2020 Georgia Code
Title 47 - Retirement and Pensions
Chapter 2 - Employees' Retirement System of Georgia
Article 7 - Retirement Allowances, Disability Benefits, Spouses' Benefits
§ 47-2-123. Allowance Payable Upon Death, Disability, or Involuntary Separation From Employment; Restrictions on Separation for Disability; Restrictions on Entitlement to Involuntary Separation Benefits

1. Upon the death or involuntary separation from employment without prejudice of any member in service, he or she shall be entitled to an allowance in accordance with subsection (c) of this Code section, provided that the provisions of this subsection that relate to "upon becoming involuntarily separated from employment without prejudice" shall not be applicable to any person who first becomes a member after March 31, 1972.
2. 1. Subject to the provisions of paragraphs (2) through (5) of this subsection, any member in service who has at least 15 years of creditable service may be retired on a disability allowance by the board of trustees, upon written application to the board of trustees by the member or his or her employer and upon certification by the medical board that he or she is medically or physically incapable of further performance of his or her duties in the position he or she held at the time his or her disability originated, that incapacity is likely to be permanent, and that he or she should be retired; provided, however, that the medical board shall not consider any evidence of such disability which is not submitted within 12 months after the date the member submits his or her first application for a disability retirement. The board of trustees may retire such member not less than 30 days nor more than 90 days after execution and filing of the written application.
   2. A member making application for a disability retirement pursuant to paragraph (1) of this subsection shall at the same time submit a copy of such application together with any supporting documentation accompanying such application to his or her employing agency. The member shall thereafter provide the employing agency with any additional information or documentation which he or she submits to the board of trustees in conjunction with such application.
   3. After receipt of the notice provided for in paragraph (2) of this subsection, the head of the member's agency or his or her designee shall conduct an interview with the member applying for disability retirement; provided, however, that any designee of the head of an agency shall be an official at such agency who is above the level of the applicant's immediate supervisor and who has the authority to make job assignment decisions. The interview shall be held within ten business days after receipt of such notice. Based on the interview and information received by the agency pursuant to paragraph (2) of this subsection, the agency head or his or her designee shall determine if an alternative position is available for the member which meets the following requirements:
      1. The physical requirements for such position are compatible with the member's physical limitations;
      2. The annual compensation and possibility for future advancement for such position shall be the same as or greater than that of the current position of the member;
      3. The duties for such position shall be reasonably compatible with the experience and educational qualifications of the member;
      4. The position shall be one which includes the holder thereof as a member of the retirement system provided for by this chapter; and
      5. The position must be available for acceptance by the member and an offer of the position to the official or member must be made, in writing, by not later than 45 days after the member submitted his or her application for a disability retirement.

         An agency making an offer of alternative employment as provided in this paragraph shall so notify the board of trustees within 45 days after the member submitted his or her application for a disability retirement. After receipt of such notice, the board of trustees shall not approve a disability retirement until the procedures of paragraph (4) of this subsection are resolved.

   4. Any member applying for a disability retirement who is offered a position of employment in conformity with the requirements of paragraph (3) of this subsection shall accept the offer or dispute his or her ability to perform the tasks required by the position offered by submitting a written appeal to the agency and to the board of trustees within 30 days after receiving the offer. In the event of an appeal, the agency shall promptly submit to the medical board a detailed description of the requirements of the position offered and the medical board shall determine, based upon all information available to it, whether the member is reasonably capable of performing such tasks. The decision of the medical board shall be final. If the medical board determines that the member is unable to perform the tasks required either by the position held at the time of the application for a disability retirement or the position offered, the member shall be placed on disability retirement immediately.
   5. A member who refuses to accept a position offered or file an appeal in a timely manner or who refuses to accept a position which the medical board has determined on appeal that he or she is capable of performing shall not be eligible to receive a disability retirement under this subsection.
3. 1. The provisions of this paragraph shall apply only to persons who are members of the retirement system on June 30, 2007. Any member who is at least 60 years of age upon disability retirement, involuntary separation from employment without prejudice, or death shall receive the equivalent of a service retirement allowance. Any such member who is under 60 years of age shall receive, as appropriate, a disability allowance, allowance in case of involuntary separation from employment without prejudice, or death allowance, which shall consist of:
      1. In the case of a member with at least 15 years of service, 75 percent of the service retirement allowance which would have been payable upon service retirement at age 60 had the member continued in service to age 60 without further change in compensation, provided that this subparagraph shall not apply to a member whose employment was terminated by involuntary separation without prejudice;
      2. In the case of a member with at least 20 years of service, the service retirement allowance which would have been payable upon service retirement at age 60 had the member continued in service to age 60 without further change in compensation;
      3. In the case of a member with at least 25 years of service, 75 percent of the service retirement allowance which would have been payable upon service retirement at age 65 had he or she continued in service without further change in compensation; or
      4. In the case of a member with at least 30 years of service, the service retirement allowance which would have been payable upon service retirement at age 65 had he or she continued in service without further change in compensation.

