O.C.G.A. § 47-3-41 (2019)

Annotations

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.’’

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). 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 bene-

fits 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).

OPINIONS OF THE ATTORNEY GENERAL Analysis Annuity Average Final Compensation Employer Member Prior Service Teacher 1. In General 2. Librarians 3. County Agents 4. Private Employees 5. Other School Personnel 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 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 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

Employer (Cont’d) 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 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 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 1. In General ‘‘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. § 47-3-124), 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 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. 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 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

Teacher (Cont’d) 3. County Agents (Cont’d) Gen. p. 136 (see O.C.G.A. § 47-3-1). 4. Private Employees 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 ALR5th 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.