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Official Opinion 2010-5

Official Opinion 2010-5

October 7, 2010
To: 

Executive Director
Teachers Retirement System of Georgia

Re: 

Unless and until the General Assembly adopts clarifying legislation, it is within the sound discretion of the TRS Board of Trustees to determine whether teachers who are employed not less than half-time by commission charter schools must be members of the Teachers Retirement System.

You have requested my opinion concerning whether teachers at charter schools authorized by the Georgia Charter Schools Commission are required to enroll in the Teachers Retirement System of Georgia (“TRS”).   In your request letter, you indicate that it is TRS’s position that “employees of schools operated by the Georgia Charter Schools Commission are required to be TRS members as a condition of employment as they appear to be public employees employed in a public school.”  In prior advice to the State Superintendent for Schools on this question, this office pointed out that it appeared more likely than not that the legislature anticipated that commission charter school teachers would be members of the Teachers Retirement System, but that without clarifying legislation from the General Assembly it could not be definitively said that the law precludes alternative retirement options for these teachers.  Nevertheless, and because of the inconsistencies in current state law that are discussed below, it is my official opinion that unless and until the General Assembly adopts clarifying legislation it is within the sound discretion of the TRS Board of Trustees to determine whether teachers who are employed not less than half-time by commission charter schools must be members of the Teachers Retirement System.

In order to understand the TRS-related status of charter schools authorized by the Charter Schools Commission, it is important first to understand those schools’ status within the larger framework of charter schools in Georgia.  There are essentially three categories of charter schools: local charter schools, state chartered special schools, and commission charter schools.[1]   The schools you have asked about are known as commission charter schools. 

Local Charter Schools

The General Assembly provided for the establishment of local charter schools through the Charter Schools Act of 1998, codified in Article 31 of Chapter 2 of Title 20 of the Georgia Code.[2]   The statute created two methods by which a school could be subject to a charter, which would exempt the school from “state and local rules, regulations, policies, and procedures and the applicability of the provisions of [Title 20] other than the provisions of [Title 20, Chapter 2, Article 31].”  1998 Ga. Laws 1080, 1082, § 3.  The first method would accomplish this by converting a previously existing local school into a charter school and the second method would do so by creating a new school.  Id.  These two types of local charter schools are known as conversion charter schools and start-up charter schools, respectively.  O.C.G.A. § 20‑2‑2062(4) and (14).  A local charter school is defined as “a conversion charter school or start-up charter school that is operating under the terms of a charter between the charter petitioner and the local board.”  O.C.G.A. § 20‑2‑2062(7).  In regard to a local charter school, charter is currently defined as “a performance based contract between a local board and a charter petitioner, the terms of which are approved by the local board and the state board . . . .”  O.C.G.A. § 20‑2‑2062(1).[3]

In order to establish either a conversion or start-up local charter school, one must submit a petition to the board of education of the local county or independent school system.  O.C.G.A. § 20‑2‑2064.  If the local board approves the petition, it goes to the State Board of Education for its approval or denial.  O.C.G.A. § 20‑2‑2064.1(b).  If the State Board also approves the petition, a local charter school is established.

“In determining whether to approve a charter petition . . . , the local board and state board shall ensure that a charter school . . . shall be,” among other things, “[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, if a local charter school . . . .”  O.C.G.A. § 20‑2‑2065(b)(2).

Pursuant to O.C.G.A. § 20‑2‑2068.1, local charter schools receive their funding via sources that include, at least, Quality Basic Education (“QBE”) formula earnings and grants, non-QBE state grants, federal grants, and local revenue, and such funding is generally distributed by the local school board.

