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Official Opinion 2006-4

Official Opinion 2006-4

October 16, 2006
To: 

Director, Peace Officers’ Annuity and Benefit Fund

Re: 

O.C.G.A. § 47‑20‑50(a), which requires generally that retirement bills be concurrently funded, and section 2 of 2006 Ga. Laws 117, which requires a specific determination of concurrent funding regarding O.C.G.A. § 47‑17‑71 (Supp. 2006), do not repeal O.C.G.A. § 47‑17‑71 (Supp. 2006), which allows for the grant of creditable service to peace officers for service prior to January 1, 1976, if the officer was denied membership to the Peace Officers’ Annuity and Benefit Fund because of race or ethnicity.

This responds to the request of your Board of Commissioners for my official opinion whether O.C.G.A. § 47‑20‑50(a), which requires that retirement bills be concurrently funded, repeals the amendment to Article 5 of Chapter 17 of Title 47 allowing for the grant of credible service to peace officers for prior service prior to January 1, 1976, if the officer was denied membership to the Peace Officers’ Annuity and Benefit Fund because of race or ethnicity.

Article 5 of Chapter 20 of Title 47 governs the administration of public retirement systems and Article 5 of Chapter 17 of Title 47 addresses service credible toward the Peace Officers’ Annuity and Benefit Fund.  The latter was amended in the last legislative session, 2006 Ga. Laws 117,[1]  to create O.C.G.A. § 47‑17‑71, which provides:

(a) It is the intent of the General Assembly to provide for the grant of creditable service to any active member of the fund for each month of prior service as a peace officer rendered prior to January 1, 1976, if during such period the member was denied membership in the fund or was actively prevented from making such application because of his or her race or ethnicity.

(b) The board of trustees is authorized and directed to receive the applications of such members as would be eligible to receive creditable service . . . .

(c) A member . . . must make written application to the board of trustees during the six-month period from July 1, 2006[,] through December 31, 2006 . . . .

(d) As soon as practicable following the last day for application, the board of trustees shall cause the actuary for the fund to determine the amount of funding necessary to grant the creditable service to all members whose applications are accepted and approved in accordance without creating any actuarial accrued liability as to the fund, in accordance with the provisions of Chapter 20 of this title, the 'Public Retirement Systems Standards Law.’ A pro rata portion of one-half of such amount, determined by the number of months of credible service requested by each person, shall be assigned as such person’s employee contribution required to receive such creditable service.  The board of trustees shall notify each applicant of his or her pro rata share, and each such person shall pay such amount to the board of trustees not later than March 1, 2007, or thereafter be ineligible to receive such creditable service. During the regular 2007 session, the General Assembly may appropriate funds sufficient to cover one-half of the amount determined by the actuary as necessary to grant the creditable service, together with any portion of the total required employee contribution which was not received by the board of trustees from the applicants by March 1, 2007.

(e) The creditable service provided for in subsection (a) of this Code section shall be granted on July 1, 2007, only if the board of trustees receives the full amount determined by the actuary necessary to implement the provisions of this Code section. Otherwise, the board of trustees shall refund all amounts received from the members as employee contributions, together with regular interest thereon, and this Code section shall thereafter have no effect.

O.C.G.A. § 47‑20‑50(a) provides, however, that

[a]ny retirement bill having a fiscal impact which is enacted by the General Assembly and which is approved by the Governor or which otherwise becomes law shall become effective on the first day of July immediately following the regular session during which it was enacted, but only if the enacted bill is concurrently funded as provided by this Code section. If an enacted bill, including one approved by the Governor, is not concurrently funded as required by this Code section, then such bill may not become effective as law and shall be null, void, and of no force and effect and shall stand repealed in its entirety on the first day of July immediately following its enactment.

The General Assembly considered O.C.G.A. § 47‑20‑50(a) when drafting O.C.G.A. § 47‑17‑71 (Supp. 2006)in that section 2 of 2006 Ga. Laws 117, 119 provides:

This Act shall become effective on July 1, 2006, only if it is determined to have been concurrently funded as provided in Chapter 20 of Title 47 of the Official Code of Georgia Annotated, the "Public Retirement Systems Standards Law"; otherwise, this Act shall not become effective and shall be automatically repealed in its entirety on July 1, 2006, as required by subsection (a) of Code Section 47‑20‑50.

Any conflict between O.C.G.A. § 47‑20‑50(a) and O.C.G.A. § 47‑17‑71 (Supp. 2006) can be resolved by applying the rules of statutory construction.  The initial rule of statutory construction is to construe the law to implement the purpose and intention of the General Assembly in enacting the law.  The courts must “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”  O.C.G.A. § 1‑3‑1(a); see Thornton v. Clarke County Sch. Dist., 270 Ga. 633, 634 (1999); Wilson v. Bd. Of Regents, 246 Ga. 649, 650 (1980).  Statutes must be construed in relation to other statutes relating to the same subject matter and harmonized wherever possible.  Monticello, Ltd. v. City of Atlanta, 231 Ga. App. 382, 383-84 (1998).  The statutes should be construed to give a “sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.”  Id.  Furthermore, a specific statute governs over a more general statute when the statutes are in conflict.  Glinton v. And R, Inc., 271 Ga. 864, 866-67 (1999); First National Bank of Atlanta v. Sinkler, 170 Ga. App. 668, 670 (1984).

