O.C.G.A. § 47-2-1 (2019)
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 last five years of creditable service or, if he has had less than five years of creditable service, his
average annual earnable compensation during his 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: (A) 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 under the State Personnel Administration, including a merit system for employees of the Department of Public Safety; (B) Any employee or officer of any other department, bureau, board, institution, or commission of the state:
(i) Which department, bureau, board, or commission operates under a merit system of personnel administration; (ii) Which department operates under a tenure system as established by law; or (iii) 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; (C) 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 of the State Personnel Administration 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: (A) 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 under the State Personnel Administration, 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. (B) 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. (C) ‘‘Employer’’ shall include 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 (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 position with an employer, as defined in paragraph (17) of this Code section, is his 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 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 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 retirement allowance, which options are set forth in Code Section (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 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.
History
(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.)
Annotations
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
JUDICIAL DECISIONS service at retirement. - Neither O.C.G.A. § 47-2-120(a) nor O.C.G.A. § 47-2-110(a)
Authority of board of trustees to reduce pension benefits based on age and length of
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).
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
OPINIONS OF THE ATTORNEY GENERAL 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
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
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.
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
RESEARCH REFERENCES reduction of pension or retirement benefit of public officer or employee because of independent income, 7 ALR2d 692. Taxicab driver as employee of owner of cab, or independent contractor, within social security and unemployment insurance statutes, 10 ALR2d 369. What constitutes ‘‘salary,’’ ‘‘wages,’’ ‘‘pay,’’ or the like, within pension law basing benefits thereon, 91 ALR5th 225.
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 ALR 684. Constitutionality, construction, and application of statute or ordinance providing for