Official Opinion 98-22
Board Of Regents Of The University System Of Georgia
Your office has asked for my opinion as to whether ROTC faculty members are eligible to receive educational tuition remission and reimbursements under the Board of Regents’ Tuition Remission and Reimbursement Program (“TRR”). As outlined in your letter, the Board of Regents’ TRR program is available to full-time university system employees.
Section 803.1407 of the Rules of the State Board of Regents provides as follows:
The University System and the institutions will encourage full-time faculty, staff, and administrators to participate in development activities and study by remitting or reimbursing tuition for those activities that have been authorized by the employee’s institution and are clearly related to the employee’s job or career in the University System of Georgia.
Full-time employees (who meet the applicable admission standards and have received appropriate prior authorization from their institution) may register without tuition or fees for up to two academic credit courses per term on a space available basis at his/her own University System institution.
Full-time employees (who meet applicable admission standards and have received appropriate prior authorization from their institution) may register for up to two academic credit courses per term at any other University System institution. Unless other arrangements have been made with the receiving institution, the employee will be reimbursed for tuition and fees by his/her home institution upon successful completion (grade of C or better depending on course requirements to receive credit) of the course.
If the course or program of study needed by the employee is not available at an institution within the University System, a full-time employee may be granted permission to register for courses offered by a private institution, a DTAE institution or a private vendor. The employee will be reimbursed for tuition and fees by his/her home institution upon successful completion of the course.
It is clear from the language of Board of Regents’ Rule 803.1407 that the TRR program is intended to benefit “full-time employees” of the Board of Regents. This issue rests upon whether the ROTC faculty at the various Board of Regents’ institutions are “employees” of the Board of Regents or serve as independent contractors employed by some other entity.
The test to be applied in determining whether a person is employed as a full-time employee or an independent contractor is whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract. Williams v. Department of Corrections, 224 Ga. App. 571, 573 (1997). An independent contractor is one who exercises an independent business and who is not subject to the immediate direction and control of the employer. O.C.G.A. § 51-2-4.
Recently the Georgia Court of Appeals reversed a Superior Court Judge’s ruling that an ROTC instructor at a Board of Regents’ institution is an agent of the institution. Armstrong State College v. McGlynn, 234 Ga. App. 181 (1998). In considering the issue, the court placed a great emphasis on the fact that Board of Regents’ institutions enter into an agreement with the United States Army for the establishment of Army ROTC units which includes language that the institution does not have the right to control the time, manner, and method of the Army’s performance under the agreement. Id. Relevant examples within a typical agreement for the establishment and maintenance of ROTC units such as that included with your correspondence include:
(a) The Army agrees to assign such military personnel as it may deem necessary for the proper administration and conduct of the ROTC program and to pay the compensation to Department of Army personnel;
(b) The Army agrees to provide to the ROTC unit available U.S. government property and to pay the expense of the government’s costs in shipping, maintaining, and storage of the property at the institution;
(c) The Army agrees to pay the prescribed rate of wages to enrolled members of the ROTC unit who qualify;
(d) The Army agrees to pay for and provide uniforms for the enrolled members of the ROTC unit; and
(e) The Army agrees to provide financial assistance to specially selected members of the ROTC unit.
In exchange, the Board of Regents’ institution agrees, in pertinent part, to establish a Department of Military Science and adopt as part of its curriculum a course of military instruction that the Secretary of the Army will prescribe and conduct. The institution agrees to require members of the ROTC unit to devote time to military instruction, to make the necessary space available to the Department of Military Science for the running of the ROTC unit, to grant appropriate academic credit for the ROTC courses applicable toward graduation, and to arrange for the scheduling of military classes. The institution is only required to include a representative of the Department of Military Science on those faculty committees whose recommendations would affect the Department of Military Sciences.
Additionally, the parties agree that the senior commissioned officer assigned to the institution by the Army will be given the rank of professor. It is further agreed that the Secretary of the Army will have the right at any time to relieve from duty any officer, warrant officer, or enlisted man of the army assigned to the institution.
Clearly, the agreement entered into by the parties contemplates that the United States Army will control the time, manner, and method of maintaining the ROTC unit at Board of Regents’ member institutions. Based upon the foregoing, it is my official opinion that the ROTC faculty members at Board of Regents’ institutions are not “full-time employees” and are independent contractors and not authorized to receive benefits under the Board of Regents TRR program.
BRYAN K. WEBB
Assistant Attorney General