Are teachers at Georgia commission charter schools required to be members of the Teachers Retirement System?

Plain-English summary

The Executive Director of the Teachers Retirement System of Georgia (TRS) asked whether teachers at the new "commission charter schools" (charter schools authorized by the Georgia Charter Schools Commission, not by local boards) had to enroll in TRS as a condition of employment.

The Attorney General gave a layered answer. The General Assembly likely intended TRS coverage because Article 31A of Title 20 (which created commission charter schools in 2008) repeatedly calls these schools "public schools" and "a critical component in this state's efforts to provide efficient and high-quality schools within this state's uniform system of public education." But there is a textual problem: TRS's own definition of "public school" in O.C.G.A. § 47-3-1(21) requires the school to be "under the authority and supervision of a duly elected county or independent board of education." Commission charter schools are deliberately not under local board supervision; they are authorized by a state commission and funded directly by the Department of Education. So they may not technically meet the TRS public-school definition.

This creates an ambiguity the courts have not resolved. Recognizing the inconsistency, the AG fell back on the statute's own dispute-resolution mechanism: O.C.G.A. § 47-3-1(28) says "[t]he Board of Trustees shall determine in doubtful cases whether any person is included within the definition" of teacher. The TRS Board's interpretation gets deference (citing McKelvey v. Ga. Judicial Retirement Sys. and Hosp. Auth. of Gwinnett County v. State Health Planning Agency). So unless the General Assembly clarifies, the TRS Board has discretion to decide whether commission charter school teachers are members.

The opinion expresses a strong preference for treating them as TRS members, on the grounds that any other reading would make local charter school teachers TRS members but their state-commission-charter peers not, which would be illogical and not what the General Assembly likely intended.

Currency note

This opinion was issued in 2010. 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.

Note especially that the entire commission charter school scheme was struck down by the Georgia Supreme Court in Gwinnett County School District v. Cox, 289 Ga. 265 (2011), which held that the Charter Schools Commission Act unconstitutionally created competing schools outside the public school system. A constitutional amendment in 2012 restored the structure. Any current analysis should account for those developments.

Common questions

Q: How are Georgia's charter schools structured?
A: The opinion identifies three categories. (1) Local charter schools, authorized by the local board of education (subject to state board approval). They remain "[s]ubject to the control and management of the local board." (2) State chartered special schools, where the State Board of Education approves a charter that the local board denied. (3) Commission charter schools, which a separate Georgia Charter Schools Commission can authorize directly under Article 31A enacted in 2008. There is also a fourth structure (charter systems) where a State Board approves a local board's charter for the whole local system.

Q: Why is the TRS membership question harder for commission charter schools?
A: Because TRS membership requires both (a) being a "teacher" under O.C.G.A. § 47-3-1(28), and (b) being employed by a "public school" under § 47-3-1(21). The public-school definition has a "duly elected county or independent board of education" supervision element. Local charter school teachers are clearly under local board supervision. Commission charter school teachers are under the supervision of the Charter Schools Commission, which is a state body, not a "duly elected county or independent board of education."

Q: What's the broader public school definition issue?
A: The Article 31A statute calls commission charter schools "public schools" in the educational sense, but the TRS statute's specific definition of "public school" was written before commission charter schools existed and was tied to local-board supervision. The two definitions don't quite fit together.

Q: How did the AG resolve the inconsistency?
A: By punting to the TRS Board of Trustees. O.C.G.A. § 47-3-1(28) provides that the Board "shall determine in doubtful cases whether any person is included within the definition" of teacher. The AG read the inconsistency as creating a doubtful case the Board can resolve. Under McKelvey and Gwinnett County, the Board's interpretation of the statute it administers is given great deference by courts.

Q: Did the AG say what the right answer was?
A: Implicitly yes: TRS membership. The opinion gives several reasons. The General Assembly's repeated declaration in Article 31A that commission charter schools are "public schools" suggests legislative intent for TRS coverage. The alternative result (different retirement systems for teachers at different types of charter schools) would be illogical. The General Assembly is presumed to legislate against the background of existing law (McPherson v. City of Dawson), and the existing law treated local charter school teachers as TRS members (1999 Op. Att'y Gen. U99-4).

