If a Georgia community service board (CSB) hires someone after July 1, 1996, is that employee in the State Merit System's classified service (with hearing rights before dismissal) or in the unclassified service?

Plain-English summary

Georgia's community service boards (CSBs) are the regional public bodies that deliver mental health, developmental disability, and substance abuse services to most of the state's population. They became state agencies for State Merit System purposes in 1994. The CSB statute, O.C.G.A. § 37-2-6.1(b)(7), tells each CSB to comply with the State Merit System's rules and says "each employee of such board shall be a covered employee as defined in Code Section 45-20-2, subject to the rules and regulations of the state merit system."

In 1996, the General Assembly significantly restructured the State Merit System (O.C.G.A. § 45-20-1(a)): "all positions filled after July 1, 1996, shall be included in the unclassified service of the state merit system." The classified service (§ 45-20-6(a)) is the older system, where positions are protected by a working test period and formal due-process rights before dismissal. The unclassified service does not include those rights.

The Commissioner of the Merit System asked the AG how to reconcile the two: does the CSB statute lock in classified status for every CSB employee, or does the 1996 reform's "after July 1, 1996" cutoff also reach CSB employees?

The Attorney General concluded that the 1996 cutoff applies. CSB employees hired before July 1, 1996 remain in the classified service. CSB employees hired after that date are in the unclassified service.

The opinion's reasoning is structural. First, the words "covered employee" in the CSB statute are not the same as "classified service." Section 45-20-2(5) defines "covered employee" as "subject to the rules and regulations of the state merit system." That definition applies to both classified and unclassified employees alike. So § 37-2-6.1(b)(7)'s "covered employee" language does not by itself put anyone in the classified service.

Second, classification under the Merit System depends on the position and the time it was filled, not on who occupies the position. Section 45-20-6(a) defines classified service as "all positions filled by agencies prior to July 1, 1996," and § 45-20-6(b) sweeps all other positions into unclassified service. CSB statutes do not contain the kind of express override that would create a special carve-out for CSBs.

Third, a 2002 amendment to the CSB statute (§ 37-2-6.1(b)(14)) authorizes CSBs to "contract with the State Merit System of Personnel Administration regarding its personnel who remain in the classified service." The word "remain" tells you that the General Assembly assumed not all CSB personnel are in the classified service: some have moved into the unclassified service through ordinary turnover, while others (hired before July 1, 1996) "remain" classified. If everyone were classified, the word "remain" would have nothing to do.

The opinion also distinguishes the Georgia Supreme Court's footnote in Youngblood v. Gwinnett Rockdale Newton Community Service Board, 273 Ga. 715, 716 n.2 (2001), which described CSB employees as "subject to the State Merit System rules and regulations in regard to employment and dismissal." The AG read that footnote as making a general point about CSBs being state agencies for tort claims purposes, not as drawing the classified/unclassified line.

Currency note

This opinion was issued in 2003. 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.

In particular, Title 45, Chapter 20 (the State Merit System) was substantially restructured by the 2009 reform legislation (HB 642), which renamed and reorganized the state's personnel administration. The classified/unclassified distinction may persist in modified form; anyone reading this for an actual employment dispute should consult the current chapter and the State Personnel Board's current rules.

Common questions

Q: What practical difference does classified vs. unclassified service make?
A: Classified employees have due-process protections before dismissal or other adverse employment action. Under § 45-20-8(a), they can be dismissed only in accordance with State Personnel Board rules, which historically meant a notice, an opportunity to respond, and access to a hearing. Unclassified employees are at-will: they can be dismissed without those formal procedures, subject only to general anti-discrimination law and contract terms.

Q: Does this opinion mean a CSB employee hired in 2002 has no protections at all?
A: No, just that the formal Merit System hearing process does not attach. The employee may still have rights under federal law (Title VII, ADA, FMLA), under any individual employment contract, and under CSB-level personnel policies. They simply do not have the additional layer of state merit-system due process.