         Any provisions of this chapter to the contrary notwithstanding, in the application of subparagraphs (A), (B), (C), and (D) of this paragraph relating to allowances other than for disability or death, projected retirement allowance computations shall be made on the basis of the member's highest total monthly earnable compensation, as reflected by monthly contributions made during the last 24 calendar months in which he or she had made contributions, except that no salary increase by adjustment in compensation in any manner in excess of 10 percent during the last 12 months of membership service shall be included in the projected computation.

   2. The provisions of this paragraph shall apply only to persons who first or again become members of the retirement system on or after July 1, 2007. Any member who has at least 15 years of creditable service and who becomes disabled before becoming eligible for a service retirement as provided in subsection (a) of Code Section 47-2-110 shall be eligible to retire forthwith without regard to age and to receive a disability retirement allowance calculated upon the number of years of creditable service attained to the date of retirement and based upon his or her highest average monthly compensation during a period of 24 consecutive calendar months while a member of the retirement system. No member who is eligible for an equivalent service retirement shall be eligible to apply for a disability retirement allowance.
   3. In lieu of a death benefit as provided in paragraph (1) of this subsection, a member who first or again becomes a member of the retirement system on or after July 1, 2007, and who has at least ten years of creditable service and is at least 60 years of age or who is less than 60 years of age and has at least 15 years of creditable service shall upon death receive the equivalent of a service retirement allowance calculated upon the number of years of creditable service attained on the date of death and based upon his or her highest average monthly compensation during a period of 24 consecutive calendar months while a member of the retirement system.
4. In the application of subsection (c) of this Code section to death allowances, computations of projected retirement allowances shall be made on the same basis as though option two had been in effect. In lieu of the amount of death allowance otherwise payable to the beneficiary under option two, the member, upon written request, may at any time elect a reduced level death allowance of equivalent actuarial value, which allowance is payable to the beneficiary during a period of years certain or to the estate of the beneficiary and during the lifetime of such named beneficiary thereafter. At the election of the member, in case of death of the beneficiary during a term of years certain, the balance of the years certain payments may be paid to the estate of the member; but if such beneficiary predeceases the member, the total amount of the member's contributions to the date of his or her death shall be payable to the member's estate. The method of determining the equivalent actuarial value shall be consistent with the actuarial method of determining the beneficiary's death allowance under option two.
5. Anything in this chapter to the contrary notwithstanding, on and after March 6, 1963, a member who has not accumulated sufficient creditable service to qualify himself or herself for an allowance in case of involuntary separation from employment without prejudice shall not be deemed eligible for such allowances until he or she has accumulated sufficient membership service in a position classified under a merit system provided for by law or in a position covered under the retirement system. This subsection shall not affect the vesting of rights under Code Section 47-2-122. This subsection shall not be retroactive in any manner and shall not apply in any way to any person who was a member on or before February 13, 1962.
6. The age and service requirements for a service retirement allowance shall not apply to allowances available under this Code section.
7. From and after January 1, 1985, no employing unit within the government of the State of Georgia, including every department, commission, board, bureau, agency, branch of government, or any other employing unit by whatever name called, which has the authority and power to appoint, employ, release, separate, or fail to reappoint public officials or employees shall release or separate from state service, or fail to reappoint to continued state service, any public official or employee who is entitled to coverage under the involuntary separation retirement benefits provisions of this Code section. A release, separation, or failure to reappoint in violation of the provisions of this subsection shall be illegal, unlawful, and void. However, such releases or separations from state service or failures to reappoint to continued state service shall not be subject to the provisions of this subsection if such releases or separations from service or failures to reappoint occur under any of the following circumstances:
   1. Separation or release from service of an official or employee pursuant to Code Section 47-2-2 or separation or release from service of an official or the failure to reappoint an official by a board when such official serves at the pleasure of the board;
   2. Separation or release from service of an official or employee for any reason which would constitute cause as defined in the rules and regulations of the State Personnel Board if such separation or release from service is not pursuant to Code Section 47-2-2;
   3. Separation or release from service of an official or employee for criminal conduct under the laws of this state, any other state, or the United States; or
   4. A "discretionary termination" which means any one of the following:
      1. Separation or release from service of an official or employee under circumstances in which an official or employee is released or separated or any official's or employee's position or job is abolished through a valid reduction-in-force plan approved by the Department of Administrative Services;
      2. Separation or release from service of any official or employee by reason of a bona fide reorganization of any employing unit, with respect to which reorganization any such separations or releases have been approved in advance by the Governor; or
      3. Separation or release from service of an official or employee, or failure of reappointment of an official or employee, who holds a confidential position to an appointed or elected public official, or a group of appointed or elected public officials, incurred as a result of a change of administration in the office of such appointed or elected public official, or group of appointed or elected public officials.
8. 1. Except where termination is required by a sudden and unexpected loss of federal or state funds, an employer intending the discretionary termination of an official or employee shall notify the commissioner of administrative services at least 60 but not more than 120 days prior to the effective date of the discretionary termination of such official or employee. If termination is required by a sudden and unexpected loss of federal or state funds, the employer shall notify the commissioner of administrative services as soon as the employer becomes aware of the loss of funds and the termination shall be delayed until the completion of the procedures required by this subsection. Pending the completion of such procedures, the employee or official proposed for termination because of a sudden and unexpected loss of federal or state funds shall be compensated from any funds appropriated or available to the employer which may be used for such purpose. The notice shall be in writing and a copy thereof shall be forwarded to the board of trustees at the same time it is forwarded to the commissioner of administrative services. The notice shall include the following information:
      1. The name and current annual compensation of the official or employee proposed for discretionary termination;
      2. The age, length of service, current job description, and summary of the work experience of the official or employee proposed for discretionary termination;
      3. The educational qualifications of the official or employee proposed for discretionary termination; and
      4. An explanation of the reasons for the proposed discretionary termination of the official or employee.
   2. After receipt of the notice provided for in paragraph (1) of this subsection, the commissioner of administrative services shall schedule an interview with the official or employee proposed for discretionary termination. The interview shall be held within 15 days after receipt of the notice. Based on the interview with the official or employee proposed for discretionary termination and the information provided by the notice received by the commissioner pursuant to paragraph (1) of this subsection, the commissioner shall contact appropriate state departments, boards, bureaus, and other agencies of the state government for the purpose of seeking continued employment for the official or employee proposed for discretionary termination. Any position for continued employment of the official or employee proposed for discretionary termination which is obtained by the commissioner shall meet the following requirements:
      1. The annual compensation for such position shall be the same or greater than the current annual compensation of the official or employee proposed for discretionary termination;
      2. The duties for such position shall be reasonably compatible with the previous work experience and educational qualifications of the official or employee proposed for discretionary termination;
      3. The position shall be one which includes the holder thereof as a member of the retirement system provided for by this chapter; and
      4. The position must be available for acceptance by the official or employee proposed for discretionary termination at least one day prior to the effective date of such termination and an offer of the position to the official or employee must be made, in writing, by not later than the day immediately preceding the effective date of the discretionary termination.
   3. Any official or employee proposed for discretionary termination who is offered a position of continued employment in conformity with the requirements of paragraph (2) of this subsection shall be deemed to have resigned from service at his or her own choice upon the failure of such official or employee to accept the position of continued employment, and no such official or employee so resigning from service shall qualify for retirement benefits based upon involuntary separation from employment without prejudice as authorized by this Code section.
   4. If the commissioner of administrative services fails to obtain a position of continued employment in conformity with the requirements of paragraph (2) of this subsection for an official or employee proposed for discretionary termination, then, on the effective date of the discretionary termination, the official or employee may be considered involuntarily separated from employment without prejudice for the purposes of this Code section.
   5. The commissioner of administrative services shall notify the board of trustees in writing of the action taken by the commissioner pursuant to this subsection and of any position of continued employment which is offered to and accepted or refused by an official or employee proposed for discretionary termination.
   6. It is the intention of this subsection to provide procedures to secure the continued employment of officials and employees who may become subject to discretionary termination, and the provisions of this subsection shall not be construed to create any right to continue in a position of employment when that right does not exist independently of this subsection.