State Chartered Special Schools

“[A]pparently to address the problem of local systems’ refusing to approve charters even when they met the criteria set out in the Act,” the 1998 Act was amended in 2000[4] to authorize “the State Board, pursuant to the constitutional authority to create special schools, to grant a state charter when a petition meets the statutory requirements . . . and is in the public interest.”  2001 Op. Att’y Gen. 01‑9 (citing the 2000 version of O.C.G.A. § 20‑2‑2064(d); Ga. Const. 1983, Art. VIII, Sec. V, Para. VII; and 1998 Op. Att’y Gen. U98‑2).  The 2000 amendment provided for the establishment of state chartered special schools, which are now defined as “a charter school created as a special school that is operating under the terms of a charter between the charter petitioner and the state board.”  O.C.G.A. § 20‑2‑2062(16).  In regard to a state chartered special school, charter is currently defined as “a performance based contract . . .  between the state board and a charter petitioner, the terms of which are approved by the state board . . . .”  O.C.G.A. § 20‑2‑2062(1).

A state chartered special school may be established by the State Board of Education upon its approval of a proposed start-up charter school’s petition that has been denied by the local board.   O.C.G.A. § 20‑2‑2064.1(c).  A state chartered special school may not be established, however, from a petition for a conversion charter school that has been denied by the local board.  Id.

“In determining whether to approve a charter petition . . . , the local board and state board shall ensure that a charter school . . . shall be,” among other things, “[s]ubject to the supervision of the state board, as provided in the charter and in a manner consistent with the Constitution, if a state chartered special school . . . .”  O.C.G.A. § 20‑2‑2065(b)(3).

Pursuant to O.C.G.A. § 20‑2‑2068.1, state chartered special schools receive their funding via sources that include, at least, QBE formula earnings and grants, non-QBE state grants, and federal grants; and such funding is generally distributed by the local school board.

Commission Charter Schools

In 2008, the General Assembly enacted a new Article 31A to be added to Chapter 2 of Title 20 and created the Georgia Charter Schools Commission, which has the power to “[a]pprove or deny petitions for commission charter schools.” O.C.G.A. § 20‑2‑2083(a)(1); 2008 Ga. Laws 603.  Commission charter school is defined as “a charter school authorized by the commission pursuant to [Article 31A] whose creation is authorized as a special school pursuant to Article VIII, Section V, Paragraph VII of the Constitution.  A commission charter school shall exist as a public school within the state as a component of the delivery of public education within Georgia’s K-12 education system.”  O.C.G.A. § 20‑2‑2081(2).  Unlike with local charter schools and state chartered special schools, the statute does not specifically define charter in regard to commission charter schools.[5]

The process for the establishment of a new commission charter school begins with the submission of a petition for a start-up charter school to the pertinent local board or boards.[6]   Whether the petition is approved or denied by the local board(s), the petitioner may then apply to the Charter Schools Commission for approval of a commission charter school.  (If the petition is approved by the local board, the petitioner may also go forward with the creation of a local charter school rather than a commission charter school.)  O.C.G.A. § 20‑2‑2085(b).  The Charter Schools Commission’s decision may then be overruled by the State Board of Education.  O.C.G.A. § 20‑2‑2083(a)(1).

As discussed above, Article 31 contains specific provisions that require petitions for  charters to make clear that local charter schools will be “[s]ubject to the control and management of the local board of the local school system in which the charter school is located,” O.C.G.A. § 20‑2‑2065(b)(2), and that state chartered special schools will be “[s]ubject to the supervision of the state board.” O.C.G.A. § 20‑2‑2065(b)(3).  Neither Article 31 nor Article 31A, however, contains an equivalent provision that specifically explains the control, management, or supervision of commission charter schools.

Pursuant to O.C.G.A. § 20‑2‑2090, commission charter schools receive their funding from the Georgia Department of Education “through appropriation of state and federal funds [in] an amount equal to the sum of,” at least, QBE formula earnings and grants, federal grants, a proportional share of state grants, and amounts determined by the Charter Schools Commission to be equal to a proportional share of local revenue.

Teachers Retirement System

TRS was created “for the purpose of providing retirement allowances and other benefits under [Title 47, Chapter 3 of the Georgia Code] for teachers of this state . . . .”  O.C.G.A. § 47‑3‑20.  “Any 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 [Title 47, Chapter 3].”  O.C.G.A. § 47‑3‑60(a).[7]

The definition of teacher in the TRS statute includes:

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).  The definition also includes “[p]ublic school nurses who are employed on a regular basis as much as one-half time or more,” O.C.G.A. § 47‑3‑1(28)(B); school librarians, O.C.G.A. § 47‑3‑1(28)(C); “[a]dministrative officials who supervise teachers;” O.C.G.A. § 47‑3‑1(28)(D); and:

[f]ull-time public school lunchroom managers or supervisors, full-time public school maintenance managers or supervisors, full-time public school transportation managers or supervisors, and full-time public school warehouse managers or supervisors . . . .

