GA Code § 47-2-70 (2021)
2021 Georgia Code|Title 47 - Retirement and Pensions|Chapter 2 - Employees' Retirement System of Georgia|Article 4 - Membership in the Retirement System|§ 47-2-70. Determination of Membership; Termination of Membership

  After January 1, 1950, any person who becomes an employee of any employer which operates under a merit system of personnel administration and which is covered by the retirement system shall become a member of the retirement system as a condition of his or her employment, except as otherwise specifically excluded.   The membership of any person shall terminate if he or she retires under this retirement system, withdraws his or her contributions, or renders less than one year of service within a period of five consecutive years as a member. No benefit under the retirement system shall accrue to a member's account while he or she is not in service as an employee and no contribution shall be made to the retirement system by the member, the state, or any other employer during any such time.   The board of trustees may continue the membership of any person while such person is on leave of absence with stipend for professional training when such leave is approved in writing by the employer for which the employee renders service, provided that a member who receives a stipend while on leave for professional training shall make a monthly contribution to the retirement system, which contribution shall be the same basic percentage of his or her salary as an employee as he or she contributed in the last month prior to the effective date of leave. A member shall be considered as being in service while on such leave.    (Ga. L. 1949, p. 138, § 3; Ga. L. 1951, p. 394, § 2; Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 2; Ga. L. 1959, p. 107, § 2; Ga. L. 2010, p. 1207, § 7/SB 436.)    The 2010 amendment,  effective July 1, 2010, inserted "or her" near the end of subsection (a); deleted former subsection (b), which read: "Any person who was an employee during the fiscal year ending June 30, 1949, or who becomes an employee prior to January 1, 1950, shall become a member unless prior to January 1, 1950, he files with the board of trustees, on a form provided by it, a notice of his election not to be included in the membership of the retirement system, together with a duly executed waiver of all present and prospective benefits which would otherwise accrue to him by participating in the retirement system. Such an employee may thereafter apply for and be admitted to membership, but without credit for service rendered after July 1, 1949, and prior to the time he becomes a member and without prior service credit, unless he pays into the retirement system the amount of deductible contributions that would have been paid by such member together with interest on such amount equal to the amount of interest earned by the retirement system at 31/2 percent per annum had the amounts been paid in during the period. Upon making such payments, he shall be entitled to all service credits from the year 1949."; redesignated former subsections (c) and (d) as present subsections (b) and (c), respectively; in present subsection (b), inserted "or she" twice and inserted "or her" in the first sentence; and, in the first sentence of present subsection (c), inserted "or her" and inserted "or she".   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."   OPINIONS OF THE ATTORNEY GENERAL   Governor's office is statutorily covered agency.   - All officials and employees of any state department or agency are included within the Employees' Retirement System of Georgia, whether such officials and employees are in the classified or unclassified service; the Governor's office would be includable as a department or agency within the meaning of Ga. L. 1949, p. 138 et seq. 1973 Op. Att'y Gen. No. 73-39.    Historic Chattahoochee Commission is not a statutorily covered agency  within the meaning of Ga. L. 1949, p. 138 et seq. 1979 Op. Att'y Gen. No. 79-14.   Department of Education employees included.   - Under existing law, current and future employees of the State Department of Education must be included within the membership of the Employees' Retirement System of Georgia. 1983 Op. Att'y Gen. No. 83-2.    Since the employees of the State Department of Education are employed within a state board or department, the mandatory inclusion under the Employees' Retirement System in O.C.G.A. § 47-2-70 completely supplanted and repealed by implication any inclusion of such employees under the definition of "teacher" in O.C.G.A. § 47-3-1(28). 1983 Op. Att'y Gen. No. 83-2.    Ga. L. 1953, Jan.-Feb. Sess., p. 349, § 2 (see O.C.G.A. § 47-2-70) does not apply to Ga. L. 1953, Nov.-Dec. Sess., p. 305, §§ 1-5 (see O.C.G.A. § 47-2-290). 1957 Op. Att'y Gen. p. 225.   Interest should not accrue when member out of service.   - Interest should not accrue to member's account while member is not in service as employee. 1971 Op. Att'y Gen. No. 71-26.   Former member cannot claim increase by law authorizing additional benefits.    - Primary "object" or purpose of the language in subsection (c) of this statute is to prevent a former member presently receiving a retirement benefit from claiming increased benefits as a result of an amendment to the law authorizing such additional benefits to existing members; this was not intended to prevent a former member from obtaining service credits or benefits which one is rightfully entitled to prior to one's retirement, but which one never receives by virtue of an honest mistake or error in one's records. 1976 Op. Att'y Gen. No. 76-58 (see O.C.G.A. § 47-2-70).    Provision in subsection (c) of this statute, that no benefit under the retirement system shall accrue to a member's account while the member is not in service as an employee, was intended to prevent a former member presently receiving a retirement benefit from claiming increased benefits as a result of any amendment to the law authorizing additional or increased benefits for existing members. 1977 Op. Att'y Gen. No. 77-24 (see O.C.G.A. § 47-2-70).    Right to receive a retirement allowance after 25 years of service, provided for in O.C.G.A. § 47-2-120(e), is not a new "benefit" that has accrued and is not proscribed by subsection (c) of O.C.G.A. § 47-2-70. 1999 Op. Att'y Gen. No. 99-10.   RESEARCH REFERENCES   Am. Jur. 2d.   - 60A Am. Jur. 2d, Pensions and Retirement Funds, §§ 1166 et seq., 1197 et seq.   C.J.S.   - 67 C.J.S., Officers and Public Employees, § 316 et seq. 81A C.J.S., States, § 216.