(Ga. L. 1949, p. 138, § 5; Ga. L. 1951, p. 394, § 6; Ga. L. 1952, p. 175, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 5; Ga. L. 1957, p. 283, §§ 5, 6; Ga. L. 1959, p. 107, § 4; Ga. L. 1962, p. 54, § 5; Ga. L. 1962, p. 152, § 1; Ga. L. 1963, p. 42, § 1; Ga. L. 1968, p. 1361, § 1; Ga. L. 1970, p. 26, § 2; Ga. L. 1971, p. 685, § 1; Ga. L. 1972, p. 360, § 3; Ga. L. 1984, p. 1296, § 3; Ga. L. 1985, p. 209, § 1; Ga. L. 1995, p. 333, § 1; Ga. L. 2006, p. 223, § 1/HB 379; Ga. L. 2007, p. 73, § 1/SB 162; Ga. L. 2009, p. 322, § 2/HB 476; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2010, p. 1207, § 64/SB 436; Ga. L. 2012, p. 413, § 7/HB 805.)

The 2009 amendments. The first 2009 amendment, effective July 1, 2009, added paragraph (c)(3). The second 2009 amendment, effective July 1, 2009, substituted "State Personnel Administration" for "State Merit System of Personnel Administration" in subparagraph (g)(4)(A).

The 2010 amendment, effective July 1, 2010, substituted "ten years" for "10 years" near the middle of paragraph (c)(3).

The 2012 amendment, effective July 1, 2012, substituted "commissioner of administrative services" for "commissioner of personnel administration" throughout this Code section; inserted "or she" in subsection (a) and in the first sentence of subsection (e); inserted "or her" in the third sentence of subsection (d); inserted "or herself" in the first sentence of subsection (e); substituted "Department of Administrative Services" for "State Personnel Administration" in subparagraph (g)(4)(A); and deleted "of personnel administration" following "commissioner" in the third and fourth sentences of paragraph (h)(2).

- Ga. L. 1984, p. 1296, § 5, not codified by the General Assembly, provided that this Act would become effective on January 1, 1985, only if a proposed amendment (see Ga. L. 1984, p. 1726) to the Constitution (Ga. Const. 1983, Art. III, Sec. X, Para. VI) authorizing the General Assembly to revise provisions of public retirement or pension systems relating to involuntary separation from employment were ratified at the 1984 general election. Such approval was given at that election.

Ga. L. 1984, p. 1296, § 6, not codified by the General Assembly, provided: "Pursuant to the authority of the proposed constitutional amendment described in Section 5 of this Act and being contingent for its effectiveness on January 1, 1985, upon the ratification of such proposed constitutional amendment, this Act is exempt from the provisions of Chapter 20 of Title 47 of the Official Code of Georgia Annotated known as the 'Public Retirement Systems Standards Law.' "

Ga. L. 2010, p. 1207, § 1, not codified by the General Assembly, provides that: "The intent of this Act is to repeal obsolete and inoperative provisions and to make certain stylistic corrections in Title 47 of the Official Code of Georgia Annotated. Nothing in this Act shall deny, abridge, increase, renew, revive, or on any way affect any right, benefit, option, credit, or election to which any person was entitled pursuant to such title on June 30, 2010, and the board of trustees of each public retirement system is authorized and directed to provide by regulation for the continuation of any such right, benefit, option, credit, or election not otherwise covered in this Act; provided, however, that any such right, benefit, option, credit, or election shall be subject to the statutory provisions in effect on June 30, 2010."