The legislative intent with respect to Article 5 of Chapter 17, as set forth in O.C.G.A. § 47‑17‑71(a) (Supp. 2006), is to “provide for the grant of credible service” for any peace officer denied membership to the Peace Officers’ Annuity and Benefit Fund “because of his or her race or ethnicity.”  Additionally, the courts may look at the caption of an act “to ascertain the legislative intent of a doubtful statute.”  Sikes, 268 Ga. at 21.  The caption of the Act provides that the intent is

to amend Article 5 of Chapter 17 of Title 47 of the Official Code of Georgia Annotated, relating to service creditable toward retirement under the Peace Officers’ Annuity and Benefit Fund, so as to provide a statement of legislative findings and intent; to provide that the board of trustees of such fund shall accept provisional applications for creditable service for certain prior service; to provide for proof that certain conditions were met; to provide for funding by the General Assembly; to provide for the payment and possible refund of employee contributions; to provide conditions for an effective date and automatic repeal; to repeal conflicting laws; and for other purposes.

2006 Ga. Laws 117 (emphasis added).  The caption shows that the intent of the legislature is for the board of trustees to collect “provisional applications” from the affected class of peace officers starting July 1, 2006.  The Act provides that applications will be received from the eligible peace officers from July 1, 2006, through December 31, 2006.  O.C.G.A. § 47‑17‑71(c) (Supp. 2006).  The Act also provides that the eligible officers will be contacted after December 31, 2006, and notified of the amount they must pay into the retirement fund to be eligible to receive benefits.  O.C.G.A. § 47‑17‑71(d) (Supp. 2006).  The eligible officers will have until March 1, 2007, to pay the amount.  Id.  During the 2007 session, the General Assembly may appropriate funds to cover the remaining cost of the retirement program.  O.C.G.A. § 47‑17‑71(d) and (e).  Thus, based upon the General Assembly’s clear statement of intent, O.C.G.A. § 47‑17‑71 (Supp. 2006) will not require any funding until the 2007 legislative session.

Any conflict between the statutes is resolved by construing the statutes together.  The provisions of O.C.G.A. § 47‑20‑50(a) protect against the enactment of retirement and pension plans for which there is no funding by requiring concurrent funding for “any retirement bill having a fiscal impact.”  The language in O.C.G.A. § 47‑17‑71 (Supp. 2006), however, neither requires concurrent funding nor guarantees future funding.  Instead, it merely creates a process to collect applications and payments from potentially eligible peace officers.  The Act plainly states that the credible service will only be awarded “if the board of trustees receives the full amount determined by the actuary necessary to implement the provisions of the Code section.”  O.C.G.A. § 47‑17‑71(e) (Supp. 2006).  Since O.C.G.A. § 47‑17‑71 (Supp. 2006) does not have a fiscal impact, O.C.G.A. § 47‑20‑50(a) does not repeal it.  O.C.G.A. § 47‑17‑71 (Supp. 2006) will only be repealed if the board of trustees does not receive sufficient participation and funds from eligible officers. [2]

Likewise, O.C.G.A. § 47‑17‑71 (Supp. 2006) is not repealed by section 2 of 2006 Ga. Laws 117, 119.  Section 2 mandates that the Act be “automatically repealed in its entirety on July 1, 2006, as required by . . . Code Section 47-20-50” unless the Act “is determined to have been concurrently funded as provided in . . . the "Public Retirement Systems Standards Law."  Subsection (d) of O.C.G.A. § 47‑17‑71 (Supp. 2006) also provides specifically that Board of Commissioners must commission its “actuary . . . to determine the amount of funding necessary to grant the creditable service . . . without creating any actuarial accrued liability . . . in accordance with . . . the ‘Public Retirement Systems Standards Law.’”  Under the well-established principles of statutory construction jurisprudence set out above, the statute must be read to give a “sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.”  Monticello, 231 Ga. App. at 383-84.  Reading the Act in its entirety, the intent of Section 2 is to prevent the law from having force from the beginning of the fiscal year unless the conditions required for concurrent funding of new benefits are satisfied.  That will occur if and when the amount appropriated and the amount contributed by applicants equals the amount determined by the actuary to be necessary for concurrent funding.

Therefore, it is my official opinion that O.C.G.A. § 47‑20‑50(a), which requires generally that retirement bills be concurrently funded, and section 2 of 2006 Ga. Laws 117, which requires a specific determination of concurrent funding regarding O.C.G.A. § 47‑17‑71 (Supp. 2006), do not repeal O.C.G.A. § 47‑17‑71 (Supp. 2006), which allows for the grant of creditable service to peace officers for service prior to January 1, 1976, if the officer was denied membership to the Peace Officers’ Annuity and Benefit Fund because of race or ethnicity.

Prepared by:

JULIE ADAMS JACOBS

Assistant Attorney General




[1] Act No. 458 (H.B. 101), (approved April 18, 2006). 

[2] This is consistent with the program as it stood before the amendment.  With respect to the program as a whole, the Board of Commissioners of the Peace Officers' Annuity and Benefit Fund is required to limit its annuity benefits to maintain actuarial soundness, specifically in regard to the standards of the “Public Retirement System Standards Law.”  O.C.G.A. §§ 47‑17‑26(a)(2), 47‑17‑80 (Supp. 2006).  The Fund receives revenue from member contributions and from fines and bond forfeitures.  O.C.G.A. §§ 47‑17‑44 (Supp. 2006), 47‑17‑60.  The program does not create a vested right; it is subject to legislative change and fund availability.  O.C.G.A. §§ 47‑17‑100, 47‑17‑101, 47‑17‑102; Prichard v. Bd. of Comm'rs of Peace Officers Annuity & Benefit Fund, 211 Ga. 57 (1954).