334, § 1; Ga. L. 1987, p. 146, § 1; Ga. L. 2010, p. 1207, § 2/SB 436.)

The 2010 amendment, effective July 1, 2010, deleted the former last sentence of paragraph (b)(2), which read: "If during any calendar year the annual compensation of any such member of the General Assembly is equal to or less than the average annual compensation of all members of the Employees' Retirement System of Georgia for that calendar year, then on the first day of January immediately following such calendar year such member of the General Assembly shall be subject to the provisions of subsection (c) of this Code section, and for the purposes of this paragraph, any reference in said subsection (c) to January 1, 1986, shall mean the first day of January immediately following such calendar year."; deleted former subsection (c); and redesignated former subsections (d) through (f) as present subsections (c) through (e), respectively.

Editor's notes. - Ga. L. 1985, p. 1334, § 3, not codified by the General Assembly, provided that that Act would become effective for administrative purposes upon its approval by the Governor or upon its otherwise becoming law and would become effective for all purposes on January 1, 1986. The Act was approved April 10, 1985.

Ga. L. 1985, p. 1334, § 2, not codified by the General Assembly, provided as follows: "This Act is pursuant to the authority of Article III, Section X, Paragraph VI of the Constitution and pursuant to the specific authority of subparagraph (d) of said Paragraph VI, this Act is exempt from the provisions of Chapter 20 of Title 47 of the Official Code of Georgia Annotated, known as the 'Public Retirement Systems Standards Law.' "

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

OPINIONS OF THE ATTORNEY GENERAL

Transfer of legislative time not permitted. - Legislator exercising an election to become a member of the Legislative Retirement System pursuant to the 1979 amendment of the Employees Retirement System Act cannot transfer that legislative time to the Employees Retirement System upon later assuming a position which entitles the legislator to membership in the Employees Retirement System. 1991 Op. Att'y Gen. No. 91-6.

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq.

47-1-10. Adoption, amendment, or repeal of rules by boards of trustees of state retirement or pension systems; procedure; immediate adoption; filing of rules with Secretary of State; adoption of rules and regulations appropriate or necessary to maintain qualified status.

  1. As used in this Code section, the term:
    1. "Board of trustees" means the board of trustees or other administrative body or agency charged with the duty of administering any public retirement or pension system created by this title, except the Board of Trustees of the Georgia Municipal Employees Benefit System provided for by Chapter 5 of this title.
    2. "Employer" means a state department, official, or agency of the state or a local board of education, local elected official, or a local political subdivision which employs members.
    3. "Member" means a member of a public retirement or pension system created by this title.
    4. "Member organization" means any association of public employees or officials whose membership consists primarily of members of a public retirement or pension system created by this title.
    5. "Rule" means any rule or regulation adopted by a board of trustees for the administration or to aid in the administration of a public retirement or pension system created by this title, except rules or regulations governing or relating to the investment of the funds or assets of any such retirement or pension system by any such board of trustees.
    6. "Small retirement system" means any public retirement or pension system created by this title which has less than 200 members.
  2. Prior to the adoption, amendment, or repeal of any rule, a board of trustees shall:
    1. Give at least 30 days' notice of the intended action. The notice shall include an exact copy of the proposed rule, the date on which the board of trustees will consider the adoption of the rule, and the time and place where the board of trustees shall meet for such purpose. The notice shall also contain a citation of the authority pursuant to which the rule is proposed for adoption and, if the proposal is an amendment to or repeal of an existing rule, the existing rule shall be clearly identified. The notice shall be mailed to all members of the respective retirement or pension system who have requested in writing to the board of trustees to be placed on a mailing list for proposed rules, provided that such mailing list shall not exceed 200 such members. If more than 200 members request to be placed on such mailing list, the board of trustees shall confine the list to the first 200 members making written request to the board of trustees to be placed on the mailing list. The board of trustees of any small retirement system may, at its discretion, mail the notice to all members. The notice shall also be mailed to employers and to member organizations of the respective public retirement or pension systems. Employers shall post such notices on bulletin boards for their respective employees and shall otherwise take reasonable steps to assure that members of the respective retirement or pension systems are made aware of the notice; and
    2. Afford members of the retirement or pension system affected by the proposed rule a reasonable opportunity to submit to the board of trustees, in writing, data, views, or arguments relative to the proposed rule. Any such submissions received by the board of trustees prior to the adoption of the proposed rule shall be considered by the board of trustees.
  3. At the time of the distribution of the notices required by paragraph (1) of subsection (b) of this Code section, the respective boards of trustees shall transmit a copy of such notices to each member of the House and Senate standing committees on retirement for review by such committees. If, prior to the adoption of the rule by the respective board of trustees, the chairman of either such committee notifies such board of trustees that the committee objects to the adoption of the rule or has questions concerning the purpose, nature, or necessity of the rule, it shall be the duty of such board of trustees to consult with the committee prior to the adoption of the rule.
  4. If a board of trustees finds that the immediate adoption of a rule is necessary to secure or protect the interests of the members of its respective public retirement or pension system, such rule may be adopted on an emergency basis without following the procedures required by this Code section. In that event, the board of trustees shall adopt a resolution declaring the existence of an emergency and explaining the basis for such declaration as a condition necessary to adopt a rule on an emergency basis. Any rule adopted pursuant to the authority of this subsection shall expire in not more than 120 days immediately following its adoption, but the adoption of an identical rule pursuant to the requirements of this Code section is not precluded.
    1. By not later than January 1, 1986, each board of trustees shall file with the Secretary of State a certified copy of all rules which were adopted by such board of trustees during the period beginning on January 1, 1979, and ending on July 1, 1985. Any rule adopted by a board of trustees during such period which is not filed with the Secretary of State by January 1, 1986, shall be void and of no force and effect after January 1, 1986. It shall not be necessary for rules adopted by boards of trustees prior to January 1, 1979, to be filed with the Secretary of State and such rules shall continue in force and effect until repealed by the respective boards of trustees, but if any such rule is amended on or after July 1, 1985, the original rule as amended shall be filed with the Secretary of State.
    2. Except pursuant to the authority of subsection (d) of this Code section, each rule adopted by a board of trustees on or after July 1, 1985, shall not become effective until the expiration of at least 20 days after an original and two copies of the rule are filed in the office of the Secretary of State.
    3. Rules which are required to be filed with the Secretary of State by paragraphs (1) and (2) of this subsection shall contain a citation of the authority pursuant to which the rules were adopted and, when existing rules are amended, the filings required by this subsection shall clearly identify the existing rules. The Secretary of State shall endorse on each filing required by this subsection the time and date of the filing and shall maintain a file of the rules for public inspection. The provisions of this subsection relative to rules adopted on or after July 1, 1985, shall not be construed to require a rule to go into effect 20 days after filing with the Secretary of State if the rule, by its own terms, provides for a later effective date. Rules filed with the Secretary of State pursuant to this subsection shall be published by the Secretary of State as a part of the rules of state agencies published by the Secretary of State pursuant to Code Section 50-13-7.
  5. Each board of trustees shall be authorized to adopt rules and regulations which are appropriate or necessary to maintain the qualified status of its respective public retirement and pension system under Sections 401(a) and 414(d) of the federal Internal Revenue Code and such other applicable sections of the federal Internal Revenue Code. (Code 1981, § 47-1-10 , enacted by Ga. L. 1985, p. 1638, § 1; Ga. L. 1990, p. 190, § 2; Ga. L. 2009, p. 947, § 1/HB 202.)

The 2009 amendment, effective May 11, 2009, added subsection (f).

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 313.

47-1-11. Creditable service not allowed for military service from which discharge was other than honorable.

  1. As used in this Code section, the term:
    1. "Creditable service" means any period of time which may be used as a factor in the computation of any benefit under a public retirement system.
    2. "Military service" means service in the armed forces of the United States or in a reserve component of the armed forces of the United States, including the National Guard.
    3. "Public employee" means elected and appointed officials and employees of the state or any branch, department, board, bureau, commission, authority, or other agency of the state and elected and appointed officials and employees of any political subdivision of the state or of any authority or other agency of any such political subdivision.
    4. "Public retirement system" means any retirement or pension system now or hereafter created by or pursuant to the authority of Georgia law or the Constitution of Georgia which has public employees as members of the retirement or pension system.
    5. "Source of authority" means the law, resolution, or ordinance which creates or provides for a public retirement system.
  2. Only military service for which a person was discharged or separated under honorable conditions shall be eligible to be counted as military service for the purpose of obtaining creditable service under any public retirement system, whether presently existing or hereafter created, when the source of authority for such public retirement system authorizes military service to be used as a basis to obtain creditable service under such public retirement system.
  3. The provisions of this Code section are a limitation on the use of military service as creditable service under any public retirement system and shall not be construed to create a right to obtain creditable service for military service under any public retirement system when such right does not exist independently of this Code section. (Code 1981, § 47-1-11 , enacted by Ga. L. 1986, p. 1233, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, Code Section 47-1-11, as enacted by Ga. L. 1986, p. 1240, § 1, was redesignated as Code Section 47-1-12.

Law reviews. - For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).

47-1-12. Investment and reinvestment of assets of local retirement system; valuation and limitation on investments; duties of state auditor.

  1. The board of trustees of any local retirement system shall have full power to invest and reinvest assets of the retirement system and to purchase, hold, sell, assign, transfer, and dispose of any securities and other investments in which assets of the retirement system have been invested, any proceeds of any investments, and any money belonging to the retirement system; provided, however, that, except as otherwise provided in this Code section, such power shall be subject to all terms, conditions, limitations, and restrictions imposed by Article 7 of Chapter 20 of this title in making and disposing of their investments.
  2. Notwithstanding the provisions of Code Section 33-11-21, the board of trustees of any local retirement system shall not be restricted to investing in those equities which have paid a cash dividend in at least three of the last five years preceding the purchase of such equities.
  3. Nothing in this Code section shall be construed to limit or restrict the authority of the board of trustees of any retirement system to invest or reinvest assets of such system in such manner and under such conditions as are authorized by law.
  4. The state auditor shall monitor the investment activity of local retirement systems and shall submit a report to the Governor and the presiding officer of each chamber of the General Assembly describing the effect, if any, changes in investment policy have had on those systems. Such report shall be submitted not later than December 31, 2001. (Code 1981, § 47-1-12 , enacted by Ga. L. 1986, p. 1240, § 1; Ga. L. 1996, p. 651, § 3; Ga. L. 1998, p. 126, § 1; Ga. L. 2000, p. 2, § 3; Ga. L. 2015, p. 898, § 1/HB 266.)

The 2015 amendment, effective July 1, 2015, substituted "Article 7 of Chapter 20 of this title" for "the laws of this state upon domestic life insurance companies" near the end of subsection (a).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, Code Section 47-1-11, as enacted by Ga. L. 1986, p. 1240, § 1, was redesignated as Code Section 47-1-12.

47-1-13. Maximum compensation used in computing employee and employer contributions.

  1. As used in this Code section, the term "eligible member" means a person who became a member of a public retirement or pension system prior to the plan year beginning after December 31, 1995.
  2. Any other provision of law to the contrary notwithstanding, the maximum compensation used in computing employee and employer contributions to or benefits due from any public retirement or pension system shall be the maximum compensation set forth in Section 401(a)(17) of the federal Internal Revenue Code, as now or hereafter amended; provided, however, that pursuant to Section 13212(d)(3)(A) of the federal Omnibus Budget Reconciliation Act of 1993 and the regulations issued under such section, eligible members are not subject to the limits of Section 401(a)(17) of the federal Internal Revenue Code, and the maximum compensation used for such computations for eligible members shall be the maximum amount allowed by the respective retirement or pension system to be so used on July 1, 1993. (Code 1981, § 47-1-13 , enacted by Ga. L. 1995, p. 351, § 1; Ga. L. 2009, p. 947, § 2/HB 202.)

The 2009 amendment, effective May 11, 2009, in subsection (b), inserted "federal" and inserted "pursuant to Section 13212(d)(3)(A) of the federal Omnibus Budget Reconciliation Act of 1993 and the regulations issued under such section, eligible members are not subject to the limits of Section 401(a)(17) of the federal Internal Revenue Code, and" near the middle, and substituted "members" for "employees" near the end.

U.S. Code. - The United States Internal Revenue Code Section 401(a)(17), referred to in subsection (b), is codified in 26 U.S.C. § 401.

The Omnibus Budget Reconciliation Act of 1993, referred to in subsection (b), can be found at Pub. L. 103-66.

47-1-13.1. Annual compensation limits in determining benefits or contributions due.

  1. As used in this Code section, the term:
    1. "Annual compensation" means compensation during the determination period. Such term shall include any cost-of-living adjustment in effect for a calendar year if the determination period begins with or within such calendar year.
    2. "Determination period" means the plan year or such other consecutive 12 month period over which compensation is otherwise determined under the public retirement or pension system.
  2. The annual compensation of a plan member during any plan year beginning on or after January 1, 2002, which exceeds $200,000.00, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the federal Internal Revenue Code, shall not be taken into account in determining benefits or contributions due from the public retirement or pension system for any plan year. If the determination period consists of fewer than 12 months, the annual compensation limit shall be an amount equal to the otherwise applicable annual compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period and the denominator of which is 12. If the compensation for any prior determination period is taken into account in determining a plan member's contributions or benefits for the current plan year, the compensation for such prior determination period shall be subject to the applicable annual compensation limit in effect for the prior period.
  3. The annual compensation of a plan member during any plan year beginning on and after January 1, 1996, and before January 1, 2002, which exceeds $150,000.00, as indexed as provided in Section 401(a)(17)(B) of the federal Internal Revenue Code, shall be disregarded for purposes of computing contributions to or benefits due from the public retirement or pension system. (Code 1981, § 47-1-13.1 , enacted by Ga. L. 2009, p. 947, § 3/HB 202; Ga. L. 2010, p. 1207, § 64/SB 436.)

Effective date. - This Code section became effective May 11, 2009.

The 2010 amendment, effective July 1, 2010, substituted "section, the" for "section the" in the introductory paragraph of subsection (a) and substituted "cost-of-living" for "cost of living" in the second sentence of paragraph (a)(1).

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

47-1-14. "Retirement system" defined; records exempt from public inspection.

  1. As used in this Code section, the term "retirement system" means any public retirement system created by this title. Such term also means any association of like political subdivisions the purpose of which is the pooling of funds for retirement or pension purposes.
  2. Any other provision of law to the contrary notwithstanding, the following records maintained by a retirement system are exempted from being open to inspection by the general public:
    1. Records containing wiring or automated clearing house transfer of funds instructions or access codes;
    2. Records containing bank account numbers;
    3. All proprietary computer software; and
    4. Any business, financial, or personal information in the possession of such retirement system concerning a party other than such retirement system.
  3. Any other provision of law to the contrary notwithstanding, the following records maintained by a retirement system are exempted from being open to inspection by the general public for a period of one year from the date such records were created:
    1. Records containing investment advice rendered by any investment adviser or retirement system employee;
    2. Exhibits to minutes of retirement system board meetings or investment committee board meetings which contain securities trading information;
    3. Securities trade tickets, confirmations, and other records pertaining to securities trades; and
    4. Records which contain proposed terms of sale for real property owned by a retirement system; provided, however, that the records defined in this paragraph shall be subject to disclosure at any time after the sale of real property is consummated.
  4. Any other provision of law to the contrary notwithstanding, the following records maintained by a retirement system are exempted from being open to inspection by the general public until the end of the calendar quarter following the calendar quarter in which the record is created:
    1. Records which contain information relating to the investment portfolio composition and positions; and
    2. Exhibits to minutes of retirement system board meetings or investment committee board meetings which contain information relating to investment portfolio composition and positions.
  5. The provisions of subsections (b), (c), and (d) of this Code section shall not restrict access to records:
    1. By an employee of a retirement system in the course of his or her official duties;
    2. Subject to subpoena or other legal process of a court or administrative agency having competent jurisdiction in legal proceedings in which the state or a retirement system is a party;
    3. In criminal prosecutions or other criminal actions brought by state or federal law enforcement authorities;
    4. Given to federal or state regulatory or law enforcement agencies in the course of their official duties; or
    5. Given to the Attorney General and the Department of Law, the Office of Planning and Budget, the state accounting officer and the State Accounting Office, or the state auditor and the Department of Audits and Accounts for use and public disclosure in the ordinary performance of those officers' and offices' duties. (Code 1981, § 47-1-14 , enacted by Ga. L. 1997, p. 44, § 1; Ga. L. 2002, p. 1246, § 1; Ga. L. 2005, p. 694, § 39/HB 293; Ga. L. 2010, p. 1207, § 65/SB 436.)

The 2010 amendment, effective July 1, 2010, substituted "adviser" for "advisor" in paragraph (c)(1).

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-1-15. Circumstances when survivors benefits are paid to secondary beneficiary.

Unless otherwise expressly stated elsewhere in this title, in the event a person designated by a member of a public retirement or pension system created by this title as the primary beneficiary of a survivors benefit provided by such system does not survive the member by at least 32 days, any such benefits shall be paid to the secondary beneficiary, or as otherwise provided by law.

(Code 1981, § 47-1-15 , enacted by Ga. L. 1998, p. 176, § 1; Ga. L. 2000, p. 131, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, Code Section 47-1-14, as enacted by Ga. L. 1998, p. 176, § 1, was renumbered as Code Section 47-1-15.

47-1-16. Public retirement systems prohibited from having insurable interest in members; prohibition on expending or obligating funds for purchase of life insurance on members; exception.

No public retirement system in this state shall have an insurable interest in active or retired members of such retirement system. No public retirement system shall have the authority to expend or obligate funds under the control of such retirement system to purchase life insurance on its members except where all benefits are paid to a member's estate or to a beneficiary designated by the individual member.

(Code 1981, § 47-1-16 , enacted by Ga. L. 2012, p. 673, § 1/HB 297.)

Effective date. - This Code section became effective May 1, 2012.

47-1-17. Required education for public retirement system trustees.

  1. As used in this Code section, the term:
    1. "Public retirement system" means any retirement or pension system now or hereafter created by or pursuant to the authority of Georgia law or the Constitution of Georgia which has public employees as members of the retirement or pension system.
    2. "Public retirement system trustee" means a member of a board of trustees or other administrative body or agency charged with the duty of administering a public retirement system.
    1. Each public retirement system trustee shall complete appropriate education applicable to his or her fiduciary duties and obligations under the public retirement system.
    2. Each public retirement system trustee first appointed or elected on or after July 1, 2019, shall complete a minimum of eight hours of education designated to orient new public retirement system trustees in the areas described in this Code section within one year of becoming a new public retirement system trustee. If such a trustee fails to complete such requirement within 14 months, he or she shall be removed from his or her position as a trustee.
    3. Each public retirement system trustee who was appointed or elected prior to July 1, 2019, or who has served one or more years as a public retirement system trustee shall complete a minimum of 12 hours of continuing education every two years in the areas described in this Code section. If such a trustee fails to complete such requirement within 26 months, he or she shall be removed from his or her position as such trustee.
  2. Applicable education shall include education and training in the following areas:
    1. Laws applicable to public retirement systems, which may include federal and state laws applicable to specific public retirement systems, laws applicable to public retirement system trustees, the applicable common law duties of trustees listed in Title 53, and laws related to open meetings and open records;
    2. Roles, duties, and responsibilities of public retirement system trustees;
    3. Ethics and conflicts of interest;
    4. Governance, administration, and funding of public retirement systems;
    5. Investments; investment management, portfolios, and strategies; and measurements of performance; and
    6. Audit and actuarial principles and methods related to public retirement systems.
  3. Applicable education may include:
    1. Seminars, conferences, or schools sponsored by educational institutions or professional organizations;
    2. Online continuing education coursework;
    3. Continuing education received at any public retirement system meeting; or
    4. Any other continuing education approved by the public retirement system.
  4. Each public retirement system shall maintain a record of its public retirement system trustee education. (Code 1981, § 47-1-17 , enacted by Ga. L. 2019, p. 739, § 1/HB 196.)

Effective date. - This Code section became effective July 1, 2019.

ARTICLE 2 RESTRICTIONS AND PROHIBITIONS ON MEMBERSHIP IN PUBLIC RETIREMENT OR PENSION SYSTEMS

OPINIONS OF THE ATTORNEY GENERAL

Forfeiture of benefits by employees convicted of crime. - General Assembly has the authority to enact a statute which proposes the forfeiture of earned retirement benefits of future public employees due to the conviction of a crime; however, an amendment to the Georgia Constitution proposing such a forfeiture by employees who are currently by law vested with rights under the public retirement system would, in all probability, be unconstitutional under the federal Impairment Clause contained in U.S. Const., Art. I, Sec. 10. 1985 Op. Att'y Gen. No. U85-3.

RESEARCH REFERENCES

Am. Jur. 2d. - 60 Am. Jur. 2d, Pensions and Retirement Funds, §§ 37, 39.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq.

47-1-20. Definitions.

As used in this article, the term:

  1. "Conviction" means a judgment of conviction for the commission of a crime which is entered upon a verdict or plea of guilty.

    (1.1) "Drug related crime" means a felony specified in subsection (b) of Code Section 16-13-30 and any felony specified in Code Section 16-13-31.

    (1.2) "Economic impact of a public employment related crime" means the total of the economic gain to the perpetrator of a public employment related crime and the economic loss to the public entity.

  2. "Employee contribution" means that part of the compensation of a public employee which is paid by the employee or by the employer on the employee's behalf to a public retirement system as a requirement for membership in the public retirement system.
  3. "Final conviction" means a conviction which has been upheld after the convicted person has exhausted all appeals of the conviction.
  4. "Political subdivision" means any county, municipality, or local school district.
  5. "Public employee" means elected and appointed officials and employees of the state or any branch, department, board, bureau, commission, authority, or other agency of the state and elected and appointed officials and employees of any political subdivision or authority or other agency of a political subdivision.
  6. "Public employment related crime" means any one or more of the following crimes:
    1. Theft as provided in any one or more of Code Sections 16-8-2 through 16-8-9 when the theft is by an officer or employee of a government in breach of duties as such officer or employee and conviction for such crime is punishable under paragraph (3) of subsection (a) of Code Section 16-8-12;
    2. Any felony provided for in Article 1 of Chapter 10 of Title 16, relating to abuse of governmental office;
    3. Making false statements or concealing facts in matters within the jurisdiction of the state or a political subdivision as provided in Code Section 16-10-20;
    4. Conspiracy to defraud the state or a political subdivision as provided in Code Section 16-10-21;
    5. Stealing, altering, or concealing public records as provided in Code Section 45-11-1;
    6. Selling offices or dividing fees as provided in Code Section 45-11-2; and
    7. Any felony conviction for any of the crimes specified in subparagraphs (A) through (E) of this paragraph under the laws of any other state or the United States; provided, however, that the provisions of this subparagraph shall apply to persons who first or again become members of a public retirement system on or after July 1, 2008.
  7. "Public retirement system" means any retirement or pension system now or hereafter created by or pursuant to the authority of Georgia law or the Constitution of Georgia which has public employees as members of the retirement or pension system.
  8. "Vested" means having sufficient creditable service as a member of a public retirement system to qualify to receive a retirement benefit upon retirement or termination from public service or upon attaining retirement age if public service is terminated prior to attaining such age. (Code 1981, § 47-1-20 , enacted by Ga. L. 1985, p. 1624, § 1; Ga. L. 1990, p. 2019, § 1; Ga. L. 2004, p. 365, § 1; Ga. L. 2008, p. 126, §§ 1, 2/HB 255; Ga. L. 2009, p. 368, § 1/SB 48.)

The 2008 amendment, effective July 1, 2008, added paragraph (1.2); in subparagraph (6)(E), deleted "and" from the end; in subparagraph (6)(F), substituted "; and" for a period at the end; and added subparagraph (6)(G).

The 2009 amendment, effective April 30, 2009, part of an Act to revise, modernize, and correct this title, in paragraph (1.2), substituted "public employment related" for "public related" and substituted "a public employment related" for "an employment related".

JUDICIAL DECISIONS

Cited in City of Atlanta v. Jackson, 263 Ga. 426 , 435 S.E.2d 212 (1993).

47-1-21. Termination of membership in public retirement system for committing public employment related crimes; applicability to employees on July 1, 1985; determination of benefits.

  1. This Code section shall apply to public employees in service on July 1, 1985, as long as such employees remain in continuous service as public employees. Any public employee in service on July 1, 1985, who ceases to be a public employee on or after that date and who subsequently again becomes a public employee shall be subject to the provisions of Code Section 47-1-22 upon again becoming a public employee. Any person who was a public employee prior to July 1, 1985, and who ceased to be a public employee prior to that date shall be subject to the provisions of Code Section 47-1-22 if such person again becomes a public employee after July 1, 1985.
  2. If a public employee commits a public employment related crime on or after July 1, 1985, in the capacity of a public employee and is convicted for the commission of such crime, such employee's membership in any public retirement system shall terminate on the date of final conviction and such employee shall not at any time thereafter be eligible for membership in any public retirement system. For any such public employee finally convicted for the commission of a public employment related crime, the right to any benefit or any other right under any public retirement system in which the employee is a member shall be determined as of the date of final conviction. (Code 1981, § 47-1-21 , enacted by Ga. L. 1985, p. 1624, § 1.)

47-1-22. Reduction and forfeiture of rights and benefits by public employees after July 1, 1985, for committing public employment related crimes; reimbursement of contributions.

  1. This Code section shall apply to public employees first or again becoming public employees after July 1, 1985.
  2. If a public employee commits a public employment related crime in the capacity of a public employee and is convicted for the commission of such crime, upon final conviction such person's benefits under a public retirement or pension system, including any survivor's benefits if applicable, shall be reduced by an amount equal to three times the economic impact of the crime, as determined pursuant to the provisions of Code Section 47-1-25 . Payment of such benefits shall cease until such amount has been forfeited, after which benefits shall be restored. If the person has not begun to receive a benefit, the deduction shall commence at the time such benefits would normally begin. For purposes of this subsection, the term "benefit" shall not include a refund of employee contributions without interest. (Code 1981, § 47-1-22 , enacted by Ga. L. 1985, p. 1624, § 1; Ga. L. 2008, p. 126, § 3/HB 255.)

The 2008 amendment, effective July 1, 2008, rewrote subsection (b).

JUDICIAL DECISIONS

Former councilman's alleged fraud in obtaining commissioner's position on aviation board had no legal effect on the pension benefits to be awarded the person under O.C.G.A. Art. 2, Ch. 1, T. 47. City of Atlanta v. Jackson, 263 Ga. 426 , 435 S.E.2d 212 (1993).

47-1-22.1. Rights and benefits of employees convicted of drug related crimes.

  1. Except as otherwise provided in this subsection, this Code section shall not apply to any public employee in service on July 1, 1990, and shall apply only to those public employees entering public service after July 1, 1990.  A public employee in service on July 1, 1990, who ceases to be a public employee and terminates his or her membership in a public retirement system after that date and who subsequently again becomes a public employee shall be subject to the provisions of this Code section, beginning with the date of such subsequent employment.  Any person who was a public employee prior to July 1, 1990, and who ceased to be a public employee and terminated his or her membership in a public retirement system prior to that date shall be subject to the provisions of this Code section if such person again becomes a public employee after July 1, 1990, beginning with the date of such subsequent employment.
  2. If a public employee who is not vested under a public retirement system commits a drug related crime and is convicted for the commission of such crime, such public employee shall forfeit all rights and benefits under and membership in the public retirement system in which the employee is not a vested member, effective on the date of final conviction.  Any such public employee shall not at any time after such final conviction be eligible for membership in any public retirement system.  Any employee contributions made by any such public employee to any public retirement system in which the employee is not a vested member shall be reimbursed, without interest, to the public employee within 60 days after the date of final conviction for the commission of the drug related crime.
  3. If a public employee who is vested under a public retirement system commits a drug related crime, such employee's active membership in any public retirement system shall terminate on the date of final conviction and such employee shall not at any time thereafter be eligible for active membership in any public retirement system.  For any such public employee, the right to any benefit or any other right under any public retirement system in which the employee is a vested member shall be determined as of the date of final conviction.
  4. The provisions of Code Section 47-1-23 shall apply to a public employee charged with the commission of a drug related crime in the same manner that they apply to a public employee charged with the commission of a public employment related crime. (Code 1981, § 47-1-22.1 , enacted by Ga. L. 1990, p. 2019, § 2.)

JUDICIAL DECISIONS

Former councilman's alleged fraud in obtaining commissioner's position on aviation board had no legal effect on the pension benefits to be awarded the individual under O.C.G.A. Art. 2, Ch. 1, T. 47. City of Atlanta v. Jackson, 263 Ga. 426 , 435 S.E.2d 212 (1993).

47-1-22.2. Notification to public retirement system of conviction for public employment related crime.

Upon the final conviction of any person for a public employment related crime, the prosecuting attorney shall so notify the defendant's former public employer and any public retirement system in which he or she knows the convicted public employee to be an active, inactive, or retired member. Upon such notification, the public employer shall also notify any such public retirement system.

(Code 1981, § 47-1-22.2 , enacted by Ga. L. 2008, p. 126, § 4/HB 255.)

Effective date. - This Code section became effective July 1, 2008.

47-1-23. Rights of public employee charged with committing public employment related crime.

Nothing in this article shall be construed to create a right for any public employee who is charged with the commission of a public employment related crime to remain a public employee or a member of a public retirement system until such employee is finally convicted for the commission of such crime. Nothing in this article shall be construed to create a right for a public employee who is charged with the commission of a public employment related crime to accrue rights or benefits under a public retirement system after the date any such employee ceases to be a member of such public retirement system.

(Code 1981, § 47-1-23 , enacted by Ga. L. 1985, p. 1624, § 1.)

47-1-24. Benefits denied to beneficiary who murders or commits voluntary manslaughter of member of public retirement system.

No person who commits or conspires to commit the murder or voluntary manslaughter of a member, retiree, or beneficiary under a public retirement system shall receive any refund of contributions or any benefit under the public retirement system upon the death of the member, retiree, or beneficiary, even though the person so killing or conspiring is a named beneficiary for such refund of contributions or benefit. A plea of guilty or a judicial finding of guilt which is not reversed or otherwise set aside as to any such crime shall be prima-facie evidence of guilt for the purpose of applying the provisions of this Code section. All rights, interests, and entitlements to any such refund of contributions or benefit shall go to the secondary beneficiary designated by the member, retiree, or beneficiary, if a secondary beneficiary is designated and is living, upon the death of the member, retiree, or beneficiary, but otherwise to the member's, retiree's, or beneficiary's estate.

(Code 1981, § 47-1-24 , enacted by Ga. L. 1990, p. 690, § 1.)

47-1-25. Determination of economic impact of public employment related crime.

Within 30 days following the day the board of trustees receives notice that a member of the retirement system has been convicted of a public employment related crime, the board shall initiate proceedings in the Office of State Administrative Hearings, under the provisions of Article 2 of Chapter 13 of Title 50, to determine the economic impact of the public employment related crime. Such matter shall be deemed to be a contested case within the meaning of such article. The Department of Law shall represent the board of trustees in such proceedings. The decision of the administrative law judge shall be final unless appeal is made as otherwise provided by law.

(Code 1981, § 47-1-25 , enacted by Ga. L. 2008, p. 126, § 5/HB 255; Ga. L. 2009, p. 368, § 1/SB 48.)

Effective date. - This Code section became effective July 1, 2008.

The 2009 amendment, effective April 30, 2009, part of an Act to revise, modernize, and correct this title, substituted "a public employment related" for "an employment related" and substituted "the public employment related" for "the employment related" in this Code section.

ARTICLE 3 INCREASE OF BENEFITS TO OFFSET TAXES

47-1-30. Authority to increase benefits.

  1. As used in this Code section, the term:
    1. "Board of trustees" means the board of trustees or other fiscal authority or governing body, by whatever name designated, of a retirement system.
    2. "Retirement system" means a retirement or pension system or fund created by or pursuant to the authority of Georgia law which was listed in paragraph (4) of subsection (a) of Code Section 48-7-27 on January 1, 1989.
  2. The board of trustees of a retirement system is authorized to increase benefits paid to both present and future retirees and beneficiaries under the retirement system to offset, wholly or partially, the taxation of retirement benefits pursuant to the provisions of Chapter 7 of Title 48, relating to Georgia income taxes, provided that any increase in benefits granted pursuant to the authority of this subsection:
    1. Shall not apply to any portion of a benefit which exceeds $37,500.00 on the date the benefit increase is granted; and
    2. Shall be consistent with maintaining the actuarial soundness of the retirement system in conformity with minimum funding requirements of Code Section 47-20-10.
  3. The provisions of this Code section are in addition to any powers possessed by a board of trustees pursuant to the provisions of any other law. (Code 1981, § 47-1-30 , enacted by Ga. L. 1990, p. 879, § 1; Ga. L. 1991, p. 605, § 1.)

Editor's notes. - For the list described in paragraph (a)(2), see Ga. L. 1989, Ex. Sess. p. 5.

47-1-31. Discretionary postretirement benefit increases subject to reduction by subsequent legislation.

Any other provision of this title to the contrary notwithstanding, any discretionary postretirement benefit increase granted on or after July 1, 1993, by the board of trustees of any public retirement system pursuant to the authority to grant such increases within the limits of actuarial soundness granted by general law shall be subject to reduction by subsequent legislation and shall not be considered an element of any contract of employment.

(Code 1981, § 47-1-31 , enacted by Ga. L. 1993, p. 1690, § 1.)

ARTICLE 4 CREDITABLE SERVICE DURING TEMPORARY DISABILITY

47-1-40. Definitions.

As used in this article, the term:

  1. "Public employee" means an active member of a retirement system defined in paragraph (2) of this Code section.
  2. "Retirement system" means:
    1. The Employees' Retirement System of Georgia provided for in Chapter 2 of this title;
    2. The Teachers Retirement System of Georgia provided for in Chapter 3 of this title; and
    3. The Public School Employees Retirement System provided for in Chapter 4 of this title.
  3. "Temporary disability" means a physical or mental illness, sickness, or disorder caused by job-related disease or accident which causes a public employee to cease receiving compensation as an active public employee to the extent that the employee loses all or a portion of the period of temporary disability as creditable service under the employee's respective retirement system, but the term does not include any period of disability during which the employee qualifies for a disability benefit under the respective retirement system or any period of disability for which the employee may receive creditable service under the provisions of the employee's respective retirement system. (Code 1981, § 47-1-40 , enacted by Ga. L. 1994, p. 868, § 1.)

47-1-41. Employees authorized to receive creditable service for period of temporary disability; application for creditable service; payment of employee contributions during period.

A public employee may receive creditable service under the public employee's respective retirement system for a maximum of 12 months of temporary disability. A public employee wishing to obtain such creditable service shall apply to the board of trustees or other official or body administering the respective retirement system within not more than six months after returning to service immediately following the temporary disability. The public employee shall be required to pay the employee contributions that would have been paid during the period of temporary disability which is claimed for creditable service plus regular interest, as determined by the respective board of trustees or other official or body administering the respective retirement system, compounded from the period of disability for which creditable service is claimed to the date of payment. Such employee contribution shall be based on the compensation the public employee was receiving for employee contribution purposes immediately prior to becoming temporarily disabled.

(Code 1981, § 47-1-41 , enacted by Ga. L. 1994, p. 868, § 1.)

47-1-42. Use of other provisions of article not precluded.

Obtaining creditable service pursuant to the provisions of this article shall not preclude the use of the provisions of this article to obtain creditable service for another future temporary disability, provided that there is a period of at least five years of active service as a contributing member of the respective retirement system between any claims for creditable service under this article.

(Code 1981, § 47-1-42 , enacted by Ga. L. 1994, p. 868, § 1.)

47-1-43. Applicability of article; proof of temporary disability.

The provisions of this article shall apply to periods of temporary disability which occurred prior to July 1, 1994, as well as those which occur on or after that date. The boards of trustees or other officials or bodies administering retirement systems may by rule or regulation require such proof of temporary disability and other documentation as may be reasonably necessary to carry out the provisions of this article.

(Code 1981, § 47-1-43 , enacted by Ga. L. 1994, p. 868, § 1.)

ARTICLE 5 ESTABLISHING CREDITABLE SERVICE BY VETERANS

47-1-60. Definitions.

As used in this article, the term:

  1. "Creditable service" means service with a public retirement system or fund used in the same manner as actual service in the computation of all rights and benefits.
  2. "Public retirement system or fund" means a public retirement system or fund created by this title.
  3. "Qualified returning veteran" or "returning veteran" means a member of a public retirement system or fund whose employment which qualified him or her for such membership was interrupted by a period of qualified service and who returns to such employment in a manner sufficient to protect his or her reemployment rights as prescribed by Public Law 103-353, the federal Uniformed Services Employment and Reemployment Rights Act.
  4. "Qualified service" means voluntary or involuntary service with one of the uniformed services, including active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and any period during which a member is absent from employment for the purpose of an examination to determine his or her fitness to perform such duty.
  5. "Uniformed services" means the United States Army, Army Reserve, Army National Guard, Navy, Navy Reserve, Marine Corps, Air Force, Air Force Reserve, Air National Guard, Coast Guard, the commissioned corps of the Public Health Service, and any other category of persons designated by the President of the United States in time of war or emergency. (Code 1981, § 47-1-60 , enacted by Ga. L. 1996, p. 367, § 1.)

47-1-61. Eligibility of veteran to establish creditable service; period of qualified service.

Any qualified returning veteran shall be eligible to establish creditable service with his or her retirement system or fund for not more than five years of qualified service by complying with the provisions of this article; provided, however, that such five-year period shall be extended by any period of mandatory service imposed by the uniformed service recognized by paragraph (4) of subsection (C) of Section 4312 of federal Public Law 103-353, the Uniformed Service Employment and Reemployment Rights Act of 1994. Notwithstanding any provisions of the law to the contrary, contributions, benefits, and service credits with respect to qualified uniformed service will be provided under each retirement or pension system in accordance with Section 414(u) of the federal Internal Revenue Code.

(Code 1981, § 47-1-61 , enacted by Ga. L. 1996, p. 367, § 1; Ga. L. 2005, p. 535, § 1/HB 460.)

47-1-62. Procedure for establishment of creditable service; computations; employer contributions; system or fund unable to provide creditable service.

  1. Any qualified returning veteran desiring to establish creditable service for a period of qualified service shall so notify the board of trustees of the public retirement system or fund. The board of trustees shall calculate the amount of employee or member contribution which the returning veteran would have paid if he or she had been a member of the system or fund during the period of qualified service. If such contribution is based on the member's salary, the returning veteran's salary shall be deemed to be the rate the member would have received but for the period of qualified service or, if determination of such rate is not reasonably certain, the member's average rate of compensation during the 12 month period immediately preceding the period of qualified service or such lesser time as the member was employed. The returning veteran shall repay the amount so calculated as his or her employee or member contribution, which payment must be completed not later than three times the length of qualified service or five years, whichever period is shorter, computed from the date the returning veteran resumes employment. The board of trustees of any public retirement system may provide by rule for computing the amount of creditable service on payment of less than the total amount of employee contributions.
    1. At the time a qualified returning veteran applies for creditable service as provided in Code Section 47-1-61 , the board of trustees of the public retirement system or fund shall compute the actuarial value of the creditable service to be granted.
    2. The board of trustees of a retirement system or fund which requires employer contributions shall notify the employer of the returning veteran of the actuarial value, less the amount of employee contribution. The employer shall pay such amount to the retirement system over the same period of time allowed for the returning veteran to pay the employee contributions; provided, however, that an employer shall not be required to make any payment until the fiscal year following the year such notice is given.
    3. If the actuary employed by a retirement system or fund created by this title which does not require an employer contribution certifies that the system or fund cannot provide the creditable service requested by one or more returning veterans and retain its actuarial soundness, no discretionary benefit increases shall be granted, and the board of trustees of such system or fund shall notify the Governor and chairpersons of the Senate and House Committees on Retirement, providing a full explanation of the amount of funds necessary to return the system or fund to actuarial soundness.
    4. If a member of a public retirement system dies while performing qualified military service, as such term is defined in Section 414(U) of the federal Internal Revenue Code, the member's beneficiary shall be entitled to all additional benefits to which the beneficiary would have been entitled if the member had resumed employment with the employer, reentered the plan, and died immediately thereafter. Unless otherwise required by Code Section 38-2-279 , additional benefits to beneficiaries shall not include benefit accruals for the period of qualified military service.
    5. If an employer pays differential wage payments, as such term is defined in Section 3401(h) of the federal Internal Revenue Code, to a member of a public retirement system while such member is in qualified military service, such payments shall be taken into account as compensation by the public retirement system or fund. (Code 1981, § 47-1-62 , enacted by Ga. L. 1996, p. 367, § 1; Ga. L. 2009, p. 325, § 1/HB 477; Ga. L. 2010, p. 427, § 1/HB 969.)

The 2009 amendment, effective April 30, 2009, deleted "not later than six months from the date he or she resumes employment" following "fund" at the end of the first sentence of subsection (a).

The 2010 amendment, effective May 24, 2010, added paragraphs (b)(4) and (b)(5).

U.S. Code. - Section 414(U) of the federal Internal Revenue Code, referred to in paragraph (b)(4), is codified at 26 U.S.C. § 414.

Section 3401 of the federal Internal Revenue Code, referred to in paragraph (b)(5), is codified at 26 U.S.C. § 3401.

ARTICLE 6 CONFORMITY WITH FEDERAL LAW

47-1-80. Distributions to conform to regulations issued under the Internal Revenue Code.

Notwithstanding any other provision of this title to the contrary, distributions from any public retirement or pension system shall conform to a good-faith interpretation of Section 401(a)(9) of the federal Internal Revenue Code and the regulations promulgated pursuant to such section as applicable to a governmental plan within the meaning of Section 414(d) of the federal Internal Revenue Code and shall be implemented in accordance with the grandfathering provisions of such regulations applicable to annuity option distributions in effect on April 17, 2001.

(Code 1981, § 47-1-80 , enacted by Ga. L. 2005, p. 535, § 2/HB 460; Ga. L. 2009, p. 947, § 4/HB 202.)

The 2009 amendment, effective May 11, 2009, substituted "a good-faith interpretation of" for "the regulations issued under" and inserted "and the regulations promulgated pursuant to such section" in this Code section.

47-1-80.1. Provisions applicable to all public retirement or pension systems; maximum annuity paid; limitation on death and disability benefits; application of federal provisions.

  1. Notwithstanding any other provision of this title to the contrary, any public retirement or pension system shall be subject to the following provisions:
      1. Benefits shall begin by the required beginning date, which is the later of April 1 of the calendar year following the calendar year in which the plan member reaches 70 1/2 years of age or April 1 of the calendar year in which the plan member terminates employment. If a plan member fails to apply for retirement benefits by the required beginning date, the applicable public retirement or pension system shall begin distribution of the benefit as required by Section 401(a)(9) of the federal Internal Revenue Code.
      2. Notwithstanding the provisions of subparagraph (A) of this paragraph, for any plan member who was entitled to receive a benefit under the public retirement or pension as of December 31, 1996, and attained the age of 70 1/2 on or before December 31, 1998, the required beginning date shall be deemed to be April 1 following the calendar year in which the member attained the age of 70 1/2, regardless of whether the member was then employed by the employer;
    1. A plan member's entire interest shall be distributed over the plan member's life or the lives of the plan member and a designated beneficiary or over a period not extending beyond the life expectancy of the plan member or the life expectancy of the plan member and his or her designated beneficiary;
    2. The life expectancy of a plan member, the plan member's spouse, or the plan member's designated beneficiary shall not be recalculated after the initial determination for purposes of determining benefits;
    3. If a plan member dies after the required distribution of benefits has begun, the remaining portion of the plan member's interest shall be distributed at least as rapidly as under the method of distribution before the plan member's death and no longer than the remaining period over which the distribution commenced; and
    4. If a plan member dies before the required distribution of the plan member's benefits has begun, the plan member's entire interest shall be either distributed in accordance with federal regulations over the life or the life expectancy of the designated beneficiary, with the distributions beginning no later than December 31 of the calendar year immediately following the calendar year of the plan member's death or distributed by December 31 of the calendar year containing the fifth anniversary of the plan member's death.
  2. The amount of an annuity paid to a plan member's designated beneficiary shall not exceed the maximum determined under the incidental death benefit requirements of the federal Internal Revenue Code.
  3. The death and disability benefits provided by the plan shall be limited by the incidental benefit rule set forth in Section 401(a)(9)(G) of the federal Internal Revenue Code and Federal Treasury Regulation Section 1.401-1(b)(l)(i) or any successor to such regulation.
  4. Except as otherwise provided in subsection (e) of this Code section, a member or beneficiary who would have been required to receive required minimum distributions for 2009 but for the enactment of Section 401(a)(9)(H) of the federal Internal Revenue Code shall not receive those distributions for 2009 unless the member or beneficiary chooses to receive such distributions. Such members and beneficiaries shall be given the opportunity to elect to receive such distributions. In addition, notwithstanding the provisions of Code Section 47-1-81, and solely for purposes of applying the direct rollover provisions of the federal Internal Revenue Code, 2009 required minimum distributions shall be treated as eligible rollover distributions. This subsection shall also apply to required minimum distributions after 2009 if federal law is extended to include such later years.
  5. A public retirement or pension system to which subsection (d) of this Code section applies may choose a default option to pay 2009 required minimum distributions unless otherwise elected by the member, provided that the individual system adopt such a default rule for its members only in its plan documents. (Code 1981, § 47-1-80.1 , enacted by Ga. L. 2009, p. 947, § 5/HB 202; Ga. L. 2010, p. 427, § 2/HB 969.)

Effective date. - This Code section became effective May 11, 2009.

The 2010 amendment, effective May 24, 2010, added subsections (d) and (e).

U.S. Code. - Section 401 of the federal Internal Revenue Code, referred to in subsection (d), is codified at 26 U.S.C. § 401.

47-1-81. Election to have a portion of an eligible rollover distribution paid to an eligible retirement plan under federal law; limitations; application to nonspouse designated beneficiary.

  1. As used in this Code section, the term:
    1. "Direct rollover" means a payment by the public retirement or pension system subject to this title to the eligible retirement plan specified by the distributee or to the surviving spouse of the distributee.
    2. "Distributee" means:
      1. An employee;
      2. A former employee;
      3. The employee or former employee's surviving spouse; or
      4. A nonspouse beneficiary who is a designated beneficiary as defined in Section 401(a)(9)(E) of the federal Internal Revenue Code.
    3. "Eligible retirement plan" means any of the following that accepts the distributee's eligible rollover distribution:
      1. An individual retirement account described in Section 408(a) of the federal Internal Revenue Code;
      2. An individual retirement annuity described in Section 408(b) of the federal Internal Revenue Code;
      3. An annuity plan described in Section 403(a) of the federal Internal Revenue Code;
      4. A qualified trust described in Section 401(a) of the federal Internal Revenue Code;
      5. An annuity contract described in Section 403(b) of the federal Internal Revenue Code.
      6. An eligible deferred compensation plan under Section 457(b) of the federal Internal Revenue Code that is maintained by a state, political subdivision or agency or instrumentality of a state, or a political subdivision of a state and which agrees to separately account for amounts transferred into that plan from the public retirement or pension system under this title; and
      7. A Roth IRA described in Section 408A of the federal Internal Revenue Code.
    4. "Eligible rollover distribution" means any distribution of all or any portion of the balance to the credit of the distributee; provided, however, such term shall not include:
      1. Any distribution that is one of a series of substantially equal periodic payments made not less frequently than annually for the life or life expectancy of the distributee or the joint lives or joint life expectancies of the distributee and the distributee's designated beneficiary or for a specified period of ten years or more;
      2. Any distribution to the extent such distribution is required under Section 401(a)(9) of the federal Internal Revenue Code;
      3. The portion of any distribution that is not includable in gross income; or
      4. Any other distribution that is reasonably expected to total less than $200.00 during the year.

        Such term shall include a distribution to a surviving spouse made on or after January 1, 2002.

  2. Notwithstanding any other provisions of this title to the contrary that would otherwise limit a person's election under this Code section, a member of a retirement or pension system subject to this title may elect, at the time and in the manner prescribed by the board of trustees of such system, to have any portion of an eligible rollover distribution, as such term is defined in Section 402(c) of the federal Internal Revenue Code, paid directly to an eligible retirement plan, as such term is defined in Section 402(c) of the federal Internal Revenue Code, specified by the person in a direct rollover.
  3. A portion of a distribution made on or after January 1, 2002, shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions that are not includable in gross income; provided, however, that such portion may be transferred only to:
    1. An individual retirement account or annuity described in Section 408(a) or (b) of the federal Internal Revenue Code;
    2. A qualified defined contribution plan described in Section 401(a) or 403(a) of the federal Internal Revenue Code;
    3. A qualified defined benefit plan described in Section 401(a) of the federal Internal Revenue Code; or
    4. An annuity contract described in Section 403(b) of the federal Internal Revenue Code which agrees to account separately for amounts so transferred, and earnings thereon, including accounting separately for the portion of such distribution that is includable in gross income and the portion that is not so includable.
  4. Notwithstanding any other provision of this title to the contrary, a nonspouse designated beneficiary may roll over the distribution only to an individual retirement account or individual retirement annuity established for the purpose of receiving the distribution, and the account or annuity shall be treated as an inherited individual retirement account or annuity. (Code 1981, § 47-1-81 , enacted by Ga. L. 2005, p. 535, § 2/HB 460; Ga. L. 2009, p. 947, § 6/HB 202; Ga. L. 2010, p. 1207, § 64/SB 436.)

The 2009 amendment, effective May 11, 2009, added subsection (a), designated the existing provisions as subsection (b), and added subsections (c) and (d).

The 2010 amendment, effective July 1, 2010, deleted the comma following "beneficiary" in subparagraph (a)(4)(A) and substituted "Section" for "Sections" near the end of paragraph (c)(2).

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

47-1-82. Maximum annual additions and maximum benefit payable limited to that allowed by federal law.

Notwithstanding any other provisions of this title to the contrary, the maximum annual additions and maximum benefit payable to any active or retired member or beneficiary of a public retirement or pension system subject to this title shall be limited to such extent as may be necessary to conform to the requirements of subsections (b) and (c) of Section 415 of the federal Internal Revenue Code for a qualified retirement plan.

(Code 1981, § 47-1-82 , enacted by Ga. L. 2005, p. 535, § 2/HB 460; Ga. L. 2009, p. 947, § 7/HB 202; Ga. L. 2010, p. 427, § 3/HB 969; Ga. L. 2010, p. 1207, § 64/SB 436; Ga. L. 2014, p. 223, § 1/HB 843.)

The 2009 amendment, effective May 11, 2009, added subsection (a), designated the existing provisions as subsection (b), and added subsections (c) through (e).

The 2010 amendments. The first 2010 amendment, effective May 24, 2010, substituted the present provisions of paragraph (a)(2) for the former provisions, which read: "'Applicable mortality table' means the table prescribed by the secretary of the treasury of the United States in Revenue Ruling 95-6 or any successor thereto which prescribes the mortality table to be applied pursuant to Section 415(b)(2)(E)(v) of the federal Internal Revenue Code. To the extent that a forfeiture does not occur upon death, the mortality decrement may be ignored prior to age 62 and shall be ignored after social security retirement age, as prescribed by federal Internal Revenue Service Notice 83-10, Q&A G-3 and G-4, or any successor thereto."; in paragraph (a)(5), substituted "calendar" for "plan", added a semicolon, and added the proviso; in subsection (b), inserted "maximum annual additions and the" near the beginning and inserted "subsections (b) and (c) of" near the end; and, in subsection (c), added "or" at the end of paragraph (c)(1), substituted a period for "; or" at the end of paragraph (c)(2), and deleted former paragraph (c)(3) which read: "The value of postretirement cost-of-living increases provided that the amount payable to the plan member under the nonannuity benefit form in any limitation year shall not be greater than the Section 415(b) of the federal Internal Revenue Code limit applicable at the annuity starting date as increased in subsequent years pursuant to Section 415(d) of the federal Internal Revenue Code and Section 1.415(d)-1 of the Treasury Regulations." The second 2010 amendment, effective July 1, 2010, substituted "increases, provided" for "increases provided" in paragraph (c)(3).

The 2014 amendment, effective July 1, 2014, rewrote this Code section.

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict." Accordingly, the amendment to paragraph (c)(3) of this Code section by Ga. L. 2010, p. 1207, § 64 was not given effect.

47-1-83. Vesting of member's accrued benefit as of date of termination or partial termination of public retirement or pension system.

In accordance with subsection (a) of the federal Treasury Regulation Section 1.401-6, in the event of a termination or partial termination of a public retirement or pension system, a member's accrued benefit as of the date of such termination or partial termination, to the extent then funded, shall be nonforfeitable and fully vested under federal Internal Revenue Code requirements.

(Code 1981, § 47-1-83 , enacted by Ga. L. 2009, p. 947, § 8/HB 202; Ga. L. 2014, p. 223, § 2/HB 843.)

Effective date. - This Code section became effective May 11, 2009.

The 2014 amendment, effective July 1, 2014, rewrote this Code section.

47-1-84. Modifications by board of trustees.

  1. Notwithstanding any other provision of this title to the contrary, the board of trustees of a retirement or pension system may modify a request by a plan member to make a contribution to the public retirement or pension system if the amount of the contribution would exceed the limits provided under Section 415 of the federal Internal Revenue Code by using the following methods:
    1. If the law requires a lump sum payment for the purchase of service credit, the board of trustees may establish a periodic payment plan for the plan member to avoid a contribution in excess of the limits under Section 415(c) or 415(n) of the federal Internal Revenue Code; and
    2. If the payment plan pursuant to paragraph (1) of this subsection will not avoid a contribution in excess of the limits, the board of trustees may refuse the plan member's contribution.
  2. For any plan member who first became a plan member in the public retirement or pension system before January 1, 1998, the limitation of Section 415(c)(1) of the federal Internal Revenue Code shall not be applied to reduce the amount of permissive service credit which may be purchased to an amount less than the amount which was allowed to be purchased under state law on August 5, 1997. (Code 1981, § 47-1-84 , enacted by Ga. L. 2009, p. 947, § 8/HB 202.)

Effective date. - This Code section became effective May 11, 2009.

47-1-85. Assets of public retirement or pension system to be held in trust.

  1. The assets of a public retirement or pension system shall be held in trust, and it shall not be possible at the time prior to satisfaction of all liabilities to plan members and their beneficiaries under the public retirement or pension system for any part of said assets to be used for, or diverted to, purposes other than for the exclusive benefit of plan members and their designated beneficiaries and for paying reasonable expenses of the public retirement or pension system and trust fund.
  2. The board of trustees of a public retirement or pension system shall not engage in a transaction prohibited by Section 503(b) of the federal Internal Revenue Code. (Code 1981, § 47-1-85 , enacted by Ga. L. 2009, p. 947, § 8/HB 202.)

Effective date. - This Code section became effective May 11, 2009.

47-1-86. Adopted plan document or rules and regulations govern.

Any other provision of this chapter to the contrary notwithstanding, to the extent that the Board of Trustees of the Georgia Municipal Employees Benefit System created by Chapter 5 of this title has adopted a plan document or rules and regulations that are in compliance with Sections 401(a) and 414(d) and other applicable sections of the federal Internal Revenue Code, such plan document or rules and regulations shall govern such system notwithstanding any conflicting provision in this chapter; provided, however, that the provisions of Code Section 47-1-13 shall in any event apply to said system.

(Code 1981, § 47-1-86 , enacted by Ga. L. 2009, p. 947, § 8/HB 202.)

Effective date. - This Code section became effective May 11, 2009.

CHAPTER 2 EMPLOYEES' RETIREMENT SYSTEM OF GEORGIA

General Provisions.

Creation, Administration, and

Management of the Assets

of the Retirement

System.

Employee and Employer Contributions

and Creation of Funds for

Contributions, Benefits,

and Administrative

Expenses.

Membership in the Retirement System.

Service Creditable Toward Retirement Benefits.

Retirement and Eligibility for a Retirement Allowance.

Retirement Allowances, Disability Benefits, Spouses' Benefits.

Provisions Applicable to Particular Groups of Employees.

Persons Employed by the Armed

Forces of the United States

and Other Federal Agencies.

M EMBERS AND EMPLOYEES OF THE GENERAL ASSEMBLY .

Teachers and Members of the

Teachers Retirement System

of Georgia.

Transfer of Service Credits from

Public School Employees

Retirement System.

E MPLOYEES OF CERTAIN STATE DEPARTMENTS .

C ERTAIN LAW ENFORCEMENT PERSONNEL .

Justices of the Supreme Court,

Judges of the Court of

Appeals, and Their

Employees.

Superior Court Judges, District

Attorneys, Assistant District

Attorneys, Employees of the

Prosecuting Attorneys'

Council.

E MPLOYEES OF THE PEACE OFFICERS' ANNUITY AND BENEFIT FUND .

J UDGES AND OTHER COURT EMPLOYEES; CERTAIN COUNTY EMPLOYEES .

Employees of Certain State Authorities

and Commissions.

Miscellaneous Provisions.

Georgia State Employees' Pension and Savings Plan.

Cross references. - Authorization for establishment of retirement system for employees, Ga. Const. 1983, Art. III, Sec. X, Para. I.

Reimbursement of Department of Law by Employees' Retirement System of Georgia, Teachers Retirement System of Georgia, Public School Employees Retirement System and Trial Judges and Solicitors Retirement Fund for legal services, § 45-15-37 .

Health insurance plan for state employees, § 45-18-1 et seq.

Deferred compensation plans for employees of state, § 45-18-30 et seq.

Provision that exclusion from classified service shall not exclude any employee, officer, or official from membership in Employees' Retirement System of Georgia, § 45-20-6(c) .

Administrative Rules and Regulations. - Administrative Rules, Official Compilation of the Rules and Regulations of the State of Georgia, Employees' Retirement System of Georgia, Chapter 513-1-1.

JUDICIAL DECISIONS

Cited in Scott v. Employees' Retirement Sys., 113 Ga. App. 295 , 147 S.E.2d 821 (1966).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

Retirement rights vested by one statute cannot be taken away by a subsequent statute. 1972 Op. Att'y Gen. No. 72-122.

Once a right has been extended to the membership of a public retirement system by statute, it becomes part of the employment contract of the affected employees and cannot thereafter be constitutionally deleted or impaired. 1977 Op. Att'y Gen. No. U77-20.

Forfeiture of benefits by employees convicted of crime. - General Assembly has the authority to enact a statute which proposes the forfeiture of earned retirement benefits of future public employees due to the conviction of a crime; however, an amendment to the Georgia Constitution proposing such a forfeiture by employees who are currently by law vested with rights under the public retirement system would, in all probability, be unconstitutional under the federal Impairment Clause contained in U.S. Const., Art. I, Sec. 10. 1985 Op. Att'y Gen. No. U85-3.

Election of regular retiree does not suspend benefits. - Retirement benefits are not suspended if regular retiree is elected to full-time, paid county office. 1972 Op. Att'y Gen. No. 72-56.

Chapter is intended to apply prospectively. 1975 Op. Att'y Gen. No. 75-82.

Credit for military service before 1953. - In order to obtain credit for military service rendered prior to July 1, 1953, a state employee must have been a member of the retirement system on January 1, 1954. 1962 Op. Att'y Gen. p. 366.

Credit for service as city court judge. - Individual is entitled to credit in retirement system for service as a city court judge, but not for service as a municipal court judge or an ex-officio city court judge. 1954-56 Op. Att'y Gen. p. 598.

"Contingency clerks" not in retirement system. - Membership in the retirement system was envisioned for full-time employees of the State of Georgia who occupy positions potentially and probably requiring continued, nonintermittent employment of more than 35 (now 30) hours per week during at least nine months of a year; therefore, personnel within the Department of Labor who occupy the position of "contingency clerk" should not be considered as members of the system and should not be required to contribute to the retirement system, nor should employer contributions be made on their behalves. 1977 Op. Att'y Gen. No. 77-59.

Law does not preclude dual employment if one works full time with one employer and attempts simultaneously to serve full time in another capacity for another master. 1962 Op. Att'y Gen. p. 368.

Member not prohibited from receiving benefits from two retirement systems. - Member of the Employees' Retirement System who, as a statutory condition of continued employment, also becomes a bona fide member of the Public School Employees Retirement System, is not prohibited by law from receiving retirement benefits from both systems for valid, separable periods of creditable service, assuming that all other requisite conditions in these provisions are met. 1979 Op. Att'y Gen. No. 79-15.

Employees of multi-state agency not in state system. - Employees of the Southern Interstate Nuclear Board (now Southern States Energy Board), being employees of a multi-state agency and not of the State of Georgia, are not entitled to membership in the Employees' Retirement System of Georgia. 1962 Op. Att'y Gen. p. 364, but see 1967 Op. Att'y Gen. No. 67-22.

Employees in state positions funded under federal employment provisions cannot participate in retirement systems. - Law did not contain sufficient authority to implement the conditions and requirements of the regulations promulgated by the United States Secretary of Labor which prescribed the conditions under which employees of the state and local governments and private nonprofit agencies in Georgia whose positions were funded under the former federal Comprehensive Employment and Training Act of 1973 (CETA), 29 U.S.C. § 801 et seq., participated in retirement systems. 1977 Op. Att'y Gen. No. 77-66.

Opinions Under Prior Law

.

1. Opinions Under Ga. L. 1957, p. 206, as amended, and Ga. L. 1962, p. 602

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Editor's notes. - In light of the similarity of the issues covered in the provisions, opinions under Ga. L. 1957, p. 206, as amended, and Ga. L. 1962, p. 602, which dealt with emeritus positions, are included in the annotations for this chapter.

Chapter inapplicable to district attorney emeritus system. - The 1975 amendment to Sec. 4 of the DA's Emeritus Act repealed the 1962 Forfeiture Act as to any applicability it may have had under the district attorney's emeritus system. 1976 Op. Att'y Gen. No. 76-86 (rendered under Ga. L. 1962, p. 602).

Need not resign emeritus eligibility before seeking Supreme Court seat. - To whatever extent the forfeiture and resignation provisions enacted in 1962 may be applicable to judges of the superior courts generally, it cannot be applied constitutionally to a judge to restrict or impair the retirement rights and benefits the judge received under the statute in effect when the judge took office; the judge is not required to resign the judge's emeritus eligibility prior to seeking a seat on the Supreme Court of Georgia. 1974 Op. Att'y Gen. No. U74-51 (rendered under Ga. L. 1962, p. 602).

District attorney should defer emeritus status before seeking judgeship. - District attorney may seek election to the office of superior court judge while serving as a district attorney; however, considering the possible consequences of the state emeritus office forfeiture provisions, it is deemed advisable for any state official subject to these provisions to defer the attainment of emeritus status at least until the conclusion of any attempt to seek another public office. 1974 Op. Att'y Gen. No. U74-48 (rendered under Ga. L. 1962, p. 602).

Superior court emeritus benefits suspended upon qualification for Court of Appeals. - Judge's qualifying as a candidate to succeed oneself as Judge of the Court of Appeals of Georgia would not cause a forfeiture of the judge's status, rights, and benefits as a judge of the superior courts emeritus; however, qualification for or election to the position of Judge of the Court of Appeals would result in a suspension of the judge's status, rights, and benefits as a judge of the superior courts emeritus during the period of time that the judge would hold the office of Judge of the Court of Appeals. 1968 Op. Att'y Gen. No. 68-199 (rendered under Ga. L. 1962, p. 602).

Public service commissioner emeritus assisting commission not entitled to additional compensation. - Public service commissioner emeritus is not entitled to compensation greater than that provided by statute, and the commission may request a public service commissioner emeritus to consult with, advise, and assist the commission without additional compensation. 1976 Op. Att'y Gen. No. 76-96 (rendered under Ga. L. 1962, p. 602).

