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Official Opinion 2001-6

Official Opinion 2001-6

August 27, 2001
To: 

Commissioner
Department of Technical and Adult Education

Re: 

The Board of Technical and Adult Education cannot, without approval of the Employee Benefit Plan Council, extend to all departmental employees the benefit options allowed for former employees of local boards of education or the area postsecondary technical education boards under O.C.G.A. § 20-4-29.

This is in response to your request for an opinion regarding whether the Board of Technical and Adult Education can make benefits uniform throughout the Department of Technical and Adult Education by offering all employees of the Department a selection of benefits which only some of the department employees now have. It is my opinion that the Board of Technical and Adult Education cannot, without approval of the Employee Benefit Plan Council, extend to all departmental employees the benefit options allowed for former employees of local boards of education or the area postsecondary technical education boards under O.C.G.A. § 20-4-29.

This situation developed as a result of the formation of the Board and Department of Technical and Adult Education as a new state board and department in 1988. O.C.G.A. §§ 20-4-10 and -14. At that time, the technical institutions were generally governed under local boards of education and thus had to convert to state ownership. Because of this conversion, there were statutory provisions enacted permitting the local board employees to choose options regarding their salary and benefits. O.C.G.A. § 20-4-29. One option was to retain the salary and benefits offered under the local boards of education as long as the benefits could be attained for comparable or less cost by the Department of Technical and Adult Education. O.C.G.A. § 20-4-29(1). The other option was to elect the salary and benefit plan available to state employees. O.C.G.A.§ 20-4-29(2).

As an example of the difference in benefits, some employees who elected to retain the salary and benefits of their former local boards now have cancer insurance or other specified disease insurance which is not offered to state employees through the state benefit package. Your request for an opinion is whether the Board of Technical and Adult Education can make the offer of these benefits uniform throughout the Department. The answer is no for the reasons outlined below.

The Board of Technical and Adult Education has broad powers enumerated in O.C.G.A. § 20-4-11, including the power to establish “salaries, salary supplements, tuition and fees . . . .” However, the Employee Benefit Plan Council is given the specific authority to establish the state employees’ flexible benefit plan. O.C.G.A. § 45-18-52(a). In addition, any “[n]ew optional employee benefit plans or any contracting with new or additional insurers under existing plans that authorize the deduction or reduction of voluntarily designated amounts, including insurance, from the salaries of the full-time employees must be approved by the council after January 1, 1986 . . . .” O.C.G.A. § 45-18-54(a).

Therefore, it is the clear statutory duty and obligation of the Employee Benefit Plan Council to determine and approve which employee benefits are made available to state employees.1 In summary, the Board of Technical and Adult Education cannot, without approval of the Employee Benefit Plan Council, extend to all departmental employees the benefit options allowed for former employees of local boards of education or the area postsecondary technical education boards under O.C.G.A. § 20-4-29.

Prepared by:

CAROL A. CALLAWAY
Senior Assistant Attorney General


1 1982 Op. Att’y Gen. 82-79 analyzes a different employee option and addresses constitutional issues. A constitutional analysis is unnecessary in this opinion, however, because the statutory provisions do not raise constitutional issues.