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Official Opinion 2003-2

Official Opinion 2003-2

January 10, 2003
To: 

Commissioner
Georgia Merit System

Re: 

Employees of community service boards hired after July 1, 1996, are not in the classified service of the State Merit System.

You have requested my opinion on whether employees of community service boards hired after July 1, 1996, are included in the State Merit System’s classified service. Specifically, you seek reconciliation of the language in O.C.G.A. § 37-2-6.1(b)(7) that “each employee of [a community service board] shall be a covered employee as defined in Code Section 45-20-2, subject to the rules and regulations of the state merit system” with the language of O.C.G.A. § 45-20-2(15)(EE) which excludes from the State Merit System classified service those employees who are employed in “[a]ll positions filled on or after July 1, 1996 ….”

Since there are two statutory schemes involved, State Merit System and community service boards, each will be discussed separately and then reconciled.

State Merit System

The State Merit System is a system of personnel administration which performs functions for employees of state departments in both unclassified and classified service. O.C.G.A. §§ 45-20-1; 45-20-3(b)(2). As of July 1, 1996, the State Merit System underwent a significant change when the General Assembly mandated that “all positions filled after July 1, 1996, shall be included in the unclassified service of the state merit system ….” O.C.G.A. § 45-20-1(a). This was a result of the General Assembly’s intent to “allow[] agencies greater flexibility in personnel management so as to promote the overall effectiveness and efficiency of state government.” O.C.G.A. § 45-20-1(a).

Under the State Merit System, a covered or classified employee is defined as an “employee subject to the rules and regulations of the state merit system.” O.C.G.A. § 45-20-2(5). Similarly, a covered or classified position “means a position subject to the rules and regulations of the state merit system.” O.C.G.A. § 45-20-2(6).

Classified service under the State Merit System consists of “all positions filled by agencies prior to July 1, 1996, except those included by law in the unclassified service and except as provided in Code Section 15-11-24.3.”1 O.C.G.A. § 45-20-6(a); see also O.C.G.A. § 45-20-2(2). Unclassified service consists of “all positions in the departments of state government not included in the classified service under this article….” O.C.G.A. § 45-20-6(b); see also O.C.G.A. § 45-20-2(15)(EE)-(GG).

Currently, the most significant distinguishing factor between employees in classified and unclassified service is that only employees in the classified service are provided a formal statutory review process, generally in the form of a hearing, upon dismissal or other adverse action related to their employment. O.C.G.A. §§ 45-20-8(a); 45-20-9.2

Community Service Boards

In 1994, community service boards became state departments for purposes of the State Merit System. See 1993 Ga. Laws 1445, 1479-80, 1489 (codified at O.C.G.A. § 37-2-6.2(a)(Supp. 2002): O.C.G.A. § 45-20-2(2), (7). With respect to community service board employees, O.C.G.A. § 37-2-6.1(b)(7) (Supp. 2002) provides that “[e]ach community service board shall comply with the provisions of Chapter 20 of Title 45, relating to state personnel administration, and each employee of such board shall be a covered employee as defined in Code Section 45-20-2, subject to the rules and regulations of the state merit system ….”

The General Assembly recently amended O.C.G.A. § 37-2-6.1 to provide that “[e]ach community service board may contract with the State Merit System of Personnel Administration regarding its personnel who remain in the classified service.” O.C.G.A. § 37-2-6.1(b)(14) (Supp. 2002) (emphasis added).

Reconciliation

Since both statutory schemes at issue address the State Merit System, they must be read in pari materia by construing and harmonizing the statutes together to “ascertain the legislative intendment,” especially since “the terms of the statute to be construed are ambiguous.” Ryan v. Commissioners of Chatham County, 203 Ga. 730, 731-32 (1948). The ambiguity lies in the use of the phrase “covered employees” in the community service board statutes and the use of “classified service” and “classified position” in the State Merit System statutes.

