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2018 Georgia Code 36-35-4 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 36-35-4 Case Law from Google Scholar Amendments to OCGA 36-35-4

TITLE 36 LOCAL GOVERNMENT

Chapter 35 information not found

ARTICLE 3 COUNCIL OF MUNICIPAL COURT JUDGES

36-35-4. Compensation and benefits for employees and members of governing authority; conditions and requirements governing increases for elective members of governing authority.

  1. The governing authority of each municipal corporation is authorized to fix the salary, compensation, and expenses of its municipal employees and the members of its municipal governing authority and to provide insurance, retirement, and pension benefits, coverage under federal old-age, survivors and disability programs, hospitalization benefits, and workers' compensation benefits for its employees, their dependents, and their survivors and for members of the municipal governing authority, their dependents, and their survivors, when such benefits are provided to municipal employees. Any previous actions to extend insurance, federal old-age, survivors and disability programs, retirement, hospitalization, and workers' compensation benefits to members of the municipal governing authority are validated. With the exception of the provision of insurance, federal old-age, survivors and disability programs, retirement, hospitalization, and workers' compensation benefits, any action to increase the salary or compensation of the elective members of the municipal governing authority shall be subject to the following conditions and requirements:
    1. Any such increase shall not be effective until after the taking of office of those elected at the next regular municipal election which is held immediately following the date on which the action to increase the compensation was taken;
    2. Such action shall not be taken during the period of time beginning with the date that candidates for election to membership on the municipal governing authority may first qualify as such candidates and ending with the date members of the municipal governing authority take office following their election; and
    3. Such action shall not be taken until notice of intent to take the action has been published in a newspaper of general circulation designated as the legal organ in the county and in the municipal corporation at least once a week for three consecutive weeks immediately preceding the week during which the action is taken.
  2. As used in subsection (a) of this Code section, the phrase "elective members of the municipal governing authority" means, notwithstanding any terminology or designation of a municipal governing authority or governing body contained in any municipal charter, any elective municipal official who exercises any executive or legislative or executive and legislative powers of the municipal corporation, specifically including a mayor, vice-mayor, president or chairman of a municipal council, member of a municipal council, member of a board of aldermen, or member of a board of commissioners. Such phrase shall also include any person who is appointed to fill a vacancy in any such elective office.
  3. As used in subsection (a) of this Code section, the words "salary or compensation," as applied to the elective members of a municipal governing authority, shall include any expense allowance or any form of payment or reimbursement of expenses, except reimbursement for expenses actually and necessarily incurred by members of a municipal governing authority in carrying out their official duties. The governing authority of each municipal corporation shall be authorized to provide by ordinance for the reimbursement of such actual and necessary expenses.
  4. As used in subsection (a) of this Code section, the words "retirement" and "pension" shall mean termination from municipal service with the right to receive a benefit based upon all or part of such municipal service in accordance with the terms of the ordinance or contract pursuant to which the municipality provides for payment of such benefits. The General Assembly declares and affirms that the Act approved April 17, 1981 (Ga. L. 1981, p. 1741) was intended to assure that prior advertisement of actions to provide insurance, federal old-age, survivors and disability programs, retirement, pension, hospitalization, and workers' compensation benefits to elected members of the municipal governing authority, their dependents, and their survivors is not required.

(Ga. L. 1965, p. 298, § 5; Ga. L. 1973, p. 778, § 4; Ga. L. 1974, p. 195, § 1; Ga. L. 1975, p. 28, § 1; Ga. L. 1979, p. 645, § 2; Ga. L. 1981, p. 1741, § 1; Ga. L. 1987, p. 1055, § 1.)

Law reviews.

- For article, "The Municipal Home Rule Act of 1965 (this chapter)," see 3 Ga. St. B.J. 333 (1967). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions prior to enactment of this Code section are included in the annotations for this Code section.

