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Official Opinion 93-12

Official Opinion 93-12

June 11, 1993
To: 

Director

Georgia Bureau of Investigation

Re: 

Act No. 538, adopted in the 1993 session, will allow an agent of the Georgia Bureau of Investigation who is eligible for involuntary separation retirement benefits to elect retirement or to continue his or her employment past the age of 55 and be entitled to the same projection in age and service which would have been available when that agent was required to retire at age 55 by operation of law. The 95% rule of O.C.G.A. § 47-2-124 does not apply to the calculation of retirement benefits under Act No. 538.

This is in response to your request for my advice regarding several questions about the effect of Act No. 538 (House Bill 750) and the retirement of law enforcement officers under the provisions of the Act governing the Employees Retirement System (hereinafter ERS).  In order to respond to your questions, it is necessary to review the history of the mandatory retirement provisions which apply to law enforcement officers.  For purposes of this opinion,  [*2]  I will address the various statutes only as they apply to agents of the Georgia Bureau of Investigation (hereinafter GBI), although they also apply to other state law enforcement officers.

In 1970, the General Assembly enacted what is now codified as O.C.G.A. § 47-2-223 requiring certain law enforcement officers to retire upon attaining age 55.  1970 Ga. Laws 26.  Under the mandatory retirement statute, it is provided that a person retiring subject to that section was entitled to:

receive the regular retirement benefits under this chapter, provided that he shall in any case receive a minimum monthly retirement benefit equal to 2 percent of his highest average compensation for each year of creditable service by filing an application therefor.

O.C.G.A. § 47-2-223(b).  In other words, the retiree could receive those benefits to which he or she was entitled under the ERS Act or "2 percent of his highest average compensation for each year of creditable service," whichever was greater.

One of the types of "regular retirement benefits" available under the chapter is involuntary separation retirement benefits -- those benefits available to an ERS member who is separated from [*3]  state service by other than his or her willing choice.  See O.C.G.A. § 47-2-123 and § 47-2-1(20).  Persons who were first employed by the state prior to March 31, 1972 and have a minimum of eighteen years and one month of creditable service under the ERS are eligible for involuntary separation retirement benefits. See O.C.G.A. § 47-2-123(a) and (c).  Previously, this office opined that mandatory retirement was an involuntary separation by operation of law and therefore affected personnel of the GBI who were forced to retire by reason of this 1970 Act would be entitled to involuntary separation retirement benefits, assuming that they otherwise met the requirements for those retirement benefits. Op. Att'y Gen. U72-36.  It is the involuntary separation retirement benefit calculations which have enabled agents of the GBI to receive what you have referred to as "the projection" and the "27 year, 7 month" rule -- not the provisions of the mandatory retirement statute.

The calculation of involuntary separation retirement benefits allows for a projection in age and service.  The calculation of involuntary separation retirement benefits is graduated by three distinct levels [*4]  based on the number of years of creditable service at the time of the involuntary separation.  A person with twenty years of service receives an allowance which is equivalent to 100% of the service retirement allowance to which he or she would have been entitled at age 60; a person with twenty five years is entitled to 75% of the service retirement allowance at age 65; and, an ERS member with thirty years of creditable service who is involuntarily separated receives 100% of the service retirement allowance to which one would be entitled at age 65.

Additionally, the calculation of involuntary separation retirement benefits is also subject to what is commonly referred to as the 95% Rule.  Codified as O.C.G.A. § 47-2-124, the 95% Rule provides that "a member who is serving in the year which represents 95 percent of the required time for vesting of benefits under Code Section . . . 47-2-123 shall be deemed to qualify for the required number of years." The ERS has interpreted this provision to apply to the calculation of involuntary separation retirement benefits to reduce the year requirements from 20, 25 and 30 years referenced above to 18 years and 1 month, 22 years and ten months [*5]  and 27 years and 7 months respectively.  See Op. Att'y Gen. U76-9.  In other words, prior to the recent amendment, by operation of O.C.G.A. § 47-2-123(c)(4) and O.C.G.A. § 47-2-124, an agent of the GBI, who was hired prior to March 31, 1972 and has 27 years and 7 months and who is required by O.C.G.A. § 47-2-223 to retire at age 55, is entitled to receive a retirement benefit equal to 100% of that benefit which he or she would have been able to draw at age 65.

As you know, Act No. 538 was enacted in response to the December 31, 1993 expiration date of the exemption which excludes mandatory retirement for law enforcement positions from scrutiny under the provisions of the Age Discrimination in Employment Act. Compare 29 U.S.C. § 623(4)(j)(1986) with Pub. L. 99-592, § 3(b).  On its face, it was designed to allow a retiring law enforcement officer to draw the same type and amount of retirement benefit as that provided when previously required to be retired at age 55.

By it specific language, Act No. 538 applies to all the law enforcement officers who are members of the ERS and were subject to the mandatory retirement provision.  Compare Act No. 538 with O.C.G.A.  [*6]  §§ 47-2-110 and 47-2-223.  As to those persons, it further provides as follows:

47-2-111(a) . . .  any member . . . who is subject to the involuntary separation provisions of Code Section 47-2-123 and who retires upon or after attaining the age of 55, whether or not such age is required by law, shall upon application receive a retirement allowance . . . [which is determined by the number of years of creditable service accrued by the member at the time of retirement].