Q: What is "in pari materia" interpretation?
A: A canon of statutory construction. Statutes that relate to the same subject matter should be read together and harmonized (Snyder v. State, Mathis v. Cannon). The Article 31A "public school" usage and the § 47-3-1(21) "public school" definition are in pari materia because both deal with what counts as a public school in Georgia. The AG argues they should be read in harmony, which means commission charter schools should count as "public schools" for both purposes.

Q: How does this opinion interact with later constitutional developments?
A: The Georgia Supreme Court in Gwinnett County School District v. Cox (2011) held the original Commission Charter Schools Act unconstitutional because it created schools outside the constitutional public school system. Voters then passed a constitutional amendment in 2012 (Amendment 1) authorizing state commission charter schools. The 2010 opinion was written before either of those events and so does not address them. Current TRS membership analysis for commission charter school teachers needs to integrate the post-2012 constitutional and statutory architecture.

Background and statutory framework

Georgia's TRS was created in 1943 to cover teachers in the public school system. The TRS statute defines "teacher" broadly enough to include people with quite different roles (classroom teachers, school nurses, librarians, food service managers, transportation managers, certain Department of Education employees), but ties most categories back to the requirement that they work for a "public school" as defined in O.C.G.A. § 47-3-1(21).

The local-board-supervision element in the public school definition was a sensible drafting choice in 1943. Every public school in Georgia at that time was supervised by a local elected board. The charter school movement broke that assumption. Local charter schools still fit because they remain under local board control. State chartered special schools were a closer call, but the State Board of Education's role kept them inside the public-school umbrella in some sense. Commission charter schools, deliberately structured to operate outside both local and state board control under their own state commission, sit in genuinely new territory.

The 2010 opinion was issued before the constitutional fight that ended this experiment. Gwinnett County in 2011 invalidated the structure on Georgia constitutional grounds. The 2012 Amendment 1 restored it via different constitutional authority. The TRS membership question was effectively reset by those developments.

Citations and references

Statutes:
- O.C.G.A. § 47-3-1(28)(A), "teacher" definition
- O.C.G.A. § 47-3-1(21), "public school" definition
- O.C.G.A. § 47-3-60(a), TRS membership as a condition of employment
- O.C.G.A. § 20-2-2081(2), "commission charter school" definition
- O.C.G.A. § 20-2-2080(a), codified findings on charter schools as public schools
- O.C.G.A. § 20-2-2090, funding through Department of Education
- O.C.G.A. § 20-2-2065(b)(2), local charter schools subject to local board control
- O.C.G.A. § 20-2-2065(b)(3): state chartered special schools subject to state board

Cases:
- Goldberg v. State, 282 Ga. 542 (2007), cardinal rule of statutory construction is legislative intent
- Snyder v. State, 283 Ga. 211 (2008), in pari materia statutes read together
- McPherson v. City of Dawson, 221 Ga. 861 (1966), General Assembly presumed to know existing law
- McKelvey v. Ga. Judicial Retirement Sys., 297 Ga. App. 650 (2009), agency interpretation gets deference
- Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407 (1993), same

Prior AG opinions:
- 1999 Op. Att'y Gen. U99-4, local charter school teachers are TRS members
- 2001 Op. Att'y Gen. 01-9: state chartered special schools authorized by State Board

Source

• Landing page: https://law.georgia.gov/opinions/2010-5
• Original PDF: not linked from landing page

