TITLE 47 RETIREMENT AND PENSIONS

Section 2. Employees' Retirement System of Georgia, 47-2-1 through 47-2-360.

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. 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.
2. 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, conservation rangers 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.
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.)

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.

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.

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