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Official Opinion 2001-2

Official Opinion 2001-2

March 5, 2001
To: 

Interim Director
Employees' Retirement System

Re: 

A member of the Judicial Retirement System who ceases to hold any office or position entitled to coverage in the system is vested with the right to spouses benefits if he or she has made employee contributions for such benefits for a minimum of ten years; however, the right to disability retirement benefits is conditioned upon the disability occurring while the individual is actively holding a position or office covered by the system.

I am writing in response to a request from your predecessor for advice about some of the provisions of the Act governing the Judicial Retirement System (hereinafter JRS). These questions, relating specifically to the rights for spouses’ benefits and disability benefits, arise as a result of an inquiry from a member who resigned his position as a superior court judge and wanted to ascertain the effect of his resignation on his benefits with the system. The two questions, followed by my analysis, are set out in this response in the paragraphs that follow those addressing my understanding of the particular factual scenario giving rise to the inquiry.

Your member is a former superior court judge who resigned his judgeship to accept an appointment to the federal bench. He was previously a member of the Superior Court Judges Retirement System (hereinafter SCJRS)1 until his membership was transferred into the Judicial Retirement System (hereinafter JRS)2 when that system was created in 1998, merging the various state retirement systems for judges and district attorneys. 1998 Ga. Laws 513. His transfer into JRS was provided for specifically by the provisions of O.C.G.A. § 47-23-40, which allowed him to transfer into JRS enjoying the same status he held in the SCJRS. During his membership in the SCJRS, he made the requisite contributions for spouses’ benefit coverage [O.C.G.A. § 47-9-73(a)] and continued those contributions upon his transfer to JRS [O.C.G.A. § 47-23-105(a)]. He was under age 60 at the time he resigned his superior court judgeship. At that time, he had made spouses’ benefit contributions for more than ten years. The questions posed relate to his continued entitlement to the specific rights of spouses’ benefits and disability retirement benefits in light of the fact that he is no longer a contributing member of the JRS.

“(1) A superior court judge who has paid for more than ten (10) years spouses’ benefits leaves state service under age 60. In the event of his death prior to retirement, does his spouse receive the spousal benefits?”

The answer to this question is yes. The provisions of JRS allow its members to make additional monthly contributions to provide for a distinct benefit to the member’s spouse which is payable only upon the death of the member. Spouses’ benefits are provided for in O.C.G.A. § 47-23-105. The conditions under which a spouse will be entitled to a benefit are provided for in paragraphs (2) through (4) of subsection (a) of O.C.G.A. § 47-23-105. All require the death of the member and the attainment of a minimum of ten years of creditable service by the member. Only paragraphs (2) and (3) are relevant to the particular factual scenario presented here.3 Paragraph (2) applies where the member has reached age 60 prior to leaving,4 while paragraph (3) applies where the member is under age 60.5 Paragraph (2) addresses the situation where a “member” dies while “retired,” but neither makes specific reference to the death of the “member” after he or she has not retired but has ceased making contributions to the retirement system as a result of leaving state service. It is my understanding the JRS staff has previously concluded that the use of the term “member” in these paragraphs, given its general use in retirement statutes, implies that they were only applicable to JRS members who were still actively contributing or retired at the time of death. This conclusion was bolstered by the fact that under paragraph (3), the amount of the benefit to which the spouse is entitled is based upon the assumption that “the member continued in service and retired at age 60.” O.C.G.A. § 47-23-105(a)(3) (emphasis added).

Moreover, the JRS statute does seem to contemplate more than one status of membership. Notably, O.C.G.A. § 47-23-40 specifically refers to the status of being an active, inactive, or retired member. However, unlike comparable state retirement system statutes, the term “member” is not specifically defined in the JRS statute. Compare O.C.G.A. § 47-23-1 with O.C.G.A. § 47-2-1(23) and O.C.G.A. § 47-3-1(15). Nor does the JRS have any specific provision that defines the conditions under which membership terminates.6 Compare with O.C.G.A. § 47-2-70(c) (membership in the Employees' Retirement System terminates upon retirement, withdrawal of contributions, or the failure to render one year of service as an employee in any period of five consecutive years) and O.C.G.A. § 47-3-60(e) (membership in the Teachers' Retirement System terminates upon the death of the member, retirement, withdrawal of contributions, or the failure to render one year of service as an employee in any period of five consecutive years). In fact, the only provision that references the right to remain a member is found in O.C.G.A. § 47-23-45 which ties the right of membership to holding any position or office covered by the retirement system.7 In the absence of specific statutory guidance on the use of the term “member” in this system or the predecessor SCJRS, the earlier determination was not unreasonable. However, the question must be considered in light of the further provision of O.C.G.A. § 47-23-105 found in subsection (e).

Subsection (e) of O.C.G.A. § 47-23-105 provides that “[i]n order to vest for spouses’ benefits, the member must have made the employee contributions for such benefits for at least ten years.” Although the predecessor system for superior court judges had comparable provisions for spouses’ benefits, the language of this subsection referring to vesting for spouses’ benefits is specific to the JRS. Compare O.C.G.A. § 47-23-105 with O.C.G.A. § 47-9-73. This reference to vesting is in addition to the separate statutory provision for the vesting of the right to receive benefits. See O.C.G.A. § 47-23-102 (“The right of a member to receive benefits under this chapter shall vest after the member obtains ten years of creditable service.”). The ordinary signification of the term “vest,” particularly in the context of defining retirement rights, would imply that the General Assembly specifically intended a member of JRS who made contributions for spouses’ benefits for ten years to hold that right without condition, including the condition of continuing to make contributions. See BLACK’S LAW DICTIONARY 1563 (6th ed. 1990) (where “vested” is defined as “fixed; accrued; settled; absolute.”). Because of the language in subsection (e) and its specific inclusion in the JRS statute, it is my view that the JRS member who has made contributions for spouses’ benefits for a minimum of ten years has a vested right to those benefits that he or she will carry even if he or she then ceases to hold an office or position requiring continued contributions to the system.8

“(2) Is the member eligible for disability benefits after ten (10) years service prior to retirement when not in service?”

