Unofficial Opinion 2000-8
Georgia Court of Appeals
This is in response to your two letters requesting advice regarding your participation in the state retirement systems as a superior court judge and now as a member of the Georgia Court of Appeals. Following some general information, you will find below each of your numbered questions followed by a response. Each response is based on the understanding that you were first sworn in as a superior court judge on April 5, 1979; resigned on July 16, 1996; since that time, have held your current position as a member of the appellate bench; and, reached age 60 on March 26, 1999.
As a superior court judge, you were entitled to membership in the Superior Court Judges Retirement System (SCJRS). The statutory contract for that system is found in Chapter 9 of Title 471. Effective July 1, 1998, members of the SCJRS became members of the Judicial Retirement System (JRS), codified in Chapter 23 of Title 47, transferring to the new system in the “same status” held in the predecessor system. O.C.G.A. §§ 47-23-40, 47-23-45(d)(1). See also O.C.G.A. § 47-23-1(11). Your membership service in the SCJRS, from 1979 to 1996, was transferred in 1998 with the creation of the JRS. However, once you became a member of the appellate court bench in 1996, you were afforded the option to contribute to and become a member of the Employees' Retirement System (ERS), codified at Chapter 2 of Title 47, subject to the specific provisions applying to the membership options of appellate judges found at O.C.G.A. §§ 47-2-240 through 47-2-244. I understand that you accepted that option and provided the notice required under O.C.G.A. § 47-2-244(c).
As a prefatory matter, it is a well-established legal principle that statutes establishing a retirement plan for government employees become a part of an employee’s contract of employment while the employee contributes and participates in the system such that the statutory rights are vested and cannot be repealed or reduced by any subsequent statutory amendment. Parrish v. Employees' Retirement System of Ga., 260 Ga. 613 (1990); Swann v. Board of Trustees of the Joint Municipal Employees Benefit Fund, 257 Ga. 450 (1987); Withers v. Register, 246 Ga. 158 (1980). This principle applies to your prior membership in the Superior Court Judges Retirement System and current membership in the Employees' Retirement System. Moreover, under this principle, you retained any statutory rights that you held under the SCJRS despite the fact that that system is now subsumed by the JRS which has its own statutory provisions. See also O.C.G.A. § 47-23-40. Any determination of your rights under any of these systems requires consideration and construction of the statutory provisions of Chapters 2, 9 and 23 of Title 47 of the Official Code of Georgia Annotated in a manner which will bring harmony to the intent of the General Assembly in adopting the respective statutes creating these respective systems. Greene County v. North Shore Resort at Lake Oconee, 238 Ga. App. 236, 244 (1999), citing McPherson v. City of Dawson, 221 Ga. 861, 862 (1966) ("All statutes are presumed to be enacted . . . with full knowledge of the existing condition of the law and with reference to it; [statutes] are therefore to be construed in connection and in harmony with the existing law.")
Please note also the various minimum eligibility requirements for drawing a retirement benefit under the systems being compared. Under the Superior Court Judges Retirement System, a member with more than sixteen years of service is entitled to receive a retirement benefit, equivalent to 66.66 percent or greater of the salary of a sitting superior court judge, upon attaining age 60. O.C.G.A. § 47-9-70. This remains true since the system became part of the JRS. O.C.G.A. § 47-23-102. Having now attained age 60 and being vested with over seventeen years of service, you are currently eligible to draw a benefit from the JRS based on your service as a superior court judge. Under the appellate judges’ option of the ERS statute, you will be eligible to draw a benefit from that system upon reaching age 65 and having accrued ten years of creditable service as an appellate judge. O.C.G.A. § 47-2-244(f) and (m).
“1. If a person qualifies and vests under both of O.C.G.A. § 47-8-20, “Superior Court Judges Retirement Fund of Georgia”(qualified and elected April 5, 1979, resigned July 16, 1996) and O.C.G.A. § 47-2-244, “Optional benefits available to appellate court judges” (qualified and elected July 16, 1996, expected vesting July 16, 2006) and since the two are separate retirement systems, then can such person draw retirement benefits from both retirement systems at the same time, i.e., O.C.G.A. § 47-23-44?”
