Can sick leave a Georgia state employee earned while a member of ERS be credited toward retirement under the Teachers Retirement System after the employee transfers to a TRS-covered job?

Plain-English summary

The Teachers Retirement System asked whether new TRS members who came over from agencies covered by the Employees' Retirement System could carry their old ERS-era sick leave into TRS as creditable service for retirement. The AG said no. The 1998 statute that first allowed TRS members to use accumulated sick leave as retirement credit, O.C.G.A. § 47-3-92, only contemplated sick leave earned while the person was already a TRS member. Where the legislature wanted to allow ERS-to-TRS service transfers, it spelled out the conditions in separate statutes (§§ 47-3-81 and 47-3-85). Its silence on ERS-era sick leave was treated as deliberate exclusion.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

The opinion came out of an administrative practice problem. The Board of Regents of the University System of Georgia let new Regents employees transfer their accumulated sick and annual leave from prior state employers. Many of those employees had previously been ERS members. After the 1998 amendment that first let TRS members bank sick leave for retirement credit, the question was whether their pre-Regents ERS-era sick leave should also count.

The AG read § 47-3-92 textually. The terms "employer," "actual service," "member," and "creditable service" appear together throughout, and they all describe the relationship between TRS and a TRS member. There was no language extending the credit to leave earned outside the TRS-member relationship.

Two structural points reinforced the textual reading. First, the legislature had enacted other statutes (§§ 47-3-81 and 47-3-85) that specifically governed how ERS service could be transferred or credited to TRS, with detailed conditions and required additional contributions. Under the expressio unius canon, applied in Hutchinson, the legislature's silence on ERS-era sick leave in § 47-3-92 looked deliberate. Second, the funding mechanism in § 47-3-92(c) capped the credit at "appropriations provided by the General Assembly to fund the provisions of this subsection together with any increase in employer contributions." If the legislature had intended to credit sick leave earned while the employee worked for an ERS employer (which would not be paying TRS contributions for that period), it would have addressed the funding shortfall, and it did not.

Citing Bentley, the AG also noted that TRS, as a creature of statute, could only do what the legislature had expressly or by necessary implication authorized it to do. The amendment did not give TRS authority to credit sick leave from ERS members, so TRS could not.

For TRS administrators and HR offices at the time

This was a clean rule: only sick leave actually accrued during TRS membership counted toward retirement credit under § 47-3-92. Records had to track which days of sick leave were earned during which employment relationship. The Board of Regents practice of accepting transferred sick and annual leave for current-use purposes did not change the retirement-credit analysis, which depended on what the leave had originally been earned under.

For employees who moved between systems

The opinion meant that an employee who built up sick leave under an ERS-covered job, then moved to a TRS-covered job and joined TRS, would not see the old leave count toward TRS retirement credit. The employee could still use the ERS-era leave as actual sick leave (subject to the new employer's transfer policy), but not as a retirement-service add-on.

Common questions

Q: What did O.C.G.A. § 47-3-92 actually do?
A: Adopted in July 1998, it let TRS members convert accumulated unpaid sick leave into creditable retirement service, capped at one month of credit for every twenty days of sick leave, subject to legislative funding.

Q: Why did the AG read it so narrowly?
A: Because the statute used member-and-employer language throughout and never mentioned non-TRS employers or non-TRS service. Other parts of the TRS code (§§ 47-3-81 and 47-3-85) spelled out the precise conditions for transferring ERS service in. Their existence suggested the legislature knew how to allow cross-system credit when it wanted to, and chose not to here.

Q: Could the Board of Regents change this through internal policy?
A: No. TRS only had the authority the legislature gave it, and the legislature gave none for ERS-era sick leave. A Regents policy could not expand TRS's statutory authority.

Background and statutory framework

Before the 1998 amendment, TRS members could not use accumulated sick leave at all toward retirement. ERS members had been able to use forfeited sick and annual leave as creditable service since 1974. The 1998 amendment, codified at § 47-3-92, was a partial alignment of the two systems. The statute imposed a one-and-one-fourth days per month accrual cap and required the employer to certify a member's total sick leave at retirement based on leave records that the employer had to keep for at least 50 years.

The funding mechanism made plain that the credit was scaled to legislative appropriations and to employer contributions. The Public Retirement System Standards Act required actuarial soundness. Crediting outside-TRS service without paying for it would have undermined that framework.