Mayor is not member of "municipal governing authority" and, therefore, the authority of the city council to increase the compensation paid to the office of the mayor is not subject to the strictures of this section. Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978) (decided prior to amendment of O.C.G.A. § 36-35-4 by Ga. L. 1979, p. 645, § 2).

Meaning of phrase "governing authority".

- Generally accepted meaning of the phrase "governing authority" or "governing body," in reference to the operation of city or county governments, is a council or board performing legislative functions. Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978) (decided prior to amendment of O.C.G.A. § 36-35-4 by Ga. L. 1979, p. 645, § 2).

In determining whether municipal officer is part of governing authority of municipality, the question is whether that municipal officer possesses legislative power. Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978) (decided prior to amendment of O.C.G.A. § 36-35-4 by Ga. L. 1979, p. 645, § 2).

Fact that mayor of town is presiding officer of council and has power to cast tie-breaking votes does not make the mayor a member of council if the city charter provides that the mayor is not to be a member. Accordingly, even though the president of the city council is the presiding officer of the council and possesses the authority to cast tie-breaking votes, the mayor should not be considered a member of the council, since the city charter expressly provides that the mayor is not to be a member. Therefore, an increase in the mayor's compensation is not subject to this section. Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978) (decided prior to amendment of O.C.G.A. § 36-35-4 by Ga. L. 1979, p. 645, § 2).

City not authorized to pay mayor for services of city manager.

- City is not authorized to pay to a city's mayor compensation, over and beyond the sum specified in the charter as the mayor's salary, for services ordinarily rendered by a city manager. Welsch v. Wilson, 217 Ga. 582, 124 S.E.2d 77 (1962) (decided under former law).

"Retirement benefits" construed.

- Benefits provided under a city retirement plan are retirement benefits expressly exempted under subsection (a) of O.C.G.A. § 36-35-4 and not in the nature of a pension or gratuity when the retirement plan allows council members, after a given period of time, to terminate employment and receive partial credit for past years' service toward the total required time for entitlement to a monthly payment for life. Swann v. Board of Trustees, 257 Ga. 450, 360 S.E.2d 395 (1987) (decided prior to 1987 amendment).

City ordinance increasing pension plan contribution rate.

- Trial court properly granted the city defendants summary judgment on the city employees' claims of breach of contract and unconstitutional impairment of contract regarding an ordinance increasing their pension plan contribution rate because the Georgia General Assembly expressly contemplated that a municipal corporation's provision for employee retirement or pension benefits would be subject to being supplemented by local law. Borders v. City of Atlanta, 298 Ga. 188, 779 S.E.2d 279 (2015).

No notice required prior to council's consideration of participation in retirement system.

- City council is not required by statute to advertise notice of the council's intent to consider an ordinance extending participation in the Joint Municipal Employees Retirement System pension to the council's own members. City of Marietta v. Holland, 252 Ga. 299, 314 S.E.2d 97 (1984); Swann v. Board of Trustees, 257 Ga. 450, 360 S.E.2d 395 (1987).

Cited in King v. Herron, 241 Ga. 5, 243 S.E.2d 36 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Policy behind subsection (a) of this section is to impose restrictions upon the powers of members of municipal governing authorities to increase their own salaries or compensation. 1980 Op. Att'y Gen. No. U80-27.

Subsection (a) of this section does not prohibit increase from applying to whole council after next election when that election involves less than all positions on the governing authority. 1980 Op. Att'y Gen. No. U80-27.

City may set up retirement system for city employees without necessity of amending city charter. 1970 Op. Att'y Gen. No. U70-80.

RESEARCH REFERENCES

Am. Jur. 2d.

- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 185, 202 et seq., 221 et seq., 226. 63C Am. Jur. 2d, Public Officers and Employees, §§ 276 et seq., 287, 293.

Wrongful Termination of Retirement Benefits, 13 POF2d 531.

C.J.S.

- 62 C.J.S., Municipal Corporations, § 473 et seq.