2. Opinions Under Ga. L. 1956, p. 75, § 3, and Ga. L. 1970, p. 716, § 1

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Only state employees covered by social security are those designated by Ga. L. 1956, p. 75, § 1 et seq. (see O.C.G.A. § 47-18-1 et seq.). 1971 Op. Att'y Gen. No. U71-141.

RESEARCH REFERENCES

ALR. - Statute or ordinance providing pension for public officers or employees as available to one who had left service before the passage of the statute, 142 A.L.R. 938 .

Effect of reentry into public employment on retirement pension previously granted to public officer or employee, 162 A.L.R. 1469 .

Reasonableness of classification, as regards beneficiaries, by statute providing for retirement fund or pension for public officers or employees, 163 A.L.R. 870 .

Gift to or for employees' pension fund as valid charitable gift or trust, 28 A.L.R.2d 428.

Vested right of pensioner to pension, 52 A.L.R.2d 437.

Misconduct as affecting right to pension or retention of position in retirement system, 76 A.L.R.2d 566.

Employer's liability, under state law, for fraud or misrepresentation inducing employee to take early retirement, 14 A.L.R.5th 537.

ARTICLE 1 GENERAL PROVISIONS

47-2-1. Definitions.

As used in this chapter, the term:

  1. "Accumulated contributions" means the sum of all the amounts deducted from the earnable compensation of a member or paid by the member to establish or reestablish credit for service, which amounts are credited to the member's individual account in the annuity savings fund, together with regular interest thereon. Beginning July 1, 1980, "accumulated contributions" also includes the amount of employee contributions paid by the employer on behalf of the employee and credited to the employee's individual account in the annuity savings fund, together with regular interest thereon, excluding employee contributions paid by the employer or the employee for group term life insurance.
  2. "Actuarial equivalent" means a benefit of equal value when computed at regular interest upon the basis of the mortality tables last adopted by the board of trustees.
  3. "Annuity" means annual payments for life derived from the accumulated contributions of a member.
  4. "Annuity reserve" means the present value of all payments to be made on account of an annuity, or benefit in lieu of an annuity, computed at regular interest upon the basis of the mortality tables last adopted by the board of trustees.
  5. "Annuity savings fund" means the fund set forth under Code Section 47-2-51.
  6. "Average final compensation" means the average annual earnable compensation of any employee during his or her last five years of creditable service or, if the employee has had less than five years of creditable service, his or her average annual earnable compensation during his or her total creditable service.
  7. "Beneficiary" means any person in receipt of a pension, an annuity, a retirement allowance, or other benefit under this chapter.
  8. "Board of trustees" means the board of trustees provided for in Code Section 47-2-21 to administer the retirement system.
  9. Reserved.
  10. Reserved.
  11. "Court of record" means state courts, city courts, superior courts, the Georgia Court of Appeals, and the Supreme Court of Georgia handling within their jurisdiction general state law exclusively. This definition shall have no effect on creditable service determined or prior service certificates issued by the board of trustees before February 13, 1956.
  12. "Credit" means creditable service, as defined in this Code section.
  13. "Creditable service" means prior service plus membership service and any other service recognized as creditable service under this chapter.
  14. "Division A" means the division within the retirement system of members who are part of the Employees' Social Security Coverage Group, as set forth in Code Section 47-2-71.
  15. "Earnable compensation" means the full rate of regular compensation payable to a member employee for his or her full normal working time, excluding any supplements from local funds. In cases where compensation includes maintenance, the board of trustees shall fix the value of that part of the compensation not paid in cash. Such term shall include contributions made to a qualified transportation plan, within the meaning of Section 132(f) of the federal Internal Revenue Code, and before tax or salary deferral contributions made under Section 125, 401(k), 402(g)(3), 457, or 414(h) of the federal Internal Revenue Code to this retirement system or to any other retirement plan maintained by an employer.
  16. "Employee" means:
    1. Any regularly classified worker, elected or appointed officer, or employee of a state agency or any employee of a county, city-county, or city board, which agency or board is subject to the state system of personnel administration created by Chapter 20 of Title 45 and the State Personnel Board, including a merit system for employees of the Department of Public Safety;
    2. Any employee or officer of any other department, bureau, board, institution, or commission of the state:
      1. Which department, bureau, board, or commission operates under a merit system of personnel administration;
      2. Which department operates under a tenure system as established by law; or
      3. Which department, bureau, board, or commission becomes eligible for inclusion in the retirement system by Act of the General Assembly

        who receives payment for performance of personal services from the state or any department, bureau, institution, board, or commission of the state or from a county, city-county, or city board and who is employed in a position normally requiring actual performance of duty during not less than nine months of the year. "Employee" shall not include members of the Teachers Retirement System of Georgia, members of the Public School Employees Retirement System, any person on the payroll of a third party with whom an employer has contracted for the provision of such person's services, or any person classified by an employer as other than a common law employee for federal tax purposes, even if a court, tribunal, or administrative agency determines that such person is a common law employee and not an independent contractor for federal tax purposes; or

    3. Any other provisions of law to the contrary notwithstanding, any and all civilians who are employed in or with the Army National Guard of Georgia and the Air National Guard of Georgia shall, upon establishment of a merit system for such civilian employees and upon the approval of the adjutant general, be entitled to the retirement allowances, benefits, and privileges provided by this chapter, notwithstanding that such employees may be paid by federal funds. No credit shall accrue to such civilian employees for any service rendered prior to the effective date of coverage under the retirement system. The adjutant general is authorized to make such arrangements and agreements as may be necessary or proper in order to effect deductions from the salaries or wages of such civilian employees as may be necessary or proper in the administration of the retirement system as to such civilian employees. It is the intent of the General Assembly that such persons be included in this definition only if federal funds are available for payment of employer contributions for such employees and other expenses of participation.

    (16.1) "Employee" may include new certified professional personnel employed on and after July 1, 1983, for the first time by the State Board of Education or by the State Department of Education only if such personnel elect membership in the retirement system pursuant to subsection (h) of Code Section 47-3-60. As used in this paragraph, the term "certified professional personnel" shall have the meaning provided for in paragraph (8.1) of Code Section 47-3-1.

    (16.2) "Employee" shall not include certified professional personnel who are in the unclassified service as defined by Code Section 45-20-2 and who are employed by the State Board of Education or by the State Department of Education and who elect to become members of the Teachers Retirement System of Georgia pursuant to the authority of subsection (i) of Code Section 47-3-60. As used in this paragraph, the term "certified professional personnel" shall have the meaning provided for in paragraph (8.1) of Code Section 47-3-1.

    (16.3) "Employee" may include persons employed on and after July 1, 1987, for the first time by the Technical College System of Georgia or by postsecondary vocational-technical schools governed by the Technical College System of Georgia only if such personnel elect membership in the retirement system pursuant to subsection (j) of Code Section 47-3-60.

    (16.4) "Employee" shall not include persons who are employed by the Technical College System of Georgia or by a postsecondary vocational-technical school governed by the Technical College System of Georgia and who elect to become members of the Teachers Retirement System of Georgia pursuant to the authority of subsection (j) of Code Section 47-3-60.

    (16.5) "Employee" shall not include personnel employed by the State Board of Education or by the State Department of Education who are authorized to elect and elect to become or remain members of the Teachers Retirement System of Georgia pursuant to applicable provisions of Chapter 3 of this title.

    (16.6) "Employee" shall not include an individual classified by an employer as an independent contractor or a leased employee within the meaning of Section 414(n) of the federal Internal Revenue Code, even if such individual is later reclassified by the Internal Revenue Service as a common law employee.

  17. "Employer" means:
    1. The state or any department, bureau, institution, board, or commission of the state or any county, city-county, or city board, the employees of which are subject to the state system of personnel administration created by Chapter 20 of Title 45 and the State Personnel Board, including a merit system for employees of the Department of Public Safety, and all state departments under a tenure system as established by law, provided that such county, city-county, or city board may notify the board of trustees that it will not participate in the benefits of the retirement system, such notice to be given in writing on or before the commencement date or before persons are employed by it. Any employee of a county, city-county, or city board having an existing local retirement system may elect to continue to participate in such existing local system but shall not participate in two systems, and his or her election shall be final on the commencement date under this chapter. Any county, city-county, or city employee who elects to become a member of this retirement system and who was a member of an existing local retirement system shall transfer to the board of trustees any equity he or she has in the local system;
    2. Any other provisions of law to the contrary notwithstanding, the adjutant general is authorized, though not directed, to establish a merit system and to perform all of the duties and obligations of an "employer" for all civilians employed in or with the Army National Guard of Georgia and the Air National Guard of Georgia, even though such employees may be paid with federal funds. The adjutant general is further authorized to make and enter into such agreements and take such actions as are necessary to provide for all contributions and payments specified in this chapter, from funds made available by the federal government, and otherwise to comply with this chapter so as to make this chapter applicable to such civilian employees; or
    3. Any new state agency described under Code Section 47-2-70.1 and any other entity authorized by law to report any of its employees as members of this system.
  18. "Expense fund" means the fund set forth under Code Section 47-2-60.
  19. "Group term life insurance" means the survivors benefits established under Code Section 47-2-128.
  20. "Involuntary separation from employment without prejudice" means separation or release from service other than by the willing choice of a member, provided that such member has not been convicted in a court of competent jurisdiction of any crime involving moral turpitude or malfeasance in office or has not been forced to make restitution for any funds or property wrongfully taken by the member. Involuntary separation shall not include the defeat in an election of an elected official who becomes a member of this retirement system for the first time on or after July 1, 1971.
  21. "Involuntary separation from employment with prejudice" means separation or release from service other than by the willing choice of a member who has been convicted in a court of competent jurisdiction of a crime involving moral turpitude or malfeasance in office or who has been forced to make restitution for any funds or property wrongfully taken by the member.
  22. "Medical board" means the board of physicians established under Code Section 47-2-24 for the purpose of arranging for and passing upon medical examinations required under this chapter.
  23. "Member" means any employee included in the membership of this retirement system. On and after July 1, 1967, no employee shall become a member unless his or her position with an employer, as defined in paragraph (17) of this Code section, is his or her primary occupation and such position requires that the employee spend at least the number of hours specified in regulations adopted by the board of trustees in the actual performance of his or her duties, provided that in no case shall the number of hours be less than 30 hours per week during at least nine months of a year.
  24. "Membership service" means service which is rendered by an employee while he or she is a member of the retirement system and for which credit is allowable under this chapter.
  25. "Option one," "option two," "option three," and "option four" mean the optional forms in which a member may elect to receive his or her retirement allowance, which options are set forth in Code Section 47-2-121.
  26. "Pension" means periodic payments for life derived from contributions of the state.
  27. "Pension accumulation fund" means the fund set forth in Code Section 47-2-55.
  28. "Pension reserve" means the present value of all payments to be made on account of a pension, or benefit in lieu of a pension, computed at regular interest upon the basis of the mortality tables last adopted by the board of trustees.

    (28.1) "Plan year" means the 12 month period beginning on July 1 of each year.

  29. "Prior service" means service rendered prior to January 1, 1954, for which credit is allowable under this chapter.
  30. "Prior service certificate" means the certificate issued to a member under this chapter as proof of his or her prior service.
  31. "Regular interest" means interest at such a rate as shall be determined by the board of trustees in accordance with Code Section 47-2-26, which interest shall be compounded annually.
  32. "Retirement" means withdrawal from service with a retirement allowance granted under this chapter.
  33. "Retirement allowance" means the sum of the annuity and the pension, or any optional benefit payable in lieu thereof. All retirement allowances shall be payable in equal monthly installments, except that the board of trustees may adopt regulations providing for the payment of a lump sum, not to exceed the equivalent actuarial value of the retirement allowance, in lieu of a retirement allowance of less than $10.00 per month or in lieu of part of an annuity.
  34. "Retirement system" means the Employees' Retirement System of Georgia.
  35. "Service" means service rendered as an employee and paid for by an employer.
  36. "Service credit" means creditable service, as defined in this Code section.
  37. "Within one year after discharge from the armed forces" means within one year after the termination of the member's active service in the military or naval forces of the United States and shall not include any military reserve or naval reserve service.

    (Ga. L. 1949, p. 138, § 1; Ga. L. 1950, p. 416, § 1; Ga. L. 1951, p. 394, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 160, § 1; Ga. L. 1956, p. 54, § 1; Ga. L. 1961, p. 101, §§ 1, 2; Ga. L. 1961, p. 143, § 1; Ga. L. 1967, p. 751, § 1; Ga. L. 1968, p. 195, § 1; Ga. L. 1971, p. 96, § 1; Ga. L. 1980, p. 925, § 1; Ga. L. 1982, p. 3, § 47; Ga. L. 1983, p. 1859, § 1; Ga. L. 1984, p. 1296, § 1; Ga. L. 1985, p. 209, § 1; Ga. L. 1986, p. 1543, § 1; Ga. L. 1987, p. 575, §§ 5, 6; Ga. L. 1988, p. 1351, § 1; Ga. L. 1988, p. 1742, § 1; Ga. L. 1989, p. 52, § 1; Ga. L. 2005, p. 535, §§ 3, 4/HB 460; Ga. L. 2006, p. 93, § 1/SB 466; Ga. L. 2008, p. 562, § 1/SB 434; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2009, p. 947, §§ 9-12/HB 202; Ga. L. 2010, p. 1207, §§ 3, 64/SB 436; Ga. L. 2012, p. 413, § 2/HB 805.)

The 2008 amendment, effective July 1, 2008, substituted "Technical College System of Georgia" for "Department of Technical and Adult Education" twice in paragraphs (16.3) and (16.4).

The 2009 amendments. The first 2009 amendment, effective July 1, 2009, in subparagraphs (16)(A) and (17)(A), substituted "State Personnel Administration" for "state merit system of personnel administration" and, in paragraph (16.2), substituted "State Personnel Administration" for "State Merit System of Personnel Administration". The second 2009 amendment, effective May 11, 2009, in paragraph (1), substituted "earnable compensation of a member or paid by the member to establish or reestablish credit for service, which amounts are credited to the member's" for "compensation of a member and credited to his" in the first sentence and added ", excluding employee contributions paid by the employer or the employee for group term life insurance" at the end of the second sentence; in paragraph (15), inserted "or her" in the middle of the first sentence and added the last sentence; in paragraph (17), in subparagraph (17)(A), inserted "or her" in the second sentence and inserted "or she" in the third sentence, and added subparagraph (17)(C); and added paragraphs (16.6) and (28.1).

The 2010 amendment, effective July 1, 2010, substituted "Reserved." for the former provisions of paragraph (9), which read: "'Commencement date affecting employers operating under a merit system of personnel administration at the time of the passage of this chapter' means January 1, 1950. Anything in this chapter to the contrary notwithstanding, any employee of an employer which is not operating under the retirement system who, without a break in service, becomes an employee of an employer which is operating under the retirement system, within two years of the commencement date affecting such employer, shall have a commencement date as of the date employment with the latter department became effective; and in such cases all other dates found in this chapter shall be set in the same relation to his commencement date as they would otherwise be set in relation to the commencement date affecting such employer."; substituted "Reserved." for the former provisions of paragraph (10), which read: "'Commencement date affecting employers that after February 3, 1949, operate under a merit system of personnel administration or those employers for which funds are not available on that date under Code Section 47-2-57' means: if the employees of any employer shall hereafter become eligible for inclusion in the Employees' Retirement System of Georgia, the commencement date set for such employer by the board of trustees shall be not less than six months or more than 12 months from the date such employer becomes eligible for membership; and all other dates mentioned in this chapter shall be set in the same relation to this commencement date as they would otherwise be set in relation to the commencement date in the original chapter, provided that in the application of dates to subsection (a) of Code Section 47-2-96, no date shall be later than July 1, 1953. Anything in this chapter to the contrary notwithstanding, any employee of an employer which is not operating under the retirement system who, without a break in service, becomes an employee of an employer which is operating under the retirement system, within two years of the commencement date affecting such employer, shall have a commencement date as of the date employment with the latter employer became effective; and in such cases all other dates found in this chapter shall be set in the same relation to his commencement date as they would otherwise be set in relation to the commencement date affecting such employer."; in paragraph (14), substituted "means the division" for "and 'Division B' mean the divisions" at the beginning and deleted ", and those who are not, respectively" following "Section 47-2-71" at the end; substituted "Section" for "Sections" near the end of paragraph (15); and, substituted "under the State Personnel Administration" for "under a State Personnel Administration" in subparagraphs (16)(A) and (17)(A).

The 2012 amendment, effective July 1, 2012, inserted "or her" throughout this Code section; substituted "the employee" for "he" in paragraph (6); substituted "subject to the state system of personnel administration created by Chapter 20 of Title 45 and the State Personnel Board" for "under the State Personnel Administration" in subparagraph (16)(A); added "or" at the end of the undesignated language following division (16)(B)(iii); substituted "as defined by Code Section 45-20-2" for "of the State Personnel Administration" in the first sentence of paragraph (16.2); in subparagraph (17)(A), substituted "subject to the state system of personnel administration created by Chapter 20 of Title 45 and the State Personnel Board" for "under the State Personnel Administration" in the first sentence and substituted a semicolon for a period at the end of the last sentence; substituted "; or" for a period at the end of subparagraph (17)(B); substituted "Any" for "'Employer' shall include any" in subparagraph (17)(C); and inserted "or she" in paragraph (24).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, the term "Employee" in paragraph (16.1) was placed in quotations.

Editor's notes. - Section 5 of the 1984 Act provided that this Act would become effective on January 1, 1985, only if a proposed amendment (see Ga. L. 1984, p. 1726) to the Constitution (Ga. Const. 1983, Art. III, Sec. X, Para. VI) authorizing the General Assembly to revise provisions of public retirement or pension systems relating to involuntary separation from employment were ratified at the 1984 general election. Such approval was given at that election.

Ga. L. 1984, p. 1296, § 6, not codified by the General Assembly, provided: "Pursuant to the authority of the proposed constitutional amendment described in Section 5 of this Act and being contingent for its effectiveness on January 1, 1985, upon the ratification of such proposed constitutional amendment, this Act is exempt from the provisions of Chapter 20 of Title 47 of the Official Code of Georgia Annotated known as the 'Public Retirement Systems Standards Law.' "

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

Ga. L. 2012, p. 413, § 1/HB 805, not codified by the General Assembly, provides that: "The purpose of this Act is to make conforming amendments and correct references in Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, relative to the abolition of the State Personnel Administration and the transfer of certain functions of such agency to the Department of Administrative Services as provided by a separate Act." The separate Act referred to is Ga. L. 2012, p. 446/HB 642, which became effective July 1, 2012, and which provides for the abolition of the State Personnel Administration and the transfer of functions.

Ga. L. 2012, p. 413, § 13/HB 805, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, only if an Act abolishing the State Personnel Administration and providing for the transfer of certain functions of such agency to the Department of Administrative Services is enacted and becomes effective on that same date; otherwise, this Act shall not become effective and shall stand repealed on July 1, 2012." Ga. L. 2012, p. 446/HB 642, effective July 1, 2012, provides for the abolition of the State Personnel Administration and the transfer of functions.

JUDICIAL DECISIONS

Authority of board of trustees to reduce pension benefits based on age and length of service at retirement. - Neither O.C.G.A. § 47-2-120(a) nor O.C.G.A. § 47-2-1 10(a) provides a formula for the calculation of service retirement benefits; the authority to do so rests with the Board of Trustees of the Employees Retirement System of the State of Georgia (ERS) under the general grant of authority in O.C.G.A. § 47-2-21 to effectuate the provisions of the ERS Act, O.C.G.A. § 47-2-1 et seq., including the specific grants of authority found in O.C.G.A. §§ 47-2-26(a) and 47-2-28(a) and (b). Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

When employee entitled to separation benefits. - When an employee has been separated from employment without prejudice, the relevant issue for determining whether the employee is entitled to separation benefits is whether the termination was voluntary or involuntary. Boyd v. Employees' Retirement Sys., 200 Ga. App. 345 , 408 S.E.2d 157 (1991).

Facts did not support involuntary separation. - Employee's objectionable conduct, consisting of the illegal acceptance of gratuities and the purposeful failure to comply with state laws and regulations, constituted the kind of activity that any employee would know or should have known would result in the employee's dismissal, and thus did not constitute involuntary separation within the meaning of the statute. Boyd v. Employees' Retirement Sys., 200 Ga. App. 345 , 408 S.E.2d 157 (1991).

Requirements of Public Service Commission. - Although the statute does not require the Public Service Commission (PSC) to reappoint plaintiff as a confidential secretary, the PSC must offer the plaintiff a job with reasonably compatible duties and at the same pay as the plaintiff's former secretarial job. Alford v. Public Serv. Comm'n, 262 Ga. 386 , 418 S.E.2d 13 (1992).

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968); Employees' Retirement Sys. v. Almgren, 235 Ga. 368 , 219 S.E.2d 749 (1975); Allison v. Domain, 158 Ga. App. 542 , 281 S.E.2d 299 (1981); Hadley v. Board of Trustees, 171 Ga. App. 614 , 320 S.E.2d 620 (1984); Silliman v. Cassell, 292 Ga. 464 , 738 S.E.2d 606 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Commencement date for purchasing creditable service to January 1, 1954. - In enacting Ga. L. 1976, p. 456, § 1, the General Assembly intended to move the commencement date for the purchase of creditable membership service by tax officials and employees from April 1, 1959 back to January 1, 1954, to allow retirement system members who were county tax commissioners, collectors, receivers, or employees of such officers prior to April 1, 1959, to purchase retirement credit for all time actually served as such between January 1, 1954 and April 1, 1959. 1976 Op. Att'y Gen. No. 76-129.

All state officials and employees included within system. - All officials and employees of any state department or agency are included within the Employees' Retirement System of Georgia, whether such officials and employees are in the classified or unclassified service; the Governor's office would be includable as a department or agency within the meaning of Ga. L. 1949, p. 138 et seq. 1973 Op. Att'y Gen. No. 73-39.

Personnel hired by state under federally funded contracts. - Personnel hired by this state to perform services required under federally funded contracts with the Department of Defense of the State of Georgia are state employees and are eligible for coverage under state employees' retirement. 1969 Op. Att'y Gen. No. 69-6.

Georgia Fire Academy employees included. - Employees of the Georgia Fire Academy are legally entitled to membership in the Employees' Retirement System of Georgia. 1983 Op. Att'y Gen. No. 83-24.

Historic Chattahoochee Commission is not a statutorily covered agency within the meaning of Ga. L. 1949, p. 138 et seq. 1979 Op. Att'y Gen. No. 79-14.

Failure of retirement system member to be reelected to a covered position constitutes involuntary separation from employment for purposes of the retirement system laws. 1962 Op. Att'y Gen. p. 364 (rendered under Ga. L. 1949, p. 138, § 1, prior to amendment by Ga. L. 1968, p. 195).

State official's release from fixed term is not willing. - State official's separation or release from service was not willingly by the official's choice simply and solely because of the official's having accepted an office with the knowledge that the office has a fixed term and knowing that the state board having the appointive or elective power to fill the office might decide at the end of the official's term to appoint or to elect some other person. 1971 Op. Att'y Gen. No. 71-6.

Clerks of superior courts and staffs not included. - Clerks of superior courts and staffs may not come under Employees' Retirement System of Georgia. 1969 Op. Att'y Gen. No. 69-168.

"Contingency clerks" within Department of Labor not included. - Membership in the retirement system was envisioned for full-time employees of the State of Georgia who occupy positions potentially and probably requiring continued, nonintermittent employment of more than 35 (now 30) hours per week during at least nine months of a year; therefore, personnel within the Department of Labor who occupy the position of "contingency clerk" should not be considered as members of the system, and should not be required to contribute to the retirement system, nor should employer contributions be made on their behalves. 1977 Op. Att'y Gen. No. 77-59.

General assembly year for year service creditable. - Service allowable year for year to former members of the General Assembly is creditable as "membership service" and, hence, is includable for determinations of the eligibility for involuntary separation retirement benefits. 1971 Op. Att'y Gen. No. 71-5.

Revenue Department makes contributions for county tax office employees. - Revenue Department is authorized and directed to make employer contributions in behalf of officials and employees of county tax offices which comply with all the conditions precedent set forth in Ga. L. 1969, p. 1013, § 1 (see O.C.G.A. § 47-2-292 ) within the applicable time limitations expressly provided for therein. 1969 Op. Att'y Gen. No. 69-349.

No "regular interest" accrues while member not in service. - Since contributions and interest are all that accrue to an account of a member of the retirement system, and since Ga. L. 1959, p. 107, § 2 (see O.C.G.A. § 47-2-70(c) ) expressly states that contributions shall not be made while a member is not in service, it necessarily follows that the word "benefit" must be construed to mean "regular interest." 1971 Op. Att'y Gen. No. 71-26.

RESEARCH REFERENCES

Am. Jur. 2d. - 60 Am. Jur. 2d, Pensions and Retirement Funds, § 30.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 311 et seq. 81A C.J.S., States, § 211 et seq.

ALR. - Re-employment or reinstatement of public officer or employee as restoration of original status as regards incidental rights privileges, 89 A.L.R. 684 .

Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income, 7 A.L.R.2d 692.

Taxicab driver as employee of owner of cab, or independent contractor, within social security and unemployment insurance statutes, 10 A.L.R.2d 369.

What constitutes "salary," "wages," "pay," or the like, within pension law basing benefits thereon, 91 A.L.R.5th 225.

47-2-2. Involuntary separation from employment; grounds and procedures for discharge of employees.

  1. The provisions of this Code section are supplemental to, and not in lieu of, the provisions of paragraphs (20) and (21) of Code Section 47-2-1 defining "involuntary separation from employment without prejudice" and "involuntary separation from employment with prejudice."
  2. The word "employee" as defined in paragraph (2) of subsection (c) of this Code section shall include any such employee in the classified or unclassified service of the state system of personnel administration provided for by Chapter 20 of Title 45. The provisions of that law or any rules or regulations promulgated pursuant thereto relative to the dismissal of employees from employment shall not be applicable to the discharge of an employee from employment pursuant to the provisions of this Code section. Any such employee who is otherwise subject to that law and rules or regulations promulgated pursuant thereto shall continue to be subject thereto for the purpose of any adverse personnel action other than discharge from employment or suspension pursuant to this Code section, but for the purposes of such discharge from employment or suspension, the provisions of this Code section shall be exclusive.
  3. As used in this Code section, the term:
    1. "Duties" means duties and responsibilities assigned by an employer to an employee which are reasonably related to the lawful objectives and responsibilities of the employer and which are reasonably related to the position of employment held by the employee for which the employee is compensated.
    2. "Employee" means an employee, other than an elected public official, a public official selected by a vote of a board to serve at the pleasure of the board, or a public official appointed pursuant to law for a specific term of office, as defined in paragraph (16) of Code Section 47-2-1 who was a member of the retirement system prior to April 1, 1972, and who, if involuntarily separated from employment without prejudice, has sufficient membership service under the retirement system to qualify for a retirement allowance because of such involuntary separation from employment.
    3. "Employer" means any person or group of persons authorized by law or having authority delegated by law to discharge an employee.
    4. "Insubordination" means the refusal by an employee to carry out the employee's duties when instructed to do so by the employer or by the employee's supervisor upon the instructions or under the authority of the employer.
    5. "Irresponsible performance of duties" means the performance of any duties by an employee or the use of an employee's position of employment for any one or more of the following purposes:
      1. To make a financial gain or receive materials or services having financial value, except compensation received as an employee, under circumstances which would lead a reasonable person to believe that the financial gain or the receipt of materials or services was improperly related to the performance of duties by the employee;
      2. To purchase or authorize the purchase of materials or services from public funds when the employee knows or reasonably could be expected to know that the amount paid for such materials or services unreasonably exceeds the amount for which substantially equivalent materials or services could be purchased without excessive delay or inconvenience;
      3. To use publicly owned real or personal property or publicly supplied services for personal use when the employee knows or reasonably could be expected to know that such personal use of public property or services is unauthorized or improper; or
      4. To expend or authorize the expenditure of public funds in a manner which would lead a reasonable person to believe the employee shows a reckless disregard for the obligation to taxpayers to expend public funds in a prudent and efficient manner.
    6. "Malingering" means frequent absences from work or the failure to perform duties during working hours because of claims of illness which are unsubstantiated as determined pursuant to subsection (e) of this Code section.
    7. "Neglect of duty" means the repeated failure by an employee to carry out the employee's duties, either because of excessive unexcused absences from work or a failure to perform or the unsatisfactory performance of duties while at work or a combination thereof.
    8. "Proof of illness" means a written opinion by one or more physicians designated by the medical board provided for by Code Section 47-2-24 stating that an employee's absences from work or unsatisfactory performance of duties are reasonably related to an illness suffered by the employee and describing the nature of such illness.
    9. "Unsatisfactory performance of duties in a willful manner" means the unsatisfactory performance of duties by an employee when the past satisfactory performance of duties by the employee indicates the employee's unsatisfactory performance is willful as determined pursuant to subsection (f) of this Code section.
  4. An employee may be discharged from employment pursuant to the requirements of this Code section for insubordination, irresponsible performance of duties, malingering, neglect of duty, or unsatisfactory performance of duties in a willful manner or for any combination of such reasons. Any employee so discharged from employment shall not be entitled to and shall not receive a retirement benefit based on involuntary separation from employment without prejudice pursuant to Code Section 47-2-123.
  5. An employer shall have a reasonable basis for believing an employee is malingering when:
    1. The employee has a pattern of absences from work because of illness or unsatisfactory performance of duties because of illness or a pattern of absences from work and unsatisfactory performance of duties because of illness;
    2. The employer has requested the employee, in writing, to provide proof of illness and the employee has been given a reasonable opportunity, which shall not be less than 30 days after the date of the request made by the employer, to respond to the employer's request; and
    3. The employee has provided no or unsatisfactory proof of illness to the employer in response to the request made pursuant to paragraph (2) of this subsection.
  6. An employer shall have a reasonable basis for believing an employee is engaging in unsatisfactory performance of duties in a willful manner when:
    1. The past work history of the employee indicates the employee is capable of satisfactory performance of duties;
    2. The unsatisfactory performance of duties became increasingly apparent after the employee qualified for a retirement benefit based on involuntary separation from employment without prejudice; and
    3. The employee does not claim illness as a basis for unsatisfactory performance of duties and has offered no proof of illness to the employer.
  7. When an employer is considering the discharge from employment of an employee for any one or more reasons specified in subsection (d) of this Code section, the employer shall transmit a written notice to the employee containing the following:
    1. An explanation of the conduct or deficiencies of the employee which form the basis for the employer's considering the discharge of the employee;
    2. A statement that such conduct may result in the employee's discharge from employment on a specified date, which shall not be earlier than the tenth day following the date of the notice in the case of insubordination or irresponsible performance of duties and not earlier than the thirtieth day following the date of the notice if the basis for considering the discharge of the employee is for a reason or reasons other than insubordination or irresponsible performance of duties;
    3. A statement that the employee's discharge from employment for the reasons specified in the notice shall not constitute involuntary separation from employment without prejudice within the meaning of the applicable provisions of the Employees' Retirement System of Georgia and that if discharged, the employee shall not be entitled to receive and shall not receive a retirement benefit based on involuntary separation from employment without prejudice;
    4. A statement that the employee has a right to a hearing before the employer on a specified date, which shall be at least five days prior to the date specified for the employee's discharge from employment; and
    5. A statement that at the hearing before the employer, the employee shall be given an opportunity to offer explanations for the employee's conduct or deficiencies and to present evidence on the employee's behalf.
  8. An employee being considered for discharge from employment because of insubordination or irresponsible performance of duties may be suspended without pay, except to the extent the employee has accumulated annual leave, pending the completion of the procedures provided for in subsections (g) and (i) of this Code section. If the employer's final decision is not to discharge the employee or if the employee's discharge is not upheld by the court upon judicial review provided for in Code Section 47-2-3, the compensation denied to the employee during suspension shall be reimbursed to the employee and, if applicable, accumulated leave used during the suspension shall be reinstated.
  9. If an employee subject to the provisions of subsection (g) of this Code section fails to respond to the notice sent to the employee pursuant to said subsection or if the employer is not satisfied with the explanation made by the employee for the conduct or deficiencies specified in said notice and is not satisfied with the evidence presented in the employee's behalf, the employee may be discharged from employment on the date specified in said notice or on such later date as shall be specified in writing by the employer to the employee. The employee shall be notified, in writing, of the final decision of the employer and such notice shall provide an explanation for the employer's decision.
  10. An employer discharging an employee pursuant to this Code section shall prepare a written report to the board of trustees on the discharge of the employee. Any notices or other written communications to the employee which relate to the employer's decision to discharge the employee shall be attached to and made a part of the employer's report to the board of trustees.
  11. It shall be the duty of any employer considering the discharge of an employee for any reason or combination of reasons specified in subsection (d) of this Code section to follow the procedures specified in this Code section as a condition precedent to the discharge of such employee. (Code 1981, § 47-2-2 , enacted by Ga. L. 1984, p. 1296, § 2; Ga. L. 1985, p. 209, § 1; Ga. L. 1993, p. 86, § 1; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2012, p. 413, § 3/HB 805.)

The 2009 amendment, effective July 1, 2009, substituted "State Personnel Administration" for "State Merit System of Personnel Administration" in the first sentence of subsection (b).

The 2012 amendment, effective July 1, 2012, substituted "state system of personnel administration" for "State Personnel Administration" in the first sentence of subsection (b).

Editor's notes. - Ga. L. 1984, p. 1296, § 2, enacted this Code section. Section 5 of the 1984 Act provided that this Act would become effective on January 1, 1985, only if a proposed amendment (see Ga. L. 1984, p. 1726) to the Constitution (Ga. Const. 1983, Art. III, Sec. X, Para. VI) authorizing the General Assembly to revise provisions of public retirement or pension systems relating to involuntary separation from employment were ratified at the 1984 general election. Such approval was given at that election.

Ga. L. 1984, p. 1296, § 6, not codified by the General Assembly, provided: "Pursuant to the authority of the proposed constitutional amendment described in Section 5 of this Act and being contingent for its effectiveness on January 1, 1985, upon the ratification of such proposed constitutional amendment, this Act is exempt from the provisions of Chapter 20 of Title 47 of the Official Code of Georgia Annotated known as the 'Public Retirement Systems Standards Law.' "

Ga. L. 2012, p. 413, § 1/HB 805, not codified by the General Assembly, provides that: "The purpose of this Act is to make conforming amendments and correct references in Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, relative to the abolition of the State Personnel Administration and the transfer of certain functions of such agency to the Department of Administrative Services as provided by a separate Act." The separate Act referred to is Ga. L. 2012, p. 446/HB 642, which became effective July 1, 2012, and which provides for the abolition of the State Personnel Administration and the transfer of functions.

Ga. L. 2012, p. 413, § 13/HB 805, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, only if an Act abolishing the State Personnel Administration and providing for the transfer of certain functions of such agency to the Department of Administrative Services is enacted and becomes effective on that same date; otherwise, this Act shall not become effective and shall stand repealed on July 1, 2012." Ga. L. 2012, p. 446/HB 642, effective July 1, 2012, provides for the abolition of the State Personnel Administration and the transfer of functions.

Law reviews. - For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986).

JUDICIAL DECISIONS

Litigation of employee's right to benefits. - In an action under O.C.G.A. § 47-2-3 for judicial review of an employee's discharge, the trial court exceeded the court's authority in declaring unconstitutional the provision of O.C.G.A. § 47-2-2 that employees discharged for certain reasons are not entitled to receive involuntary separation retirement benefits and ordering that the employee was entitled to such benefits, since these issues were beyond the scope of the review. Although issues relating to the propriety of the discharge may be litigated in the context of a proceeding under O.C.G.A. § 47-2-3 , the employee's right to benefits must be litigated in a separate action. Department of Pub. Safety v. Willis, 218 Ga. App. 541 , 462 S.E.2d 386 (1995), cert. denied, 517 U.S. 1210, 116 S. Ct. 1828 , 134 L. Ed. 2 d 933 (1996).

Involuntary separation benefits. - Employee discharged from employment for irresponsible performance of duties was not entitled to involuntary separation retirement benefits; the jury found that the employee had engaged in conduct which the employee knew or should have known would lead to separation from state employment, thus, the denial of the employee's mandamus petition seeking involuntary separation retirement benefits from the state retirement system was affirmed. Roach v. Emples. Ret. Sys., 275 Ga. 447 , 569 S.E.2d 540 (2002).

Cited in Bd. of Pub. Safety v. Jordan, 252 Ga. App. 577 , 556 S.E.2d 837 (2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 60 Am. Jur. 2d, Pensions and Retirement Funds, § 37.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq.

ALR. - Employer's liability, under state law, for fraud or misrepresentation inducing employee to take early retirement, 14 A.L.R.5th 537.

47-2-3. Employee's right to judicial review following discharge from employment.

  1. As used in this Code section, the term:
    1. "Employee" means an employee subject to the provisions of Code Section 47-2-2 who is discharged from employment pursuant to that Code section and who is aggrieved by such discharge from employment.
    2. "Employer" shall have the same meaning as the definition of that word provided in paragraph (3) of subsection (c) of Code Section 47-2-2.
  2. An employee shall have the right to judicial review of the employee's discharge from employment pursuant to the provisions of Code Section 47-2-2. Proceedings for judicial review may be instituted by filing a petition within 30 days after the date the employee's discharge from employment becomes final as specified in the notice sent to the employee pursuant to subsection (i) of Code Section 47-2-2. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the employee. The petition shall state the nature of the employee's interest and the grounds as specified in subsection (f) of this Code section upon which the employee contends that the employee's discharge from employment should be reversed or modified. The petition may be amended by leave of the court. The filing of the petition does not itself stay the enforcement of the employer's decision to discharge the employee, but the reviewing court may order a stay upon appropriate terms for good cause shown.
  3. Within 30 days after service of the petition or within further time allowed by the court, the employer shall transmit to the reviewing court the original or a certified copy of the entire record, which shall include the report prepared by the employer pursuant to subsection (j) of Code Section 47-2-2, of the proceedings under review. The court may require or permit subsequent corrections or additions to the record.
  4. If, before the date set for hearing, application is made to the court for leave to present additional evidence and it is shown to the satisfaction of the court that the additional evidence is material and there were good reasons for failure to present it in the hearing before the employer, the court may order that the additional evidence be taken before the employer upon conditions determined by the court. The employer may modify the employer's findings and decision to discharge the employee by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
  5. The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the employer, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
  6. The court shall not substitute its judgment for that of the employer as to the weight of the evidence on questions of fact. The court may affirm the decision of the employer or remand the case for further proceedings. The court may reverse or modify the decision of the employer to discharge the employee if substantial rights of the employee have been prejudiced because the administrative findings, inferences, conclusions, or decision of the employer were:
    1. In violation of constitutional or statutory provisions;
    2. In excess of statutory authority of the employer;
    3. Affected by other error of law;
    4. Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
    5. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
  7. If the employee or the employer is aggrieved by a final judgment of the superior court under this Code section, either such party may obtain review of such final judgment pursuant to the provisions of Code Section 5-6-35 . (Code 1981, § 47-2-3 , enacted by Ga. L. 1984, p. 1296, § 2.)

Editor's notes. - Ga. L. 1984, p. 1296, § 2, enacted this Code section. Section 5 of the 1984 Act provided that this Act would become effective on January 1, 1985, only if a proposed amendment (see Ga. L. 1984, p. 1726) to the Constitution (Ga. Const. 1983, Art. III, Sec. X, Para. VI) authorizing the General Assembly to revise provisions of public retirement or pension systems relating to involuntary separation from employment were ratified at the 1984 general election. Such approval was given at that election.

Section 6 of Ga. L. 1984, p. 1296, not codified by the General Assembly, provided as follows: "Pursuant to the authority of the proposed constitutional amendment described in Section 5 of this Act and being contingent for its effectiveness on January 1, 1985, upon the ratification of such proposed constitutional amendment, this Act is exempt from the provisions of Chapter 20 of Title 47 of the Official Code of Georgia Annotated known as the 'Public Retirement Systems Standards Law.' "

JUDICIAL DECISIONS

Scope of review. - In an action under O.C.G.A. § 47-2-3 for judicial review of an employee's discharge, the trial court exceeded the court's authority in declaring unconstitutional the provision of O.C.G.A. § 47-2-2 that employees discharged for certain reasons are not entitled to receive involuntary separation retirement benefits and ordering that the employee was entitled to such benefits, since these issues were beyond the scope of the review. Although issues relating to the propriety of the discharge may be litigated in the context of a proceeding under § 47-2-3 , the employee's right to benefits must be litigated in a separate action. Department of Pub. Safety v. Willis, 218 Ga. App. 541 , 462 S.E.2d 386 (1995), cert. denied, 517 U.S. 1210, 116 S. Ct. 1828 , 134 L. Ed. 2 d 933 (1996).

Review of disability determination not appropriate when employee not discharged. - Superior court lacked jurisdiction for direct appellate review of the denial of a state employee's application for retirement disability benefits under O.C.G.A. § 47-2-123(b)(1). O.C.G.A. § 47-2-3 was inapplicable because the employee was not discharged from employment. Employees' Ret. Sys. of Ga. v. Harris, 303 Ga. App. 191 , 692 S.E.2d 798 (2010).

Cited in Bd. of Pub. Safety v. Jordan, 252 Ga. App. 577 , 556 S.E.2d 837 (2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 460.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 200 et seq.

ALR. - Validity of statute or ordinance providing for pensions for municipal employees, 37 A.L.R. 1162 .

ARTICLE 2 CREATION, ADMINISTRATION, AND MANAGEMENT OF THE ASSETS OF THE RETIREMENT SYSTEM

47-2-20. Creation of retirement system; purpose, management, corporate powers and privileges, and certain rights in actions at law of retirement system; name under which retirement system to transact business.

A retirement system is established and placed under the management of the board of trustees for the purpose of providing retirement allowances and other benefits under this chapter for employees of the state and political subdivisions thereof. It shall have the powers and privileges of a corporation and the right to bring and defend actions and to implead and be impleaded. It shall be known as the "Employees' Retirement System of Georgia," and by such name all of its business shall be transacted, all of its funds invested, and all of its cash and securities and other property held.

(Ga. L. 1949, p. 138, § 2.)

JUDICIAL DECISIONS

Cited in Bryant v. Employees Retirement Sys., 216 Ga. App. 737 , 455 S.E.2d 839 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1182.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 311 et seq. 81A C.J.S., States, § 211 et seq.

ALR. - Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income, 7 A.L.R.2d 692.

47-2-21. Power and duty of board of trustees to administer and operate retirement system; membership of board; vacancies; expenses; oath; quorum.

  1. The administration and responsibility for the proper operation of the retirement system and for effectuating this chapter are vested in the board of trustees, which shall be organized immediately after a majority of the trustees have qualified and taken the oath of office.
  2. The board of trustees shall consist of seven trustees as follows:
    1. The state auditor, ex officio;
    2. The state treasurer, ex officio;
    3. The commissioner of administrative services, ex officio;
    4. One member appointed by the Governor for a term of four years, provided that the first such term was from date of appointment to June 30, 1951;
    5. Two trustees elected by the trustees set forth in paragraphs (1) through (4) of this subsection for a term of four years, provided that in their first terms one served for a term from the date of election to June 30, 1950, and the other for a term from the date of election to June 30, 1952; provided, further, that each of these two members shall have had at least five years of creditable service with an agency included in this retirement system; and
    6. The seventh trustee shall be a citizen of this state but not a member of the retirement system nor shall he or she hold or be a candidate for public office during his or her term of office as a trustee. He or she shall have had at least ten years of experience in the investment of moneys and shall be elected by the remaining trustees for a term of four years, provided that his or her first term was from the date of election to June 30, 1953.
  3. If a vacancy occurs in the office of a trustee, the vacancy shall be filled for the unexpired term in the same manner as the original appointment or election.
  4. The trustees may receive the daily expense allowance authorized for members of the General Assembly for each day spent attending meetings of the board of trustees and any committee meetings called pursuant to authorization of the board of trustees and for time spent in necessary travel. In addition to such amount, the trustees shall be reimbursed for all actual travel and other expenses necessarily incurred through service on the board of trustees. State officials serving ex officio shall not receive the daily expense allowance but shall be entitled to reimbursement of actual expenses.
  5. Each trustee shall, within ten days after his or her appointment or election, take an oath of office that he or she will diligently and honestly administer the affairs of the board of trustees which have been entrusted to him or her and that he or she will not knowingly violate or willingly permit to be violated any law applicable to the retirement system. The oath shall be subscribed to by the trustee, certified by the officer before whom it is taken, and filed immediately in the office of the Secretary of State.
  6. Five trustees at any meeting of the board of trustees shall constitute a quorum to transact business. Each trustee shall be entitled to one vote and four votes shall be necessary for a decision by the board of trustees.

    (Ga. L. 1949, p. 138, § 6; Ga. L. 1951, p. 394, § 9; Ga. L. 1982, p. 3, § 47; Ga. L. 1991, p. 274, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 1993, p. 1690, § 2; Ga. L. 2010, p. 863, § 3/SB 296; Ga. L. 2012, p. 413, § 4/HB 805.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" in paragraph (b)(2).

The 2012 amendment, effective July 1, 2012, substituted "commissioner of administrative services" for "commissioner of personnel administration" in paragraph (b)(3); and inserted "or she" and "or her" throughout paragraph (b)(6) and subsection (e).

Editor's notes. - Ga. L. 2012, p. 413, § 1/HB 805, not codified by the General Assembly, provides that: "The purpose of this Act is to make conforming amendments and correct references in Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, relative to the abolition of the State Personnel Administration and the transfer of certain functions of such agency to the Department of Administrative Services as provided by a separate Act." The separate Act referred to is Ga. L. 2012, p. 446/HB 642, which became effective July 1, 2012, and which provides for the abolition of the State Personnel Administration and the transfer of functions.

Ga. L. 2012, p. 413, § 13/HB 805, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, only if an Act abolishing the State Personnel Administration and providing for the transfer of certain functions of such agency to the Department of Administrative Services is enacted and becomes effective on that same date; otherwise, this Act shall not become effective and shall stand repealed on July 1, 2012." Ga. L. 2012, p. 446/HB 642, effective July 1, 2012, provides for the abolition of the State Personnel Administration and the transfer of functions.

JUDICIAL DECISIONS

Board finding not reviewable by certiorari. - Since it does not exercise judicial powers, certiorari does not lie to review a finding of the board. Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975), aff'd, 237 Ga. 287 , 227 S.E.2d 379 (1976).

Neither O.C.G.A. § 47-2-120(a) nor O.C.G.A. § 47-2-1 10(a) provides a formula for the calculation of service retirement benefits; the authority to do so rests with the Board of Trustees of the Employees Retirement System of the State of Georgia (ERS) under the general grant of authority in O.C.G.A. § 47-2-21 to effectuate the provisions of the ERS Act, O.C.G.A. § 47-2-1 et seq., including the specific grants of authority found in O.C.G.A. §§ 47-2-26(a) and 47-2-28(a) and (b). Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968); Teachers Retirement Sys. v. City of Atlanta, 249 Ga. 196 , 288 S.E.2d 200 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, § 1253 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 313. 70 C.J.S., Pensions, §§ 10, 12 et seq., 15. 81A C.J.S., States, § 213 et seq.

47-2-22. Election of chairperson and director; actuarial services; application of state system of personnel administration; payment of costs of personnel administration.

  1. The board of trustees shall elect a chairperson from its membership and shall employ a director who shall not be a trustee.
  2. The board of trustees shall engage such actuarial and other services as shall be required to transact the business of the retirement system.
  3. The director and all other employees of the board of trustees shall be governed by such rules of position, classification, appointment, promotion, demotion, dismissal, transfer, qualification, compensation, seniority, privileges, tenure, and other employment standards as may now or hereafter be established under the state system of personnel administration provided for by Chapter 20 of Title 45, including the rules and regulations promulgated by the State Personnel Board.
  4. The board of trustees shall pay its share of the administrative costs of operating the state system of personnel administration in the manner prescribed in Code Section 45-20-4.

    (Ga. L. 1949, p. 138, § 6; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2012, p. 413, § 5/HB 805.)

The 2009 amendment, effective July 1, 2009, substituted "State Personnel Administration" for "State Merit System of Personnel Administration" at the end of subsection (c) and in the middle of subsection (d).

The 2012 amendment, effective July 1, 2012, substituted "chairperson" for "chairman" in subsection (a); substituted "state system of personnel administration provided for by Chapter 20 of Title 45, including the rules and regulations promulgated by the State Personnel Board" for "State Personnel Administration" in subsection (c); and substituted the present provisions of subsection (d) for the former provisions, which read: "The board of trustees shall pay its pro rata share of the administrative costs of operating the State Personnel Administration in the manner prescribed in paragraph (6) of subsection (b) of Code Section 45-20-4."

Editor's notes. - Ga. L. 2012, p. 413, § 1/HB 805, not codified by the General Assembly, provides that: "The purpose of this Act is to make conforming amendments and correct references in Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, relative to the abolition of the State Personnel Administration and the transfer of certain functions of such agency to the Department of Administrative Services as provided by a separate Act." The separate Act referred to is Ga. L. 2012, p. 446/HB 642, which became effective July 1, 2012, and which provides for the abolition of the State Personnel Administration and the transfer of functions.

Ga. L. 2012, p. 413, § 13/HB 805, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, only if an Act abolishing the State Personnel Administration and providing for the transfer of certain functions of such agency to the Department of Administrative Services is enacted and becomes effective on that same date; otherwise, this Act shall not become effective and shall stand repealed on July 1, 2012." Ga. L. 2012, p. 446/HB 642, effective July 1, 2012, provides for the abolition of the State Personnel Administration and the transfer of functions.

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

47-2-23. Treasurer of the board of trustees; manner of payment of funds of the retirement system; surety bond for the treasurer.

There shall be a treasurer of the board of trustees, who shall be appointed by it and subject to its rules and regulations. He shall be the treasurer of the assets of the retirement system. Payments of the funds of the retirement system shall be made by the treasurer only upon vouchers signed by the treasurer and countersigned by one other person designated by the board of trustees. The treasurer of the board of trustees shall furnish to the board of trustees a surety bond of a company authorized to do business in this state in such an amount as shall be required by the board of trustees, provided that if the treasurer is a corporate trustee authorized to do business as such under the laws of this state, the trustees, in their discretion, may decide that no such bond be furnished. The premium on the surety bond shall be paid from the expense fund.

(Ga. L. 1949, p. 138, § 7.)

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 313. 81A C.J.S., States, § 213 et seq.

47-2-24. Designation of medical board; duties.

The board of trustees shall designate a medical board of three physicians who are not eligible to participate in the retirement system. If required, other physicians may be employed to report on special cases. The medical board shall arrange for and pass upon all medical examinations required under this chapter and shall report in writing to the board of trustees its conclusions and recommendations upon all the matters referred to it.

(Ga. L. 1949, p. 138, § 6.)

JUDICIAL DECISIONS

Medical board may examine employee in "special cases." - Legislature empowers the medical board to arrange for the personal medical examination of an employee in "special cases." Cantrell v. State, 129 Ga. App. 465 , 200 S.E.2d 163 (1973), aff'd, 231 Ga. 704 , 203 S.E.2d 493 (1974), overruled in part on other grounds, Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975).

"Special cases" includes when employee contests finding of medical board which limited the board's consideration to the data submitted by the employer. Cantrell v. State, 129 Ga. App. 465 , 200 S.E.2d 163 (1973), aff'd, 231 Ga. 704 , 203 S.E.2d 493 (1974), overruled in part on other grounds, Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Refusing copies of reports to applicant for benefits. - If the medical board of the Employees Retirement System determines that the examining physician has met the criteria of O.C.G.A. § 31-33-2(c) in recommending nondisclosure of medical records, prepared in the evaluation of a claim for disability retirement benefits, it is appropriate to refuse copies of those reports to the applicant who was examined. 1992 Op. Att'y Gen. No. 92-19.

47-2-25. Legal adviser of the board of trustees.

The Attorney General shall be the legal adviser of the board of trustees.

(Ga. L. 1949, p. 138, § 6; Ga. L. 2010, p. 1207, § 65/SB 436.)

The 2010 amendment, effective July 1, 2010, substituted "adviser" for "advisor" in the middle of this Code section.

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-26. Designation of an actuary; duties of actuary; annual valuation of contingent assets and liabilities of the retirement system.

  1. The board of trustees shall designate an actuary who shall be its technical adviser on matters regarding the operation of the funds created under this chapter and who shall perform such duties as are required in that regard.
  2. At least every five years, the actuary shall conduct an actuarial investigation into the mortality, service, and compensation experience of the members and beneficiaries of the retirement system and shall recommend for adoption by the board of trustees mortality, service, and other tables needed in the operation of the system. Taking into account the results of such investigations, the board of trustees shall from time to time adopt for the retirement system such mortality, service, and other tables as it shall deem necessary for use in all calculations required in connection with this retirement system. The board of trustees shall also determine from time to time the rate of regular interest to be used by the retirement system, which rate shall be limited to a minimum of 2 percent.
  3. On the basis of the rate of regular interest and the tables last adopted by the board of trustees, the actuary shall make annual valuations of the contingent assets and liabilities of the retirement system.

    (Ga. L. 1949, p. 138, § 6; Ga. L. 1971, p. 418, § 1; Ga. L. 1983, p. 637, § 1; Ga. L. 2010, p. 1207, § 65/SB 436.)

The 2010 amendment, effective July 1, 2010, substituted "adviser" for "advisor" in the middle of subsection (a).

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

JUDICIAL DECISIONS

Authority to determine service retirement benefits. - Neither O.C.G.A. § 47-2-120(a) nor O.C.G.A. § 47-2-110(a) provides a formula for the calculation of service retirement benefits; the authority to do so rests with the Board of Trustees of the Employees Retirement System of the State of Georgia (ERS) under the general grant of authority in O.C.G.A. § 47-2-21 and more specific grants of authority in O.C.G.A. §§ 47-2-26 and 47-2-28 . Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

OPINIONS OF THE ATTORNEY GENERAL

No "regular interest" accrues while member not in service. - Since contributions and interest are all that accrue to an account of a member of the retirement system, and since Ga. L. 1959, p. 107, § 2 (see O.C.G.A. § 47-2-70(c) ) expressly stated that contributions shall not be made while a member is not in service, it necessarily followed that the word "benefit" must be construed to mean "regular interest." 1971 Op. Att'y Gen. No. 71-26.

47-2-27. Duty of board of trustees to keep data necessary for actuarial valuations; duty to keep records of proceedings; annual report.

  1. The board of trustees shall keep in convenient form such data as shall be necessary for actuarial valuations of the various funds of the retirement system and for checking the experience of the retirement system.
  2. The board of trustees shall keep a record of all of its proceedings, which record shall be open to public inspection. It shall publish annually a report showing the fiscal transactions of the retirement system for the preceding year, the amount of the accumulated cash and securities of the retirement system, and the last balance sheet showing the financial condition of the retirement system by means of an actuarial valuation of the contingent assets and liabilities of the retirement system.

    (Ga. L. 1949, p. 138, § 6.)

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

47-2-28. Simplified tables for estimation of retirement allowances; effect on existing rights and benefits; formula for calculating service retirement allowances.

  1. On and after April 1, 1964, the board of trustees is authorized to adopt simplified benefit tables which will enable a member to estimate his or her retirement allowances. Such tables shall (1) be based on an actuarial study, (2) maintain the actuarial soundness of the retirement system, (3) for those members retiring on and after April 1, 1968, be applied to the member's highest average monthly earnable compensation during a period of 24 consecutive calendar months while a member of the retirement system, and (4) be applicable to all members, provided that the application of such tables shall not reduce or impair the amount of any allowances or benefits to which any person who was a member on April 1, 1964, would have been entitled at that time or would be entitled at any time thereafter under tables or calculations which were in effect at that time or at any time prior thereto or at any time prior to the adoption of such simplified benefit tables.
  2. The regular service retirement allowance payable to a member pursuant to the provisions of this chapter, prior to the application of any minimum benefit formula otherwise provided under this chapter, shall be determined pursuant to the formula adopted from time to time by the board of trustees for such purpose. Such formula shall be uniformly applicable to all members similarly situated. The board of trustees may establish rules and administrative procedures uniformly applicable to all members similarly situated relating to the calculation of such service retirement allowance.

    (Ga. L. 1949, p. 138, § 6; Ga. L. 1959, p. 107, § 6; Ga. L. 1964, p. 119, § 1; Ga. L. 1968, p. 1356, § 4; Ga. L. 1998, p. 1104, § 1; Ga. L. 2005, p. 535, § 5/HB 460; Ga. L. 2010, p. 1207, § 4/SB 436.)

The 2010 amendment, effective July 1, 2010, deleted former subsection (a), which read: "Any other law to the contrary notwithstanding, the board of trustees, for the purpose of administering the social security program, may, with due regard for the actuarial soundness of the retirement system and after an actuarial investigation into its benefit structure, adopt such tables, calculations, and compensation and deduction schedules as it shall deem desirable in connection with the proper operation of the retirement system. All tables, calculations, and compensation and deduction schedules adopted under this Code section shall be based on final monthly earnings, which shall mean monthly earnable compensation as reflected by monthly contributions during employment, except that no salary increase by adjustment in compensation in any manner during the last 12 months, which increase is in excess of 10 percent, shall be included. Such tables and calculations as may be adopted shall not diminish or impair the amount of any allowances or benefits which would have been payable to the member by use of tables or calculations that were in effect on January 1, 1959. The board of trustees may also, from time to time, establish rules and regulations for the administration of the funds created under this chapter and for the transaction of its business."; and redesignated former subsections (b) and (c) as present subsections (a) and (b), respectively.

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

JUDICIAL DECISIONS

Authority to determine service retirement benefits. - Neither O.C.G.A. § 47-2-120(a) nor O.C.G.A. § 47-2-110(a) provides a formula for the calculation of service retirement benefits; the authority to do so rests with the Board of Trustees of the Employees Retirement System of the State of Georgia (ERS) under the general grant of authority in O.C.G.A. § 47-2-21 and more specific grants of authority in O.C.G.A. §§ 47-2-26 and 47-2-28 . Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

OPINIONS OF THE ATTORNEY GENERAL

Court reporter makes employee contributions. - Employee contributions to the retirement system must be made by court reporter for appellate courts. 1970 Op. Att'y Gen. No. U70-87.

47-2-29. Postretirement benefit adjustments.

  1. On a date to be established by the board of trustees, but not before April 1, 1967, the board of trustees is authorized to adopt a method of providing for postretirement benefit adjustments for the purpose of maintaining essentially no less purchasing power for a beneficiary in his postretirement years. Such method shall be based upon:
    1. Recommendation of the actuary for the board of trustees;
    2. Maintaining the actuarial soundness of the retirement system;
    3. Its application to the retirement income of members retiring on or after the adoption of such method by the board of trustees; and
    4. Any additional contribution by the member in an amount not to exceed one-fourth of 1 percent of his monthly earnable compensation.

      This Code section shall also be applicable to those members retiring before April 1, 1967.

  2. Notwithstanding any other provision of this Code section, no member who becomes a member of this retirement system on or after July 1, 2009, shall be entitled to receive any postretirement benefit adjustment.

    (Ga. L. 1967, p. 751, § 3; Ga. L. 1968, p. 1356, § 3; Ga. L. 1971, p. 339, § 1; Ga. L. 1988, p. 1482, § 1; Ga. L. 2009, p. 320, § 2/HB 452; Ga. L. 2010, p. 1207, § 5/SB 436.)

The 2009 amendment, effective July 1, 2009, added subsection (c).

The 2010 amendment, effective July 1, 2010, deleted former subsection (b), which read: "(b)(1) Effective July 1, 1988, the monthly retirement benefit of each beneficiary who was receiving a benefit on July 1, 1981, shall be increased by:

"(A) One dollar for each full year of creditable service, other than creditable service based on forfeited annual and sick leave and creditable service resulting from any projection of service under the provisions of this chapter, which the member had at the time of retirement; plus

"(B) One dollar for each full year which has elapsed from the date of retirement until July 1, 1981,

"provided that, if a beneficiary is receiving a monthly benefit exceeding $1,500.00 on July 1, 1988, no increase shall be granted to such beneficiary under this paragraph nor shall any portion of such increase be granted to a beneficiary which would cause such beneficiary's total monthly benefit as of July 1, 1988, to exceed $1,500.00.

"(2) When the postretirement benefit adjustment provided by this subsection has been granted, there shall be no further postretirement benefit adjustments pursuant to the authority of this subsection."; and redesignated former subsection (c) as present subsection (b).

Editor's notes. - Ga. L. 2009, p. 320, § 1, not codified by the General Assembly, provides that: "The General Assembly is desirous of providing an established annual cost-of-living adjustment to all current active and retired members of the Employees' Retirement System of Georgia, the Georgia Legislative Retirement System, and the Georgia Judicial Retirement System. In order to do so, limiting future liability of the systems by adjusting the retirement expectations of persons who are newly employed is a regrettable but necessary step toward fiscal soundness."

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

OPINIONS OF THE ATTORNEY GENERAL

Appropriations Act may not place ceiling on adjustment. - General Assembly cannot, solely through language in an appropriations Act, place a ceiling or limit on the amount of a cost-of-living increase granted to a retiree of the Employees' Retirement System or Teachers Retirement System. 1984 Op. Att'y Gen. No. 84-19.

47-2-30. Deposits of cash available for disbursements for benefits and other payments.

For the purpose of meeting disbursements for pensions, annuities, and other payments, cash may be kept available on deposit in one or more banks or trust companies organized under the laws of this state or of the United States, provided that the sum on deposit in any one bank or trust company shall not exceed 25 percent of the paid up capital and surplus of each bank or trust company; and provided, further, that each bank or trust company shall either give a depository bond in an amount sufficient to cover the deposits or place in trust a sufficient amount of federal or state securities to cover the deposits.

(Ga. L. 1949, p. 138, § 7.)

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

47-2-31. Investment powers; power to employ agents as investment advisers and to make investments.

  1. The board of trustees shall be the trustees of the funds and shall have full power to invest and reinvest the assets of the retirement system and to purchase, hold, sell, assign, transfer, and dispose of any securities and other investments in which assets of the retirement system have been invested, any proceeds of any investments, and any money belonging to the retirement system; provided, however, that such power shall be subject to all terms, conditions, limitations, and restrictions imposed by Article 7 of Chapter 20 of this title, the "Public Retirement Systems Investment Authority Law."
  2. The board of trustees is authorized to employ agents, including, but not limited to, banks or trust departments, and to contract with such agents for their services as investment advisers and counselors who will make recommendations for investments and make investments, if the board of trustees so authorizes.

    (Ga. L. 1949, p. 138, § 7; Ga. L. 1963, p. 546, § 1; Ga. L. 1968, p. 1356, § 5; Ga. L. 1995, p. 651, § 1; Ga. L. 2000, p. 2, § 4; Ga. L. 2005, p. 535, § 6/HB 460; Ga. L. 2006, p. 93, § 1/SB 466.)

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968); Teachers Retirement Sys. v. City of Atlanta, 249 Ga. 196 , 288 S.E.2d 200 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Board may make legal loans. - Retirement system, having the same investment powers as domestic insurers pursuant to Ga. L. 1963, p. 546, § 1 (see O.C.G.A. § 47-2-31 ), may make such loans (so long as the limitations of Ga. L. 1960, p. 289, § 1 (see O.C.G.A. § 33-11-25(a)(1)(D)) are observed), as the board of trustees so desires. 1963-65 Op. Att'y Gen. p. 385.

47-2-32. Personal interest in gains or profits from investments made by the board of trustees; unauthorized use of assets of the retirement system.

Except as otherwise provided in this chapter, no trustee or employee of the board of trustees shall have any personal interest in the gains or profits from any investment made by it or use in any manner, directly or indirectly, for himself or as an agent, the assets of the retirement system, except to make such payments as are authorized by the board of trustees in accordance with this chapter.