Act No. 538.  The calculation of a retirement allowance under the new Act is set up on three graduated levels according to the number of years of service accrued by the member at the time of retirement -- 20, 25 and 30 years.  Subparagraphs (a)(1) through (a)(3) of new section O.C.G.A. § 47-2-111 are identical to subparagraphs (c)(2) through (4) of O.C.G.A. § 47-2-123, the involuntary separation statute.

Act No. 538 further provides as follows:

Any other provision of this chapter to the contrary notwithstanding, any [covered law enforcement employee] member . . . shall be eligible to retire at age 55 if he or she has the minimum number of years of creditable service provided in Code Section 47-2-110, and upon [*7]  retirement such member shall be paid not less than the service retirement allowance which would have been payable to such member upon service retirement at age 65 without a change in compensation and with the same number of years' creditable service to which such member is entitled at the time of retirement.

Act No. 538, section (b).

With this background in mind, your first question is:

Does an employee have an option as to whether they stay past the mandatory 55 retirement date, or does the state continue to require the employee to retire at age 55 until the federal law expires?

Act No. 538 will go into effect on July 1, 1993.  It does not specifically repeal the mandatory retirement provision of O.C.G.A. § 47-2-223.  While repeals by implication are generally disfavored, Freeman v. Ryder Truck Lines, Inc., 244 Ga. 80 (1979), the 1993 amendment does provide that "[a]ll laws and parts of laws in conflict with this Act are repealed." Act No. 538 (1993).  Moreover, it is a well established rule of statutory construction that where two acts are clearly repugnant, the second in time controls and a repeal of the first is implied, but only insofar as the two are in irreconcilable [*8]  conflict." Evans v. Evans, 242 Ga. 57 (1978); Sprayberry v. Wyatt, 203 Ga. 27 (1947). The 1993 amendment provisions regarding the retirement of law enforcement officers apply to covered law enforcement officers who are defined as those "eligible to retire at age 55" and those "who retire upon or after attaining the age of 55, whether or not retirement at such age is required by law" are in direct conflict with the provisions of the mandatory retirement statute mandating retirement at that age.  Additionally, the express language of the amendment is to provide for voluntary retirement by covered law enforcement officers, presumably in recognition of the encroaching repeal of the exemption for mandatory retirement for law enforcement officers under the Age Discrimination in Employment Act. As a result, the only construction which would allow one to give harmony and sense to the amendment would be to deem the mandatory retirement statute to have been repealed to the extent that it conflicts with the voluntary retirement provisions of this amendment.  See Houston v. Lowes of Savannah, Inc., 235 Ga. 201 (1975) (A "statute must be viewed so as to make all its parts harmonize [*9]  and to give sensible and intelligent effect to each part").  In other words, the state can no longer require an agent of the GBI to retire at age 55 if he or she chooses to continue his or her employment past age 55.

You next ask:

If an employee stays past age 55 and for 30 years, do they still get the projection given under the mandatory retirement?

As I have previously stated, the "projection" in age and service was a part of the calculation of benefits under the involuntary separation statute -- not the mandatory retirement statute.  Therefore, the projection to which you refer would only be available to an agent who was eligible for involuntary separation retirement benefits and who was required to retire at age 55.  However, with that provisio, the answer to your question is yes.

Once an agent is no longer required to be retired as a matter of law at age 55, the retirement of an agent is no longer an involuntary separation as a matter of law. See Op. Att'y Gen. U72-36.  Clearly, in passing Act No. 528, it was the intention of the General Assembly to allow agents who could no longer be required to retire at age 55 to be able to draw the same types of retirement [*10]  benefits otherwise available to them.  To accomplish this, the General Assembly adopted what is now signed as Act No. 538 and adopted the same 20, 25 and 30 year graduated scale of calculation from the involuntary separation statute so that any benefits calculated under the new section, O.C.G.A. § 47-2-111 would be subject to the same projections in age and service as those benefits calculated under the involuntary separation provisions of O.C.G.A. § 47-2-123(c)(2) through (4).  Compare Subparagraphs (a)(1) through (3) of O.C.G.A. § 47-2-111 of Act No. 538 with O.C.G.A. § 47-2-123(c)(2)-(4).

Those agents of the GBI who are not entitled to involuntary separation benefits will be eligible for a projection in age under Act No. 538 if they elect to retire at age 55.  Act No. 538, section b.

Finally, you ask:

Does the employee lose the 27 year, 7 month rule that is a part of mandatory retirement?"

Yes.  Again, "the 27 year, 7 month rule" resulted from the application of the 95% Rule of O.C.G.A. § 47-2-124 to the calculation of involuntary separation retirement benefits. By the plain language of O.C.G.A. § 47-2-124, it only applies to the calculations of benefits pursuant [*11]  to O.C.G.A. § 47-2-122 and O.C.G.A. § 47-2-123.  O.C.G.A. § 47-2-124.  Therefore, it would not apply to calculations of benefits under Act No. 538 which will be codified as O.C.G.A. § 47-2-111.

In sum, it is my official opinion that Act No. 538 will allow an agent of the Georgia Bureau of Investigation who is eligible for involuntary separation retirement benefits to elect retirement or to continue his or her employment past the age of 55 and be entitled to the same projection in age and service which would have been available when that agent was required to retire at age 55 by operation of law. It is my further opinion that the 95% rule of O.C.G.A. § 47-2-124 does not apply to the calculation of retirement benefits under Act No. 538.

Prepared by:

SUSAN L. RUTHERFORD,

Senior Assistant Attorney General