2021 Georgia Code
Title 45 - Public Officers and Employees
Chapter 20 - Personnel Administration
Article 1 - General Provisions
§ 45-20-2. Definitions

As used in this chapter, the term:

1. "Appointing authority" means the person or groups of persons authorized by law or delegated authority to make appointments to fill positions.
2. "Classified employee" means an employee who was in the classified service as of June 30, 1996, and who has remained in a classified position without a break in service since that date.
3. "Classified position" means a position that held classified status conferring rights of appeal, as set forth in Code Sections 45-20-8 and 45-20-9, as of June 30, 1996, and that subsequent to June 30, 1996, has not been held by an unclassified employee.
4. "Classified service" means employment in a classified position.
5. "Commissioner" means the commissioner of administrative services provided for by Code Section 50-5-1.
6. "Department" and "agency" are synonymous and mean all separate and distinct divisions and subdivisions of state government whose heads are legally authorized to appoint employees to positions; but these terms shall not include authorities, public corporations, the legislative and judicial branches, and the board of regents. "Department" and "agency" shall also include an agency assigned to a department for administrative purposes and local departments of public health, county departments of family and children services, community service boards, and units of the Department of Defense with local employees.
7. "Department of Administrative Services" or "DOAS" means the department created by Code Section 50-5-1.
8. "Employment at will" means an employment relationship in which either party to the relationship may sever the relationship at any time for any reason other than an unlawful reason.
9. "Position" means a set of duties and responsibilities assigned or delegated by competent authority for performance by one person.
10. "Rules and regulations" means the governing provisions adopted by the State Personnel Board and approved by the Governor.
11. "State Personnel Board" and "board" are synonymous and mean the body authorized by Article IV, Section III, Paragraph I of the Constitution of Georgia.
12. "State Personnel Board policies" means those policies adopted by the board and approved by the Governor which describe the goals and objectives of the state personnel program and serve as a basis for the formulation and administration of the merit system rules and regulations.
13. "Unclassified employee" means an employee who is not a classified employee.
14. "Unclassified service" means employment at will and includes all employees except those in the classified service as defined in this Code section.
15. "Working test" or "working test period" means a probationary period of employment in a classified position during which the employee must demonstrate to the satisfaction of the appointing authority that he or she has the knowledge, ability, aptitude, and other necessary qualities to perform satisfactorily the duties of the position in which employed. The working test period shall apply to each promotion of a classified employee to a classified position. The commissioner may fix the length of the working test period for any job at not less than six months nor more than 18 months exclusive of any time in nonpay status; provided, however, that the length of the working test period for troopers of the Uniform Division of the Department of Public Safety shall be 18 months.
16. "Working test employee" or "employee on working test" means a classified employee serving a working test period in the position in which he or she is employed; provided, however, that an employee serving a working test period following a promotion in the same department from a lower class in which he or she had successfully completed a working test period shall retain appeal rights in the lower class until he or she successfully completes the working test period in the job to which he or she has been promoted.

(Ga. L. 1972, p. 1015, § 2501; Ga. L. 1975, p. 79, § 2; Ga. L. 1976, p. 1547, § 1; Ga. L. 1982, p. 830, § 2; Ga. L. 1982, p. 1251, §§ 1, 2; Ga. L. 1983, p. 3, §§ 34, 61; Ga. L. 1983, p. 459, § 1; Ga. L. 1984, p. 22, § 45; Ga. L. 1984, p. 467, §§ 1, 2; Ga. L. 1985, p. 547, § 1; Ga. L. 1986, p. 469, §§ 1, 2; Ga. L. 1987, p. 575, § 4; Ga. L. 1988, p. 1252, § 5; Ga. L. 1990, p. 732, §§ 1-3; Ga. L. 1993, p. 510, § 1; Ga. L. 1993, p. 791, § 1; Ga. L. 1993, p. 1399, § 3; Ga. L. 1994, p. 97, § 45; Ga. L. 1994, p. 437, § 9; Ga. L. 1995, p. 345, § 1; Ga. L. 1995, p. 1069, § 3; Ga. L. 1996, p. 684, § 2; Ga. L. 2000, p. 1258, § 3; Ga. L. 2000, p. 1377, § 1; Ga. L. 2008, p. 335, § 8/SB 435; Ga. L. 2008, p. 546, § 2/SB 230; Ga. L. 2012, p. 446, § 1-1/HB 642.)

