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Unofficial Opinion 2001-1

Unofficial Opinion 2001-1

January 24, 2001
To: 

Former Senator
District 46

Re: 

A citizen who served as a firefighter and was a member of the Firefighters' Pension Fund from 1971 through 1984 and then resumed service as a firefighter and applied for reinstatement to the fund in 1992 is not eligible to receive pension credit pursuant to O.C.G.A.§ 47-7-87 for his years as a firefighter prior to his break in service.

Before you left office last year you requested my opinion regarding O.C.G.A. § 47-7-87, enacted by the General Assembly at 2000 Ga. Laws 1507, 1508 (Senate Bill 267), and the application of its provisions for credit for prior eligible service in the Georgia Firefighters' Pension Fund. You have specifically asked about a situation in which a constituent "was a member of the [Firefighters' Pension Fund] for thirteen years as a firefighter in Gwinnett County" from 1971 through 1984 and then "re-entered the fire service in 1992 in Winder" and is now "having difficulty buying back service from the Georgia Firefighters' Pension Board under provisions of SB 267." It is my understanding that your constituent "was told he could not receive credit for previous service because his service was not continuous." Having researched the relevant law, it is my unofficial opinion that a citizen who served as a firefighter and was a member of the Firefighters' Pension Fund from 1971 through 1984 and then resumed service as a firefighter and applied for reinstatement to the fund in 1992 is not eligible to receive pension credit pursuant to O.C.G.A. § 47-7-87 for his years as a firefighter prior to his break in service.

As you know, the Georgia Firefighters' Pension Fund is a "voluntary pension system which provides benefits intended to supplement primary pension benefits provided by fire departments or the governmental units or volunteer districts establishing the fire departments." O.C.G.A. § 47-7-2. Anyone working as a firefighter or volunteer firefighter is eligible to apply for membership. O.C.G.A. § 47-7-40(a)(1). "Upon becoming a member of the fund, the firefighter … shall receive credit only from the date of his or her becoming a member of the fund." O.C.G.A. § 47-7-40(a)(2). When a member of the fund terminates employment as a firefighter and withdraws from the fund,1 he will not be eligible for membership or benefits again unless he first re-applies for membership and pays a $100 reinstatement fee. "Upon reinstatement, such member shall be entitled to credit for service rendered after reinstatement to active membership in the fund but not for service prior to the date of reinstatement." O.C.G.A. § 47-7-41(b)(1). Official Code of Georgia Annotated section 47-7-87 provides that "[a]ny person who is a member of the [Firefighters' Pension Fund] on July 1, 2000, and who is at least 53 years old on that date shall be entitled to credit for prior eligible service, provided that" he or she satisfies certain requirements, which are as follows:

(1) The member or applicant for membership files with the board on or before September 1, 2000, an application for such credit in the form prescribed by the board; and

(2) At the time of application for credit, the member or applicant for membership pays to the fund for each month of prior eligible service credit sought an amount equal to the contributions that would have been made had the member or applicant been a member and entitled to credit during the period of prior eligible service, at the monthly contribution rate in effect at the time the application for credit is made, together with interest on such monthly amount from the date on which such contribution would have been made until the date of application for credit at a rate of 12 percent per year.

O.C.G.A. § 47-7-87(b). This Code section defines prior eligible service as "service (1) [r]endered by a member of the fund as a firefighter or volunteer firefighter; (2) [r]endered without interruption prior to the date such member became a member of the fund; and (3) [f]or which the member would otherwise have been eligible for credit if such member had been a member of the fund at the time such service was rendered; provided, however, that such term shall not include a period of more than five years of such service." O.C.G.A. § 47-7-87(a).

Of course, when interpreting statutes, one "must look for the intent of the legislature and construe statutes to effectuate that intent." City of Roswell v. City of Atlanta, 261 Ga. 657, 657 (1991). "[S]tatutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it [and] they are to be construed in connection and in harmony with the existing law. . . ." Wigley v. Hambrick, 193 Ga. App. 903, 905 (1989). "In all interpretations of statutes, the ordinary signification shall be applied to all words . . . ." O.C.G.A. § 1-3-1(b). Also, "[i]t is contrary to the generally accepted principles of construing statutes to 'read out' any part of the statute as 'mere surplusage' unless there is a clear reason for doing so." Porter v. Food Giant, Inc., 198 Ga. App. 736, 738 (1991).

The General Assembly has amended Chapter 7 of Title 47 of the Official Code of Georgia Annotated, which governs the Firefighters' Pension Fund, a number of times over the years. In 1989, the legislature amended O.C.G.A. § 47-7-41 to provide, in pertinent part:

(b)(2) Any member who, upon leaving work as a fireman or volunteer fireman, withdraws the dues which he has paid into the fund and again becomes a fireman or volunteer fireman at a later date shall be eligible upon application to the board for reinstatement of membership. Upon reinstatement, such member shall be entitled to receive credit for previous years of service rendered while an active member of the fund if he pays to the secretary-treasurer all the dues withdrawn, with interest on such amount at the rate of 6 percent per annum. If he fails to pay such amount with interest, he shall not be entitled to credit for service rendered prior to withdrawal of dues from the fund.

