2020 Georgia Code
Title 48 - Revenue and Taxation
Chapter 2 - State Administrative Organization, Administration, and Enforcement
Article 1 - State Administrative Organization
§ 48-2-6. Departmental Organization; Employees; Compensation; Collection of Delinquent Taxes by Contractors; Mandatory Fingerprinting

1. The commissioner shall establish by executive order such units within the department as he or she deems proper for its administration and shall designate persons to be directors and assistant directors of such units to exercise such authority as he or she may delegate to them in writing.
2. The commissioner shall have the authority to employ as many persons as he or she deems necessary for the administration of the department and for the discharge of the duties of his or her office. He or she shall issue all necessary directions, instructions, orders, and rules applicable to such persons. He or she shall have authority, as he or she deems proper, to employ, assign, compensate, and discharge employees of the department within the limitations of the department's appropriation, the requirements of the state system of personnel administration, including the rules and regulations of the State Personnel Board, and the restrictions set forth by law.
3. All employees of the department shall be compensated upon a fixed salary basis and no person shall be compensated for services to the department on a commission or contingent fee basis.
4. Neither the commissioner nor any officer or employee of the department shall be given or receive any fee, compensation, loan, gift, or other thing of value in addition to the compensation and expense allowance provided by law for any service or pretended service either rendered or to be rendered as commissioner or as an officer or employee of the department.
5. The commissioner is authorized to provide for the collection of delinquent taxes, including penalties and interest, by contractors. Any such contractors must be approved by the commissioner. No employee of the department shall be approved as a contractor under this subsection. Such contractors shall be compensated only on a commission or contingent fee basis.
6. The following persons shall be subject to the mandatory fingerprinting and criminal record checks described in subsection (g) of this Code section:
   1. All prospective employees of the department, as a condition of employment;
   2. All personnel employed by the department after January 1, 2019, who have not had a criminal record check within the prior ten years, as a condition of continuing employment, with a requirement for subsequent criminal record checks not less frequently than once every ten years;
   3. Employees of prospective contractors of the department, and any subcontractors thereof, who may have access to confidential information as provided in Code Section 48-2-15 or 48-7-60 or who may have access to returns or return information as defined in 26 U.S.C. Section 6103 prior to any access to any of the foregoing information; and
   4. All personnel employed by contractors of the department, and any subcontractors thereof, after January 1, 2019, who have not had a criminal record check within the prior ten years, with a requirement for subsequent criminal record checks not less frequently than once every ten years.
7. 1. The department's Office of Special Investigations shall have the authority and responsibility to order criminal record checks pursuant to this Code section through the Georgia Crime Information Center and the Federal Bureau of Investigation and shall have the authority to receive the results of such criminal record checks.
   2. Fingerprints shall be in such form and of such quality as shall be acceptable for submission to the Georgia Crime Information Center and the Federal Bureau of Investigation. It shall be the duty of each law enforcement agency in this state to fingerprint those persons required to be fingerprinted by this Code section. At the discretion of the department, such fingerprinting may be performed by the department's Office of Special Investigations.
   3. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit one set of fingerprints to the Federal Bureau of Investigation for a search of the bureau records, retain another set of fingerprints, and conduct a search of its own records and records to which it has access. The Georgia Crime Information Center shall notify the department in writing of any findings or if there are no such findings. All conviction data received by the department shall not be public record, shall be privileged, and shall not be disclosed to any other person or agency except to any person or agency which otherwise has a legal right to inspect the employment file. All such information shall be maintained by the department in conformity with the requirements of the Georgia Crime Information Center and the Federal Bureau of Investigation. As used in this subsection, the term "conviction data" means a record of a finding or verdict of guilty, a plea of guilty, or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought.
   4. At the discretion of the department, fees required for a criminal record check by the Georgia Crime Information Center or the Federal Bureau of Investigation shall be paid by the department or by the individual seeking employment or making application to the department. Contractors and subcontractors shall pay such fees for their employees and prospective employees.
   5. The department may use the information obtained from fingerprinting and a person's criminal record check only for the purpose of verifying the identification of such person and in the official determination of the fitness of such person's qualification for initial or continuing employment, or in the case of employees of contractors and subcontractors, for the purpose of allowing or denying access to legally protected information.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 11; Ga. L. 1951, p. 360, § 22; Ga. L. 1960, p. 944, § 1; Ga. L. 1967, p. 788, § 7; Code 1933, § 91A-206, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1995, p. 781, § 3; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-89/HB 642; Ga. L. 2018, p. 233, § 1/HB 816.)

The 2018 amendment, effective May 3, 2018, added subsections (f) and (g).

- Ga. L. 2009, p. 745, § 1, was treated as replacing "State Merit System" with "State Personnel Administration".

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

- For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Ga. St. U. L. Rev. 217 (2011).

Directors of departmental units not state officials for purposes of § 45-15-11. - Although under the authority delegated to the commissioner, the commissioner may, for any reason satisfactory to the commissioner, designate a person as director of some tax unit, such designation cannot create an office or official, and the person so designated is not a state official or public official within the terms and provisions of Ga. L. 1943, p. 284, § 7 (see now O.C.G.A. § 45-15-11). Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484 (1961).

- Inclusion of Department of Revenue in the state merit system changed the authority of the commissioner to employ, discharge, and fix salaries of departmental employees, but the commissioner retains authority to pay all salaries and expenses of the office and to call for necessary appropriations to do so. Undercofler v. Scott, 220 Ga. 406, 139 S.E.2d 299 (1964).

- Legislature intended to exempt only the public authorities of Georgia and the U.S. Government and did not intend to include public authorities of other states when it amended the exemption statute, O.C.G.A. § 48-6-2(a)(3), to include public corporations and authorities. Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545, 594 S.E.2d 745 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-8 are included in the annotations for this Code section.

Construed with § 48-6-5. - General Assembly did not contemplate the creation of an employer-employee relationship between the department and clerks of the superior courts in Ga. L. 1967, p. 788, § 4 (see now O.C.G.A. § 48-6-5). 1969 Op. Att'y Gen. No. 69-168 (decided under former Code 1933, Ch. 92-8).

Clerks of superior courts and staffs do not come under Employees' Retirement System of Georgia by virtue of their tax collection duties set forth in former Code 1933, Ch. 92-8 (see now O.C.G.A. Art. 1, Ch. 2, T. 48). 1969 Op. Att'y Gen. No. 69-168 (decided under former Code 1933, Ch. 92-8).

RESEARCH REFERENCES

Am. Jur. 2d.

- 71 Am. Jur. 2d, State and Local Taxation, §§ 195, 98.