This is in response to your letter of January 24, 1997 regarding proposed consolidation and redirection efforts of the Department of Human Resources (hereinafter DHR). Your questions relate to the effect of O.C.G.A. § 47-2-123(g) and (h) on separations resulting from those efforts.

Before addressing your questions, I would note that during the pendency of your request the General Assembly passed, and the Governor signed, the Governmental Reorganization and Termination from Employment Reform Act of 1997 (hereinafter "the Act"). Since the Act significantly impacts upon the issues that you have asked this office to address, I have taken the liberty of modifying your requests to the extent necessary to address the changes which will result as a consequence of the new legislation.

Under the provisions of O.C.G.A. § 47-2-123(h), any employer must notify the Commissioner of Personnel Administration of any planned discretionary termination of an employee eligible for involuntary separation retirement benefits. The Commissioner of the State Merit System of Personnel Administration is then required to follow several procedural steps which are intended to find the employee a comparable position elsewhere in state government so as to continue his or her employment and avoid the involuntary separation. See generally O.C.G.A. § 47-2-123(h). As you have correctly noted, under O.C.G.A. § 47-2-123(h), any position for continued employment of an

official or employee proposed for involuntary separation must have annual compensation which is the same or greater than his or her current annual compensation; duties which are "reasonably compatible" with the previous work experience and educational qualifications; must entitle the holder to membership in the Employees' Retirement System; and must be available for acceptance at least one day prior to the effective date of the employee's separation. O.C.G.A. § 47-2-123(h)(2)(A)-(D).

You have asked two questions regarding this provision which I will repeat herein, followed by my responsive comments.

(1) If DHR has identified another DHR position which meets each of the four requirements for the position of continued employment, as discussed above, can DHR simply offer to reassign the employee who would otherwise be terminated to the identified position, without following the process of notification to the Commissioner of Personnel Administration?

The answer to this question is "yes." In the case of an internal reassignment, the employee in question is not in fact being proposed for termination, and therefore the involuntary separation provisions of O.C.G.A. § 47-2-123(h) would not necessarily apply. An agency would nevertheless have to look to the factors set forth in O.C.G.A. § 47-2-123(h) to insure that the position to which the employee is being transferred is in fact "comparable" so as not to run afoul of the involuntary separation restrictions. See Alford v. Public Serv. Comm'n, 262 Ga. 386, 388 (1992) ("the statute does not require [the employing agency or department] to reappoint . . . [the employee to an identical position], the [employing agency] must offer . . . a job with reasonably compatible duties and at the same pay as . . . [the former position].").

As mentioned above, the General Assembly has this year passed Act No. 471, which is a comprehensive amendment to Title 45. Under the provisions of what will be codified as O.C.G.A. § 45-24-8, any employer proposing a reorganization that has the potential to result in an involuntary separation of an employee or official eligible for involuntary separation is not only allowed to place the employee elsewhere in the agency but is required to do so. This enactment of the General Assembly supports the conclusion that it always intended the agency

to have the authority to place internally in a comparable position any employee whose position was proposed for elimination pursuant to a reorganization.

(2) If DHR has identified another DHR position which meets each of the four requirements for the position of continued employment, as discussed above, but would also entail reassignment of the employee from a position in the classified service to a position in the unclassified service, would the position in the unclassified service be considered to be a "comparable" position which would satisfy the requirements of O.C.G.A. § 47-2-123(h)?

The provisions of O.C.G.A. § 47-2-123(h) do not contain a precise definition of a "comparable" position outside of the requirement of the four elements you identified. The Alford decision previously discussed specified that the offer to the employee must be one of "a reasonably comparable job at the same pay to any employee subject to a discretionary termination." Alford v. Public Serv. Comm'n, 262 Ga. 386, 388 (1992). While an employer is not required to offer an identical position, the position must have "compensation equal to [the] prior position and duties that are consistent with [the employee's] training and education." Alford, 262 Ga. at 389. As the Alford court noted, two earlier holdings in cases involving involuntary separation retirement benefits reached similar conclusions. See Bennett v. Board of Trustees of the Employees' Retirement Sys., 258 Ga. 201, 202 (1988) (holding employee was not involuntarily separated when he was offered both a comparable job with greater salary potential and a job within the classification he sought but in another location). See also Board of Trustees of the Employees' Retirement Sys. v. Englade, 256 Ga. 458, 458-59 (1986) (finding refusal of offer of another position within the same department at the same wage but with altered responsibility would be a voluntary termination).

It is my understanding that both the previous Commissioner of the State Merit System and the Board of Trustees of the Employees' Retirement System have taken the position that the offer of an unclassified position to a classified employee proposed for involuntary separation is, in and of itself, not a comparable position, even though all compensation, duties and responsibilities are otherwise identical or substantially similar. I do not agree with this interpretation, and under the recently enacted Act, the General Assembly has addressed

the issue of classified and unclassified service when an agency is attempting to place an employee subject to a separation as a result of a reorganization plan. Specifically, the General Assembly provided as follows:

(2) [t]he duties and responsibilities for such position shall be reasonably compatible with the previous work experience and educational qualifications of the official or employee being transferred and the availability of an unclassified position for a person in a classified position shall be deemed a comparable position if the duties, responsibilities, and compensation of the unclassified position are otherwise comparable to the classified position.

O.C.G.A. § 45-24-8(a)(2) (emphasis added). Therefore, under the new Act, the status of the positions as classified or unclassified would not affect the comparability of the positions.

Your staff has indicated that these questions have been posed because DHR is in the process of making a number of reorganization plans. I am aware that a number of other agencies are also in a similar stage of planning. Therefore, I believe it important to point out that while the State Personnel Oversight Commission created by the Act will not be in place until July 1, 1997, other provisions of the legislation were effective upon signature by the Governor, and will therefore impact on the decisions that are being made by these agencies.

Significantly, under O.C.G.A. § 45-24-8, any employer instituting a reorganization of the agency or any component thereof is required to comply with certain procedural steps regarding the placement of employees who may be eligible for involuntary separation. Specifically, that Section provides as follows:

(a)[n]o employer shall institute a reorganization of that employer or any component thereof if the reorganization will result in the involuntary separation of any official or employee thereof who is eligible for involuntary separation unless, prior to that reorganization becoming effective, that employer effects a transfer of each such official or employee to another component of the employer not subject to such reorganization or obtains a transfer of each such official or employee to another employer.

O.C.G.A. § 45-24-8(a) (emphasis added). Under the plain language of this Section, the placement or transfer of affected employees must occur "prior to that reorganization becoming effective." Id. The provision states further that "[a] reorganization in violation of this Code section is void." Because the Act was effective upon signature, the requirements and restrictions of this Section would apply to any planned reorganization which is not effective or complete prior to the date of signature of the Act, i.e., April 29, 1997.

Prepared by:

Senior Assistant Attorney General