1989 Ga. Laws 339, 341. Under this provision, it appears that your constituent would have been entitled to apply for reinstatement and to purchase credit for previous years of service. In 1991, however, the legislature amended that statute again by "striking in its entirety Code Section 47-7-41 … and inserting in lieu thereof" the language that is still in effect today, providing in pertinent part: "Upon reinstatement, such member shall be entitled to credit for service rendered after reinstatement to active membership in the fund but not for service prior to the date of reinstatement." 1991 Ga. Laws 755, 763-64. Presuming, as is required, that the General Assembly enacted this amendment with full knowledge of the then-existing condition of the law, it seems clear that it was the intention of the legislature in 1991 not to allow firefighters who leave service and withdraw from the Firefighters' Pension Fund and then later return, to receive credit for their previous service.

In 1998, the General Assembly enacted O.C.G.A. § 47-7-85, which allows any firefighter who is a member of the Firefighters' Pension Fund on or after July 1, 1998, to receive credit for up to ten years of prior eligible service if that member "pays to the fund an amount sufficient to grant the creditable service authorized by this Code section without creating any actuarially determined accrued liability, as a result of granting such creditable service, against the fund . . . .” Prior eligible service is defined as service "(1) [r]endered by a member of the fund as a fireman or volunteer fireman; and (2) [f]or which the member would otherwise have been eligible for credit if such member had been a member of the fund at the time such service was rendered." 1998 Ga. Laws 148, 148-49. This definition does not require the service to have been uninterrupted prior to the firefighter's becoming a member of the fund.

In 2000, Senate Bill 267 was enacted, creating O.C.G.A. § 47-7-87 and allowing firefighters age 53 or older to receive credit for "prior eligible service," which must be service rendered without interruption prior to the date the firefighter becomes a member of the fund and for which the firefighter would otherwise have been eligible for credit if he or she had been a member of the fund at the time the prior service was rendered. 2000 Ga. Laws 1507, 1508. In order to resolve the situation in the question presented to me, it must be determined whether the General Assembly in 2000 intended for "service rendered without interruption prior to the date such member became a member of the fund" to include only a circumstance in which there was no interruption between the prior service and the first day of the firefighter's membership in the fund or whether it would include, as in the case presented, prior service that was uninterrupted at the time but ceased prior to the firefighter's becoming a member of the fund again. For the reasons that follow, I must conclude that the former was the legislature's intention. The requirement in O.C.G.A. § 47-7-87 that prior eligible service be uninterrupted prior to the beginning of membership in the fund is not included in the otherwise virtually identical definition of prior eligible service in O.C.G.A. § 47-7-85. Under the rules of statutory construction, I must conclude that this difference in the definitions was intentional and that this additional requirement in O.C.G.A. § 47-7-87 has meaning and is not "mere surplusage." Furthermore, the General Assembly indicated that it created O.C.G.A. § 47-7-87, in part, "to provide for creditable service for certain prior service." 2000 Ga. Laws 1507 (emphasis added). It was not created to provide credit for all prior service. Based on these considerations and the plain meaning of the words without interruption prior to the date such member became a member of the fund, I must conclude that, in order to qualify as prior eligible service under O.C.G.A. § 47-7-87, the firefighter's prior service must have occurred without any break in service before he became a member of the fund. To construe this language otherwise would be to disregard the legislature's intention to provide credit through this statute for only certain prior service rather than for all prior service, because all prior service could be said to have occurred without interruption for some period of time.

Construing all of these statutes in pari materia, it is my unofficial opinion that the provision of O.C.G.A. § 47-7-87 allowing firefighters age 53 or older to make payments to the Firefighters' Pension Fund in order to receive credit for prior eligible service was intended to allow those firefighters who apply for membership in the fund after they have already begun serving as a firefighter or volunteer firefighter to receive credit for service they have already rendered with no break in service prior to their applying for membership. It is, therefore, my unofficial opinion that a citizen who served as a firefighter and was a member of the Firefighters' Pension Fund from 1971 through 1984 and then resumed service as a firefighter and applied for reinstatement to the fund in 1992 is not eligible to receive pension credit pursuant to O.C.G.A. § 47-7-87 for his years as a firefighter prior to his break in service.

Prepared by:

CHRISTOPHER A. MCGRAW
Assistant Attorney General


 

1 A member of the fund is not required to withdraw immediately upon terminating his or her work as a firefighter. Such a member may request a leave of absence of up to two years and then an extension of that leave for up to two more years. O.C.G.A. § 47-7-41(a). This provision does not appear to apply to your constituent's situation as it is my understanding that he did not request such a leave of absence and that he did not work as a firefighter from 1984 through 1992, a period of eight years.