Q: What if a classified CSB employee was promoted into a new position after July 1, 1996?
A: Section 45-20-2(15)(GG) addresses that: classified employees who, after July 1, 1996, accept employment in an unclassified position become unclassified. So a promotion or transfer post-July 1996 typically converts the employee to unclassified status. Compare § 45-20-17 (interdepartmental transfers may retain "permanent status rights" in some circumstances).

Q: Why did the General Assembly switch most positions to unclassified?
A: The 1996 reform aimed to "allow[] agencies greater flexibility in personnel management so as to promote the overall effectiveness and efficiency of state government." (Section 45-20-1(a).) The trade-off was less job-tenure protection in exchange for management flexibility.

Q: What about the CSB-juvenile-court parallel?
A: The opinion contrasts CSBs with O.C.G.A. § 15-11-24.3, which expressly designated certain juvenile court probation and intake employees transferred after June 30, 1996 as "covered employees in the classified service." That kind of express designation is what would carve a CSB-employee exception out of the 1996 reform; the CSB statute lacks it.

Q: Does the 2002 amendment shifting to "remain" mean CSBs must contract for classified-service services?
A: No. The amendment is permissive ("each community service board may contract"). It says CSBs have the option to use the Merit System's services for those of their personnel who are still in the classified service.

Background and statutory framework

CSBs were created by the 1993 Georgia Mental Health, Developmental Disabilities, and Addictive Diseases Act (1993 Ga. Laws 1445), which made them state agencies and brought their employees under the State Merit System. Each board functions as a regional service-delivery body governed by an appointed lay board.

The 1996 civil service reform was a structural shift. Prior to that reform, most state employees were in the classified service, with substantial procedural protections before dismissal. After the reform, all newly filled positions went into the unclassified service. Existing classified employees kept their classified status until they left or moved to unclassified positions, but the system was designed to phase out the classified service over time as employees turn over.

The CSB statute was drafted before the 1996 reform and uses the slightly older "covered employee" language. The Commissioner asked the AG to resolve the resulting interpretive friction. The AG used three standard tools: in pari materia construction (read the two statutes together so neither is rendered nullity), the presumption that the General Assembly knows existing law when it amends a statute, and the rule that statutes in derogation of common law (here, the Merit System's deviation from common-law at-will employment) are strictly construed. All three pointed to the same conclusion: the 1996 cutoff applies to CSBs unless the General Assembly carves out an exception, and it didn't.

Citations and references

Statutes:
- O.C.G.A. § 37-2-6.1(b)(7) (CSB employees are covered employees)
- O.C.G.A. § 37-2-6.1(b)(14) (CSBs may contract with Merit System for "personnel who remain in the classified service")
- O.C.G.A. § 45-20-1(a) (1996 cutoff)
- O.C.G.A. § 45-20-2 (definitions; covered employee, classified, unclassified service)
- O.C.G.A. § 45-20-6(a) and (b) (definition of classified and unclassified service)
- O.C.G.A. § 45-20-8; § 45-20-9 (due-process protections for classified employees)
- O.C.G.A. § 45-20-17 (interdepartmental transfers)
- O.C.G.A. § 15-11-24.3(d) (juvenile court employees express classified-service designation, used as comparison)

Cases:
- Ryan v. Commissioners of Chatham County, 203 Ga. 730 (1948) (in pari materia construction)
- Abernathy v. City of Albany, 269 Ga. 88 (1988) (legislature presumed to know existing law)
- Peachtree-Cain Co. v. McBee, 254 Ga. 91 (1985) (same)
- Meinken v. Burgess, 262 Ga. 863 (1993) (legislative-amendment-as-evidence-of-intent)
- Youngblood v. Gwinnett Rockdale Newton Community Service Board, 273 Ga. 715 (2001) (CSBs as state agencies for tort claims; distinguished)

Other AG opinions:
- 1981 Op. Att'y Gen. 81-47 (strict construction of statutes in derogation of common law)
- 1987 Op. Att'y Gen. 87-35 (classification depends on position, not employee)