(Ga. L. 1949, p. 138, § 7.)

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

47-2-33. Plan year designated.

For purposes of complying with federal Internal Revenue Service rules and regulations, the plan year for this retirement system shall be the 12 month period beginning on July 1 of each year.

(Code 1981, § 47-2-33 , enacted by Ga. L. 2009, p. 947, § 13/HB 202.)

Effective date. - This Code section became effective May 11, 2009.

ARTICLE 3 EMPLOYEE AND EMPLOYER CONTRIBUTIONS AND CREATION OF FUNDS FOR CONTRIBUTIONS, BENEFITS, AND ADMINISTRATIVE EXPENSES

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, § 1169 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 313. 81A C.J.S., States, § 213 et seq.

ALR. - Validity of statute or ordinance providing for pensions for municipal employees, 37 A.L.R. 1162 .

47-2-50. Funds in which assets of the retirement system to be held.

All the assets of the retirement system shall be credited, according to the purpose for which they are held, among three funds, to be known as the "annuity savings fund," the "pension accumulation fund," and the "expense fund."

(Ga. L. 1949, p. 138, § 8; Ga. L. 1973, p. 900, § 2.)

47-2-51. Annuity savings fund and employee contributions; deductions; effect of default with respect to employer contributions; payments, withdrawal, or transfer of funds.

  1. The annuity savings fund shall be the fund in which shall be accumulated the contributions deducted from the compensation of members in order to provide for their annuities. Contributions to and payments from the annuity savings fund shall be made as follows:
    1. Each employer shall cause 5 percent of the earnable compensation to be deducted from the salary of each member for each and every payroll period; but the employer shall not have any such deduction taken from the compensation of a member who elects not to contribute if he has attained 65 years of age or has completed 35 or more years of service. In determining the amount earnable by a member in a payroll period, the employer may consider the annual rate of compensation payable to such member on the first day of the payroll period as continuing throughout such payroll period, and it may omit the deduction from compensation for any period less than a full payroll period if the employee was not a member on the first or last day of the payroll period. In order to facilitate the making of deductions, the employer may modify the deductions required of any member but not by more than one-tenth of 1 percent of the annual compensation from which such deductions are to be made. Each employer shall immediately pay amounts deducted to the board of trustees, in such manner as the board of trustees shall prescribe, which amounts shall be credited by the board of trustees to the member's account in the annuity savings fund. Beginning July 1, 1980, the employee contributions required under this chapter shall be paid as provided in Code Section 47-2-54;
    2. The deductions under paragraph (1) of this subsection shall be made notwithstanding that the minimum compensation provided for by law for any member shall be reduced thereby. Every member shall be deemed to consent and agree to the deductions made under paragraph (1) of this subsection; and payment of salary or compensation less such deductions shall be a full and complete discharge and acquittance of all claims and demands whatsoever for the services rendered by such person during the period covered by such payment, except as to the benefits provided under this chapter;
    3. In addition to the contributions deducted from the compensation of members under paragraph (1) of this subsection and subject to the approval of the board of trustees and such conditions as it may prescribe, any member may redeposit in the annuity savings fund, by a single payment or by an increased rate of contribution, all or any part of amounts that were previously withdrawn from it under this chapter; and
    4. Notwithstanding paragraphs (1) through (3) of this subsection, no deductions shall be made from a member's salary if the employer's contribution as to such member is in default.
  2. The accumulated contributions of a member, which contributions are withdrawn by him or are payable in the event of his death, shall be paid from the annuity savings fund. Upon the retirement of a member, his accumulated contributions shall be transferred from the annuity savings fund to the pension accumulation fund.

    (Ga. L. 1949, p. 138, § 8; Ga. L. 1973, p. 900, § 3; Ga. L. 2000, p. 131, § 1; Ga. L. 2019, p. 783, § 1/SB 55.)

The 2019 amendment, effective July 1, 2019, in paragraph (a)(3), substituted "amounts that were previously withdrawn from it under this chapter; and" for "amounts that he previously withdrew from it under this chapter; or, subject to such approval and conditions, any member may deposit therein, by a single payment or by an increased rate of contribution, an amount computed to be sufficient to purchase an additional annuity which, together with his prospective retirement allowance, will provide for him a total retirement allowance of not more than one-half of his average final compensation, provided that for this purpose a member shall be deemed to have retired at age 65 and amounts earned after reaching that age shall not be included in average final compensation. Such additional amounts so deposited shall become a part of the member's accumulated contributions, provided that upon retirement they shall be treated as excess contributions returnable to the member as an annuity of equivalent actuarial value and shall not be considered in computing the pension; and".

OPINIONS OF THE ATTORNEY GENERAL

When member eligible to cease contributions. - Member of the retirement system who has attained 34 years of creditable service, and who is eligible for service retirement and the projection-in-service factor, regardless of age, may elect to cease making contributions to the retirement system, and any member who has continued making contributions after attaining 34 years of creditable service under the assumption that this was required by law would be eligible, upon the member's election and request, to be refunded the excess contributions made after the attainment of the member's thirty-fourth year of service. 1978 Op. Att'y Gen. No. 78-47.

Section applicable beginning 1974. - Provisions of this statute, which authorizes the board of trustees to raise the rate of contribution by the employer, are applicable to members of the retirement system who elect to retire with a retirement commencement date of July 1, 1974. 1974 Op. Att'y Gen. No. 74-47 (rendered under Ga. L. 1974, p. 1177, § 2).

47-2-51.1. Supplemental Guaranteed Lifetime Income annuities.

  1. For the purposes of this Code section, the term:
    1. "401(k) plan" means the State of Georgia Employees' Qualified Trust Deferred Compensation Plan.
    2. "457(b) plan" means the State of Georgia Employees' Deferred Compensation Plan.
    3. "Contingent annuitant" means an individual designated by an eligible retired member to receive survivor's benefits from an SGLI annuity.
    4. "Eligible retired member" means an individual in retirement, whether retirement is service based or due to disability, who has at least ten years of creditable service or five years of creditable service if such retired member became a member before July 1, 1968, provided that such individual has not elected a partial lump sum distribution under option six pursuant to subsection (e.4) of Code Section 47-2-121.
    5. "SGLI annuity" means a Supplemental Guaranteed Lifetime Income annuity established by the board of trustees pursuant to this Code section.
  2. On or after January 1, 2021, subject to the approval of the board of trustees and such conditions as it may prescribe and the applicable requirements of the federal Internal Revenue Code, the 401(k) plan, the 457(b) plan, and the provisions of this Code section, an eligible retired member may transfer some or all account funds from his or her 401(k) plan or 457(b) plan into an account under the Employees' Retirement System of Georgia in order to purchase an SGLI annuity, which shall supplement the member's retirement allowance under this chapter.
  3. An eligible retired member may only purchase up to two SGLI annuities and may only purchase an SGLI annuity during the period of time beginning on the commencement date of such member's retirement allowance under this chapter and ending on December 31 of the calendar year in which such member attains age 70 or in which such member's retirement allowance commences, whichever is later.
  4. An SGLI annuity shall commence on the first day of the month in which both the eligible retired member's written application and purchase amount are received by the board of trustees.
  5. An eligible retired member's election to purchase an SGLI annuity shall be irrevocable upon the retirement system's issuance of the first monthly payment of the SGLI annuity.
    1. An eligible retired member may only purchase an SGLI annuity by transferring at least $25,000.00 in aggregate from his or her 401(k) plan or 457(b) plan.
      1. Such transferred amounts shall be actuarially converted to a monthly annuity for the retired member's lifetime only as described in Code Section 47-2-120.
      2. The actuarial assumptions used to determine the actuarial cost of an SGLI annuity shall be those recommended by the retirement system's actuary and approved by the board of trustees. Such actuarial assumptions may be changed from time to time upon approval of the board of trustees.
      3. The intent of this paragraph is to provide that an eligible retired member shall pay for the entire actuarial cost of an SGLI annuity.
    1. Provided that the applicable terms of the 401(k) plan or the 457(b) plan permit such use, and subject to any applicable conditions or limitations on such use, an eligible retired member may transfer some or all of his or her 401(k) plan or 457(b) plan account funds to the annuity savings fund established pursuant to Code Section 47-2-51 in order to purchase an SGLI annuity.
    2. Any such transfer shall be in compliance with the provisions of Section 401(a)(31) of the federal Internal Revenue Code and shall be recorded in the eligible retired member's SGLI annuity record.
    3. All of an eligible retired member's funds transferred to the annuity savings fund shall be expended in full as the purchase amount for the SGLI annuity.
    4. An eligible retired member shall not be permitted to purchase an SGLI annuity with funds that are not transferred from such member's 401(k) plan or 457(b) plan account.
    1. The sum of an eligible retired member's retirement allowance calculated as a monthly annuity for such member's lifetime as of the commencement date of such retirement allowance and any SGLI annuities calculated as a monthly annuity for such member's lifetime shall not exceed 90 percent of his or her highest month of earnable compensation. An eligible retired member shall not be permitted to purchase an SGLI annuity that would cause such 90 percent limit to be exceeded.
    2. If such limited amount exceeds the limits of Section 415(b) of the federal Internal Revenue Code, such excess shall be paid from the Supplemental Retirement Benefit Plan authorized by the board of trustees, which provides for benefit payments in excess of such Section 415(b) limitations.
    1. An eligible retired member shall elect how to receive an SGLI annuity, either as an annuity for the retired member's lifetime only or as any of the optional forms of payment specified in Code Section 47-2-121 with the exception of option six under subsection (e.4) of such Code section, even if the annuity payment option selected for the SGLI annuity is different from that elected by the member with respect to his or her retirement allowance under this chapter.
    2. The SGLI optional form calculation shall be based on the age of the eligible retired member and such member's contingent annuitants, if applicable, as of the commencement date of the SGLI annuity.
    3. An eligible retired member may elect an SGLI annuity that permits a refund of the balance of the purchase amount to the member's contingent annuitants or estate in the event the retired member and his or her contingent annuitants, if applicable, die prior to receiving total SGLI annuity payments that equal or exceed the SGLI annuity purchase amount. Unless the terms of the SGLI annuity form as elected by an eligible retired member provide for such refund, no part of the SGLI purchase amount shall be refunded or paid to any person, estate, or other entity upon the death of the retired member or any contingent annuitant.
    1. An SGLI annuity shall be subject to increases and decreases in the monthly annuity amount payable based on the form and terms of the SGLI annuity purchased by the retired member.
    2. SGLI annuities shall not be eligible for ad hoc or other postretirement benefit increases approved by the board of trustees, including cost-of-living adjustments, pursuant to Code Section 47-2-29.
    3. No interest shall be paid on amounts transferred to the annuity savings fund for purposes of purchasing an SGLI annuity.
    1. An eligible retired member who elects to purchase an SGLI annuity shall not be permitted to receive a partial lump sum distribution under option six pursuant to subsection (e.4) of Code Section 47-2-121.
    2. Any requirements under this chapter relating to suspension of benefits for rehired retirees shall not apply to SGLI annuity payments.
    3. No additional creditable service shall be granted for any purpose under this chapter as a result of the transfer of any funds from a 401(k) plan or 457(b) plan for the purchase of an SGLI annuity; nor shall such purchase otherwise be considered in computing a member's retirement allowance.
  6. Any other provision of law notwithstanding, the board of trustees may suspend issuance of new SGLI annuities at any time. Such a suspension shall be prospective in operation and shall not affect SGLI annuities already in effect. Following such a suspension, the board of trustees in its discretion may reinstate the issuance of SGLI annuities at any time.
    1. The administration of the SGLI annuity requires that SGLI purchase costs vary from time to time and members shall not have any right to any particular purchase price.
    2. SGLI annuity payments shall be subject to the minimum distribution rules of federal Internal Revenue Code Section 401(a)(9). (Code 1981, § 47-2-51.1 , enacted by Ga. L. 2019, p. 783, § 2/SB 55.)

Effective date. - This Code section became effective July 1, 2019.

U.S. Code. - Section 415(b) of the federal Internal Revenue Code, referred to in this Code section, is codified at 26 U.S.C. § 415 and concerns the limitations on benefits and contributions under qualified plans.

47-2-52. Employer's duty to deduct and report employee contributions; duty of chief fiscal officer to remit employee contributions; effect of failure to comply.

Each employer responsible for the payment of compensation to contributing members shall deduct and collect from each member's salary the employee contributions required under the retirement system and shall make a monthly report of such actions in such manner and form as are required by the chief fiscal officer of his employer. Such deductions may be made from future payments or reimbursement check to the employer. It shall be the duty of the chief fiscal officer of each employer to make monthly remittance of employees' contributions to the board of trustees. Should any employer fail to collect employee contributions or to make reports as required in this Code section, the appropriate employer shall withhold all funds allotted to such employer until he has fully complied with this Code section.

(Ga. L. 1949, p. 138, § 13.)

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968).

47-2-53. Effect of failure of any employee, employer, or reporting official to make contributions or to make reports with respect to employment and membership.

Any other provisions of law to the contrary notwithstanding, if any employee, his employer, or the designated reporting official fails to make such reports properly as are required under this chapter with respect to employment or membership or to make contributions, the board of trustees, after having exhausted all administrative efforts to obtain such reports or contributions, is authorized to and shall declare null and void any and all benefits which would have otherwise accrued to the employee if the proper reports and contributions had been made, provided that those contributions which had been previously credited to the individual's annuity savings fund shall be forthwith refunded. In addition, such individual shall no longer be a member nor henceforth be eligible for membership.

(Ga. L. 1961, p. 143, § 6; Ga. L. 1973, p. 900, § 10.)

47-2-54. Payment of state employee contributions on behalf of employees; inclusion of contributions in compensation for determining benefits; adjustment in compensation of state employees; "pick-up" contributions.

  1. As used in this Code section, the term "member" shall not include a member who, prior to July 1, 1980, elected to cease making contributions to the retirement system.
  2. On and after July 1, 1980, each employer shall pay to the retirement system, on behalf and to the credit of each member during each and every payroll period (1) the employee membership contributions specified in Code Section 47-2-51 for membership service acquired after June 30, 1980, and (2) the group term life insurance contributions required under Code Section 47-2-128 for group term life insurance coverage, except that each employer shall continue to cause to be deducted from the earnable compensation of each member for each and every payroll period one-half of 1 percent of his earnable compensation.
  3. Of the one-half of 1 percent deducted from the earnable compensation of members, one-quarter of 1 percent shall be credited to each member's account in the annuity savings fund, and the remaining one-quarter of 1 percent shall be credited to the group term life insurance fund, as provided in Code Section 47-19-10, in lieu of the deduction required under Code Section 47-2-128. If a member is not covered by group term life insurance, the entire one-half of 1 percent deducted from his earnable compensation shall be credited to his individual account in the annuity savings fund.
  4. The monthly employee contributions made by the employer on behalf of any member under this Code section shall be used in the computation of the member's earnable compensation for the purpose of computing retirement benefits and group term life insurance payments, if applicable.
  5. All members shall retain, have, and be subject to all other rights, privileges, obligations, and duties specified by other provisions of this chapter; and all such other provisions shall remain of full force and effect with respect to any matter not specifically provided for in this Code section.
  6. With respect to members covered by Code Section 47-2-244, the employers shall pay employee contributions on the same basis as under subsection (b) of this Code section. Such members shall continue to have deducted from their earnable compensation the additional amount of employee contributions required by Code Section 47-2-244.
  7. With respect to any persons who have retired or who will retire under Code Section 47-2-244, the contributions paid under subsection (e) of this Code section shall be included in current salary and used for the purpose of computing the monthly retirement benefits under Code Section 47-2-244 and for the purpose of computing group term life insurance payments, if applicable. The monthly retirement benefit of each person who retired before July 1, 1980, shall be increased accordingly, effective July 1, 1980.
  8. This Code section shall not apply to city or county officials or employees who are members of the retirement system but who are considered state employees only for the purpose of membership in the retirement system, provided that this Code section shall apply to officials and employees of county boards of health who are members of the retirement system.
  9. It is determined by the General Assembly of Georgia that an adjustment in the compensation of state employees is necessary to assure the future actuarial soundness of the Employees' Retirement System of Georgia and to preserve and protect the fiscal integrity of the Employees' Retirement System of Georgia so as to ensure the future payment of retirement benefits and allowances to those entitled to same. Therefore, in addition to the employee membership contributions required by subsections (b) and (c) of this Code section, from and after July 1, 1982, as an adjustment in compensation, each employer shall cause to be deducted from the earnable compensation of each member for each and every payroll period an additional 1 percent of such earnable compensation. This additional 1 percent deducted from the earnable compensation of members shall be paid monthly to the board of trustees and shall be credited to the individual accounts of the members in the annuity savings fund. This subsection shall not be construed and is not intended so as to have any effect whatsoever on any amounts of contributions paid to any retirement system other than the Employees' Retirement System of Georgia.
  10. The employee contributions described in this Code section that are credited to the member's annuity savings account, although designated as employee contributions, are being paid by the employer as "pick-up" contributions in accordance with Section 414(h) of the federal Internal Revenue Code. As such, these contributions are mandatory and no member is entitled under any circumstances to receive such contributions in cash in lieu of having them contributed to the retirement system. Such contributions shall be 100 percent vested for all purposes under the retirement system.

    (Ga. L. 1980, p. 925, § 3; Ga. L. 1982, p. 3, § 47; Ga. L. 1982, p. 1163, §§ 1, 3; Ga. L. 1985, p. 209, § 1; Ga. L. 2007, p. 176, § 1/HB 448; Ga. L. 2009, p. 947, § 14/HB 202.)

The 2009 amendment, effective May 11, 2002, added subsection (j).

OPINIONS OF THE ATTORNEY GENERAL

Purpose of 1980 amendment. - The 1980 amendment to this and related sections was enacted, in part, to provide state employees with increases in disposable income through the employer's payment of most of the employee contributions to the Employees' Retirement System. Rather than making this contribution personally, a state employee will, subsequent to July 1, 1980, take home most of the amount of the employee's previous employee contributions. 1980 Op. Att'y Gen. No. 80-91.

Eligible members discontinuing contributions entitled to salary increase. - Members of the Employees' Retirement System who attain 34 years of creditable service and elect to discontinue employee contributions during the 1981 fiscal year are entitled to an 8 percent salary increase at the time of such discontinuance, payable from funds appropriated for such purpose by the 1981 Appropriations Act (Ga. L. 1980, p. 1799). 1980 Op. Att'y Gen. No. 80-91.

47-2-55. Pension accumulation fund; purposes; employer contributions; crediting of interest and dividends earned on funds of the retirement system.

The pension accumulation fund shall be the fund in which shall be held the reserves for all annuities in force and from which shall be paid all annuities and all benefits in lieu of annuities under this chapter. If a beneficiary is restored to membership, his or her annuity reserve shall be transferred from the pension accumulation fund to his or her individual account in the annuity savings fund. The pension accumulation fund shall also be the fund in which are accumulated all reserves for the payment of all pensions and other benefits payable from contributions made by employers and from which are paid all such pensions and other benefits. Employer contributions shall consist of a percentage of the earnable compensation of members, to be known as the "normal cost contribution," and an additional percentage of such earnable compensation, to be known as the "unfunded accrued liability contribution." These contributions shall be borne by appropriations from state and federal funds. The percentage rate of each portion of the employer contribution shall be fixed on the basis of the liabilities of the retirement system, as shown by actuarial valuation, as provided for in subsection (b) of Code Section 47-2-26, subject to the provisions of Code Section 47-20-10. All interest and dividends earned on the funds of the retirement system shall be credited to the pension accumulation fund. Once each year the board of trustees shall transfer from the pension accumulation fund to the annuity savings fund such amounts as are sufficient to allow regular interest on the balances of the individual accounts of members in the annuity savings fund.

(Ga. L. 1949, p. 138, § 8; Ga. L. 1964, p. 119, § 2; Ga. L. 1973, p. 900, §§ 5, 6, 7, 10; Ga. L. 2005, p. 535, § 7/HB 460; Ga. L. 2006, p. 93, § 1/SB 466.)

OPINIONS OF THE ATTORNEY GENERAL

Employer's contribution not refunded if employee terminated during probation. - Employer's contribution to the retirement system may not be refunded if the employee resigns or is otherwise terminated during the employee's probationary period. 1974 Op. Att'y Gen. No. 74-55.

47-2-56. Maintenance of annuity and pension reserves and payment of benefits under this chapter as obligations of the pension accumulation fund; permissible uses of assets of the fund.

The maintenance of annuity reserves and pension reserves, the crediting of regular interest to the annuity savings fund under Code Section 47-2-55, and the payment of all pensions, annuities, retirement allowances, refunds, and other benefits granted under this chapter shall be obligations of the pension accumulation fund, except as provided in paragraph (3) of subsection (c) of Code Section 47-2-128. All assets of the pension accumulation fund and all income, interest, and dividends derived from deposits and investments shall be used for the payment of such obligations and for no other purposes.

(Ga. L. 1949, p. 138, § 11; Ga. L. 1973, p. 900, § 9; Ga. L. 1991, p. 130, § 1.)

47-2-57. Certification of normal cost and unfunded accrued liability contribution rates to employers; provision in employer's budget for employer contributions.

On or before June 1 of each year, the normal cost and unfunded accrued liability contribution rates, as determined on the basis of the last actuarial valuation, shall be certified by the board of trustees to the director or chief administrative officer of each employer having members in its employ. Each such employer shall make provision in its annual budget for funds with which to pay to the board of trustees an amount equal to the normal cost contributions and the unfunded accrued liability contributions on the earnable compensation of all contributing members under their administration and for an additional amount as expense for the operation of the retirement system.

(Ga. L. 1949, p. 138, § 8; Ga. L. 1973, p. 900, § 10; Ga. L. 2005, p. 535, § 8/HB 460.)

47-2-58. Commencement date for contributions to retirement system.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 6, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1949, p. 138, § 8; Ga. L. 1973, p. 900, § 10.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-59. Effective date of chapter; effect of budget appropriations on obligation of state agency or other employer to make contributions.

This chapter shall become effective on February 3, 1949, but neither a state agency nor any other employer or member shall be obligated to make contributions for the pensions and annuities under this chapter until after that agency or other employer has made provision in its annual budget for funds for the contribution of its part of such pensions and annuities.

(Ga. L. 1949, p. 138, § 16.)

47-2-60. Expense fund; purposes.

The expense fund shall be the fund to which shall be credited state or federal funds, or both, to pay the administrative expense of the retirement system and from which shall be paid all expenses incurred in the administration and operation of the retirement system.

(Ga. L. 1949, p. 138, § 8; Ga. L. 1973, p. 900, § 10.)

ARTICLE 4 MEMBERSHIP IN THE RETIREMENT SYSTEM

47-2-70. Determination of membership; termination of membership.

  1. After January 1, 1950, any person who becomes an employee of any employer which operates under a merit system of personnel administration and which is covered by the retirement system shall become a member of the retirement system as a condition of his or her employment, except as otherwise specifically excluded.
  2. The membership of any person shall terminate if he or she retires under this retirement system, withdraws his or her contributions, or renders less than one year of service within a period of five consecutive years as a member. No benefit under the retirement system shall accrue to a member's account while he or she is not in service as an employee and no contribution shall be made to the retirement system by the member, the state, or any other employer during any such time.
  3. The board of trustees may continue the membership of any person while such person is on leave of absence with stipend for professional training when such leave is approved in writing by the employer for which the employee renders service, provided that a member who receives a stipend while on leave for professional training shall make a monthly contribution to the retirement system, which contribution shall be the same basic percentage of his or her salary as an employee as he or she contributed in the last month prior to the effective date of leave. A member shall be considered as being in service while on such leave.

    (Ga. L. 1949, p. 138, § 3; Ga. L. 1951, p. 394, § 2; Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 2; Ga. L. 1959, p. 107, § 2; Ga. L. 2010, p. 1207, § 7/SB 436.)

The 2010 amendment, effective July 1, 2010, inserted "or her" near the end of subsection (a); deleted former subsection (b), which read: "Any person who was an employee during the fiscal year ending June 30, 1949, or who becomes an employee prior to January 1, 1950, shall become a member unless prior to January 1, 1950, he files with the board of trustees, on a form provided by it, a notice of his election not to be included in the membership of the retirement system, together with a duly executed waiver of all present and prospective benefits which would otherwise accrue to him by participating in the retirement system. Such an employee may thereafter apply for and be admitted to membership, but without credit for service rendered after July 1, 1949, and prior to the time he becomes a member and without prior service credit, unless he pays into the retirement system the amount of deductible contributions that would have been paid by such member together with interest on such amount equal to the amount of interest earned by the retirement system at 31/2 percent per annum had the amounts been paid in during the period. Upon making such payments, he shall be entitled to all service credits from the year 1949."; redesignated former subsections (c) and (d) as present subsections (b) and (c), respectively; in present subsection (b), inserted "or she" twice and inserted "or her" in the first sentence; and, in the first sentence of present subsection (c), inserted "or her" and inserted "or she".

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

OPINIONS OF THE ATTORNEY GENERAL

Governor's office is statutorily covered agency. - All officials and employees of any state department or agency are included within the Employees' Retirement System of Georgia, whether such officials and employees are in the classified or unclassified service; the Governor's office would be includable as a department or agency within the meaning of Ga. L. 1949, p. 138 et seq. 1973 Op. Att'y Gen. No. 73-39.

Historic Chattahoochee Commission is not a statutorily covered agency within the meaning of Ga. L. 1949, p. 138 et seq. 1979 Op. Att'y Gen. No. 79-14.

Department of Education employees included. - Under existing law, current and future employees of the State Department of Education must be included within the membership of the Employees' Retirement System of Georgia. 1983 Op. Att'y Gen. No. 83-2.

Since the employees of the State Department of Education are employed within a state board or department, the mandatory inclusion under the Employees' Retirement System in O.C.G.A. § 47-2-70 completely supplanted and repealed by implication any inclusion of such employees under the definition of "teacher" in O.C.G.A. § 47-3-1(28) . 1983 Op. Att'y Gen. No. 83-2.

Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 2 (see O.C.G.A. § 47-2-70 ) does not apply to Ga. L. 1953, Nov.-Dec. Sess., p. 305, §§ 1-5 (see O.C.G.A. § 47-2-290 ). 1957 Op. Att'y Gen. p. 225.

Interest should not accrue when member out of service. - Interest should not accrue to member's account while member is not in service as employee. 1971 Op. Att'y Gen. No. 71-26.

Former member cannot claim increase by law authorizing additional benefits. - Primary "object" or purpose of the language in subsection (c) of this statute is to prevent a former member presently receiving a retirement benefit from claiming increased benefits as a result of an amendment to the law authorizing such additional benefits to existing members; this was not intended to prevent a former member from obtaining service credits or benefits which one is rightfully entitled to prior to one's retirement, but which one never receives by virtue of an honest mistake or error in one's records. 1976 Op. Att'y Gen. No. 76-58 (see O.C.G.A. § 47-2-70 ).

Provision in subsection (c) of this statute, that no benefit under the retirement system shall accrue to a member's account while the member is not in service as an employee, was intended to prevent a former member presently receiving a retirement benefit from claiming increased benefits as a result of any amendment to the law authorizing additional or increased benefits for existing members. 1977 Op. Att'y Gen. No. 77-24 (see O.C.G.A. § 47-2-70 ).

Right to receive a retirement allowance after 25 years of service, provided for in O.C.G.A. § 47-2-120(e) , is not a new "benefit" that has accrued and is not proscribed by subsection (c) of O.C.G.A. § 47-2-70 . 1999 Op. Att'y Gen. No. 99-10.

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1197 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq. 81A C.J.S., States, § 216.

47-2-70.1. Employees of new state agencies.

  1. As used in this Code section, the term:
    1. "Employee" means full-time officers and employees of a new state agency; provided, however, that such term shall not mean an individual classified by an employer as an independent contractor or a leased employee within the meaning of Section 414(n) of the Internal Revenue Code, even if such individual is later reclassified by the Internal Revenue Service as a common law employee.
    2. "Employer" means a new state agency paying the compensation of an employee.
    3. "New state agency" means any department, division, board, bureau, commission, institution, or other agency of the state or any state public authority which first becomes established or active on or after July 1, 1992.
    4. "State public authority" means any public authority or public corporation created by general law to carry out state purposes or functions, and the term does not include public authorities created by general law to carry out purposes or functions within or on behalf of counties, municipalities, or other political subdivisions and which are activated by action of individual political subdivisions.
  2. Except as otherwise provided by subsection (c) of this Code section, the employees of a new state agency shall be members of the retirement system as a condition of employment without the necessity of any further amendment to this chapter to include specifically such employees as members of the retirement system.  The employers of such employees shall have the same duties and obligations that are applicable to other employers under the retirement system.  The employees of new state agencies shall be subject to the provisions of Code Section 47-2-334, except that if a member of the retirement system becomes an employee of a new state agency without any break in service, the member shall retain the same status which the member possessed at the time of becoming an employee of the new state agency.
  3. If the law which establishes or activates a new state agency prohibits officers or employees of the new state agency from being members of the retirement system or limits membership to specified officers or employees of the new state agency, then the provisions of such law shall control over the provisions of subsection (b) of this Code section.
    1. As used in this subsection, the term:
      1. "Corporation" means the Georgia Lottery Corporation created by Code Section 50-27-4 .
      2. "Section 401(k) plan" means the deferred compensation plan offered by the state for public employees pursuant to Section 401(k) of the federal Internal Revenue Code on July 1, 1998, as now or subsequently amended.
      3. "Termination date" means the earlier of:
        1. The date on which the corporation receives a favorable ruling from the federal Internal Revenue Service as to the corporation's participation in the Section 401(k) plan; or
        2. The date on which the corporation establishes a tax qualified retirement plan for its officers and employees.
    2. Notwithstanding the provisions of subsection (c) of this Code section, no person employed as an officer or employee of the corporation on or after the termination date shall be a member of this retirement system. Any member who on the termination date is a member of this retirement system may make an irrevocable election to retain membership in this retirement system by notifying the board of trustees in writing not later than 60 days following the termination date. Any person who so elects to remain a member of this retirement system shall not be eligible to participate in any tax qualified retirement plan offered by such corporation.
    3. If the corporation participates in the Section 401(k) plan, it shall not be authorized to maintain for its officers and employees any tax qualified retirement plan other than the plan qualified under Section 457 of the federal Internal Revenue Code on July 1, 1998.
    4. The corporation's participation in either the Section 401(k) plan or any tax qualified retirement plan maintained by the corporation shall be subject to the following conditions:
      1. The maximum percentage of a participant's annual salary which the corporation may pay into the plan for or on behalf of the participant shall not exceed 7 1/2 percent; and
      2. Each participant shall have a vested interest in employer contributions in accordance with the schedule in the subaccount of the Section 401(k) plan providing for employer contributions which is in existence on July 1, 1998, as now or hereafter amended. (Code 1981, § 47-2-70.1 , enacted by Ga. L. 1992, p. 2176, § 1; Ga. L. 1998, p. 773, § 1; Ga. L. 2009, p. 947, § 15/HB 202.)

The 2009 amendment, effective May 11, 2009, added the proviso at the end of paragraph (a)(1).

47-2-71. Membership in Employees' Social Security Coverage Group.

  1. Any other provisions of law to the contrary notwithstanding, and pursuant to Article VII, Section III, Paragraph I and Article III, Section X of the Constitution of Georgia and Chapter 18 of this title, there is established as of July 1, 1956, Division A of the Employees' Retirement System of Georgia as a separate coverage group to be specifically known as the "Employees' Social Security Coverage Group."
  2. Any person who joins the retirement system as a contributing member on or after the execution date of the contract extending social security coverage shall become a member of Division A.
  3. The retirement allowance of any member of Division A who retires under this chapter and accepts employment from any state department or any agency which is supported in whole or in part by state funds, regardless of the source of such funds, shall be suspended during such time of his or her employment. If he or she is employed in a department subject to this chapter, he or she shall again become a member of Division A but shall contribute only the required social security tax. Upon separation of such member from state employment for any cause, all rights shall be vested in such member the same as if he or she had continued under his or her option to retire.
  4. Any other provisions of law to the contrary notwithstanding, any required employee tax for social security coverage not otherwise retained by employer fiscal officers shall be deducted from each Division A member's individual annuity savings account by the retirement system for payment of such required tax. If the member's annuity savings account is insufficient to cover the required amount of employee tax, it shall be the duty of the fiscal officer of his or her employer to deduct from the current salary of the member such amounts as are necessary for payment of the employee tax. For those members of Division A covered for social security, it shall be the duty of the fiscal officers of the various employers to retain from each of the 5 1/2 percent employee-7 1/2 percent employer contributions for retirement system purposes, 2 percent of the member's first $4,200.00 annual wages, such amount to apply toward the employee-employer tax required under the Social Security Act. Any additional rate of employee-employer tax for social security shall result in a corresponding increase in the amount of tax payable by the employee and employer. All employee-employer taxes required under the Social Security Act after December 31, 1956, shall be retained by the fiscal officers of the various employers and reported to the board of trustees in accordance with rules and regulations established by the board of trustees. In order to facilitate the making of deductions and to simplify the reporting thereof for those members of Division A covered for social security, the board of trustees shall adopt such tables of employer and employee contributions as will result in uniform monthly contributions to the retirement system throughout the year. Such tables as adopted by the board of trustees shall not be placed in effect prior to January 1, 1963.
  5. Any member of Division A who has reached age 65 may, upon written application to and approval by the board of trustees, discontinue contributions which provide retirement benefits under this chapter. However, the employee tax provided under the Social Security Act shall be paid by the member.

    (Ga. L. 1956, p. 54, § 6; Ga. L. 1957, p. 283, §§ 8, 9; Ga. L. 1959, p. 107, § 7; Ga. L. 1962, p. 54, §§ 1, 2; Ga. L. 1967, p. 751, § 9; Ga. L. 1973, p. 706, § 1; Ga. L. 1983, p. 3, § 63; Ga. L. 2010, p. 1207, § 8/SB 436.)

The 2010 amendment, effective July 1, 2010, rewrote this Code section.

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

OPINIONS OF THE ATTORNEY GENERAL

Subsection (c) of O.C.G.A. § 47-2-71 was not intended to prevent retiree from obtaining service credits or benefits which the retiree was rightfully entitled to prior to retirement, but which the retiree never received while still a contributing member. 1981 Op. Att'y Gen. No. 81-28.

Withdrawal of contribution does not divest service to be credited. - First sentence of subsection (c) of O.C.G.A. § 47-2-71 does not mean that retirement or withdrawal of contributions divests a person of the right to be credited with service which was authorized by law during the period of time the person was an active, contributing member of the Employees' Retirement System. 1981 Op. Att'y Gen. No. 81-28.

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1182.

ALR. - Industrial homeworkers as within social security, unemployment compensation, fair labor standards or workmen's compensation Act, 143 A.L.R. 418 .

Unemployment compensation: eligibility of employee laid off according to employer's mandatory retirement plan, 50 A.L.R.3d 880.

47-2-72. Procedure for electing not to become a member.

Any other provision of this article to the contrary notwithstanding, any person who first becomes an employee of an employer at age 60 or later may elect not to become a member of this retirement system. Such election shall be made in writing to the board within 30 days of first becoming an employee of an employer; otherwise, the person shall become a member of this retirement system. The election provided for in this subsection shall be irrevocable.

(Code 1981, § 47-2-72 , enacted by Ga. L. 1998, p. 171, § 1; Ga. L. 2010, p. 1207, § 9/SB 436.)

The 2010 amendment, effective July 1, 2010, deleted the former subsection (a) designation and deleted former subsection (b), which read: "Any active member of this retirement system on July 1, 1998, who was age 60 or older when he or she first became a member of this retirement system may elect to withdraw his or her membership and receive the total of his or her employee contributions with regular interest thereon. Such election shall be made in writing to the board not later than August 1, 1998; otherwise, the member shall remain a member of this retirement system. The election provided for in this subsection shall be irrevocable."

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-73. Election of retirement system by members of Georgia Judicial Retirement System; effect of subsequent legislation.

    1. Any provision of this chapter or Chapter 23 of this title to the contrary notwithstanding, any member of the Georgia Judicial Retirement System who is vested for a normal retirement benefit and who without a break in service becomes the head of a state department or agency or who is appointed by the Governor to a full-time salaried position on a state board or commission may make a one time irrevocable election to remain a member of the Georgia Judicial Retirement System or to become a member of this retirement system.
    2. If a person subject to this subsection elects to remain a member of the Georgia Judicial Retirement System, the employer and employee shall make all contributions to such retirement system and perform such other acts as are required by law or regulation.
    3. This subsection shall be applicable to each person who was a member of the Georgia Judicial Retirement System on July 1, 2000, and to any person who becomes a member after that date. Any person eligible to make the election provided for in this subsection shall do so in writing to the board of trustees of this retirement system and the Board of Trustees of the Georgia Judicial Retirement System not later than September 30, 2000, or within 60 days after the date he or she became subject to this Code section. Once made, the election is irrevocable.
    4. Any person subject to this subsection who elects to become a member of this retirement system may have accumulated contributions under the Georgia Judicial Retirement System transferred to this retirement system. The Board of Trustees of the Georgia Judicial Retirement System shall pay to the board of trustees of this retirement system all employer and employee contributions made by or on behalf of the member, together with regular interest. The member shall be granted only so much creditable service as such amount will warrant without creating any accrued actuarial unfunded liability as to this retirement system; provided, however, that such service credits shall not be used in determining the qualifications of a member for benefits other than vested rights or disability, death, or normal service retirement allowances.
  1. The provisions of this Code section shall not become a part of the employment contract and shall be subject to subsequent legislation; provided, however, that no person who has made the election provided by this Code section shall be affected by any subsequent legislation. (Code 1981, § 47-2-73 , enacted by Ga. L. 2000, p. 1693, § 1.)

ARTICLE 5 SERVICE CREDITABLE TOWARD RETIREMENT BENEFITS

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the provisions, decisions under Ga. L. 1948, p. 138, § 4, as amended, are included in the annotations for this article.

When retirement benefits become vested. - Retirement rights become vested in the claimant immediately upon any participation in active service while the civil service provisions are in effect, irrespective of whether at the time in question the claimant has completed sufficient length of service to be eligible for retirement as a matter of right; such rights cannot be constitutionally divested by any subsequent Act of the General Assembly. 1971 Op. Att'y Gen. No. 71-5 (decided under Ga. L. 1949, p. 138, § 4).

Retirement credit authorized to county tax officials for forfeited leave, and the rules and regulations of the board of trustees adopted thereunder must be followed as to the manner and method in which this forfeited leave is documented and certified as to any tax officials and employees not covered by a county merit system or other established leave practice or policy. 1979 Op. Att'y Gen. No. 79-69 (decided under Ga. L. 1949, p. 138, § 4).

Forfeited leave may be used as creditable service for computing beneficiary's death allowances in the event of the death in service of a constitutional officer, or any other eligible member of the retirement system, so long as all other requirements for death allowances are met. 1979 Op. Att'y Gen. No. 79-34 (decided under Ga. L. 1949, p. 138, § 4).

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq. 81A C.J.S., States, § 216.

ALR. - Statute or ordinance providing pension for public officers or employees as available to one who had left service before the passage of the statute, 142 A.L.R. 938 .

Disciplinary suspension of public employee as affecting computation of length of service for retirement or pension purposes, 6 A.L.R.2d 506.

Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income, 7 A.L.R.2d 692.

47-2-90. Rules and regulations with regard to credit for service; credit for service in the Georgia National Guard, Georgia State Guard, and General Assembly.

  1. The board of trustees shall establish rules and regulations setting forth the amount of service in a year which is equivalent to one year of creditable service.
  2. In no case shall more than one year of service be creditable for all service in one calendar year.
  3. One year of creditable service shall be given for each year of service in the Georgia National Guard, Georgia State Guard, or the General Assembly, provided that no credit shall be given for such service unless the individual was a member of the retirement system at that time; provided, further, that no more than five years of creditable service may be so obtained.

    (Ga. L. 1949, p. 138, § 4; Ga. L. 1951, p. 394, § 5; Ga. L. 1952, p. 175, § 3; Ga. L. 2010, p. 1207, § 10/SB 436.)

The 2010 amendment, effective July 1, 2010, deleted ", provided that creditable service performed as a member of the General Assembly shall be in addition to all other service" following "year" at the end of subsection (b).

Cross references. - Effect of transfer to state retired list for members of organized militia, § 38-2-9 .

Creditable service not allowed for military service from which discharge was other than honorable, § 47-1-11 .

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-91. Credit for accumulations of forfeited annual and sick leave.

  1. As used in this Code section, the term:
    1. "Classified member" means a member of the retirement system who is in the classified service as defined in Code Section 45-20-2.
    2. "Commissioner" means the commissioner of administrative services provided for by Code Section 50-5-1.
    3. "Compensatory time" means time off from work which is used in lieu of annual or sick leave to offset overtime service rendered by an employee when the employee is compensated by a fixed salary and is not financially compensated for such overtime service.
    4. "Elected state official" means the Governor, Lieutenant Governor, each member of the Public Service Commission, the Secretary of State, Attorney General, State School Superintendent, Commissioner of Insurance, Commissioner of Labor, Commissioner of Agriculture, each Justice of the Supreme Court, and each Judge of the Court of Appeals.
    5. "Unclassified member" means any member of the retirement system who is in the unclassified service as defined in Code Section 45-20-2 or who is otherwise not covered by the rules and regulations of the State Personnel Board, including elected state officials.
    1. Accumulated days of forfeited annual and sick leave for which a member has not been paid shall constitute creditable service if such member has at least six months of such forfeited leave at the time of the member's retirement. The member shall be given one month of creditable service for each 20 days of forfeited annual and sick leave. Upon retirement of a classified member, the employer shall certify to the board of trustees the total amount of that member's forfeited annual and sick leave based on leave records for periods of service where employers have maintained adequate leave records. For periods of service where no leave records are available for classified members, forfeited leave for an undocumented period may be computed as provided in subsection (i) of this Code section. The determination of accumulated days of forfeited annual and sick leave for unclassified members shall be based on leave records for periods of service where employers have maintained adequate leave records. For periods of service where no leave records are available, forfeited leave for unclassified employees shall be computed as follows:
      1. When 15 years or more of leave records are available for an unclassified member, the determination of forfeited leave for undocumented periods shall be computed as provided in subsection (i) of this Code section; or
      2. When less than 15 years of leave records are available for an unclassified member, the determination of forfeited leave for undocumented periods shall be based on the one-year average amount of forfeited annual and sick leave calculated by the commissioner pursuant to subsection (f) of this Code section and as provided in subsection (g) of this Code section, subject to the limitation in subsection (j) of this Code section.
    2. For both classified and unclassified members, each employer shall contribute the same amount as would have been contributed by the employer had the member obtaining creditable service for forfeited annual and sick leave remained in state employment without change in compensation for a period of time equal to the amount of forfeited annual and sick leave for which creditable service is obtained.
  2. For unclassified members, the maximum number of days of annual and sick leave which may be accumulated in one year shall be in accordance with the rules and regulations of the State Personnel Board governing employees in classified service, as defined in Code Section 45-20-2.
  3. For the purposes of this Code section, compensatory time shall not be applicable to elected state officials and no elected state official may offset any annual or sick leave taken by any such official by any compensatory time which might otherwise be applicable to such official.
  4. When accumulated forfeited annual and sick leave is claimed for the purposes of this Code section by an elected state official based on records maintained by or pursuant to the order or supervision of the elected state official, any such accumulated annual and sick leave accepted by the board of trustees shall, in addition to such records, be based on the elected state official's sworn statement that the amount of accumulated forfeited annual and sick leave claimed by the elected state official is true and correct.
  5. The commissioner shall select a random representative sample of employees who, as of June 30, 1985, have ten years or more of continuous service in the classified service as defined by Code Section 45-20-2. From an examination of the personnel records of the members in the sample, the commissioner shall calculate an annual average of the number of days of annual leave taken and an annual average of the number of days of sick leave taken by the members in the sample. The average days for annual leave taken and the average days for sick leave taken shall then each be deducted, respectively, from the maximum number of days of annual leave and the maximum number of days of sick leave which may be accumulated in one year under rules and regulations of the State Personnel Board by an employee in the classified service as defined by Code Section 45-20-2. The two figures resulting after making such reductions shall be added together and the resulting figure shall be forfeited annual and sick leave for each year of membership service for the purposes of subsection (g) of this Code section, subject to the limitation in subsection (j) of this Code section.
  6. The average amount of forfeited annual and sick leave calculated by the commissioner pursuant to subsection (f) of this Code section shall be supplied by that officer to all employers. When less than 15 years of leave records are available, the determination of forfeited annual and sick leave for unclassified employees with undocumented periods may be certified by the employer based on the average amount of forfeited annual and sick leave supplied by the commissioner. The amount which may be so certified shall be calculated by multiplying the figure representing the one-year average of forfeited annual and sick leave by the number of years of membership service for which leave records were not available at the time of retirement, subject to the limitation in subsection (j) of this Code section.
  7. For any member whose membership service includes service as both a classified and unclassified member, both classified and unclassified service may be considered in qualifying for undocumented forfeited annual and sick leave calculations based on 15 or more years where employers have maintained adequate records of annual and sick leave taken by members. When 15 or more years of leave records are available through a combination of both classified and unclassified service, forfeited annual and sick leave for an undocumented period may be computed as provided in subsection (i) of this Code section. When less than 15 years of leave records are available through a combination of both classified and unclassified service for a member, then the undocumented forfeited leave for the unclassified service shall be calculated pursuant to subsection (g) of this Code section and undocumented forfeited leave for classified service shall be calculated pursuant to subsection (i) of this Code section, subject to the limitation in subsection (j) of this Code section. The two calculations shall then be added together to determine the total amount of forfeited leave for the undocumented period.
  8. The formula provided by this subsection may be utilized for computation of forfeited annual and sick leave during the undocumented periods of service described in paragraph (1) of subsection (b) and subparagraph (b)(1)(A) of this Code section. The formula is as follows:
    1. Compute the maximum earnable sick and annual leave for the undocumented period;
    2. Compute the total sick and annual leave taken for all periods in which documentation is available;
    3. Compute the average sick and annual leave taken per month by dividing the answer under paragraph (2) of this subsection by the total number of documented months;
    4. Multiply the answer under paragraph (3) of this subsection by the total number of months in the undocumented period; and
    5. Subtract the answer under paragraph (4) of this subsection from the answer under paragraph (1) of this subsection to determine total leave earned and not taken during the undocumented period.
  9. For unclassified employees who have less than 15 years of leave records available, the determination of forfeited annual and sick leave shall be limited to the lesser of the amount calculated pursuant to subsections (f) and (g) of this Code section or the average of actual forfeited annual and sick leave for which leave records are available, whichever is less.
  10. The board of trustees may adopt rules and regulations, not inconsistent with the provisions of this Code section, to aid in administering and carrying out the provisions of this Code section.

    (Ga. L. 1974, p. 1451, § 1; Ga. L. 1976, p. 393, § 1; Ga. L. 1979, p. 1022, § 1; Ga. L. 1985, p. 1624, § 2; Ga. L. 1993, p. 86, § 1; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2010, p. 1207, § 64/SB 436; Ga. L. 2012, p. 413, § 6/HB 805.)

The 2009 amendment, effective July 1, 2009, substituted "State Personnel Administration" for "State Merit System of Personnel Administration" in paragraphs (a)(1), (a)(5) and in the first sentence of subsection (f).

The 2010 amendment, effective July 1, 2010, substituted "the State Personnel Administration" for "the state merit system" at the end of the third sentence of subsection (f).

The 2012 amendment, effective July 1, 2012, substituted "as defined in Code Section 45-20-2" for "of the State Personnel Administration provided for by Chapter 20 of Title 45" in paragraphs (a)(1) and (a)(5); substituted "administrative services provided for by Code Section 50-5-1" for "personnel administration provided for in Code Section 45-20-4" in paragraph (a)(2); deleted "paragraph (2) of" following "defined in" in subsection (c); and substituted "as defined by Code Section 45-20-2" for "of the State Personnel Administration" in the first and third sentences of subsection (f).

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

Ga. L. 2012, p. 413, § 1/HB 805, not codified by the General Assembly, provides that: "The purpose of this Act is to make conforming amendments and correct references in Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, relative to the abolition of the State Personnel Administration and the transfer of certain functions of such agency to the Department of Administrative Services as provided by a separate Act." The separate Act referred to is Ga. L. 2012, p. 446/HB 642, which became effective July 1, 2012, and which provides for the abolition of the State Personnel Administration and the transfer of functions.

Ga. L. 2012, p. 413, § 13/HB 805, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, only if an Act abolishing the State Personnel Administration and providing for the transfer of certain functions of such agency to the Department of Administrative Services is enacted and becomes effective on that same date; otherwise, this Act shall not become effective and shall stand repealed on July 1, 2012." Ga. L. 2012, p. 446/HB 642, effective July 1, 2012, provides for the abolition of the State Personnel Administration and the transfer of functions.

JUDICIAL DECISIONS

Accumulated forfeited leave constitutes creditable retirement service. - The Georgia Constitution does not prohibit the award to elected judicial officers of creditable service for retirement purposes based upon accrued but unused annual leave and sick leave. Arneson v. Board of Trustees, 257 Ga. 579 , 361 S.E.2d 805 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Section applicable to state employee members after 1974. - Statute is applicable only to those persons who are both employed by the state and members of the retirement system on or after the statute's effective date. 1974 Op. Att'y Gen. No. 74-79 (see O.C.G.A. § 47-2-91 ).

Department of Revenue's power as to county tax officials. - Department of Revenue does not have the authority to promulgate rules and regulations limiting the accumulation and use of sick, annual, and compensatory leave for county tax officials and employees. 1982 Op. Att'y Gen. No. 82-98.

As the employer for the purposes of retirement system membership, the Department of Revenue may specify the manner in which the certification and documentation for forfeited leave of county tax officials and employees is made. 1982 Op. Att'y Gen. No. 82-98.

Accumulated forfeited leave constitutes creditable retirement service. - Accumulated days of forfeited sick and annual leave of a member of the retirement system which were earned in state service and for which the employee is not otherwise entitled to be paid constitute creditable retirement service, notwithstanding the fact that some of the leave was forfeited prior to the employee's retirement. 1976 Op. Att'y Gen. No. 76-7.

Under O.C.G.A. § 47-2-91 , constitutional officers and officials under the Compensation Act can accrue annual and sick leave for the purpose of gaining creditable service toward retirement for any unused, forfeited leave. 1982 Op. Att'y Gen. No. 82-96.

When commissioner of natural resources resigned to become Commissioner of Labor, the commissioner was entitled to collect terminal annual leave from the Department of Natural Resources, and all other accrued leave the commissioner was not eligible to collect as terminal leave should have been transferred to the Department of Labor as forfeited leave, to be added to the commissioner's leave accrued solely for retirement purposes as Commissioner of Labor. 1985 Op. Att'y Gen. No. 85-59.

Responsibility for contribution for forfeited leave. - When a member of the Employees' Retirement System of Georgia retires and is entitled to creditable service for forfeited leave, the member's last covered employer is responsible for making the employer's contribution for the forfeited leave, regardless of where the employee worked when the leave was forfeited. 1991 Op. Att'y Gen. No. 91-30.

Statutory formula used in absence of leave records. - In the absence of leave records maintained by the employer on classified employees, an employing agency must use the formula set forth in subsection (i) of O.C.G.A. § 47-2-91 for certifying the amount of forfeited leave available to the employee for retirement purposes. 1987 Op. Att'y Gen. No. 87-12.

Transferability of forfeited leave. - Forfeited leave cannot be established as creditable service under the provisions of O.C.G.A. § 47-2-91 prior to retirement and therefore, it is not transferable to the Teachers Retirement System pursuant to O.C.G.A. § 47-3-81 . 1985 Op. Att'y Gen. No. 85-8.

47-2-92. Reestablishment of service credit after withdrawal of accumulated contributions from this retirement system or the Teachers Retirement System of Georgia; payments required to obtain credit.

Any present member who has withdrawn accumulated contributions from either the Employees' Retirement System of Georgia or the Teachers Retirement System of Georgia, or both, may, after two years of service as a contributing member, reestablish the creditable service for which the member would have been eligible if the accumulated contributions had not been withdrawn, provided that the member repays into the retirement system an amount equal to the amount withdrawn, together with regular interest at the rate of 4 1/4 percent per annum from the date of withdrawal to the date of repayment, which contributions and interest shall be placed in the participant's individual account in the annuity savings fund. Upon receipt of notice from this retirement system to the Teachers Retirement System of Georgia that a member has repaid to this retirement system contributions previously withdrawn from the Teachers Retirement System of Georgia, the Teachers Retirement System of Georgia shall pay an employer contribution plus regular interest into the Employees' Retirement System of Georgia. The amount of the employer contribution shall be 6 percent of the reported compensation of the member during membership in the Teachers Retirement System of Georgia.

(Ga. L. 1962, p. 126, § 1; Ga. L. 1963, p. 547, § 1; Ga. L. 1968, p. 1407, § 1; Ga. L. 1973, p. 900, § 1; Ga. L. 1976, p. 453, § 2; Ga. L. 1980, p. 1544, § 1; Ga. L. 1992, p. 1110, § 1; Ga. L. 2009, p. 947, § 16/HB 202.)

The 2009 amendment, effective May 11, 2009, near the end of the first sentence, inserted "contributions and" and substituted "participant's individual account in the annuity savings fund" for "pension accumulation fund".

47-2-93. Credit for service rendered after December 31, 1953, by persons who were not members at the time; payments required to obtain credit.

Any other provisions of this law to the contrary notwithstanding, any member of this retirement system who received compensation from the state for services rendered by him after December 31, 1953, but who did not become a member until a later date, may receive credit for any service rendered after December 31, 1953, and before the date he became a member of this retirement system by paying the employee contributions that would have been paid by him if he had been a member during that time. No such credit shall be given except for full-time state employment. The board of trustees is authorized to promulgate rules and regulations necessary to carry out this Code section.

(Ga. L. 1971, p. 93, § 1; Ga. L. 1971, p. 96, § 2.)

JUDICIAL DECISIONS

Cited in Employees' Retirement Sys. v. Baughman, 241 Ga. 339 , 245 S.E.2d 282 (1978); Employees' Retirement Sys. of Ga. v. Martin, 272 Ga. 535 , 533 S.E.2d 68 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Previously obtained credit entitled to be used. - Member of the retirement system who previously obtained prior service credit under Ga. L. 1971, p. 93, § 1 and Ga. L. 1971, p. 96, § 2 (see O.C.G.A. § 47-2-93 ) was entitled to use that credit for all the purposes which were authorized by the retirement provisions when those provisions were approved, notwithstanding the fact that Ga. L. 1971, p. 96, § 2 (see former O.C.G.A. § 47-2-97 ) attempted to restrict the provisions of the earlier law. 1972 Op. Att'y Gen. No. 72-122.

Authorization to receive credit for services rendered before becoming member. - O.C.G.A. § 47-2-93 authorizes a member of the Employees' Retirement System who received compensation from the State of Georgia for services rendered after December 31, 1953, but who did not become a member until a later date, to receive credit for such service by paying the employee contributions that would have been paid by the employee if the employee had been a member during such service. Any service on the superior court bench after December 31, 1953, may be purchased and established within the Employees' Retirement System. 1981 Op. Att'y Gen. No. 81-22.

Legislative service is not considered full-time state employment within the meaning of O.C.G.A. § 47-2-93 . Op. Att'y Gen. No. 81-22.

Credit for former service as narcotics agent. - Employees of the Georgia Bureau of Investigation, who are members of the Employees Retirement System, may purchase prior service credit under O.C.G.A. § 47-2-93 for former service as a narcotics agent pursuant to O.C.G.A. § 35-3-9 . 1992 Op. Att'y Gen. No. 92-17.

47-2-94. Service credit provided for persons whose membership was terminated for failure to render at least one year of service in a five-year period.

Any current member whose membership has previously been terminated because that member rendered less than one year of service in a period of five consecutive years and who has never withdrawn the contributions he or she made during such previous membership shall receive credit, after one year of active service as a contributing member, for the creditable service accumulated under the previous membership.

(Ga. L. 1965, p. 106, § 1; Ga. L. 1976, p. 453, § 3; Ga. L. 1996, p. 378, § 1.)

47-2-95. Credit for service during World War I, World War II, or the Korean Conflict; credit for service in the Georgia National Guard or the Georgia State Guard.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 11, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1956, p. 54, § 5.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-96. Prior service credit; payments required to obtain credit.

  1. Any member of this retirement system who was previously an active member of the Georgia Judicial Retirement System and who has not withdrawn his or her employee contributions from such retirement system may elect to have all contributions made by or on behalf of such member transferred from such retirement system to this retirement system. Any such member shall notify the board of trustees of each retirement system.
  2. Upon receipt of the notice provided for in subsection (a) of this Code section, the Board of Trustees of the Georgia Judicial Retirement System shall transfer to the board of trustees of this retirement system all employer and employee contributions paid by or on behalf of the employee, together with regular interest thereon. The member is authorized, but not required, to pay such additional amount to the board of trustees as the member desires.
  3. If a member of this retirement system has withdrawn his or her employee contributions from the Georgia Judicial Retirement System, he or she may obtain creditable service in this retirement system as provided in subsection (d) of this Code section by paying to the board of trustees of this retirement system such amount as the member desires.
  4. Upon receipt of the funds provided for in subsection (b) or (c) of this Code section, the board of trustees of this retirement system shall credit the member with only the number of years of creditable service, not to exceed the actual years of prior service, as the amount so transferred or paid shall warrant without creating any accrued liability as to this retirement system; provided, however, that no member shall be granted creditable service in excess of the service to which he or she was credited under the Georgia Judicial Retirement System. (Code 1981, § 47-2-96 , enacted by Ga. L. 2014, p. 169, § 1/HB 477.)

Effective date. - This Code section became effective July 1, 2014.

Editor's notes. - The former Code section was based on Ga. L. 1949, p. 138, § 4; Ga. L. 1953, Nov.-Dec. Sess., p. 160, § 3; Ga. L. 1956, p. 54, § 4; Ga. L. 1957, p. 283, § 3; Ga. L. 1959, p. 107, § 3; Ga. L. 1960, p. 1020, § 1; Ga. L. 1960, p. 1115, § 1; Ga. L. 1961, p. 143, § 3; Ga. L. 1964, p. 158, § 1; Ga. L. 1964, p. 237, § 1; Ga. L. 1967, p. 751, § 2; Ga. L. 1969, p. 1015, § 2; Ga. L. 1971, p. 93, § 2; Ga. L. 1972, p. 360, §§ 1, 2; Ga. L. 1981, p. 1447, § 1; Ga. L. 1982, p. 3, § 47; Ga. L. 1983, p. 1856, § 1; Ga. L. 1986, p. 1233, § 2; Ga. L. 1990, p. 521, § 1; Ga. L. 1994, p. 337, § 1; Ga. L. 2000, p. 131, § 1; Ga. L. 2000, p. 1506, § 1; Ga. L. 2002, p. 1246, § 2.

47-2-96.1. Creditable service for temporary full-time employment by legislative branch.

Repealed by Ga. L. 2010, p. 1207, § 13, effective July 1, 2010.

Editor's notes. - This Code section was based on Code 1981, § 47-2-96.1 , enacted by Ga. L. 1996, p. 730, § 1; Ga. L. 1998, p. 1111, § 1; Ga. L. 2006, p. 429, §§ 1, 2/HB 644.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-96.2. Creditable service for uncredited full-time service with executive branch.

Repealed by Ga. L. 2010, p. 1207, § 14, effective July 1, 2010.

Editor's notes. - This Code section was based on Code 1981, § 47-2-96.2 , enacted by Ga. L. 1998, p. 174, § 1.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-97. Applicability of creditable service under Code Section 47-2-93 or subsection (b) of Code Section 47-2-96 toward involuntary separation benefits; requirement as to full-time employment for credit.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 15, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1971, p. 96, § 2; Ga. L. 1976, p. 456, § 1; Ga. L. 1982, p. 3, § 47; Ga. L. 1993, p. 86, § 1.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-98. Creditable service for member who was officer or employee of Georgia Housing and Finance Authority.

  1. As used in this Code section, the term:
    1. "Authority" means the Georgia Housing and Finance Authority established by Chapter 26 of Title 50.
    2. "Proof of prior employment" means pay records, income tax withholding records, or other records of the authority which are sufficient to establish to the satisfaction of the board of trustees the prior employment record of an officer or employee of the authority.
    1. Any member of this retirement system who became a member on or after July 1, 1995, and who, immediately prior to becoming a member, was an officer or employee of the authority shall, upon furnishing proof of prior employment to the board of trustees and subject to the provisions of paragraph (2) of this subsection, be eligible to receive creditable service under this retirement system for such prior service.
    2. A member subject to this Code section shall have the option to transfer all or a portion of his or her vested interest in the pension plan maintained by the authority prior to the date he or she became a member of this retirement system to satisfy all or a portion of the cost to receive creditable service allowed pursuant to paragraph (1) of this subsection. Any funds transferred pursuant to such option shall be credited to the officer's or employee's annuity account established by the retirement system. The member shall be authorized, but not required, to supplement such amount so transferred. The member shall receive such creditable service as the combination of funds so transferred or paid would warrant without creating any additional accrued liability of the retirement system, up to the maximum amount of creditable service allowed by paragraph (1) of this subsection. (Code 1981, § 47-2-98 , enacted by Ga. L. 1996, p. 391, § 1; Ga. L. 2005, p. 611, § 1/SB 161.)

47-2-99. Applicability of creditable service under Code Section 47-2-334 and Chapter 22 of this title; obtaining service and application for creditable service.

  1. Any member of the retirement system, including a member subject to the provisions of Code Section 47-2-334, who was, at any time prior to becoming a member, employed by an employer as a temporary full-time employee, may obtain up to 12 months of creditable service for such service as a temporary full-time employee under the conditions contained in this Code section; provided, however, that no such credit shall be granted for any period which was covered under Chapter 22 of this title, relating to the Georgia Defined Contribution Plan.
  2. Any person desiring to obtain the creditable service authorized by subsection (a) of this Code section shall make application in such manner as the board of trustees deems proper; tender to the board of trustees such proof of the prior employment as the board shall deem necessary; and pay to the board of trustees the employer and employee contributions as would have been paid if the member had been a member at the time of performing such prior service, together with regular interest thereon compounded annually to the date of payment.
  3. Application for creditable service authorized by subsection (a) of this Code section must be received by the board of trustees not later than June 30, 2001, or 24 months after the member becomes a member of the retirement system, whichever date is later. (Code 1981, § 47-2-99 , enacted by Ga. L. 2000, p. 1239, § 1.)

47-2-100. Additional creditable service.

  1. Any member of this retirement system may obtain up to an additional three years of creditable service as provided in this Code section. In order to obtain such additional creditable service, the member must:
    1. Make application to the board of trustees in such manner as the board deems appropriate. Such application and payment must be made in conjunction with and simultaneously with the member's application for retirement. If the application for retirement is withdrawn or denied, the application to purchase creditable service shall be void; and
    2. Pay to the board of trustees an amount determined by the board of trustees to be sufficient to cover the full actuarial cost of granting the creditable service as provided in this Code section.
  2. Upon receipt of an application for additional creditable service, the board of trustees shall certify to the applicant the amount of the payment required by paragraph (2) of subsection (a) of this Code section.
  3. No creditable service obtained pursuant to this Code section shall be used to calculate the amount of creditable service required to qualify for a benefit under subsection (a) of Code Section 47-2-110 or Code Section 47-2-122 . (Code 1981, § 47-2-100 , enacted by Ga. L. 2004, p. 574, § 1.)

ARTICLE 6 RETIREMENT AND ELIGIBILITY FOR A RETIREMENT ALLOWANCE

47-2-110. Retirement ages; application and eligibility for a retirement allowance; suspension of retirement allowance upon reemployment; health benefits.