Yes, a person may receive a benefit from both the JRS and the ERS, assuming that the eligibility requirements of both statutes have been met.
Neither system contains any express prohibition upon a person’s drawing benefits from both systems (JRS and ERS) based on separate periods of creditable service. Notably, the election of the appellate judges’ option under ERS does require a rejection of the other ERS benefits. Specifically, O.C.G.A. § 47-2-244(c) provides as follows:
[a]ny appellate judge who seeks benefits under this Code section shall tender to the board of trustees . . . a written notice stating that the judge has elected to accept such benefits in lieu of any retirement allowances otherwise available under this retirement system.
O.C.G.A. § 47-2-244(c) (emphasis added). However, this section plainly uses the language “this retirement system” which can be read to apply only to the retirement system in which the statutory language is found – the ERS. Under the principle expressum facit cessare tacitum, the fact that the General Assembly made one specific prohibition, without reference to others, strongly implies that it did not intend for any further prohibition to exist. See Department of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1996) (“[E]xpressum facit cessare tacitum . . . means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all have been mentioned.”).3 Therefore, assuming that one meets the qualifications to draw a retirement allowance from both ERS, under the appellate judges’ option, and the JRS, there is no prohibition on receiving a retirement allowance from both systems. See 1981 Op. Att’y Gen. 81-22, p. 57. See also O.C.G.A. §§ 47-23-45(d)(1) and 47-23-45(e)(2)(A). But see the responses to questions number 2 and 5 below.
“2. If a person can draw benefits under both retirement systems and since 1996 Ga. Laws 104, 105, § 2, permits retirement under O.C.G.A. § 47-8-20 at age 60 (O.C.G.A. § 47-23-102) where the person is fully vested under such system, then can an appellate judge who has fully vested under O.C.G.A. § 47-8-20 and has reached age 60 (birth date March 26, 1939) draw both retirement benefits under such system as well as an active appellate court judges’ compensation since the retirement benefits are not paid by the state but the separate retirement funds?”
No, a person may not draw benefits from JRS while simultaneously drawing compensation as an appellate court judge.
As you may know, this office has previously opined that a judge who elected the appellate judges’ option of the ERS statute waived his or her right to benefits from the Superior Court Judges Retirement Fund. 1981 Op. Att’y Gen. 81-22. That opinion was based on the plain language of O.C.G.A. § 47-2-244(b) and (c) of the ERS statute which provides as follows:
(b) . . . any appellate court judge shall be entitled to receive the benefits under [the appellate judges’ option] in lieu of any retirement allowances otherwise available under this retirement system and in lieu of the appointment to or the holding of any emeritus office.
(c) [a]ny appellate court judge who seeks benefits under [the appellate judges’ option] shall tender to the [ERS] board of trustees . . . , within 60 days after the commencement of such judge’s term of office, . . . a written notice stating that the judge has elected to accept such benefits in lieu of any retirement allowances otherwise available under this retirement system and in lieu of the appointment to and the holding of any emeritus office.
O.C.G.A. § 47-2-244(c) (emphasis added). The receipt of retirement benefits under the Superior Court Judges Retirement Fund (hereinafter the “Fund”) required the assumption of the office of senior judge, an emeritus office. O.C.G.A. §§ 47-8-40, 47-8-41, and 47-8-42. Consequently, waiving the appointment to the emeritus office of senior judge necessarily resulted in waiving receipt of benefits under the Fund. 1981 Op. Att’y Gen. 81-22, p. 57.