Original opinion text

You have requested my opinion concerning whether teachers at charter schools authorized by the Georgia Charter Schools Commission are required to enroll in the Teachers Retirement System of Georgia ("TRS"). In your request letter, you indicate that it is TRS's position that "employees of schools operated by the Georgia Charter Schools Commission are required to be TRS members as a condition of employment as they appear to be public employees employed in a public school." In prior advice to the State Superintendent for Schools on this question, this office pointed out that it appeared more likely than not that the legislature anticipated that commission charter school teachers would be members of the Teachers Retirement System, but that without clarifying legislation from the General Assembly it could not be definitively said that the law precludes alternative retirement options for these teachers. Nevertheless, and because of the inconsistencies in current state law that are discussed below, it is my official opinion that unless and until the General Assembly adopts clarifying legislation it is within the sound discretion of the TRS Board of Trustees to determine whether teachers who are employed not less than half-time by commission charter schools must be members of the Teachers Retirement System. In order to understand the TRS-related status of charter schools authorized by the Charter Schools Commission, it is important first to understand those schools' status within the larger framework of charter schools in Georgia. There are essentially three categories of charter schools: local charter schools, state chartered special schools, and commission charter schools.[1] The schools you have asked about are known as commission charter schools. Local Charter Schools The General Assembly provided for the establishment of local charter schools through the Charter Schools Act of 1998, codified in Article 31 of Chapter 2 of Title 20 of the Georgia Code.[2] The statute created two methods by which a school could be subject to a charter, which would exempt the school from "state and local rules, regulations, policies, and procedures and the applicability of the provisions of [Title 20] other than the provisions of [Title 20, Chapter 2, Article 31]." 1998 Ga. Laws 1080, 1082, § 3. The first method would accomplish this by converting a previously existing local school into a charter school and the second method would do so by creating a new school. Id. These two types of local charter schools are known as conversion charter schools and start-up charter schools, respectively. O.C.G.A. § 20-2-2062(4) and (14). A local charter school is defined as "a conversion charter school or start-up charter school that is operating under the terms of a charter between the charter petitioner and the local board." O.C.G.A. § 20-2-2062(7). In regard to a local charter school, charter is currently defined as "a performance based contract between a local board and a charter petitioner, the terms of which are approved by the local board and the state board . . . ." O.C.G.A. § 20-2-2062(1).[3] In order to establish either a conversion or start-up local charter school, one must submit a petition to the board of education of the local county or independent school system. O.C.G.A. § 20-2-2064. If the local board approves the petition, it goes to the State Board of Education for its approval or denial. O.C.G.A. § 20-2-2064.1(b). If the State Board also approves the petition, a local charter school is established. "In determining whether to approve a charter petition . . . , the local board and state board shall ensure that a charter school . . . shall be," among other things, "[s]ubject to the control and management of the local board of the local school system in which the charter school is located, as provided in the charter and in a manner consistent with the Constitution, if a local charter school . . . ." O.C.G.A. § 20-2-2065(b)(2). Pursuant to O.C.G.A. § 20-2-2068.1, local charter schools receive their funding via sources that include, at least, Quality Basic Education ("QBE") formula earnings and grants, non-QBE state grants, federal grants, and local revenue, and such funding is generally distributed by the local school board. State Chartered Special Schools "[A]pparently to address the problem of local systems' refusing to approve charters even when they met the criteria set out in the Act," the 1998 Act was amended in 2000[4] to authorize "the State Board, pursuant to the constitutional authority to create special schools, to grant a state charter when a petition meets the statutory requirements . . . and is in the public interest." 2001 Op. Att'y Gen. 01-9 (citing the 2000 version of O.C.G.A. § 20-2-2064(d); Ga. Const. 