Ga. L. 2010, p. 107, § 67, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision of Sections 62 through 64 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over this Act to the extent of the conflict."

Ga. L. 2012, p. 413, § 1/HB 805, not codified by the General Assembly, provides that: "The purpose of this Act is to make conforming amendments and correct references in Title 47 of the Official Code of Georgia Annotated, relating to retirement and pensions, relative to the abolition of the State Personnel Administration and the transfer of certain functions of such agency to the Department of Administrative Services as provided by a separate Act." The separate Act referred to is Ga. L. 2012, p. 446/HB 642, which became effective July 1, 2012, and which provides for the abolition of the State Personnel Administration and the transfer of functions.

Ga. L. 2012, p. 413, § 13/HB 805, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, only if an Act abolishing the State Personnel Administration and providing for the transfer of certain functions of such agency to the Department of Administrative Services is enacted and becomes effective on that same date; otherwise, this Act shall not become effective and shall stand repealed on July 1, 2012." Ga. L. 2012, p. 446/HB 642, effective July 1, 2012, provides for the abolition of the State Personnel Administration and the transfer of functions.

- For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986).

JUDICIAL DECISIONS

Legislative intent.

- General Assembly intended subsection (h) of O.C.G.A. § 47-2-123 to provide procedures to secure the continued employment of officials and employees who may become subject to discretionary termination, it did not intend to create any right to continue in a position of employment. Alford v. Public Serv. Comm'n, 262 Ga. 386, 418 S.E.2d 13 (1992).

General Assembly intended for the state to retain employees eligible for involuntary separation benefits, but required the state to offer a reasonably comparable job at the same pay to any employee subject to a discretionary termination. Alford v. Public Serv. Comm'n, 262 Ga. 386, 418 S.E.2d 13 (1992).

- When an employee is to be involuntarily retired under subsection (b) of this statute, the medical board is required to have the employee personally examined in order to provide a basis for the board's report. Cantrell v. State, 129 Ga. App. 465, 200 S.E.2d 163 (1973), aff'd, 231 Ga. 704, 203 S.E.2d 493 (1974), overruled in part on other grounds, Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445, 218 S.E.2d 97 (1975) (see O.C.G.A. § 47-2-123).

- Subsection (b) of this statute does not require that any one or all of the three physicians constituting the medical board personally make the required examination. Cantrell v. State, 129 Ga. App. 465, 200 S.E.2d 163 (1973), aff'd, 231 Ga. 704, 203 S.E.2d 493 (1974), overruled in part on other grounds, Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445, 218 S.E.2d 97 (1975) (see O.C.G.A. § 47-2-123).

Procedures of subsection (h) of O.C.G.A.47-2-123 are applicable only if benefits under the Act are sought. Tanner v. Freeman, 257 Ga. 146, 356 S.E.2d 201 (1987).

When the only issue is reinstatement and when the procedure followed to achieve this remedy is an appeal to the State Personnel Board and not the Employees' Retirement System, the technicalities of O.C.G.A. § 47-2-123 do not come into play. Tanner v. Freeman, 257 Ga. 146, 356 S.E.2d 201 (1987).

- An attempt by the state to terminate the employment of an employee who is entitled to coverage under the involuntary separation retirement benefits provisions of O.C.G.A. § 47-2-123 without following the specified procedures is ineffective. State v. Hudgins, 220 Ga. App. 555, 469 S.E.2d 363 (1996).