Source

• Landing page: https://law.georgia.gov/opinions/2003-2
• Original PDF: not linked from landing page

Original opinion text

You have requested my opinion on whether employees of community service boards hired after July 1, 1996, are included in the State Merit System's classified service. Specifically, you seek reconciliation of the language in O.C.G.A. § 37-2-6.1(b)(7) that "each employee of [a community service board] shall be a covered employee as defined in Code Section 45-20-2, subject to the rules and regulations of the state merit system" with the language of O.C.G.A. § 45-20-2(15)(EE) which excludes from the State Merit System classified service those employees who are employed in "[a]ll positions filled on or after July 1, 1996 …." Since there are two statutory schemes involved, State Merit System and community service boards, each will be discussed separately and then reconciled. State Merit System The State Merit System is a system of personnel administration which performs functions for employees of state departments in both unclassified and classified service. O.C.G.A. §§ 45-20-1; 45-20-3(b)(2). As of July 1, 1996, the State Merit System underwent a significant change when the General Assembly mandated that "all positions filled after July 1, 1996, shall be included in the unclassified service of the state merit system …." O.C.G.A. § 45-20-1(a). This was a result of the General Assembly's intent to "allow[] agencies greater flexibility in personnel management so as to promote the overall effectiveness and efficiency of state government." O.C.G.A. § 45-20-1(a). Under the State Merit System, a covered or classified employee is defined as an "employee subject to the rules and regulations of the state merit system." O.C.G.A. § 45-20-2(5). Similarly, a covered or classified position "means a position subject to the rules and regulations of the state merit system." O.C.G.A. § 45-20-2(6). Classified service under the State Merit System consists of "all positions filled by agencies prior to July 1, 1996, except those included by law in the unclassified service and except as provided in Code Section 15-11-24.3."1 O.C.G.A. § 45-20-6(a); see also O.C.G.A. § 45-20-2(2). Unclassified service consists of "all positions in the departments of state government not included in the classified service under this article…." O.C.G.A. § 45-20-6(b); see also O.C.G.A. § 45-20-2(15)(EE)-(GG). Currently, the most significant distinguishing factor between employees in classified and unclassified service is that only employees in the classified service are provided a formal statutory review process, generally in the form of a hearing, upon dismissal or other adverse action related to their employment. O.C.G.A. §§ 45-20-8(a); 45-20-9.2 Community Service Boards In 1994, community service boards became state departments for purposes of the State Merit System. See 1993 Ga. Laws 1445, 1479-80, 1489 (codified at O.C.G.A. § 37-2-6.2(a)(Supp. 2002): O.C.G.A. § 45-20-2(2), (7). With respect to community service board employees, O.C.G.A. § 37-2-6.1(b)(7) (Supp. 2002) provides that "[e]ach community service board shall comply with the provisions of Chapter 20 of Title 45, relating to state personnel administration, and each employee of such board shall be a covered employee as defined in Code Section 45-20-2, subject to the rules and regulations of the state merit system …." The General Assembly recently amended O.C.G.A. § 37-2-6.1 to provide that "[e]ach community service board may contract with the State Merit System of Personnel Administration regarding its personnel who remain in the classified service." O.C.G.A. § 37-2-6.1(b)(14) (Supp. 2002) (emphasis added). Reconciliation Since both statutory schemes at issue address the State Merit System, they must be read in pari materia by construing and harmonizing the statutes together to "ascertain the legislative intendment," especially since "the terms of the statute to be construed are ambiguous." Ryan v. Commissioners of Chatham County , 203 Ga. 730, 731-32 (1948). The ambiguity lies in the use of the phrase "covered employees" in the community service board statutes and the use of "classified service" and "classified position" in the State Merit System statutes. Whether a position is classified under the State Merit System depends upon two things: (1) the position itself and (2) the time the position was filled. Official Code of Georgia Annotated § 45-20-6(a) specifies that classified service consists "of all positions filled by agencies prior to July 1, 1996 , except those included by law in the unclassified service and except as provided in Code Section 15-11-24.3." (Emphasis added.) Likewise, O.C.G.A. § 45-20-6(b) specifies that unclassified service consists of "all positions in the departments of state government not included in the classified service." (Emphasis added.) Official Code of Georgia Annotated § 45-20-2(15)(GG) further supports the interpretation that classification under the State Merit System depends upon the position and time it is filled, not upon the employee occupying that position, by mandating that classified employees who, after July 1, 1996, accept employment in an unclassified position become employees in the unclassified service. See also 1981 Op. Att'y Gen. 81-47, 1987 Op. Att'y Gen. 87-35.3 The community service board statutes establish that "each employee [of a community service board] shall be a covered employee as defined in the Code Section 45-20-2, subject to the rules and regulations of the state merit system." O.C.G.A. § 37-2-6.1(b)(7) (emphasis added). Moreover, the community service board statutes do not contain any language making any new or filled position after July 1, 1996, a position in the classified service of the State Merit System.4 Because the statutes creating community service boards do not specify that all positions are to be in the classified service, the conclusion is that, consistent with the State Merit System statute, all new or filled community service board positions after July 1, 1996, are in the unclassified service. This interpretation is further supported by the recent amendment to the community service board statute, O.C.G.A. § 37-2-6.1(b)(14), which states that "[e]ach community service board may contract with the State Merit System of Personnel Administration regarding its personnel who remain in the classified service ." (Emphasis added.) Since the General Assembly is deemed to know existing legislation, the use of the word "remain" acknowledges the changes in the classification of employees in the State Merit System after July 1, 1996. See Abernathy v. City of Albany , 269 Ga. 88, 89-90 (1988); Peachtree-Cain Co. v. McBee , 254 Ga. 91, 93 (1985). Moreover, the recent amendment is a clear indication of the General Assembly's intent that not all community service board employees are in the classified service. See Meinken v. Burgess , 262 Ga. 863, 865 (1993).5 Accordingly, it is my conclusion that community service board employees hired after July 1, 1996, are not employees in the classified service of the State Merit System.6 Prepared by: KIRSTEN S. DAUGHDRIL Assistant Attorney General 1 O.C.G.A. § 15-11-24.3(d) provides that "[p]ersons who were probation and intake employees of the juvenile court of a county on June 30, 1996, … shall be covered employees in the classified service of the state merit system." 2 O.C.G.A. § 45-20-6(d) provides that "employees in the classified service [are] required to serve a working test period before they obtain merit system protection …." Pursuant to O.C.G.A. § 45-20-8, permanent status employees may be dismissed or have other adverse action related to their employment only if such action is taken in accordance with the rules and regulations of the State Personnel Board. Permanent status employees are those employees who have successfully competed a working test period. O.C.G.A. § 45-20-2(9). Accordingly, since only "employees in the classified service" are required to serve and complete a working test period, it is only employees in the classified service who are subject to due process in relation to their dismissal or other adverse action related to their employment. 3 But see O.C.G.A. § 45-20-17 (providing that certain employees participating in interdepartmental transfers may retain "permanent status rights"). 4 Cf. O.C.G.A. § 15-11-24.3 (expressly designating certain juvenile court employees transferred after June 30, 1996, to be "covered employees in the classified service"). 5 This interpretation is also consistent with the rule of statutory construction that laws in derogation of the common law, such as the State Merit System, must be strictly construed. See 1981 Op. Att'y Gen. 81-47. 6 The Georgia Supreme Court's statement in Youngblood v. Gwinnett Rockdale Newton Community Service Board , 273 Ga. 715, 716 n.2 (2001) that "[community service board] employees are subject to the State Merit System rules and regulations in regard to employment and dismissal" is not in conflict with this conclusion. The issue in Youngblood was whether community service boards were state agencies for purposes of the Georgia Tort Claims Act. Youngblood , 273 Ga. at 716. In comparing community service boards with other state agencies, the court noted that community service board employees were subject to the State Merit System; however, the Court did not distinguish between those employees hired by community service boards before and after July 1, 1996, as that was not the issue.