GA Code § 47-2-91 (2021)
2021 Georgia Code|Title 47 - Retirement and Pensions|Chapter 2 - Employees' Retirement System of Georgia|Article 5 - Service Creditable Toward Retirement Benefits|§ 47-2-91. Credit for Accumulations of Forfeited Annual and Sick Leave

  As used in this Code section, the term:   "Classified member" means a member of the retirement system who is in the classified service as defined in Code Section 45-20-2.   "Commissioner" means the commissioner of administrative services provided for by Code Section 50-5-1.   "Compensatory time" means time off from work which is used in lieu of annual or sick leave to offset overtime service rendered by an employee when the employee is compensated by a fixed salary and is not financially compensated for such overtime service.   "Elected state official" means the Governor, Lieutenant Governor, each member of the Public Service Commission, the Secretary of State, Attorney General, State School Superintendent, Commissioner of Insurance, Commissioner of Labor, Commissioner of Agriculture, each Justice of the Supreme Court, and each Judge of the Court of Appeals.   "Unclassified member" means any member of the retirement system who is in the unclassified service as defined in Code Section 45-20-2 or who is otherwise not covered by the rules and regulations of the State Personnel Board, including elected state officials.       Accumulated days of forfeited annual and sick leave for which a member has not been paid shall constitute creditable service if such member has at least six months of such forfeited leave at the time of the member's retirement. The member shall be given one month of creditable service for each 20 days of forfeited annual and sick leave. Upon retirement of a classified member, the employer shall certify to the board of trustees the total amount of that member's forfeited annual and sick leave based on leave records for periods of service where employers have maintained adequate leave records. For periods of service where no leave records are available for classified members, forfeited leave for an undocumented period may be computed as provided in subsection (i) of this Code section. The determination of accumulated days of forfeited annual and sick leave for unclassified members shall be based on leave records for periods of service where employers have maintained adequate leave records. For periods of service where no leave records are available, forfeited leave for unclassified employees shall be computed as follows:   When 15 years or more of leave records are available for an unclassified member, the determination of forfeited leave for undocumented periods shall be computed as provided in subsection (i) of this Code section; or   When less than 15 years of leave records are available for an unclassified member, the determination of forfeited leave for undocumented periods shall be based on the one-year average amount of forfeited annual and sick leave calculated by the commissioner pursuant to subsection (f) of this Code section and as provided in subsection (g) of this Code section, subject to the limitation in subsection (j) of this Code section.     For both classified and unclassified members, each employer shall contribute the same amount as would have been contributed by the employer had the member obtaining creditable service for forfeited annual and sick leave remained in state employment without change in compensation for a period of time equal to the amount of forfeited annual and sick leave for which creditable service is obtained.     For unclassified members, the maximum number of days of annual and sick leave which may be accumulated in one year shall be in accordance with the rules and regulations of the State Personnel Board governing employees in classified service, as defined in Code Section 45-20-2.   For the purposes of this Code section, compensatory time shall not be applicable to elected state officials and no elected state official may offset any annual or sick leave taken by any such official by any compensatory time which might otherwise be applicable to such official.   When accumulated forfeited annual and sick leave is claimed for the purposes of this Code section by an elected state official based on records maintained by or pursuant to the order or supervision of the elected state official, any such accumulated annual and sick leave accepted by the board of trustees shall, in addition to such records, be based on the elected state official's sworn statement that the amount of accumulated forfeited annual and sick leave claimed by the elected state official is true and correct.   The commissioner shall select a random representative sample of employees who, as of June 30, 1985, have ten years or more of continuous service in the classified service as defined by Code Section 45-20-2. From an examination of the personnel records of the members in the sample, the commissioner shall calculate an annual average of the number of days of annual leave taken and an annual average of the number of days of sick leave taken by the members in the sample. The average days for annual leave taken and the average days for sick leave taken shall then each be deducted, respectively, from the maximum number of days of annual leave and the maximum number of days of sick leave which may be accumulated in one year under rules and regulations of the State Personnel Board by an employee in the classified service as defined by Code Section 45-20-2. The two figures resulting after making such reductions shall be added together and the resulting figure shall be forfeited annual and sick leave for each year of membership service for the purposes of subsection (g) of this Code section, subject to the limitation in subsection (j) of this Code section.   The average amount of forfeited annual and sick leave calculated by the commissioner pursuant to subsection (f) of this Code section shall be supplied by that officer to all employers. When less than 15 years of leave records are available, the determination of forfeited annual and sick leave for unclassified employees with undocumented periods may be certified by the employer based on the average amount of forfeited annual and sick leave supplied by the commissioner. The amount which may be so certified shall be calculated by multiplying the figure representing the one-year average of forfeited annual and sick leave by the number of years of membership service for which leave records were not available at the time of retirement, subject to the limitation in subsection (j) of this Code section.   