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Official Opinion 2011-2

Official Opinion 2011-2

March 28, 2011
To: 

Executive Director
Teachers Retirement System

Re: 

Regional and county library employees paid solely with local funds are required to be members of the Teachers Retirement System.

This responds to your letter asking my opinion interpreting several statutes found within the Georgia Code which contain those statutory provisions related to the creation and operation of the Teachers Retirement System.  Specifically, you have requested my opinion whether regional and county library employees who are paid wages that consist of no state funds are eligible for membership in the Teachers Retirement System.  For the reasons that follow, it is my opinion that the membership of regional and county library employees in the Teachers Retirement System is not dependent upon the source of their wages.  Therefore, a regional or county library employee paid solely with local funds is required to be a member of the Teachers Retirement System.

The Teachers Retirement System was created by statute in 1943.  1943 Ga. Laws 640.  In the original statute, the definition of “teacher” did not include regional and county librarians or clerical workers.  In 1957, the statute was amended by adding to the definition of “teacher” and including regional and county librarians:

The word “teacher” shall also include regional and county librarians who are compensated in whole or in part from State funds.  Prior service of such librarians and other service for which such librarians have contributed to the Teachers’ Retirement System of Georgia is hereby ratified, subject to the same laws and the same rules and regulations applicable to other members of the System.

1957 Ga. Laws 118, 120.

Additionally, the statute was amended to provide that the individual boards of the county and regional libraries were to be deemed the “employer” for the purposes of administering the employer obligations to the Teachers Retirement System on behalf of its member librarians.

Notwithstanding any provisions in prior or future Acts to the contrary, the county and regional library boards or trustees shall be deemed to be the employer of the county or regional librarians, whose salaries are paid in full or in part from State funds, and said employer shall be subject to all provisions of the laws pertaining to the establishment and management of the Teachers Retirement System of Georgia in the same manner as any other employer designated in the Act.

1957 Ga. Laws 118, 120.

Therefore, in 1957 the definition of “teacher” included regional and county librarians and clearly specified that only such librarians “who are compensated in whole or in part from State funds” could gain membership in the Teachers Retirement System.  This limitation is clearly set forth in section 1 of the amendment.  Section 2 of the amendment sets forth no such limitation on the membership requirements of the librarians, but rather establishes the local county and regional library boards as the “employer” of the librarians for the purpose of administering the act.

In 1972, the statute was amended and the definition of “teacher” was changed with respect to regional and county librarians.  The statute was amended by striking the language “The word ‘teacher’ shall also include regional librarians who are compensated in whole or in part from State funds” and substituting in lieu thereof the following language:

The word “teacher” shall also include regional and county librarians and clerical personnel employed by such libraries.  The employer’s share on such retirement shall be paid from local funds on all salary amounts which are not paid from State funds.

1972 Ga. Laws 176, 177 (emphasis added).

Notably absent from the amended statute were the words “who are compensated in whole or in part from State funds.”  Instead, the legislature substituted more expansive language mandating the inclusion of regional and county librarians and their clerical personnel.  A plain reading of the amended statute leads to the conclusion that the legislature removed the limitation that such members must be compensated in some way by state funds.

Previously this office issued an official opinion answering in the negative whether regional and county librarians may elect to be members of local retirement systems in lieu of membership in the Teachers Retirement System.  The statutory basis for the opinion was the above-referenced 1972 amendment to the definition of “teacher”:

The word “teacher” as used in the 1972 amendment, quoted supra, must be given the meaning ascribed to it in the definition of “teacher” for purposes of the entire TRS Act.  Ga. Laws 1943, p. 640 et seq., as amended; Ga. Code Ann. § 32‑2901.  Accordingly, all regional and county librarians and clerical personnel employed by such libraries are “teachers” under the Act and are required to be members of TRS.

1975 Op. Att’y Gen. 75‑46 at 93 (emphasis added).   (See also 1978 Op. Att’y Gen. 78‑14 at 28 (“An opinion of this office interpreted that statute [1972 amendment] to mean that all employees of regional and county libraries were required to become members of TRS and could not at their option join a local retirement system.”)).

There has been only one amendment since 1972 concerning the status of regional and county librarians and clerical personnel.  In 1977, the statute was amended to allow regional and county library personnel who were then members of a local retirement system to opt out of membership in the Teachers Retirement System by January 1, 1978.  Pursuant to the statute, the election of such library personnel was to be made in writing to the Teachers Retirement System Board of Trustees.  The amendment further provided that any persons not making such an election in writing by the deadline “shall be members of the retirement system created by this Act [Teachers Retirement System].”  1977 Ga. Laws 1135, 1136.

With the passage of the 1972 and 1977 amendments to the definition of “teacher” striking the limiting language of the original 1957 law, the legislature made clear that all regional and county library personnel are to be members of the Teachers Retirement System.  It is therefore my opinion that regional and county library personnel are to be included in the membership of the Teachers Retirement System.

You have also asked whether the membership of regional and county library personnel who are not paid by state funds is contrary to the definition of “employer” found in O.C.G.A. § 47‑3‑1(12), specifically that portion which reads “[n]otwithstanding any provisions in prior or future Acts to the contrary, the county and regional library boards of trustees shall be deemed to be the employer of the county or regional librarians, whose salaries are paid in full or in part from state funds.”

I find no conflict between the two provisions of law.  As previously noted, the referenced language was part of the original 1957 amendment first establishing regional and county librarians as “teachers” under the statute.  The portion of the statute limiting membership to those librarians paid in whole or in part by state funds was enacted independently of this provision.  Further, the language itself, as originally written and as it appears in O.C.G.A. § 47‑3‑1(12), merely provides that a certain entity, the local library board, will be deemed the “employer” for purposes of the Act and will be responsible for administering the payment of contributions on behalf of its member employees.  The language in no way limits the membership in the Teachers Retirement System to only those regional and county library personnel who are paid in whole or in part by state funds.

Therefore, it is my official opinion that regional and county library employees paid solely with local funds are required to be members of the Teachers Retirement System.

Prepared by:

 

Bryan K. Webb

Senior Assistant Attorney General