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Unofficial Opinion 99-4

Unofficial Opinion 99-4

September 21, 1999
To: 

Senator
District 16

Re: 

A teacher at a charter school, which is operated by a non-profit corporation as permitted by the Charter Schools Act of 1998, shall be a member of the Teachers Retirement System.

You have requested my opinion regarding "whether teachers at Georgia charter schools, which are operated by non-profit corporations as permitted under Georgia's Charter School Statute, are eligible to participate in the Teachers Retirement System." Having researched the relevant law, it is my unofficial opinion that such teachers shall be members of the Teachers Retirement System (hereinafter "TRS").

In 1943, the General Assembly created TRS "for the purpose of providing retirement allowances and other benefits . . . for teachers of this state." O.C.G.A. § 47-3-20; 1943 Ga. Laws 640. The TRS statute provides that "[a]ny person who becomes a teacher after January 1, 1944, shall become a member of the retirement system as a condition of his employment, except as otherwise provided in this chapter." O.C.G.A. § 47-3-60(a). It should be noted that by using the term shall, the statute requires public school teachers to be members of TRS rather than merely allowing them to join. "[I]n its ordinary signification, 'shall' is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission." State Ethics Comm'n v. Long, 223 Ga. App. 621, 626 (1996). A teacher is defined, in pertinent part, as:

Any of the following persons employed not less than half time by a public school:

(i) Persons who supervise the public schools; (ii) Classroom teachers; and (iii) Persons employed in a clerical capacity.

O.C.G.A. § 47-3-1(28)(A). In turn, a public school is defined as "any day school which is conducted within this state and which is under the authority and supervision of a duly elected county or independent board of education." O.C.G.A. § 47-3-1(21). Therefore, any person who becomes employed not less than half time as a school supervisor, a classroom teacher, or in a clerical capacity by a day school that is conducted within Georgia and is under the authority and supervision of a duly elected county or independent board of education becomes a member of TRS as a condition of his or her employment.

In 1998, the General Assembly enacted the Charter Schools Act of 1998, for the purpose of allowing local schools, private individuals, private organizations or other state or local entities to establish schools that are "subject to an academic or vocational performance based contract or academic and vocational performance based contract" that is "approved by both state and local boards of education, called a charter," and is exempt from "state and local rules, regulations, policies, and procedures and from the provisions of [Title 47] other than the provisions of [Title 47, Article 31]." O.C.G.A. § 20-2-2061; 1998 Ga. Laws 1080.

In order to create a charter school, one must submit a petition to a local school board and the State Board of Education, and this petition must, among other things:

Provide for the charter school to be subject to the control and management of the local board of the local school system in which the proposed charter school will be located, as provided in the charter and in a manner consistent with the Constitution.

O.C.G.A. § 20-2-2063(5). In addition, a charter school "shall be . . . a public, nonsectarian, nonreligious, nonprofit school which is also not home based" and "[s]ubject to the control and management of the local board of the local school system in which the charter school is located, as provided in the charter and in a manner consistent with the Constitution." O.C.G.A. § 20-2-2065(a)(1)-(2).

Black's Law Dictionary defines control as "power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee;" management as "[g]overnment, control, superintendence;" authority as "[p]ermission[; r]ight to exercise powers; to implement and enforce laws;" and supervise as "[t]o have general oversight over, to superintend or to inspect." Black's Law Dictionary 329, 960, 133, 1438 (6th ed. 1990). In this context, all four of these words are virtually synonymous. As a charter school must be "subject to the control and management of the local board of the local school system," therefore, it necessarily is also "under the authority and supervision of a duly elected county or independent board of education." See O.C.G.A. §§ 47-3-1(21); 20-2-2065(a)(2). A charter school, therefore, falls within the definition of a public school contained in the TRS statute. As a result, a teacher employed by a charter school is a member of TRS, and the charter school must remit contributions on his or her behalf to the TRS. See O.C.G.A. § 47-3-42.

It is my unofficial opinion, therefore, that a teacher at a charter school, which is operated by a non-profit corporation as permitted by the Charter Schools Act of 1998, shall be a member of the Teachers Retirement System.

Prepared by:

____________________________________ CHRISTOPHER A. MCGRAW
Assistant Attorney General