      1. Upon written application to the board of trustees, any member in service who has reached 60 years of age or who has 30 years of creditable service may retire on a service retirement allowance, provided that he or she has at least five years of creditable service; provided, further, that if he or she became a member after July 1, 1968, he or she has at least ten years of creditable service. The effective date of retirement shall be the first of the month in which the application is received by the board of trustees, provided that no retirement application will, in any case, be effective earlier than the first of the month following the final month of the applicant's employment. Applications for retirement shall not be accepted more than 90 days in advance of the effective date of retirement. Separation from service pending approval of the retirement application shall not affect eligibility for a retirement allowance. The provisions of this subsection regarding the effective date of retirement shall apply to all persons making application for retirement on or after March 15, 1979, and to all persons who have made application prior to March 15, 1979, but to whom payments from the retirement system have not commenced as of that date. Each employer shall certify to the board of trustees the date on which the employee's employment is or will be severed.
      2. If the employee has not reached normal retirement age on the effective date of retirement, the employer shall certify that no agreement exists to allow the employee to return to service, including service as or for an independent contractor. Any return to employment or rendering of any paid service by such employee, including service as or for an independent contractor, for any employer within two consecutive calendar months of the effective date of retirement shall render the severance invalid, nullifying the application for retirement.
    1. Normal retirement age, for purposes of the retirement system, shall be the date the employee has reached 60 years of age, provided that he or she has at least ten years of creditable service or the age of an employee on the date he or she attains 30 years of creditable service; provided, however, that the provisions of this paragraph are subject to change by future legislation in order to comply with federal regulations. For those members who are in service with the Uniform Division of the Department of Public Safety as an officer, noncommissioned officer, or trooper, officers and agents of the Georgia Bureau of Investigation, game wardens of the Department of Natural Resources, or in the Department of Revenue as an alcohol and tobacco officer or agent, normal retirement age shall be the date the employee has reached 55 years of age, provided that he or she has at least ten years of creditable service. For purposes of Section 402(l) of the federal Internal Revenue Code regarding distributions from governmental plans for health and long-term care insurance for public safety officers, normal retirement age shall be the earliest date when the employee has satisfied the requirements for a retirement allowance under the retirement system. Except as provided under Article 2 of Chapter 1 of this title, a member's right to his or her retirement allowance is nonforfeitable upon attainment of normal retirement age.
    1. As used in this subsection, in addition to the definition provided in Code Section 47-2-1, the term "employer" shall also include the retired member's last employer which reported to the retirement system prior to the member's effective date of retirement. Such term shall also include the Board of Regents of the University System of Georgia.
    2. Except as provided in this subsection, if a member accepts paid employment with or renders services for pay to any employer, including, without limitation, service directly or indirectly as or for an independent contractor, after his or her retirement, payment of his or her retirement allowance shall be suspended and no contributions to the retirement system shall be made on account of such service either by that member or his or her employer, provided that, upon termination of such service, all rights shall vest in that member as if he or she had continued his or her option to retire.
    3. The retirement allowance of a retired member who accepts employment with or renders services to any employer after his or her retirement shall not be suspended if the employee has attained normal retirement age or has not been employed by or rendered service for any employer for at least two consecutive calendar months and performs no more than 1,040 hours of paid employment or paid service, including, without limitation, service as or for an independent contractor, for the employer in any calendar year; provided, however, that return to service as or for an independent contractor shall not result in the suspension of an employee's retirement allowance if the employing agency certifies to the board of trustees that:
      1. The contracting entity has multiple employees;
      2. The contracting entity has multiple contracts, and the contracts are not limited to employers, as such term is defined in Code Section 47-2-1; and
      3. The contractual relationship with the employer was not created to allow a retired employee to continue employment after retirement in a position similar to the one he or she held before retirement.
    4. Any employer that employs a retired plan member shall within 30 days of the employee's accepting employment notify the board of trustees in writing stating the name of the plan member and the number of hours the employee is expected to work annually and shall provide such other information as the board may request. If the retired plan member performs more than 1,040 hours in any calendar year, the employer shall so notify the board of trustees as soon as such information is available. Any employer that fails to notify the board of trustees as required by this subsection shall reimburse the retirement system for any benefits wrongfully paid. It shall be the duty of the retired plan member seeking employment by the employer to notify the employer of his or her retirement status prior to accepting such position. If a retired plan member fails to so notify the employer and the employer becomes liable to the retirement system, the plan member shall hold the employer harmless for all such liability.
  1. The board of trustees is authorized to provide by rule or regulation for the payment of benefits to members or beneficiaries of the retirement system at a time and under circumstances not provided for in this chapter to the extent that such payment is required to maintain the retirement system as a "qualified retirement plan" for the purposes of federal income tax laws.

    (Ga. L. 1949, p. 138, § 5; Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 3; Ga. L. 1953, Nov.-Dec. Sess., p. 160, § 4; Ga. L. 1957, p. 172, § 1; Ga. L. 1957, p. 283, § 4; Ga. L. 1957, p. 465, § 1; Ga. L. 1962, p. 54, § 4; Ga. L. 1968, p. 1356, §§ 1, 2; Ga. L. 1969, p. 1015, § 1; Ga. L. 1971, p. 338, § 1; Ga. L. 1979, p. 416, § 1; Ga. L. 1984, p. 1487, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1992, p. 2178, § 1; Ga. L. 1997, p. 554, § 1; Ga. L. 2000, p. 1449, § 1; Ga. L. 2002, p. 1288, § 1; Ga. L. 2006, p. 1010, § 1/HB 1020; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2009, p. 947, § 17/HB 202; Ga. L. 2010, p. 424, §§ 1, 2/HB 916; Ga. L. 2010, p. 1207, § 16/SB 436; Ga. L. 2019, p. 808, § 7/SB 72.)

The 2009 amendments. The first 2009 amendment, effective July 1, 2009, substituted "State Personnel Administration" for "State Merit System of Personnel Administration" in paragraphs (c)(2) and (c)(3). The second 2009 amendment, effective May 11, 2009, in subsection (a), designated the existing provisions of subsection (a) as paragraph (a)(1), added the last two sentences in paragraph (a)(1), and added paragraph (a)(2); and rewrote subsection (c). See the Code Commission note regarding the effect of these amendments.

The 2010 amendments. The first 2010 amendment, effective July 1, 2010, in paragraph (a)(1), designated the existing provisions as subparagraph (a)(1)(A), in subparagraph (a)(1)(A), substituted "shall" for "will" in the third sentence and deleted "and that no agreement exists to allow the employee to return to service, including service as or for an independent contractor. Any return to employment or rendering of any paid service, including service as or for an independent contractor, for any employer within two consecutive calendar months of the effective date of retirement shall render the severance invalid, nullifying the application for retirement" following "severed" at the end, and added subparagraph (a)(1)(B); and, in paragraph (c)(3), added the proviso at the end and added subparagraphs (c)(3)(A) through (c)(3)(C). The second 2010 amendment, effective July 1, 2010, deleted former subsection (b), which read: "(b)(1) Effective July 1, 1983, no member of the retirement system may be required to retire because of age except the following members:

"(A) Those employed as prison guards by the Department of Corrections;

"(B) Those employed by the Uniform Division of the Department of Public Safety as officers and troopers;

"(C) Those employed by the Department of Natural Resources as conservation rangers;

"(D) Those employed by the Department of Revenue as alcohol and tobacco officers or agents;

"(E) Those employed as officers or agents of the Georgia Bureau of Investigation;

"(F) Those employed by the Department of Transportation as enforcement officers prior to July 1, 2001;

"(G) Those employed by the Department of Motor Vehicle Safety as enforcement officers on or after July 1, 2001; and

"(H) Those employed by the State Board of Pardons and Paroles as parole officers as well as other employees of said board who possess the power of arrest.

"(2) Those members specified by paragraph (1) of this subsection who may be required to retire because of age shall be subject to the laws specifying retirement ages for the various classifications of such members or subject to the rules, regulations, or policies specifying retirement ages of the various state departments or agencies employing such members, provided such rules, regulations, or policies are in compliance with other laws of this state. Any state department or agency specified in paragraph (1) of this subsection shall be authorized to employ or continue the employment of any member, regardless of age, with professional, scientific, or technical skills who is so certified to the board of trustees by the state department or agency."; and redesignated former subsections (c) and (d) as present subsections (b) and (c), respectively.

The 2019 amendment, effective July 1, 2019, substituted "game wardens" for "conservation rangers" in the second sentence of paragraph (a)(2).

Code Commission notes. - The amendment of this Code section by Ga. L. 2009, p. 752, § 1, irreconcilably conflicted with and was treated as superseded by Ga. L. 2009, p. 947, § 17. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Editor's notes. - In amending subsection (b), the 1984 Act enacted Code language referring to an effective date of July 1, 1983, for the provisions of subsection (b), although the 1984 Act itself, by not carrying a specific effective date clause, was to become effective July 1, 1984. See 1976 Op. Att'y Gen. No. 76-76 for a finding that, if the substantive provisions of an amendment conflict with the effective date provisions of the Act effecting the amendment, the substantive provisions should be construed in a manner consistent with the effective date provisions of the Act.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

JUDICIAL DECISIONS

Reduction in amount of pension for persons retiring before July 1, 1998 proper. - Pensions for employees who retired on or before July 1, 1998, after reaching age 60, but with less than 30 years of creditable service, were properly reduced; even before 1998, the Board of Trustees of the Employees Retirement System of the State of Georgia possessed the discretionary authority to reduce pensions based on age for retirees less than 65 with less than 30 years of creditable service. Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

O.C.G.A. § 47-2-110(a) establishes the minimum age a state employee must reach, or the minimum number of years of service a state employee must accrue, before being eligible to retire on what is referred to as a "service retirement allowance"; O.C.G.A. § 47-2-110(a) does not, however, establish or guarantee the amount of the retirement allowance or provide a method for its calculation. Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

Neither O.C.G.A. § 47-2-120(a) nor O.C.G.A. § 47-2-110(a) provides a formula for the calculation of service retirement benefits; the authority to do so rests with the Board of Trustees of the Employees Retirement System of the State of Georgia (ERS) under the general grant of authority in O.C.G.A. § 47-2-21 et al. to effectuate the provisions of the ERS Act. Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

OPINIONS OF THE ATTORNEY GENERAL

State School Superintendent may recommend retirement of vocational education director. - State School Superintendent, as chief executive officer and as the department head of the Division of Vocational Education, may legally recommend to the board of trustees the retirement of the director of the Division of Vocational Education. 1960-61 Op. Att'y Gen. p. 175 (rendered under Ga. L. 1953, Nov.-Dec. Sess., p. 401).

Employee is not automatically separated from employment at age 65; however, an employee's continued employment is subject to the wishes of the department head where the employee is employed, until age 70; an employee who reaches the age of 70 is automatically retired, unless the employee's department head has certified to the board of trustees that the employee possesses professional, scientific, or technical skills and the employee's continued employment is desired. 1967 Op. Att'y Gen. No. 67-424.

Most state employees cannot be involuntarily retired based on an age earlier than 70 years. 1978 Op. Att'y Gen. No. 78-46.

Retired employee working as independent contractor may receive involuntary separation benefits. - Retired employee should continue to receive involuntary separation benefits though working for the state as an independent contractor. 1969 Op. Att'y Gen. No. 69-66.

Reemployment restriction aimed at state departments and agencies. - Legislature did not intend that the restrictions of this statute should extend to employment by a county or city police force, nor does the statute apply to employment as a deputy by a sheriff who is compensated entirely by the fee system; the restriction was aimed at state departments and state agencies, or quasi-state agencies, which are supported by moneys contributed by or through the state. 1963-65 Op. Att'y Gen. p. 181 (see O.C.G.A. § 47-2-110 ).

Retirement benefits when elected to full-time paid county office. - Retirement benefits are not suspended if regular retiree is elected to full-time paid county office. 1972 Op. Att'y Gen. No. 72-56.

Retirement benefits when employed by Board of Regents. - O.C.G.A. § 47-2-110 applies to a retired state employee who subsequently becomes employed by the Board of Regents in a position in the University System of Georgia. 1981 Op. Att'y Gen. No. 81-13.

Retirement benefits when employed by local school board. - Teachers and other school personnel employed by local units of administration are not employed by nor do they render services for a state department or agency within the meaning of Ga. L. 1949, p. 138. Thus, employees of the Department of Education who retire under the Employees' Retirement System of Georgia may accept employment by a local school board without incurring a suspension of retirement benefits. 1980 Op. Att'y Gen. No. 80-117.

Retirement benefits when reemployed by personal corporation. - Reemployment limitation provisions of O.C.G.A. § 47-2-110 do not apply to an individual receiving retirement benefits from the Employees' Retirement System who is employed by a corporation transacting business with a covered state agency even though the individual is the sole stockholder of the corporation. 1983 Op. Att'y Gen. No. 83-45.

RESEARCH REFERENCES

ALR. - Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.

47-2-111. Persons eligible to retire at age 55.

Any other provision of this chapter to the contrary notwithstanding, any member employed by the Uniform Division of the Department of Public Safety as an officer, a noncommissioned officer, or a trooper; by the Georgia Bureau of Investigation as an officer or agent; by the Department of Natural Resources as a game warden; or by the Department of Revenue as an alcohol and tobacco officer or agent or as an officer or agent of the Special Investigations Unit shall be eligible to retire at age 55 if he or she has the minimum number of years of creditable service provided in Code Section 47-2-110, and upon retirement such member shall be paid not less than the service retirement allowance which would have been payable to such member upon service retirement at age 65 without a change in compensation and with the same number of years' creditable service to which such member is entitled at the time of retirement.

(Code 1981, § 47-2-111 , enacted by Ga. L. 1993, p. 1372, § 1; Ga. L. 2000, p. 131, § 1; Ga. L. 2010, p. 1207, § 17/SB 436; Ga. L. 2019, p. 808, § 7/SB 72.)

The 2010 amendment, effective July 1, 2010, deleted former subsection (a), which read: "(a) Any other provision of law to the contrary notwithstanding, any member stated in subparagraphs (b)(1)(B) through (b)(1)(E) of Code Section 47-2-110 who is subject to the involuntary separation provisions of Code Section 47-2-123 and who retires upon or after attaining the age of 55, whether or not retirement at such age is required by law, shall upon application receive a retirement allowance which shall consist of:

"(1) In the case of a member with at least 20 years of service, the service retirement allowance which would have been payable upon service retirement at age 60 had the member continued in service to age 60 without further change in compensation;

"(2) In the case of a member with at least 25 years of service, 75 percent of the service retirement allowance which would have been payable upon service retirement at age 65 had the member continued in service without further change in compensation; or

"(3) In the case of a member with at least 30 years of service, the service retirement allowance which would have been payable upon service retirement at age 65 had the member continued in service without further change in compensation.

"Any provisions of this chapter to the contrary notwithstanding, in the application of paragraphs (1) through (3) of this subsection relating to allowances other than for disability or death, projected retirement allowance computations shall be made on the basis of the member's highest total monthly earnable compensation, as reflected by monthly contributions made during the last 24 calendar months in which the member had made contributions, except that no salary increase by adjustment in compensation in any manner in excess of 10 percent during the last 12 months of membership service shall be included in the projected computation."; and deleted the former subsection (b) designation.

The 2019 amendment, effective July 1, 2019, substituted "game warden" for "conservation ranger" near the middle of this Code section.

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

OPINIONS OF THE ATTORNEY GENERAL

Effect of section. - Agent of the Georgia Bureau of Investigation who is eligible for involuntary separation retirement benefits may elect retirement or to continue his or her employment past the age of 55 and be entitled to the same protection in age and service which would have been available when that agent was required to retire at age 55 by operation of law. 1993 Op. Att'y Gen. No. 93-12.

The 95% rule of O.C.G.A. § 47-2-124 does not apply to the calculation of retirement benefits under O.C.G.A. § 47-2-111 . 1993 Op. Att'y Gen. No. 93-12 (issued prior to the 1994 amendment to § 47-2-124 ).

ARTICLE 7 RETIREMENT ALLOWANCES, DISABILITY BENEFITS, SPOUSES' BENEFITS

JUDICIAL DECISIONS

Cited in State v. Cantrell, 231 Ga. 704 , 203 S.E.2d 493 (1974); Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975); Employees' Retirement Sys. v. Almgren, 235 Ga. 368 , 219 S.E.2d 749 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Legislative service creditable for determining involuntary separation benefits' eligibility. - Service as a member of the General Assembly subsequent to January 1, 1954, which has been paid for as membership service in the Georgia Legislative Retirement System, and which has been transferred from the Legislative Retirement System to the Employees' Retirement System of Georgia, is creditable as membership service for the purpose of determining eligibility for the involuntary separation benefits provided by Ga. L. 1949, p. 138, § 5. 1973 Op. Att'y Gen. No. U73-17.

For effect upon continuation of disability retirement benefits when elected to full-time paid county office, see 1972 Op. Att'y Gen. No. 72-56 (rendered under Ga. L. 1949, p. 138, § 5).

Attempt to change beneficiary for retirement benefit by will considered "mistake." - An attempt by a member of the retirement system to change her beneficiary for the member's life insurance payment and the member's monthly retirement benefit by will is of no legal effect and should be considered a "mistake" in the construction of that provision of the will. 1974 Op. Att'y Gen. No. 74-92.

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, Pensions and Retirement Funds, §§ 1174, 1183, 1187 et seq., 1207, 1209, 1211, 1214, 1222, 1226, 1252.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 314 et seq. 81A C.J.S., States, § 212 et seq.

ALR. - Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income, 7 A.L.R.2d 692.

Misconduct as affecting right to pension or retention of position in retirement system, 76 A.L.R.2d 566.

Acceptance of, or assertion of right to, pension or retirement as abandonment of public office or employment, 76 A.L.R.2d 1312.

47-2-120. Retirement allowances.

  1. Upon service retirement, a member shall receive a service retirement allowance which shall consist of:
    1. An annuity which shall be the actuarial equivalent of his or her accumulated contributions at the time of his or her retirement; and
    2. A pension equal to the annuity allowable at age of retirement, but not to exceed an annuity which would have been allowed at age 65, which pension shall be computed on the basis of his or her contributions made prior to attaining age 65, provided that any member may continue his or her contributions after attaining 65 years of age, and by so doing shall receive membership service credit for such period of time, which shall be used in the computation of retirement allowances.
  2. No person who at any time elected nonmembership shall establish, nor shall any person who transferred to the retirement system or who previously became a member shall increase, the pension set forth in paragraph (3) of subsection (a) of this Code section by reason of his employment in or transfer to another employer. No member shall be eligible for that pension unless at least 30 days of his prior service was earned within an 18 month period immediately preceding his date of membership.
  3. Anything in this chapter to the contrary notwithstanding, any member with 30 years of service, regardless of age, shall be eligible to retire forthwith and, upon retirement, shall be paid not less than the service retirement allowance which would have been payable to such member upon service retirement at age 65 with 30 years of service.
  4. Anything in this chapter to the contrary notwithstanding, any member whose current membership began prior to July 1, 1982, and who has at least 34 years of service shall be eligible to retire forthwith and upon retirement shall be paid not less than the service retirement allowance which would have been payable upon service retirement at the age of 65 had the member continued in service without further change in compensation.
  5. In the case of any member who has at least 25 but less than 30 years of creditable service and who has not reached the age of 60 years upon retirement, the service allowance set forth in subsection (a) of this Code section shall be reduced by an actuarial equivalent certified by the board of trustees. Such reduced amount shall take into consideration the member's age and number of years of creditable service at the time of retirement and shall be sufficient to permit retirement at such age or with such number of years of creditable service without creating any accrued liability against the retirement system. Such reduction shall not apply in calculating the service allowance for disability retirement or death. Any member who retires with less than 30 years of creditable service or who has not obtained the age of 60 at the time of retirement shall not become eligible for postretirement benefit adjustments until such time as the member reaches the age of 60 or would have obtained 30 years of creditable service, whichever occurs earlier.
  6. The board of trustees shall cause the actuary for the retirement system to calculate the actuarial cost to the retirement system of any salary increase granted to a member in excess of 5 percent over the 12 months immediately prior to such member's retirement date and shall notify the employing unit of such amount. Such notice shall be sent not later than 60 days following such member's retirement date. The employing unit shall pay such amount, together with the cost of such actuarial calculation, as a supplemental employer contribution to the board of trustees not later than the last day of the month following receipt of such notice.

    (Ga. L. 1949, p. 138, § 5; Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 4; Ga. L. 1953, Nov.-Dec. Sess., p. 160, § 4; Ga. L. 1957, p. 465, § 1; Ga. L. 1971, p. 92, § 1; Ga. L. 1974, p. 1177, § 1; Ga. L. 1977, p. 1096, § 1; Ga. L. 1978, p. 1652, § 1; Ga. L. 1994, p. 1874, § 1; Ga. L. 1998, p. 154, § 1; Ga. L. 2009, p. 322, § 1/HB 476; Ga. L. 2009, p. 947, § 18/HB 202; Ga. L. 2010, p. 1207, § 18/SB 436.)

The 2009 amendments. The first 2009 amendment, effective July 1, 2009, added subsection (f). The second 2009 amendment, effective May 11, 2009, in subsection (d), substituted "whose current membership began prior to July 1, 1982, and who has" for "with" and substituted "the member" for "he".

The 2010 amendment, effective July 1, 2010, in subsection (a), inserted "or her" throughout, added "and" at the end of paragraph (a)(1), substituted a period for "; and" at the end of paragraph (a)(2), and deleted former paragraph (a)(3), which read: "If he has a prior service certificate in full force and effect, an additional pension which shall be equal to the annuity allowable at age of retirement, provided that such pension does not exceed the annuity which would have been allowable at age 65 by more than twice the amount of his prior service accumulations as defined in Code Section 47-2-96 with regular interest on such amount as from time to time in effect, which interest shall be figured from the date of establishment until the earlier of the date of his retirement or the date on which he attains 65 years of age."

Editor's notes. - Ga. L. 1994, p. 1874, § 1, amending subsection (a) of this Code section, was not concurrently funded as required by Code Section 47-20-50 and, therefore, did not become law and was repealed on July 1, 1994. See the state auditor's report, the final item in the Georgia Laws 1994.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

JUDICIAL DECISIONS

Construed with § 47-2-123 . - Benefits due as disability retirement under O.C.G.A. § 47-2-123 of the statutes governing the Employees' Retirement System are not to be calculated in reference to subsections (c) and (d) of O.C.G.A. § 47-2-120 , which allow for eligibility for service retirement benefits as if the member were age 65, regardless of the member's age, if the member has tendered 30 or 34 years of service, respectively. Such reference would create a projection on top of a projection. Sledge v. Employees' Retirement Sys., 196 Ga. App. 597 , 396 S.E.2d 550 (1990).

Reduction in amount of pension for persons retiring before July 1, 1998 proper as established prior to a judge's retirement, when the judge had relied upon the system's calculation of benefits prior to the time that the judge submitted the judge's resignation and the calculated benefits were paid to the judge for a period of time after the judge's retirement. Quillian v. Employees' Retirement Sys., 259 Ga. 253 , 379 S.E.2d 515 (1989).

Pensions of employees who retired on or before July 1, 1998, after reaching 60, but with less than 30 years of creditable service, were properly reduced; even before 1998, the Board of Trustees of the Employees Retirement System of the State of Georgia possessed the discretionary authority to reduce pensions based on age for retirees less than 65 with less than 30 years of creditable service. Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

Authority granted to Board of Trustees. - Neither O.C.G.A. § 47-2-120(a) nor O.C.G.A. § 47-2-1 10(a) provides a formula for the calculation of service retirement benefits; the authority to do so rests with the Board of Trustees of the Employees Retirement System of the State of Georgia (ERS) under the general grant of authority in O.C.G.A. § 47-2-21 to effectuate the provisions of the ERS Act, O.C.G.A. § 47-2-1 et seq., including the specific grants of authority found in O.C.G.A. §§ 47-2-26(a) and 47-2-28(a) and (b). Alverson v. Employees' Ret. Sys., 272 Ga. App. 389 , 613 S.E.2d 119 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Certain members eligible to cease contributions. - Member of the retirement system who has attained 34 years of creditable service, and who is eligible for service retirement and the projection-in-service factor, regardless of age, may elect to cease making contributions to the retirement system, and any member who has continued making contributions after attaining 34 years of creditable service under the assumption that this was required by law would be eligible, upon one's election and request, to be refunded the excess contributions made after the attainment of one's thirty-fourth year of service. 1978 Op. Att'y Gen. No. 78-47.

Availability of projection in service. - Projection in service allowed to members with at least 34 years of service provided for in subsection (d) of O.C.G.A. § 47-2-120 is only available to those persons seeking a service retirement allowance and not those whose retirement allowance is based on the death, disability, or involuntary separation of a member. 1987 Op. Att'y Gen. No. 87-9.

Provision authorizing change in employer contribution rate applicable beginning 1974. - Provisions of subsection (d) of Ga. L. 1974, p. 1177, § 1 (see O.C.G.A. § 47-2-120 ) and Ga. L. 1974, p. 1177, § 2, which authorized the board of trustees to raise the rate of contribution by the employer, are applicable to members of the retirement system who elect to retire with a retirement commencement date of July 1, 1974. 1974 Op. Att'y Gen. No. 74-47.

Right to receive a retirement allowance after 25 years of service, provided for in subsection (e) of O.C.G.A. § 47-2-120 , is not a new "benefit" that has accrued and is not proscribed by O.C.G.A. § 47-2-70(c) . 1999 Op. Att'y Gen. No. 99-10.

47-2-121. Optional retirement allowances.

  1. A member may elect to convert the retirement allowance otherwise payable to him or her into a modified retirement allowance of equivalent actuarial value in accordance with one of the options set forth in subsections (b) through (e) of this Code section; provided, however, that the member may only make such election after he or she has become eligible to retire and before the first payment of his or her retirement allowance normally becomes due; provided, further, that if a member was or is unmarried at the time he or she retires and subsequently marries, such member may make such election not later than December 31, 1998, or within six months after the date of marriage, whichever date is later. If a member with a named living beneficiary dies or is determined to be mentally incompetent after becoming eligible to retire, his or her election, or option two in the absence of such election, shall be effective.
  2. Option one shall consist of a reduced retirement allowance which is payable during the life of the retired member, with the provision that if he dies before he has received in payments of his annuity the amount of his accumulated contributions at the time of his retirement, the balance of such amount shall be paid to the person, if any, nominated by him by written designation duly executed and filed with the board of trustees; otherwise such amount shall be paid to the retired member's estate.
  3. Option two shall consist of a reduced retirement allowance which is payable during the life of the retired member and which, upon his death, shall be continued at the same rate throughout the life of and paid to the person nominated by him by written designation duly executed and filed with the board of trustees at the time of his retirement.
  4. Option three shall consist of a reduced retirement allowance which is payable during the life of the retired member and which, upon his death, shall be continued at the rate of one-half the reduced retirement allowance throughout the life of and paid to the person nominated by him by written designation duly executed and filed with the board of trustees at the time of his retirement.
  5. Any other provisions of law to the contrary notwithstanding, until the first payment of any member's retirement allowance becomes payable and upon approval of the board of trustees, the member shall have the option, which shall be known as option four, to elect to convert his retirement allowance into any method of payments which he may deem necessary. Those payments shall be paid either to the member or, at his election, to any designated person, to the estate of the member, or to the estate of any designated person. Monthly payments under this option which are in excess of the member's monthly retirement allowance when computed without option shall be payable only for a period not to exceed five continuous years from the date of the first payment; and such monthly payments shall not exceed 135 percent of the member's monthly retirement allowance, when computed without option. Except in cases where years certain payments have been established for the member, no monthly allowance shall be payable to the beneficiary in an amount greater than the monthly allowance which would have been payable to the member's beneficiary under option two.

    (e.1) When option two or three is elected and the spouse or child of the retired member who qualifies as a dependent under the Internal Revenue Code of 1986 is the person designated to receive all amounts and benefits upon the death of the retired member, option five shall consist of the added provision that in the event the spouse or dependent child predeceases the retired member, the retirement allowance payable to the retired member after the death of the spouse or dependent child shall be equal to the maximum retirement allowance which the retired member would have been entitled to receive under this chapter.

    (e.2) (1) As used in this subsection, the term "retired member" means a person retired under this chapter who elected an optional allowance under this Code section with the spouse designated as the person to receive all amounts upon the death of the retired member.

    (e.3) (1) As used in this subsection, the term "retired member" means a person retired under this chapter who elected an optional allowance under this Code section with a child who qualifies as a dependent under the Internal Revenue Code of 1986 designated as the person to receive all amounts upon the death of the retired member.

    (e.4) Option six shall consist of a reduced retirement allowance together with a partial lump sum distribution. This option may be elected by any retiring member including members electing another optional allowance under this Code section except that this option shall not be available to members retiring pursuant to Code Section 47-2-123 or members subject to the requirements of subsection (e) of Code Section 47-2-120. The amount of the lump sum distribution under this subsection may not exceed the sum of 36 months of the monthly retirement allowance the retiring member would have received had he or she not elected the partial lump sum option. The partial lump sum distribution will be made as a single payment payable at the time the first monthly retirement allowance is paid to the retired member.

    (2) In the event a designated spouse predeceases a retired member and the retired member subsequently remarries, the retired member may elect to begin receiving an actuarially reduced benefit of equivalent value and reestablish on behalf of the new spouse the same option which was applicable to the deceased former spouse, but such option on behalf of the new spouse may not be reestablished until one year after the date of remarriage or until a child of the remarried couple is born, whichever is earlier.

    (3) This subsection applies to retired members who retired at any time prior to July 1, 1992, as well as to those who retire on or after that date, and it is specifically provided that the election of option five under subsection (e.1) of this Code section is not necessary for the purposes of this subsection.

    (2) In the event a designated dependent child predeceases a retired member and the retired member is married or subsequently marries, the retired member may elect to begin receiving an actuarially reduced benefit of equivalent value and reestablish on behalf of the spouse the same option which was applicable to the deceased dependent child, but such option on behalf of the spouse may not be reestablished until one year after the date of the death of the dependent child or, in the case of the remarriage of the retired member, one year after the date the retired member remarries.

    (3) This subsection applies to retired members who retired at any time prior to July 1, 1996, as well as to those who retire on or after that date.

  6. Any provisions of this Code section to the contrary notwithstanding, any member who has elected option three may waive the payment of one-half of the reduced retirement allowance payable to the person nominated by the member by filing a written declaration of waiver with the board of trustees. The waiver of such payments to the person nominated shall not affect or increase the reduced retirement allowance payable during the life of the retired member, but such waiver shall merely act as a forfeiture of those allowances which would otherwise have been payable to the person nominated by the retired member.
  7. Any other provisions of this Code section or of this chapter to the contrary notwithstanding, the board of trustees may, by rule or regulation, require that when a member or a retired member dies and the beneficiary is a person other than the surviving spouse of the member, the benefits payable to the beneficiary shall be paid to the beneficiary within a definite time period immediately following the death of the member or retired member.
  8. Whenever any retired member has elected an optional allowance under this Code section and the spouse is the person designated to receive all amounts and benefits upon the death of the retired member, the retired member may revoke the election at any time after the entry of a final judgment of complete divorce from the spouse so nominated or the retired member may elect to continue the optional allowance with the former spouse designated to receive all amounts and benefits upon the death of the retired member.  Upon any such revocation or upon the death of the spouse of a retired member who had elected option five, the retired member may elect to begin receiving the maximum retirement allowance which the retired member would have been entitled to receive under this chapter.  In the event any such retired member remarries after divorce from the former spouse and the former spouse was not continued as a beneficiary under the optional allowance after the divorce, the retired member may elect to begin receiving the applicable actuarially reduced retirement benefit of equivalent actuarial value and reestablish on behalf of the new spouse the same option which was applicable to the former spouse, but such option on behalf of the new spouse may not be reestablished until one year after the date of remarriage or until a child of the remarried couple is born, whichever is earlier.
  9. Whenever any retired member was unmarried at the time of retirement and he or she has elected an optional allowance under this Code section and has named a designated beneficiary or beneficiaries to receive all amounts and benefits upon the death of the retired member, the retired member may revoke the election at any time after the member marries or remarries and designate the current spouse as the person to receive all amounts and benefits upon the death of the retired member. In such event, the member shall receive the applicable actuarially reduced retirement benefit of equivalent actuarial value and establish on behalf of the new spouse optional allowance two, three, four, or five, as provided in this Code section. Upon the death of such spouse or upon the entry of a final order of divorce, the provisions of subsection (h) of this Code section shall become applicable.
    1. Upon the death of the retired member and then the death of the person designated to receive continuing retirement benefits under option two, three, four, or five, if the total monthly benefits paid to the retired member and to such person designated to receive continuing benefits, including any partial lump-sum distribution, do not equal or exceed the retired member's accumulated contributions at the time of his or her retirement, the difference shall be refunded to the person designated in writing by the retired member to receive such a refund of this difference. If no such person is designated to receive a refund of this difference, or if such designated person has predeceased the person designated to receive continuing monthly retirement benefits, or if such designees are the same person, this difference shall be paid to the estate of the person designated to receive continuing monthly retirement benefits.
    2. Upon the death of the person designated by the retired member to receive continuing monthly retirement benefits under option two, three, four, five, or six and then the death of the retired member, if the total monthly benefits paid to the retired member prior to his or her death, including any partial lump-sum distribution, do not equal or exceed the retired member's accumulated contributions at the time of his or her retirement, the difference shall be refunded to the person designated in writing by the retired member to receive such a refund of this difference. If the person designated by the retired member to receive a refund of this difference also predeceases the retired member, or if such designees are the same person, or if no person is designated to receive a refund of this difference, this difference shall be paid to the estate of the retired member.

      (Ga. L. 1949, p. 138, § 5; Ga. L. 1957, p. 172, § 1; Ga. L. 1957, p. 283, § 7; Ga. L. 1959, p. 107, § 5; Ga. L. 1961, p. 143, § 4; Ga. L. 1976, p. 247, § 1; Ga. L. 1984, p. 810, § 1; Ga. L. 1988, p. 636, § 1; Ga. L. 1992, p. 1141, §§ 1, 2; Ga. L. 1996, p. 1248, §§ 1, 2; Ga. L. 1998, p. 153, § 1; Ga. L. 2004, p. 580, § 1; Ga. L. 2004, p. 588, §§ 1, 2; Ga. L. 2005, p. 46, § 1/HB 178; Ga. L. 2005, p. 52, § 1/HB 381.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, subsection (i) as added by Ga. L. 2004, p. 588, § 2 was redesignated as subsection (j).

Editor's notes. - Ga. L. 1992, p. 2975, adding subsection (e.2) and amending subsection (h) of this Code section, was not concurrently funded as required by Code Section 47-20-50 and, therefore, did not become law and became repealed on July 1, 1992. Ga. L. 1992, p. 1141, §§ 1 and 2, also adding subsection (e.2) and amending subsection (h) of this Code section, was funded. See the state auditor's report at Ga. L. 1992, p. CDV.

OPINIONS OF THE ATTORNEY GENERAL

Retroactive options. - Insofar as retroactive application of the options created by Ga. L. 1988, p. 636 i.e., subsections (e.1) and (h), is concerned, the options concerning the death of a spouse are not retroactive, but the options concerning divorce are retroactive. 1989 Op. Att'y Gen. No. U89-1.

47-2-122. Vesting of rights to a retirement allowance despite early retirement; retirement allowance payable to such persons.

Except as provided in Article 2 of Chapter 1 of this title, a member's accumulated contributions shall be 100 percent vested and nonforfeitable at all times. The right to a service retirement allowance under this chapter shall vest in any member who withdraws from service with at least ten years of membership service subsequent to January 1, 1954, although the member has not yet attained 60 years of age, provided that the member has not withdrawn the member's contributions. Such member shall become entitled to a service retirement allowance (1) upon filing an application as provided in Code Section 47-2-110 and (2) upon attaining the age of 60 or, at the member's option, at any time subsequent thereto after filing such application. The retirement allowance in the case of any such member shall be the monthly amount the member would have received had the member retired on the last day the member contributed to the retirement system and at that time had been the same age as when the member actually retired. If a member with vested rights dies before reaching age 60, the member's accumulated contributions shall be paid to the member's named living beneficiary, otherwise to the member's estate.

(Ga. L. 1951, p. 394, § 8; Ga. L. 1963, p. 42, § 2; Ga. L. 1972, p. 360, § 4; Ga. L. 2009, p. 947, § 19/HB 202.)

The 2009 amendment, effective May 11, 2009, added the first sentence; and, throughout this Code section, substituted "the member" for "he" and substituted "the member's" for "his".

OPINIONS OF THE ATTORNEY GENERAL

Application of "95% rule" to vesting provisions contained in O.C.G.A. § 47-2-124 to the vesting provisions of O.C.G.A. § 47-2-122 should be resolved by the Board of Trustees of the Employees Retirement System in light of the possible conflict with existing policies. 1992 Op. Att'y Gen. No. 92-24.

47-2-123. Allowance payable upon death, disability, or involuntary separation from employment; restrictions on separation for disability; restrictions on entitlement to involuntary separation benefits.

  1. Upon the death or involuntary separation from employment without prejudice of any member in service, he or she shall be entitled to an allowance in accordance with subsection (c) of this Code section, provided that the provisions of this subsection that relate to "upon becoming involuntarily separated from employment without prejudice" shall not be applicable to any person who first becomes a member after March 31, 1972.
    1. Subject to the provisions of paragraphs (2) through (5) of this subsection, any member in service who has at least 15 years of creditable service may be retired on a disability allowance by the board of trustees, upon written application to the board of trustees by the member or his or her employer and upon certification by the medical board that he or she is medically or physically incapable of further performance of his or her duties in the position he or she held at the time his or her disability originated, that incapacity is likely to be permanent, and that he or she should be retired; provided, however, that the medical board shall not consider any evidence of such disability which is not submitted within 12 months after the date the member submits his or her first application for a disability retirement. The board of trustees may retire such member not less than 30 days nor more than 90 days after execution and filing of the written application.
    2. A member making application for a disability retirement pursuant to paragraph (1) of this subsection shall at the same time submit a copy of such application together with any supporting documentation accompanying such application to his or her employing agency. The member shall thereafter provide the employing agency with any additional information or documentation which he or she submits to the board of trustees in conjunction with such application.
    3. After receipt of the notice provided for in paragraph (2) of this subsection, the head of the member's agency or his or her designee shall conduct an interview with the member applying for disability retirement; provided, however, that any designee of the head of an agency shall be an official at such agency who is above the level of the applicant's immediate supervisor and who has the authority to make job assignment decisions. The interview shall be held within ten business days after receipt of such notice. Based on the interview and information received by the agency pursuant to paragraph (2) of this subsection, the agency head or his or her designee shall determine if an alternative position is available for the member which meets the following requirements:
      1. The physical requirements for such position are compatible with the member's physical limitations;
      2. The annual compensation and possibility for future advancement for such position shall be the same as or greater than that of the current position of the member;
      3. The duties for such position shall be reasonably compatible with the experience and educational qualifications of the member;
      4. The position shall be one which includes the holder thereof as a member of the retirement system provided for by this chapter; and
      5. The position must be available for acceptance by the member and an offer of the position to the official or member must be made, in writing, by not later than 45 days after the member submitted his or her application for a disability retirement.

        An agency making an offer of alternative employment as provided in this paragraph shall so notify the board of trustees within 45 days after the member submitted his or her application for a disability retirement. After receipt of such notice, the board of trustees shall not approve a disability retirement until the procedures of paragraph (4) of this subsection are resolved.

    4. Any member applying for a disability retirement who is offered a position of employment in conformity with the requirements of paragraph (3) of this subsection shall accept the offer or dispute his or her ability to perform the tasks required by the position offered by submitting a written appeal to the agency and to the board of trustees within 30 days after receiving the offer. In the event of an appeal, the agency shall promptly submit to the medical board a detailed description of the requirements of the position offered and the medical board shall determine, based upon all information available to it, whether the member is reasonably capable of performing such tasks. The decision of the medical board shall be final. If the medical board determines that the member is unable to perform the tasks required either by the position held at the time of the application for a disability retirement or the position offered, the member shall be placed on disability retirement immediately.
    5. A member who refuses to accept a position offered or file an appeal in a timely manner or who refuses to accept a position which the medical board has determined on appeal that he or she is capable of performing shall not be eligible to receive a disability retirement under this subsection.
    1. The provisions of this paragraph shall apply only to persons who are members of the retirement system on June 30, 2007. Any member who is at least 60 years of age upon disability retirement, involuntary separation from employment without prejudice, or death shall receive the equivalent of a service retirement allowance. Any such member who is under 60 years of age shall receive, as appropriate, a disability allowance, allowance in case of involuntary separation from employment without prejudice, or death allowance, which shall consist of:
      1. In the case of a member with at least 15 years of service, 75 percent of the service retirement allowance which would have been payable upon service retirement at age 60 had the member continued in service to age 60 without further change in compensation, provided that this subparagraph shall not apply to a member whose employment was terminated by involuntary separation without prejudice;
      2. In the case of a member with at least 20 years of service, the service retirement allowance which would have been payable upon service retirement at age 60 had the member continued in service to age 60 without further change in compensation;
      3. In the case of a member with at least 25 years of service, 75 percent of the service retirement allowance which would have been payable upon service retirement at age 65 had he or she continued in service without further change in compensation; or
      4. In the case of a member with at least 30 years of service, the service retirement allowance which would have been payable upon service retirement at age 65 had he or she continued in service without further change in compensation.

        Any provisions of this chapter to the contrary notwithstanding, in the application of subparagraphs (A), (B), (C), and (D) of this paragraph relating to allowances other than for disability or death, projected retirement allowance computations shall be made on the basis of the member's highest total monthly earnable compensation, as reflected by monthly contributions made during the last 24 calendar months in which he or she had made contributions, except that no salary increase by adjustment in compensation in any manner in excess of 10 percent during the last 12 months of membership service shall be included in the projected computation.

    2. The provisions of this paragraph shall apply only to persons who first or again become members of the retirement system on or after July 1, 2007. Any member who has at least 15 years of creditable service and who becomes disabled before becoming eligible for a service retirement as provided in subsection (a) of Code Section 47-2-110 shall be eligible to retire forthwith without regard to age and to receive a disability retirement allowance calculated upon the number of years of creditable service attained to the date of retirement and based upon his or her highest average monthly compensation during a period of 24 consecutive calendar months while a member of the retirement system. No member who is eligible for an equivalent service retirement shall be eligible to apply for a disability retirement allowance.
    3. In lieu of a death benefit as provided in paragraph (1) of this subsection, a member who first or again becomes a member of the retirement system on or after July 1, 2007, and who has at least ten years of creditable service and is at least 60 years of age or who is less than 60 years of age and has at least 15 years of creditable service shall upon death receive the equivalent of a service retirement allowance calculated upon the number of years of creditable service attained on the date of death and based upon his or her highest average monthly compensation during a period of 24 consecutive calendar months while a member of the retirement system.
  2. In the application of subsection (c) of this Code section to death allowances, computations of projected retirement allowances shall be made on the same basis as though option two had been in effect. In lieu of the amount of death allowance otherwise payable to the beneficiary under option two, the member, upon written request, may at any time elect a reduced level death allowance of equivalent actuarial value, which allowance is payable to the beneficiary during a period of years certain or to the estate of the beneficiary and during the lifetime of such named beneficiary thereafter. At the election of the member, in case of death of the beneficiary during a term of years certain, the balance of the years certain payments may be paid to the estate of the member; but if such beneficiary predeceases the member, the total amount of the member's contributions to the date of his or her death shall be payable to the member's estate. The method of determining the equivalent actuarial value shall be consistent with the actuarial method of determining the beneficiary's death allowance under option two.
  3. Anything in this chapter to the contrary notwithstanding, on and after March 6, 1963, a member who has not accumulated sufficient creditable service to qualify himself or herself for an allowance in case of involuntary separation from employment without prejudice shall not be deemed eligible for such allowances until he or she has accumulated sufficient membership service in a position classified under a merit system provided for by law or in a position covered under the retirement system. This subsection shall not affect the vesting of rights under Code Section 47-2-122. This subsection shall not be retroactive in any manner and shall not apply in any way to any person who was a member on or before February 13, 1962.
  4. The age and service requirements for a service retirement allowance shall not apply to allowances available under this Code section.
  5. From and after January 1, 1985, no employing unit within the government of the State of Georgia, including every department, commission, board, bureau, agency, branch of government, or any other employing unit by whatever name called, which has the authority and power to appoint, employ, release, separate, or fail to reappoint public officials or employees shall release or separate from state service, or fail to reappoint to continued state service, any public official or employee who is entitled to coverage under the involuntary separation retirement benefits provisions of this Code section. A release, separation, or failure to reappoint in violation of the provisions of this subsection shall be illegal, unlawful, and void. However, such releases or separations from state service or failures to reappoint to continued state service shall not be subject to the provisions of this subsection if such releases or separations from service or failures to reappoint occur under any of the following circumstances:
    1. Separation or release from service of an official or employee pursuant to Code Section 47-2-2 or separation or release from service of an official or the failure to reappoint an official by a board when such official serves at the pleasure of the board;
    2. Separation or release from service of an official or employee for any reason which would constitute cause as defined in the rules and regulations of the State Personnel Board if such separation or release from service is not pursuant to Code Section 47-2-2;
    3. Separation or release from service of an official or employee for criminal conduct under the laws of this state, any other state, or the United States; or
    4. A "discretionary termination" which means any one of the following:
      1. Separation or release from service of an official or employee under circumstances in which an official or employee is released or separated or any official's or employee's position or job is abolished through a valid reduction-in-force plan approved by the Department of Administrative Services;
      2. Separation or release from service of any official or employee by reason of a bona fide reorganization of any employing unit, with respect to which reorganization any such separations or releases have been approved in advance by the Governor; or
      3. Separation or release from service of an official or employee, or failure of reappointment of an official or employee, who holds a confidential position to an appointed or elected public official, or a group of appointed or elected public officials, incurred as a result of a change of administration in the office of such appointed or elected public official, or group of appointed or elected public officials.
      4. An explanation of the reasons for the proposed discretionary termination of the official or employee.
    1. Except where termination is required by a sudden and unexpected loss of federal or state funds, an employer intending the discretionary termination of an official or employee shall notify the commissioner of administrative services at least 60 but not more than 120 days prior to the effective date of the discretionary termination of such official or employee. If termination is required by a sudden and unexpected loss of federal or state funds, the employer shall notify the commissioner of administrative services as soon as the employer becomes aware of the loss of funds and the termination shall be delayed until the completion of the procedures required by this subsection. Pending the completion of such procedures, the employee or official proposed for termination because of a sudden and unexpected loss of federal or state funds shall be compensated from any funds appropriated or available to the employer which may be used for such purpose. The notice shall be in writing and a copy thereof shall be forwarded to the board of trustees at the same time it is forwarded to the commissioner of administrative services. The notice shall include the following information:

      (A) The name and current annual compensation of the official or employee proposed for discretionary termination;

      (B) The age, length of service, current job description, and summary of the work experience of the official or employee proposed for discretionary termination;

      (C) The educational qualifications of the official or employee proposed for discretionary termination; and

    2. After receipt of the notice provided for in paragraph (1) of this subsection, the commissioner of administrative services shall schedule an interview with the official or employee proposed for discretionary termination. The interview shall be held within 15 days after receipt of the notice. Based on the interview with the official or employee proposed for discretionary termination and the information provided by the notice received by the commissioner pursuant to paragraph (1) of this subsection, the commissioner shall contact appropriate state departments, boards, bureaus, and other agencies of the state government for the purpose of seeking continued employment for the official or employee proposed for discretionary termination. Any position for continued employment of the official or employee proposed for discretionary termination which is obtained by the commissioner shall meet the following requirements:
      1. The annual compensation for such position shall be the same or greater than the current annual compensation of the official or employee proposed for discretionary termination;
      2. The duties for such position shall be reasonably compatible with the previous work experience and educational qualifications of the official or employee proposed for discretionary termination;
      3. The position shall be one which includes the holder thereof as a member of the retirement system provided for by this chapter; and
      4. The position must be available for acceptance by the official or employee proposed for discretionary termination at least one day prior to the effective date of such termination and an offer of the position to the official or employee must be made, in writing, by not later than the day immediately preceding the effective date of the discretionary termination.
    3. Any official or employee proposed for discretionary termination who is offered a position of continued employment in conformity with the requirements of paragraph (2) of this subsection shall be deemed to have resigned from service at his or her own choice upon the failure of such official or employee to accept the position of continued employment, and no such official or employee so resigning from service shall qualify for retirement benefits based upon involuntary separation from employment without prejudice as authorized by this Code section.
    4. If the commissioner of administrative services fails to obtain a position of continued employment in conformity with the requirements of paragraph (2) of this subsection for an official or employee proposed for discretionary termination, then, on the effective date of the discretionary termination, the official or employee may be considered involuntarily separated from employment without prejudice for the purposes of this Code section.
    5. The commissioner of administrative services shall notify the board of trustees in writing of the action taken by the commissioner pursuant to this subsection and of any position of continued employment which is offered to and accepted or refused by an official or employee proposed for discretionary termination.
    6. It is the intention of this subsection to provide procedures to secure the continued employment of officials and employees who may become subject to discretionary termination, and the provisions of this subsection shall not be construed to create any right to continue in a position of employment when that right does not exist independently of this subsection.

      (Ga. L. 1949, p. 138, § 5; Ga. L. 1951, p. 394, § 6; Ga. L. 1952, p. 175, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 5; Ga. L. 1957, p. 283, §§ 5, 6; Ga. L. 1959, p. 107, § 4; Ga. L. 1962, p. 54, § 5; Ga. L. 1962, p. 152, § 1; Ga. L. 1963, p. 42, § 1; Ga. L. 1968, p. 1361, § 1; Ga. L. 1970, p. 26, § 2; Ga. L. 1971, p. 685, § 1; Ga. L. 1972, p. 360, § 3; Ga. L. 1984, p. 1296, § 3; Ga. L. 1985, p. 209, § 1; Ga. L. 1995, p. 333, § 1; Ga. L. 2006, p. 223, § 1/HB 379; Ga. L. 2007, p. 73, § 1/SB 162; Ga. L. 2009, p. 322, § 2/HB 476; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2010, p. 1207, § 64/SB 436; Ga. L. 2012, p. 413, § 7/HB 805.)

The 2009 amendments. The first 2009 amendment, effective July 1, 2009, added paragraph (c)(3). The second 2009 amendment, effective July 1, 2009, substituted "State Personnel Administration" for "State Merit System of Personnel Administration" in subparagraph (g)(4)(A).

The 2010 amendment, effective July 1, 2010, substituted "ten years" for "10 years" near the middle of paragraph (c)(3).

The 2012 amendment, effective July 1, 2012, substituted "commissioner of administrative services" for "commissioner of personnel administration" throughout this Code section; inserted "or she" in subsection (a) and in the first sentence of subsection (e); inserted "or her" in the third sentence of subsection (d); inserted "or herself" in the first sentence of subsection (e); substituted "Department of Administrative Services" for "State Personnel Administration" in subparagraph (g)(4)(A); and deleted "of personnel administration" following "commissioner" in the third and fourth sentences of paragraph (h)(2).

Editor's notes. - Ga. L. 1984, p. 1296, § 5, not codified by the General Assembly, provided that this Act would become effective on January 1, 1985, only if a proposed amendment (see Ga. L. 1984, p. 1726) to the Constitution (Ga. Const. 1983, Art. III, Sec. X, Para. VI) authorizing the General Assembly to revise provisions of public retirement or pension systems relating to involuntary separation from employment were ratified at the 1984 general election. Such approval was given at that election.

Ga. L. 1984, p. 1296, § 6, not codified by the General Assembly, provided: "Pursuant to the authority of the proposed constitutional amendment described in Section 5 of this Act and being contingent for its effectiveness on January 1, 1985, upon the ratification of such proposed constitutional amendment, this Act is exempt from the provisions of Chapter 20 of Title 47 of the Official Code of Georgia Annotated known as the 'Public Retirement Systems Standards Law.' "

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 107, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

Ga. L. 2012, p. 413, § 1/HB 805, not codified by the General Assembly, provides that: "The purpose of this Act is to make conforming amendments and correct references in Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, relative to the abolition of the State Personnel Administration and the transfer of certain functions of such agency to the Department of Administrative Services as provided by a separate Act." The separate Act referred to is Ga. L. 2012, p. 446/HB 642, which became effective July 1, 2012, and which provides for the abolition of the State Personnel Administration and the transfer of functions.

Ga. L. 2012, p. 413, § 13/HB 805, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, only if an Act abolishing the State Personnel Administration and providing for the transfer of certain functions of such agency to the Department of Administrative Services is enacted and becomes effective on that same date; otherwise, this Act shall not become effective and shall stand repealed on July 1, 2012." Ga. L. 2012, p. 446/HB 642, effective July 1, 2012, provides for the abolition of the State Personnel Administration and the transfer of functions.

Law reviews. - For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986).

JUDICIAL DECISIONS

Legislative intent. - General Assembly intended subsection (h) of O.C.G.A. § 47-2-123 to provide procedures to secure the continued employment of officials and employees who may become subject to discretionary termination, it did not intend to create any right to continue in a position of employment. Alford v. Public Serv. Comm'n, 262 Ga. 386 , 418 S.E.2d 13 (1992).

General Assembly intended for the state to retain employees eligible for involuntary separation benefits, but required the state to offer a reasonably comparable job at the same pay to any employee subject to a discretionary termination. Alford v. Public Serv. Comm'n, 262 Ga. 386 , 418 S.E.2d 13 (1992).

Employee must be personally examined when involuntarily retired for disability. - When an employee is to be involuntarily retired under subsection (b) of this statute, the medical board is required to have the employee personally examined in order to provide a basis for the board's report. Cantrell v. State, 129 Ga. App. 465 , 200 S.E.2d 163 (1973), aff'd, 231 Ga. 704 , 203 S.E.2d 493 (1974), overruled in part on other grounds, Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975) (see O.C.G.A. § 47-2-123 ).

Examination may be by any physician on medical board. - Subsection (b) of this statute does not require that any one or all of the three physicians constituting the medical board personally make the required examination. Cantrell v. State, 129 Ga. App. 465 , 200 S.E.2d 163 (1973), aff'd, 231 Ga. 704 , 203 S.E.2d 493 (1974), overruled in part on other grounds, Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975) (see O.C.G.A. § 47-2-123 ).

Procedures of subsection (h) of O.C.G.A. 47-2-123 are applicable only if benefits under the Act are sought. Tanner v. Freeman, 257 Ga. 146 , 356 S.E.2d 201 (1987).

When the only issue is reinstatement and when the procedure followed to achieve this remedy is an appeal to the State Personnel Board and not the Employees' Retirement System, the technicalities of O.C.G.A. § 47-2-123 do not come into play. Tanner v. Freeman, 257 Ga. 146 , 356 S.E.2d 201 (1987).

Effect of failure to follow termination procedures. - An attempt by the state to terminate the employment of an employee who is entitled to coverage under the involuntary separation retirement benefits provisions of O.C.G.A. § 47-2-123 without following the specified procedures is ineffective. State v. Hudgins, 220 Ga. App. 555 , 469 S.E.2d 363 (1996).

Limited eligibility for deputy conservation rangers. - General Assembly specifically limited eligibility of deputy conservation ranger for benefits to a claim based upon injury incurred in the line of law enforcement duty. The fact that the legislature did not see fit to use the same language with respect to the other officers and agents covered by O.C.G.A. § 47-2-123 is clearly indicative of the intention that the language is to have a different meaning as applied to the other covered employees than it does as applied to a deputy conservation ranger. Allison v. Domain, 158 Ga. App. 542 , 281 S.E.2d 299 (1981).

Prohibition against involuntary separations. - Subsection (g) of O.C.G.A. § 47-2-123 generally prohibits involuntary separations from state government that would trigger the payment of early retirement benefits. Alford v. Public Serv. Comm'n, 262 Ga. 386 , 418 S.E.2d 13 (1992).

When employee entitled to separation benefits. - When an employee has been separated from employment without prejudice, the relevant issue for determining whether the employee is entitled to separation benefits is whether the termination was voluntary or involuntary. Boyd v. Employees' Retirement Sys., 200 Ga. App. 345 , 408 S.E.2d 157 (1991).

Discretionary termination. - When an employee becomes subjected to a discretionary termination, subsection (h) of O.C.G.A. § 47-2-123 requires the commissioner of personnel administration to seek continued employment for the employee at the "same or greater" annual compensation and with duties that are "reasonably compatible with the previous work experience and educational qualifications" of the employee. Alford v. Public Serv. Comm'n, 262 Ga. 386 , 418 S.E.2d 13 (1992).

Discharge not involuntary when caused intentionally by employee. - State employee is not involuntarily discharged from employment when the employee knowingly and intentionally brings about the discharge, or engages in conduct, such as insubordination, excessive absences, or other misconduct which the employee knew or should have known would lead to the employee's dismissal from employment. Haggins v. Employees' Retirement Sys., 255 Ga. 352 , 338 S.E.2d 1 (1986).

Employee's objectionable conduct, consisting of the illegal acceptance of gratuities and the purposeful failure to comply with state laws and regulations, constituted the kind of activity that any employee would know or should have known would result in the employee's dismissal, and thus did not constitute involuntary separation within the meaning of O.C.G.A. § 47-2-123 . Boyd v. Employees' Retirement Sys., 200 Ga. App. 345 , 408 S.E.2d 157 (1991).

Requirements of Public Service Commission. - Although O.C.G.A. § 47-2-123 does not require the Public Service Commission (PSC) to reappoint plaintiff as a confidential secretary, the PSC must offer plaintiff a job with reasonably compatible duties and at the same pay as the plaintiff's former secretarial job. Alford v. Public Serv. Comm'n, 262 Ga. 386 , 418 S.E.2d 13 (1992).

Projections in § 47-2-120(c) and (d) not applicable. - Benefits due as disability retirement under O.C.G.A. § 47-2-123 of the statutes governing the Employees' Retirement System are not to be calculated in reference to O.C.G.A. § 47-2-120(c) and (d), which allow for eligibility for service retirement benefits as if the member were age 65, regardless of the member's age, if the member has tendered 30 or 34 years of service, respectively. Such reference would create a projection on top of a projection. Sledge v. Employees' Retirement Sys., 196 Ga. App. 597 , 396 S.E.2d 550 (1990).

Interpretation of "fail to reappoint." - Phrase "fail to reappoint" in subsection (g) of O.C.G.A. § 47-2-123 means the failure to reappoint an employee to another state position at the same pay and with reasonably compatible duties. Alford v. Public Serv. Comm'n, 262 Ga. 386 , 418 S.E.2d 13 (1992).

Judicial review of disability determination. - Superior court lacked jurisdiction for direct appellate review of the denial of a state employee's application for retirement disability benefits under O.C.G.A. § 47-2-123(b)(1). O.C.G.A. § 47-2-3 was inapplicable because the employee was not discharged from employment. Employees' Ret. Sys. of Ga. v. Harris, 303 Ga. App. 191 , 692 S.E.2d 798 (2010).

Cited in Bd. of Pub. Safety v. Jordan, 252 Ga. App. 577 , 556 S.E.2d 837 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Nonretiring employee contracting hepatitis prior to 1970 not compensated. - Employee who has not retired under Ga. L. 1949, p. 138 and who contracted infectious hepatitis prior to the effective date of Ga. L. 1970, p. 737, § 1 et seq. (see O.C.G.A. Ch. 29, T. 31), would not be compensable. 1970 Op. Att'y Gen. No. U70-170.

Section applicable to unwilling resignation. - When a superior public official having appointing and removing authority over a subordinate public official requests the resignation of the subordinate official, which the subordinate, not willingly by the subordinate's own choice, submits to the superior official, the provisions of this statute are fully as applicable as if the superior official merely had discharged or fired the subordinate. 1968 Op. Att'y Gen. No. 68-130 (see O.C.G.A. § 47-2-123 ).

Construction. - Military service which could be purchased as creditable service pursuant to former O.C.G.A. § 47-2-96(f) could not be used to obtain the 18.1 years necessary to qualify for involuntary separation retirement benefits under paragraph (c)(2) of O.C.G.A. § 47-2-123 . 1991 Op. Att'y Gen. No. 91-32.

Application for involuntary separation may be made to board when official is not formally dismissed. 1968 Op. Att'y Gen. No. 68-130.

General Assembly member's service included in determining involuntary benefits' eligibility. - Applying the rules of statutory construction, the service allowable year for year to former members of the General Assembly is creditable as "membership service" and, hence, is includable for determinations of eligibility for involuntary separation retirement benefits. 1971 Op. Att'y Gen. No. 71-5.

Service as a member of the General Assembly subsequent to January 1, 1954, which has been paid for as membership service in the Georgia Legislative Retirement System, and which has been transferred from the Legislative Retirement System to the Employees' Retirement System of Georgia, is creditable as membership service for the purpose of determining eligibility for the involuntary separation benefits provided by this statute. 1973 Op. Att'y Gen. No. U73-17 (see O.C.G.A. § 47-2-123 ).

Unclassified employees of Department of Technical and Adult Education who are entitled to involuntary separation benefits may only be separated pursuant to a plan approved by the Governor under subparagraph (g)(4)(B) of O.C.G.A. § 47-2-123 . Classified employees who are entitled to involuntary separation benefits, on the other hand, may only be separated under subparagraph (g)(4)(A) of § 47-2-123 if they are separated by a reduction in force plan promulgated consistent with Merit System rules and regulations and approved by the State Merit System. This opinion only addresses involuntary separations under subparagraphs (g)(4)(A) and (g)(4)(B) of § 47-2-123. 1991 Op. Att'y Gen. 91-27.

Death benefits become vested at the time of the death; nothing done by the beneficiary after this event could change the benefits. 1971 Op. Att'y Gen. No. U71-99.

Death allowances equivalent to service retirement benefits. - Upon the death of an eligible employee while in service, the death allowances paid to the employee's beneficiary are the equivalent of service retirement benefits. 1979 Op. Att'y Gen. No. 79-34.

Prohibiting involuntary separation benefits to state employees unconstitutional. - An amendment to the Georgia Constitution prohibiting the grant of involuntary separation retirement benefits to state employees who are by law currently entitled to coverage under the involuntary separation benefits section of the Employees' Retirement System Act would, in all probability, be unconstitutional under the federal Impairment Clause contained in U.S. Const., Art. I, Sec. 10. 1983 Op. Att'y Gen. No. U83-72.

Separation by reason of reorganization. - Subparagraph (g)(4)(B) of O.C.G.A. § 47-2-123 cannot be read as creating authority for an additional means of separating a classified employee via reorganization without going through the state personnel board's reduction-in-force procedure. 1991 Op. Att'y Gen. 91-22.

Loss of federal or state funds. - Under the procedural requirements of subsection (h) of O.C.G.A. § 47-2-123 , an employer cannot be charged with the knowledge of a loss of funds until the employer was aware of the specific cuts to the specific agency's budget, and not merely aware of the overall statewide budget crisis. 1991 Op. Att'y Gen. 91-22.

Internal reassignment. - If an agency has identified another position in the agency which meets the four requirements of paragraph (h)(2) of O.C.G.A. § 47-2-123 , it can simply offer to reassign an employee who would otherwise be terminated to the position without following the process of notification to the commissioner of personnel administration. 1997 Op. Att'y Gen. No. 97-17.

Reassignment from classified to unclassified service. - If an agency has identified another position in the agency which meets the four requirements of paragraph (h)(2) of O.C.G.A. § 47-2-123 , but would entail reassignment of the employee from the classified service to the unclassified service, the unclassified position would be considered a comparable position. 1997 Op. Att'y Gen. No. 97-17.

RESEARCH REFERENCES

ALR. - Collateral source rule: injured person's receipt of statutory disability unemployment benefits as affecting recovery against tort-feasor, 4 A.L.R.3d 535.