1983, Art. VIII, Sec. V, Para. VII; and 1998 Op. Att'y Gen. U98-2). The 2000 amendment provided for the establishment of state chartered special schools, which are now defined as "a charter school created as a special school that is operating under the terms of a charter between the charter petitioner and the state board." O.C.G.A. § 20-2-2062(16). In regard to a state chartered special school, charter is currently defined as "a performance based contract . . . between the state board and a charter petitioner, the terms of which are approved by the state board . . . ." O.C.G.A. § 20-2-2062(1). A state chartered special school may be established by the State Board of Education upon its approval of a proposed start-up charter school's petition that has been denied by the local board. O.C.G.A. § 20-2-2064.1(c). A state chartered special school may not be established, however, from a petition for a conversion charter school that has been denied by the local board. Id. "In determining whether to approve a charter petition . . . , the local board and state board shall ensure that a charter school . . . shall be," among other things, "[s]ubject to the supervision of the state board, as provided in the charter and in a manner consistent with the Constitution, if a state chartered special school . . . ." O.C.G.A. § 20-2-2065(b)(3). Pursuant to O.C.G.A. § 20-2-2068.1, state chartered special schools receive their funding via sources that include, at least, QBE formula earnings and grants, non-QBE state grants, and federal grants; and such funding is generally distributed by the local school board. Commission Charter Schools In 2008, the General Assembly enacted a new Article 31A to be added to Chapter 2 of Title 20 and created the Georgia Charter Schools Commission, which has the power to "[a]pprove or deny petitions for commission charter schools." O.C.G.A. § 20-2-2083(a)(1); 2008 Ga. Laws 603. Commission charter school is defined as "a charter school authorized by the commission pursuant to [Article 31A] whose creation is authorized as a special school pursuant to Article VIII, Section V, Paragraph VII of the Constitution. A commission charter school shall exist as a public school within the state as a component of the delivery of public education within Georgia's K-12 education system." O.C.G.A. § 20-2-2081(2). Unlike with local charter schools and state chartered special schools, the statute does not specifically define charter in regard to commission charter schools.[5] The process for the establishment of a new commission charter school begins with the submission of a petition for a start-up charter school to the pertinent local board or boards.[6] Whether the petition is approved or denied by the local board(s), the petitioner may then apply to the Charter Schools Commission for approval of a commission charter school. (If the petition is approved by the local board, the petitioner may also go forward with the creation of a local charter school rather than a commission charter school.) O.C.G.A. § 20-2-2085(b). The Charter Schools Commission's decision may then be overruled by the State Board of Education. O.C.G.A. § 20-2-2083(a)(1). As discussed above, Article 31 contains specific provisions that require petitions for charters to make clear that local charter schools will be "[s]ubject to the control and management of the local board of the local school system in which the charter school is located," O.C.G.A. § 20-2-2065(b)(2), and that state chartered special schools will be "[s]ubject to the supervision of the state board." O.C.G.A. § 20-2-2065(b)(3). Neither Article 31 nor Article 31A, however, contains an equivalent provision that specifically explains the control, management, or supervision of commission charter schools. Pursuant to O.C.G.A. § 20-2-2090, commission charter schools receive their funding from the Georgia Department of Education "through appropriation of state and federal funds [in] an amount equal to the sum of," at least, QBE formula earnings and grants, federal grants, a proportional share of state grants, and amounts determined by the Charter Schools Commission to be equal to a proportional share of local revenue. Teachers Retirement System TRS was created "for the purpose of providing retirement allowances and other benefits under [Title 47, Chapter 3 of the Georgia Code] for teachers of this state . . . ." O.C.G.A. § 47-3-20. "Any person who becomes a teacher after January 1, 1944, shall become a member of the retirement system as a condition of his employment, except as otherwise provided in [Title 47, Chapter 3]." O.C.G.A. § 47-3-60(a).