- The amendment of this Code section by Ga. L. 2008, p. 335, § 8, irreconcilably conflicted with and was treated as superseded by Ga. L. 2008, p. 546, § 2. See County of Butts v. Strahan, 151 Ga. 417 (1921).

- 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."

JUDICIAL DECISIONS

Ranking of employees.

- The fact that Department of Natural Resources (DNR) pilots were ranked higher than pilots employed by the Georgia State Patrol did not violate rights of the latter since DNR employees are excluded from the merit system and the rank of state patrol employees must be compared with others in that system who are similarly situated for equal protection purposes. Ferros v. Georgia State Patrol, 211 Ga. App. 50, 438 S.E.2d 163 (1993).

- Ga. Const. 1983, Art. IV, Sec. III, Para. I left it to the General Assembly to create a state merit system by the enactment of laws regarding selection of state personnel based on merit; legislation providing systems for public employment was subject to amendment or even repeal, and so the 1996 and 2000 amendments to O.C.G.A. § 45-20-2(15) were not unconstitutional. SEIU v. Perdue, 280 Ga. 379, 628 S.E.2d 589 (2006).

- Summary judgment for community service board on a former executive director's breach of employment contract claim was reversed because the trial court erred in determining that the director was an official instead of an employee under the State of Georgia Merit Protection System; under O.C.G.A. §§ 37-2-6.1(b)(7) and37-2-6.2, the board was a state agency when the board terminated the director, and the director was a classified employee in a covered position under the State Merit Protection System, O.C.G.A. § 45-20-2(2) and (6). Ashe v. Clayton County Cmty. Serv. Bd., 262 Ga. App. 738, 586 S.E.2d 683 (2003)(Unpublished).

- Plaintiff, a former safety engineering manager for Georgia Southern University, did not have a protected property interest in the plaintiff's continued employment at the time of termination and, thus, the plaintiff's termination did not support a due process claim against the individual defendants as, at the time of the plaintiff's termination, the applicable statute, former paragraph (15)(I) of O.C.G.A. § 45-20-2, expressly excluded from the state merit system all officers, officials, and employees of the University System of Georgia, except those officers, officials, and employees already eligible to be covered by the state merit system by law or executive order. The plaintiff did not point to any law or executive order exempting the plaintiff's position from this exclusion. Anderson v. Bd. of Regents, F. Supp. 2d (N.D. Ga. Sept. 30, 2011).

Cited in Horne v. Skelton, 152 Ga. App. 654, 263 S.E.2d 528 (1979); State v. O'Neal, 155 Ga. App. 870, 273 S.E.2d 631 (1980); Busbee v. Continental Ins. Co., 526 F. Supp. 1243 (N.D. Ga. 1981); Clark & Stephenson v. State Personnel Bd., 252 Ga. 548, 314 S.E.2d 658 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Persons not covered.

- The Historic Chattahoochee Commission does not fall within the coverage of the State Merit System. 1979 Op. Att'y Gen. No. 79-14.

The legislative intent of O.C.G.A. § 38-2-152 is that assistant adjutants general should not be covered under the State Merit System. 1971 Op. Att'y Gen. No. 71-71.

- Personnel hired by this state to perform services required under federally funded contracts with State Department of Defense are state employees and are eligible for coverage under state employee's retirement. 1969 Op. Att'y Gen. No. 69-6.

- Absent explicit statutory provisions to the contrary, the Merit System Act does not generally authorize the State Personnel Board or the Merit System Commissioner to promulgate rules or adopt policies that would be binding on agencies or departments that are not "covered," nor can such rules or policies be promulgated pursuant to a gubernatorial executive order. 2006 Op. Att'y Gen. No. 2006-3.

- If a department of state government contracts for personal services with a right to control the time, manne,r and method of executing the work and the position does not come within one of the definitions of unclassified employees, then the position is classified and must be filled according to the rules and regulations of the State Merit System of Personnel Administration. 1974 Op. Att'y Gen. No. 74-27.

