This is in response to your April 15, 1996, letter requesting my opinion regarding whether state agencies are authorized to provide for additional voluntary salary deduction programs.

Georgia law provides for automatic voluntary salary deductions for payments to credit unions, payment of insurance premiums, and purchase of United States savings bonds. O.C.G.A. §§ 45-7-50, -51, -52. In 1994, a law was passed to provide for additional automatic voluntary salary deductions to certain not-for-profit organizations. O.C.G.A. § 45-7-54. Prior to the passage of the specific laws referenced above, this Office had repeatedly opined that voluntary salary deductions faced two potential legal obstacles: "first, is there legal authorization for the deduction, and second, is the deduction a gratuity in violation of the Georgia Constitution." 1982 Op. Att'y Gen. 82-79, p. 155. See also 1976 Op. Att'y Gen. 76-119 (deductions for union dues not authorized); 1976 Op. Att'y Gen. 76-114 (deductions for parking fees not authorized); 1974 Op. Att'y Gen. U74-62 (deductions for charitable organizations not authorized).

The salary deductions provided for in the 1994 law at issue here clearly pass the first obstacle since express legislative authority is given in O.C.G.A. § 45-7-54 for the deductions in question. The second obstacle is arguably passed for the reasons contained in Op. Att'y Gen. 82-79; to wit, the deductions benefit the employee and become part of the employee's contract of employment with the state, and the administrative costs of the program are deducted from the money collected on behalf of covered organizations in accordance with O.C.G.A. § 45-7-54(f). {1}

Code Section 45-7-54 authorizes any "department, agency, authority, or commission of the state" to provide for automatic voluntary salary deductions to "not-for-profit organizations, associations, or corporations providing tangible services and benefits to state government or its employees."{2} In order to qualify as a participant in a voluntary salary deduction program, the organization must have among its objectives "educational, legislative, or professional development activities related to promoting and enhancing the efficiency, productivity, and welfare of state government services or of state government employees." O.C.G.A. § 45-7-54(a). Subsection (a) further requires that deductions shall only be authorized if at least 2,500 full-time employees of the state request such a deduction. {3}

The Commissioner of the State Merit System of Personnel Administration, pursuant to O.C.G.A. § 45-7-54(c), has adopted administrative provisions to implement O.C.G.A. § 45-7-54. Section 3 of those provisions sets forth the manner in which an organization may file an application to qualify as a participant in an automatic voluntary salary deduction program. The application must include: 1) a copy of the organization's charter or by-laws which includes a description of the organization's goals; 2) proof of not-for-profit status (documentation of qualification as a § 501(c)(3-8) corporation under the Internal Revenue Code); and 3) at least 2500 employee enrollment authorization forms.

In your letter, you asked whether O.C.G.A. § 45-7-54(a) authorizes a not-for-profit organization whose membership dues are currently being deducted under that Code Section to have other voluntary member tangible benefits approved for automatic payroll deduction. The answer to that question is yes, provided that the organization submits an application and obtains approval from the Commissioner of the State Merit System in accordance with the above-referenced administrative provisions.

Code Section 45-7-54(f) provides that the employing agency or department shall collect from the deductions withheld pursuant to that Code Section an administrative fee not to exceed one percent of the total deductions collected. In your letter you asked whether the administrative fee would be applicable to any additional payroll deductions which might be approved in addition to an organization's membership dues. The language of the Code Section shows a clear intent that the employing agency shall collect an administrative fee not to exceed one percent of all deductions collected.

Prepared by:

Assistant Attorney General

{1} Whether the second obstacle is passed depends upon the application of Garden Club of Georgia, Inc. v. Shackelford, 266 Ga. 24 (1995). In that case, the Georgia Supreme Court found invalid, as violating Ga. Const. 1983, Art. III, Sec. VI, Para. VI (the anti-gratuities provision), Department of Transportation regulations allowing billboard owners to trim trees on state rights-of-way. The decision turned on whether the state or its citizens had received substantial benefits from the billboard owners.

{2}It should be noted that O.C.G.A. § 45-7-54(e) specifically prohibits deductions to organizations or associations which attempt to engage in collective bargaining with the state or encourage its members to strike or stop work.

{3}Subsection (b) of O.C.G.A. § 45-7-54 authorizes full-time state employees employed by the Division of Family and Children Services, or employed in the law enforcement or registered nursing disciplines, to request voluntary automatic salary deductions to be paid to any not-for-profit organization whose objectives relate to professional development activities. At least 500 full-time employees of the state must request such a payroll deduction plan in order for it to qualify.