[7] The definition of teacher in the TRS statute includes: Any of the following persons employed not less than half time by a public school: (i) Persons who supervise the public schools; (ii) Classroom teachers; and (iii) Persons employed in a clerical capacity[.] O.C.G.A. § 47-3-1(28)(A). The definition also includes "[p]ublic school nurses who are employed on a regular basis as much as one-half time or more," O.C.G.A. § 47-3-1(28)(B); school librarians, O.C.G.A. § 47-3-1(28)(C); "[a]dministrative officials who supervise teachers;" O.C.G.A. § 47-3-1(28)(D); and: [f]ull-time public school lunchroom managers or supervisors, full-time public school maintenance managers or supervisors, full-time public school transportation managers or supervisors, and full-time public school warehouse managers or supervisors . . . . O.C.G.A. § 47-3-1(28)(E). Also included in the TRS definition of teacher are certain employees of the Department of Education, O.C.G.A. § 47-3-1(28)(F), and "[a]ny bona fide teacher, supervisor of teachers, or clerical employee in any school operated by the Department of Education." O.C.G.A. § 47-3-1(28)(G).[8] In order to determine whether teachers at commission charter schools are to be members of TRS, therefore, it must be determined whether they meet this TRS definition of teacher. I have previously opined that teachers at local charter schools are members of TRS. 1999 Op. Att'y Gen. U99-4.[9] Because local charter schools are required to be subject to the control and management of the local board of education, they fall within the TRS definition of public school – "any day school which is conducted within this state and which is under the authority and supervision of a duly elected county or independent board of education." O.C.G.A. § 47-3-1(21). Teachers at those schools, therefore, meet the definition of teacher in the TRS statute – "persons employed not less than half time by a public school" – and are consequently members of TRS. Id. (citing, inter alia, O.C.G.A. § 47-3-1(21) and (28) and the 1998 version of O.C.G.A. § 20-2-2061). The issue of whether teachers at commission charter schools meet the eligibility requirements for TRS membership, however, is not quite as clear. Of course, "[i]n construing a statute, the cardinal rule is to glean the intent of the legislature." Goldberg v. State, 282 Ga. 542, 544 (2007) (quoting Alford v. PSC, 262 Ga. 386, 387 (1992)). It is also "an elementary rule of statutory construction that statutes in pari materia" – that is, statutes that "relate to the same subject matter" – "be construed together." Snyder v. State, 283 Ga. 211, 214 (2008) (citing Mathis v. Cannon, 276 Ga. 16, 26 (2002)). Furthermore, it must be presumed that the General Assembly enacted the statute in question with full knowledge of the existing law and with reference to it. McPherson v. City of Dawson, 221 Ga. 861, 862 (1966). To determine whether commission charter school teachers are "teachers" within the meaning of the TRS statute and thus members of TRS, therefore, we must attempt to glean the legislature's intent by reading these in pari materia statutes harmoniously and with the understanding that the legislature had full knowledge of the current state of the law when it passed the most recent pertinent statute. Having considered these statutes carefully, it is my view that the General Assembly likely intended that teachers at commission charter schools would be members of TRS. I reach that conclusion because when it enacted Article 31A of Title 20 in 2008, the legislature was aware that the already existing TRS statute, at O.C.G.A. § 47-3-1(28)(A), provides that a teacher shall be a member of TRS if employed at least half-time at a public school. When it drafted and enacted Article 31A in 2008, the legislature repeatedly indicated that commission charter schools are public schools. In its codified legislative findings, the General Assembly explained: The General Assembly finds that: (1) Charter schools are a critical component in this state's efforts to provide efficient and high-quality schools within this state's uniform system of public education; (2) Charter schools provide valuable educational options and learning opportunities while expanding the capacity of this state's system of public education and empowering parents with the ability to make choices that best fit the individual needs of their children . . . . O.C.G.A. § 20-2-2080(a). In its definition of commission charter school, the legislature expressly declared: "A commission charter school shall exist as a public school within the state as a component of the delivery of public education within Georgia's K-12 education system." O.C.G.A. § 20-2-2081(2). The legislature also decreed that one of the Charter Schools Commission's duties is to "[c]ollaborate with cosponsors for the purpose of providing the highest level of public education to all students . . . ." O.C.G.A. § 20-2-2083(b)(12). As a result, it is my opinion that the General Assembly likely intended to treat commission charter school teachers as teachers in public schools and thus as members of TRS.