For any member whose membership service includes service as both a classified and unclassified member, both classified and unclassified service may be considered in qualifying for undocumented forfeited annual and sick leave calculations based on 15 or more years where employers have maintained adequate records of annual and sick leave taken by members. When 15 or more years of leave records are available through a combination of both classified and unclassified service, forfeited annual and sick leave for an undocumented period may be computed as provided in subsection (i) of this Code section. When less than 15 years of leave records are available through a combination of both classified and unclassified service for a member, then the undocumented forfeited leave for the unclassified service shall be calculated pursuant to subsection (g) of this Code section and undocumented forfeited leave for classified service shall be calculated pursuant to subsection (i) of this Code section, subject to the limitation in subsection (j) of this Code section. The two calculations shall then be added together to determine the total amount of forfeited leave for the undocumented period.   The formula provided by this subsection may be utilized for computation of forfeited annual and sick leave during the undocumented periods of service described in paragraph (1) of subsection (b) and subparagraph (b)(1)(A) of this Code section. The formula is as follows:   Compute the maximum earnable sick and annual leave for the undocumented period;   Compute the total sick and annual leave taken for all periods in which documentation is available;   Compute the average sick and annual leave taken per month by dividing the answer under paragraph (2) of this subsection by the total number of documented months;   Multiply the answer under paragraph (3) of this subsection by the total number of months in the undocumented period; and   Subtract the answer under paragraph (4) of this subsection from the answer under paragraph (1) of this subsection to determine total leave earned and not taken during the undocumented period.     For unclassified employees who have less than 15 years of leave records available, the determination of forfeited annual and sick leave shall be limited to the lesser of the amount calculated pursuant to subsections (f) and (g) of this Code section or the average of actual forfeited annual and sick leave for which leave records are available, whichever is less.   The board of trustees may adopt rules and regulations, not inconsistent with the provisions of this Code section, to aid in administering and carrying out the provisions of this Code section.    (Ga. L. 1974, p. 1451, § 1; Ga. L. 1976, p. 393, § 1; Ga. L. 1979, p. 1022, § 1; Ga. L. 1985, p. 1624, § 2; Ga. L. 1993, p. 86, § 1; Ga. L. 2009, p. 752, § 1/SB 98; Ga. L. 2010, p. 1207, § 64/SB 436; Ga. L. 2012, p. 413, § 6/HB 805.)    The 2009 amendment,  effective July 1, 2009, substituted "State Personnel Administration" for "State Merit System of Personnel Administration" in paragraphs (a)(1), (a)(5) and in the first sentence of subsection (f).    The 2010 amendment,  effective July 1, 2010, substituted "the State Personnel Administration" for "the state merit system" at the end of the third sentence of subsection (f).    The 2012 amendment,  effective July 1, 2012, substituted "as defined in Code Section 45-20-2" for "of the State Personnel Administration provided for by Chapter 20 of Title 45" in paragraphs (a)(1) and (a)(5); substituted "administrative services provided for by Code Section 50-5-1" for "personnel administration provided for in Code Section 45-20-4" in paragraph (a)(2); deleted "paragraph (2) of" following "defined in" in subsection (c); and substituted "as defined by Code Section 45-20-2" for "of the State Personnel Administration" in the first and third sentences of subsection (f).   Editor's notes.   - 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. 1207, § 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.   JUDICIAL DECISIONS   Accumulated forfeited leave constitutes creditable retirement service.    - The Georgia Constitution does not prohibit the award to elected judicial officers of creditable service for retirement purposes based upon accrued but unused annual leave and sick leave. Arneson v. Board of Trustees, 257 Ga. 579, 361 S.E.2d 805 (1987).   OPINIONS OF THE ATTORNEY GENERAL   Section applicable to state employee members after 1974.    - Statute is applicable only to those persons who are both employed by the state and members of the retirement system on or after the statute's effective date. 1974 Op. Att'y Gen. No. 74-79 (see O.C.G.A. § 47-2-91).   Department of Revenue's power as to county tax officials.   - Department of Revenue does not have the authority to promulgate rules and regulations limiting the accumulation and use of sick, annual, and compensatory leave for county tax officials and employees. 1982 Op. Att'y Gen. No. 82-98.   As the employer for the purposes of retirement system membership, the Department of Revenue may specify the manner in which the certification and documentation for forfeited leave of county tax officials and employees is made. 1982 Op. Att'y Gen. No. 82-98.   Accumulated forfeited leave constitutes creditable retirement service.   - Accumulated days of forfeited sick and annual leave of a member of the retirement system which were earned in state service and for which the employee is not otherwise entitled to be paid constitute creditable retirement service, notwithstanding the fact that some of the leave was forfeited prior to the employee's retirement. 1976 Op. Att'y Gen. No. 76-7.    Under O.C.G.A. § 47-2-91, constitutional officers and officials under the Compensation Act can accrue annual and sick leave for the purpose of gaining creditable service toward retirement for any unused, forfeited leave. 1982 Op. Att'y Gen. No. 82-96.   When commissioner of natural resources resigned to become Commissioner of Labor, the commissioner was entitled to collect terminal annual leave from the Department of Natural Resources, and all other accrued leave the commissioner was not eligible to collect as terminal leave should have been transferred to the Department of Labor as forfeited leave, to be added to the commissioner's leave accrued solely for retirement purposes as Commissioner of Labor. 1985 Op. Att'y Gen. No. 85-59.   Responsibility for contribution for forfeited leave.   - When a member of the Employees' Retirement System of Georgia retires and is entitled to creditable service for forfeited leave, the member's last covered employer is responsible for making the employer's contribution for the forfeited leave, regardless of where the employee worked when the leave was forfeited. 1991 Op. Att'y Gen. No. 91-30.   Statutory formula used in absence of leave records.    - In the absence of leave records maintained by the employer on classified employees, an employing agency must use the formula set forth in subsection (i) of O.C.G.A. § 47-2-91 for certifying the amount of forfeited leave available to the employee for retirement purposes. 1987 Op. Att'y Gen. No. 87-12.   Transferability of forfeited leave.    - Forfeited leave cannot be established as creditable service under the provisions of O.C.G.A. § 47-2-91 prior to retirement and therefore, it is not transferable to the Teachers Retirement System pursuant to O.C.G.A. § 47-3-81. 1985 Op. Att'y Gen. No. 85-8.