47-2-123.1. Procedures to secure continued employment of employees subject to discretionary termination.

Repealed by Ga. L. 1984, p. 1296, § 4, effective January 1, 1985.

Editor's notes. - Ga. L. 1984, p. 1296, § 4, repealed this Code section. However, § 5 of that Act provided that the repeal would become effective on January 1, 1985, only if a proposed amendment (see Ga. L. 1984, p. 1726) to the Constitution (Ga. Const. 1983, Art. III, Sec. X, Para. VI) authorizing the General Assembly to revise provisions of public retirement or pension systems relating to involuntary separation from employment were ratified at the 1984 general election. Such approval was given at that election.

This Code section was enacted at the same legislative session as the Act which provided for its repeal. See Ga. L. 1984, p. 1309, § 1 for the enacting provisions.

47-2-124. Eligibility for benefits of persons with at least 95 percent of required service credit.

Any member who is serving in the year which represents 95 percent of the required time for vesting of benefits under Code Section 47-2-111 or 47-2-122 or of the required time for benefits under subsections (c) through (e) of Code Section 47-2-123 shall be deemed to qualify for the required number of years.

(Ga. L. 1953, Nov.-Dec. Sess., p. 160, § 2; Ga. L. 1994, p. 297, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

What constitutes actual required creditable service for death benefits. - Although Ga. L. 1967, p. 751, § 4 (see O.C.G.A. § 47-2-130 ) speaks in terms of 15 years of creditable service, the actual required creditable service for death benefits is 13 years and four months under the provisions of Ga. L. 1953, Nov.-Dec. Sess., p. 160, § 2 (see O.C.G.A. § 47-2-124 ). 1976 Op. Att'y Gen. No. U76-9.

Application of "95% rule" to O.C.G.A. § 47-2-122 . - Question of how to apply the "95% rule" in O.C.G.A. § 47-2-124 to the vesting provisions of O.C.G.A. § 47-2-122 should be resolved by the Board of Trustees of the Employees Retirement System in light of the possible conflict with existing policies. 1992 Op. Att'y Gen. No. 92-24.

The 95% rule not applicable to § 47-2-111 . - The 95% rule of O.C.G.A. § 47-2-124 does not apply to the calculation of retirement benefits under O.C.G.A. § 47-2-111 , since by the statute's plain language, § 47-2-124 only applies to the calculation of benefits pursuant to O.C.G.A. §§ 47-2-122 and 47-2-123 . 1993 Op. Att'y Gen. No. 93-12 (issued prior to the 1994 amendment to this Code section).

47-2-125. Reexamination of persons receiving disability benefits; effect of refusal to undergo examination; effect of ability to engage in gainful employment.

    1. Once each year during the first five years following the retirement of a member on a disability retirement allowance and once in every three-year period thereafter, the board of trustees may require a disability beneficiary who has not yet attained retirement age as specified in subsection (a) of Code Section 47-2-110 to undergo a medical examination by a physician or physicians designated by the medical board. The disability beneficiary may request such an examination. Should any disability beneficiary who has not yet attained retirement age refuse to submit to such medical examination, the pension of such disability beneficiary may be discontinued by the board of trustees until the withdrawal of such refusal; and should the refusal continue for one year, all rights of the disability beneficiary in and to a pension may be revoked by the board of trustees.
    2. Should the medical board report and certify to the board of trustees that a disability beneficiary is engaged in or is able to engage in a gainful occupation paying more than the difference between the disability beneficiary's retirement allowance and the earnable compensation used to calculate the disability retirement allowance at the time of retirement, the board of trustees may reduce the disability beneficiary's pension to an amount which, together with the disability beneficiary's annuity and the amount earnable by the disability beneficiary, equals the earnable compensation used to calculate the disability retirement allowance at the time of retirement. Should the disability beneficiary's earning capacity be later changed, the amount of the pension may be further modified, provided that the modified pension shall not exceed an amount which, together with the disability beneficiary's annuity and the amount earnable by the disability beneficiary, equals the earnable compensation used to calculate the disability retirement allowance at the time of retirement.
    3. The provisions of this paragraph shall apply to persons who first or again become members of this retirement system on or after September 1, 2010. For purposes of paragraph (2) of this subsection, the amount earnable by the beneficiary shall include any income payment received from workers' compensation; provided, however, that in the event of a lump sum payment, the monthly disability allowance shall be reduced on an actuarial basis as determined by the actuary of this retirement system.
  1. The board of trustees may require a disability beneficiary who has not yet attained retirement age as specified in subsection (a) of Code Section 47-2-110 to provide information relevant to any provision of this chapter relating to his or her entitlement to receive a disability retirement. Should any disability beneficiary who has not yet attained retirement age refuse to submit any such information so requested, the board of trustees may suspend the retirement allowance of such disability beneficiary until such information is provided. Should the board of trustees receive information from any source that a disability beneficiary is engaged in an occupation paying more than the difference between the disability beneficiary's retirement allowance and the earnable compensation used to calculate the disability retirement allowance at the time of retirement, the board of trustees may reduce the disability beneficiary's pension to an amount which, together with the disability beneficiary's annuity and the amount earnable by the disability beneficiary, equals the earnable compensation used to calculate the disability retirement allowance at the time of retirement. Should the disability beneficiary's earnings later be changed, the amount of the pension may be further modified, provided that the modified pension shall not exceed an amount which, together with the disability beneficiary's annuity and the amount earnable by the disability beneficiary, equals the earnable compensation used to calculate the disability retirement allowance at the time of retirement.

    (Ga. L. 1949, p. 138, § 5; Ga. L. 1992, p. 1108, § 1; Ga. L. 2005, p. 555, § 1/HB 459; Ga. L. 2010, p. 414, § 1/HB 172.)

The 2010 amendment, effective May 24, 2010, in subsection (a), designated the existing provisions as paragraphs (a)(1) and (a)(2); substituted "by a physician or" for ", such examination to be made at the disability beneficiary's place of residence or other place mutually agreed upon, by" near the end of the first sentence of paragraph (a)(1); and added paragraph (a)(3).

JUDICIAL DECISIONS

Legislature intended personal physical examination and not review of uncertified medical records or physician reports. Cantrell v. State, 129 Ga. App. 465 , 200 S.E.2d 163 (1973), aff'd, 231 Ga. 704 , 203 S.E.2d 493 (1974), overruled in part on other grounds, Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975).

47-2-126. Restoration to service of disability beneficiary.

If a disability beneficiary is restored to service, the retirement allowance of the beneficiary shall cease and the beneficiary shall again become a contributing member of the retirement system. Anything in this chapter to the contrary notwithstanding, any prior service certificate or creditable service which was used to compute such a member's creditable service at the time of retirement shall be restored to full force and effect, and upon the member's subsequent retirement the member shall be credited with all service as a member.

(Ga. L. 1949, p. 138, § 5; Ga. L. 1951, p. 394, § 7; Ga. L. 1990, p. 525, § 1.)

47-2-127. Applicable ages for computation of benefits; duration of benefits.

In the application of Code Sections 47-2-121, 47-2-123, 47-2-124, and subsection (d) of Code Section 47-2-120 to allowances, the monthly benefit of the member, whether dead or in life, or his beneficiary shall be computed as if the member attained age 60 or 65, whichever is applicable, and upon reaching that age applied for a retirement allowance. The monthly benefit so computed shall be payable for the life of the member or pursuant to the terms of the option, if any, selected by the member under Code Section 47-2-121.

(Ga. L. 1957, p. 283, § 10.)

47-2-128. Survivors benefit coverage; fund; contributions.

  1. Wherever the term "survivors benefits" is used or referred to in this chapter, it shall be construed to be group term life insurance.
  2. Pursuant to the provisions of this Code section, Code Section 47-2-129, and rules or regulations adopted for such purpose, the board of trustees may provide for survivors benefits for members, former members, and retired members of the retirement system.
  3. Notwithstanding Article 3 of this chapter, there shall be established an additional fund, to be known as the "survivors benefit fund," which shall be administered in the following manner:
    1. There shall be accumulated in the survivors benefit fund the contributions deducted from the earnable compensation of members covered for survivors benefits, together with payments made to the fund by employers, including interest earned on deposits and investments of such funds;
    2. There shall also be accumulated in the survivors benefit fund the payments required of retired members and vested former members covered for survivors benefits as provided in subsections (g) and (h) of this Code section, together with interest earned on such payments; and
    3. All assets of the survivors benefit fund and all income, interest, and dividends derived from deposits and investments shall be used for the payments of benefits and expenses necessary for the maintaining of survivors benefit coverage. Such benefits and expenses shall in no manner become an obligation of the pension accumulation fund.
  4. Contributions for survivors benefits shall be provided for and administered in the following manner:
    1. After notice from the board of trustees, each employer shall cause to be deducted from the earnable compensation of each member during every payroll period the additional amount established by the board of trustees, but not to exceed one-half of 1 percent of the member's earnable compensation. Such deductions shall be made under the same conditions as set forth in paragraph (2) of subsection (a) of Code Section 47-2-51 and, except for those members who are not eligible for survivors benefits, that amount shall be the member's payment for such coverage;
    2. Any member who is not eligible for survivors benefits shall have the additional contributions provided for in paragraph (1) of this subsection credited to the member's annuity savings account to be used to purchase an additional annuity at retirement under the conditions set forth in paragraph (3) of subsection (a) of Code Section 47-2-51; and
    3. There is authorized an employer payment to the fund which shall be a percentage of the earnable compensation of the members of the retirement system.  The board of trustees shall establish the rate of such payment, but in no case shall such rate, when added to the members' contributions, exceed 1 percent.  Funds for employer payment shall be requested in the same manner as provided in Code Section 47-2-57.
  5. The board of trustees may adopt or rescind any rules or regulations which are not in conflict with this Code section and which it deems necessary in establishing and maintaining the plan of operation, including benefit tables and other provisions of coverage.  Such rules and regulations shall include the following:
    1. A member's payment for coverage shall vest in the member no rights other than for the period for which the member has paid the required additional contributions into the survivors benefit fund;
    2. A notice by the board of trustees to members through their employers that the additional contributions provided for in this Code section will in the future be credited to the individual member's annuity savings account under conditions set forth in paragraph (3) of subsection (a) of Code Section 47-2-51 shall suspend any and all survivors benefit coverage then in effect, provided that such action shall be applicable to all members alike and without prejudice to any survivors benefits pending in the case of a then deceased member; and
    3. Subsequent to any notice released under paragraph (2) of this subsection, any additional notice made in the same manner and within 12 months of the original notice to the effect that coverage is again available shall reestablish survivors benefits to those formerly covered and to all new members who are otherwise eligible, except that within 30 days from the date of such notice any member may decline benefits under this Code section.
  6. The board of trustees may determine the date on which the plan for survivors benefit coverage shall be placed into operation, provided that such date shall not be prior to July 1, 1953. The board of trustees shall notify all employers who, in turn, shall notify the members that additional contributions will commence on the determined date.
  7. Except as otherwise provided in subsection (i) of this Code section, in the event a member retires, the retired member shall continue paying the amount provided for under this Code section which the member  was paying at the time of retirement; and the benefits provided for under this Code section shall remain fixed at the same amount as they would have been had the member died on the day immediately preceding the date of retirement.  The board of trustees is authorized to promulgate rules and regulations to cover this subsection.
  8. Any other provisions of this chapter or any rules or regulations to the contrary notwithstanding, any member who withdraws from service before attaining age 60 but whose right to a service retirement allowance has vested under Code Section 47-2-122 may continue paying the amount under this Code section which the member was paying at the time of withdrawing from service, together with the amount of the employer contribution in effect at the time of such withdrawal, in which case the benefits under this Code section shall remain fixed at the same amount as they would have been had the member died on the day immediately preceding the member's withdrawal. Only those members with at least 18 years of creditable service at the time of withdrawal from service shall be eligible under this subsection.  The board of trustees is authorized to promulgate rules and regulations to cover this subsection.
  9. As applied to those members whose first membership in the retirement system is on or after April 1, 1964, the survivors benefits program may provide for a reduction of benefits after the attainment of a certain age and for a different or no contribution after retirement based on such reduction in benefits.

    (Ga. L. 1953, Jan.-Feb. Sess., p. 323, § 1; Ga. L. 1961, p. 158, §§ 1-3; Ga. L. 1964, p. 119, § 3; Ga. L. 1967, p. 751, §§ 5-7; Ga. L. 1976, p. 453, § 1; Ga. L. 1977, p. 670, § 1; Ga. L. 1979, p. 1259, § 1; Ga. L. 1990, p. 1263, § 1; Ga. L. 1993, p. 86, § 1.)

Law reviews. - For article surveying recent legislative and judicial developments regarding Georgia's insurance laws, see 31 Mercer L. Rev. 117 (1979).

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968); Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Member may change life insurance beneficiaries at any time. - Any member of the retirement system covered under the life insurance provisions has the right, under Ga. L. 1949, p. 138 et seq. (see O.C.G.A. Ch. 2, T. 47) and the terms of the member's policy, to change the member's beneficiaries at any time, assuming there is no judicial decision or statutory prohibition to the contrary. 1977 Op. Att'y Gen. No. 77-18.

Cannot change life insurance beneficiaries by will. - Attempt by a member of the retirement system to change the member's beneficiary for the life insurance payment and the monthly retirement benefit by will is of no legal effect and should be considered a "mistake" in the construction of that provision of the will. 1974 Op. Att'y Gen. No. 74-92.

Appellate judges serving on April 1, 1964 continue contributing same amount. - Justices on the Supreme Court of Georgia and Judges on the Court of Appeals of Georgia who were serving as appellate judges on April 1, 1964, are to be afforded group term life insurance protection (formerly survivor benefits) on the same basis as if the justice's had been members of the retirement system on January 1, 1953, or after, including the right to retain full life insurance coverage after retirement pursuant to the conditions in subsection (g) of this statute. 1977 Op. Att'y Gen. No. U77-20 (see O.C.G.A. § 47-2-128 ).

47-2-129. Group term life insurance protection as part of survivors benefits program.

The board of trustees may provide group term life insurance protection for the members of the retirement system as the survivors benefits program provided for in Code Section 47-2-128 by contracting for such service with the State Employees' Assurance Department or any insurance company licensed to operate in Georgia, which company has experience in the underwriting of groups similar in size and type of coverage. Such contract must provide benefits to those persons entitled to benefits under Code Section 47-2-128. All or any part of funds and other assets previously accumulated for the purposes of Code Section 47-2-128 may be used by the board of trustees in the execution of this contract. Contributions for such coverage shall be provided for and collected as set forth in subsection (d) of Code Section 47-2-128.

(Ga. L. 1963, p. 520, § 1; Ga. L. 1967, p. 751, § 8; Ga. L. 1990, p. 1263, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Member may change life insurance beneficiaries at any time. - Any member of the retirement system covered under the life insurance provisions has the right, under Ga. L. 1949, p. 138 et seq. (see O.C.G.A. Ch. 2, T. 47) and the terms of the member's policy, to change the member's beneficiaries at any time, assuming there is no judicial decision or statutory prohibition to the contrary. 1977 Op. Att'y Gen. No. 77-18.

47-2-130. Refund of accumulated contributions upon termination of employment other than by death or retirement.

If a member ceases to be an employee other than by death or by retirement on an allowance under this retirement system, the amount of his accumulated contributions to this retirement system shall be payable to him upon his request. If a member dies before becoming eligible to retire and before completing 15 years of creditable service, the amount of his accumulated contributions shall be paid to the living person, if any, nominated by him by written designation duly executed and filed with the board of trustees, provided that such beneficiary is alive at the member's death. Otherwise, the accumulated contributions shall become part of the member's estate.

(Ga. L. 1949, p. 138, § 5; Ga. L. 1951, p. 394, § 7; Ga. L. 1967, p. 751, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Employer's contribution to the retirement system may not be refunded if the employee resigns or is otherwise terminated during the employee's probationary period. 1974 Op. Att'y Gen. No. 74-55.

Appellate judge terminated prior to retirement may recover contributions. - If a judge is required to make contributions to the Superior Court Judges Retirement Fund of Georgia, the judge or the judge's estate may recover such contributions if the judge's service as an appellate court judge is terminated prior to the time that the judge is entitled to receive benefits under such retirement systems. 1976 Op. Att'y Gen. No. U76-9.

Retirement documents constructively delivered to trustees. - Retirement system has delegated to the personnel offices of the various state agencies the apparent authority to disperse and accept retirement documents, to the point that when delivered by a member to his agency's personnel office, these documents are constructively filed with the board of trustees. 1973 Op. Att'y Gen. No. 73-179.

What constitutes actual required creditable service for death benefits. - Although Ga. L. 1967, p. 751, § 4 (see O.C.G.A. § 47-2-130 ) speaks in terms of 15 years of creditable service, the actual required creditable service for death benefits is 13 years and four months under the provisions of Ga. L. 1953, Nov.-Dec. Sess., p. 160, § 2 (see O.C.G.A. § 47-2-124 ). 1976 Op. Att'y Gen. No. U76-9.

ARTICLE 8 PROVISIONS APPLICABLE TO PARTICULAR GROUPS OF EMPLOYEES

OPINIONS OF THE ATTORNEY GENERAL

Retirement rights vest upon active service. - Retirement rights become vested in the claimant immediately upon any participation in active service while the civil service provisions are in effect, irrespective of whether at the time in question the claimant has completed sufficient length of service to be eligible for retirement as a matter of right; such rights cannot be constitutionally divested by any subsequent Act of the General Assembly. 1971 Op. Att'y Gen. No. 71-5 (rendered under Ga. L. 1949, p. 138, § 3, as amended).

RESEARCH REFERENCES

ALR. - Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income, 7 A.L.R.2d 692.

PART 1 P ERSONS EMPLOYED BY THE ARMED FORCES OF THE UNITED STATES AND OTHER FEDERAL AGENCIES

47-2-140. Credit for transfer to a federal agency during a national emergency; retransfer to employment under retirement system; termination of federal employment.

  1. Anything in this chapter to the contrary notwithstanding, an employer contribution shall be made on the account of a member who is transferred to a federal agency during a national emergency, provided that the transfer is made pursuant to an official request to the member for his services, together with a request that the employer release the member to perform national emergency services; and provided, further, that termination of the employment with the federal agency is for the purpose of returning to employment under the retirement system or entering the armed forces of the United States. This subsection shall be applicable only if certified copies of the official requests shall be filed with the retirement system at the time of transfer.
  2. Upon retransfer to employment under the retirement system, the member shall make a lump sum employee contribution through his employer to the retirement system for the period during which he was employed by the federal agency. Both this lump sum contribution and the employer contributions under subsection (a) of this Code section shall be the same as would have been contributed had the member remained in his former position and continued to make the same contributions as were made in the last month before his transfer to the federal agency. The employer contribution shall be paid from the expense fund established under Code Section 47-2-60.
  3. Upon retransfer to employment under the retirement system and payment of the employee and employer contributions for the period during which he served in the federal agency, the member shall be treated, for purposes of receiving benefits under this chapter, as if he were employed under the retirement system during such time.
  4. A member who leaves service with a federal agency under conditions other than those set forth in subsection (a) of this Code section shall upon written request be eligible for refund of contributions made by him up to the time of his transfer. No further employer contributions shall be made on the account of such a member after such termination of service.
  5. Nothing in this Code section shall be construed as meaning that any individual affected thereby is in service until he returns to employment under the retirement system.

    (Ga. L. 1951, p. 394, § 3.)

47-2-141. Employer contributions for transfer to federal agency; accumulated pension credits; effect of failure to return to state employment.

  1. Anything in this chapter to the contrary notwithstanding, an employer contribution shall be made to the account of any member who during a national emergency enters or in time of peace is drafted into the armed forces of the United States directly from state employment or from employment in a federal agency after having been transferred to such agency from state employment under Code Section 47-2-140.  The contribution shall be made by the employer for the period during which the member served in the armed forces of the United States and in the same amount as would have been contributed by the employer had the member remained in employment under the retirement system without change in compensation during that period, provided that such contribution shall be made for not more than five years of such period.  Such contribution shall be paid into the pension accumulation fund as provided in Code Section 47-2-55.
  2. The employer contribution made on the member's account shall entitle him to the accumulated pension credits for such period only if within one year of his discharge he returns to employment under the retirement system or with the federal agency to which he was transferred pursuant to Code Section 47-2-140. If the member fails to return to such federal or state employment within one year of his discharge, his benefits under the retirement system shall be limited to his accumulated contributions at the time of his original transfer from state employment or entry into the armed forces of the United States, in which case his accumulated contributions shall be refunded to him upon his written request, and no further employer contributions shall be made on his account after such one-year period.
  3. Nothing in this Code section shall be construed as meaning that any individual affected thereby is in service until such person returns to state employment.

    (Ga. L. 1951, p. 394, § 4; Ga. L. 1991, p. 1297, § 1.)

Cross references. - Creditable service not allowed for military service from which discharge was other than honorable, § 47-1-11 .

47-2-142. Credit for prior service rendered by persons transferred under loan to a federal agency but ineligible for federal service retirement membership or who served overseas with the Red Cross during World War II.

Repealed by Ga. L. 2010, p. 1207, § 19, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1949, p. 138, § 4; Ga. L. 1973, p. 1410, § 1; Ga. L. 1982, p. 3, § 47; Ga. L. 2009, p. 752, § 1/SB 98.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

PART 2 M EMBERS AND EMPLOYEES OF THE GENERAL ASSEMBLY

47-2-160. Inclusion of General Assembly members in retirement system; effect on rights under the Georgia Legislative Retirement System; rules and regulations; amount and financing of contributions.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 20, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1965, p. 106, § 3; Ga. L. 1965, p. 199, § 2; Ga. L. 1971, p. 109, § 1; Ga. L. 1972, p. 543, § 1; Ga. L. 1973, p. 95, § 1.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-161. Membership service credit for service as a member of the General Assembly between January 1, 1954, and January 1, 1967.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 21, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1965, p. 106, § 2; Ga. L. 1965, p. 199, §§ 1, 4; Ga. L. 1968, p. 199, § 1; Ga. L. 1981, p. 1856, § 1.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-162. Eligibility of persons who are members of the General Assembly during or after January, 1962, for survivors benefits; contributions for such coverage; right to decline coverage.

  1. Beginning in January, 1962, current and future members of the General Assembly shall make contributions to the retirement system for the limited purpose of providing survivors benefits under Code Sections 47-2-128 and 47-2-129, provided that any member of the General Assembly may reject such coverage, in which case no contributions shall be made by him or her; provided, further, that the provisions of this Code section shall not apply to any person who becomes or again becomes a member of the General Assembly on or after July 1, 2009.
  2. If a member accepts such coverage, the legislative fiscal officer is authorized and directed to pay to the board of trustees from funds appropriated for the operation of the General Assembly all accumulated contributions for survivors benefits that would have been paid had members of the General Assembly received survivors benefits coverage when it was originally extended to members of the retirement system.

    (Ga. L. 1962, p. 54, § 3; Ga. L. 2009, p. 398, § 1/SB 177.)

The 2009 amendment, effective July 1, 2009, near the end of subsection (a), inserted "or her" and substituted "the provisions of this Code section shall not apply to any person who becomes or again becomes a member of the General Assembly on or after July 1, 2009" for "in the event of the death of any member of the 1962 General Assembly prior to February 13, 1962, such member shall be deemed to have elected survivors benefits coverage, in which case any benefits payable shall be made to the deceased member's surviving spouse and shall be paid from the sum of all contributions required under this Code section" at the end.

47-2-163. Group term life insurance for members and former members of General Assembly; contributions.

Any other provisions of this chapter to the contrary notwithstanding, the board of trustees is authorized by rules or regulations to provide for group term life insurance protection for members and former members of the General Assembly; provided, however, that the provisions of this Code section shall not be applicable to persons who become or again become members of the General Assembly on or after July 1, 2009. The board of trustees may contract for such coverage with the State Employees' Assurance Department pursuant to the provisions of Chapter 19 of this title. The board of trustees shall determine the amount of such coverage and the employee contribution that shall be made for such coverage by the members of the General Assembly. The board of trustees shall also determine the employer contribution necessary for such group term life insurance protection for members of the General Assembly. Such employer contribution shall be paid from funds appropriated or available to the legislative branch of the state government. The employee and employer contributions shall be paid into the survivors benefit fund provided for in subsection (c) of Code Section 47-2-128.

(Ga. L. 1962, p. 54, § 6; Ga. L. 1982, p. 3, § 47; Ga. L. 1990, p. 1263, § 3; Ga. L. 2009, p. 398, § 2/SB 177.)

The 2009 amendment, effective July 1, 2009, added the proviso at the end of the first sentence.

JUDICIAL DECISIONS

Cited in Ross v. Odom, 401 F.2d 464 (5th Cir. 1968); Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 (1975).

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 319 et seq. 81A C.J.S., States, § 218.

47-2-164. Membership of employees of the General Assembly; contributions.

  1. Anything in this chapter to the contrary notwithstanding, any employee of the General Assembly who is in a position which normally requires actual performance of duties during the full 12 months of the calendar year, as reflected by the state auditor's report, shall, as a condition of his employment, become a member of the retirement system. Any contributing member who, without a break in service, becomes an employee of the General Assembly shall continue his membership during such employment.
  2. Contributions from employees of the General Assembly shall be deducted by the legislative fiscal officer and remitted to the board of trustees, together with required employer contributions. The legislative fiscal officer is authorized and directed to pay the employer contribution from the funds appropriated for the operation of the General Assembly.
  3. This Code section shall become effective on February 13, 1956, so as to apply to the 1956 regular term and all subsequent terms of the General Assembly.

    (Ga. L. 1956, p. 54, § 3.)

47-2-165. Effect on retirement allowances of compensation, per diem, allowances, and expenses received as a member of the General Assembly.

Anything in this chapter to the contrary notwithstanding, the payment of a member's retirement allowances shall not be suspended because of the compensation, per diem, allowances, and expenses received by him as an elected member of the General Assembly.

(Ga. L. 1963, p. 547, § 2.)

47-2-166 through 47-2-168.

Repealed by Ga. L. 2010, p. 1207, §§ 22 through 24, effective July 1, 2010.

Editor's notes. - These Code sections were based on Ga. L. 1964, p. 158, § 2; Ga. L. 1967, p. 495, § 1; Ga. L. 1973, p. 95, § 1.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

PART 3 T EACHERS AND MEMBERS OF THE TEACHERS RETIREMENT SYSTEM OF GEORGIA

47-2-180. Right to a prior service certificate for service as a teacher in the public schools of Georgia; contents of application for a certificate.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 25, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1949, p. 138, § 4.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-181. Transfer of service credits and accumulated contributions from the Teachers Retirement System of Georgia to this retirement system; transfer of funds.

  1. Any other provisions of law to the contrary notwithstanding, any member, except a member subject to subsection (b) of this Code section, who was previously a member of the Teachers Retirement System of Georgia who has service credits with said teachers retirement system may have such service credits and accumulated contributions under said teachers retirement system transferred to the Employees' Retirement System of Georgia, provided that such transferred service credits shall not be used in determining the qualifications of a member for benefits other than vested rights or disability, death, or normal service retirement allowances. The Teachers Retirement System of Georgia shall pay an employer contribution together with regular interest thereon to the Employees' Retirement System of Georgia for each member establishing creditable service under this subsection. The amount of such employer contributions shall be 6 percent of the reported compensation of the member establishing creditable service during membership in the Teachers Retirement System of Georgia. Any member who elects to transfer such service credits shall so notify the board of trustees in writing.
  2. Pursuant to Code Section 47-3-81, any employee of an agency under the retirement system may transfer his or her service credit to the credit of his or her membership in the Teachers Retirement System of Georgia in the event that he or she enters service as a teacher, as defined in Code Section 47-3-1.
    1. Any provision of this title to the contrary notwithstanding, any vested member of the Teachers Retirement System who becomes an employee of an employer may, at his or her option, elect to remain a member of the Teachers Retirement System of Georgia.
    2. If a person subject to this subsection elects to remain a member of the Teachers Retirement System of Georgia, the employer and employee shall make all contributions to such retirement system and perform such other acts as are required by law or regulation.
    3. If a person subject to this subsection does not elect to remain a member of the Teachers Retirement System of Georgia, he or she shall become a member of this retirement system subject to all provisions of this chapter.
    4. This subsection shall be applicable to each person who was a member of this retirement system on January 1, 1997, and to all persons who become a member on or after such date. Any person subject to this subsection who became a member of the Teachers Retirement System of Georgia between January 1, 1997, and June 30, 1998, who elects to remain a member of this retirement system shall be governed by the provisions of subsection (a) of this Code section relating to the transfer of service credits and accumulated contributions. Any person eligible to make the election provided for in this subsection shall do so in writing to the board of trustees not later than September 30, 2000, or within 60 days after the person became an employee of an employer, whichever date is later. Once made, the election is irrevocable.
    5. The provisions of this subsection shall not become a part of the employment contract and shall be subject to subsequent legislation; provided, however, that no person who has made the election provided by this subsection shall be affected by any subsequent legislation.
    1. At the time the membership of a person is transferred from the Teachers Retirement System of Georgia to this retirement system subject to Article 10 of this chapter, this retirement system shall receive the funds transferred from the Teachers Retirement System of Georgia pursuant to Code Section 47-3-81 and, as applicable, add the accrued benefit transferred from the Teachers Retirement System of Georgia to the accrued benefit or the balance of employee contributions and interest. The total benefits of any such member shall be subject to the rules of this retirement system.
    2. At the time the membership of a person subject to Article 10 of this chapter transfers to the Teachers Retirement System of Georgia, this retirement system shall:
      1. Calculate the accumulated benefit using the service and compensation at the time of the transfer;
      2. Calculate the present value of the accrued benefit using methods and assumptions adopted by the board of trustees; and
      3. Transfer to the Teachers Retirement System of Georgia the greater of the present value of the accumulated benefit or the balance of the employee contributions and interest.
    3. All service transferred pursuant to this subsection shall be calculated as credit in this retirement system for all purposes in this retirement system.
    4. This retirement system and the Teachers Retirement System of Georgia shall recalculate the accumulated benefit of any person transferred between such retirement systems from January 1, 2009, through June 30, 2012, according to the methods prescribed by this subsection.

      (Ga. L. 1962, p. 54, § 8; Ga. L. 1968, p. 1407, § 2; Ga. L. 1973, p. 900, § 10; Ga. L. 1982, p. 3, § 47; Ga. L. 1992, p. 1110, § 2; Ga. L. 1998, p. 775, § 1; Ga. L. 2000, p. 1273, § 1; Ga. L. 2012, p. 1051, § 1/SB 286.)

The 2012 amendment, effective July 1, 2012, added subsection (d).

RESEARCH REFERENCES

ALR. - Services included in computing period of service for purpose of teachers' seniority, salary, tenure, or retirement benefits, 56 A.L.R.5th 493.

47-2-182. Credit for service to certain members of local retirement systems.

  1. As used in this Code section, the term:
    1. "Local retirement system" means a retirement system maintained by a county or independent school district for the purpose of providing a retirement benefit program for the teachers and other employees of the county or independent school district.
    2. "Teacher" means a teacher as defined in paragraph (28) of Code Section 47-3-1.
  2. Any member who was employed by a county or independent school district as a teacher at any time prior to July 1, 1979, and who was a member of a local retirement system during such employment and who is not and will not become eligible to receive any benefit under the provisions of said local retirement system shall be eligible to obtain creditable service under this retirement system for any part or all of such previous employment as a teacher, subject to the following conditions and requirements:
    1. The member must pay to the board of trustees employee and employer contributions for the creditable service claimed under this Code section based on the compensation actually received for the teaching service claimed as creditable service;
    2. The member must pay to the board of trustees regular interest on the amount determined under paragraph (1) of this subsection compounded annually from the time the teaching service was rendered until the time of payment; and
    3. No creditable service obtained under this Code section shall be used in determining the qualifications of a member to receive benefits under this chapter other than vested rights, death or disability benefits, or normal service retirement allowances.
  3. Any member wishing to obtain creditable service pursuant to the provisions of this Code section shall apply therefor to the board of trustees in such manner as the board shall require.  The board of trustees may require such documentation as may be necessary to verify teaching service and compensation therefor that is claimed as creditable service under this Code section. (Code 1981, § 47-2-182 , enacted by Ga. L. 1990, p. 508, § 1.)

RESEARCH REFERENCES

ALR. - Services included in computing period of service for purpose of teachers' seniority, salary, tenure, or retirement benefits, 56 A.L.R.5th 493.

PART 3.1 T RANSFER OF SERVICE CREDITS FROM PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM

47-2-190. Transfer to Employees' Retirement System of Georgia prohibited.

Any member who has service credits with the Public School Employees Retirement System may not have any such service credits transferred to the Employees' Retirement System of Georgia.

(Code 1981, § 47-2-190 , enacted by Ga. L. 1987, p. 575, § 7.)

PART 4 E MPLOYEES OF CERTAIN STATE DEPARTMENTS

47-2-200. Membership of heads of state departments or agencies who are constitutional officers; contributions; service credits; retirement allowances; survivors benefits.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 26, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1964, p. 115, § 3.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-201. Director status inhibiting eligibility for corresponding emeritus positions.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 27, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1964, p. 115, § 4; Ga. L. 1986, p. 999, § 1; Ga. L. 1994, p. 92, § 1; Ga. L. 2010, p. 863, § 3.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-202. Eligibility for membership of officials and employees of the Department of Audits and Accounts; contributions.

The officials and employees of the Department of Audits and Accounts who are subject to the merit system of employment promulgated by the department are authorized to become members of the retirement system; and that department is authorized to pay all required contributions from funds appropriated for the operation of that department. Such payment shall be part of and in addition to the regular compensation allowed to the officials and employees of that department.

(Ga. L. 1949, p. 1195, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1182, 1197 et seq.

47-2-203. Membership of certain employees of the Administrative Office of the Courts of the Judicial Council of Georgia and the Council of Juvenile Court Judges; contributions.

  1. On and after July 1, 1990, the following shall be members of the retirement system:
    1. The director of the Administrative Office of the Courts of the Judicial Council of Georgia and any other person employed by the Administrative Office of the Courts or the Judicial Council of Georgia who is in a position which normally requires actual performance of duties during the full 12 months of the calendar year; and
    2. The director of the Council of Juvenile Court Judges and any other person employed by the Council of Juvenile Court Judges who is in a position which normally requires actual performance of duties during the full 12 months of the calendar year.
  2. Membership under this Code section shall be subject to the provisions of Code Section 47-2-334, relating to persons becoming members of the retirement system on or after July 1, 1982.
  3. Employee contributions from members under this Code section for service on and after July 1, 1990, shall be deducted and remitted to the board of trustees by the appropriate employing authority.  Employer contributions under this Code section for service on and after July 1, 1990, shall be payable from funds appropriated for the operation of the judicial branch of government; and such employer contributions shall be in addition to the regular compensation otherwise payable to such members. (Code 1981, § 47-2-203 , enacted by Ga. L. 1990, p. 514, § 1.)

47-2-204. Members subject to provisions of Code Section 47-2-203 may receive credit for prior service.

Any member subject to the provisions of Code Section 47-2-203 may receive service credit for all prior service rendered as an employee of the Judicial Council of Georgia or its predecessor agency, the Governor's Commission on Judicial Processes, or the Council of Juvenile Court Judges, provided that:

  1. Such members shall pay a contribution of 1 1/2 percent per year on compensation received for each such year plus 4 1/2 percent interest on such employee contributions, compounded annually to the date of payment; and
  2. An amount shall be paid to the retirement system from funds appropriated or otherwise available for the operation of the judicial branch of state government in an amount equal to the normal employer contribution which would have been paid on behalf of the member if the member had been a member of the retirement system during the period for which service is granted plus 4 1/2 percent interest on such employer contributions, compounded annually to the date of payment; and provided, further, that no such service shall be deemed as creditable under any provisions of this chapter if such service has or will be used in the determination of any member's eligibility for his retirement benefits or allowances for any other retirement system, excluding social security and those retirement programs covered under Public Law 810, 80th Congress, as amended. Any member claiming creditable service under this subsection shall make application to the board not later than June 30, 1993. (Code 1981, § 47-2-204 , enacted by Ga. L. 1992, p. 1151, § 1.)

PART 5 C ERTAIN LAW ENFORCEMENT PERSONNEL

47-2-220. Membership in retirement system of employees of the Department of Corrections; contributions; creditable service; eligibility for survivors benefits.

  1. On and after March 7, 1961, the eligible employees of the Department of Corrections are authorized to become members of Division A within the retirement system.
  2. The Department of Corrections or such official therein who is responsible for the payment of compensation to the employees within that department shall cause to be deducted from the compensation of each member for each and every payroll period the employee contributions as may be required under this chapter and shall pay to the board of trustees, in such manner as the board of trustees may prescribe, the amounts so deducted. The commissioner of corrections is authorized and directed to pay such employer contributions as may be required under this chapter. Such employer contributions shall be paid to the board of trustees, as prescribed by it, from funds appropriated for the operation of the Department of Corrections.
  3. In addition to the regular employer contributions required under this chapter, the commissioner of corrections is authorized and directed to pay, from funds received by the Department of Corrections as compensation for the various services rendered by it, an additional contribution as determined by the board of trustees. The additional contribution shall be a regular quarterly amount sufficient to amortize within 15 years the total amount of the employer contributions which would have been paid for all of that department's employees from August 1, 1953, to July 1, 1961, and shall include interest on these employer contributions at a rate prescribed by the board of trustees. These quarterly payments shall begin on July 1, 1961. In the event the earnings of the department are not sufficient to pay such contributions, the contributions shall be paid from funds available to the department from appropriations, or otherwise. If the contributions are not made as provided in this Code section, this Code section shall be null and void.
  4. Any individual who is an employee of the Department of Corrections on March 7, 1961, may become a member of Division A of the retirement system; but he shall not be considered as eligible for any service credits whatsoever other than membership service for which he contributes.
  5. Any individual who on August 1, 1953, was an employee of the Department of Corrections and without a break in service with that department so remained in the employment of that department on March 7, 1961, and who has not previously declined membership in the retirement system shall, upon becoming a member of the retirement system and upon immediate payment by the member of the total amount of accumulated contributions which would have accrued had he been a contributing member since August 1, 1953, be entitled to all creditable service in the same manner as other individuals in that department who became members of Division A of the retirement system.
  6. Any eligible employee of the Department of Corrections who became a member of the retirement system under subsection (d) of this Code section and who did not immediately pay the full amount of those accumulated contributions may pay the amount of his accumulated contributions over a ten-year period by means of monthly payments. No individual shall be credited with the full amount of his prior service or membership service credits until such time as he has made the total contributions required of him. The board of trustees may promulgate rules and regulations to implement this Code section, including a prescription of the actuarial value which shall be credited to the member's account for each monthly payment made as herein provided if he should retire, die, or become disabled before having paid the full amount of the accumulated contributions required of him under subsection (e) of this Code section. The board of trustees may establish a date for the commencement for such payments, which date shall be no earlier than July 1, 1962.
  7. Anything in this chapter to the contrary notwithstanding, employees of the Department of Corrections who become members of the retirement system shall be eligible for survivors benefits in accordance with the rules and regulations relative to the same which were in existence on July 1, 1953, provided that any determination relative to the member's eligibility for such benefits shall also be based upon the age of the member on the date he elects membership, notwithstanding the fact that he may have been an employee of the department on January 1, 1953.

    (Ga. L. 1961, p. 112, § 1; Ga. L. 1962, p. 146, §§ 1, 2; Ga. L. 1982, p. 3, § 47; Ga. L. 1985, p. 283, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Additional contribution required for all past employees between 1953 and 1961. - Words "all of that department's employees" in subsection (c) of this statute include all eligible employees who were on the department's payroll the entire period from August 1, 1953 to July 1, 1961, and also any employees who were on the payroll for any part of the period from August 1, 1953 to July 1, 1961. 1960-61 Op. Att'y Gen. p. 321 (see O.C.G.A. § 47-2-220 ).

Words "would have been paid" in subsection (c) of this statute implies the exclusion of all employees upon whom an employer's contribution has already been paid. 1960-61 Op. Att'y Gen. p. 321 (see O.C.G.A. § 47-2-220 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, § 1167 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 313 et seq. 81A C.J.S., States, § 216.

47-2-221. Disability allowances payable to personnel for certain disabilities arising in the line of duty.

    1. (a)(1) Notwithstanding the disability allowance provided for in Code Section 47-2-123, any member in service of the Uniform Division of the Department of Public Safety, any game warden of the Department of Natural Resources, any officer or agent of the Georgia Bureau of Investigation, and any alcohol and tobacco officer or agent of the Department of Revenue who, while a contributing member of this retirement system and upon becoming permanently disabled due to an act of external violence or injury incurred in line of duty, becomes eligible for disability retirement allowances shall, upon making written application to the board of trustees either personally or through his or her employer and after a medical examination and upon certification by the medical board that such member is, in their opinion, permanently disabled, be entitled to a monthly allowance as computed on the member's life expectancy without option. Such monthly allowance as shall be payable to the member only, during his or her life or length of disability, shall not exceed 80 percent of the service allowance that would have been payable to the member had he accumulated not more than 30 years of creditable service and had retired at age 65. Such allowance shall be computed on the basis of the member's monthly earnable compensation for the month in which his or her permanent disability occurred. Such permanent disability retirement shall apply regardless of the length of service of any such member; and such member shall be deemed to have acquired 30 or more years of creditable service. In addition, a member so disabled in the line of duty shall receive a monthly supplemental benefit which shall be in the amount of $5.00 per month for each year of creditable service as a member of the Uniform Division of the Department of Public Safety, game warden of the Department of Natural Resources, alcohol and tobacco officer or agent of the Department of Revenue, or as an officer or agent of the Georgia Bureau of Investigation. Such additional monthly supplemental benefit shall in no event exceed $150.00 per month. Any other provision of law to the contrary notwithstanding, any member of the Uniform Division of the Department of Public Safety who retired prior to July 1, 1970, as a result of becoming permanently disabled due to an act of external violence or injury incurred in the line of duty and who was a member of the retirement system on the date of the injury or act of violence shall be entitled to and shall receive the monthly supplemental benefit provided for in this subsection.
    2. In lieu of the foregoing, any member so disabled in the line of duty shall be entitled to receive a minimum monthly disability retirement benefit equal to 2 percent of his or her monthly earnable compensation for the month in which his or her permanent disability occurred for each year of creditable service determined as though he or she had continued in service in the Uniform Division of the Department of Public Safety, as a game warden of the Department of Natural Resources, as an alcohol and tobacco officer or agent of the Department of Revenue, or as an officer or agent of the Georgia Bureau of Investigation until his or her mandatory retirement age.
    1. Notwithstanding the disability allowance provided for in Code Section 47-2-123, any employee of the Department of Natural Resources appointed as a deputy game warden under Code Section 27-1-17, any parole officer employed by the State Board of Pardons and Paroles, any probation officer employed by the Department of Corrections, and any community supervision officer employed by the Department of Community Supervision who, while a contributing member of this retirement system and upon becoming permanently disabled due to an act of external violence or injury incurred in the line of law enforcement duty, becomes eligible for disability retirement allowances shall, after a medical examination and upon certification by the medical board that such member is, in their opinion, permanently disabled, be entitled to a monthly allowance as computed on the member's life expectancy without option. Such monthly allowance as shall be payable to the member only, during his or her life or length of disability, shall not exceed 80 percent of the service allowance that would have been payable to the member had he or she accumulated not more than 30 years of creditable service and had retired at age 65. Such allowance shall be computed on the basis of the member's monthly earnable compensation for the month in which his or her permanent disability occurred. Such permanent disability retirement shall apply regardless of the length of service of any such member; and such member shall be deemed to have acquired 30 or more years of creditable service. In addition, a member so disabled in the line of law enforcement duty shall receive a monthly supplemental benefit which shall be in the amount of $5.00 per month for each year of creditable service as an employee of the Department of Natural Resources who has been appointed as a deputy game warden under Code Section 27-1-17, parole officer of the State Board of Pardons and Paroles, probation officer of the Department of Corrections, or any community supervision officer employed by the Department of Community Supervision. Such additional monthly supplemental benefit shall in no event exceed $150.00 per month.
    2. In lieu of the foregoing, any member so disabled in the line of law enforcement duty shall be entitled to receive a minimum monthly disability retirement benefit equal to 2 percent of his or her monthly earnable compensation for the month in which his or her permanent disability occurred for each year of creditable service determined as though he or she had continued in service as a deputy game warden, probation officer, parole officer, or a community supervision officer until his or her mandatory retirement age.

      (Ga. L. 1962, p. 152, § 1; Ga. L. 1968, p. 1361, § 1; Ga. L. 1970, p. 26, § 2; Ga. L. 1971, p. 685, § 1; Ga. L. 1975, p. 1499, § 1; Ga. L. 1976, p. 1407, § 1; Ga. L. 1977, p. 1096, § 2; Ga. L. 1982, p. 3, § 47; Ga. L. 1998, p. 230, § 1; Ga. L. 2005, p. 555, § 2/HB 459; Ga. L. 2016, p. 285, § 1/HB 421; Ga. L. 2019, p. 808, § 7/SB 72.)

The 2016 amendment, effective July 1, 2016, in paragraph (b)(1), near the middle of the first sentence, substituted "any probation officer employed by the Department of Corrections, and any community supervision officer employed by the Department of Community Supervision" for "and any probation officer employed by the Department of Corrections", and, in the next to last sentence, substituted "probation officer of the Department of Corrections, or any community supervision officer employed by the Department of Community Supervision" for "or probation officer of the Department of Corrections"; and, near the end of paragraph (b)(2), substituted "parole officer, or a community supervision officer" for "or parole officer".

The 2019 amendment, effective July 1, 2019, substituted "game warden" for "conservation ranger" throughout this Code section.

OPINIONS OF THE ATTORNEY GENERAL

The 1977 amendment to subsection (a) of O.C.G.A. § 47-2-221 was intended to entitle all otherwise eligible persons who retired prior to July 1, 1970, as the result of a permanent disability incurred in the line of duty and who were Employees' Retirement System members when so injured, to the monthly supplemental benefits and was not intended to be limited to those entitled to such benefits under the 1968 amendment to § 47-2-221 . 1983 Op. Att'y Gen. No. U83-28.

47-2-222. Power to increase liability contribution rates for certain departments or agencies; transfer of employees.

Any other provisions of law to the contrary notwithstanding, the board of trustees may increase the normal and accrued liability employer contribution rates of the Department of Public Safety, the Department of Natural Resources, the Department of Revenue, the Georgia Bureau of Investigation, the Department of Corrections, the State Board of Pardons and Paroles, and any other agency or authority to an amount set by the board of trustees as actuarially sufficient to fund the employer's cost of the benefits provided in this chapter for groups of employees of such departments or agencies. In the event any group of employees of any of such departments or agencies is transferred to the administration of any other department or agency, that department or agency shall continue to pay the normal and accrued liability contributions on behalf of such employees at the rate set by the board of trustees.

(Ga. L. 1970, p. 26, § 1; Ga. L. 1973, p. 900, § 10; Ga. L. 1974, p. 1210, § 1; Ga. L. 1991, p. 358, § 1; Ga. L. 2009, p. 322, § 3/HB 476; Ga. L. 2010, p. 1207, § 64/SB 436.)

The 2009 amendment, effective July 1, 2009, in the first sentence, deleted "and" following "Resources," and inserted ", the Georgia Bureau of Investigation, the Department of Corrections, the State Board of Pardons and Paroles, and any other agency or authority" in the middle.

The 2010 amendment, effective July 1, 2010, substituted "such departments or agencies" for "such departments" twice.

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

47-2-223. Retirement benefits for those in service in Uniform Division of the Department of Public Safety.

  1. For purposes of this Code section, the term "highest average compensation" means the member's highest average monthly earnable compensation during a period of 24 consecutive calendar months while a member of the retirement system.
  2. Anything in this chapter to the contrary notwithstanding, every person who is in service in the Uniform Division of the Department of Public Safety as an officer, noncommissioned officer, or trooper, or as an officer or agent of the Georgia Bureau of Investigation on June 30, 1970, and every person who enters or reenters such service on or after July 1, 1970, may retire at any time after attaining the age of 55 and upon retirement such retiree shall receive the regular retirement benefits under this chapter, provided that he or she shall in any case receive a minimum monthly retirement benefit equal to 2 percent of his or her highest average compensation for each year of creditable service by filing an application therefor in a manner similar to that provided in Code Section 47-2-110.

    (Ga. L. 1949, p. 138, § 15; Ga. L. 1970, p. 26, § 3; Ga. L. 1971, p. 685, § 2; Ga. L. 1978, p. 1440, § 1; Ga. L. 1997, p. 555, § 1; Ga. L. 1998, p. 1104, § 2.)

JUDICIAL DECISIONS

Consistent with federal retirement legislation. - O.C.G.A. § 47-2-223 is not a "subterfuge" within the meaning of the Age Discrimination in Employment Act of 1967 (ADEA), § 4(j)(2), 29 U.S.C. § 623(j)(2), and thus is exempt under § 4(j) from the ADEA's general ban on mandatory retirement rules. Accordingly, the state trooper's forced retirement was valid. Knight v. Georgia, 992 F.2d 1541 (11th Cir. 1993).

Employee not entitled to early retirement. - Because an employee of the Georgia Peace Officer Standards and Training Council was never in the service of the Uniform Division of the Georgia Department of Public Safety, an early retirement plan under O.C.G.A. § 47-2-223(b) was never part of the employee's contract of employment; therefore, the trial court erred by granting the employee's motion for summary judgment. Employees' Ret. Sys. of Ga. v. Melton, 294 Ga. App. 634 , 669 S.E.2d 692 (2008), cert. denied, No. S09C0459, 2009 Ga. LEXIS 190 (Ga. 2009); overruled on other grounds by Wolfe v. Regents of the Univ. Sys. of Ga., 794 S.E.2d 85 (Ga. 2016).

OPINIONS OF THE ATTORNEY GENERAL

Mandatory retirement age may not be waived. - An agent of the Georgia Bureau of Investigation who has completed 25 years of creditable service towards retirement and who has reached the mandatory age limitation may not have the mandatory age restriction waived by the commissioner of public safety. 1972 Op. Att'y Gen. No. 72-155.

Effect of § 47-2-111 . - O.C.G.A. § 47-2-111 , enacted in 1993, will allow an agent of the Georgia Bureau of Investigation who is eligible for involuntary separation retirement benefits to elect retirement or to continue the agent's employment past the age of 55 and be entitled to the same projection in age and service which would have been available when that agent was required to retire at age 55 by operation of law. 1993 Op. Att'y Gen. No. 93-12.

RESEARCH REFERENCES

ALR. - Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.

47-2-224. Mandatory retirement age and monthly retirement benefits for certain members of the Department of Natural Resources and of the Department of Revenue; waiver of mandatory retirement age.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 28, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1974, p. 1210, § 2; Ga. L. 1976, p. 1407, § 2; Ga. L. 1976, p. 1459, § 1; Ga. L. 1978, p. 1463, §§ 1, 2; Ga. L. 1982, p. 3, § 47.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-225. Creditable service for members with prior service as narcotics agents; membership in retirement system of members who were employed as narcotics agents.

Any other provision of this chapter to the contrary notwithstanding, any member who was employed as a narcotics agent pursuant to the provisions of Code Section 35-3-9 prior to becoming a member of the retirement system shall be entitled to obtain creditable service for all such prior service subject to the conditions contained in this Code section. In order to be eligible for such creditable service, the member must make application as prescribed by the board not later than July 1, 1997, or one year after becoming a member of the retirement system, whichever date is later, provide proof of such prior service, and pay the employee contributions which he or she would have paid if he or she had been a member of the retirement system, together with regular interest thereon. Within 30 days after the retirement system gives notice that the foregoing conditions have been met, the Georgia Bureau of Investigation shall pay the employer contributions which would have been paid for the member if he or she had been a member of the retirement system, together with regular interest thereon.

(Code 1981, § 47-2-225 , enacted by Ga. L. 1996, p. 722, § 1.)

47-2-226. Certain law enforcement officers permitted to obtain creditable service in retirement system under certain conditions; "law enforcement officer" defined; payment of full actuarial value to applicant.

  1. As used in this Code section, the term "law enforcement officer" means any member in service of the Uniform Division of the Department of Public Safety, any game warden of the Department of Natural Resources, any officer or agent of the Georgia Bureau of Investigation, any district attorney investigator who is compensated from state funds pursuant to Code Section 15-18-14.1, any alcohol and tobacco officer or agent of the Department of Revenue, any investigator of the Department of Driver Services, and any criminal investigators or K9 handlers of the Department of Corrections.
  2. Any law enforcement officer who, prior to becoming a member of this retirement system, was employed by a local government in this state as a full-time employee, in a position in which he or she was vested with authority to enforce the criminal or traffic laws and with the power of arrest and whose duties include the preservation of public order, the protection of life and property, or the prevention, detection, or investigation of crime, shall be eligible to obtain creditable service under this Code section for his or her years of service in such capacity if:
    1. The member is not eligible to receive a present or future benefit from a defined benefit or defined contribution retirement or pension plan in which said member participated while employed by the local governing authority other than membership in the Peace Officers' Annuity and Benefit Fund; and
    2. The member has been a member of the retirement system for at least ten years.
  3. Any member eligible as provided in subsection (b) of this Code section may obtain up to an additional five years of creditable service, not to exceed the actual number of years of service described in subsection (b) of this Code section. In order to obtain such additional creditable service, the member shall:
    1. Make application to the board of trustees in such manner and provide such documentation as the board deems appropriate; and
    2. Pay to the board of trustees an amount determined by the board of trustees to be sufficient to cover the full actuarial cost of granting the creditable service as provided in this Code section.
  4. Upon receipt of an application for additional creditable service, the board of trustees shall certify to the applicant the amount of the payment required by paragraph (2) of subsection (c) of this Code section. (Code 1981, § 47-2-226 , enacted by Ga. L. 2016, p. 365, § 1/HB 690; Ga. L. 2018, p. 150, § 1/HB 135; Ga. L. 2019, p. 808, § 7/SB 72.)

Effective date. - This Code section became effective July 1, 2016.

The 2018 amendment, effective July 1, 2018, in subsection (a), deleted "and" following "Code Section 15-18-14.1," in the middle, and added ", any investigator of the Department of Driver Services, and any criminal investigators or K9 handlers of the Department of Corrections" at the end; in subsection (b), inserted "in this state" near the middle, and inserted "for his or her years of service in such capacity" near the end; and, in paragraph (b)(1), substituted "is not eligible to receive a present or future benefit from" for "was not eligible for" near the beginning, and inserted "in which said member participated" in the middle.

The 2019 amendment, effective July 1, 2019, substituted "game warden" for "conservation ranger" in the middle of subsection (a).

PART 6 J USTICES OF THE SUPREME COURT, JUDGES OF THE COURT OF APPEALS, AND THEIR EMPLOYEES

47-2-240. Membership in retirement system of Justices of Supreme Court; appointment to Justice Emeritus of Supreme Court; contributions; creditable service; survivors benefits.

For purposes of this Code section, the terms "Justice Emeritus of the Supreme Court" and "Justice Emeritus" mean both Chief Justice Emeritus and Associate Justice Emeritus, and the term "Justice" means both Chief Justice of the Supreme Court and Associate Justice of the Supreme Court. The provisions of this or any other law to the contrary notwithstanding, any person who becomes a Justice of the Supreme Court after April 1, 1964, shall be a member of the retirement system and shall not be eligible for appointment as Justice Emeritus of the Supreme Court. The prohibition against appointment as Justice Emeritus shall not apply to any person holding either the office of Justice of the Supreme Court or Judge of the Court of Appeals on April 1, 1964. Any person serving as Justice of the Supreme Court on that date must notify the director of the Employees' Retirement System of Georgia on or before March 31, 1965, if he desires to become a member of the retirement system and shall otherwise be ineligible for membership. No Justice of the Supreme Court shall be allowed to rescind notification nor shall he be allowed to give notification after March 31, 1965. Any Justice of the Supreme Court who becomes a member of the retirement system shall, upon the effective date of his membership, begin making regular employee contributions under this chapter and shall be entitled to all the retirement allowances and credits under this chapter in the same manner as if he had become a member of the retirement system on January 1, 1950, which credits shall include credit for prior service and any services performed by him as an employee subsequent to that date. All employer contributions which would have been reported for the Justices of the Supreme Court between January 1, 1950, and April 1, 1964, shall be paid by the employer into the pension accumulation fund in such manner and over such period of time as shall be agreed upon between the board of trustees and the employer. Eligibility for survivors benefits under Code Section 47-2-128 for a present Justice of the Supreme Court shall be determined on the same basis as that applicable to all other members who were in state employment on or after January 1, 1953, and benefit amounts shall be based upon the age of the Justice on the effective date of his membership. Eligibility for survivors benefits for any person who enters on duty as a Justice after April 1, 1964, shall be determined in the same manner as for any other new member of the retirement system.

(Ga. L. 1970, p. 179, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Appellate judge retains right to be appointed senior judge. - If an appellate court judge were to become a member of the retirement system, the judge could assume the office of Judge of the Georgia Court of Appeals or Justice of the Georgia Supreme Court and still retain the judge's right to be appointed as judge of the superior courts emeritus (now senior judge) at the conclusion of the judge's service on either appellate court. 1976 Op. Att'y Gen. No. U76-9.

Appellate judges serving in 1964 continue contributing same amount. - Justices on the Supreme Court of Georgia and Judges on the Court of Appeals of Georgia who were serving as appellate judges on April 1, 1964, are to be afforded group term life insurance protection (formerly survivor benefits) on the same basis as if the judges had been members of the retirement system on January 1, 1953, or after, including the right to retain full life insurance coverage after retirement pursuant to the conditions in Ga. L. 1977, p. 670, § 1 (see O.C.G.A. § 47-2-128(g) ). 1977 Op. Att'y Gen. No. U77-20.

47-2-241. Membership in retirement system of Judges of Court of Appeals; appointment to Judge Emeritus of Court of Appeals; contributions; creditable service; survivors benefits.

The provisions of this or any other law to the contrary notwithstanding, any person who becomes a Judge of the Court of Appeals after April 1, 1964, shall be a member of the retirement system and shall not be eligible for appointment as Judge Emeritus of the Court of Appeals. The prohibition against such appointment shall not apply to any person holding the office of Judge of the Court of Appeals on April 1, 1964. Any person serving as Judge of the Court of Appeals on that date must notify the director of the Employees' Retirement System of Georgia on or before March 31, 1965, if he desires to become a member of the retirement system and shall otherwise be ineligible for membership. No Judge of the Court of Appeals shall be allowed to rescind notification nor shall he be allowed to give notification after March 31, 1965. Any Judge of the Court of Appeals who becomes a member of the retirement system shall, upon the effective date of his membership, begin making regular employee contributions under this chapter and shall be entitled to all retirement allowances and credits under this chapter in the same manner as if he had become a member of the retirement system on January 1, 1950, which credits shall include credit for prior service and any services performed by him as an employee subsequent to that date. All employer contributions which would have been reported for the Judges of the Court of Appeals between January 1, 1950, and April 1, 1964, shall be paid by the employer into the pension accumulation fund in such manner and over such period of time as shall be agreed upon between the board of trustees and the employer. Eligibility for survivors benefits under Code Section 47-2-128 shall be determined on the same basis as that applicable to all other members who were in state employment on or after January 1, 1953. The amounts of any survivors benefits payable shall be based upon the age of the Judge of the Court of Appeals on the effective date of his membership with the retirement system. Eligibility for survivors benefits for any person who enters on duty as a Judge of the Court of Appeals after April 1, 1964, shall be determined in the same manner as for any other new member of the retirement system.

(Ga. L. 1964, p. 115, § 1.)

Cross references. - Creditable service not allowed for military service from which discharge was other than honorable, § 47-1-11 .

OPINIONS OF THE ATTORNEY GENERAL

Appellate judge retains right to be appointed senior judge. - If an appellate court judge were to become a member of the retirement system, the judge could assume the office of Judge of the Georgia Court of Appeals or Justice of the Georgia Supreme Court and still retain the judge's right to be appointed as judge of the superior courts emeritus (now senior judge) at the conclusion of the judge's service on either appellate court. 1976 Op. Att'y Gen. No. U76-9.

Appellate judges serving in 1964 continue contributing same amount. - Justices on the Supreme Court of Georgia and Judges on the Court of Appeals of Georgia, who were serving as appellate judges on April 1, 1964, are to be afforded group term insurance protection (formerly survivor benefits) on the same basis as if the judges had been members of the retirement system on January 1, 1953, or after, including the right to retain full life insurance coverage after retirement pursuant to the conditions in Ga. L. 1977, p. 670, § 1 (see O.C.G.A. § 47-2-128(g) ). 1977 Op. Att'y Gen. No. U77-20.

47-2-242. Merit system of personnel administration for officers and employees of the Supreme Court; membership in retirement system; contributions.

All eligible officers and employees of the Supreme Court, except the Justices, shall be subject to a merit system of personnel administration as promulgated by the Supreme Court, under which all such officers and employees shall be selected on a basis of merit, fitness, and efficiency. All such officers and employees are authorized to become members of the retirement system. All contributions required by this chapter shall be paid from funds appropriated for the operation of the Supreme Court and all such payments shall be in addition to the regular compensation allowed to such officers and employees.

(Ga. L. 1952, p. 229, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1182, 1197 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 161, 316 et seq.

47-2-243. Merit system of personnel administration for officers and employees of the Court of Appeals; membership in retirement system; contributions.

All eligible officers and employees of the Court of Appeals, except the judges of that court, shall be subject to a merit system of personnel administration as promulgated by the Court of Appeals, under which all such officers and employees shall be selected on a basis of merit, fitness, and efficiency. All such officers and employees are authorized to become members of the retirement system. All contributions required by this chapter shall be paid from funds appropriated for the operation of the Court of Appeals and all such payments shall be in addition to the regular compensation allowed to such officers and employees.

(Ga. L. 1952, p. 248, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1182, 1197 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 161, 316 et seq.

47-2-244. Optional benefits available to appellate court judges; notice of election of benefits; eligibility for benefits; disability benefits; survivors benefits.

