Unofficial Opinion 94-15
O.C.G.A. § 33-23-1(b)(1) permits unlicensed administrative employees in the office of an insurance agent to open mail containing insurance premium checks.
You have requested this office to determine whether an administrative employee, who is not licensed as an insurance agent, can open mail containing premium checks. The correspondence you have enclosed indicates that the Insurance Department interprets the Insurance Code as allowing administrative personnel to do so. You further indicated that the Insurance Department asserted it had attempted to clarify this matter in its regulations but that our office had rejected the Insurance Department's interpretation. However, this Office has never addressed the precise question you have presented.
The Insurance Code requires that insurance agents be licensed by the Insurance Department. O.C.G.A. § 33-23-4(a). The term "agent" is defined at O.C.G.A. § 33-23-1(a)(3). Official Code of Georgia Annotated § 33-23-1(b) lists a number of individuals who are excluded from the definition of the term "agent" and who, therefore, would not have to be licensed as an agent.
Official Code of Georgia Annotated § 33-23-1(b)(1) provides, "agent" does not include "any . . . employee of . . . an agent or subagent who performs only clerical or administrative
services in connection with any insurance transaction so long as such person is not involved in soliciting insurance, signing or countersigning contracts, or receiving premiums." (Emphasis added.)
The Insurance Department has not requested an interpretation regarding the scope of the exemption set forth at O.C.G.A. § 33-23-1(b)(1). Instead, the Insurance Department forwarded a copy of its proposed "Regulations Regarding Agents, Subagents, Adjusters, and Counselors," to be found at Chapter 120-2-3 of the Rules and Regulations of the Office of Commissioner of Insurance, for our review. Chapter 120-2-3-.03(2) of the proposed regulation contained the following provision,
The definition of 'agent, subagent, counselor, and adjuster' shall not be deemed to include . . . an employee of an agent or subagent who performs only clerical or administrative services, including the receipt of premiums, in connection with any insurance transaction so long as such person is not involved in soliciting insurance, signing or countersigning contracts, or assisting in any way in completing an application for insurance.
The language regarding the receipt of premiums contained in the Insurance Department's proposed regulation was in direct conflict with the language in O.C.G.A. § 33-23-1(b)(1). In pertinent part, the statute limits the exemption to employees performing administrative or clerical tasks "so long as such person is not involved in . . . receiving premiums." O.C.G.A. § 33-23-1(b)(1). In contrast, the proposed regulation included in the exemption any employee performing administrative or clerical services "including the receipt of premiums." Chapter 120-2-3-.03(2). Because an agency's regulations may not conflict with its governing statute, we advised the Insurance Department that it was not authorized to adopt the proposed regulation. See, e.g., Georgia Real Estate Comm'n v. Accelerated Courses in Real Estate, 234 Ga. 30 (1975).
In any event, it appears that the Legislature did not intend to prohibit agency employees from opening letters containing premium checks or any other purely clerical task. Official Code of Georgia Annotated § 33-23-1(b)(1) clearly provides that an employee who performs only clerical or administrative services is not an "agent," as defined in the Insurance Code. The limitation on "receiving premiums" contained in O.C.G.A. § 33-23-1(b)(1) apparently refers to the act of obtaining premiums for transmission to the insurance company, an act specifically reserved for licensed agents. For instance, O.C.C.A. § 33-23-1(a)(3) includes within the definition of "agent," an individual "who as representative of an insurer receives money for transmission to the insurer for a contract of insurance . . . and who has on file with the Commissioner a certificate of authority from each insurer with whom the agent places insurance."
Therefore, it is my unofficial opinion that administrative personnel who perform the clerical duties of opening envelopes containing premium checks need not be licensed as insurance agents.
WILLIAM W. CALHOUN
Assistant Attorney General