Cases Citing O.C.G.A. § 36-35-4

Total Results: 6  |  Sort by: Relevance  |  Newest First

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City of Atlanta v. McKinney, 265 Ga. 161 (Ga. 1995).

Cited 27 times | Published | Supreme Court of Georgia | Mar 14, 1995 | 454 S.E.2d 517

...c relations since these areas are unsuited to less than statewide legislation"). The Municipal Home Rule Act specifically grants cities the authority to provide insurance benefits for a city's "employees, their dependents, and their survivors." OCGA § 36-35-4 (a)....
...However, the benefits ordinance under consideration in this case in no way affects existing "private or civil law." Furthermore, the municipality has the "independent governmental power" to provide benefits for "its employees, their dependents, and their survivors." OCGA § 36-35-4 (a)....
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Swann v. Bd. of Trs. of Jt. Mun. Employees' Benefit Sys., 360 S.E.2d 395 (Ga. 1987).

Cited 17 times | Published | Supreme Court of Georgia | Sep 10, 1987 | 257 Ga. 450

...To participate in the plan council members were required to pay 3% of their future salaries into the plan. No notice of intent to include elected officials in this plan was given or published prior to the vote taken by the City Council. Compare OCGA § 36-35-4 (a) (3)....
...The City filed an action for declaratory judgment. Both parties cross-claimed, counterclaimed, and moved for summary judgment. The trial court granted summary judgment to the City and denied summary judgment to appellant. The trial court found that under the Municipal Home Rule Act, OCGA § 36-35-4 (a) (3), the City Council was required to publish notice of its intent to provide for the retirement plan in question. The *452 trial court concluded that the benefits in question are a pension, or gratuity, rather than retirement pay in the form of deferred compensation, and that OCGA § 36-35-4 evinces a legislative intent that any actions to increase pensions afforded elective members of the municipal governing authority must comply with the notice requirements of the statute. The trial court further concluded the City Council had the authority to amend the ordinance establishing the retirement plan to exclude elected or appointed members of the municipal governing authority from coverage thereunder. 1. OCGA § 36-35-4 (a) provides, "The governing authority of each municipal corporation is authorized to fix the salary, compensation, and expenses of its municipal employees and the members of its municipal governing authority and to provide insurance, reti...
...The trial court concluded that under De Witt v. Richmond County, 192 Ga. 770 (16 SE2d 579) (1941), the benefits in question are in the nature of a pension or gratuity rather than retirement benefits, and that because pensions are not specifically excepted from the notice provisions of OCGA § 36-35-4, the ordinance adopting the retirement plan was invalid for failure to meet the statutory notice requirements....
...of Trustees of the Firemen's Pension Fund, 214 Ga. 251 (104 SE2d 225) (1958); Bender v. Anglin, 207 Ga. 108 (60 SE2d 756) (1950). Under this analysis Swann's benefits were not a gift and therefore not a pension within the meaning of DeWitt but retirement benefits under OCGA § 36-35-4. His situation fits within example (3) above. When the retirement ordinance became effective he had to serve an additional period of time to obtain the benefits he ultimately received. [1] This result is consistent with our construction of OCGA § 36-35-4, as it existed in 1975, [2] in City of Marietta v....
...to the statutory notice requirements. We were not called on in that case to determine the difference between pension and retirement benefits *454 as all parties agreed that retirement benefits were at issue. The 1979 and 1981 amendments [3] to OCGA § 36-35-4 amplify the legislature's intention to distinguish between notice requirements with regard to "salary and compensation" and "retirement benefits," even though the latter may in fact be "compensation" deferred in time, by expressly excepting retirement benefits from the notice requirements....
...But this is not the option which Swann chose. Instead, he opted to serve on for an additional period of time and to receive additional benefits. See Article V, Section 1(a), supra. This is a contract, not a gift. It fits within example three above. [2] OCGA § 36-35-4 as it existed in 1975 provided, "The governing authority of each incorporated municipality is authorized to fix the salary, compensation, and expenses of the municipal employees and members of the governing authority and/or legislative bod...
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Borders v. City of Atlanta, 298 Ga. 188 (Ga. 2015).