- General Assembly specifically limited eligibility of deputy conservation ranger for benefits to a claim based upon injury incurred in the line of law enforcement duty. The fact that the legislature did not see fit to use the same language with respect to the other officers and agents covered by O.C.G.A. § 47-2-123 is clearly indicative of the intention that the language is to have a different meaning as applied to the other covered employees than it does as applied to a deputy conservation ranger. Allison v. Domain, 158 Ga. App. 542, 281 S.E.2d 299 (1981).

- Subsection (g) of O.C.G.A. § 47-2-123 generally prohibits involuntary separations from state government that would trigger the payment of early retirement benefits. Alford v. Public Serv. Comm'n, 262 Ga. 386, 418 S.E.2d 13 (1992).

- When an employee has been separated from employment without prejudice, the relevant issue for determining whether the employee is entitled to separation benefits is whether the termination was voluntary or involuntary. Boyd v. Employees' Retirement Sys., 200 Ga. App. 345, 408 S.E.2d 157 (1991).

- When an employee becomes subjected to a discretionary termination, subsection (h) of O.C.G.A. § 47-2-123 requires the commissioner of personnel administration to seek continued employment for the employee at the "same or greater" annual compensation and with duties that are "reasonably compatible with the previous work experience and educational qualifications" of the employee. Alford v. Public Serv. Comm'n, 262 Ga. 386, 418 S.E.2d 13 (1992).

- State employee is not involuntarily discharged from employment when the employee knowingly and intentionally brings about the discharge, or engages in conduct, such as insubordination, excessive absences, or other misconduct which the employee knew or should have known would lead to the employee's dismissal from employment. Haggins v. Employees' Retirement Sys., 255 Ga. 352, 338 S.E.2d 1 (1986).

Employee's objectionable conduct, consisting of the illegal acceptance of gratuities and the purposeful failure to comply with state laws and regulations, constituted the kind of activity that any employee would know or should have known would result in the employee's dismissal, and thus did not constitute involuntary separation within the meaning of O.C.G.A. § 47-2-123. Boyd v. Employees' Retirement Sys., 200 Ga. App. 345, 408 S.E.2d 157 (1991).

- Although O.C.G.A. § 47-2-123 does not require the Public Service Commission (PSC) to reappoint plaintiff as a confidential secretary, the PSC must offer plaintiff a job with reasonably compatible duties and at the same pay as the plaintiff's former secretarial job. Alford v. Public Serv. Comm'n, 262 Ga. 386, 418 S.E.2d 13 (1992).

§ 47-2-120(c) and (d) not applicable. - Benefits due as disability retirement under O.C.G.A. § 47-2-123 of the statutes governing the Employees' Retirement System are not to be calculated in reference to O.C.G.A. § 47-2-120(c) and (d), which allow for eligibility for service retirement benefits as if the member were age 65, regardless of the member's age, if the member has tendered 30 or 34 years of service, respectively. Such reference would create a projection on top of a projection. Sledge v. Employees' Retirement Sys., 196 Ga. App. 597, 396 S.E.2d 550 (1990).

- Phrase "fail to reappoint" in subsection (g) of O.C.G.A. § 47-2-123 means the failure to reappoint an employee to another state position at the same pay and with reasonably compatible duties. Alford v. Public Serv. Comm'n, 262 Ga. 386, 418 S.E.2d 13 (1992).

- Superior court lacked jurisdiction for direct appellate review of the denial of a state employee's application for retirement disability benefits under O.C.G.A. § 47-2-123(b)(1). O.C.G.A. § 47-2-3 was inapplicable because the employee was not discharged from employment. Employees' Ret. Sys. of Ga. v. Harris, 303 Ga. App. 191, 692 S.E.2d 798 (2010).

Cited in Bd. of Pub. Safety v. Jordan, 252 Ga. App. 577, 556 S.E.2d 837 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Nonretiring employee contracting hepatitis prior to 1970 not compensated.

- Employee who has not retired under Ga. L. 1949, p. 138 and who contracted infectious hepatitis prior to the effective date of Ga. L. 1970, p. 737, § 1 et seq. (see O.C.G.A. Ch. 29, T. 31), would not be compensable. 1970 Op. Att'y Gen. No. U70-170.