The answer to this question is no. Again, I understand that the JRS staff has administratively determined that one is only eligible for disability retirement benefits if the disability occurs while the member is actively holding an office or position that creates the entitlement to membership in JRS. The conditions under which one is eligible for a disability retirement benefit under JRS are found in O.C.G.A. § 47-23-104.

The amount of the benefit varies depending on whether the member has four years [under subsection (a)] or ten years [under subsection (b)] of service at the time the disability occurs, but both subsections provide that the benefit is due only where the “member . . . becomes totally and permanently disabled to the extent that he or she is unable to perform the duties of his or her office.” O.C.G.A. § 47-23-104(a) and (b) (emphasis added). Moreover, subsection (c) provides as follows:

The disability of any member applying for disability retirement benefits shall be determined by the board in the same manner and under the same procedure as disability of state employees is determined in accordance with the applicable provisions of the Employees' Retirement System of Georgia. Disability retirement benefits shall become effective on the first day of the month following the month the member resigns as a result of the disability.

O.C.G.A. § 47-23-104(c) (emphasis added). Again, the answer to this question is complicated by the fact that the JRS has no specific provision defining “member” or what constitutes a general termination of membership. However, looking at the descriptive language otherwise used, I conclude that this statute contemplates that the member is holding the JRS covered office or position at the time the disability occurs.

First, the qualifying language in subsections (a) and (b) refers to one becoming “unable to perform the duties of his or her office.” O.C.G.A. § 47-23-104(a) and (b). Similarly, the effective date of the retirement is based on the date of “the member resign[ing] as a result of the disability.” Considering the plain meaning of these phrases and the use of the present tense in describing them, one must conclude that the General Assembly intended the member to be actively employed in the position or office which gave rise to the JRS membership at the time the disability occurred. See O.C.G.A. § 1-3-1(b). This conclusion is bolstered by the fact that the General Assembly also incorporated the “same manner” and “same procedure” used by the Employees' Retirement System in determining entitlement to disability applications. That system similarly requires a total and permanent disability from performing the duties of the position while the member is in service as an employee of the State of Georgia. See O.C.G.A. § 47-2-123(b). Had the General Assembly intended a different application, it would have included specific language specifying the distinction.

In conclusion, it is my official opinion that a member of the Judicial Retirement System who ceases to hold any office or position entitled to coverage in the system is vested with the right to spouses’ benefits if he or she has made employee contributions for such benefits for a minimum of ten years; however, the right to a disability retirement benefit is conditioned upon the disability occurring while the individual is actively holding a position or office covered by the system.

Prepared by:

SUSAN L. RUTHERFORD
Senior Assistant Attorney General


1 Codified at O.C.G.A. §§ 47-9-1 to 47-9-92 (repealed 1998).

2 Codified at O.C.G.A. §§ 47-23-1 to 47-23-124.

3 As stated in my preface, the individual about whom the inquiry is being made became a JRS member by operation of O.C.G.A. § 47-23-40, the section which authorized the transfer of all members of the SCJRS to the JRS. Paragraph (4), by its plain language, applies only to the persons “other than [those who became] member[s] by operation of O.C.G.A. § 47-23-40.” I eliminate discussion of paragraph (4) for the sake of brevity although I think the ultimate result is the same based on the reasoning set forth herein.

4 Paragraph (2) of O.C.G.A. § 47-23-105(a) provides:

Upon the death of a member who is subject to this subsection and who has attained a minimum of ten years of creditable service and at least 60 years of age, the surviving spouse of such member shall be entitled to receive for life a monthly sum equal to 50 percent of the retirement benefit which the member was receiving at the time of the member’s death, if retired at such time, or which would have been payable to the member had the member retired as of the date of the member’s death.

5 Paragraph 3 provides:

Upon the death of a member who became a member by operation of O.C.G.A. § 47-23-40 and who has attained a minimum of ten years of creditable service but had not attained age 60 at the time of death, the surviving spouse of such member shall be entitled to receive for life a monthly sum equal to 50 percent of the retirement benefit the member would have received had the member continued in service and retired at age 60.

6 Although O.C.G.A. § 47-23-83 references the “termination of membership,” by its plain language, it only addresses the situation where the individual does not vest in the system and withdraws his or her contributions. It does not generally provide guidance for the scope or status of one’s membership when one ceases to hold the position or office giving rise to the membership.

7 This code section specifically provides that “[a]ny member of this retirement system shall be entitled to remain as a member by holding any position or office covered by the fund and shall receive full credit for all service as a member despite his or her change from one position or office to another covered by the fund.” Presumably, this section was adopted in recognition of the fact that the JRS consolidated several retirement systems for judges of several courts and district attorneys where one might expect movement from one position to another that is still subject to membership in the same consolidated retirement system.

8 Notably, subsection (e) refers to the vested right of the member, not the vested right of the spouse. Therefore, this view is not in conflict with the provision from the SCJRS discussed in 1982 Op. Att’y Gen. 82-13.