Cited 16 times | Published | Supreme Court of Georgia | Nov 2, 2015 | 779 S.E.2d 279

...employees and to establish insurance plans for school employees of independent municipal systems and to provide the method or methods of financing such systems and plans; . . . (Emphasis added.) Furthermore, OCGA § 36-35-4 (a), in relevant part, authorizes a municipal corporation’s governing authority to provide retirement and pension benefits: The governing authority of each municipal corporation is authorized to . . . provide . . . retirement, and pension benefits, . . .for its employees, their dependents, and their survivors . . . . And, subsection (d) of OCGA § 36-35-4 defines the terms “retirement” and “pension” as used in subsection (a) of the statute, As used in subsection (a) of this Code section, the words “retirement” and “pension” shall mean...
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City of Marietta v. Holland, 314 S.E.2d 97 (Ga. 1984).

Cited 12 times | Published | Supreme Court of Georgia | Mar 15, 1984 | 252 Ga. 299

...embers, and that the omission to do so was fatal to the ordinance, thereby invalidating appellee's purported participation in the City's JMERS. We disagree. Appellants' argument is based upon the language of former Ga. Code Ann. § 69-1019 (now OCGA § 36-35-4), which was part of the Municipal Home Rule Act of 1965, as amended, as it existed when the disputed ordinance was passed in 1975....
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City of Atlanta v. Morgan, 492 S.E.2d 193 (Ga. 1997).

Cited 6 times | Published | Supreme Court of Georgia | Nov 3, 1997 | 268 Ga. 586, 97 Fulton County D. Rep. 4007

...McKinney, supra at (1) and (2). The issue in McKinney, as in this appeal, was whether the City acted within its authority to provide benefits to its employees and their dependents by defining "dependent" consistent with State law. Id. at (2). OCGA § 36-35-4(a) authorizes a municipality to provide insurance benefits to its employees and their dependents....
...McKinney, supra at (1). Looking at Ordinance 96-O-1018, the only ordinance the constitutionality of which is in issue in this case, the City is authorized to provide benefits to those dependents who are financially reliant upon a City employee. OCGA § 36-35-4....
...ications upon the receipt of such benefits does not alter and clearly does not expand the State law definition of "dependent." The City acted within its authority when it chose to provide insurance benefits to the dependents of a City employee. OCGA § 36-35-4(a)....
...onflict with state law, and the trial court correctly so held. Accordingly, I respectfully dissent to the majority's reversal of the judgment of the trial court. The City is authorized to provide insurance benefits to its employees' dependents. OCGA § 36-35-4(a)....
...creating much more than a mere registration system. Contrary to the letter, spirit and intent of City of Atlanta v. McKinney, supra, the majority now construes the ordinance as creating a legal right to insurance coverage as a "dependent" under OCGA § 36-35-4(a)....
...that "[n]o special law relating to the rights or status of private persons shall be enacted." [2] Ordinance 96-O-1018 was approved by the mayor on September 5, 1996 and codified as § 2-858 of the Code of Ordinances of the City of Atlanta. [3] OCGA § 36-35-4(a) grants municipalities the authority to fix the salary, compensation, and expenses of its municipal employees ......
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Nelson v. Strickland, 911 S.E.2d 665 (Ga. 2025).

Cited 2 times | Published | Supreme Court of Georgia | Jan 28, 2025 | 320 Ga. 733

...The Act also authorizes certain spe- cific local laws. Relevant here, the Act allows a municipality, after a national census, to “reapportion the election districts from which members of the municipal governing authority are elected.” OCGA § 36-35-4.1 (a). And the Act lays out the procedural steps through which a municipality can exercise that power: A city that wants to reapportion its electoral districts “shall by ordinance amend its char- ter.” OCGA § 36-35-4.1 (b)....