Members of your staff have asked for advice as to whether the Department of Human Resources must accept a letter of resignation that is tendered by a departmental employee prior to the effective date of his or her proposed dismissal. This question was raised as a result of a recent ruling by the Office of State Administrative Hearings (OSAH) in a state Personnel Board appeal that involved a terminated employee. In the case in question, the Administrative Law Judge ruled, in apparent reliance on 1992 Op. Att'y Gen. 92-25, that the Department cannot refuse to accept a resignation submitted by an employee so long as the effective date of the resignation is prior to the effective date of dismissal. I have reviewed the order and believe that the order mistakenly relies on that opinion in reaching its conclusion. I offer the following as a further clarification of the earlier opinion.

Official Opinion 92-25 dealt exclusively with the interpretation of O.C.G.A. 45-20-93, a statute that requires the termination of an employee "found to have used an illegal drug." 1992 Op. Att'y Gen. 92-25. In that opinion, my predecessor in office responded to the narrow question "whether an agency may permit a person to resign, rather than be fired, who tests positive for illegal drug use or who refuses to submit to a drug screening." The opinion concluded that an agency would be in compliance with the statute either if the agency accepted the employee's resignation before the proposed employee's proposed termination date or if the agency terminated the employee. The opinion did not conclude, however, that an agency was required to accept an employee's resignation in lieu of dismissal.

Georgia law clearly provides that an employee's resignation is not effective until the employer accepts that resignation. Henry County Bd. of Registrars v. Farmer, 213 Ga. App. 522 (1994); Allen v. Lankford, 170 Ga. App. 605 (1984). In addition, the State Personnel Board Rules explicitly authorize the Department to dismiss employees for cause. See Ga. Comp. R. & Reg. r. 478-1-15.204. In light of both legal principles, it is my official opinion that an employer has the discretion to accept or refuse a letter of resignation that is tendered prior to the effective date of a proposed dismissal.

Prepared by:

Assistant Attorney General