Citations and references

Statutes:
- O.C.G.A. § 47-3-92 (TRS sick leave credit)
- O.C.G.A. § 47-3-81 (ERS-to-TRS transfer with additional contributions)
- O.C.G.A. § 47-3-85 (TRS credit for prior ERS service)

Cases:
- Department of Human Resources v. Hutchinson, 217 Ga. App. 70 (1995), on the expressio unius canon
- Bentley v. State Bd. of Med. Examiners, 152 Ga. 836 (1922), on agency authority being limited to what the legislature granted

Source

• Landing page: https://law.georgia.gov/opinions/2000-2

Original opinion text

This is in response to your request for an opinion regarding the scope of O.C.G.A. § 47-3-92, adopted in July, 1998. You have asked specifically as to whether sick leave accrued by an employee while a member of the Employees' Retirement System (hereinafter ERS) can be credited towards the individual's retirement service under the Teachers Retirement System (hereinafter TRS) pursuant to the authority of this statute. Generally, the statutory section in question authorizes the use of accumulated sick leave as creditable service towards retirement under the Teachers Retirement System. Prior to its adoption, members of the Teachers Retirement System could not make use of accrued sick leave. By contrast, the counterpart system for state employees, the Employees' Retirement System, has allowed the use of forfeited sick and annual leave as creditable service since 1974. Your question arises as a result of the practice of the Board of Regents of the University System of Georgia which allows employees of other state agencies who become Regents' employees to transfer their accumulated sick and annual leave at the time of employment with the Regents. Many of these employees may have previously belonged to ERS and been employed by an employer covered by the ERS. While your question arises because of the practice of the Board of Regents specifically, the general issue goes to whether persons who accrue sick leave while not members of TRS may get credit towards retirement under TRS for that sick leave under this amendment. The relevant portions of the statute provide as follows: (a) For purposes of this Code section, the maximum amount of sick leave which may be accumulated in one year shall be one and one-fourth days per month of actual service. In the event any employer authorizes sick leave in excess of such amount, any such leave used in any year shall be deducted from the maximum amount of leave authorized for that year by this Code section. Nothing in this Code section shall require any employer to grant any certain amount of sick leave. (b) Accumulated days of sick leave accrued on, after, or before July 1, 1998, for which a member has not been paid shall constitute creditable service as provided in subsection (c) of this Code section. Such creditable service may be used to qualify for retirement but may not be used to qualify for vesting for benefits. Upon retirement of a member, the employer shall certify to the board of trustees the total amount of that member's sick leave based on leave records. It shall be the duty of each employer to maintain accurate records reflecting sick leave used and accumulated by each employee and to keep such records for at least 50 years. O.C.G.A. § 47-3-92. The general use of the phrases "employer," "actual service, " "member" and "creditable service" together in this Section suggest that this Section contemplates that the sick leave will be accrued while the person is earning creditable service as a member of TRS. Although there is no language specifying this limitation, the absence of any specific language authorizing the use of sick leave earned as a member of ERS as creditable service under TRS is notable. The General Assembly has otherwise plainly contemplated the fact that employees of the state who have been ERS members may become TRS members. There are provisions elsewhere in the TRS statute that set out the specific conditions under which ERS service can be transferred and credited to TRS. See O.C.G.A. § 47-3-81 (transfer from ERS to TRS requires payment of additional contributions). See also O.C.G.A. § 47-3-85 (TRS member may get credit for prior ERS service upon meeting specific conditions). If the General Assembly specifically includes language in one section of a statute and fails to include that language in a provision dealing with the same subject matter, it is assumed that the exclusion is intentional. See Department of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1995) ("The omission of [specific statutory language] 'invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. [Cites omitted.]"). Under this principle, had the General Assembly intended for a TRS member to be able to receive credit for sick leave accrued while a member of ERS, it would have made specific reference to the terms and conditions under which that ERS time could be credited just as it has with all other service transferable from ERS. As an administrative body created by the legislature, the TRS "has only such powers as the legislature has expressly, or by necessary implication, conferred upon it." Bentley v. State Bd. of Med. Examiners, 152 Ga. 836, 838 (1922). The amendment contains no specific authority to credit the sick leave accrued by a member while belonging to the ERS. This conclusion is bolstered by the language contained in paragraph (c) of this amendment. That paragraph provides: (c)(1) A member shall be given such creditable service, not to exceed one month of creditable service for each 20 days of sick leave, in direct relation to appropriations provided by the General Assembly to fund the provisions of this subsection together with any increase in employer contributions made pursuant to paragraph (2) of this subsection, . . . (2) In order to fund the provisions of this Code section in whole or in part, the board of trustees is authorized, but not required, to increase the amount of employer contributions in direct proportion to the amount shown in the appropriation Acts enacted for such purpose by the General Assembly. O.C.G.A. § 47-3-92(c). Consistent with the overall requirements of the Public Retirement System Standards Act, defining funding standards to assure actuarial soundness, this language demonstrates the clear intent of the General Assembly to not authorize a crediting of retirement service beyond that which could be funded or recovered from TRS employers. Again, had the General Assembly intended to create a broad authority, allowing for the crediting of sick leave accrued for time other than when employed by a TRS employer, it would have made specific provision for the source of funding the cost of that retirement credit. Reviewing the auditor's statement at the time of his review of the bill, there does not appear to be any contemplation of providing for additional funding. Based on the statutory language, the lack of authorizing language and the absence of additional funding, it is my official opinion that only days of sick leave accrued while a member of the Teachers Retirement System may be credited towards retirement under the Teachers Retirement System under the provisions of O.C.G.A. § 47-3-92. Prepared by: ______ SUSAN L. RUTHERFORD Senior Assistant Attorney General