Whether a position is classified under the State Merit System depends upon two things: (1) the position itself and (2) the time the position was filled. Official Code of Georgia Annotated § 45-20-6(a) specifies that classified service consists “of all positions filled by agencies prior to July 1, 1996, except those included by law in the unclassified service and except as provided in Code Section 15-11-24.3.” (Emphasis added.) Likewise, O.C.G.A. § 45-20-6(b) specifies that unclassified service consists of “all positions in the departments of state government not included in the classified service.” (Emphasis added.)

Official Code of Georgia Annotated § 45-20-2(15)(GG) further supports the interpretation that classification under the State Merit System depends upon the position and time it is filled, not upon the employee occupying that position, by mandating that classified employees who, after July 1, 1996, accept employment in an unclassified position become employees in the unclassified service. See also 1981 Op. Att’y Gen. 81-47, 1987 Op. Att’y Gen. 87-35.3

The community service board statutes establish that “each employee [of a community service board] shall be a covered employee as defined in the Code Section 45-20-2, subject to the rules and regulations of the state merit system.” O.C.G.A. § 37-2-6.1(b)(7) (emphasis added). Moreover, the community service board statutes do not contain any language making any new or filled position after July 1, 1996, a position in the classified service of the State Merit System.4

Because the statutes creating community service boards do not specify that all positions are to be in the classified service, the conclusion is that, consistent with the State Merit System statute, all new or filled community service board positions after July 1, 1996, are in the unclassified service.

This interpretation is further supported by the recent amendment to the community service board statute, O.C.G.A. § 37-2-6.1(b)(14), which states that “[e]ach community service board may contract with the State Merit System of Personnel Administration regarding its personnel who remain in the classified service.” (Emphasis added.) Since the General Assembly is deemed to know existing legislation, the use of the word “remain” acknowledges the changes in the classification of employees in the State Merit System after July 1, 1996. See Abernathy v. City of Albany, 269 Ga. 88, 89-90 (1988); Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93 (1985). Moreover, the recent amendment is a clear indication of the General Assembly’s intent that not all community service board employees are in the classified service. See Meinken v. Burgess, 262 Ga. 863, 865 (1993).5

Accordingly, it is my conclusion that community service board employees hired after July 1, 1996, are not employees in the classified service of the State Merit System.6

Prepared by:

KIRSTEN S. DAUGHDRIL
Assistant Attorney General


1 O.C.G.A. § 15-11-24.3(d) provides that “[p]ersons who were probation and intake employees of the juvenile court of a county on June 30, 1996, … shall be covered employees in the classified service of the state merit system.”

2 O.C.G.A. § 45-20-6(d) provides that “employees in the classified service [are] required to serve a working test period before they obtain merit system protection ….” Pursuant to O.C.G.A. § 45-20-8, permanent status employees may be dismissed or have other adverse action related to their employment only if such action is taken in accordance with the rules and regulations of the State Personnel Board. Permanent status employees are those employees who have successfully competed a working test period. O.C.G.A. § 45-20-2(9). Accordingly, since only “employees in the classified service” are required to serve and complete a working test period, it is only employees in the classified service who are subject to due process in relation to their dismissal or other adverse action related to their employment.

3But see O.C.G.A. § 45-20-17 (providing that certain employees participating in interdepartmental transfers may retain “permanent status rights”).

4Cf. O.C.G.A. § 15-11-24.3 (expressly designating certain juvenile court employees transferred after June 30, 1996, to be “covered employees in the classified service”).

5 This interpretation is also consistent with the rule of statutory construction that laws in derogation of the common law, such as the State Merit System, must be strictly construed. See 1981 Op. Att’y Gen. 81-47.

6 The Georgia Supreme Court’s statement in Youngblood v. Gwinnett Rockdale Newton Community Service Board, 273 Ga. 715, 716 n.2 (2001) that “[community service board] employees are subject to the State Merit System rules and regulations in regard to employment and dismissal” is not in conflict with this conclusion. The issue in Youngblood was whether community service boards were state agencies for purposes of the Georgia Tort Claims Act. Youngblood, 273 Ga. at 716. In comparing community service boards with other state agencies, the court noted that community service board employees were subject to the State Merit System; however, the Court did not distinguish between those employees hired by community service boards before and after July 1, 1996, as that was not the issue.