O.C.G.A. § 47‑3‑1(28)(E). 

Also included in the TRS definition of teacher are certain employees of the Department of Education, O.C.G.A. § 47‑3‑1(28)(F), and “[a]ny bona fide teacher, supervisor of teachers, or clerical employee in any school operated by the Department of Education.” O.C.G.A. § 47‑3‑1(28)(G).[8]

In order to determine whether teachers at commission charter schools are to be members of TRS, therefore, it must be determined whether they meet this TRS definition of teacher.  I have previously opined that teachers at local charter schools are members of TRS.  1999 Op. Att’y Gen. U99-4.[9]   Because local charter schools are required to be subject to the control and management of the local board of education, they fall within the TRS definition of public school – “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).  Teachers at those schools, therefore, meet the definition of teacher in the TRS statute – “persons employed not less than half time by a public school” – and are consequently members of TRS.  Id. (citing, inter alia, O.C.G.A. § 47‑3‑1(21) and (28) and the 1998 version of O.C.G.A. § 20‑2‑2061).

The issue of whether teachers at commission charter schools meet the eligibility requirements for TRS membership, however, is not quite as clear.  Of course, “[i]n construing a statute, the cardinal rule is to glean the intent of the legislature.”  Goldberg v. State, 282 Ga. 542, 544 (2007) (quoting Alford v. PSC, 262 Ga. 386, 387 (1992)).  It is also “an elementary rule of statutory construction that statutes in pari materia” – that is, statutes that “relate to the same subject matter” – “be construed together.”  Snyder v. State, 283 Ga. 211, 214 (2008) (citing Mathis v. Cannon, 276 Ga. 16, 26 (2002)).  Furthermore, it must be presumed that the General Assembly enacted the statute in question with full knowledge of the existing law and with reference to it.  McPherson v. City of Dawson, 221 Ga. 861, 862 (1966).  To determine whether commission charter school teachers are “teachers” within the meaning of the TRS statute and thus members of TRS, therefore, we must attempt to glean the legislature’s intent by reading these in pari materia statutes harmoniously and with the understanding that the legislature had full knowledge of the current state of the law when it passed the most recent pertinent statute.

Having considered these statutes carefully, it is my view that the General Assembly likely intended that teachers at commission charter schools would be members of TRS.  I reach that conclusion because when it enacted Article 31A of Title 20 in 2008, the legislature was aware that the already existing TRS statute, at O.C.G.A. § 47‑3‑1(28)(A), provides that a teacher shall be a member of TRS if employed at least half-time at a public school.  When it drafted and enacted Article 31A in 2008, the legislature repeatedly indicated that commission charter schools are public schools.

In its codified legislative findings, the General Assembly explained: 

The General Assembly finds that: 

(1)  Charter schools are a critical component in this state’s efforts to provide efficient and high-quality schools within this state’s uniform system of public education;

(2)  Charter schools provide valuable educational options and learning opportunities while expanding the capacity of this state’s system of public education and empowering parents with the ability to make choices that best fit the individual needs of their children . . . .