This same analysis applied to persons who were members of the SCJRS, the judicial system which first replaced the Superior Court Judges Retirement Fund. Like the Fund, the receipt of retirement benefits from the SCJRS was also conditioned upon the acceptance of appointment to the office of senior judge, an appointment which was waived by acceptance of the appellate judges’ option. See O.C.G.A. § 47-9-60(a) and (b) (“No such former judge who declines . . . appointment [as a senior judge] shall be eligible to receive any benefits under this chapter until such former judge accepts appointment as senior judge”). See also O.C.G.A. § 47-2-244(b) and (c) (An appellate judge who “has elected to accept [the appellate judges’ option] accepts such benefits . . . in lieu of the appointment to and the holding of any emeritus office.”)
Moreover, the SCJRS statute provided specifically as follows:
[n]o senior judge of the superior courts shall be eligible for election or appointment to any other office of this state . . . Any judge of the superior courts who ceases to hold office and who would be eligible for appointment as senior judge under any provision of this Code section may decline such appointment and . . . accept appointment or election to other office.
O.C.G.A. § 47-9-60(b), emphasis added. But see State v. McMillan, 253 Ga. 154 (1984). Therefore, the assumption of state office as an appellate judge would have prevented the acceptance of appointment as a senior judge and, consequently, prevented the receipt of benefits from the SCJRS upon retirement.
However, as stated, your SCJRS membership was transferred to JRS in July 1998, and you carried your rights and entitlements under that statute when your membership was transferred to JRS. O.C.G.A. § 47-9-70. See also O.C.G.A. §§ 47-23-44, 47-23-45, and 47-23-102. Notably, the receipt of retirement benefits from the JRS is no longer conditioned on the acceptance or appointment to the office of senior judge. O.C.G.A. § 47-23-110 (“Any member retired under this chapter or vested for a benefit . . . may serve as a senior judge . . . and compensation for such service shall not affect, enhance, diminish, or otherwise impair the payment or receipt of any retirement or pension benefits of such judge.”). The only provision contained in the JRS which limits the circumstances under which a retiring member may return to service with the state is found at O.C.G.A. § 47-23-109. That section provides that:
if any retired member returns to the service of the state in any position except as a member of the General Assembly, his or her retirement allowance shall cease. Upon cessation of such service, the retired member, after proper notification to the board, shall receive the same retirement allowance which he or she was receiving prior to returning to state service, calculated with any increases granted during the period of compensation.
O.C.G.A. § 47-23-109. The suspension of the payment of the retirement allowance ends when the JRS retiree ceases to hold another position of service for the state or is limited if the service to the state does not exceed 1,040 hours per calendar year. O.C.G.A. § 47-23-109.
To the extent that the current JRS provision is less restrictive than the SCJRS provisions, it is assumed that the General Assembly meant to modify the prior prohibition. Employees Retirement System of Ga. v. Baughman, 241 Ga. 339, 341 (1978) (Retirement statutes must be liberally construed in favor of the member of the retirement system). Previously your acceptance of membership under the appellate judges’ option resulted in a waiver of receipt of any benefit that was conditioned upon service in an emeritus office. Under the JRS statute, your receipt of benefits is no longer conditioned upon the acceptance of an emeritus office and, thus, the waiver you provided upon accepting the appellate judges’ option would no longer bar receipt of a JRS benefit. Instead, the receipt of a benefit is subject to being suspended while holding the office of appellate judge under the terms and conditions of the reemployment limitation contained in O.C.G.A. § 47-23-109. Because this does not repeal or reduce a right that previously existed but, rather, narrows the prior limitation upon the member, it does not unlawfully alter the terms of the statutory contract. See Evans v. Employees Retirement System, 264 Ga. 729 (1994). Therefore, you would be prevented from receiving a retirement allowance from the JRS based on your service as a superior court judge while simultaneously drawing compensation from appointment or election to a state office to the extent that your holding that position requires you to perform service in excess of 1,040 hours per year. O.C.G.A. § 47-23-109. See Greene County v. North Shore Resort at Lake Oconee, 238 Ga. App. 236, 244 (1999), citing McPherson v. City of Dawson, 221 Ga. 861, 862 (1966) ("All statutes are presumed to be enacted . . . with full knowledge of the existing condition of the law and with reference to it; [statutes] are therefore to be construed in connection and in harmony with the existing law.")4
“3. If a judge is entitled to draw retirement benefits under O.C.G.A. § 47-8-20 (O.C.G.A. § 47-23-40) from age 60, as well as active appellate judge’s compensation, and if the judge does not draw such benefits until retirement as an appellate judge at or after age 65 under O.C.G.A. § 47-2-244, then are such monthly retirement benefits under O.C.G.A. § 47-8-20 (O.C.G.A. § 47-23-40) accrued until requested and paid in a lump sum along with future benefits or are such uncollected monthly retirement benefits forfeited, waived, or lapsed so that such sums are lost unless currently collected after age 60 has been reached?”