  1. The term "appellate court judge," as used in this Code section, shall mean any Judge, Presiding Judge, or Chief Judge of the Court of Appeals and any Associate Justice, Presiding Justice, or Chief Justice of the Supreme Court.
  2. Any other provision of law to the contrary notwithstanding, any appellate court judge shall be entitled to receive the benefits under this Code section in lieu of any retirement allowances otherwise available under this retirement system and in lieu of the appointment to or the holding of any emeritus office.
  3. Any appellate court judge who seeks benefits under this Code section shall tender to the board of trustees before January 1, 1972, or within 60 days after the commencement of such judge's term of office, whichever shall occur later, a written notice stating that the judge has elected to accept such benefits in lieu of any retirement allowances otherwise available under this retirement system and in lieu of the appointment to and the holding of any emeritus office. The notice shall state that in consideration of the payment of benefits under this Code section, such appellate court judge shall resign from office as an appellate court judge on or before the day upon which he or she attains 75 years of age or on the last day of the term in which such appellate court judge is serving when he or she attains age 70, whichever is later. Any notice filed prior to July 1, 1986, by an appellate court judge in active service on such date which contained an agreement to resign on or before such judge's seventieth birthday shall be void and of no force and effect if such judge files a new notice containing an agreement to resign as provided in this subsection and such notice is filed on or before September 1, 1986.
  4. As a condition of eligibility for benefits under this Code section, there shall have been deducted from the earnable compensation of an appellate court judge and remitted to the board of trustees a contribution equivalent to 71/2 percent of such judge's earnable compensation for each pay period or part thereof after the date of such judge's written notice of election of benefits. Election of benefits under this Code section constitutes an authorization and direction by that appellate court judge to the clerical personnel of such judge's court to withhold such judge's contributions and remit them to the board of trustees in the manner provided by the board of trustees, together with a sum of money available to the court from annual or supplemental appropriations in an amount sufficient to carry out this Code section.
  5. Upon compliance with this Code section, an appellate court judge may retire and receive benefits under this Code section.
  6. After ten years of service as an appellate court judge, such judge shall be entitled to receive during life a retirement benefit payable monthly equivalent to 75 percent of the salary of an appellate court judge then serving in the office from which such judge retired.
  7. An appellate court judge who is incapacitated prior to the completion of ten years of service as an appellate court judge shall receive during life for each full year of service one-tenth of the benefit such judge would have received had such judge completed ten years of service as an appellate court judge. For the purposes of this subsection, the term "incapacitated" or "incapacity" means physical or mental disability for further performance of duties and shall not mean the attainment of any certain age.
  8. The surviving spouse of an appellate court judge, provided such surviving spouse is the designated beneficiary, shall be entitled to receive a benefit payable monthly for life equivalent to 50 percent of the benefits to which the spouse would have been entitled based upon his or her years of service as an appellate court judge and without regard to whether such judge had attained age 65. However, if the designated beneficiary, or beneficiaries, is someone other than the surviving spouse of the deceased judge, then such named beneficiary or beneficiaries shall be entitled to receive a benefit payable monthly for life based on an actuarial equivalent, provided the actuarial equivalent shall not be in excess of 50 percent of the amount that would have been payable to the judge. For the purpose of this provision, in the event the beneficiary, or beneficiaries, is not the member's spouse, the actuarial equivalent shall be computed based upon the assumption that the member had a spouse who was the same age as the member.
  9. Survivors benefits shall be available to appellate court judges at prevailing contribution rates and subject to provisions of law and regulations of the board of trustees; provided, however, that no person who becomes or again becomes subject to the provisions of this Code section on or after July 1, 2009, shall be entitled to such survivors benefits.
  10. If any appellate court judge dies without having received benefits under this Code section and is not survived by a designated beneficiary who is eligible to receive the benefits provided by this Code section, such judge's contributions shall be paid to his or her estate without interest. If any appellate court judge and such judge's designated beneficiary or beneficiaries die as the result of a common accident prior to the time at which the payment of benefits to the judge equals the total contributions made by such judge plus interest thereon, the difference shall be paid to the estate of the judge. If after retirement an appellate court judge and such judge's designated beneficiary or beneficiaries die, but not as the result of a common accident, prior to the time at which the total benefits paid to the judge and such judge's beneficiary or beneficiaries equal the total contributions made by such judge plus interest thereon, the difference shall be paid to the estate of the last decedent.
  11. An appellate court judge who has accrued creditable service under this retirement system may convert such service in order to fulfill the conditions of this Code section on the basis of two years of creditable service being equivalent to one year of service credit under this Code section, provided that creditable service based upon the holding of office as an appellate court judge shall be convertible to service credit under this Code section on an equal time basis. Applications for conversion of service credits under this Code section shall be made in writing to the board of trustees.
  12. Any appellate court judge who elects to receive the benefits provided for by this Code section and who fails to resign his office as appellate court judge on or before the day such judge attains age 75 or on the last day of the term in which such appellate court judge is serving when he or she attains age 70, whichever is later, or on or before June 30, 1972, in the event he or she attained age 70 on or prior to June 30, 1972, shall not be entitled to receive any benefits under this Code section and shall forfeit all contributions made under it.
  13. No benefit shall be payable to an appellate court judge under this Code section until such judge reaches 65 years of age, except for incapacity.

    (Ga. L. 1971, p. 99, § 1; Ga. L. 1981, p. 1235, §§ 1, 2; Ga. L. 1986, p. 1329, § 1; Ga. L. 1992, p. 477, § 1; Ga. L. 2009, p. 398, § 3/SB 177.)

The 2009 amendment, effective July 1, 2009, added the proviso at the end of subsection (i).

JUDICIAL DECISIONS

Failure to resign timely. - Since each of the two appellate court judges had attained the age of 70 in a previous term, and for each, the 75th birthday was a later date than the last day of the term in which each judge attained the age of 70, each judge was required to resign on or before the judge's 75th birthday, if the judge were to avoid the statutory penalties. Smith v. Miller, 261 Ga. 560 , 407 S.E.2d 727 (1991).

Right to propose constitutional challenge waived. - Appellate court judges' signing of the documents and participation in a plan offering an enhanced benefits package constituted a waiver of their right to propose constitutional challenges. Smith v. Miller, 261 Ga. 560 , 407 S.E.2d 727 (1991).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

Required Election

Judge may elect optional appellate court benefits. - Subsections (b) and (c) of O.C.G.A. § 47-2-244 state clearly that a judge may elect the optional appellate court benefits in lieu of any retirement allowances otherwise available under the Employees' Retirement System and in lieu of the appointment to or the holding of any emeritus office; this election of benefits under the appellate court judges program must be made within 60 days after the judge assumes office. The written election itself must state that the judge has elected to accept the appellate court benefits in lieu of any retirement allowances otherwise available under the Employees' Retirement System and in lieu of the appointment to or holding of any emeritus office. 1981 Op. Att'y Gen. No. 81-22.

Any judge meeting conditions and rendering required service may retire. - Judge on the Georgia Court of Appeals may retire so long as the judge meets the written election and contribution conditions and has rendered ten years of public employment service on the appellate courts; this service is not required to be rendered and paid for in whole as a member of the Employees' Retirement System of Georgia. 1974 Op. Att'y Gen. No. U74-101.

Service which cannot be established under the Employees' Retirement System cannot be established in the appellate program. 1981 Op. Att'y Gen. No. 81-22.

Written notice to accept tendered within 60 days. - Written notice stating one has elected to accept the benefits of this statute must be tendered by the appellate court judge to the board of trustees within 60 days after the judge qualifies and assumes the duties attendant to the judge's office on either appellate court. 1976 Op. Att'y Gen. No. U76-9 (see O.C.G.A. § 47-2-244 ).

Appellate court judge may withdraw first written notice electing benefits if consented to by trustees. 1971 Op. Att'y Gen. No. 71-108.

No legal bar to making a second written acceptance at a time after an effective withdrawal of the appellate court judge's first written election of benefits. 1971 Op. Att'y Gen. No. 71-108.

Benefits Waived

.

Appellate judge electing optional benefits waives other retirement benefits. - Any Judge of the Court of Appeals of Georgia who elects the optional benefits provided by this statute automatically waives in writing any entitlement to other retirement benefits, at the same time divesting oneself of any right to any contributions previously made to the retirement system. 1974 Op. Att'y Gen. No. U74-101 (see O.C.G.A. § 47-2-244 ).

Electing optional benefits waives entitlement to any emeritus office. - Any appellate court judge electing the benefits provided by this statute does so in lieu of any retirement allowances otherwise available under the retirement system and in lieu of the appointment to or the holding of any emeritus office; the judge waives in writing any entitlement to any emeritus office and elects to retire solely and only under the provisions and benefits of this statute. 1976 Op. Att'y Gen. No. U76-9 (see O.C.G.A. § 47-2-244 ).

Electing optional benefits waives per diem allowance granted emeritus judges. - An appellate court judge who has formerly served as a judge of the superior court would have to resign as judge of the superior courts emeritus (now senior judge) before taking advantage of this statute and could not receive the per diem allowance granted emeritus judges in the judge's former circuit. 1971 Op. Att'y Gen. No. U71-82 (see O.C.G.A. § 47-2-244 ).

Waiver of senior judge appointment. - Judge who elects the appellate court judges retirement benefits gives up or waives the judge's right to appointment as a senior judge. 1981 Op. Att'y Gen. No. 81-22.

Contributions made prior to election refunded. - Any contributions of salary made until the time an appellate court judge elected the benefits of this statute should be refunded. 1974 Op. Att'y Gen. No. U74-101 (see O.C.G.A. § 47-2-244 ).

Creditable Service

.

Conversion of Employees' Retirement System service into appellate court service. - After purchasing and establishing superior court bench service as Employees' Retirement System service, a judge may convert it to service credit under the appellate judges program pursuant to subsection (k) of O.C.G.A. § 47-2-244 , which authorizes an appellate court judge to convert Employees' Retirement System service to appellate court service credit on the basis of two years of creditable service under Employees' Retirement System equaling one year of appellate service credit. For example, 13 1/2 years of Employees' Retirement System service could be converted to 6 3/4 years of appellate court service credit. 1981 Op. Att'y Gen. No. 81-22.

Election under O.C.G.A. § 47-2-244(k) may be made at any time prior to retirement. 2000 Op. Atty. Gen. No. U2000-8.

Convert service to bring total to ten years. - If a judge does not have ten years of public employment service on the appellate bench so as to entitle the judge to retire under subsection (f) of this statute, the judge may then look to subsection (k) of this statute and convert such service as is necessary to bring the judge's total to ten years. 1974 Op. Att'y Gen. No. U74-101 (see O.C.G.A. § 47-2-244 ).

Cannot transfer service as superior court judge, solicitor general, or district attorney. - There is no statutory authorization for the transfer of creditable service accrued as a superior court judge, a solicitor general, or a district attorney under the emeritus provisions to the retirement program established by this statute. 1976 Op. Att'y Gen. No. U76-9 (see O.C.G.A. § 47-2-244 ).

Appellate court judge may defer superior court service. - Appellate court judge may defer the purchase, establishment, and conversion of superior court bench service into the appellate judges program until such time as the judge wishes, but prior to retirement. 1981 Op. Att'y Gen. No. 81-22.

Benefits Paid

.

Judge, upon incapacity, entitled to proportionate benefits. - An appellate court judge who has served more than nine years, but less than ten years, as an appellate court judge may, upon incapacity, be paid retirement benefits at the rate of nine-tenths of the full benefits which would have been allowed had the judge completed ten years of service. 1974 Op. Att'y Gen. No. U74-100.

Benefits from separate retirement systems. - Person may receive benefits from both the Judicial Retirement System and the appellate judge's option of the Employee's Retirement System, assuming the eligibility requirements of both statutes have been met. 2000 Op. Atty. Gen. No. U2000-8.

When person receives 75 percent of present-day salary. - After ten years of service as an appellate court judge, the judge may retire at any age and yet be entitled at the age of 65 to receive during the rest of the judge's life a retirement benefit of 75 percent of the salary of an appellate court judge then serving in the office from which the judge retired. 1971 Op. Att'y Gen. No. 71-203.

Contributions of judge, ineligible for retirement, refunded. - Should an appellate court judge electing the benefits of this statute leave the appellate bench by way of a reason other than death, and is not eligible for retirement benefits, the judge's accumulated contributions should be refunded to the judge. 1976 Op. Att'y Gen. No. U76-9 (see O.C.G.A. § 47-2-244 ).

Widow of judge completing required service entitled to benefits. - Widow of a judge who has completed ten years of service, then has stepped down from the bench, and who died prior to attaining age 65, would be entitled to the benefits provided for under this statute. 1971 Op. Att'y Gen. No. 71-203 (see O.C.G.A. § 47-2-244 ).

Spouse of judge waiving eligibility not entitled to benefits. - When, under subsection (c) of O.C.G.A. § 47-2-244 , a judge waives or foregoes eligibility for appointment as senior judge by electing the appellate court judges program, it seems clear that the judge's spouse would have no further right to benefits from the emeritus fund in the event of the death of the judge. 1981 Op. Att'y Gen. No. 81-22.

Benefits increase in event present appellate salary increases. - In the event a salary increase is provided by law for present appellate court judges, the retirement benefits currently being paid to retired appellate court judges and the spouses of deceased appellate court judges entitled to benefits increase on a proportionate basis under the provisions of this statute. 1978 Op. Att'y Gen. No. U78-5 (see O.C.G.A. § 47-2-244 ).

47-2-245. Creditable service for secretaries of appellate court judges, superior court judges and district attorneys for certain prior services.

  1. Any member who became a member by operation of Code Section 47-2-242 or 47-2-243 shall be eligible to obtain creditable service for all prior service as an officer or employee of a state court judge or a superior court judge while covered by a retirement or pension system operated by a county for county employees if such person has not yet begun receiving a retirement or disability benefit from such retirement or pension system.
  2. To obtain creditable service under this Code section, the member must apply to the board of trustees not later than December 31, 2000, or within six months after becoming a member, whichever date is later, and must provide such evidence of such prior service as the board deems necessary. Upon notification in writing by the board of trustees of this retirement system, the board of trustees or other managing body of the local retirement or pension system shall transfer to this retirement system accumulated employer contributions and accumulated interest thereon which have been credited by the local retirement or pension system to each employee, and thereafter such person shall not be entitled to receive a benefit from such local retirement or pension system.
  3. Upon receipt of the funds provided for in subsection (b) of this Code section, the trustees shall grant to the member such creditable service as such amount will provide without creating any accrued liability, as a result of granting such creditable service, against this retirement system. If the amount of creditable service so obtained is less than the actual number of years of eligible service, the member is authorized, but not required, to obtain the difference by paying to the board of trustees an amount sufficient to grant such creditable service without creating any accrued liability, as a result of granting such creditable service, against this retirement system. (Code 1981, § 47-2-245 , enacted by Ga. L. 1998, p. 1109, § 1; Ga. L. 2000, p. 1271, § 1.)

PART 7 S UPERIOR COURT JUDGES, DISTRICT ATTORNEYS, ASSISTANT DISTRICT ATTORNEYS, EMPLOYEES OF THE PROSECUTING ATTORNEYS' COUNCIL

47-2-260. Continuation of membership, rights, and benefits of judges of superior courts and district attorneys; notice of election to continue membership; contributions.

  1. The provisions of this or any other law to the contrary notwithstanding, on and after April 1, 1969, any person appointed or elected as a judge of the superior court or as a district attorney who at the time of such appointment or election is a member of the Employees' Retirement System of Georgia shall be entitled to elect to continue as a member of the retirement system while holding office as a judge of the superior court or district attorney. All rights, credits, and funds in the retirement system which are possessed by any such member at the time of the member's appointment or election shall be continued in force and the member shall be entitled to all rights and benefits under the retirement system to which the member was entitled at the time of the member's appointment or election and to all rights subsequently acquired.
  2. Within 30 days after appointment or election as a judge of the superior court or as a district attorney, any such person who elects to continue as a member of the retirement system shall notify the director of the Employees' Retirement System of Georgia and The Council of Superior Court Judges of Georgia or the Prosecuting Attorneys' Council of the State of Georgia, as appropriate, of that decision. Upon making such election and giving the required notice, a member who is subject to the provisions of this Code section shall not be required to become a member of or make contributions to the Georgia Judicial Retirement System created by Chapter 23 of this title.
  3. Employee contributions, including contributions for retirement allowances, survivors benefits under Code Section 47-2-128, and social security coverage, of members referred to in this Code section shall be deducted by The Council of Superior Court Judges of Georgia or the Prosecuting Attorneys' Council of the State of Georgia, as appropriate, from the compensation paid by the state to such members and remitted to the retirement system.
  4. The Council of Superior Court Judges of Georgia and the Prosecuting Attorneys' Council of the State of Georgia are authorized and directed to pay from the funds appropriated or otherwise made available for the operation of the judicial branch of government of this state the required employer contributions, including contributions for retirement allowances, survivors benefits under Code Section 47-2-128, and social security coverage, and to remit those contributions to the retirement system.

    (Ga. L. 1969, p. 829, § 1; Ga. L. 1989, p. 347, § 1; Ga. L. 1993, p. 1402, § 11; Ga. L. 1998, p. 513, § 7; Ga. L. 2009, p. 753, § 1/SB 109; Ga. L. 2010, p. 1207, § 64/SB 436.)

The 2009 amendment, effective July 1, 2010, in the middle of the first sentence of subsection (b) and the middle of subsection (c), substituted "Council of Superior Court Judges of Georgia or the Prosecuting Attorneys' Council of the State of Georgia, as appropriate," for "Department of Administrative Services"; and, in subsection (d), substituted "Council of Superior Court Judges of Georgia and the Prosecuting Attorney's Council of the State of Georgia are" for "Department of Administrative Services is" near the beginning.

The 2010 amendment, effective July 1, 2010, substituted "The Council" for "the Council" in subsections (b) and (c).

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

47-2-261. Transfer of credits and funds from the District Attorneys Retirement Fund of Georgia upon employment by an agency subject to the Employees' Retirement System of Georgia.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 29, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1956, p. 54, § 2; Ga. L. 2000, p. 1697, § 1.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-262. Membership in retirement system of assistant district attorneys and employees of the Prosecuting Attorneys' Council; notice of election to become a member; contributions.

  1. As used in this Code section, the term:
    1. "Assistant district attorneys" means assistant district attorneys who are compensated from state funds pursuant to Code Section 15-18-14.
    2. "Prosecuting Attorneys' Council of the State of Georgia" means the Prosecuting Attorneys' Council of the State of Georgia created by Article 2 of Chapter 18 of Title 15.
  2. Each assistant district attorney and each employee of the Prosecuting Attorneys' Council of the State of Georgia, hereinafter in this Code section collectively referred to as "employee" or "employees," who becomes an employee on or after July 1, 1979, shall become a member of the Employees' Retirement System of Georgia as a condition of his or her employment, unless he or she is eligible for membership in another publicly supported retirement or pension system or fund which provides retirement benefits based wholly or partially on compensation of such employee paid from state funds. An employee who is eligible for membership in any such other publicly supported retirement or pension system or fund may elect to become a member of the retirement system in lieu of membership in such other publicly supported retirement or pension system or fund by notifying the board of trustees of such election within 90 days after becoming employed with the Prosecuting Attorneys' Council of the State of Georgia. Any such employee who fails to notify the board of trustees within such time shall not at any time thereafter be eligible for membership in the retirement system. The state salary paid to employees who become members of the retirement system shall be the basis for employee and employer contributions for such employees. All employer contributions required by this chapter for such members shall be paid from funds appropriated or otherwise available. The Prosecuting Attorneys' Council of the State of Georgia shall deduct from the state salaries payable to such members the employee contributions required by this chapter.

    (Ga. L. 1978, p. 2173, § 22; Ga. L. 1982, p. 3, § 47; Ga. L. 1993, p. 1402, § 19; Ga. L. 1994, p. 92, § 1; Ga. L. 1998, p. 126, § 1; Ga. L. 2004, p. 586, § 1; Ga. L. 2009, p. 753, § 2/SB 109; Ga. L. 2010, p. 1207, § 30/SB 436.)

The 2009 amendment, effective July 1, 2010, in subsection (b), in the fourth sentence, inserted "or her" and inserted "or she", in the eighth sentence, substituted "available" for "made available for the operation of the superior courts" at the end, and, in the last sentence, substituted "Prosecuting Attorneys' Council of the State of Georgia" for "commissioner of administrative services".

The 2010 amendment, effective July 1, 2010, deleted "employed on June 30, 1979, may elect to become a member of the Employees' Retirement System of Georgia. Any such employee electing to become a member of the retirement system shall so notify the board of trustees not later than October 1, 1979. Any such employee who failed to notify the board of trustees by that date shall not at any time thereafter be eligible for membership in the retirement system. Any person" following "'employees,"' in the middle of the present first sentence of subsection (b); and deleted former subsection (c), which read: "Any person who was required to become a member of this retirement system by operation of subsection (b) of this Code section but who failed to do so at the time he or she was so required because of an administrative error may receive creditable service for all or a portion of such period of prior service by paying to the board of trustees an amount which would warrant the grant of creditable service without creating any additional actuarial accrued liability as to the retirement system. Such payment may include a transfer of funds from a money purchase pension plan maintained by the employee's employer prior to July 1, 2004, which shall be credited to the employee's annuity account established by the retirement system. The employee's employer is authorized to supplement such amount."

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-263. Credit for certain past service as an assistant district attorney or employee of the Prosecuting Attorneys' Council; payment of employee contributions; credit for service as full-time law assistant.

  1. As used in this Code section, "past service as an assistant district attorney" shall include service rendered in that position pursuant to an Act authorizing assistant district attorneys in certain judicial circuits, Ga. L. 1970, p. 716, as amended, notwithstanding its subsequent repeal.
  2. Any member who is subject to Code Section 47-2-262 may receive creditable service under this chapter for past service as an assistant district attorney or as an employee of the Prosecuting Attorneys' Council of the State of Georgia upon payment to the board of trustees of the employee contributions which he would have paid had he been a member of the retirement system at the time such past service was rendered. The basis for employee contributions to obtain creditable service under this Code section shall be the state salary paid to the members claiming such past service at the time the service was rendered.
  3. Any member who is subject to Code Section 47-2-262 may receive up to four years of creditable service under this chapter for past service as a full-time law assistant for a judicial circuit employed pursuant to the provisions of Code Section 15-6-28 upon payment to the board of trustees of such amount as determined by the actuary as necessary to grant such benefit without creating any accrued actuarial liability as to this retirement system. The basis for employee contributions to obtain creditable service under this Code section shall be the state salary paid to the member claiming such past service at the time the service was rendered. Such payment must be made not later than July 1, 2003, or within six months of first or again becoming a member, whichever is later.

    (Ga. L. 1978, p. 2173, § 23; Ga. L. 1998, p. 126, § 1; Ga. L. 2002, p. 1483, § 1.)

47-2-264. Membership in retirement system of secretaries employed by judges of superior courts and district attorneys; creditable service; contributions.

  1. Each secretary employed by a judge of the superior court or a district attorney under Code Section 15-6-25 or 15-18-17 shall be a member of the Employees' Retirement System of Georgia with a commencement date of July 1, 1975. Any such secretary who is already a member of the retirement system by virtue of service with another employer shall be entitled to credit for all service rendered while an employee under the retirement system. All contributions required under this chapter made on behalf of such judicial secretaries shall be paid from funds appropriated or otherwise available for the operation of the superior courts, and all contributions required under this chapter made on behalf of such secretaries of district attorneys shall be paid from funds appropriated or otherwise available. All such payments shall be in addition to the regular compensation provided by law for such secretaries.
  2. Any member who is a secretary of a judge of the superior court or a district attorney and who was employed as such a secretary prior to July 1, 1993, may receive creditable service under this chapter for such employment prior to July 1, 1993, as provided in this subsection.  In order to obtain creditable service under this subsection, the member shall (1) provide to the board of trustees acceptable evidence of the period prior to July 1, 1993, during which the member was employed as a secretary of a judge of the superior court or a district attorney but was not a member of this retirement system or any other retirement system and of the compensation received by the member for such employment; and (2) pay to the board of trustees the employee contributions which would have been required if such person had been a member of the retirement system during such period of employment, together with interest at the rate of 6 percent per annum from the date such employee contributions would have been due.  The basis for computing such employee contributions shall be the compensation actually received and established to the board as provided in this subsection.  No creditable service shall be allowed under this subsection for any period of employment for which creditable service is allowed under any other provision of this chapter or for which creditable service is received under any provision of any other retirement or pension system of this state or of any political subdivision of this state.
  3. Any member who became a member by operation of this Code section shall be eligible to obtain creditable service for all prior service as a secretary of a state court judge while covered by a retirement or pension system operated by a county for county employees if such person has not yet begun receiving a retirement or disability benefit from such retirement or pension system. To obtain such creditable service, the member must apply to the board of trustees not later than December 31, 1998, or within six months after becoming a member, whichever date is later, and must provide such evidence of such prior service as the board deems necessary. Upon notification in writing by the board of trustees of this retirement system, the board of trustees or other managing body of the local retirement or pension system shall transfer to this retirement system accumulated employee contributions and accumulated interest which have been credited by the local retirement or pension system to each employee and have not been withdrawn, and thereafter such person shall not be entitled to receive a benefit from such local retirement or pension system. The employee shall pay to the board of trustees of this retirement system any employee contributions which have been paid to the local retirement or pension system by or on behalf of each employee and have been withdrawn from the local retirement or pension system, plus interest thereon at the rate of 5 percent per annum. Upon receipt of the funds so transferred, the board of trustees shall grant to the member such creditable service as such amount will provide without creating any accrued liability, as a result of granting such creditable service, against this retirement system. If the amount of creditable service so obtained is less than the actual number of years of eligible service, the member is authorized, but not required, to obtain the difference by paying to the board of trustees an amount sufficient to grant such creditable service without creating any accrued liability, as a result of granting such creditable service, against this retirement system.
  4. Any member of this retirement system subject to the provisions of this Code section may obtain creditable service for prior service as a secretary to a state court judge while a participating member of a county retirement system by so notifying the board of trustees of this retirement system and the board of trustees of the county retirement system. Upon receiving such notice, the board of trustees of the county retirement system shall transfer to the board of trustees of this retirement system all employer and employee contributions made by or on behalf of the member, together with regular interest thereon. Upon receipt of such funds, the member shall be credited with such years of service, not to exceed the years of actual service as secretary for a state court judge, as such amount will warrant without creating any unfunded actuarial accrued liability.

    (Ga. L. 1975, p. 1506, § 5; Ga. L. 1986, p. 1250, § 1; Ga. L. 1994, p. 708, § 1; Ga. L. 1998, p. 1109, § 2; Ga. L. 2000, p. 1271, § 2; Ga. L. 2009, p. 753, § 3/SB 109.)

The 2009 amendment, effective July 1, 2010, in subsection (a), in the third sentence, inserted "made on behalf of such judicial secretaries" in the middle and inserted "contributions required under this chapter made on behalf of such secretaries of district attorneys shall be paid from funds appropriated or otherwise available." at the end, and, at the beginning of the last sentence, added "All".

OPINIONS OF THE ATTORNEY GENERAL

Section's intent to provide adequate secretarial assistance. - Intent of the General Assembly in providing for the employment and compensation of secretaries for superior court judges and district attorneys and providing that certain of these secretaries must become members of the retirement system was to provide superior court judges and district attorneys with adequate secretarial assistance, so that their official duties could be accomplished efficiently without undue clerical problems; it is reasonable that the General Assembly did not intend for this to penalize certain secretaries by forcing their removal from county retirement programs. 1975 Op. Att'y Gen. No. 75-70.

47-2-264.1. Membership in retirement system of employees paid by the office of the district attorney; contributions; creditable service.

  1. As used in this Code section, the term:
    1. "Circuit paid district attorney employee" means any full-time assistant district attorney, secretary, investigator, clerical assistant, paraprofessional, or victim or witness assistance personnel employed by a district attorney of a multicounty judicial circuit from funds paid for the operation of such office by the counties of such judicial circuit and who is not eligible for membership in a county retirement system.
    2. "State paid district attorney employee" means any full-time assistant district attorney, secretary, or investigator employed by a district attorney who is a member of this retirement system pursuant to the provisions of Code Section 47-2-262, 47-2-264, or 47-2-265.
  2. Upon the enactment of a rule or regulation of each of the counties composing a judicial circuit so authorizing, a circuit paid district attorney employee may, at his or her option, elect to become a member of this retirement system. Once such a rule or resolution is adopted by each county in the judicial circuit, no revocation shall be effective until the rule or resolution is revoked in each such county, and any revocation of the privilege imparted thereby shall not apply to any employee employed prior to the effective date of such revocation. Any such employee shall exercise his or her option to become a member of this retirement system by so notifying the board of trustees not later than 60 days after becoming eligible, and, once made, such election shall be irrevocable. The employing district attorney's office shall deduct from each such member's compensation the member's contribution, and the employing district attorney's office shall pay the employer's contribution from funds paid to such office by the counties composing the judicial circuit.
  3. Any person electing to become a member of this retirement system pursuant to the provisions of subsection (b) of this Code section shall be subject to the provisions of Code Section 47-2-334; provided, however, that any member who, without a break in service, accepts employment as a circuit paid district attorney employee shall continue in the same membership status possessed by the member immediately prior to accepting such employment without any interruption in membership and without the loss of any creditable service.
  4. Any member who becomes a member of this retirement system pursuant to the provisions of subsection (b) of this Code section shall be entitled to receive up to five years of creditable service for prior service as a circuit paid district attorney employee during which the member was not a member of any other public retirement system as provided in this subsection. In order to receive such creditable service, the member shall provide the board of trustees with proof satisfactory to the board of the period of employment as a circuit paid district attorney employee and the compensation received during that time and shall pay to the board of trustees the employer and employee contributions which would have been paid by or on behalf of such member if he or she had been a member, together with regular interest thereon. The employing district attorney's office is authorized to supplement such payments from such funds as are available to it from the counties composing the judicial circuit. The member shall receive such creditable service as may be granted without creating any accrued unfunded liability of this retirement system.
  5. Any state paid district attorney employee who is a member of this retirement system on July 1, 1998, shall be entitled to receive up to five years of creditable service for prior service as a circuit paid district attorney employee during which the member was not a member of any other public retirement system as provided in this subsection. In order to receive such creditable service, the member shall provide the board of trustees with proof satisfactory to the board of the period of employment as a circuit paid district attorney employee and the compensation received during that time and shall pay to the board of trustees the employer and employee contributions which would have been paid by or on behalf of such member if he or she had been a member, together with regular interest thereon. The employing district attorney's office is authorized to supplement such payments from such funds as are available to it from the counties composing the judicial circuit. The member shall receive such creditable service as may be granted without creating any accrued unfunded liability of this retirement system. (Code 1981, § 47-2-264.1 , enacted by Ga. L. 1998, p. 162, § 1; Ga. L. 1999, p. 20, § 1.)

47-2-265. Membership in retirement system of district attorney investigators.

  1. As used in this Code section, the term "district attorney investigator" means a district attorney investigator who is compensated from state funds pursuant to Code Section 15-18-14.1.
  2. Effective on July 1, 1988, or on first becoming a district attorney investigator at any time after that date, each district attorney investigator shall become a member of the Employees' Retirement System of Georgia as a condition of employment, unless such investigator was, immediately prior to appointment as a district attorney investigator, a member of another publicly supported retirement or pension system or fund which provides retirement benefits based wholly or partially on compensation paid from state funds. A district attorney investigator who was employed as an investigator in a district attorney's office prior to appointment as a district attorney investigator and who was a member of any such other publicly supported retirement or pension system or fund immediately prior to such appointment may elect to become a member of the Employees' Retirement System of Georgia in lieu of membership in such other publicly supported retirement or pension system or fund by notifying the board of trustees of such election within 90 days after becoming employed pursuant to Code Section 15-18-14.1. Any such district attorney investigator who fails to notify the board of trustees within such time shall not at any time thereafter become eligible for membership in the Employees' Retirement System of Georgia during such service as a district attorney investigator.
  3. Any person who becomes a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334, except that any member of the retirement system who, without any break in service, is appointed as a district attorney investigator shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. The state salaries paid to district attorney investigators who become members of the retirement system pursuant to this Code section shall be the basis for employee and employer contributions to the retirement system for such members. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter for such members shall be paid from funds appropriated or otherwise available. The Prosecuting Attorneys' Council of the State of Georgia shall deduct from the state salaries payable to such members the additional employee contributions required by this chapter.
  5. Any member who became a member by operation of this Code section shall be eligible to obtain creditable service for all prior service as such district attorney investigator prior to becoming a member of this retirement system. To obtain such creditable service, the member must apply to the board of trustees not later than December 31, 2000, or within six months after becoming a member, whichever date is later, and must provide such evidence of such prior service as the board deems necessary. The employee shall pay to the board of trustees of this retirement system any employee and employer contributions which would have been paid to this retirement system had such employee been a member of this retirement system at the time such service was rendered plus interest thereon at the rate of 5 percent per annum. (Code 1981, § 47-2-265 , enacted by Ga. L. 1988, p. 1338, § 1; Ga. L. 2000, p. 1217, § 1; Ga. L. 2009, p. 753, § 4/SB 109.)

The 2009 amendment, effective July 1, 2010, in subsection (d), substituted "available" for "made available for the operation of the superior courts" at the end of the second sentence and substituted "Prosecuting Attorneys' Council of the State of Georgia" for "Department of Administrative Services" at the beginning of the last sentence.

47-2-266. Membership of judicial employees; contributions.

  1. As used in this Code section, the term:
    1. "Judicial employee" means:
      1. A full-time assistant to a district administrative judge and any full-time secretarial or clerical judicial administrative district employee employed pursuant to the provisions of Code Section 15-5-6;
      2. A full-time employee of The Council of Superior Court Judges of Georgia provided for in Code Section 15-6-34; and
      3. A full-time court administrator for a judicial circuit employed pursuant to the provisions of Code Section 15-6-28.
    2. "Prior service as a judicial employee" means service as a judicial employee rendered prior to July 1, 1990, or prior to July 1, 1992, as applied to a judicial employee specified in subparagraph (C) of paragraph (1) of this subsection.
  2. Effective on July 1, 1990, or on July 1, 1992, as applied to a judicial employee specified in subparagraph (a)(1)(C) of this Code section, or on first becoming a judicial employee at any time after either such date, as applicable, each judicial employee shall become a member of the Employees' Retirement System of Georgia as a condition of employment.
  3. The salary paid from state funds to each judicial employee shall be the basis for employee and employer contributions to the retirement system for the purposes of this Code section. All employer contributions, including employee contributions made by the employer on behalf of members, shall be paid from funds appropriated or otherwise made available for the operation of the judicial branch of the state government. Employee contributions of members under this Code section shall be deducted and remitted to the board of trustees by the appropriate employing authority.
  4. Any person who was a member of the retirement system immediately prior to becoming a judicial employee and who has not withdrawn employee contributions from the retirement system shall receive full creditable service for membership service in the retirement system which was completed prior to becoming a judicial employee and shall have the same membership status in the retirement system which the person possessed immediately prior to becoming a judicial employee.
    1. A person becoming a member of the retirement system pursuant to the provisions of this Code section may obtain creditable service for prior service as a judicial employee if the following payments are made to the board of trustees:
      1. The person claiming the creditable service shall pay the employee contributions that would have been paid to the retirement system if the person had been a member during the period for which creditable service is claimed plus regular interest on such employee contributions compounded annually from the time the prior service was rendered to the date of payment; and
      2. The Council of Superior Court Judges of Georgia, the president of The Council of Superior Court Judges of Georgia, or the district administrative judge employing the person claiming the creditable service shall pay the employer contributions that would have been paid to the retirement system if the person claiming the creditable service had been a member during the period of time for which creditable service is claimed plus regular interest on such employer contributions compounded annually from the time the prior service was rendered to the date of payment. For prior service as a judicial employee specified in subparagraph (a)(1)(C) of this Code section, the employer contributions plus interest required by this subparagraph shall be paid by The Council of Superior Court Judges of Georgia from funds appropriated or available for the operation of the superior courts.
    2. The employee and employer contributions provided for in paragraph (1) of this subsection shall be determined on the basis of compensation actually received as a judicial employee during the period of prior service for which creditable service is claimed. The employer contributions plus interest thereon provided for in subparagraph (B) of paragraph (1) of this subsection may be paid from any funds of the judicial branch of the state government appropriated or otherwise available to The Council of Superior Court Judges of Georgia or district administrative judges or appropriated or available for the operation of the superior courts. (Code 1981, § 47-2-266 , enacted by Ga. L. 1990, p. 356, § 1; Ga. L. 1992, p. 477, § 1; Ga. L. 1992, p. 2995, § 1; Ga. L. 1993, p. 1402, § 19; Ga. L. 1994, p. 92, § 1; Ga. L. 2009, p. 753, § 5/SB 109; Ga. L. 2010, p. 1207, § 31/SB 436.)

The 2009 amendment, effective July 1, 2010, substituted "Council of Superior Court Judges of Georgia" for "commissioner of administrative services" near the end of the last sentence of subparagraph (f)(1)(B).

The 2010 amendment, effective July 1, 2010, in subsection (a), added "and" at the end of subparagraph (a)(1)(B), deleted former subparagraph (a)(1)(C), which read: "A full-time employee employed for the purpose of assisting sentence review panels provided for in Code Section 17-10-6; and", redesignated former subparagraph (a)(1)(D) as present subparagraph (a)(1)(C), and substituted "(C)" for "(D)" in paragraph (a)(2); substituted "subparagraph (a)(1)(C)" for "subparagraph (a)(1)(D)" near the middle of subsection (b); deleted former subsection (c), which read: "Any person becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334, except that any member of the retirement system who, without any break in service, accepts employment as a judicial employee shall continue in the same membership status possessed by the member immediately prior to accepting such employment without any interruption in membership service and without the loss of any creditable service."; redesignated former subsections (d) through (f) as present subsections (c) through (e), respectively; in present subsection (e), in the second sentence of subparagraph (e)(1)(B), substituted "subparagraph (a)(1)(C)" for "subparagraph (a)(1)(D)" and substituted "The" for "the", and deleted former paragraph (e)(3), which read: "Any member qualified to obtain creditable service pursuant to the authority of subparagraph (a)(1)(D) of this Code section shall apply to the board of trustees for such creditable service by not later than July 1, 1993."

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-267. Membership of employees of district attorneys; contributions.

Except as provided in Code Section 47-2-265, each full-time employee of a district attorney, which employee is compensated through funds appropriated by the General Assembly, shall be a member of this retirement system as a condition of employment. Any such employee who is already a member of this retirement system by virtue of service with another employer shall be entitled to credit for all service rendered while an employee under the retirement system. All contributions required under this chapter shall be paid from funds appropriated or otherwise available. The Prosecuting Attorneys' Council of the State of Georgia shall deduct from the state salaries paid to such members the employee contributions required by this chapter.

(Code 1981, § 47-2-267 , enacted by Ga. L. 1998, p. 172, § 1; Ga. L. 2009, p. 753, § 6/SB 109.)

The 2009 amendment, effective July 1, 2010, deleted "for the operation of the superior courts" following "available" at the end of the third sentence and substituted "Prosecuting Attorneys' Council of the State of Georgia" for "Department of Administrative Services" at the beginning of the last sentence.

PART 8 E MPLOYEES OF THE PEACE OFFICERS' ANNUITY AND BENEFIT FUND

47-2-280. Credit for previous service as an employee of the Peace Officers' Annuity and Benefit Fund; contributions.

Anything in this chapter to the contrary notwithstanding, any member with prior service credits who previously was employed by the Peace Officers' Annuity and Benefit Fund shall be eligible to receive credit for such service with the Peace Officers' Annuity and Benefit Fund by paying the regular employer and employee's contribution, including regular interest that would have accumulated on those contributions during such period of employment. In the computation of such contributions and interest, the compensation of such member shall be deemed to have been the same as the compensation such member received on the date of first becoming a member.

(Ga. L. 1962, p. 701, § 1.)

PART 9 J UDGES AND OTHER COURT EMPLOYEES; CERTAIN COUNTY EMPLOYEES

47-2-290. Judges, solicitors, and other employees of state courts subject to merit system; membership in retirement system; contributions; exemptions.

  1. The state courts of this state are declared to be adjuncts of the superior courts, the state courts having concurrent jurisdiction in all civil and criminal matters except those exclusively vested in the superior courts. All judges, solicitors, and other employees of any state court in this state shall be subject to a merit system of personnel administration as promulgated by each state court under which all such officers and employees shall perform services on the basis of merit, fitness, and efficiency. All such officers and employees are authorized to become members of the Employees' Retirement System of Georgia in accordance with this chapter. The governing authority of each county of this state shall deduct or collect from each member the employee contributions required by this chapter and shall remit those contributions to the retirement system on a monthly basis. The Council of State Court Judges of Georgia is authorized and directed to pay from the funds appropriated or otherwise available the employer contribution required by this chapter for judges and employees of the state courts, which contribution shall be paid by The Council of State Court Judges of Georgia, upon receipt of an invoice from the retirement system. The Prosecuting Attorneys' Council of the State of Georgia is authorized and directed to pay from the funds appropriated or otherwise available the employer contribution required by this chapter for solicitors-general of the state courts, which contribution shall be paid by the Prosecuting Attorneys' Council of the State of Georgia, upon receipt of an invoice from the retirement system.
  2. All judges, solicitors, and other employees of any state court who were in service on December 1, 1952, shall be entitled to all benefits authorized under this chapter in the same manner as if they had been members of the retirement system on that date.
  3. Subsection (b) of Code Section 47-2-110 shall not apply to the judges and solicitors of any state court, who may retire at their discretion at any time after becoming eligible to retire.
  4. Code Section 47-2-291 shall not apply to judges and solicitors of the state courts who participate in the retirement system in their capacity as judges and solicitors; but all judges and solicitors so participating shall be entitled to credit for all their prior years of service rendered as judge or solicitor, or both.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 305, §§ 1-5; Ga. L. 1982, p. 3, § 47; Ga. L. 1993, p. 1402, § 19; Ga. L. 1994, p. 92, § 1; Ga. L. 2009, p. 753, § 7/SB 109; Ga. L. 2010, p. 1207, § 64/SB 436.)

The 2009 amendment, effective July 1, 2010, in subsection (a), in the fifth sentence, substituted "Council of State Court Judges of Georgia" for "commissioner of administrative services" twice, substituted "or otherwise available" for "for the operation of the superior courts of this state" in the middle, and inserted "for judges and employees of the state courts" near the end, and added the last sentence.

The 2010 amendment, effective July 1, 2010, substituted "The Council" for "the Council" in the fifth sentence of subsection (a).

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

OPINIONS OF THE ATTORNEY GENERAL

Section permissive, not mandatory. - It is clear that, under the language of this statute, the General Assembly used permissive words and not mandatory provisions. A close analysis of the provisions reveals that the governing authority of the county in which the court is located can deduct or collect employee contributions only from members, and there is no authorization contained therein that contributions shall apply in a mandatory manner to all officers and employees of the courts. This restrictive language, considered with the permissive words "authorized to become members," clearly shows this statute to be permissive and not mandatory. 1957 Op. Att'y Gen. p. 225 (see O.C.G.A. § 47-2-290 ).

Person who is both state court judge and juvenile court judge may simultaneously belong to the Employees' Retirement System, if otherwise eligible, and the Trial Judges and Solicitors Retirement Fund. 1981 Op. Att'y Gen. No. 81-6.

Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 2 (see O.C.G.A. § 47-2-70 ) does not apply to Ga. L. 1953, Nov.-Dec. Sess., p. 305, §§ 1-5 (see O.C.G.A. § 47-2-290 ). 1957 Op. Att'y Gen. p. 225.

Merit system must be established for employees on a court to come under the retirement system. 1957 Op. Att'y Gen. p. 226.

Statute has no effect upon jurisdiction of state courts. 1970 Op. Att'y Gen. No. U70-93 (see O.C.G.A. § 47-2-290 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1182, 1197 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 161, 316 et seq.

47-2-291. Prior service as a judge or solicitor of a court of record.

Prior service performed by a member as a judge or solicitor of a court of record shall be creditable year for year, not to exceed five years for each type of service, notwithstanding that such service may have been for longer periods.

(Ga. L. 1952, p. 175, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Prior service creditable under general retirement system. - If a superior court judge becoming an appellate court judge elects coverage under the general retirement system program, rather than Ga. L. 1971, p. 99, § 1 (see O.C.G.A. § 47-2-244 ), Ga. L. 1952, p. 175, § 3 (see O.C.G.A. § 47-2-291 ) would allow service performed as a judge or solicitor of a court of record to be creditable as prior service year for year, not to exceed five years for each type of service. 1976 Op. Att'y Gen. No. U76-9.

47-2-292. Merit system of personnel administration for county revenue employees; membership in retirement system; contributions; credit for prior service.

  1. The offices of the tax commissioners, tax collectors, and tax receivers of the counties of this state are declared to be adjuncts of the Department of Revenue, such offices assisting in the returning and collecting of state taxes. All tax commissioners, tax collectors, and tax receivers and employees in their offices shall be subject to a merit system of personnel administration, as promulgated by each such office, under which all such officials and employees shall perform services on the basis of merit, fitness, and efficiency.

    (a.1) Notwithstanding any other provision of this Code section, no person who first or again takes office or becomes employed on or after July 1, 2012, shall become a member of the retirement system pursuant to the provisions of this Code section. Any person serving in any such position on July 1, 2012, who continues in service without a break in service shall remain a member of this retirement system. The reelection of any such officer or the election of any eligible employee to such office shall not constitute a break in service.

  2. The official in charge of such office, if he or she is responsible for the payment of the employees in that office, or the governing authority of the county, if the official and the employees are paid by it, shall deduct or collect from each member the employee contributions required by this chapter and shall remit the same to the retirement system as required by regulations. The state revenue commissioner is authorized and directed to pay from the funds appropriated for the operation of the Department of Revenue, the employer contributions required by this chapter, upon receipt of an invoice from the retirement system.
  3. In addition to the regular employer contributions required by this chapter, the state revenue commissioner is authorized and directed to pay from the funds appropriated for the operation of the Department of Revenue an additional contribution, as determined by the board of trustees, in a regular monthly amount sufficient to amortize, within a period of not more than 20 years, the prior service values of such members.
  4. Except for those persons holding office on June 30, 1983, and except as otherwise provided by subsection (f) of this Code section, any person who becomes a tax commissioner, tax collector, or tax receiver at any time after June 30, 1983, shall be a member of the retirement system under the provisions of Code Section 47-2-334 as a condition of holding office. Any person holding office as a tax commissioner, tax collector, or tax receiver on June 30, 1983, except such officials who are then members of the retirement system and except as otherwise provided by subsection (f) of this Code section, shall have the option of becoming a member of the retirement system, and such option must be exercised by not later than June 30, 1984. Such officials electing membership in the retirement system may obtain creditable service under the retirement system for actual previous service as tax commissioner, tax collector, or tax receiver or as an employee of any such official by paying to the board of trustees the regular employer and employee contributions for each year or portion thereof claimed as previous service, with the computation of such contributions being based on the compensation of the official at the time of becoming a member of the retirement system. In addition to such employer and employee contributions, the official claiming such previous service shall pay interest at the rate of 6 percent per annum on the amount of such contributions compounded annually from the time the previous service was rendered until payment is made to the board of trustees. The payment required for such previous service shall be made to the board of trustees at the time application is made for membership in the retirement system. Except for the right to obtain creditable service for previous service as provided in this subsection, any official holding office on June 30, 1983, who elects membership in the retirement system shall be under the provisions of Code Section 47-2-334.
  5. Except for those persons in employment on June 30, 1983, and except as otherwise provided by subsection (f) of this Code section, any person who becomes an employee of a tax commissioner, tax collector, or tax receiver at any time after June 30, 1983, shall have the option, which must be exercised within 180 days after the date of employment, of becoming a member of the retirement system under the provisions of Code Section 47-2-334. Any person employed by a tax commissioner, tax collector, or tax receiver on June 30, 1983, except such employees who are then members of the retirement system and except as otherwise provided by subsection (f) of this Code section, shall have the option of becoming a member of the retirement system, and such option must be exercised by not later than June 30, 1984. Such employees electing membership in the retirement system may obtain creditable service under the retirement system for actual previous service as an employee of a tax commissioner, tax collector, or tax receiver by paying to the board of trustees the regular employer and employee contributions for each year or portion thereof claimed as previous service, with the computation of such contributions being based on the compensation of the employee at the time of becoming a member of the retirement system. In addition to such employer and employee contributions, the employee claiming such previous service shall pay interest at the rate of 6 percent per annum on the amount of such contributions compounded annually from the time the previous service was rendered until payment is made to the board of trustees. The payment required for such previous service shall be made to the board of trustees at the time application is made for membership in the retirement system. Except for the right to obtain creditable service for previous service as provided in this subsection, any person employed on June 30, 1983, who elects membership in the retirement system shall be under the provisions of Code Section 47-2-334.
  6. Notwithstanding any other provisions of this Code section, no tax commissioner, tax collector, tax receiver, or any employee of any such official shall be eligible for membership in the retirement system if such official or employee is covered or becomes covered by any other public retirement or pension system, excluding social security coverage and coverage under any county or other local retirement or pension system. The provisions of subsections (a), (b), and (c) of this Code section shall apply to any tax officials or their employees who become members of the retirement system pursuant to subsections (d) and (e) of this Code section.

    (Ga. L. 1958, p. 637, § 1; Ga. L. 1963, p. 41, § 1; Ga. L. 1969, p. 1013, § 1; Ga. L. 1973, p. 880, § 1; Ga. L. 1983, p. 655, § 1; Ga. L. 1990, p. 527, § 1; Ga. L. 2010, p. 1207, § 32/SB 436; Ga. L. 2012, p. 1051, § 2/SB 286.)

The 2010 amendment, effective July 1, 2010, deleted former subsection (b), which read: "All individuals who served as such officials and employees on or after December 1, 1956, are eligible to become members of Division A of the retirement system. Any individual who becomes such an official or employee after August 1, 1958, shall become a member of Division A of the retirement system as a condition of his employment."; redesignated former subsections (c) and (d) as present subsections (b) and (c), respectively; inserted "or she" in the first sentence of present subsection (b); deleted former subsection (e), which read: "All tax commissioners, tax collectors, tax receivers, and the employees in their offices who were in service on or after December 1, 1956, shall be entitled to all prior service credits authorized under this chapter in the same manner as if they had been members of the retirement system on such date, provided that prior service credits shall be available only to persons who become members at the time coverage was originally extended to them. No prior service credit shall be available to a person who became such an official or employee after August 1, 1958. The value of the prior service credits under this Code section shall not be in excess of the value of 25 years of prior service."; redesignated former subsections (f) through (h) as present subsections (d) through (f), respectively; substituted "subsection (f)" for "subsection (h)" twice in present subsections (d) and (e); and, in the last sentence of present subsection (f), substituted "subsections (a), (b), and (c)" for "subsections (a), (c), and (d)" and substituted "subsections (d) and (e)" for "subsections (f) and (g)" near the end.

The 2012 amendment, effective July 1, 2012, added subsection (a.1).

Cross references. - Creditable service not allowed for military service from which discharge was other than honorable, § 47-1-11 .

Editor's notes. - Ga. L. 1990, p. 527, § 3, not codified by the General Assembly, provides: "Any creditable service obtained prior to the effective date of this Act under the Employees' Retirement System of Georgia and under a local retirement or pension system by any person who is subject to the provisions of Code Section 47-2-292 of the Official Code of Georgia Annotated shall not be rescinded or forfeited as a result of the provisions of said Code Section 47-2-292 as it existed prior to the effective date of this Act [July 1, 1990], and such creditable service is ratified and confirmed."

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

JUDICIAL DECISIONS

Plaintiff lacked property interest in continued employment. - Plaintiff contended that O.C.G.A. § 47-2-292 mandated that employees of the Madison County Tax Commissioner's Office (TCO) be subject to a merit system under which the employees were entitled to a hearing prior to termination. However, the statute contained no such requirement, and plaintiff did not point to any evidence that the TCO of Madison County promulgated a merit system that required a hearing prior to termination for cause; accordingly, plaintiff was not entitled to a hearing prior to termination and did not have a protected property interest in continued employment with the TCO. Epps v. Watson, F. Supp. 2d (M.D. Ga. Oct. 30, 2008).

No vested interest in continued employment shown. - In a racial discrimination suit, the trial court properly denied mandamus relief to the former employee because the former employee failed to show that the employer had a clear legal duty to maintain the former employee as an employee and there was no evidence showing that the former employee was ever a merit system employee with a vested interest in continued employment with the tax commissioner. Cochran v. Kendrick, 297 Ga. 655 , 778 S.E.2d 1 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Court clerks and employees not entitled to membership. - Since there is no statutory authority for such membership, neither superior court clerks nor their employees are entitled to membership in the Employees' Retirement System of Georgia. 1976 Op. Att'y Gen. No. U76-8.

County tax officials and their employees are eligible for participation in the retirement system, provided the county tax office took timely and proper action to qualify as an adjunct of the State Revenue Department. 1962 Op. Att'y Gen. p. 367.

County tax officials must purchase prior creditable service. - County tax commissioners, collectors, receivers, and employees of those officers, who avail themselves of the provisions of Ga. L. 1971, p. 93, § 1 and Ga. L. 1971, p. 96, § 2 (see O.C.G.A. § 47-2-93 ) must purchase all of the creditable service to which they are entitled. 1976 Op. Att'y Gen. No. 76-129.

State Revenue Department makes employer contributions. - State Revenue Department is authorized and directed to make employer contributions in behalf of officials and employees of county tax offices which comply with all the conditions precedent set forth in this statute within the applicable time limitations expressly provided for therein. 1969 Op. Att'y Gen. No. 69-349 (see O.C.G.A. § 47-2-292 ).

Restriction of department's power to limit use of leave time. - Department of Revenue does not have the authority to promulgate rules and regulations limiting the accumulation and use of sick, annual, and compensatory leave for county tax officials and employees. 1982 Op. Att'y Gen. No. 82-98.

Revenue Department required to pay employer contributions on forfeited leave used as creditable service for retirement benefits on behalf of eligible retiring county tax officials and employees. 1979 Op. Att'y Gen. No. 79-69.

Certification and documentation of forfeited leave. - As the employer for the purposes of retirement system membership, the Department of Revenue may specify the manner in which the certification and documentation for forfeited leave of county tax officials and employees is made. 1982 Op. Att'y Gen. No. 82-98.

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, § 1167 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 161, 313 et seq. 81A C.J.S., States, § 216.

47-2-292.1. Tax commissioners, tax collectors, and tax receivers and all employees in their offices employed on or after July 1, 2012, ineligible for membership in the Employees' Retirement System of Georgia by operation of law.

  1. The provisions of this Code section shall apply to tax commissioners, tax collectors, and tax receivers and employees in their offices who first or again take office or become employed on or after July 1, 2012.
  2. On and after July 1, 2012, the governing authority of each county shall have the option of including the county tax commissioner, tax collector, or tax receiver and all employees of such person's office as members of the retirement system. Such option shall be made by adopting a resolution and forwarding such resolution to the board of trustees.
  3. The official in charge of such office, if he or she is responsible for the payment of the employees in that office, or the governing authority of the county, if the official and the employees are paid by it, shall deduct or collect from each member the employee contributions required by this chapter and shall remit the same to the retirement system as required by regulations. The governing authority of the county shall pay to the board of trustees the employer contributions required by this chapter, upon receipt of an invoice from the retirement system.
  4. An election by a county governing authority made pursuant to subsection (b) of this Code section may be revoked in the same manner as the election was made, but the county's obligations as to any officer or employee who became a member of the retirement system as a result of such election shall continue, and the rights and benefits of any such officer or employee shall be unaffected by such revocation.
  5. All persons subject to the provisions of this Code section shall be members of the retirement system under the provisions of Article 10 of this chapter as a condition of holding office.
  6. Notwithstanding any other provisions of this Code section, no tax commissioner, tax collector, tax receiver, or any employee of any such official shall be eligible for membership in the retirement system if such officer or employee is covered or becomes covered by any other public retirement or pension system, excluding social security coverage. (Code 1981, § 47-2-292.1 , enacted by Ga. L. 2012, p. 1051, § 3/SB 286.)

Effective date. - This Code section became effective July 1, 2012.

47-2-293. Effect of failure of state court to provide means by which its officials or employees can become members of the retirement system.

Notwithstanding any other provisions of this chapter, any state court which has not provided means by which its employees can become members of the retirement system shall, on and after February 13, 1962, no longer be deemed to be adjuncts of the superior courts. No employee of such state court shall be deemed to be a state employee or otherwise eligible for membership in the retirement system.

(Ga. L. 1962, p. 54, § 7.)

OPINIONS OF THE ATTORNEY GENERAL

Tax officials eligible for participation, provided qualified. - County tax officials and their employees are eligible for participation in the retirement system, provided the county tax office took timely and proper action to qualify as an adjunct of the State Revenue Department. 1962 Op. Att'y Gen. p. 367.

Statute has no effect upon jurisdiction of state courts. 1970 Op. Att'y Gen. No. U70-93 (see O.C.G.A. § 47-2-293 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1182.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq. 81A C.J.S., States, § 216.

47-2-294. Limitation on benefits available to persons who transferred to this retirement system or who became members under Code Section 47-2-290 or 47-2-292.

Any other provisions of law to the contrary notwithstanding, only voluntary service retirement, death, and disability allowances shall apply to individuals who transferred to this retirement system from another such system or who became members under Code Section 47-2-290 or 47-2-292.

(Ga. L. 1961, p. 143, § 5.)

JUDICIAL DECISIONS

Cited in Board of Trustees of Employees' Retirement Sys. v. Kenworthy, 253 Ga. 554 , 322 S.E.2d 720 (1984).

47-2-295. Transfer from county retirement system of contributions made as juvenile detention facility employee; credit for past service; payment of contributions; eligibility.

  1. Any person who becomes a member after January 1, 1980, but before July 1, 1981, as a result of employment with a juvenile detention facility which has been acquired from a county by a state department and who was an employee of such county immediately prior to becoming a member of this retirement system in a position covered under its retirement or pension system shall have the option of transferring to the retirement system the employer and employee contributions credited to him for service as an employee of the juvenile detention facility. This option must be exercised within six months after becoming a member of the retirement system. It shall be exercised by notifying, in writing, the governing body of the county retirement or pension system and the board of trustees of the member's desire that such contributions be transferred.
  2. Within 30 days after receiving such notification, the governing body of the county retirement or pension system shall pay to the board of trustees of this retirement system an amount equal to such employer and employee contributions. Upon the receipt of such payment, the board of trustees shall deposit that portion representing employee contributions into the annuity savings fund as a credit to the member; and it shall deposit that portion representing employer contributions into the pension accumulation fund. Upon deposit of such contributions, the member shall receive credit for past service rendered as an employee of the county juvenile detention facility; but the amount of past service credited to such member shall be adjusted as necessary so that the accrued liability to this retirement system created by such past service shall be fully funded by the amount of the payment received by the board of trustees from the county retirement or pension system.
  3. If the payment received by the board of trustees is insufficient to cover all past service rendered as an employee of the county juvenile detention facility on a year-for-year basis, the governing authority of the county which formerly employed such member shall be authorized, but not required, to pay to the board of trustees an amount which, when combined with the payment of employer and employee contributions, shall be sufficient to fund all service rendered as an employee of the juvenile detention facility. In the event a county governing authority elects to pay such additional amount, it shall request, in writing, a certification from the board of trustees of such amount; and, upon such payment, the member shall be given credit for all service rendered as an employee of the county juvenile detention facility. The amount, if any, paid by a county governing authority shall be deposited by the board of trustees into the pension accumulation fund.
  4. In addition to persons who become members of this retirement system pursuant to subsection (a) of this Code section, the provisions of this Code section shall also apply to any persons who become members after July 1, 1986, but before December 31, 1987, as a result of employment with a county juvenile detention facility, the employees of which facility have been acquired from a county by a state department and who were employees of such county immediately prior to becoming members of this retirement system in positions covered under such county's retirement or pension system.

    (Ga. L. 1980, p. 1544, § 2; Ga. L. 1986, p. 1550, § 1; Ga. L. 2000, p. 131, § 1.)

47-2-295.1. Probation and intake officers of Department of Juvenile Justice.

  1. As used in this Code section, the term:
    1. "Department" means the Department of Juvenile Justice.
    2. "Local retirement system" means a retirement or pension system maintained by a county which includes as members thereof county probation and intake officers who become employees of the department as a result of the county probation and intake services being transferred to the department pursuant to the provisions of Code Section 15-11-69.  The term includes any such retirement or pension system created by law or created by ordinance or resolution of the county under the home rule provisions of the Constitution.
    3. "Probation and intake officer" means a probation and intake officer as such term is defined in Code Section 15-11-2.
  2. Any probation and intake officer becoming an employee of the department at any time on or after July 1, 1993, as a result of a transfer of county probation and intake services to the department pursuant to the provisions of Code Section 15-11-69 shall have the options and rights provided for by this Code section.  The options available to any such employee under this Code section must be exercised within 18 months after the date the applicable county probation and intake services are transferred to the department.  Any such option shall be exercised by such employee notifying, in writing, the Board of Trustees of the Employees' Retirement System of Georgia, the governing authority of the applicable county, and, when applicable, the board of trustees or other managing body of any local retirement system of which the employee is a member.  If the employee is a member of a local retirement system, such membership shall continue pending the exercise of an option provided by this Code section.  The choice made by an employee in selecting an option provided by this Code section shall be irrevocable and may not at any time thereafter be rescinded or modified.
  3. If an employee subject to this Code section was a member of a local retirement system at the time the applicable county probation and intake services were transferred to the department, such employee may either continue active membership in the local retirement system as provided in this subsection or become a member of the Employees' Retirement System of Georgia and transfer creditable service as an employee of the local retirement system to the Employees' Retirement System of Georgia as provided in subsection (d) of this Code section. An employee electing to continue membership in a local retirement system shall have the right to continue such membership and the salary received by such employee as an employee of the department shall be the salary of such employee for all purposes under the local retirement system. Except as otherwise provided in this subsection for the use of certain employer contributions to offset required employee contributions, such employee shall continue to pay the employee contributions required under the local retirement system; and, for such purposes, the department may enter into an agreement with the board of trustees or other managing body of the local retirement system whereby the department may deduct such employee contributions from the compensation of the employee and pay the amount deducted to the local retirement system. Employer contributions for continued membership in the local retirement system shall be computed at the same percentage rate applicable to all other state employees on the basis of the state salary paid to such employees electing to continue membership in the local retirement system and shall be paid by the department when applicable to the local retirement system; provided, however, that, if the employer contributions paid by the department exceed the employer contributions applicable to all other employees of the local retirement system, the difference between the percentage rate of employer contributions paid by the department and the percentage rate of employer contributions applicable to all other employees of the local retirement system shall be applied to offset the percentage rate of employee contributions required of such state employees remaining in the local retirement system; provided, further, that, if the employer contributions to be paid by the department under this subsection would exceed the total employee and employer contributions required under the local retirement system, the department shall only be required to pay the total amount of such employee and employer contributions required under the local retirement system.  An employee continuing membership under a local retirement system under this subsection shall retain all rights, benefits, and privileges under the local retirement system in the same manner and to the same extent as if the employee remained an employee of the county; provided, however, that such employee shall not be entitled to health and life insurance benefits available to county employees. An employee electing to continue membership in a local retirement system shall not be and may not become a member of the Employees' Retirement System of Georgia.
  4. An employee who was a member of a local retirement system as provided in subsection (c) of this Code section may elect to become a member of the Employees' Retirement System of Georgia. Any such employee so electing shall receive creditable service under the Employees' Retirement System of Georgia for all accredited service previously rendered as an employee of the applicable local retirement system.  For each employee so electing, the governing authority of the applicable county or the board of trustees or other managing body of the applicable local retirement system, within 30 days after receiving the notice provided for in subsection (b) of this Code section, shall pay to the Board of Trustees of the Employees' Retirement System of Georgia the total employee and employer contributions plus interest made by or on behalf of the employee to the local retirement system, together with accumulated interest thereon; provided, however, that the amount so transferred shall not exceed the amount necessary to grant the creditable service under the Employees' Retirement System of Georgia authorized by this subsection without creating any unfunded accrued liability, as a result of granting such creditable service, against the Employees' Retirement System of Georgia.
  5. If an employee subject to this Code section was not a member of a local retirement system at the time the applicable county juvenile detention system became a part of the state-wide juvenile detention system, such employee shall become a member of the Employees' Retirement System of Georgia effective on the date the county probation and intake services are transferred to the department.  Any such member may purchase as creditable service under the Employees' Retirement System of Georgia all or any portion of previous actual service rendered by the member as an employee of the applicable county probation and intake system, except in those instances in which such member has retired or is receiving benefits from a local retirement system.  Such creditable service may be purchased by the member's paying to the board of trustees all employee and employer contributions which would have been made if the employee had been a member of this retirement system, plus regular interest thereon.  The time limitation for exercising options provided for in subsection (b) of this Code section shall not apply to the purchase of creditable service under this subsection.  Any eligible member may purchase such creditable service at any time during the first five years of membership in the Employees' Retirement System of Georgia.  No service for which credit is granted pursuant to this subsection shall be used for credit in any local retirement system.
  6. To the extent this Code section conflicts with or is inconsistent with the provisions of a local retirement or pension system affected by this Code section, whether such local retirement or pension system was created by law or by local ordinance, the provisions of this Code section shall control. (Code 1981, § 47-2-295.1 , enacted by Ga. L. 1994, p. 710, § 1; Ga. L. 1997, p. 1453, § 1; Ga. L. 2000, p. 20, § 24; Ga. L. 2014, p. 393, § 1/SB 339.)