Position of Deputy Commissioner of Banking and Finance is in the unclassified service of the State Merit System. 1975 Op. Att'y Gen. No. U75-57.

- Since the General Assembly mandated that department heads and their deputies would be in the unclassified service, it would appear that it did not intend for these two positions to be included in discretionary provisions of O.C.G.A. § 45-20-2(15)(M), when the department head is given discretion in removing five positions from the classified service; therefore, O.C.G.A. § 45-20-2(15)(M) gives the department head authority to remove up to five positions other than the department head position and the deputy from the classified service, provided that the department does not have five full-time managerial positions other than the department head and the deputy in the unclassified service. 1975 Op. Att'y Gen. No. 75-48.

The positions of assistant adjutant general for Army, assistant adjutant general for air and deputy director for civil defense, being specifically excluded by law from the classified service, are not counted against the five discretionary positions which the adjutant general may designate for inclusion in the unclassified service. 1975 Op. Att'y Gen. No. 75-81.

The two unclassified positions of executive director and secretary to the executive director in the Georgia Organized Crime Prevention Council need not be counted in computing the number of unclassified full-time permanent managerial positions in the State Crime Commission for purposes of O.C.G.A. § 45-20-2. 1975 Op. Att'y Gen. No. 75-106.

- Newly created Georgia Public Service Commission positions of director of utilities, public information officer, and director and assistant director, utility finance section are, as a matter of law, unclassified positions. 1981 Op. Att'y Gen. No. 81-39.

Accountant, statistician, expert, and clerical positions of utilities finance section may be placed in unclassified service if State Personnel Board concurs. 1981 Op. Att'y Gen. No. 81-39.

- The position of District Health Officer can be placed in the unclassified service of the State Merit System if there has been compliance with the statutory provisions.. 1985 Op. Att'y Gen. No. 85-1.

Employees of board of regents transferred to Georgia Public Telecommunications Commission remain unclassified employees but, when appropriate, may receive certain terms and conditions of employment afforded to employees in classified services of State Merit System. 1982 Op. Att'y Gen. No. 82-9.

- Pursuant to O.C.G.A. § 45-20-2(15)(Z), all positions in the Department of Natural Resources created after March 14, 1984, and all employees who have been hired since March 14, 1984, are in the unclassified service of the State Merit System unless the Commissioner of Personnel Administration specifically designates the position and the employee as being in the classified service. 1987 Op. Att'y Gen. No. 87-35.

- Employees of community service boards hired after July 1, 1996, are not in the classified service of the State Merit System. 2003 Op. Att'y Gen. No. 2003-2.

- Housekeepers of Department of Defense are state employees. As state employees, housekeeping personnel are entitled to the benefits authorized under the State Merit System and other laws upon compliance with the terms of participation. 1993 Op. Att'y Gen. No. 93-4.

- Under the State Merit System, an interdepartmental transfer only applies when an employee is leaving a classified position in one department to accept a comparable classified position in another department; it does not include the situation where a position is transferred from one department to another and the incumbent remains with the position. 1986 Op. Att'y Gen. No. 86-38.

- The ability to unclassify positions under O.C.G.A. § 45-20-2 cannot be sold, transferred, or otherwise assigned by an appointing authority for use in another agency. 1986 Op. Att'y Gen. No. 86-36.

- The limitation of five full-time permanent managerial positions in former paragraph (15)(M) of O.C.G.A. § 45-20-2 would include any managerial positions unclassified under former paragraph (15)(V) of O.C.G.A. § 45-20-2. 1986 Op. Att'y Gen. No. U86-31.

RESEARCH REFERENCES

Am. Jur. 2d.

- 15A Am. Jur. 2d, Civil Service, § 19 et seq.

- 67 C.J.S., Officers, § 2.

- Applicability of civil service rules as affected by attempt to enter into contract with one rather than appoint him to office or position, 111 A.L.R. 1509.

Civil service laws, rules, or regulations as applicable to persons employed by one under contract with municipal corporations or other governmental body to do certain work for it or its residents, 134 A.L.R. 1149.

Distinction between office and employment, 140 A.L.R. 1076.