- When a superior public official having appointing and removing authority over a subordinate public official requests the resignation of the subordinate official, which the subordinate, not willingly by the subordinate's own choice, submits to the superior official, the provisions of this statute are fully as applicable as if the superior official merely had discharged or fired the subordinate. 1968 Op. Att'y Gen. No. 68-130 (see O.C.G.A. § 47-2-123).

- Military service which could be purchased as creditable service pursuant to former O.C.G.A. § 47-2-96(f) could not be used to obtain the 18.1 years necessary to qualify for involuntary separation retirement benefits under paragraph (c)(2) of O.C.G.A. § 47-2-123. 1991 Op. Att'y Gen. No. 91-32.

Application for involuntary separation may be made to board when official is not formally dismissed. 1968 Op. Att'y Gen. No. 68-130.

- Applying the rules of statutory construction, the service allowable year for year to former members of the General Assembly is creditable as "membership service" and, hence, is includable for determinations of eligibility for involuntary separation retirement benefits. 1971 Op. Att'y Gen. No. 71-5.

Service as a member of the General Assembly subsequent to January 1, 1954, which has been paid for as membership service in the Georgia Legislative Retirement System, and which has been transferred from the Legislative Retirement System to the Employees' Retirement System of Georgia, is creditable as membership service for the purpose of determining eligibility for the involuntary separation benefits provided by this statute. 1973 Op. Att'y Gen. No. U73-17 (see O.C.G.A. § 47-2-123).

Unclassified employees of Department of Technical and Adult Education who are entitled to involuntary separation benefits may only be separated pursuant to a plan approved by the Governor under subparagraph (g)(4)(B) of O.C.G.A. § 47-2-123. Classified employees who are entitled to involuntary separation benefits, on the other hand, may only be separated under subparagraph (g)(4)(A) of § 47-2-123 if they are separated by a reduction in force plan promulgated consistent with Merit System rules and regulations and approved by the State Merit System. This opinion only addresses involuntary separations under subparagraphs (g)(4)(A) and (g)(4)(B) of § 47-2-123. 1991 Op. Att'y Gen. 91-27.

Death benefits become vested at the time of the death; nothing done by the beneficiary after this event could change the benefits. 1971 Op. Att'y Gen. No. U71-99.

- Upon the death of an eligible employee while in service, the death allowances paid to the employee's beneficiary are the equivalent of service retirement benefits. 1979 Op. Att'y Gen. No. 79-34.

- An amendment to the Georgia Constitution prohibiting the grant of involuntary separation retirement benefits to state employees who are by law currently entitled to coverage under the involuntary separation benefits section of the Employees' Retirement System Act would, in all probability, be unconstitutional under the federal Impairment Clause contained in U.S. Const., Art. I, Sec. 10. 1983 Op. Att'y Gen. No. U83-72.

- Subparagraph (g)(4)(B) of O.C.G.A. § 47-2-123 cannot be read as creating authority for an additional means of separating a classified employee via reorganization without going through the state personnel board's reduction-in-force procedure. 1991 Op. Att'y Gen. 91-22.

- Under the procedural requirements of subsection (h) of O.C.G.A. § 47-2-123, an employer cannot be charged with the knowledge of a loss of funds until the employer was aware of the specific cuts to the specific agency's budget, and not merely aware of the overall statewide budget crisis. 1991 Op. Att'y Gen. 91-22.

- If an agency has identified another position in the agency which meets the four requirements of paragraph (h)(2) of O.C.G.A. § 47-2-123, it can simply offer to reassign an employee who would otherwise be terminated to the position without following the process of notification to the commissioner of personnel administration. 1997 Op. Att'y Gen. No. 97-17.

- If an agency has identified another position in the agency which meets the four requirements of paragraph (h)(2) of O.C.G.A. § 47-2-123, but would entail reassignment of the employee from the classified service to the unclassified service, the unclassified position would be considered a comparable position. 1997 Op. Att'y Gen. No. 97-17.

RESEARCH REFERENCES

ALR.

- Collateral source rule: injured person's receipt of statutory disability unemployment benefits as affecting recovery against tort-feasor, 4 A.L.R.3d 535.