GA Code § 36-35-4 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 35 - Home Rule Powers|§ 36-35-4. Compensation and Benefits for Employees and Members of Governing Authority; Conditions and Requirements Governing Increases for Elective Members of Governing Authority

  The governing authority of each municipal corporation is authorized to fix the salary, compensation, and expenses of its municipal employees and the members of its municipal governing authority and to provide insurance, retirement, and pension benefits, coverage under federal old-age, survivors and disability programs, hospitalization benefits, and workers' compensation benefits for its employees, their dependents, and their survivors and for members of the municipal governing authority, their dependents, and their survivors, when such benefits are provided to municipal employees. Any previous actions to extend insurance, federal old-age, survivors and disability programs, retirement, hospitalization, and workers' compensation benefits to members of the municipal governing authority are validated. With the exception of the provision of insurance, federal old-age, survivors and disability programs, retirement, hospitalization, and workers' compensation benefits, any action to increase the salary or compensation of the elective members of the municipal governing authority shall be subject to the following conditions and requirements:   Any such increase shall not be effective until after the taking of office of those elected at the next regular municipal election which is held immediately following the date on which the action to increase the compensation was taken;   Such action shall not be taken during the period of time beginning with the date that candidates for election to membership on the municipal governing authority may first qualify as such candidates and ending with the date members of the municipal governing authority take office following their election; and   Such action shall not be taken until notice of intent to take the action has been published in a newspaper of general circulation designated as the legal organ in the county and in the municipal corporation at least once a week for three consecutive weeks immediately preceding the week during which the action is taken.     As used in subsection (a) of this Code section, the phrase "elective members of the municipal governing authority" means, notwithstanding any terminology or designation of a municipal governing authority or governing body contained in any municipal charter, any elective municipal official who exercises any executive or legislative or executive and legislative powers of the municipal corporation, specifically including a mayor, vice-mayor, president or chairman of a municipal council, member of a municipal council, member of a board of aldermen, or member of a board of commissioners. Such phrase shall also include any person who is appointed to fill a vacancy in any such elective office.   As used in subsection (a) of this Code section, the words "salary or compensation," as applied to the elective members of a municipal governing authority, shall include any expense allowance or any form of payment or reimbursement of expenses, except reimbursement for expenses actually and necessarily incurred by members of a municipal governing authority in carrying out their official duties. The governing authority of each municipal corporation shall be authorized to provide by ordinance for the reimbursement of such actual and necessary expenses.   As used in subsection (a) of this Code section, the words "retirement" and "pension" shall mean termination from municipal service with the right to receive a benefit based upon all or part of such municipal service in accordance with the terms of the ordinance or contract pursuant to which the municipality provides for payment of such benefits. The General Assembly declares and affirms that the Act approved April 17, 1981 (Ga. L. 1981, p. 1741) was intended to assure that prior advertisement of actions to provide insurance, federal old-age, survivors and disability programs, retirement, pension, hospitalization, and workers' compensation benefits to elected members of the municipal governing authority, their dependents, and their survivors is not required.    (Ga. L. 1965, p. 298, § 5; Ga. L. 1973, p. 778, § 4; Ga. L. 1974, p. 195, § 1; Ga. L. 1975, p. 28, § 1; Ga. L. 1979, p. 645, § 2; Ga. L. 1981, p. 1741, § 1; Ga. L. 1987, p. 1055, § 1.)   Law reviews.   - For article, "The Municipal Home Rule Act of 1965 (this chapter)," see 3 Ga. St. B. J. 333 (1967). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions prior to enactment of this Code section are included in the annotations for this Code section.    Mayor is not member of "municipal governing authority" and, therefore, the authority of the city council to increase the compensation paid to the office of the mayor is not subject to the strictures of this section. Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978).   Meaning of phrase "governing authority".    - Generally accepted meaning of the phrase "governing authority" or "governing body," in reference to the operation of city or county governments, is a council or board performing legislative functions. Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978).    In determining whether municipal officer is part of governing authority of municipality, the question is whether that municipal officer possesses legislative power. Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978).    Fact that mayor of town is presiding officer of council and has power to cast tie-breaking votes does not make the mayor a member of council if the city charter provides that the mayor is not to be a member. Accordingly, even though the president of the city council is the presiding officer of the council and possesses the authority to cast tie-breaking votes, the mayor should not be considered a member of the council, since the city charter expressly provides that the mayor is not to be a member. Therefore, an increase in the mayor's compensation is not subject to this section. Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978).   City not authorized to pay mayor for services of city manager.    - City is not authorized to pay to a city's mayor compensation, over and beyond the sum specified in the charter as the mayor's salary, for services ordinarily rendered by a city manager. Welsch v. Wilson, 217 Ga. 582, 124 S.E.2d 77 (1962) (decided under former law).   "Retirement benefits" construed.    - Benefits provided under a city retirement plan are retirement benefits expressly exempted under subsection (a) of O.C.G.A. § 36-35-4 and not in the nature of a pension or gratuity when the retirement plan allows council members, after a given period of time, to terminate employment and receive partial credit for past years' service toward the total required time for entitlement to a monthly payment for life. Swann v. Board of Trustees, 257 Ga. 450, 360 S.E.2d 395 (1987).   City ordinance increasing pension plan contribution rate.    - Trial court properly granted the city defendants summary judgment on the city employees' claims of breach of contract and unconstitutional impairment of contract regarding an ordinance increasing their pension plan contribution rate because the Georgia General Assembly expressly contemplated that a municipal corporation's provision for employee retirement or pension benefits would be subject to being supplemented by local law. Borders v. City of Atlanta, 298 Ga. 188, 779 S.E.2d 279 (2015).   No notice required prior to council's consideration of participation in retirement system.    - City council is not required by statute to advertise notice of the council's intent to consider an ordinance extending participation in the Joint Municipal Employees Retirement System pension to the council's own members. City of Marietta v. Holland, 252 Ga. 299, 314 S.E.2d 97 (1984); Swann v. Board of Trustees, 257 Ga. 450, 360 S.E.2d 395 (1987).    Cited in King v. Herron, 241 Ga. 5, 243 S.E.2d 36 (1978).   OPINIONS OF THE ATTORNEY GENERAL    Policy behind subsection (a)  is to impose restrictions upon the powers of members of municipal governing authorities to increase their own salaries or compensation. 1980 Op. Att'y Gen. No. U80-27.    Subsection (a) does not prohibit increase from applying to whole council  after next election when that election involves less than all positions on the governing authority. 1980 Op. Att'y Gen. No. U80-27.    City may set up retirement system  for city employees without necessity of amending city charter. 1970 Op. Att'y Gen. No. U70-80.   RESEARCH REFERENCES   Am. Jur. 2d.   - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 185, 202 et seq., 221 et seq., 226. 63C Am. Jur. 2d, Public Officers and Employees, §§ 268 et seq., 279, 284.   Wrongful Termination of Retirement Benefits, 13 POF2d 531.   C.J.S.   - 62 C.J.S., Municipal Corporations, § 473 et seq.