In order to draw benefits from the JRS, one must file an application specifying the date upon which a member desires to retire. O.C.G.A. § 47-23-103(a). However, as specified in the above response, you may not draw benefits from JRS and simultaneously receive compensation from a state position under the provisions of O.C.G.A. § 47-23-109. If you were to apply for a retirement benefit from JRS, it will be suspended under this provision for as long as you hold office as an appellate court judge. Upon your ceasing to hold office as an appellate court judge, you may begin drawing your retirement allowance as long as you do not assume any new appointment or election to state office. That allowance would be that to which you were entitled at the time of applying for retirement plus any increases that were awarded. O.C.G.A. § 47-23-109(a). Alternatively, you could wait to apply for benefits from SCJRS after ceasing to hold a state office. You will need to consult with the JRS to determine whether there is any economic advantage to one choice over the other. You may also want to consider my response to your question number 6 in addressing this situation.
“4. What effect, if any, does O.C.G.A. § 47-23-1 to -124 (“Georgia Judicial Retirement System”) have on the above issues?”
The JRS was adopted in 1998 as part of an effort to merge several existing judicial systems. It was adopted with the plain understanding that any transferring member was transferred in the same status as held with the predecessor system. O.C.G.A. § 47-23-44(d). Under O.C.G.A. § 47-23-120, the General Assembly specifically provided that:
[the adoption of the JRS] shall not deny or abridge any right, benefit, option, credit or election to which any person was entitled under a predecessor retirement system on June 30, 1998 . . . . All other persons who become members shall be subject to the provisions of this chapter.
O.C.G.A. § 47-23-120. Therefore, the transfer of your membership from SCJRS to JRS does not alter any right or entitlement which you held as a member of SCJRS except to the extent that the JRS provisions have the effect of increasing or improving your benefit entitlement. Parrish v. Employees' Retirement System of Ga., 260 Ga. 613 (1990); Swann v. Board of Trustees of the Joint Municipal Employees Benefit Fund, 257 Ga. 450 (1987).
“5. Under O.C.G.A. § 47-2-244(k), such section provides that ‘[a]n appellate judge who has accrued creditable service under this retirement system may convert such service in order to fulfill the conditions of this Code section on the basis of two years of creditable service being equivalent to one year of service credit under this Code section, provided that creditable service based upon the holding of office as an appellate judge shall be convertible to service credit under this Code section on an equal time basis.’ (a) Can the election under O.C.G.A. § 47-2-244(k) be made at any time prior to retirement under such system or death or does such election have to be made at the same time as the election to come under the plan in O.C.G.A. § 47-2-244(c)? (b) If a person is drawing retirement benefits under O.C.G.A. § 47-8-20 (now O.C.G.A. § 47-23-1, et seq.) at the same time that such person is serving as an appellate judge, then can an election to buy appellate court time still be made? If yes, (1) does the person pay the annual contribution and interest for each of the years purchased from funds separate from O.C.G.A. § 47-8-20; or (2) are such funds to purchase taken from the O.C.G.A. § 47-8-20 account and then are retirement benefits under O.C.G.A. § 47-8-20 recalculated and reduced to reflect the remaining vested years under such retirement system; or (3) are the retirement benefits under O.C.G.A. § 47-8-20 (O.C.G.A. § 47-23-1, et seq.) totally terminated and the unused employee contributions repaid to the contributing person?”
