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Official Opinion 2000-2

Official Opinion 2000-2

January 7, 2000
To: 

Executive Director
Teachers Retirement System

Re: 

Under the provisions of O.C.G.A. § 47-3-92, only days of sick leave accrued while a member of the Teachers Retirement System may be credited towards retirement under the Teachers Retirement System.

This is in response to your request for an opinion regarding the scope of O.C.G.A. § 47-3-92, adopted in July, 1998. You have asked specifically as to whether sick leave accrued by an employee while a member of the Employees’ Retirement System (hereinafter ERS) can be credited towards the individual’s retirement service under the Teachers Retirement System (hereinafter TRS) pursuant to the authority of this statute.

Generally, the statutory section in question authorizes the use of accumulated sick leave as creditable service towards retirement under the Teachers Retirement System. Prior to its adoption, members of the Teachers Retirement System could not make use of accrued sick leave. By contrast, the counterpart system for state employees, the Employees’ Retirement System, has allowed the use of forfeited sick and annual leave as creditable service since 1974. Your question arises as a result of the practice of the Board of Regents of the University System of Georgia which allows employees of other state agencies who become Regents’ employees to transfer their accumulated sick and annual leave at the time of employment with the Regents. Many of these employees may have previously belonged to ERS and been employed by an employer covered by the ERS. While your question arises because of the practice of the Board of Regents specifically, the general issue goes to whether persons who accrue sick leave while not members of TRS may get credit towards retirement under TRS for that sick leave under this amendment.

The relevant portions of the statute provide as follows:

(a) For purposes of this Code section, the maximum amount of sick leave which may be accumulated in one year shall be one and one-fourth days per month of actual service. In the event any employer authorizes sick leave in excess of such amount, any such leave used in any year shall be deducted from the maximum amount of leave authorized for that year by this Code section. Nothing in this Code section shall require any employer to grant any certain amount of sick leave.

(b) Accumulated days of sick leave accrued on, after, or before July 1, 1998, for which a member has not been paid shall constitute creditable service as provided in subsection (c) of this Code section. Such creditable service may be used to qualify for retirement but may not be used to qualify for vesting for benefits. Upon retirement of a member, the employer shall certify to the board of trustees the total amount of that member’s sick leave based on leave records. It shall be the duty of each employer to maintain accurate records reflecting sick leave used and accumulated by each employee and to keep such records for at least 50 years.

O.C.G.A. § 47-3-92. The general use of the phrases “employer,” “actual service, ” “member” and “creditable service” together in this Section suggest that this Section contemplates that the sick leave will be accrued while the person is earning creditable service as a member of TRS. Although there is no language specifying this limitation, the absence of any specific language authorizing the use of sick leave earned as a member of ERS as creditable service under TRS is notable. The General Assembly has otherwise plainly contemplated the fact that employees of the state who have been ERS members may become TRS members. There are provisions elsewhere in the TRS statute that set out the specific conditions under which ERS service can be transferred and credited to TRS. See O.C.G.A. § 47-3-81 (transfer from ERS to TRS requires payment of additional contributions). See also O.C.G.A. § 47-3-85 (TRS member may get credit for prior ERS service upon meeting specific conditions).

If the General Assembly specifically includes language in one section of a statute and fails to include that language in a provision dealing with the same subject matter, it is assumed that the exclusion is intentional. See Department of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1995) (“The omission of [specific statutory language] ‘invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. [Cites omitted.]"). Under this principle, had the General Assembly intended for a TRS member to be able to receive credit for sick leave accrued while a member of ERS, it would have made specific reference to the terms and conditions under which that ERS time could be credited just as it has with all other service transferable from ERS.

As an administrative body created by the legislature, the TRS "has only such powers as the legislature has expressly, or by necessary implication, conferred upon it." Bentley v. State Bd. of Med. Examiners, 152 Ga. 836, 838 (1922). The amendment contains no specific authority to credit the sick leave accrued by a member while belonging to the ERS.

This conclusion is bolstered by the language contained in paragraph (c) of this amendment. That paragraph provides:

(c)(1) A member shall be given such creditable service, not to exceed one month of creditable service for each 20 days of sick leave, in direct relation to appropriations provided by the General Assembly to fund the provisions of this subsection together with any increase in employer contributions made pursuant to paragraph (2) of this subsection, . . .

(2) In order to fund the provisions of this Code section in whole or in part, the board of trustees is authorized, but not required, to increase the amount of employer contributions in direct proportion to the amount shown in the appropriation Acts enacted for such purpose by the General Assembly.

O.C.G.A. § 47-3-92(c). Consistent with the overall requirements of the Public Retirement System Standards Act, defining funding standards to assure actuarial soundness, this language demonstrates the clear intent of the General Assembly to not authorize a crediting of retirement service beyond that which could be funded or recovered from TRS employers. Again, had the General Assembly intended to create a broad authority, allowing for the crediting of sick leave accrued for time other than when employed by a TRS employer, it would have made specific provision for the source of funding the cost of that retirement credit. Reviewing the auditor’s statement at the time of his review of the bill, there does not appear to be any contemplation of providing for additional funding.

Based on the statutory language, the lack of authorizing language and the absence of additional funding, it is my official opinion that only days of sick leave accrued while a member of the Teachers Retirement System may be credited towards retirement under the Teachers Retirement System under the provisions of O.C.G.A. § 47-3-92.

Prepared by:

____________________________________ SUSAN L. RUTHERFORD
Senior Assistant Attorney General