The 2014 amendment, effective April 21, 2014, part of an Act to revise, modernize, and correct this title, in paragraph (a)(2), substituted "officers" for "employees" near the middle, substituted "services" for "services'", substituted "Code Section 15-11-69. The term" for "Code Section 15-11-24.3, and the term" in the middle, and deleted "of Georgia" at the end; substituted the present provisions of paragraph (a)(3) for the former provisions, which read: "'Probation and intake employee' means a probation and intake employee as such term is defined in paragraph (1) of subsection (a) of Code Section 15-11-24.3."; and, in subsection (b), in the first sentence, substituted "probation and intake officer" for "person" and substituted "Code Section 15-11-69" for "Code Section 15-11-24.3".

47-2-295.2. County juvenile detention employees who are transferred into department.

  1. As used in this Code section, the term:
    1. "Department" means the Department of Juvenile Justice.
    2. "Local retirement system" means a retirement or pension system maintained by a county which includes as members thereof county juvenile detention employees who become employees of the department as a result of the county juvenile detention services' being transferred to the department, and the term includes any such retirement or pension system created by law or created by ordinance or resolution of the county under the home rule provisions of the Constitution of Georgia.
  2. Except as provided in subsection (c) of this Code section, any person who becomes an employee of the department as a result of a transfer of county juvenile detention services to the department shall become a member of this retirement system. Within 30 days of the day any such employee becomes a member of this retirement system, the board of trustees or other managing body of the applicable local retirement system shall pay to the board of trustees of this retirement system the total employee and employer contributions plus interest made by or on behalf of the employee to the local retirement system, together with accumulated interest thereon, and in addition the governing authority of the county may pay to the board of trustees of this retirement system on behalf of the employee such amount as such county governing authority deems appropriate, and the employee shall receive such creditable service in this retirement system as the total amount will allow without creating any accrued liability against this retirement system; provided, however, that no such person shall receive creditable service in excess of the accredited service previously rendered as an employee of the applicable local retirement system.
    1. An employee subject to this Code section may elect to continue active membership in the local retirement system, and the salary received by such employee as an employee of the department shall be the salary of such employee for all purposes under the local retirement system. Except as otherwise provided in this subsection, such employee shall continue to pay the employee contributions required under the local retirement system, and the department may enter into an agreement with the board of trustees or other managing body of the local retirement system whereby the department may deduct such employee contributions from the compensation of the employee and pay the amount deducted to the local retirement system. Employer contributions for continued membership in the local retirement system shall be computed at the same percentage rate applicable to all other state employees on the basis of the state salary paid to such employees electing to continue membership in the local retirement system and shall be paid by the department when applicable to the local retirement system; provided, however, that:
      1. If the employer contributions paid by the department exceed the employer contributions applicable to all other employees of the local retirement system, the difference between the percentage rate of employer contributions paid by the department and the percentage rate of employer contributions applicable to all other employees of the local retirement system shall be applied to offset the percentage rate of employee contributions required of such state employees remaining in the local retirement system; and
      2. If the employer contributions to be paid by the department under this subsection would exceed the total employee and employer contributions required under the local retirement system, the department shall only be required to pay the total amount of such employee and employer contributions required under the local retirement system.
    2. An employee continuing membership under a local retirement system under this subsection shall retain all rights, benefits, and privileges under the local retirement system in the same manner and to the same extent as if the employee remained an employee of the county; provided, however, that such employee shall not be entitled to health and life insurance benefits available to county employees. An employee electing to continue membership in a local retirement system shall not be and may not become a member of the Employees' Retirement System of Georgia.
  3. To the extent this Code section conflicts with or is inconsistent with the provisions of a local retirement or pension system affected by this Code section, whether such local retirement or pension system was created by law or by local ordinance, the provisions of this Code section shall control. (Code 1981, § 47-2-295.2 , enacted by Ga. L. 1996, p. 277, § 1; Ga. L. 1997, p. 1453, § 1.)

47-2-296. County probation system employees.

  1. As used in this Code section, the term "local retirement system" means a retirement or pension system maintained by a county which includes as members thereof employees of the county probation system which becomes a part of the state-wide probation system, and the term includes any such retirement or pension created by law or created by ordinance or resolution of the county under the home rule provisions of the Constitution of Georgia.
  2. Any person becoming an employee of the state at any time on or after July 1, 1984, as a result of being employed by a county probation system which became a part of the state-wide probation system administered by the Department of Corrections shall have the options and rights provided for by this Code section, subject to the limitations of subsection (f) of this Code section. The options available to any such employee under this Code section must be exercised within six months after the date the applicable county probation system became a part of the state-wide probation system. The option provided by subsection (e) of this Code section must be exercised on or before the date the county probation system becomes a part of the state-wide probation system. Any such option shall be exercised by such employee notifying, in writing, the Board of Trustees of the Employees' Retirement System of Georgia, the commissioner of corrections, the governing authority of the applicable county, and, when applicable, the board of trustees or other managing body of any local retirement system of which the employee is a member. If the employee is a member of a local retirement system, such membership shall continue pending the exercise of an option provided by this Code section. The choice made by an employee in selecting an option provided by this Code section shall be irrevocable and may not at any time thereafter be rescinded or modified.
  3. If an employee subject to this Code section was a member of a local retirement system at the time the applicable county probation system became a part of the state-wide probation system, such employee, subject to the limitations of subsection (f) of this Code section, may either continue active membership in the local retirement system as provided in this subsection or become a member of the Employees' Retirement System of Georgia and transfer creditable service as an employee of the local retirement system to the Employees' Retirement System of Georgia as provided in subsection (d) of this Code section. Such employees who are subject to the provisions of subsection (e) of this Code section shall have the additional option to retire under the local retirement system, if qualified therefor, as provided in said subsection (e). An employee electing to continue membership in a local retirement system shall have the right to continue such membership and the salary received by such employee as an employee of the Department of Corrections or other state department shall be the salary of such employee for all purposes under the local retirement system. If applicable to any such employee, any county supplement to the state salary of such employee shall be included as salary for the purposes of a local retirement system in which such employee continues membership. Except as otherwise provided in this subsection for the use of certain employer contributions to offset required employee contributions, such employee shall continue to pay the employee contributions required under the local retirement system; and, for such purposes, the Department of Corrections or other state department if the employee subsequently becomes employed by another department of the state government may enter into an agreement with the board of trustees or other managing body of the local retirement system whereby the department may deduct such employee contributions from the compensation of the employee and pay the amount deducted to the local retirement system. Employer contributions for continued membership in the local retirement system shall be computed at the same percentage rate applicable to all other state employees on the basis of the state salary paid to such employees electing to continue membership in the local retirement system and shall be paid by the Department of Corrections or by another state department when applicable to the local retirement system; provided, however, that, if the employer contributions paid by the Department of Corrections or other state department exceed the employer contributions applicable to all other employees of the local retirement system, the difference between the percentage rate of employer contributions paid by the Department of Corrections or other state department and the percentage rate of employer contributions applicable to all other employees of the local retirement system shall be applied to offset the percentage rate of employee contributions required of such state employees remaining in the local retirement system; provided, further, that, if the employer contributions to be paid by the Department of Corrections or other state department under this subsection would exceed the total employee and employer contributions required under the local retirement system, the Department of Corrections or other state department shall only be required to pay the total amount of such employee and employer contributions required under the local retirement system. An employee continuing membership under a local retirement system under this subsection shall retain all rights, benefits, and privileges under the local retirement system in the same manner and to the same extent as if the employee remained an employee of the county. An employee electing to continue membership in a local retirement system shall not be and may not become a member of the Employees' Retirement System of Georgia.
  4. An employee who was a member of a local retirement system as provided in subsection (c) of this Code section may elect to become a member of the Employees' Retirement System of Georgia, except as otherwise provided by subsection (f) of this Code section. Any such employee so electing may obtain creditable service under the Employees' Retirement System of Georgia for all accredited service previously rendered as an employee of the applicable local retirement system. For each employee so electing, the governing authority of the applicable county or the board of trustees or other managing body of the applicable local retirement system, within 30 days after receiving the notice provided for in subsection (b) of this Code section, shall pay to the Board of Trustees of the Employees' Retirement System of Georgia a portion of the total employee contributions plus interest made by the employee to the local retirement system. This payment shall be equal to the employee contribution plus interest which would have been accumulated had the employee always been covered by the Employees' Retirement System of Georgia. Any additional amount, as determined by the Board of Trustees of the Employees' Retirement System of Georgia, shall be paid by the local retirement system to a maximum of prior county contributions plus interest. Any further additional sum required will be paid by the local governing authority. These two sums together with the contributions of transferring employees plus interest shall be sufficient to grant the creditable service under the Employees' Retirement System of Georgia authorized by this subsection without creating any accrued liability, as a result of granting such creditable service, against the Employees' Retirement System of Georgia. The employee contributions paid to the board of trustees under this subsection shall be deposited by the board into the annuity savings fund as a credit to the member. Other funds paid to the board of trustees under this subsection shall be deposited by the board into the pension accumulation fund. Upon receiving the payments provided for by this subsection, the board of trustees shall enter the creditable service provided for by this subsection upon the records of the member. The employee contributions in an amount exceeding those necessary to cover the period of creditable service as a state employee under the Employees' Retirement System of Georgia shall be refunded to the employee upon application to the board of trustees of the local retirement system.
  5. This subsection shall not apply to the employees of a county probation system of any county of this state having a population of 550,000 or more according to the United States decennial census of 1980 or any future such census. The employees of other county probation systems subject to the provisions of this Code section who were members of a local retirement system shall have the additional option of retiring under the local retirement system if such employees have sufficient creditable service under the local retirement system to qualify for retirement benefits. Such option may be exercised by any such employee making application for retirement to the board of trustees or other managing body of the local retirement system. Any such employee electing to retire under a local retirement system shall not be eligible to transfer any creditable service under the local retirement system to the Employees' Retirement System of Georgia and, if the employee accepts employment as an employee of the Department of Corrections, shall become a member of the Employees' Retirement System of Georgia at the time the county probation system becomes a part of the state-wide probation system.
  6. This subsection shall apply only to employees of a county probation system of a county having a population of 600,000 or more according to the United States decennial census of 1990 or any future such census.  The employees of any such county probation system who were members of a local retirement system and who have ten or more years of creditable service under the local retirement system at the time the county probation system becomes a part of the state-wide probation system shall not have the option to become members of the Employees' Retirement System of Georgia, and such employees shall continue active membership in the local retirement system. The provisions of subsection (c) of this Code section shall apply to such employees, except for the provisions of such subsection relative to the option to become members of the Employees' Retirement System of Georgia.
  7. If an employee subject to this Code section was not a member of a local retirement system at the time the applicable county probation system became a part of the state-wide probation system, such employee shall become a member of the Employees' Retirement System of Georgia effective on the date the county probation system became a part of the state-wide probation system. Any such member may purchase as creditable service under the Employees' Retirement System of Georgia all or any portion of previous actual service rendered by the member as an employee of the applicable county probation system, except in those instances in which such member has retired or is receiving benefits from a local retirement system. Such creditable service may be purchased by the member's paying to the board of trustees all employee and employer contributions, plus regular interest thereon, under the Employees' Retirement System of Georgia for the amount of creditable service claimed in an amount sufficient to grant creditable service under the Employees' Retirement System of Georgia authorized by this subsection without creating any accrued liability, as a result of granting such creditable service, against the Employees' Retirement System of Georgia. The basis for such employee and employer contributions shall be the compensation the member received upon first becoming an employee of the Department of Corrections. The time limitation for exercising options provided for in subsection (b) of this Code section shall not apply to the purchase of creditable service under this subsection. Any eligible member may purchase such creditable service at any time during the first five years of membership in the Employees' Retirement System of Georgia and parts of such creditable service may be purchased from time to time during such five-year period. The board of trustees may establish payment schedules for eligible members to purchase creditable service under this subsection.
    1. The provisions of this subsection shall apply only to counties having a population of 550,000 or more according to the United States decennial census of 1980 or any future such census which had a county probation system whose employees are subject to the provisions of this Code section.
    2. The governing authority of a county subject to this subsection is authorized to supplement the state salaries paid to employees of the Department of Corrections who were employees of the county's probation system prior to its becoming a part of the state-wide probation system. Such salary supplement, if any, shall be included in the salary of any such employee for all purposes under any local retirement system in which the employee remains a member pursuant to the authority or requirements of this Code section. Such salary supplement, if any, shall not be considered state salary for the purposes of any payments made from state funds to a local retirement system to reimburse such local retirement system for employer contributions that would be made under the Employees' Retirement System of Georgia if such employees had become members of the Employees' Retirement System of Georgia pursuant to the provisions of this Code section.
  8. To the extent this Code section conflicts with or is inconsistent with the provisions of a local retirement or pension system affected by this Code section, whether such local retirement or pension system was created by law or by local ordinance, the provisions of this Code section shall control. (Code 1981, § 47-2-296 , enacted by Ga. L. 1983, p. 1809, § 1; Ga. L. 1985, p. 209, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1986, p. 1266, § 1; Ga. L. 1992, p. 2344, § 1; Ga. L. 2000, p. 131, § 1.)

JUDICIAL DECISIONS

State takeover of county system. - Since the General Assembly provided that, upon takeover of a county probation system by the state system, the employees of the county system could at their option become employees of the state system, performing the same duties without a reduction in salary, and could continue participation in their county pension plans, the employees were not "retired by operation of law" under their pension plans. Barnett v. Fulton County, 255 Ga. 419 , 339 S.E.2d 236 (1986).

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1182.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq. 81A C.J.S., States, § 216.

47-2-297. Employees of county boards or departments of health in counties having population of 550,000 or more.

  1. This Code section shall apply only to counties, county boards and departments of health, and employees of county boards and departments of health of counties of this state having a population of 550,000 or more according to the United States decennial census of 1980 or any future such census.
  2. As used in this Code section, the term:
    1. "Employee" means an employee of a county board or department of health of a county subject to the provisions of this Code section who:
      1. Is a member of a local retirement system; and
      2. Would be eligible for membership in and a member of the Employees' Retirement System of Georgia if employed by a county board or department of health of a county other than a county subject to the provisions of this Code section.
    2. "Local retirement system" means a retirement or pension system maintained by a county which includes as members thereof employees of the county boards or departments of health, and the term includes any such retirement or pension system created by law or created by ordinance or resolution of the county under the home rule provisions of the Constitution of Georgia.
    3. "Salary supplement" means compensation paid from county funds to employees of county boards or departments of health in addition to the compensation paid to such employees from state funds or from state funding sources.
  3. The Department of Human Resources shall make payments to the governing authority of a county subject to the provisions of this Code section to partially reimburse the county for the cost incurred by the county in providing for the membership in a local retirement system of each employee. The amount of the payment for each employee shall be an amount equal to three-fourths of the amount which would be paid by the Department of Human Resources as the employer contribution to the Employees' Retirement System of Georgia if the employee were a member of the retirement system. It is specifically provided, however, that such employer contributions shall be based on state compensation paid to the employee or on the amount paid from state funds to the county as compensation for the employee, and any salary supplement to such compensation shall not be considered in the determination of the amount of the employer contribution.
  4. The reimbursement payments provided for by subsection (c) of this Code section shall be paid for all service by an employee as a member of a local retirement system which is completed after the date that funding of this Code section begins as provided in subsection (f) of this Code section. When such funding begins, such reimbursement payments shall be paid to the county at the same time employer contribution would be paid by the Department of Human Resources to the Employees' Retirement System of Georgia if the employee were a member of the retirement system.
  5. If at any time any employee becomes a member of the Employees' Retirement System of Georgia, the reimbursement payments provided for by this Code section shall cease for that employee on the effective date of membership in the Employees' Retirement System of Georgia.
  6. The payments to a county governing authority provided for by this Code section shall be contingent upon appropriations made by the General Assembly to the Department of Human Resources for the purpose of making such payments. To the extent that the General Assembly appropriates less than the amount necessary to pay the full amount provided for by this Code section, the amount otherwise payable shall be reduced in accordance with the amount actually appropriated by the General Assembly. (Code 1981, § 47-2-297 , enacted by Ga. L. 1988, p. 920, § 1.)

Editor's notes. - For transfer of certain duties from the Department of Human Resources, see Ga. L. 2009, p. 453.

47-2-298. Employees of county departments of family and children services.

  1. As used in this Code section, the term "local retirement system" means a retirement or pension system maintained by a county which includes as members thereof employees of the county department of family and children services and the term includes any such retirement or pension system created by law or created by ordinance or resolution of the county under the home rule provisions of the Constitution of Georgia.
  2. Any employee or former employee of a county department of family and children services who is or was a member of a local retirement system and who is or becomes a member of this retirement system, subject to the requirements of this Code section, shall obtain creditable service under this retirement system as provided in this subsection.  Upon notification in writing by the board of trustees of this retirement system to the board of trustees or other managing body of the local retirement system, the board of trustees or other managing body of the local retirement system shall transfer to this retirement system an amount equal to the employer contributions, plus regular interest thereon, which had been paid to the local retirement system on behalf of each employee and any employee contributions which have been paid to the local retirement system by or on behalf of each employee and have not been withdrawn from the local retirement system, plus regular interest thereon.  The board of trustees of this retirement system shall determine the period of time that such amount will fund as creditable service under this retirement system without creating any additional accrued liability of the retirement system.  The amount of creditable service so determined shall be the creditable service to which the member is entitled.
  3. Employees or former employees of a county department of family and children services were in service on July 1, 1996, and who are subject to the provisions of this Code section and who failed to exercise the option provided by this Code section by notification in writing to the board of trustees of this retirement system, the board of trustees or other managing body of the local retirement system, and to the county governing authority in a timely manner shall be forever barred from exercising such option. For employees or former employees of a county department of family and children services who become members of this retirement system after July 1, 1996, such election and notification must be made within six months of becoming a member of this retirement system. Any such employee failing to exercise the option granted by this Code section within such time limitation shall not at any time thereafter be eligible to become a member of this retirement system as an employee of a county department of family and children services. Any such employee shall make payment to the board of trustees of this retirement system of a sum equal to his or her employee contributions which had been paid to the local retirement system during the years of service for which credit is being claimed and thereafter shall not be entitled to receive any benefit from the local retirement system.
  4. Employees or former employees of a county department of family and children services who are or become members of this retirement system and who obtain credit for service pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334, except to the extent that said Code section prohibits obtaining prior service as creditable service as authorized by subsection (b) of this Code section.
  5. To the extent this Code section conflicts with or is inconsistent with the provisions of a local retirement or pension system affected by this Code section, whether such local retirement or pension system was created by law or by local ordinance, the provisions of this Code section shall control. (Code 1981, § 47-2-298 , enacted by Ga. L. 1990, p. 993, § 1; Ga. L. 1991, p. 130, § 1; Ga. L. 1994, p. 738, § 1; Ga. L. 1996, p. 305, § 1; Ga. L. 2010, p. 1207, § 33/SB 436.)

The 2010 amendment, effective July 1, 2010, in subsection (c), in the first sentence, substituted "and who failed to" for "shall" in the middle and added "in a timely manner shall be forever barred from exercising such option" at the end, deleted the former second sentence, which read: "Such notification must be made by not later than December 31, 1996.", and substituted "his or her" for "their" in the middle of the last sentence.

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

JUDICIAL DECISIONS

Equal protection. - Equal protection rights of former employees of county department of family and children services were violated by a provision that significantly reduced retirement benefits to employees who transferred to state employment after July 1, 1982, as compared to former employees who transferred before that date. Employees' Retirement Sys. of Ga. v. Martin, 272 Ga. 535 , 533 S.E.2d 68 (2000).

47-2-299. Creditable service for service as employee of private nonprofit hospital.

Repealed by Ga. L. 2010, p. 1207, § 34, effective July 1, 2010.

Editor's notes. - This Code section was based on Code 1981, § 47-2-299 , enacted by Ga. L. 2002, p. 1288, § 1A.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

PART 10 E MPLOYEES OF CERTAIN STATE AUTHORITIES AND COMMISSIONS

47-2-310. Merit system of personnel administration for employees of Georgia Federal-State Shipping Point Inspection Service; membership in retirement system; contributions; creditable service.

  1. The Georgia Federal-State Shipping Point Inspection Service, hereinafter referred to as the "inspection service" in this Code section, is declared to be an adjunct of the Georgia Department of Agriculture, such inspection service assisting in the agricultural products inspection duties of that department. All employees of the inspection service shall be subject to a merit system of personnel administration established by the agencies which are parties to a cooperative agreement between the Consumer and Marketing Service of the United States Department of Agriculture and the Georgia Department of Agriculture. All employees shall perform services on the basis of merit, fitness, and efficiency. The establishment of this merit system prior to July 1, 1975, shall be a prerequisite to coverage of the inspection service under the retirement system.
  2. Any person employed by the inspection service on July 1, 1975, is authorized to become a member of Division A of the retirement system. Any person first employed or reemployed by the inspection service after July 1, 1975, shall, as a condition of employment, become a member of Division A of the retirement system. In order to become or be required to be a member of the retirement system, an employee of the inspection service must be employed in this state in a position normally requiring actual performance of duty during not less than nine months of the year.
  3. The Georgia Department of Agriculture shall be responsible for making certain that the administrative officials of the inspection service shall deduct or collect from each member the employee contributions required by the retirement system and remit them to the retirement system as required by law or regulations. The Commissioner of Agriculture is authorized and directed to pay from the funds appropriated for the operation of the Georgia Department of Agriculture the employer contributions required by the retirement system or by regulations promulgated pursuant thereto. Such employer contributions shall be paid by the Commissioner upon receipt of an invoice from the retirement system.
  4. Any person who becomes a member of the retirement system under this Code section, upon certified proof of previous service with the inspection service, shall be eligible to receive up to five years of credit for such previous service by paying the regular employer and employee contributions, including accrued interest, that would have accumulated during such period of employment. In the computation of such contributions and interest, the compensation of such member shall be deemed to have been the same as the compensation such member received on the date he first became a member. For any member claiming creditable service under this subsection on and after July 1, 1983, the board of trustees shall calculate the period of time the contributions and interest provided for above will fund as creditable service under the retirement system without creating any additional accrued liability of the retirement system; and the amount of creditable service so determined shall be the creditable service to which the member is entitled. The inspection service shall be authorized to supplement contributions and interest provided for above in an amount, as determined by the board of trustees, which, together with such contributions and interest, will fully fund as creditable service the total amount of previous service claimed without creating any additional accrued liability of the retirement system, and in the event such supplement is paid by the inspection service to the board of trustees, the member shall be entitled to receive all such previous service as creditable service up to the maximum of five years. Credit for previous service shall be available to a member only after he has worked for the inspection service for one full year following July 1, 1975, and must be exercised, if at all, within one year after the time any such member becomes eligible to elect such option or by not later than January 1, 1984, whichever date is later.
  5. The board of trustees is authorized to promulgate all necessary rules and regulations for the implementation of this Code section, including, but not limited to, regulations and rules dealing with any required reports of employment and remission of contributions by the administrative officials of the inspection service and the method for certification of proof of previous service with the inspection service.
  6. Any member who was a member of the retirement system prior to July 1, 1975, and who, prior to becoming a member of the retirement system, was employed by the inspection service shall be eligible to receive up to five years of creditable service under the retirement system for service rendered as an employee of the inspection service prior to becoming a member of the retirement system.  In order to receive such creditable service, the member must pay to the board of trustees the employer and employee contributions which would have been paid to the retirement system during the period, not to exceed five years, of employment by the inspection service as if such employment had been rendered while a member of the retirement system, plus interest at the rate of 7 percent on such employer and employee contributions compounded annually from the time of the employment with the inspection service to the date of payment.  The board of trustees may require such documentation as the board finds necessary to verify the period of employment with the inspection service and the compensation received for such employment.  The board of trustees shall calculate the amount of payment required to obtain creditable service under this Code section and shall certify such amount to a member who applies for creditable service under this subsection.  No more than a total of five years of service prior to July 1, 1975, as an employee of the inspection service may be obtained as creditable service under all provisions of this Code section.  No creditable service may be obtained pursuant to the provisions of this subsection for any period for which creditable service has been or may be obtained under any other provision of this chapter.
    1. Any member who was employed by the inspection service on July 1, 1975, and who was a member on that date shall be eligible to receive up to five years of creditable service under the retirement system for service rendered as an employee of the inspection service prior to becoming a member of the retirement system. Such service shall be in addition to the creditable service authorized by subsection (f) of this Code section. In order to receive such creditable service, the member must pay to the board of trustees the employee contributions of 5 percent of his or her salary on July 1, 1975, for each month of creditable service, together with interest at the rate of 4 percent compounded annually from July 1, 1975, to the date of payment. The board of trustees may require such documentation as the board finds necessary to verify the period of employment with the inspection service and the compensation received for such employment. The board of trustees shall calculate the amount of payment required to obtain creditable service under this Code section and shall certify such amount to a member who applies for creditable service under this paragraph.
    2. The inspection service is authorized to supplement, if necessary, the payment made to the board of trustees pursuant to paragraph (1) of this subsection from funds available to the inspection service.
    3. Payments made pursuant to paragraphs (1) and (2) of this subsection shall be made not later than January 1, 1997. The board shall determine whether the amount of creditable service purchased by the total contributions made pursuant to paragraphs (1) and (2) of this subsection would warrant, without creating any additional accrued liability of the retirement system, up to five years of creditable service.
    4. No creditable service may be obtained pursuant to the provisions of this subsection for any period for which creditable service has been or may be obtained under any other provision of this chapter.

      (Ga. L. 1975, p. 1494, § 1; Ga. L. 1983, p. 784, § 1; Ga. L. 1990, p. 556, § 1; Ga. L. 1996, p. 299, § 1.)

Cross references. - Creditable service not allowed for military service from which discharge was other than honorable, § 47-1-11 .

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, § 1167 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 161, 316 et seq.

47-2-311. Credit for service by persons formerly employed by the Georgia Warm Springs Foundation; payments required in order to obtain credit.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 35, effective July 1, 2010.

Editor's notes. - This Code section was based on Ga. L. 1974, p. 130, § 1; Ga. L. 1982, p. 3, § 47.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-312. Merit system of personnel administration for employees of Georgia agricultural commodity commissions; membership in the retirement system; contributions; creditable service for prior employment.

  1. The Georgia agricultural commodity commissions are declared to be adjuncts of the Georgia Department of Agriculture, such commissions providing for the promotion of the production, marketing, sales, uses and utilization, processing, and improvement of the agricultural products of this state and producers connected therewith. All employees of any of the agricultural commodity commissions set forth in Code Section 2-8-5 shall be subject to a merit system of personnel administration established by the commissions, pursuant to which such employees shall be employed. All employees shall perform services on the basis of merit, fitness, and efficiency. The establishment of this merit system prior to July 1, 1976, shall be a prerequisite to coverage of the commissions under the retirement system.
  2. Persons employed by any of the agricultural commodity commissions on July 1, 1976, may elect to become members of Division A of the retirement system; but persons entering or reentering into employment with any of the agricultural commodity commissions after July 1, 1976, shall, as a condition of employment, become members of Division A of the retirement system, provided that no person so employed shall become a member unless his position normally requires actual performance of duty during not less than nine months of the year. The commencement date for the inclusion of employees of any of the agricultural commodity commissions within the retirement system shall be July 1, 1976.
  3. The Georgia Department of Agriculture shall ensure that the employees' contributions required under this chapter are deducted and collected from each member and remitted to the retirement system; and the Commissioner of Agriculture is authorized and directed to take any necessary action to ensure that the employer contributions under this chapter are paid from the funds of the agricultural commodity commissions. Such employer contributions shall be paid by the Commissioner to the retirement system upon receipt of an invoice from the retirement system.
  4. The board of trustees is authorized to promulgate all necessary rules and regulations for the implementation of this Code section, including, but not limited to, regulations and rules dealing with any required reports of employment and remission of contributions by the administrative officials of the agricultural commodity commissions.
    1. This subsection shall apply only to an employee of an agricultural commodity commission employed on July 1, 1976.
    2. An employee of an agricultural commodity commission who is subject to the provisions of this subsection shall, upon furnishing proof of prior employment to the board of trustees, be eligible to receive creditable service under this retirement system for prior employment as an employee of such commission, subject to the requirements of this subsection. Any such employee must pay to the board of trustees the employee contributions, plus accrued interest thereon at the rate of 5 percent per annum, compounded annually, which would have been paid during the period of prior employment if the employee had been a member of the retirement system during such period.  The commission shall pay from any funds available to the commission the employer contributions, plus accrued interest thereon at the rate of 5 percent per annum, compounded annually, which would have been paid during such period of prior employment.  For a member claiming creditable service for prior employment under this subsection, the board of trustees shall determine the period of time that the payments to the board of trustees provided for under this subsection will fund as creditable service under the retirement system without creating any additional accrued liability of the retirement system. Except as otherwise provided in paragraph (3) of this subsection, the amount of creditable service so determined shall be the creditable service to which the member is entitled.
    3. The authority shall be authorized to supplement, if necessary, the payments made to the board of trustees under paragraph (2) of this subsection all or any part of the amount which the board of trustees determines will fully fund as creditable service the total amount of prior employment of the employee without creating any additional accrued liability of the retirement system.  If such supplement is paid to the board of trustees by the commission, the employee shall receive such creditable service under the retirement system for prior employment as an employee of the commission as the amount so paid will fund without creating any additional accrued liability of the retirement system.

      (Ga. L. 1976, p. 481, § 1; Ga. L. 1982, p. 3, § 47; Ga. L. 1987, p. 146, § 1; Ga. L. 1994, p. 339, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, § 1197 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq. 81A C.J.S., States, § 216.

47-2-313. Merit system of personnel administration for officers and employees of Jekyll Island-State Park Authority; membership in retirement system; creditable service; contributions.

All eligible officers and employees of the Jekyll Island - State Park Authority shall be subject to a merit system of personnel administration as promulgated by that authority and under which all such officers and employees shall be selected on a basis of merit, fitness, and efficiency. All such officers and employees, except as otherwise provided in this Code section, are authorized to become members of the retirement system, provided that such membership shall become effective no earlier than April 1, 1958; provided, further, that any officer or employee of the authority who is already a member of the retirement system shall be entitled to credit for his total service with the authority. All specially classified maintenance and food service employees of the authority hired on or after July 1, 1987, and paid on an hourly basis shall not be members of the retirement system and shall not be included under the health insurance plan for state employees as provided for in Article 1 of Chapter 18 of Title 45. There shall be paid from the funds appropriated for the operation of the Jekyll Island - State Park Authority all contributions required by this chapter. All such payments shall be in addition to the regular compensation allowed to such officers and employees.

(Ga. L. 1958, p. 119, § 1; Ga. L. 1987, p. 1035, § 2.)

JUDICIAL DECISIONS

Cited in Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518 (11th Cir. 1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, § 1167 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 161, 316 et seq.

47-2-314. Membership in the retirement system of officers and employees of the Geo. L. Smith II Georgia World Congress Center Authority; creditable service; contributions.

All officers and employees of the Geo. L. Smith II Georgia World Congress Center Authority, established by Code Section 10-9-3, who are not already members of the retirement system may elect to become members on or after April 1, 1977. Any officer or employee of the authority who is already a member of the retirement system by virtue of services with another employer shall be entitled to credit for his services and shall not suffer any loss of such credit to which he is otherwise entitled. There shall be paid from funds appropriated or otherwise available for the operation of the Geo. L. Smith II Georgia World Congress Center Authority all employer contributions required under this chapter, including employer social security contributions. The commencement date shall be April 1, 1977.

(Ga. L. 1977, p. 670, § 2.)

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 316 et seq. 70 C.J.S., Pensions, § 73 et seq. 81A C.J.S., States, § 216.

47-2-315. Merit system of personnel administration for officers and employees of the Georgia Building Authority; membership in the retirement system; contributions.

All eligible officers and employees of the Georgia Building Authority shall be subject to a merit system of personnel administration as promulgated by the Georgia Building Authority under which all such officers and employees shall be selected on a basis of merit, fitness, and efficiency. All such officers and employees are authorized to become members of the retirement system. There shall be paid from the funds appropriated for the operation of the Georgia Building Authority all contributions required by the retirement system. All such payments shall be in addition to the regular compensation allowed to such officers and employees, provided that membership shall not become effective before March 1, 1956.

(Ga. L. 1956, p. 277, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 60A Am. Jur. 2d, Pensions and Retirement Funds, § 1167 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 161, 316 et seq.

47-2-316. Membership in the retirement system of officers or employees of Georgia Agricultural Exposition Authority.

  1. As used in this Code section, the term "Georgia Agricultural Exposition Authority" or "authority" means the Georgia Agricultural Exposition Authority established by Chapter 3 of Title 2, known as the "Georgia Agricultural Exposition Authority Act."
  2. Effective on July 1, 1988, or on first becoming officers or employees of the Georgia Agricultural Exposition Authority, all such officers and employees shall become members of the retirement system. Any officer or employee of the authority who was already a member of the retirement system on July 1, 1988, and any member of the retirement system who, without any break in service, becomes an officer or employee of the authority on or after July 1, 1988, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service. Except as otherwise provided in this subsection, any person becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  3. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated or otherwise available for the operation of the Georgia Agricultural Exposition Authority. The authority shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-316 , enacted by Ga. L. 1988, p. 201, § 1; Ga. L. 2012, p. 794, § 1/HB 944.)

The 2012 amendment, effective May 1, 2012, substituted "established by Chapter 3 of Title 2" for "established by Part 8 of Article 7 of Chapter 3 of Title 12" in subsection (a).

47-2-317. Membership in the retirement system of officers and employees of the Georgia Agrirama Development Authority.

Reserved. Repealed by Ga. L. 2011, p. 504, § 1(1)/HB 144, effective May 11, 2011.

Editor's notes. - This Code section was based on Code 1981, § 47-2-317 , enacted by Ga. L. 1988, p. 264, § 1; Ga. L. 1994, p. 332, § 1; Ga. L. 2002, p. 440, § 1. For present comparable provisions on retirement provisions for employees transferred to the Board of Regents, see Code Sections 47-2-181 and 47-3-181.

47-2-318. Membership in the retirement system of officers and employees of the Georgia Environmental Finance Authority; creditable service; contributions.

  1. As used in this Code section, the term:
    1. "Georgia Environmental Finance Authority" or "authority" means the Georgia Environmental Finance Authority established by Article 1 of Chapter 23 of Title 50, known as the "Georgia Environmental Finance Authority Act."
    2. "Officer or employee" means the executive director of the authority and any other full-time employee of the authority employed pursuant to the provisions of paragraph (5) of subsection (b) of Code Section 50-23-5.
    3. "Proof of prior employment" means pay records, income tax withholding records, or other records of the authority or its predecessor agency which are sufficient to establish to the satisfaction of the board of trustees the prior employment record of an officer or employee of the authority.
    4. "Predecessor agency" means the Georgia Development Authority provided for by Chapter 10 of Title 50.
  2. Effective July 1, 1988, or on the date of employment, each officer or employee of the authority shall become a member of the retirement system.
    1. This subsection shall apply only to an officer or employee of the authority holding office or employed on July 1, 1988, who, prior to becoming such an officer or employee or an officer or employee of the predecessor agency, had 11 or more years of creditable service under the retirement system for which contributions to the retirement system have not been withdrawn.
    2. An officer or employee of the authority who is subject to the provisions of this subsection shall, upon furnishing proof of prior employment to the board of trustees, be eligible to receive creditable service under this retirement system for prior employment as an officer or employee of the authority or its predecessor agency, subject to the requirements of this subsection. Any such officer or employee must pay to the board of trustees the employee contributions, plus accrued regular interest thereon, which would have been paid during the period of prior employment if the officer or employee had been a member of the retirement system during such period. The authority shall be authorized to pay from any funds available to the authority the employer contributions, plus accrued regular interest thereon, which would have been paid during such period of prior employment. For a member claiming creditable service for prior employment under this subsection, the board of trustees shall determine the period of time that the payments to the board of trustees provided for under this subsection will fund as creditable service under the retirement system without creating any additional accrued liability of the retirement system. Except as otherwise provided in paragraph (3) of this subsection, the amount of creditable service so determined shall be the creditable service to which the member is entitled.
    3. The authority shall be authorized to supplement, if necessary, the payments made to the board of trustees under paragraph (2) of this subsection in an amount, as determined by the board of trustees, which will fully fund as creditable service the total amount of prior employment of the officer or employee without creating any additional accrued liability of the retirement system. If such supplement is paid to the board of trustees by the authority, the officer or employee shall receive full creditable service under the retirement system for all prior employment as an officer or employee of the authority.
    4. An officer or employee of the authority who is subject to the provisions of this subsection shall have the same membership status under the retirement system which the person had during the person's previous service as a member of the retirement system. Nothing in this subsection shall be construed to limit the right of an officer or employee of the authority who is subject to the provisions of this subsection to retain or reestablish creditable service for previous service as a member of the retirement system.
  3. Any officer or employee of the authority who was already a member of the retirement system on July 1, 1988, and any member of the retirement system who, without any break in service, becomes an officer or employee of the authority on or after July 1, 1988, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. Except as otherwise provided in subsections (c) and (d) of this Code section, an officer or employee of the authority becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  5. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated to or otherwise available for the operation of the Georgia Environmental Finance Authority. The authority shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-318 , enacted by Ga. L. 1988, p. 1490, § 1; Ga. L. 2000, p. 131, § 1; Ga. L. 2010, p. 197, § 1/HB 320.)

The 2010 amendment, effective July 1, 2010, substituted "Georgia Environmental Finance Authority" for "Georgia Environmental Facilities Authority" three times in paragraph (a)(1) and at the end of the first sentence of subsection (f).

Editor's notes. - Ga. L. 2010, p. 197, § 2, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2010; however, this Act shall only become effective on July 1, 2010, upon the passing of an Act to change the name of the Georgia Environmental Facilities Authority to the Georgia Environmental Finance Authority. If such Act is not passed, this Act shall not become effective and shall stand repealed in its entirety on July 1, 2010." Ga. L. 2010, p. 949, § 1, which provided for the name change, became effective July 1, 2010.

47-2-319. Membership in the retirement system of officers and employees of the Georgia Hazardous Waste Management Authority; contributions.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 36, effective July 1, 2010.

Editor's notes. - This Code section was based on Code 1981, § 47-2-319 , enacted by Ga. L. 1990, p. 527, § 2.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-320. Membership in retirement system of officers and employees of GeorgiaNet Authority; creditable service; contributions.

  1. As used in this Code section, the term:
    1. "GeorgiaNet Authority" or "authority" means the GeorgiaNet Authority established by Chapter 25 of Title 50.
    2. "Officer or employee" means the executive director of the authority and any other full-time employee of the authority employed pursuant to the provisions of subsection (d) of Code Section 50-25-2.
    3. "Proof of prior employment" means pay records, income tax withholding records, or other records of the authority which are sufficient to establish to the satisfaction of the board of trustees the prior employment record of an officer or employee of the authority.
  2. Effective July 1, 1992, or on the date of employment, each officer or employee of the authority shall become a member of the retirement system.
    1. This subsection shall apply only to an officer or employee of the authority holding office or employed on July 1, 1992, who, prior to becoming such an officer or employee was a member of the retirement system and whose contributions to the retirement system have not been withdrawn.
    2. An officer or employee of the authority who is subject to the provisions of this subsection shall, upon furnishing proof of prior employment to the board of trustees, be eligible to receive creditable service under this retirement system for prior employment as an officer or employee of the authority, subject to the requirements of this subsection.  Any such officer or employee must pay to the board of trustees the employee contributions which would have been paid during the period of prior employment if the officer or employee had been a member of the retirement system during such period.  The authority shall be authorized to pay from any funds available to the authority the employer contributions which would have been paid during such period of prior employment.  For a member claiming creditable service for prior employment under this subsection, the board of trustees shall determine the period of time that the payments to the board of trustees provided for under this subsection will fund as creditable service under the retirement system without creating any additional accrued liability of the retirement system. Except as otherwise provided in paragraph (3) of this subsection, the amount of creditable service so determined shall be the creditable service to which the member is entitled.
    3. The authority shall be authorized to supplement, if necessary, the payments made to the board of trustees under paragraph (2) of this subsection in an amount, as determined by the board of trustees, which will fully fund as creditable service the total amount of prior employment of the officer or employee without creating any additional accrued liability of the retirement system.  If such supplement is paid to the board of trustees by the authority, the officer or employee shall receive full creditable service under the retirement system for all prior employment as an officer or employee of the authority.
    4. An officer or employee of the authority who is subject to the provisions of this subsection shall have the same membership status under the retirement system which the person had during the person's previous service as a member of the retirement system. Nothing in this subsection shall be construed to limit the right of an officer or employee of the authority who is subject to the provisions of this subsection to retain or reestablish creditable service for previous service as a member of the retirement system.
  3. Any officer or employee of the authority who was already a member of the retirement system on July 1, 1992, and any member of the retirement system who, without any break in service, becomes an officer or employee of the authority on or after July 1, 1992, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. Except as otherwise provided in subsections (c) and (d) of this Code section, an officer or employee of the authority becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  5. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated to or otherwise available for the operation of the GeorgiaNet Authority.  The authority shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-320 , enacted by Ga. L. 1992, p. 2117, § 1.)

47-2-321. Membership in the retirement system of officers and employees of the Lake Lanier Islands Development Authority; creditable service; contributions.

  1. As used in this Code section, the term:
    1. "Lake Lanier Islands Development Authority" or "authority" means the Lake Lanier Islands Development Authority established by Part 3 of Article 7 of Chapter 3 of Title 12.
    2. "Officer or employee" means the executive director of the authority and any other full-time employee of the authority employed pursuant to the provisions of paragraph (3) of Code Section 12-3-314.
    3. "Proof of prior employment" means pay records, income tax withholding records, or other records of the authority which are sufficient to establish to the satisfaction of the board of trustees the prior employment record of an officer or employee of the authority.
  2. Effective July 1, 1994, or on the date of employment, each officer or employee of the authority shall become a member of the retirement system.
    1. This subsection shall apply only to an officer or employee of the authority holding office or employed on July 1, 1994.
    2. An officer or employee of the authority who is subject to the provisions of this subsection shall, upon furnishing proof of prior employment to the board of trustees, be eligible to receive creditable service under this retirement system for prior employment as an officer or employee of the authority, subject to the requirements of this subsection.  Any such officer or employee must pay to the board of trustees no later than October 1, 1994, the employee contributions which would have been paid during the period of prior employment if the officer or employee had been a member of the retirement system during such period together with regular interest thereon. The authority shall be authorized to pay from any funds available to the authority the employer contributions which would have been paid during such period of prior employment. For a member claiming creditable service for prior employment under this subsection, the board of trustees shall determine the period of time that the payments to the board of trustees provided for under this subsection will fund as creditable service under the retirement system without creating any additional accrued liability of the retirement system. Except as otherwise provided in paragraph (3) of this subsection, the amount of creditable service so determined shall be the creditable service to which the member is entitled.
    3. An officer or employee shall have the option to transfer all or a portion of his or her vested interest in the pension plan maintained by the authority prior to July 1, 1994, to satisfy all or a portion of the cost to receive creditable service allowed pursuant to paragraph (2) of this subsection.  Any funds transferred pursuant to such option shall be credited to the officer's or employee's annuity account established by the retirement system.  The authority shall be authorized, but not required, to supplement such amount so transferred.  The officer or employee shall receive such creditable service as the combination of funds transferred or paid for or on behalf of the employee would warrant without creating any additional accrued liability of the retirement system, up to the maximum amount of creditable service allowed by paragraph (2) of this subsection.
  3. Any officer or employee of the authority who was already a member of the retirement system on July 1, 1994, and any member of the retirement system who, without any break in service, becomes an officer or employee of the authority on or after July 1, 1994, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. Except as otherwise provided in subsections (c) and (d) of this Code section, an officer or employee of the authority becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  5. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated to or otherwise available for the operation of the Lake Lanier Islands Development Authority.  The authority shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-321 , enacted by Ga. L. 1994, p. 396, § 1.)

Code Commission notes. - Ga. L. 1994, p. 396, § 1, Ga. L. 1994, p. 715, § 1, and Ga. L. 1994, p. 718, § 1 all enacted a Code Section 47-2-321. Pursuant to Code Section 28-9-5, the Code sections enacted by Ga. L. 1994, p. 715, § 1 and Ga. L. 1994, p. 718, § 1 were renumbered as Code Sections 47-2-322 and 47-2-323, respectively.

47-2-322. Membership in retirement system of officers and employees of Georgia Music Hall of Fame Authority; creditable service; contributions.

  1. As used in this Code section, the term:
    1. "Georgia Music Hall of Fame Authority" or "authority" means the Georgia Music Hall of Fame Authority established by Part 10 of Article 7 of Chapter 3 of Title 12.
    2. "Officer or employee" means the executive director of the authority and any other full-time employee of the authority employed pursuant to the provisions of paragraph (3) of Code Section 12-3-524.
    3. "Proof of prior employment" means pay records, income tax withholding records, or other records of the authority which are sufficient to establish to the satisfaction of the board of trustees the prior employment record of an officer or employee of the authority.
  2. Effective July 1, 1994, or on the date of employment, each officer or employee of the authority shall become a member of the retirement system.
    1. This subsection shall apply only to an officer or employee of the authority holding office or employed on July 1, 1994.
    2. An officer or employee of the authority who is subject to the provisions of this subsection shall, upon furnishing proof of prior employment to the board of trustees, be eligible to receive creditable service under this retirement system for prior employment as an officer or employee of the authority, subject to the requirements of this subsection.  Any such officer or employee must pay to the board of trustees the employee contributions which would have been paid during the period of prior employment if the officer or employee had been a member of the retirement system during such period.  The authority shall be authorized to pay from any funds available to the authority the employer contributions which would have been paid during such period of prior employment.  For a member claiming creditable service for prior employment under this subsection, the board of trustees shall determine the period of time that the payments to the board of trustees provided for under this subsection will fund as creditable service under the retirement system without creating any additional accrued liability of the retirement system. Except as otherwise provided in paragraph (3) of this subsection, the amount of creditable service so determined shall be the creditable service to which the member is entitled.
    3. The authority shall be authorized to supplement, if necessary, the payments made to the board of trustees under paragraph (2) of this subsection in an amount, as determined by the board of trustees, which will fully fund as creditable service the total amount of prior employment of the officer or employee without creating any additional accrued liability of the retirement system.  If such supplement is paid to the board of trustees by the authority, the officer or employee shall receive full creditable service under the retirement system for all prior employment as an officer or employee of the authority.
    4. An officer or employee of the authority who is subject to the provisions of this subsection shall have the same membership status under the retirement system which the person had during the person's previous service as a member of the retirement system.  Nothing in this subsection shall be construed to limit the right of an officer or employee of the authority who is subject to the provisions of this subsection to retain or reestablish creditable service for previous service as a member of the retirement system.
  3. Any officer or employee of the authority who was already a member of the retirement system on July 1, 1994, and any member of the retirement system who, without any break in service, becomes an officer or employee of the authority on or after July 1, 1994, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. Except as otherwise provided in subsections (c) and (d) of this Code section, an officer or employee of the authority becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  5. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated to or otherwise available for the operation of the Georgia Music Hall of Fame Authority.  The authority shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-322 , enacted by Ga. L. 1994, p. 715, § 1.)

Code Commission notes. - Ga. L. 1994, p. 396, § 1, Ga. L. 1994, p. 715, § 1, and Ga. L. 1994, p. 718, § 1 all enacted a Code Section 47-2-321. Pursuant to Code Section 28-9-5, the Code sections enacted by Ga. L. 1994, p. 715, § 1 and Ga. L. 1994, p. 718, § 1 were renumbered as Code Sections 47-2-322 and 47-2-323, respectively.

47-2-323. Membership in retirement system of employees of Georgia Public Defender Council; creditable service; contributions.

  1. As used in this Code section, the term:
    1. "Council" means the Georgia Public Defender Council established by Code Section 17-12-3.
    2. "Employee" means any full-time employee of the council.
    3. "Proof of prior employment" means pay records, income tax withholding records, or other records of the council which are sufficient to establish to the satisfaction of the board of trustees the prior employment record of an employee of the council.
  2. Effective July 1, 1994, or on the date of employment, each employee of the council shall become a member of the retirement system.
    1. This subsection shall apply only to an employee of the council employed by the council prior to July 1, 1994.
    2. An employee of the council who is subject to the provisions of this subsection shall, upon furnishing proof of prior employment to the board of trustees, be eligible to receive creditable service under this retirement system for prior employment as an employee of the council, subject to the requirements of this subsection. Any such employee must pay to the board of trustees the employee contributions which would have been paid during the period of prior employment if the employee had been a member of the retirement system during such period. The council shall pay from any funds available to the council the employer contributions which would have been paid during such period of prior employment. For a member claiming creditable service for prior employment under this subsection, the board of trustees shall determine the period of time that the payments to the board of trustees provided for under this subsection will fund as creditable service under the retirement system without creating any additional accrued liability of the retirement system. Except as otherwise provided in paragraph (3) of this subsection, the amount of creditable service so determined shall be the creditable service to which the member is entitled.
    3. The council shall be authorized to supplement, if necessary, the payments made to the board of trustees under paragraph (2) of this subsection in an amount, as determined by the board of trustees, which will fully fund as creditable service the total amount of prior employment of the employee without creating any additional accrued liability of the retirement system. If such supplement is paid to the board of trustees by the council, the employee shall receive full creditable service under the retirement system for all prior employment as an employee of the council.
  3. Any employee of the council who was already a member of the retirement system on July 1, 1994, and any member of the retirement system who, without any break in service, becomes an employee of the council on or after July 1, 1994, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. Except as otherwise provided in subsection (d) of this Code section, an employee of the council becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  5. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated to or otherwise available for the operation of the council. The council shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-323 , enacted by Ga. L. 1994, p. 718, § 1; Ga. L. 2004, p. 596, § 1; Ga. L. 2015, p. 898, § 2/HB 266.)

The 2015 amendment, effective July 1, 2015, substituted "Georgia Public Defender Council" for "Georgia Public Defender Standards Council" in paragraph (a)(1).

Code Commission notes. - Ga. L. 1994, p. 396, § 1, Ga. L. 1994, p. 715, § 1, and Ga. L. 1994, p. 718, § 1 all enacted a Code Section 47-2-321. Pursuant to Code Section 28-9-5, the Code sections enacted by Ga. L. 1994, p. 715, § 1 and Ga. L. 1994, p. 718, § 1 were renumbered as Code Sections 47-2-322 and 47-2-323, respectively.

47-2-324. Membership in retirement system of officers and employees of the North Georgia Mountains Authority; creditable service; contributions.

  1. As used in this Code section, the term:
    1. "North Georgia Mountains Authority" or "authority" means the North Georgia Mountains Authority established by Part 10 of Article 7 of Chapter 3 of Title 12.
    2. "Officer or employee" means the executive director of the authority and any other full-time employee of the authority employed pursuant to the provisions of paragraph (3) of Code Section 12-3-294.
    3. "Proof of prior employment" means pay records, income tax withholding records, or other records of the authority which are sufficient to establish to the satisfaction of the board of trustees the prior employment record of an officer or employee of the authority.
  2. Effective July 1, 1996, or on the date of employment, each officer or employee of the authority shall become a member of the retirement system.
    1. This subsection shall apply only to an officer or employee of the authority holding office or employed on July 1, 1996.
    2. An officer or employee of the authority who is subject to the provisions of this subsection shall, upon furnishing proof of prior employment to the board of trustees not later than December 31, 1996, or six months after the date of employment, whichever date is later, be eligible to receive creditable service under this retirement system for prior employment as an officer or employee of the authority, subject to the requirements of this subsection. Any such officer or employee must pay to the board of trustees the employee contributions which would have been paid during the period of prior employment if the officer or employee had been a member of the retirement system during such period. The authority shall be authorized to pay from any funds available to the authority the employer contributions which would have been paid during such period of prior employment. For a member claiming creditable service for prior employment under this subsection, the board of trustees shall determine the period of time that the payments to the board of trustees provided for under this subsection will fund as creditable service under the retirement system without creating any additional accrued liability of the retirement system. Except as otherwise provided in paragraph (3) of this subsection, the amount of creditable service so determined shall be the creditable service to which the member is entitled.
    3. An officer or employee shall have the option to transfer all or a portion of his or her vested interest in the pension plan maintained by the authority prior to July 1, 1996, to satisfy all or a portion of the cost to receive creditable service allowed pursuant to paragraph (2) of this subsection. Any funds transferred pursuant to such option shall be credited to the officer's or employee's annuity account established by the retirement system. The authority shall be authorized, but not required, to supplement such amount so transferred. The officer or employee shall receive such creditable service as the combination of funds transferred or paid for or on behalf of the employee would warrant without creating any additional accrued liability of the retirement system, up to the maximum amount of creditable service allowed by paragraph (2) of this subsection.
  3. Any officer or employee of the authority who was already a member of the retirement system on July 1, 1996, and any member of the retirement system who, without any break in service, becomes an officer or employee of the authority on or after July 1, 1994, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. Except as otherwise provided in subsections (c) and (d) of this Code section, an officer or employee of the authority becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  5. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated to or otherwise available for the operation of the North Georgia Mountains Authority. The authority shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-324 , enacted by Ga. L. 1996, p. 719, § 1.)

47-2-325. Membership in retirement system of prior employees of the Foundation for Public Broadcasting in Georgia, Inc.

Reserved. Repealed by Ga. L. 2010, p. 1207, § 37, effective July 1, 2010.

Editor's notes. - This Code section was based on Code 1981, § 47-2-325 , enacted by Ga. L. 1998, p. 169, § 1.

Ga. L. 2010, p. 1207 § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-326. Georgia Rail Passenger Authority retirement system; membership; contributions.

  1. As used in this Code section, the term "Georgia Rail Passenger Authority" or "authority" means that authority created by Article 9 of Chapter 9 of Title 46, the "Georgia Rail Passenger Authority Law."
  2. Effective July 1, 2002, or on the date of employment, whichever date is later, each officer or employee of the authority shall become a member of the retirement system.
  3. Any officer or employee of the authority who was already a member of the retirement system on July 1, 2002, and any member of the retirement system who, without any break in service, becomes an officer or employee of the authority on or after July 1, 2002, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. Except as otherwise provided in subsection (c) of this Code section, an officer or employee of the authority becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  5. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated to or otherwise available for the operation of the Georgia Rail Passenger Authority. The authority shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-326 , enacted by Ga. L. 2002, p. 1291, § 1.)

47-2-327. Employees of the State Road and Tollway Authority to become members of the retirement system; status; employer and employee contributions.

  1. As used in this Code section, the term "State Road and Tollway Authority" or "authority" means that authority continued by Article 2 of Chapter 10 of Title 32, relating to the State Road and Tollway Authority.
  2. Effective July 1, 2006, or on the date of employment, whichever date is later, each officer or employee of the authority shall become a member of the retirement system.
  3. Any officer or employee of the authority who was already a member of the retirement system on July 1, 2006, and any member of the retirement system who, without any break in service, becomes an officer or employee of the authority on or after July 1, 2006, shall continue in the same membership status without any interruption in membership service and without the loss of any creditable service.
  4. Except as otherwise provided in subsection (c) of this Code section, an officer or employee of the authority becoming a member of the retirement system pursuant to the provisions of this Code section shall be subject to the provisions of Code Section 47-2-334.
  5. All employer contributions, including employee contributions made by the employer on behalf of members, which are required by this chapter shall be made for members who are subject to the provisions of this Code section from funds appropriated to or otherwise available for the operation of the State Road and Tollway Authority. The authority shall deduct from the salaries payable to such members the additional employee contributions required by this chapter. (Code 1981, § 47-2-327 , enacted by Ga. L. 2006, p. 174, § 1/SB 177.)

ARTICLE 9 MISCELLANEOUS PROVISIONS

47-2-330. Application of other state funded pension or retirement programs to members or beneficiaries, their surviving spouses, or dependents.

Except as otherwise specifically provided in this chapter, no program of pensions or retirement benefits for employees, their surviving spouses, or dependents, which program is funded wholly or partially by the state, shall apply to members or beneficiaries of this retirement system, their surviving spouses, or dependents.

(Ga. L. 1949, p. 138, § 12; Ga. L. 1981, p. 1447, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Other retirement provisions cannot vary this chapter's provisions. - Prohibition evidenced by Ga. L. 1949, p. 138, § 12 (see O.C.G.A. § 47-2-330 ) should be read to prevent the operation of other retirement laws to vary the provisions of Ga. L. 1949, p. 138 et seq. (see O.C.G.A. Ch. 2, T. 47) as applicable to members or beneficiaries, or their widows or dependents. 1979 Op. Att'y Gen. No. 79-15.

Cessation of benefits to retired teacher not required. - Statute does not require the cessation of retirement benefits from the Teachers Retirement System of Georgia to a retiree who was subsequently employed by an agency covered under the Employees' Retirement System of Georgia. 1979 Op. Att'y Gen. No. 79-15 (see O.C.G.A. § 47-2-330 ).

47-2-331. Reporting of employee contributions for federal and state income tax purposes.

Any other provisions of law to the contrary notwithstanding, all employee contributions toward retirement allowances, social security benefits, and group term life insurance shall be included in each employee's gross income reported for federal and state income tax purposes. This Code section shall not pertain to employer contributions or to employee contributions made by employers on behalf of employees.

(Ga. L. 1972, p. 546, § 1; Ga. L. 1980, p. 925, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 444 et seq.

47-2-332. Exemption of rights and benefits from taxes, legal process, and assignment of retirement system property as public property; exemptions for retirement system property.

  1. The right to a pension, annuity, retirement allowance, return of contributions, the pension, annuity, or retirement allowance itself, any optional benefit, or any other right accrued or accruing to any person under this chapter and the moneys in the various accounts created by this chapter are:
    1. Exempt from any state, county, or municipal tax, except as provided in Code Section 48-7-27;
    2. Exempt from levy and sale, garnishment, attachment, or any other process whatsoever; and
    3. Not assignable except as otherwise specifically provided in this chapter.
  2. The tangible, intangible, real, personal, or mixed property, investments, or assets of the retirement system of whatever kind or nature and the earnings or proceeds derived from such property, investments, or assets are public property and are:
    1. Exempt from taxation by the state or by any county, municipality, authority, or political subdivision of this state; and
    2. Exempt from levy and sale, garnishment, attachment, or any other process whatsoever.
  3. The transfer or sale of tangible, real, personal, or mixed property, investments, or assets to or from the retirement system and the instruments of such transfer or sale shall be exempt from any tax on such sales, transfers, or instruments, which tax is levied by the state or by any county, authority, municipality, or political subdivision of this state.

    (Ga. L. 1949, p. 138, § 9; Ga. L. 1976, p. 611, § 1; Ga. L. 1993, p. 86, § 1; Ga. L. 2000, p. 1449, § 2.)

JUDICIAL DECISIONS

Payment of benefits under divorce decree unauthorized. - Divorce decree could not properly order the Employees Retirement System of Georgia to pay retirement benefits directly to the ex-spouse of an employee. Bryant v. Employees Retirement Sys., 216 Ga. App. 737 , 455 S.E.2d 839 (1995).

Atlanta hotel-motel excise tax is a tax on the person occupying a guest room, not on the "transfer" of the room, and not exempt under O.C.G.A. § 47-2-332 . Teachers Retirement Sys. v. City of Atlanta, 249 Ga. 196 , 288 S.E.2d 200 (1982).

Property held by the retirement systems is not held for the benefit of private citizens; it is held for the benefit of public employees for whom the General Assembly has created retirement systems. This includes properties which produce income, such as cabins in state parks and the hotel facilities at the continuing education center at the University of Georgia. Teachers Retirement Sys. v. City of Atlanta, 249 Ga. 196 , 288 S.E.2d 200 (1982).

Retirement benefits subject to state income tax. - Subjecting retirement benefits of retired employees to state income taxation did not violate the constitutional prohibition against state laws impairing the obligation of contracts since the employees had no vested right to an irrevocable exemption which was invalid under Ga. Const. 1983, Art. VII, Sec. I, Para. I. Parrish v. Employees' Retirement Sys., 260 Ga. 613 , 398 S.E.2d 353 (1990), cert. denied, 500 U.S. 353, 111 S. Ct. 2016 , 114 L. Ed. 2 d 103 (1991).

Annuity. - O.C.G.A. § 44-13-100 specifically addresses what types of annuities and similar contracts are exempt in bankruptcy cases. Therefore, the debtor's attempt to exempt the annuity under O.C.G.A. §§ 18-4-22 and 47-2-332 would have failed even if the annuity met the requirements of those statutes (which appeared not to be the case in any event). In re Sheffield, 507 Bankr. 400 (Bankr. S.D. Ga. 2014).

OPINIONS OF THE ATTORNEY GENERAL

Combination of factors constitutes assignment in fact. - Combination of an order to send funds accruing under Ga. L. 1949, p. 138 et seq. (see O.C.G.A. Ch. 2, T. 47) to the credit union, power of attorney authorizing deposit of the funds, and a right of offset, constitutes an assignment in fact. 1980 Op. Att'y Gen. No. 80-110.

Effect of arrangement, rather than form, is material, so any method for transferring control of retirement rights to the credit union would be unlawful. If the purported or practical effect of an arrangement is to deprive an employee of control over the employee's retirement rights, then it is improper to establish the arrangement. 1980 Op. Att'y Gen. No. 80-110.

No assets of Employees' Retirement System are encumberable by lien. - None of the assets of the Employees' Retirement System, including funds held in members' annuity savings fund accounts, can be encumbered by a lien created to secure an unreimbursed travel advance; however, such a lien can attach to other funds due the employee by the state. 1980 Op. Att'y Gen. No. 80-114.

Pending investigation does not permit withholding earned compensation. - Department cannot withhold earned compensation from an employee who has been dismissed from service because of an effort to sell state equipment, if an investigation is underway to determine whether or not the employee is indebted to the state because of previous sales of such equipment. 1958-59 Op. Att'y Gen. p. 186.

Retirement system cannot send to state credit unions refunds of contribution checks payable to members. 1968 Op. Att'y Gen. No. 68-255.

Member prohibited from assigning rights in life insurance policy. - Member of the retirement system is prohibited by law from assigning the ownership rights in the member's group term life insurance policy to another person. 1977 Op. Att'y Gen. No. 77-18.

Member entitled to change beneficiaries at any time. - Any member of the retirement system covered under the life insurance provisions has the right, under Ga. L. 1977, p. 670, § 1 (see O.C.G.A. § 47-2-128 ) and the terms of the member's policy, to change the member's beneficiaries at any time, assuming there is no judicial decision or statutory prohibition to the contrary. 1977 Op. Att'y Gen. No. 77-18.

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 94 et seq. 71 Am. Jur. 2d, State and Local Taxation, § 444 et seq.

ALR. - Validity of statute or ordinance providing for pensions for municipal employees, 37 A.L.R. 1162 .

Employee retirement pension benefits as exempt from garnishment, attachment, levy, execution, or similar proceedings, 93 A.L.R.3d 711.

47-2-333. Attempts to defraud the retirement system by false statements or falsified records; adjustments of erroneous payments.

  1. Any person who shall knowingly make any false statements or shall falsify or permit to be falsified any records of the retirement system in an attempt to defraud the system shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding $500.00, imprisonment not exceeding 12 months, or both.
  2. If any change or error in the records of the retirement system results in any member or beneficiary receiving from it more or less than he would have been entitled to receive had the records been correct, the board of trustees shall have the power to correct such error and to adjust the payments as far as practicable and in such manner that the actuarial equivalent of the benefit to which such member or beneficiary was correctly entitled shall be paid.