The answer to part (a) of your question is that the election may be made any time prior to retirement.
Actual superior court bench service may be purchased and credited within the ERS under the provisions of O.C.G.A. § 47-2-93.5 The superior court bench service can then in turn be converted to service credit under the appellate judges option pursuant to O.C.G.A. § 47-2-244(k) on the basis that two years of creditable service under ERS is equivalent to one year under the option. The provisions of O.C.G.A. § 47-2-244(k) which allow the conversion of creditable service under ERS into the appellate judges’ option contain no date by which that conversion must occur. Consequently, this office has previously opined “that the appellate court judge may defer the purchase, establishment and conversion of superior court bench service until such time as he wishes, but prior to retirement.” 1981 Op. Att’y Gen. 81-22, at 56. See also 1979 Op. Att'y Gen. 79-55 and 1972 Op. Att’y Gen. U72-65.
The answer to part (b) is “no” if the person is drawing benefits based on the same years of service as a superior court judge that he or she is seeking to convert under O.C.G.A. § 47-2-244(k) but “yes” if the receipt of benefits and the conversion of service credit is based on discrete periods of service as a superior court judge.
As discussed, O.C.G.A. § 47-2-244(k) in conjunction with O.C.G.A. § 47-2-93 allows a former superior court judge to convert his or her service on the superior court bench to be used in the enhanced benefit package provided exclusively to appellate court judges. Specifically, the authority in O.C.G.A. § 47-2-244(k) provides:
[a]n appellate court judge who has accrued creditable service under this retirement system may convert such service in order to fulfill the conditions of this Code section on the basis of two years of creditable service being equivalent to one year of service credit . . ..
O.C.G.A. § 47-2-244(k) (emphasis added). It is an established rule of statutory construction that the plain and ordinary meaning should be applied to all words used in a statute. O.C.G.A. § 1-3-1(b). The word “convert” ordinarily means to “change into another form, substance, state, or product”; to “transform”; to “exchange for something of an equal value”; or, to “exchange by substituting an equivalent of another form.” American Heritage Dictionary (Houghton Mifflin 2nd College Edition, 1982), at 320. In other words, the same period of service cannot be used as the basis for a benefit under the JRS while also being “converted” into service credit under the ERS because conversion necessarily implies that the creditable service is being changed, transformed, exchanged or substituted for something else.
Additionally, I noted, in response to your second question, that the provisions of the appellate judges option and the provisions of the SCJRS, when construed together so as to give harmony to both, resulted in a waiver of receipt of benefits from the SCJRS upon acceptance of the appellate judges’ option. Compare O.C.G.A. § 47-2-244(b) and (c) with O.C.G.A. § 47-9-60(b). While I further noted that the General Assembly’s adoption of the JRS reflected an intent to allow drawing the benefit from JRS and ERS subject to the suspension of the JRS benefit while in office as an appellate court judge, nothing in that statute suggests any intent to allow a former superior court judge to use the same years of service as a superior court judge for purposes of drawing a benefit and converting under ERS. See Evans v. Employees' Retirement System, 264 Ga. 729 (1994) (holding that one may not rely on service credits of one retirement system for use under another retirement system in the absence of specific statutory authority); Bentley v. State Bd. of Med. Examiners of Ga., 152 Ga. 836, 838 (1922)(As a public entity created by the legislature, the retirement system "has only such powers as the legislature has expressly, or by necessary implication, conferred upon it.") See also O.C.G.A. § 47-2-330 (“Except as otherwise specifically provided in this chapter, no program of pensions or retirement benefits for employees . . . which program is funded wholly or partially by the state, shall apply to members or beneficiaries of this retirement system.”).