[10] The issue, however, is complicated by the definition of public school contained within the TRS statute – "any day school which is conducted within this state and which is under the authority and supervision of a duly elected county or independent board of education." O.C.G.A. § 47-3-1(21). Unlike local charter schools, commission charter schools do not appear to meet that definition because they do not appear to be under the authority and supervision of local boards of education. For instance, whereas § 20-2-2065(b)(2) in Article 31 requires that a local charter school "shall be . . . [s]ubject to the control and management of the local board of the local school system," there is no such requirement for commission charter schools in Article 31A. As another example, although § 20-2-2068.1 indicates that a local charter school's funding will be distributed by the local board, § 20-2-2090 indicates that a commission charter school's funding will be distributed by the Department of Education. Nevertheless, it is my opinion that the legislature's intent as to commission charter schools is revealed by its more recent express pronouncements in Article 31A that commission charter schools are public schools. To otherwise conclude that the legislature meant for commission charter schools to be public schools in Title 20 but not to be public schools in Title 47 would result in a contradictory, rather than a harmonious, reading of these in pari materia statutes. Furthermore, to conclude that teachers at commission charter schools are not members of TRS would result in a situation wherein teachers at charter schools that are approved by local boards of education (local charter schools) would be required to participate in the state-run retirement system while their fellow teachers at charter schools that are approved by a state commission (commission charter schools) would not be allowed to participate in the state-run retirement system. This disparate result would be illogical, and I have found no evidence to indicate that it was the legislature's intent. Given the inconsistencies in the law, I cannot say that the ultimate answer to your question is completely free from doubt. I note, however, that the General Assembly has specifically stated that "[t]he Board of Trustees shall determine in doubtful cases whether any person is included within the definition [of teacher] set forth in [O.C.G.A. § 47-3-1(28)]." O.C.G.A. § 47-3-1(28). Furthermore, under appellate case law, because TRS has the duty of enforcing and administering the retirement statute, its interpretation of that statute is to be given great weight and deference. See McKelvey v. Ga. Judicial Retirement Sys., 297 Ga. App. 650, 654 (2009) (quoting Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407, 408 (1993)). Accordingly, it is my official opinion that unless and until the General Assembly adopts clarifying legislation, it is within the discretion of the TRS Board of Trustees to determine whether teachers who are employed not less than half-time by commission charter schools must be members of the Teachers Retirement System. Prepared by: CHRISTOPHER A. MCGRAW Assistant Attorney General [1] In addition, the State Board of Education may "enter into a charter with a local board to establish a local school system as a charter system." O.C.G.A. § 20-2-2063.2(a). [2] The 1998 Act repealed the previous "Code Section 20-2-255, relating to petitions for charter school status." 1998 Ga. Laws 1080, § 1. [3] Charter was originally defined in the 1998 Act as "an academic or vocational performance based contract or an academic and vocational performance based contract between the state board, a local board of education, and a charter petitioner, the terms of which are approved by the local board of education and the state board." 1998 Ga. Laws 1080, 1082, § 3. [4] 2000 Ga. Laws 618, 720, § 74. [5] Section 20-2-2081 provides that the definitions set forth in § 20-2-2062 in Article 31 are also applicable to Article 31A, but the definition of charter in § 20-2-2062(1) does not define it specifically for purposes of commission charter schools whereas it does so for local charter schools, state chartered special schools, and charter systems. [6] An already existing charter school may also apply to become a commission charter school. O.C.G.A. § 20-2-2086. [7] "[I]n its ordinary signification, 'shall' is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission." State Ethics Comm'n v. Long, 223 Ga. App. 621, 626 (1996). [8] The definition of teacher also includes numerous other positions that are not pertinent here, such as employees of the Board of Regents of the University System and the Technical College System. [9] Opinion U99-4 refers only to "charter schools" in general because in 1999 the General Assembly had not yet amended Title 20 to create state chartered special schools or commission charter schools. [10] As was indicated above, certain employees of the Department of Education ("DOE") and employees of schools operated by the DOE are also eligible to be members of TRS, but it is my understanding that commission charter school staff are not employees of the DOE and that commission charter schools are not operated by the DOE.