Alford v. Public Service Com'n

• Decision Date: 07 July 1992
• Docket Number: No. S92A0252,S92A0252
• Citation: 418 S.E.2d 13,262 Ga. 386
• Parties: ALFORD v. PUBLIC SERVICE COMMISSION, et al.
• Court: Georgia Supreme Court

Page 13

418 S.E.2d 13

262 Ga. 386

ALFORD v. PUBLIC SERVICE COMMISSION, et al.

No. S92A0252.

Supreme Court of Georgia.

July 7, 1992.

Reconsideration Denied July 30, 1992.

Amy Totenberg, Atlanta, for Alford.

Michael J. Bowers, Atty. Gen., Susan Rutherford, Charles M. Richards, Asst. Attys. Gen., Atlanta, for Public Service Com'n.

FLETCHER, Justice.

This appeal concerns the interpretation of the involuntary separation retirement provisions of OCGA § 47-2-123(g) and (h). ¹ Judy Alford worked as confidential secretary to Public Service Commissioner Ford Spinks from 1976 to his retirement in 1988. In 1989, the PSC transferred her to a position as an entry level file clerk with a reduction of $1,151.50 in her annual salary. ² Alford filed for involuntary separation benefits with the Employees' Retire ment System of Georgia, which denied her benefits on the grounds that she had not been terminated. Alford filed a petition for writ of mandamus and complaint for damages in superior court. The trial court granted the retirement system's and the PSC's motions to dismiss. Alford appeals.

Alford contends that she is the subject of a discretionary termination under OCGA § 47-2-123(g) because the PSC did not reappoint her as a confidential secretary but instead placed her in a position with reduced pay and responsibilities. She argues that the term "fail to reappoint" refers to the failure to reappoint a confidential employee to her confidential position. Alternatively, Alford contends that she has the right under subsection (h) to a position comparable to a confidential secretary. The state, on the other hand, argues that "fail to reappoint" means the failure to reappoint to any state position regardless of pay and responsibilities. The state concludes that Alford has not been discretionarily terminated because she has been reappointed to a state position. Adopting neither position, we find that Alford is not entitled to involuntary separation benefits and reverse and remand for further action consistent with this opinion.

1. OCGA § 47-2-123(g) generally prohibits involuntary separations from state government that would trigger the payment of early retirement benefits. It provides that a state employer shall not "release or separate from state service, or fail to reappoint to continued state service" any employee who would be entitled to collect involuntary separation benefits. Subsection (g) lists four exceptions to this general prohibition, including an exclusion for discretionary terminations. The statute defines "discretionary termination" as the

[s]eparation or release from service of an official or employee, or failure of reappointment of an official or employee, who holds a confidential position to an appointed or elected public official, ... incurred as a result of a change of administration in the office of such appointed or elected public official.

OCGA § 47-2-123(g)(4)(C). When an employee becomes subjected to a discretionary termination, subsection (h) requires the commissioner of personnel administration to seek continued employment for the employee at the "same or greater" annual compensation and with duties that are "reasonably compatible with the previous work experience and educational qualifications" of the employee. OCGA § 47-2-123(h)(2)(A) & (B). ³

a. In construing a statute, the cardinal rule is to glean the intent of the legislature. State v. Mulkey, 252 Ga. 201, 202, 312 S.E.2d 601 (1984); Board of Trustees v. Christy, 246 Ga. 553, 554, 272 S.E.2d 288 (1980). Language in one part of the statute must be construed " 'in the light of the legislative intent as found in the statute as a whole.' " Christy, 246 Ga. at 554, 272 S.E.2d 288 (quoting Williams v. Bear's Den, Inc., 214 Ga. 240, 242, 104 S.E.2d 230 (1958)). The legislative history of subsections (g) and (h) shows that the General Assembly enacted them to restrict retirement benefits based on involuntary separation from employment with the state. See 1984 Ga. Laws 1726 (now Ga.Const.Art. III, Sec. X, Par. VI (1991 Supp.)); 1984 Ga.Laws 1296, 1305-09 (codified at OCGA § 47-2-123(g) & (h)). The General Assembly intended subsection (h) "to provide procedures to secure the continued employment of officials and employees who may become subject to discretionary termination"; it did not intend to "create any right to continue in a position of employment." OCGA § 47-2-123(h)(6).

Construing subsections (g) and (h) together, we conclude the General Assembly intended for the state to retain employees eligible for involuntary separation benefits, but required the state to offer a reasonably comparable job at the same pay to any employee subject to a discretionary termination. The General Assembly could not have intended that a former "confidential secretary" be thrust into the involun tary "confidence" of a stranger, as Alford argues. To create a "confidential" relationship, just as to perform a well-known Latin dance, takes two. Therefore, we hold that the phrase "fail to reappoint" in subsection (g) means the failure to reappoint an employee to another state position at the same pay and with reasonably compatible duties.

b. Because of two rules of statutory construction, we reject the state's interpretation that an employee is never released, separated, or not reappointed under subsection (g) as long as the employee continues to work for the state. First, when the General Assembly amends a statute, the latest declaration controls. Christy, 246 Ga. at 555, 272 S.E.2d 288. Thus, subsections (g) and (h), which were passed in 1984, control over the general statutory definition of "involuntary separation." See OCGA § 47-2-1(20), (21). Second, where there are two possible constructions of a retirement statute, we must construe the statute liberally in favor of the employee. Employees Retirement System v. Baughman, 241 Ga. 339, 341, 245 S.E.2d 282 (1978).

Although the state is correct that the statute does not require the PSC to reappoint Alford as a confidential secretary, the PSC must offer her a job with reasonably compatible duties and at the same pay as her former secretarial job. See Bennett v. Board of Trustees, 258 Ga. 201, 202, 366 S.E.2d 287 (1988) (holdi...