“6. Under the Georgia Judicial Retirement System (O.C.G.A. § 47-23-1 to -124) are my benefits of two thirds plus one per cent for each year beyond 16 years of service, i.e., 17 years, three months, and 11 days (O.C.G.A. § 47-23-102) calculated based upon my salary as a superior court judge at the date of ceasing to receive such salary on July 16, 1996, or the salary of a superior court judge on the date of retirement, i.e., the date when the member begins receiving a retirement benefit (O.C.G.A. § 47-23-100(1))?”
The answer to your question is that benefits are based on the salary of a superior court judge on the date of retirement not the actual salary of the former superior court judge seeking to retire. A member of JRS with more than sixteen years of service is entitled to receive a retirement benefit, equivalent to 66.66 percent or greater of the salary of a sitting superior court judge, upon attaining age 60. O.C.G.A. § 47-23-102. Under the plain language of O.C.G.A. § 47-23-100(a)(1), the term “salary” is defined to mean the “salar[y] from state funds provided by law for judges of the superior courts on the date the member begins receiving a retirement benefit.” By Georgia law, “defined words [in a statute] shall have the meanings specified, unless the context in which the word or term is used clearly requires that a different meaning be used.” O.C.G.A. § 1-3-2. Therefore, the benefit is based on the salary received by a sitting superior court judge as of the date of retirement of the JRS member.
“7. Since O.C.G.A. § 47-23-109 was passed and became effective on July 1, 1998, under 1998 Ga. Laws 513, § 1, after all my rights had fully vested under the prior law with the right to retire at age 60 years, then can O.C.G.A. § 47-23-109(a) be constitutionally applied retroactively to me to deprive me of receiving current retirement benefits by treating me as retired and then returning to the service of the state in any position as a Court of Appeals of Georgia active judge, causing the immediate suspension of retirement benefits so long as I am an active judge on the Court of Appeals of Georgia or does O.C.G.A. § 47- 23-120 act to permit retirement under the system with immediate retirement benefits while serving as an active judge or the Court of Appeals of Georgia as an included exception under a predecessor retirement system?”
This question was addressed in the response to question number 2.
I trust that this information is responsive to your inquiries but please do not hesitate to let me know if you need any additional information.
SUSAN L. RUTHERFORD
Senior Assistant Attorney General
1Membership in the Superior Court Judges Retirement System was mandatory for any person first becoming a member of the superior court bench after December 31, 1976. O.C.G.A. § 47-9-40. The predecessor system for superior court judges, the Superior Court Judges Retirement Fund, codified at Chapter 8 of Title 47, was closed out in 1968. The provisions found in Chapter 8 do not apply to any person who had not been a contributing member of that Fund. 1981 Op. Att’y Gen. 81-101; 1992 Op. Att’y Gen. U92-2.
2In responding to your questions, I relied on the provisions of O.C.G.A. Ch. 47-9 that are comparable to the ones you reference found in O.C.G.A. Ch. 47-8 since your membership rights in the SCJRS are specified in Chapter 9. See footnote 1.
3The Code section which you reference, O.C.G.A. § 47-23-44, found in the JRS statute does allow a member of the JRS to draw a benefit based on service from one or more “predecessor” systems. While this code section supports the conclusion that a person may draw from more than one system, it does not apply to the present situation because the “predecessor” systems referenced therein are specifically defined at O.C.G.A. § 47-23-1(11) and do not include the ERS.
4My analysis is not affected by the fact that your retirement eligibility under JRS occurred after your acceptance of another state position. It is clear that the General Assembly’s intent in altering these provisions was to continue to limit the reemployment of a JRS retiree in another state office.
5The prior service provisions of O.C.G.A. § 47-2-245, as amended in 2000, apply only to employees of the appellate courts, not the judges or justices. O.C.G.A. §§ 47-2-242 and 47-2-243.