O.C.G.A. § 20‑2‑2080(a).  In its definition of commission charter school, the legislature expressly declared: “A commission charter school shall exist as a public school within the state as a component of the delivery of public education within Georgia’s K-12 education system.”  O.C.G.A. § 20‑2‑2081(2).  The legislature also decreed that one of the Charter Schools Commission’s duties is to “[c]ollaborate with cosponsors for the purpose of providing the highest level of public education to all students . . . .”  O.C.G.A. § 20‑2‑2083(b)(12).  As a result, it is my opinion that the General Assembly likely intended to treat commission charter school teachers as teachers in public schools and thus as members of TRS.[10]

The issue, however, is complicated by the definition of public school contained within the TRS statute – “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).  Unlike local charter schools, commission charter schools do not appear to meet that definition because they do not appear to be under the authority and supervision of local boards of education.  For instance, whereas § 20‑2‑2065(b)(2) in Article 31 requires that a local charter school “shall be . . . [s]ubject to the control and management of the local board of the local school system,” there is no such requirement for commission charter schools in Article 31A.  As another example, although § 20‑2‑2068.1 indicates that a local charter school’s funding will be distributed by the local board, § 20‑2‑2090 indicates that a commission charter school’s funding will be distributed by the Department of Education.  Nevertheless, it is my opinion that the legislature’s intent as to commission charter schools is revealed by its more recent express pronouncements in Article 31A that commission charter schools are public schools.  To otherwise conclude that the legislature meant for commission charter schools to be public schools in Title 20 but not to be public schools in Title 47 would result in a contradictory, rather than a harmonious, reading of these in pari materia statutes.

Furthermore, to conclude that teachers at commission charter schools are not members of TRS would result in a situation wherein teachers at charter schools that are approved by local boards of education (local charter schools) would be required to participate in the state-run retirement system while their fellow teachers at charter schools that are approved by a state commission (commission charter schools) would not be allowed to participate in the state-run retirement system.  This disparate result would be illogical, and I have found no evidence to indicate that it was the legislature’s intent.

Given the inconsistencies in the law, I cannot say that the ultimate answer to your question is completely free from doubt.   I note, however, that the General Assembly has specifically stated that “[t]he Board of Trustees shall determine in doubtful cases whether any person is included within the definition [of teacher] set forth in [O.C.G.A. § 47‑3‑1(28)].”  O.C.G.A. § 47‑3‑1(28).  Furthermore, under appellate case law, because TRS has the duty of enforcing and administering the retirement statute, its interpretation of that statute is to be given great weight and deference.  See McKelvey v. Ga. Judicial Retirement Sys., 297 Ga. App. 650, 654 (2009) (quoting Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407, 408 (1993)).  Accordingly, it is my official opinion that unless and until the General Assembly adopts clarifying legislation, it is within the discretion of the TRS Board of Trustees to determine whether teachers who are employed not less than half-time by commission charter schools must be members of the Teachers Retirement System.

Prepared by:

CHRISTOPHER A. MCGRAW

Assistant Attorney General


[1]In addition, the State Board of Education may “enter into a charter with a local board to establish a local school system as a charter system.”  O.C.G.A. § 20‑2‑2063.2(a).

[2]The 1998 Act repealed the previous “Code Section 20‑2‑255, relating to petitions for charter school status.”  1998 Ga. Laws 1080, § 1.

[3]Charter was originally defined in the 1998 Act as “an academic or vocational performance based contract or an academic and vocational performance based contract between the state board, a local board of education, and a charter petitioner, the terms of which are approved by the local board of education and the state board.”  1998 Ga. Laws 1080, 1082, § 3.

[4]2000 Ga. Laws 618, 720, § 74.

[5]Section 20‑2‑2081 provides that the definitions set forth in § 20‑2‑2062 in Article 31 are also applicable to Article 31A, but the definition of charter in § 20‑2‑2062(1) does not define it specifically for purposes of commission charter schools whereas it does so for local charter schools, state chartered special schools, and charter systems.

[6]An already existing charter school may also apply to become a commission charter school.  O.C.G.A. § 20‑2‑2086.

[7]“[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).

[8]The definition of teacher also includes numerous other positions that are not pertinent here, such as employees of the Board of Regents of the University System and the Technical College System.

[9]Opinion U99‑4 refers only to “charter schools” in general because in 1999 the General Assembly had not yet amended Title 20 to create state chartered special schools or commission charter schools.

[10]As was indicated above, certain employees of the Department of Education (“DOE”) and employees of schools operated by the DOE are also eligible to be members of TRS, but it is my understanding that commission charter school staff are not employees of the DOE and that commission charter schools are not operated by the DOE.