    (Ga. L. 1949, p. 138, § 10.)

OPINIONS OF THE ATTORNEY GENERAL

Former member cannot claim increase by law authorizing additional benefits. - Primary "object" or purpose of the language in Ga. L. 1951, pp. 394 and 396 (see O.C.G.A. § 47-2-70(c) ) is to prevent a former member presently receiving a retirement benefit from claiming increased benefits as a result of an amendment to the law authorizing such additional benefits to existing members; this was not intended to prevent a former member from obtaining service credits or benefits which the member was rightfully entitled to prior to the member's retirement, but which the member never received by virtue of an honest mistake or error in the member's records. 1976 Op. Att'y Gen. No. 76-58.

Correct records for claimed creditable armed forces' service. - Board of trustees has the statutory authority to correct the board's records and extend to a former member the appropriate amount of claimed creditable service for service in the armed forces of the United States. 1977 Op. Att'y Gen. No. 77-24.

47-2-334. Service retirement allowance; calculation; employee membership contributions; employer contributions; optional membership; conditions; construction of provision.

  1. Except where indicated clearly to the contrary by the context, the word "member" as used in this Code section shall mean any employee who first or again becomes a member of the Employees' Retirement System of Georgia on or after July 1, 1982. From and after July 1, 1982, every person first or again becoming an employee entitled to a new membership in the Employees' Retirement System of Georgia shall become a member subject to this Code section.
    1. Every member subject to this Code section shall, upon becoming eligible under the provisions of this chapter, be entitled to a service retirement allowance, which shall consist of:
      1. An annuity which shall be the actuarial equivalent of the member's accumulated contributions at the time of retirement; and
      2. A monthly pension which, together with the annuity, shall provide a total retirement allowance equal to more than 1.5 percent, but not greater than 2 percent, the actual percent to be set by the board of trustees in direct relation to the amount of increased appropriations provided by the General Assembly to fund the provisions of this paragraph, of the member's highest average monthly earnable compensation during a period of 24 consecutive calendar months while a member of the retirement system, multiplied by the number of the member's years of creditable service.
    2. For members subject to this Code section, the calculation of retirement benefits or allowances for any other form or type of retirement shall also be based upon the calculations provided for in paragraph (1) of this subsection.
  2. From and after July 1, 1990, every member subject to this Code section shall contribute employee membership contributions in an amount not less than 1 percent nor greater than 1 1/2 percent of earnable compensation, which shall be deducted by each employer from the earnable compensation of each member for each and every payroll period and paid monthly to the board of trustees; provided, however, that any reduction in such percentage shall be based upon the recommendation of the actuary of the board of trustees, the maintenance of the actuarial soundness of the fund in accordance with the standards provided in Code Section 47-20-10 or such higher standards as may be adopted by the board, and such other factors as the board deems relevant. Of the percentage deducted from the earnable compensation of members, one-fourth of 1 percent shall be credited to the group term life insurance fund in lieu of any other deduction therefor, as provided in Code Section 47-19-10, and the remaining portion shall be credited to the individual accounts of the members in the annuity savings fund. In the event a member is not covered by group term life insurance, the entire amount deducted from the member's earnable compensation shall be credited to the member's individual account in the annuity savings fund.
  3. From and after July 1, 1982, each employer shall pay monthly to the board of trustees, on behalf and to the credit of each member subject to this Code section, employer contributions in an amount equal to the aggregate amount of employer contributions plus employee contributions made by the employer as required by this chapter for and on behalf of persons within the membership of the Employees' Retirement System of Georgia who are not subject to this Code section. With respect to members subject to this Code section, none of these employer contributions shall be considered as accumulated contributions of the member and none shall be eligible for withdrawal by the member upon cessation of state service.
  4. Membership under this Code section shall be optional for any persons who are within the membership of the Employees' Retirement System of Georgia on June 30, 1982. Any such persons may elect in writing on a form to be provided by the board of trustees to become a member subject to this Code section at any time on or after July 1, 1982. This written election shall be final and cannot be later changed or rescinded. Upon such election, a member shall be subject to all the provisions, terms, and conditions of this Code section; provided, however, that the calculation to determine retirement allowances for any person exercising such option shall be made as follows:
    1. The retirement allowance shall be computed fully as if all creditable service of the member were acquired and calculated under the provisions of this Code section;
    2. Then the retirement allowance shall also be computed fully as if all creditable service of the member were acquired and calculated under the provisions of this chapter and the rules and regulations of the board of trustees contained other than in this Code section;
    3. Then, a benefit amount shall be determined based upon a fractional part of each retirement allowance computed in steps (1) and (2), which fractional part shall be computed by using the actual years of creditable service established under either this Code section, for step (1), or the provisions of this chapter contained other than in this Code section, for step (2), which number of years shall be the numerator of the fraction, over the total actual years of creditable service established under both this Code section and the provisions of this chapter contained other than in this Code section, which number shall be the denominator of the fraction;
    4. The two benefit amounts so determined shall then be added together to produce the actual retirement allowance; and
    5. If a member is otherwise eligible for projected years in service and unless same is made inapplicable by the conditions in subsection (f) of this Code section, projected years of service used in the determination of retirement benefits for death, disability, involuntary separation, or retirement with 34 years of service shall be used in the computation of the retirement allowances under the foregoing steps (1) and (2). However, projected years of service used in such benefits computations shall not be used in determining the fractional part or allocation of the benefit amount described in foregoing step (3).
  5. Members subject to this Code section shall be subject to the following conditions:
    1. The provisions of subsection (d) of Code Section 47-2-120 shall not be applicable to members subject to this Code section;
    2. Except as otherwise provided in Code Sections 47-2-204, 47-2-225, and 47-2-266, and in paragraph (3) of this subsection and except as otherwise expressly provided in this chapter, no service shall constitute creditable service except membership service for which the full rate of employee membership contributions and employer contributions is made pursuant to subsections (c) and (d) of this Code section; and
    3. The provisions of Code Section 47-2-91 shall be applicable to members subject to this Code section; provided, however, that such benefits shall be subject to reduction or repeal by subsequent legislation and shall not be considered an element of any contract of employment.
  6. All members subject to this Code section shall have and be subject to all other rights, privileges, obligations, and duties specified by other provisions of this chapter, and all such other provisions shall be of full force and effect with respect to any matter not specifically provided for in this Code section.
  7. This Code section shall not be construed and is not intended so as to have any effect whatsoever on persons within the membership of the Employees' Retirement System of Georgia on June 30, 1982, who do not elect in writing to become members subject to this Code section.
  8. The provisions of this Code section shall control over conflicting or inconsistent provisions of this chapter or any other law of this state. It is the intention of the General Assembly that this Code section has not been and may not be repealed, superseded, or modified by implication through the enactment of any other law or through the amendment of any other provision of this chapter or any other existing law, and any modification or repeal of any provision of this Code section may be accomplished only by reference or amendment to or repeal of this specific Code section.
  9. The board of trustees shall cause the actuary for the retirement system to calculate the actuarial cost to the retirement system of any salary increase granted to a member in excess of 5 percent over the 12 months immediately prior to such member's retirement date and shall notify the employing unit of such amount. Such notice shall be sent not later than 60 days following such member's retirement date. The employing unit shall pay such amount, together with the cost of such actuarial calculation, as a supplemental employer contribution to the board of trustees not later than the last day of the month following receipt of such notice. (Ga. L. 1982, p. 1163, § 2; Code 1981, § 47-2-334 , enacted by Ga. L. 1982, p. 1163, § 4; Ga. L. 1985, p. 209, § 1; Ga. L. 1986, p. 30, § 1; Ga. L. 1986, p. 1233, § 3; Ga. L. 1990, p. 356, § 2; Ga. L. 1990, p. 532, § 1; Ga. L. 1992, p. 1151, § 2; Ga. L. 1993, p. 86, § 1; Ga. L. 1994, p. 638, § 1; Ga. L. 1996, p. 722, § 2; Ga. L. 1996, p. 730, § 2; Ga. L. 1998, p. 174, § 2; Ga. L. 1998, p. 1104, § 3; Ga. L. 2000, p. 1239, § 2; Ga. L. 2000, p. 1506, § 2; Ga. L. 2002, p. 1288, § 2; Ga. L. 2004, p. 365, § 1; Ga. L. 2007, p. 176, § 2/HB 448; Ga. L. 2009, p. 322, § 4/HB 476; Ga. L. 2010, p. 1207, § 38/SB 436.)

The 2009 amendment, effective July 1, 2009, added subsection (j).

The 2010 amendment, effective July 1, 2010, near the beginning of paragraph (f)(2), deleted "in subsection (j) of Code Section 47-2-96," following "provided" and deleted "47-2-96.1, 47-2-96.2," preceding "47-2-204".

Editor's notes. - Ga. L. 1990, p. 589, amending paragraph (f)(2) of this Code section, was not concurrently funded as required by Code Section 47-20-50 and, therefore, did not become law and became repealed on July 1, 1990. See the state auditor's report at Ga. L. 1990, p. CCCV.

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

JUDICIAL DECISIONS

Equal protection. - Equal protection rights of former employees of county department of family and children services were violated by a provision that significantly reduced retirement benefits to employees who transferred to state employment after July 1, 1982, as compared to former employees who transferred before that date. Employees' Retirement Sys. of Ga. v. Martin, 272 Ga. 535 , 533 S.E.2d 68 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Returning veteran entitled to coverage under "old" plan. - Federal Veterans' Reemployment Rights Act, 38 U.S.C. § 2021 et seq., permits a veteran to return to state employment under the so-called "old" retirement plan - that is, the plan applicable to members beginning employment prior to July 1, 1982 - even though the veteran's reemployment date was effective after the enactment of the "new" retirement plan codified at O.C.G.A. § 47-2-334 . 1989 Op. Att'y Gen. No. 89-11.

No military service credit. - Individual whose membership with the Employees' Retirement System was covered under the provisions of O.C.G.A. § 47-2-334 could not establish credit for time served in the military under the provisions of former O.C.G.A. § 47-2-96 relating to prior service credits. 1987 Op. Att'y Gen. No. 87-33.

ARTICLE 10 GEORGIA STATE EMPLOYEES' PENSION AND SAVINGS PLAN

Effective date. - This article became effective July 1, 2008.

47-2-350. Short title.

This article shall be known and may be cited as the "Georgia State Employees' Pension and Savings Plan."

(Code 1981, § 47-2-350 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328.)

47-2-351. "Member" defined; membership optional; calculation.

  1. Except where indicated clearly to the contrary by the context, the word "member" as used in this article shall mean any employee who first or again becomes a member of the Employees' Retirement System of Georgia on or after January 1, 2009. From and after January 1, 2009, every person first or again becoming an employee entitled to a new membership in the Employees' Retirement System of Georgia shall become a member subject to this article. Any provision of this chapter providing that a class of employees shall be subject to Code Section 47-2-334 shall be deemed to have been amended by this subsection.
  2. Membership under this article shall be optional for any persons who are within the membership of the Employees' Retirement System of Georgia on December 31, 2008. Any such persons may elect in writing on a form to be provided by the board of trustees to become a member subject to this article at any time on or after January 1, 2009. This written election shall become effective upon the approval of the application by the board of trustees as provided in rules and regulations promulgated by the board of trustees and shall be final and cannot be later changed or rescinded. Upon such election, a member shall be subject to all the provisions, terms, and conditions of this article; provided, however, that the calculation to determine retirement allowances for any person exercising such option shall be made as follows:
    1. The retirement allowance shall be computed fully as if all creditable service of the member were acquired and calculated under the provisions of this article;
    2. Then the retirement allowance shall also be computed fully as if all creditable service of the member were acquired and calculated under the provisions of this chapter contained other than in this article and the rules and regulations of the board of trustees;
    3. Then a benefit amount shall be determined based upon a fractional part of each retirement allowance computed in paragraphs (1) and (2) of this subsection, which fractional part shall be computed by using the actual years of creditable service established under either this article, for paragraph (1) of this subsection, or the provisions of this chapter contained other than in this article, for paragraph (2) of this subsection, which number of years shall be the numerator of the fraction, over the total actual years of creditable service established under both this article and the provisions of this chapter contained other than in this article, which number shall be the denominator of the fraction;
    4. The two benefit amounts so determined shall then be added together to produce the actual retirement allowance; and
    5. Projected years of service shall not be used in the computation of the retirement allowances under this subsection. (Code 1981, § 47-2-351 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328.)

47-2-352. Employee and employer contributions.

  1. Every member subject to this article shall contribute employee membership contributions in an amount equal to 1 1/4 percent of earnable compensation which shall be deducted by each employer from the earnable compensation of each member for each and every payroll period and paid monthly to the board of trustees. Such amount shall be credited to the individual accounts of the members in the annuity savings fund.
  2. From and after January 1, 2009, each employer shall pay monthly to the board of trustees, on behalf of each member subject to this article, the aggregate of employer and employee contributions required by this chapter. With respect to members subject to this article, no employer contributions shall be considered as accumulated contributions of the member and none shall be eligible for withdrawal by the member upon cessation of state service. Such amount shall be credited to the pension accumulation fund. (Code 1981, § 47-2-352 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328; Ga. L. 2010, p. 1207, § 64/SB 436.)

The 2010 amendment, effective July 1, 2010, deleted the comma following "of earnable compensation" in the middle of the first sentence of subsection (a).

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 1207, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

47-2-353. Service retirement allowance.

Every member subject to this article shall, upon becoming eligible under the provisions of this chapter, be entitled to a service retirement allowance, which shall consist of:

  1. An annuity which shall be the actuarial equivalent of the member's accumulated contributions at the time of retirement; and
  2. A monthly pension which, together with the annuity, shall provide a total retirement allowance equal to 1 percent, or such future amount up to 2 percent to be set by the board of trustees in direct relation to any increased appropriations provided by the General Assembly expressly for such increase, of the member's highest average monthly earnable compensation during a period of 24 consecutive calendar months while a member of the retirement system, multiplied by the number of the member's years of creditable service; provided, however, that for members employed on or after July 1, 2009, no salary increase by adjustment in compensation in any manner during the last 12 months, which increase is in excess of 5 percent, shall be included in such computation. (Code 1981, § 47-2-353 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328; Ga. L. 2009, p. 322, § 5/HB 476.)

The 2009 amendment, effective July 1, 2009, in paragraph (2), substituted "1 percent" for "1.0 percent" near the beginning and added the proviso at the end.

47-2-354. Conditions; rights, privileges, obligations, and duties.

  1. Members subject to this article shall be subject to the following conditions:
    1. The following provisions shall not be applicable to members subject to this article:
      1. Subsection (d) of Code Section 47-2-120;
      2. Paragraph (1) of subsection (c) of Code Section 47-2-123;
      3. Code Section 47-2-124; and
      4. Code Section 47-2-334;
    2. Except as provided in Chapter 1 of this title and in Code Sections 47-2-99 and 47-2-100, no service shall constitute creditable service except membership service for which the full rate of employee membership contributions and employer contributions is made pursuant to Code Section 47-2-352. The provisions of this paragraph shall not affect the transfer of creditable service between public retirement systems created by this title under such conditions as are now or may hereafter be provided by law;
    3. The provisions of Code Section 47-2-91 shall be applicable to members subject to this article; provided, however, that such benefits shall be subject to reduction or repeal by subsequent legislation and shall not be considered an element of any contract of employment;
    4. Disability benefits shall be calculated as provided in paragraph (2) of subsection (c) of Code Section 47-2-123; provided, however, that the disability benefits of persons entitled to the provisions of Code Section 47-2-221 shall be calculated as provided in such Code section but with the benefit computed on 1 percent of the member's monthly earnable compensation;
    5. Members subject to the provisions of this article shall not be entitled to group term life insurance coverage pursuant to Code Section 47-2-128 or 47-2-129; and
    6. Members subject to Code Section 47-2-244 shall be entitled to the provisions of such Code section.
  2. All members subject to this article shall have and be subject to all other rights, privileges, obligations, and duties specified by other provisions of this chapter, and all such other provisions shall be of full force and effect with respect to any matter not specifically provided for in this article. (Code 1981, § 47-2-354 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328; Ga. L. 2010, p. 1207, § 39/SB 436.)

The 2010 amendment, effective July 1, 2010, in subsection (a), added "and" at the end of paragraph (a)(5), substituted a period for "; and" at the end of paragraph (a)(6), and deleted former paragraph (a)(7), which read: "Members subject to the provisions of Code Section 47-2-223 or 47-2-224 shall be entitled to retire as provided in subsection (b) of each such Code section but shall receive a monthly benefit based on 1 percent of his or her highest average compensation rather than the percentage stated in such subsections."

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

47-2-355. Disability retirement; periodic medical examination and review.

    1. Subject to the provisions of paragraphs (2) through (5) of this subsection, any member in service who has at least 15 years of creditable service who becomes disabled in service before becoming eligible to receive a service retirement allowance may be retired on a disability allowance by the board of trustees, upon written application to the board of trustees by the member or his or her employer and upon certification by the medical board that he or she is medically or physically incapable of further performance of his or her duties in the position he or she held at the time his or her disability originated, that incapacity is likely to be permanent, and that he or she should be retired; provided, however, that the medical board shall not consider any evidence of such disability which is not submitted within 12 months after the date the member submits his or her first application for a disability retirement. The board of trustees may retire such member not less than 30 days nor more than 90 days after execution and filing of the written application.
    2. A member making application for a disability retirement pursuant to paragraph (1) of this subsection shall at the same time submit a copy of such application together with any supporting documentation accompanying such application to his or her employing agency. The member shall thereafter provide the employing agency with any additional information or documentation which he or she submits to the board of trustees in conjunction with such application.
    3. After receipt of the notice provided for in paragraph (2) of this subsection, the head of the member's agency or his or her designee shall conduct an interview with the member applying for disability retirement; provided, however, that any designee of the head of an agency shall be an official at such agency who is above the level of the applicant's immediate supervisor and who has the authority to make job assignment decisions. The interview shall be held within ten business days after receipt of such notice. Based on the interview and information received by the agency pursuant to paragraph (2) of this subsection, the agency head or his or her designee shall determine if an alternative position is available for the member which meets the following requirements:
      1. The physical requirements for such position are compatible with the member's physical limitations;
      2. The annual compensation and possibility for future advancement for such position shall be the same as or greater than that of the current position of the member;
      3. The duties for such position shall be reasonably compatible with the experience and educational qualifications of the member;
      4. The position shall be one which includes the holder thereof as a member of the retirement system provided for by this chapter; and
      5. The position must be available for acceptance by the member and an offer of the position to the official or member must be made, in writing, by not later than 45 days after the member submitted his or her application for a disability retirement.

        An agency making an offer of alternative employment as provided in this paragraph shall so notify the board of trustees within 45 days after the member submitted his or her application for a disability retirement. After receipt of such notice, the board of trustees shall not approve a disability retirement until the procedures of paragraph (4) of this subsection are resolved.

    4. Any member applying for a disability retirement who is offered a position of employment in conformity with the requirements of paragraph (3) of this subsection shall accept the offer or dispute his or her ability to perform the tasks required by the position offered by submitting a written appeal to the agency and to the board of trustees within 30 days after receiving the offer. In the event of an appeal, the agency shall promptly submit to the medical board a detailed description of the requirements of the position offered and the medical board shall determine, based upon all information available to it, whether the member is reasonably capable of performing such tasks. The decision of the medical board shall be final. If the medical board determines that the member is unable to perform the tasks required either by the position held at the time of the application for a disability retirement or the position offered, the member shall be placed on disability retirement immediately.
    5. A member who refuses to accept a position offered or file an appeal in a timely manner or who refuses to accept a position which the medical board has determined on appeal that he or she is capable of performing shall not be eligible to receive a disability retirement under this subsection.
  1. Any member who has at least 15 years of creditable service and who becomes disabled in service before becoming eligible to receive a service retirement allowance shall be eligible to retire forthwith without regard to age and to receive the equivalent of a service retirement allowance calculated upon the number of years of creditable service attained to the date of retirement and based upon his or her highest average monthly compensation during a period of 24 consecutive calendar months while a member of the retirement system. No member who is eligible to receive a service retirement benefit shall be eligible to apply for or receive a disability benefit.
    1. Once each year during the first five years following the retirement of a member on a disability retirement allowance and once in every three-year period thereafter, the board of trustees may require a disability beneficiary who has not yet attained retirement age as specified in subsection (a) of Code Section 47-2-110 to undergo a medical examination, such examination to be made at a place designated by the board, by physicians designated by the medical board. The disability beneficiary may request such an examination. Should any disability beneficiary who has not yet attained retirement age refuse to submit to such medical examination, the pension of such disability beneficiary may be discontinued by the board of trustees until the withdrawal of such refusal; and should the refusal continue for one year, all rights of the disability beneficiary in and to a pension may be revoked by the board of trustees. Should the medical board report and certify to the board of trustees that a disability beneficiary is engaged in or is able to engage in a gainful occupation paying more than the difference between the disability beneficiary's retirement allowance and the earnable compensation used to calculate the disability retirement allowance at the time of retirement, the board of trustees may reduce the disability beneficiary's pension to an amount which, together with the disability beneficiary's annuity and the amount earnable by the disability beneficiary, equals the earnable compensation used to calculate the disability retirement allowance at the time of retirement. Should the disability beneficiary's earning capacity be later changed, the amount of the pension may be further modified, provided that the modified pension shall not exceed an amount which, together with the disability beneficiary's annuity and the amount earnable by the disability beneficiary, equals the earnable compensation used to calculate the disability retirement allowance at the time of retirement.
    2. The board of trustees may require a disability beneficiary who has not yet attained retirement age as specified in subsection (a) of Code Section 47-2-110 to provide information relevant to any provision of this chapter relating to his or her entitlement to receive a disability retirement. Should any disability beneficiary who has not yet attained retirement age refuse to submit any such information so requested, the board of trustees may suspend the retirement allowance of such disability beneficiary until such information is provided. Should the board of trustees receive information from any source that a disability beneficiary is engaged in an occupation paying more than the difference between the disability beneficiary's retirement allowance and the earnable compensation used to calculate the disability retirement allowance at the time of retirement, the board of trustees may reduce the disability beneficiary's pension to an amount which, together with the disability beneficiary's annuity and the amount earnable by the disability beneficiary, equals the earnable compensation used to calculate the disability retirement allowance at the time of retirement. Should the disability beneficiary's earnings later be changed, the amount of the pension may be further modified, provided that the modified pension shall not exceed an amount which, together with the disability beneficiary's annuity and the amount earnable by the disability beneficiary, equals the earnable compensation used to calculate the disability retirement allowance at the time of retirement. (Code 1981, § 47-2-355 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328; Ga. L. 2009, p. 368, § 1/SB 48.)

The 2009 amendment, effective April 30, 2009, part of an Act to revise, modernize, and correct this title, revised language in paragraph (a)(1).

47-2-356. Death allowances and benefits.

  1. For purposes of calculating a survivor's benefit, any member who has at least 15 years of creditable service and who dies in service before becoming eligible for a service retirement shall be deemed to be eligible to retire forthwith without regard to age and to receive the equivalent of a service retirement allowance calculated upon the number of years of creditable service attained to the date of retirement and based upon his or her highest average monthly compensation during a period of 24 consecutive calendar months while a member of the retirement system. Any member who dies in service after becoming eligible for a service retirement shall be deemed to be eligible to retire forthwith to receive a service retirement allowance.
  2. In the application of this subsection to death allowances, computations of retirement allowances shall be made on the same basis as though option two had been in effect. In lieu of the amount of death allowance otherwise payable to the beneficiary under option two, the member, upon written request, may at any time elect a reduced level death allowance of equivalent actuarial value, which allowance is payable to the beneficiary during a period of years certain or to the estate of the beneficiary and during the lifetime of such named beneficiary thereafter. At the election of the member, in case of death of the beneficiary during a term of years certain, the balance of the years certain payments may be paid to the estate of the member; but if such beneficiary predeceases the member, the total amount of the member's contributions to the date of his or her death shall be payable to the member's estate. The method of determining the equivalent actuarial value shall be consistent with the actuarial method of determining the beneficiary's death allowance under option two. (Code 1981, § 47-2-356 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328; Ga. L. 2009, p. 322, § 6/HB 476.)

The 2009 amendment, effective July 1, 2009, in subsection (a), substituted "For purposes of calculating a survivor's benefit, any" for "Any" at the beginning and inserted "deemed to be" twice.

47-2-357. Withdrawal; employer contributions; vesting; date of election.

  1. As used in this Code section, the term:
    1. "401(k)" means the deferred compensation plan offered by the state for public employees pursuant to Article 3 of Chapter 18 of Title 45 utilizing Section 401(k) of the federal Internal Revenue Code.
    2. "Plan" means the employee savings plan created by this article.
  2. Each member shall, at the time of becoming a member, be automatically enrolled in the plan; provided, however, that the member shall have a period of 90 days from the date of enrollment to withdraw from the plan. Such withdrawal shall be made in writing to the board of trustees in such form as the board prescribes and any employee account balance shall be returned to the member. Thereafter, participation in the plan shall be voluntary. The member may not withdraw from the plan so long as he or she remains eligible to participate in the 401(k) plan offered by the state.
    1. This paragraph shall apply to persons who became members prior to July 1, 2014. Unless the participating member elects otherwise, the member shall, for each pay period, contribute 1 percent of his or her compensation into his or her 401(k) account. The member may change such level of participation at any time.
    2. This paragraph shall apply to persons who become members on or after July 1, 2014. Unless the participating member elects otherwise, the member shall, for each pay period, contribute 5 percent of his or her compensation into his or her 401(k) account. The member may change such level of participation at any time.
  3. After the participating member has contributed an amount equal to 1 percent of his or her salary into the 401(k) plan for a pay period, the employer shall contribute an equal amount into his or her 401(k) account. Thereafter, the employer shall contribute an amount equal to 50 percent of such amount as the member chooses to contribute for each pay period, up to an additional 2 percent of the member's compensation. The member may make such additional contributions as he or she desires, subject to limitations imposed by federal law.
  4. The board of trustees shall apportion the costs of administering the plan among the employers and members on the basis of the normal costs of administration against any special services requested by any member.
  5. All contributions by participating members are 100 percent vested and shall be maintained in an account and invested based on the participant's investment allocation choices. All employer contributed amounts credited to a member's account shall be maintained as a matching contribution subaccount and invested based on the participant's investment allocation choices. Any and all amounts credited to a member's matching contribution subaccount, including applicable earnings and investment appreciation or depreciation, shall become vested and nonforfeitable based on the number of employment service years completed and in accordance with the vesting schedule set forth below:

    Upon separation from service for greater than 31 days, the portion of such matching contribution subaccount not so vested shall be transferred from the member's account into a temporary plan forfeiture accumulation account for future disposition as determined by the board of trustees. A break in service less than 32 days shall not affect vesting rights.

  6. Members electing to be governed by the provisions of this article pursuant to subsection (b) of Code Section 47-2-351 shall use their date of election as the beginning date for purposes of calculating their vesting service for the employer contribution as provided in subsection (f) of this Code section used to calculate the vesting requirements of subsection (f) of this Code section, except that service as provided under Code Section 47-2-91 shall not constitute creditable service for this purpose. (Code 1981, § 47-2-357 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328; Ga. L. 2014, p. 841, § 1/HB 764.)

Years of Service Employer Nonforfeitable Vested Percentage ------------ --------------- 1 20 2 40 3 60 4 80 5 100

The 2014 amendment, effective July 1, 2014, in subsection (b), deleted "Members shall be entitled to an employer contribution as follows:" at the end of the introductory paragraph, and deleted former paragraphs (b)(1) through (b)(3); added subsections (c) and (d); redesignated former paragraph (b)(4) as present subsection (e); redesignated former subsections (c) and (d) as present subsections (f) and (g); and substituted "subsection (f)" for "subsection (c)" in two places in subsection (g).

47-2-358. Impact on members of Employees' Retirement System of Georgia on December 31, 2008.

This article shall not be construed and is not intended to have any effect whatsoever on persons within the membership of the Employees' Retirement System of Georgia on December 31, 2008, who do not elect in writing to become members subject to this article.

(Code 1981, § 47-2-358 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328.)

47-2-359. Conflicting provisions.

The provisions of this article shall control over conflicting or inconsistent provisions of this chapter or any other law of this state. It is the intention of the General Assembly that this article has not been and may not be repealed, superseded, or modified by implication through the enactment of any other law or through the amendment of any other provision of this chapter or any other existing law, and any modification or repeal of any provision of this article may be accomplished only by reference or amendment to or repeal of this specific article.

(Code 1981, § 47-2-359 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328.)

47-2-360. Administration.

The board of trustees shall have the responsibility of administering the provisions of this article and shall promulgate such rules and regulations as are necessary to carry out the provisions of this article.

(Code 1981, § 47-2-360 , enacted by Ga. L. 2008, p. 1005, § 1/SB 328.)

CHAPTER 3 TEACHERS RETIREMENT SYSTEM OF GEORGIA

General Provisions.

Creation, Administration, and

Management of the Assets

of the Retirement

System.

Employee and Employer Contributions;

Creation of Funds for Contributions,

Benefits, and Administrative

Expenses.

Membership in the Retirement System.

Service Creditable Toward Retirement Benefits.

Retirement and Eligibility for Retirement Allowances.

Retirement Allowances, Disability Benefits, and Spouses' Benefits.

Miscellaneous Provisions.

Cross references. - Expenditure of public funds for retirement benefits and costs authorized, Ga. Const. 1983, Art. III, Sec. X, Para. I.

Provision of supplemental pension and retirement allowances by governing boards of public school systems and by Board of Regents, §§ 20-1-2 , 20-1-4 .

Health care plans for public school teachers, § 20-2-880 et seq.

Reimbursement of Department of Law by Employees' Retirement System of Georgia, Teachers Retirement System of Georgia, for legal services, § 45-15-37 .

Authority of municipalities to levy and collect property taxes for purpose of paying pensions and other benefits and costs under a teacher retirement system, § 48-5-351 .

Editor's notes. - Ga. L. 1986, p. 1623, proposed an amendment to Ga. Const. 1983, Art. III, Sec. VI, Para. VI adding subparagraph (c), regarding health insurance plans for retired former employees of public school systems. This amendment was approved by a majority of the qualified voters voting at the general election on November 4, 1986.

JUDICIAL DECISIONS

Teachers Retirement System is public body to which O.C.G.A. § 45-6-5 applies. Tate v. Teachers' Retirement Sys., 257 Ga. 365 , 359 S.E.2d 649 (1987).

Cited in Young v. State, 132 Ga. App. 790 , 209 S.E.2d 96 (1974).

OPINIONS OF THE ATTORNEY GENERAL

Chapter applicable to prior retirees. - Teacher who has reached the age of 60, has taught in the state school system for 35 years, and has retired before Ga. L. 1943, p. 640 (see O.C.G.A. Ch. 3, T. 47) became effective was entitled to the benefits of Ga. L. 1943, p. 640 (see O.C.G.A. Ch. 3, T. 47). 1945-47 Op. Att'y Gen. p. 216.

Upon reading Ga. L. 1974, p. 1139, § 1 (see O.C.G.A. § 47-3-124 ) within the context of Ga. L. 1943, p. 640 (see O.C.G.A. Ch. 3, T. 47), and upon considering precipitant events leading to the passage of Ga. L. 1943, p. 640 (see O.C.G.A. Ch. 3, T. 47), it becomes evident that Ga. L. 1974, p. 1139, § 1 was designed to include theretofore excluded local fund retirees. 1975 Op. Att'y Gen. No. 75-9.

Teachers in a state evening college may participate in the retirement system. 1945-47 Op. Att'y Gen. p. 217.

Employees of Georgia Teachers' Education Association may not participate. - Georgia Teachers' Education Association cannot be construed to be an agency of the state so as to make the association an "employer," as defined by Ga. L. 1943, p. 640 (see O.C.G.A. Ch. 3, T. 47), nor can an employee of the association be construed as a "teacher" within the definition given by Ga. L. 1943, pp. 640 and 641. 1948-49 Op. Att'y Gen. p. 131.

Teachers employed by commission charter schools. - Unless and until the General Assembly adopts clarifying legislation, it is within the sound discretion of the Teachers Retirement System Board of Trustees to determine whether teachers who are employed not less than half-time by commission charter schools must be members of the Teachers Retirement System. 2010 Op. Att'y Gen. No. 10-7.

Retirement funds made available from retirement system. - Retirement system is required to make available funds so that a minimum monthly amount is paid to retired members for each year of service up to 40 years; if sufficient funds are not readily available within the retirement system itself, they may be requested from state funds. 1962 Op. Att'y Gen. p. 372.

Trustees may establish different interest rates for actuarial calculations. - Board of trustees may establish different rates of regular interest for use in connection with different mathematical calculations made by the retirement system. 1977 Op. Att'y Gen. No. 77-74.

Local boards may supplement allowances. - Ga. L. 1943, p. 640 et seq. (see O.C.G.A. Ch. 3, T. 47) acknowledges power of local boards to supplement retirement and pension allowances of teachers with other plans, and also acknowledges that tax sheltered annuities might be usable for such a purpose. 1981 Op. Att'y Gen. No. U81-2.

Local school system may establish tax sheltered annuity program. Like a private employer with the power to contract, a local school system may condition employment upon certain requirements so long as the requirements do not violate the Constitution or laws of this state. The teacher's contract may not be unilaterally modified in mid-term to include such a condition; therefore, unless a teacher otherwise agrees to participate in a tax sheltered annuity, the requirement of participation must be included in the employment contract prior to execution and must be agreed upon by both parties before such condition is enforceable. 1981 Op. Att'y Gen. No. U81-2.

Local school system may require tax sheltered annuity program participation. - Local school system may legally require teachers the system employs to participate in a tax sheltered annuity program. 1981 Op. Att'y Gen. No. U81-2.

Retirement benefits to be paid are deferred compensation. - Retirement benefits which would be paid to teacher by Teachers Retirement System are deferred compensation for services previously rendered, while the compensation paid to a teacher by a local board of education for the teacher's current employment is compensation for services being presently rendered; the payments are for separate and different periods of teaching service covered under different retirement systems. 1980 Op. Att'y Gen. No. 80-22.

Retirement benefits allocated while currently employed not covered. - There is no stated provision in Ga. L. 1943, p. 640 et seq. (see O.C.G.A. Ch. 3, T. 47) which would prohibit teacher from receiving retirement benefits under Ga. L. 1943, p. 640 et seq. while currently employed in some other teaching position not under Ga. L. 1943, p. 640 et seq. 1980 Op. Att'y Gen. No. 80-22.

Local school board may contract indirectly to pay superintendent's contributions to Teachers Retirement System for health insurance and for social security; however, since local Acts may affect a local school board's ability to make such contributions, the local board attorney should be consulted in each instance. 1981 Op. Att'y Gen. No. 81-55.

Make greater increase in salary than required to pay superintendent's contribution. - For a local school board to pay a local school superintendent's contributions to the Teachers Retirement System, for health insurance, and social security, it must increase the superintendent's salary since O.C.G.A. § 47-3-41 provides that such contributions must be deducted from the superintendent's salary. However, the increase of the salary would itself be subject to the required deduction since it would increase the amount of earnable compensation; thus, the amount of increase required to pay the contribution would obviously have to be more than the amount of the contribution itself. Likewise, for a local school board to make such contributions under the Teachers Health Insurance Plan, it must increase the superintendent's salary since the law provides that such contributions must be withheld from the superintendent's salary. 1981 Op. Att'y Gen. No. 81-55.

Eligibility of library employees. - Regional and county library employees paid solely with local funds are required to be members of the Teachers Retirement System. 2011 Op. Att'y Gen. No. 11-2.

RESEARCH REFERENCES

ALR. - Reasonableness of classification, as regards beneficiaries, by statute providing for retirement fund or pension for public officers or employees, 163 A.L.R. 870 .

Gift to or for employees' pension fund as valid charitable gift or trust, 28 A.L.R.2d 428.

Unemployment compensation: eligibility of employee laid off according to employer's mandatory retirement plan, 50 A.L.R.3d 880.

Right to unemployment compensation or social security benefits of teacher or other school employee, 33 A.L.R.5th 643.

ARTICLE 1 GENERAL PROVISIONS

OPINIONS OF THE ATTORNEY GENERAL

Extension of Social Security coverage to professional personnel. - Certified professional personnel who are newly employed by the Department of Education and who opt for membership in the Teachers Retirement System (TRS) pursuant to Ga. Laws 1983, p. 1859 are not presently extended Social Security coverage although such coverage could possibly be established under the referendum procedure set out in O.C.G.A. § 47-18-42 . 1983 Op. Att'y Gen. No. 83-49.

Teachers at charter schools shall be members of the Teachers Retirement System. 1999 Op. Att'y Gen. No. U99-4.

47-3-1. Definitions.

As used in this chapter, the term:

  1. "Accumulated contributions" means the sum of all the amounts deducted from the earnable compensation of a member or paid by the member to establish or reestablish credit for service, which amounts are credited to his or her individual account in the annuity savings fund, together with regular interest on such amounts, as provided in Code Section 47-3-41. Beginning July 1, 1987, "accumulated contributions" shall include the amount of employee contributions paid by employers on behalf of members and credited to the individual accounts of members in the annuity savings fund, together with regular interest thereon.
  2. "Actuarial equivalent" means a benefit of equal value when computed at regular interest upon the basis of the mortality tables last adopted by the board of trustees.
  3. "Annuity" means annual payments for life derived from the accumulated contributions of a member.
  4. "Annuity reserve" means the present value of all payments to be made on account of an annuity or benefit in lieu of an annuity, computed at regular interest upon the basis of the mortality tables adopted by the board of trustees.
  5. "Annuity savings fund" means the fund set forth under Code Section 47-3-41.
  6. "Average final compensation" means the average annual earnable compensation of a teacher during the two consecutive years of membership service producing the highest such average.
  7. "Beneficiary" means any person in receipt of a pension, an annuity, a retirement allowance, or other benefit under this chapter.
  8. "Board of trustees" means the board of trustees as provided for in Code Section 47-3-21 and whose purpose is to administer the retirement system.

    (8.1) "Certified professional personnel" means employees of the State Board of Education or the Professional Standards Commission who, by policy of the State Board of Education, are required to possess a valid professional certificate issued by the Professional Standards Commission.

  9. "Commencement date" means January 1, 1945.
  10. "Creditable service" means prior service plus membership service and any other service established under this chapter.
  11. "Earnable compensation" means the full rate of regular compensation payable to a member for his or her full normal working time and includes compensation paid to a member by an employer from grants or contracts made by outside agencies with the employer. All moneys paid by an employer for a member or by a member into any plan of tax sheltered annuity shall be included as earnable compensation for the purpose of computing any contributions required to be made to the retirement system and also for the purpose of computing any benefits or allowances payable under this chapter. Such term shall include contributions made to a qualified transportation plan, within the meaning of Section 132(f) of the federal Internal Revenue Code, and before tax or salary deferral contributions made under Sections 125, 401(k), 402(g)(3), 457, or 414(h) of the federal Internal Revenue Code to this retirement system or to any other retirement plan maintained by an employer.
  12. "Employer" means the State of Georgia, the county or independent board of education, the State Board of Education, the Board of Regents of the University System of Georgia, or any other agency of and within this state by which a teacher is paid. Notwithstanding any provisions in prior or future Acts to the contrary, the county and regional library boards of trustees shall be deemed to be the employer of the county or regional librarians, whose salaries are paid in full or in part from state funds.
  13. "Expense fund" means the fund set forth in Code Section 47-3-47.
  14. "Local retirement fund" means any teachers' retirement fund or other arrangement for the payment of retirement benefits to teachers, but not including the retirement system created under this chapter, which fund was maintained during the calendar year 1943 and is financed wholly or in part by contributions made by an employer.
  15. "Member" means any teacher included in the membership of the retirement system.
  16. "Membership service" means service as a teacher rendered while a member of the retirement system for which credit is allowable.
  17. "Pension" means periodic payments for life, derived from contributions of the state or other employer.
  18. "Pension accumulation fund" means the fund set forth under Code Section 47-3-43.
  19. "Pension reserve" means the present value of all payments to be made on account of a pension, or benefit in lieu of a pension, computed at regular interest upon the basis of the mortality tables last adopted by the board of trustees.

    (19.1) "Plan year" means the 12 month period beginning on July 1 of each year.

  20. "Prior service" means service rendered prior to January 1, 1945, for which credit is allowable under Code Sections 47-3-83 and 47-3-86.
  21. "Public school" means any day school which is conducted within this state and which is under the authority and supervision of a duly elected county or independent board of education.
  22. "Regular interest" means interest compounded annually at such a rate as shall be determined by the board of trustees in accordance with this chapter.
  23. "Retirement" means withdrawal from service with a retirement allowance granted under this chapter.
  24. "Retirement allowance" means the sum of the annuity and the pension, or any optional benefit payable in lieu thereof, under Code Section 47-3-121. All retirement allowances shall be payable in equal monthly installments, provided that the board of trustees may pay a lump sum of equivalent actuarial value in lieu of a retirement allowance of less than $10.00 per month.
  25. "Retirement system" means the Teachers Retirement System of Georgia established under Code Section 47-3-20.

    (25.1) "Salary" shall have the same meaning as earnable compensation.

  26. "Service" means service rendered as a teacher and paid for by this state or other employer.
  27. "Service credit" means creditable service, as defined in this Code section.
  28. "Teacher" means a permanent status employee employed not less than half time as follows:
    1. Employees of a public school or a local board of education with the exception of those employees required to be members of the Public School Employees Retirement System as governed by Chapter 4 of this title;
    2. Public school lunchroom managers or supervisors, maintenance managers or supervisors, transportation managers or supervisors, and warehouse managers or supervisors who elect to participate in the retirement system pursuant to Code Section 47-3-63;
    3. Employees of the Board of Regents of the University System of Georgia with the exception of those employees who elect to participate in the Regents Retirement Plan as governed by Chapter 21 of this title and maintenance and custodial employees employed prior to July 1, 1978, who elected to forgo membership;
    4. Employees of any regional educational service agency created pursuant to Part 11 of Article 6 of Chapter 2 of Title 20;
    5. Certified professional personnel employed for the first time by the Department of Education on and after July 1, 1983, unless such personnel elect membership in the Employees' Retirement System of Georgia pursuant to subsection (h) of Code Section 47-3-60, and any employee of the Department of Education employed in a teaching, supervisory, or clerical capacity;
    6. Certified professional personnel employed by the Department of Education and who become members of this retirement system pursuant to the authority of subsection (i) of Code Section 47-3-60;
    7. Professional personnel employed for the first time by the Technical College System of Georgia on and after July 1, 1985, and all nonprofessional personnel employed for the first time after July 1, 1987, by postsecondary vocational-technical schools governed by the Technical College System of Georgia if otherwise eligible under laws, rules, and regulations, unless such personnel elect membership in the Employees' Retirement System of Georgia pursuant to subsection (j) of Code Section 47-3-60;
    8. Personnel employed by the Department of Education who are authorized to elect and elect to become or remain members of the retirement system pursuant to the applicable provisions of Code Section 47-3-60;
    9. Employees of any school operated by the Department of Education; and
    10. Librarians and clerical personnel employed by regional and county libraries. Any of such librarians and clerical personnel who were members of a local retirement system on January 1, 1977, and who elected to remain members of such local retirement system shall not be required to become members of this retirement system, or if they were members of this retirement system on that date, they may withdraw from such membership. This election must have been made, in writing, to the board of trustees by not later than January 1, 1978. Any of such librarians and clerical personnel failing to so notify the board of trustees by that date shall be members of this retirement system.

      The term "teacher" shall not be deemed to include any emergency or temporary employee. The term "teacher" shall not include an individual classified by an employer as an independent contractor or a leased employee within the meaning of Section 414(n) of the federal Internal Revenue Code, even if such individual is later reclassified by the Internal Revenue Service as a common law employee. The board of trustees shall determine in doubtful cases whether any person is included within the definition set forth in this paragraph.

      (Ga. L. 1943, p. 640, § 1; Ga. L. 1949, p. 1505, § 1; Ga. L. 1950, p. 261, §§ 1, 2; Ga. L. 1953, Nov.-Dec. Sess., p. 470, § 1; Ga. L. 1956, p. 13, § 1; Ga. L. 1957, p. 118, §§ 1, 2; Ga. L. 1959, p. 315, § 1; Ga. L. 1960, p. 935, § 1; Ga. L. 1962, p. 723, § 11; Ga. L. 1965, p. 438, § 1; Ga. L. 1965, p. 652, § 1; Ga. L. 1966, p. 513, § 1; Ga. L. 1969, p. 672, § 1; Ga. L. 1970, p. 217, § 1; Ga. L. 1971, p. 226, § 1; Ga. L. 1972, p. 176, § 1; Ga. L. 1972, p. 909, §§ 1, 2; Ga. L. 1974, p. 1179, § 1; Ga. L. 1976, p. 577, § 3; Ga. L. 1977, p. 1135, § 1; Ga. L. 1977, p. 1159, § 1; Ga. L. 1981, p. 1894, § 1; Ga. L. 1982, p. 684, § 3; Ga. L. 1982, p. 965, § 1; Ga. L. 1983, p. 3, § 36; Ga. L. 1983, p. 1859, §§ 2, 3; Ga. L. 1984, p. 1314, § 1; Ga. L. 1986, p. 1543, § 2; Ga. L. 1987, p. 575, § 8; Ga. L. 1987, p. 959, § 1; Ga. L. 1988, p. 379, § 1; Ga. L. 1988, p. 1351, § 2; Ga. L. 1988, p. 1742, § 2; Ga. L. 1990, p. 685, § 1; Ga. L. 1991, p. 1546, § 11; Ga. L. 1992, p. 2182, § 1; Ga. L. 1993, p. 86, § 1; Ga. L. 1993, p. 316, § 1; Ga. L. 2000, p. 131, § 1; Ga. L. 2005, p. 535, §§ 9, 10, 11/HB 460; Ga. L. 2008, p. 562, § 1/SB 434; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2010, p. 427, §§ 4, 5/HB 969; Ga. L. 2010, p. 1207, § 40/SB 436; Ga. L. 2012, p. 413, § 8/HB 805; Ga. L. 2013, p. 862, § 1/HB 345.)

The 2008 amendment, effective July 1, 2008, substituted "Technical College System of Georgia" for "Department of Technical and Adult Education" twice in subparagraph (28)(F.2), and once in subparagraph (28)(F.3).

The 2009 amendment, effective July 1, 2009, substituted "State Personnel Administration" for "State Merit System of Personnel Administration" in subparagraph (28)(F.1).

The 2010 amendments. The first 2010 amendment, effective May 24, 2010, added the last sentence in paragraph (11); added paragraph (19.1); and, in the ending undesignated paragraph of paragraph (28), added the second sentence, in the fourth and fifth sentence, substituted "of this paragraph" for "of paragraph (28) of this Code section" four times, added "of this paragraph" at the end of the fourth sentence, and substituted "subparagraph (N) or (P) of this paragraph" for "said subparagraph (N) or (P)" in the fifth sentence. The second 2010 amendment, effective July 1, 2010, substituted "Sections 47-3-83 and 47-3-86" for "Sections 47-3-83, 47-3-86, and 47-3-87" at the end of paragraph (20).

The 2012 amendment, effective July 1, 2012, inserted "or her" in the first sentence of paragraphs (1) and (11); substituted "Technical College System of Georgia" for "State Board of Vocational Education" in subparagraph (28)(F); and substituted "as defined by Code Section 45-20-2" for "of the State Personnel Administration" in subparagraph (28)(F.1).

The 2013 amendment, effective July 1, 2013, rewrote paragraph (28).

Cross references. - Eligibility of persons to become members of Teachers Retirement System of Georgia even though receiving retirement pay or allowances from or through Board of Regents, § 20-1-3 .

Editor's notes. - Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2012, p. 413, § 1/HB 805, not codified by the General Assembly, provides that: "The purpose of this Act is to make conforming amendments and correct references in Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, relative to the abolition of the State Personnel Administration and the transfer of certain functions of such agency to the Department of Administrative Services as provided by a separate Act." The separate Act referred to is Ga. L. 2012, p. 446/HB 642, which became effective July 1, 2012, and which provides for the abolition of the State Personnel Administration and the transfer of functions.

Ga. L. 2012, p. 413, § 13/HB 805, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, only if an Act abolishing the State Personnel Administration and providing for the transfer of certain functions of such agency to the Department of Administrative Services is enacted and becomes effective on that same date; otherwise, this Act shall not become effective and shall stand repealed on July 1, 2012." Ga. L. 2012, p. 446/HB 642, effective July 1, 2012, provides for the abolition of the State Personnel Administration and the transfer of functions.

U.S. Code. - The provisions of the Internal Revenue Code, referred to in paragraph (11), is codified throughout 26 U.S.C.

JUDICIAL DECISIONS

Compensation to buy out contract not considered. - Plain meaning of paragraph (11) of O.C.G.A. § 47-3-1 is that in order for the compensation to be considered for purposes of the calculation of benefits, it must be regular compensation earned for full normal working time. This does not include compensation paid to buy out a three-year contract. Tate v. Teachers' Retirement Sys., 257 Ga. 365 , 359 S.E.2d 649 (1987).

Tenured principal's right to non-renewal procedures ended when principal voluntarily retired. - Tenured assistant principal effectively waived the principal's right to a due process hearing under O.C.G.A. §§ 20-2-940 and 20-2-942(b)(1) when the principal voluntarily filed for retirement and began receiving retirement benefits; by operation of O.C.G.A. § 47-3-101(a) , the principal was no longer an employee of the school district and no longer entitled to a due process hearing. Ashley v. Carstarphen, 347 Ga. App. 457 , 820 S.E.2d 70 (2018).

Use of mortality tables in determining actuarial equivalence. - Although under O.C.G.A. § 47-3-23(b) , the Board of Trustees of the Teachers Retirement System of Georgia adopted new mortality tables every four years, the retirees' optional-plan benefits were erroneously calculated using option factors based upon a mortality table and interest rate adopted in 1983; in determining actuarial equivalence between the optional-plan benefits and the maximum-plan benefits as required under O.C.G.A. § 47-3-121(a) , O.C.G.A. §§ 47-3-1(2) and 47-3-23(b) required that the most recent mortality tables be used for such purposes. Plymel v. Teachers Ret. Sys., 281 Ga. 409 , 637 S.E.2d 379 (2006).

Cited in Fulton County Sch. Dist. v. Sanders, 242 Ga. 298 , 248 S.E.2d 670 (1978); Silliman v. Cassell, 292 Ga. 464 , 738 S.E.2d 606 (2013).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

Annuity

University system may enter into tax-sheltered annuity plans. - Board of Regents of the University System of Georgia may authorize the units of the university system to enter into tax-sheltered annuity plans for its employees, and such annuities cannot be considered gratuities under the Constitution. 1965-66 Op. Att'y Gen. No. 65-69.

Local boards may supplement allowances. - O.C.G.A. Ch. 3, T. 47 acknowledges power of local boards to supplement retirement and pension allowances of teachers with other plans, and also acknowledges that tax sheltered annuities might be usable for such a purpose. 1981 Op. Att'y Gen. No. U81-2.

Average Final Compensation

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Earnable compensation is equivalent to the teacher's regular employment salary. Fringe benefits and other sources of "income" which are not part of the teacher's full rate of regular compensation payable for the teacher's full normal working time are not includable within the calculations based on earnable compensation. 1980 Op. Att'y Gen. No. 80-134.

Workers' compensation benefits cannot be included as earnable compensation for purpose of computing retirement benefits. 1980 Op. Att'y Gen. No. 80-134.

Accrued terminal annual leave not included within retirement compensation computation. - Accrued terminal annual leave paid a teacher following the teacher's last day of service should not be included as salary within the teacher's highest five-year compensation computation for retirement allowance purposes. 1973 Op. Att'y Gen. No. 73-173.

Employer

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Any "employer" means any local board of education for purposes of Ga. L. 1947, p. 1155, §§ 1, 2 (see O.C.G.A. § 47-3-42(b) ). 1971 Op. Att'y Gen. No. 71-1.

"Employer" of teacher makes contribution to retirement system. - Statute defines an "employer" of a teacher as that agency "by which a teacher is paid"; therefore, when a teacher is paid by the Department of Education, that department should make the contribution to the retirement system; when a teacher is paid by a local board of education, the local board should make the contribution. 1948-49 Op. Att'y Gen. p. 149 (see O.C.G.A. § 47-3-1 ).

Make greater increase in salary than required to pay superintendent's contribution. - For a local school board to pay a local school superintendent's contributions to the Teachers Retirement System for health insurance and social security, the board must increase the superintendent's salary since O.C.G.A. § 47-3-41 provides that such contributions must be deducted from the superintendent's salary. However, the increase of the salary would itself be subject to the required deduction since it would increase the amount of earnable compensation; thus, the amount of increase required to pay the contribution would obviously have to be more than the amount of the contribution itself. Likewise, for a local school board to make such contributions under the Teachers Health Insurance Plan, the board must increase the superintendent's salary since the law provides that such contributions must be withheld from the superintendent's salary. 1981 Op. Att'y Gen. No. 81-55 (see O.C.G.A. § 47-3-1 ).

Member

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Teacher withdrawing contributions from system no longer "member." - Teacher who withdraws the teacher's contributions with interest from the retirement system is no longer a member of the retirement system as the term "member" is employed in this statute. 1976 Op. Att'y Gen. No. 76-19 (see O.C.G.A. § 47-3-1 ).

Prior Service

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Teacher with emergency certificate may receive credit for prior service. - Teacher who holds an emergency certificate and who, for that reason, was denied the right to participate in the retirement system, and has not made contributions thereto, but who has taught for two years, is eligible for membership in the system and may receive credit for prior service. 1945-47 Op. Att'y Gen. p. 215.

Teacher not allowed pension based on local retirement fund years. - If a teacher has 13 years of accrued creditable service under the retirement system acquired before July 1, 1943 (now January 1, 1945), immediately prior to joining a local system, and that teacher applies ten of those years toward a local retirement fund, that retired teacher would have to serve five years of membership service under the retirement system at some time to be eligible for the normal retirement benefits payable on the three years not applied to the local system; also, if this teacher acquires the necessary five years of membership service in order to qualify for the creditation of prior service as a "regular member" of the retirement system, the teacher would be entitled to a benefit based on what would have been the annuity contributions during the ten transferred years had that teacher actually been paying contributions during that period; this teacher, however, would not be entitled to the pension amounts on these ten years applied to the local fund because those amounts must be paid to the local fund. 1950-51 Op. Att'y Gen. No. 75-113.

If a teacher includes previous service in a system under the retirement system toward retirement under a local retirement fund, and the retirement system pays the pension amounts on that service to the local fund, the teacher cannot be allowed pension benefits from the retirement system based on those same years for which payments are being made to the local fund, as this would clearly amount to a double payment. 1974 Op. Att'y Gen. No. 74-21.

Restriction of benefits means credit for prior service denied. - Court reads restriction of benefits provision to mean that credit for "prior service" is denied rather than credit for service performed prior to the date any such employee becomes a member of the system. 1968 Op. Att'y Gen. No. 68-222.

Employees of Georgia Association of Educators. - Employee of the Georgia Association of Educators (GAE) who is still a member of the Teachers Retirement System can establish credit for prior teaching service, but cannot establish credit for service as a GAE employee rendered prior to a request for membership made pursuant to paragraph (28) of O.C.G.A. § 47-3-1 . 1986 Op. Att'y Gen. No. 86-42.

Teacher

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1. In General

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"Teacher" not limited to "classroom teacher." - Term "classroom teacher" is used within the definition of "teacher" in the Teachers Retirement Act. It is a recognized term already employed by the Act. If the General Assembly meant to limit the application of Ga. Laws 1974, pp. 1139-41, to classroom or "blackboard" teachers, surely the term "classroom teachers" would have been utilized. Furthermore, it would seem manifestly difficult to articulate the scope and definition of the term "public schoolteachers." If the General Assembly intended to limit the application of the 1974 amendment to a sub-class of "teachers," then more of a definition than "public schoolteachers" would have been provided. 1975 Op. Att'y Gen. No. 75-9.

"Public school teacher" equivalent of "teacher." - Term "public school teacher," as used in Ga. L. 1979, p. 1139, § 1 (see O.C.G.A. § 47-3-1 24), should be interpreted to mean and include the equivalent classes of individuals retiring under local retirement funds as are included within the definition of "teacher" in Ga. L. 1974, p. 1179, § 1 (see O.C.G.A. § 47-3-1 ). 1975 Op. Att'y Gen. No. 75-9 (rendered prior to 1986 amendment to Code § 47-3-124 which changed "public school teacher" to "locally retired teacher").

Term "public school teacher" should be interpreted to mean and include the equivalent classes of individuals retiring under local retirement funds as are included within the definition of "teacher" in this statute. 1976 Op. Att'y Gen. No. U76-31 (see O.C.G.A. § 47-3-1 ).

Assignment to university while on active duty with army. - Colonel was not entitled to creditable membership (teaching) service for the period of time from November 1, 1963 through August 31, 1967 during which the colonel was on active duty in the U.S. Army and assigned to the University of Georgia as a Professor of Military Science. 1985 Op. Att'y Gen. No. 85-15.

Health insurance plan covers "teachers." - Health insurance plan for public school teachers would cover anyone defined as "teacher" under Ga. L. 1943, p. 640 et seq. (see O.C.G.A. Ch. 3, T. 47). 1976 Op. Att'y Gen. No. 76-34.

2. Librarians

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Librarians and clerical personnel required to be members of retirement system. - Regional and county librarians, and clerical personnel employed by such libraries, are required to be members of the retirement system and may not, in lieu of membership in the retirement system, choose to be members of a local retirement system for such employees. 1975 Op. Att'y Gen. No. 75-46.

Eligibility of regional and county library employees. - Paragraph (12) of O.C.G.A. § 47-3-1 merely provides that a certain entity, the local library board, will be deemed the "employer" for purposes of the Teachers Retirement System and will be responsible for administering the payment of contributions on behalf of member employees. The language in no way limits the membership in the Teachers Retirement System to only those regional and county library personnel who are paid in whole or in part by state funds. Thus, regional and county library employees paid solely with local funds are required to be members of the Teachers Retirement System. 2011 Op. Att'y Gen. No. 11-2.

Municipal library employees not considered "teachers." - Because of the distinction between city and noncity libraries, the fact that the Atlanta City Charter governs the composition, powers, and duties of the library board, and because Ga. L. 1943, p. 640 et seq. (see O.C.G.A. Ch. 3, T. 47) specifies "regional or county" libraries and does not specifically include "municipal" libraries, the Atlanta Public Library is a municipal library and, as such, its employees are not considered "teachers" as defined in Ga. L. 1943, p. 640 et seq., for the purposes of membership in the system. 1978 Op. Att'y Gen. No. 78-14.

3. County Agents

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County agent and home demonstration agent "teachers." - Under this statute, the county agent and home demonstration agent would be classified as "teachers." 1945-47 Op. Att'y Gen. p. 59 (see O.C.G.A. § 47-3-1 ).

Agricultural agent may have retirement benefits paid by tax levy. - County may levy taxes to provide teacher retirement benefits for a county agricultural agent. 1945-47 Op. Att'y Gen. p. 209.

County and state contribute to retirement fund for dual agent. - If the county pays any part of the county agent's salary, even though the agent is assigned to the county by the agricultural (cooperative) extension service of the university, the county agent would be the employee of the university system and of the county, and the university system and the county would both be required to contribute to a reserve fund from which teacher retirement benefits are paid. 1948-49 Op. Att'y Gen. p. 528.

How employee of agricultural and development board included as "teacher." - Agricultural and Industrial Development Board of Georgia is an agency which comes within the definition of an "employer" under this statute, and should any paid employee of the board perform duties which would entitle such employee to be classified as a "teacher" it would be the duty of the board of trustees to determine in doubtful cases whether the employee is a "teacher" as defined in this statute. 1948-49 Op. Att'y Gen. p. 136 (see O.C.G.A. § 47-3-1 ).

4. Private Employees

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Private teachers not entitled to retirement system. - Teachers employed by private or denominational schools are not entitled to participate in retirement system. 1945-47 Op. Att'y Gen. p. 218.

Teachers employed by a school operated as a private corporation, which is not conducted under the supervision of a county or independent board of education, may not participate in the retirement system, although the school accepts all children from an independent school district and receives funds from the school district and from the county. 1945-47 Op. Att'y Gen. p. 218.

Members or employees of the Georgia Tech Athletic Association are not "teachers" entitled to the benefits of Ga. L. 1943, p. 640 et seq. (see O.C.G.A. Ch. 3, T. 47). 1945-47 Op. Att'y Gen. p. 213.

5. Other School Personnel

.

Inclusion of Department of Education employees in Employees' Retirement System. - Under existing law, current and future employees of the State Department of Education must be included within the membership of the Employees' Retirement System of Georgia. 1983 Op. Att'y Gen. No. 83-2.

Since the employees of the State Department of Education are employed within a state board or department, the mandatory inclusion under the Employees' Retirement System in O.C.G.A. § 47-2-70 completely supplanted and repealed by implication any inclusion of such employees under the definition of "teacher" in paragraph (28) of O.C.G.A. § 47-3-1 . 1983 Op. Att'y Gen. No. 83-2.

County school superintendent is entitled to the benefits of Ga. L. 1943, p. 640 et seq. (see O.C.G.A. Ch. 3, T. 47). 1945-47 Op. Att'y Gen. p. 152.

Athletic coaches employed by the regents of the university system are not "teachers" as contemplated by the retirement system. 1948-49 Op. Att'y Gen. p. 149.

Teacher's aide or paraprofessional may be eligible for coverage. - If a teacher's aide or paraprofessional meets the requirements set forth by Ga. L. 1969, p. 998 (see O.C.G.A. §§ 47-3-1 , 47-4-2 and 47-4-40 ), then that person is eligible for coverage under the Public School Employees Retirement System. 1971 Op. Att'y Gen. No. 71-189.

RESEARCH REFERENCES

ALR. - What constitutes "salary," "wages," "pay," or the like, within pension law basing benefits thereon, 91 A.L.R.5th 225.

ARTICLE 2 CREATION, ADMINISTRATION, AND MANAGEMENT OF THE ASSETS OF THE RETIREMENT SYSTEM

Administrative Rules and Regulations. - Administrative Rules, Official Compilation of the Rules and Regulations of the State of Georgia, Teachers Retirement System of Georgia, Chapter 513-5-1.

47-3-20. Creation and management of the Teachers Retirement System of Georgia; its powers and privileges; name under which business transacted.

A retirement system is established for the purpose of providing retirement allowances and other benefits under this chapter for teachers of this state and is placed under the management of the board of trustees. It shall have the power and privileges of a corporation, the right to bring and defend actions, to implead and be impleaded, and shall be known as the "Teachers Retirement System of Georgia," in which name all of its business shall be transacted, all of its funds invested, and all of its cash and securities and other property held.

(Ga. L. 1943, p. 640, § 2; Ga. L. 1982, p. 3, § 47.)

JUDICIAL DECISIONS

Benefits not property of bankruptcy estate. - Chapter 7 debtor's interest in a Teachers Retirement System of Georgia annuity that the debtor received as a beneficiary was excluded from the bankruptcy estate under 11 U.S.C. § 541(c)(2); the interest was in a trust because the annuity funds were still under the administration of the state pursuant to O.C.G.A. § 47-3-20 et seq., and the trust incorporated a statutory anti-alienation provision under O.C.G.A. § 47-3-28(a) enforceable under O.C.G.A. § 53-12-28 . Coleman v. Hainlen (In re Hainlen), 365 Bankr. 288 (Bankr. S.D. Ga. 2007).