Haggins v. Employees' Retirement System of Georgia

• Decision Date: 07 January 1986
• Docket Number: No. 42620,42620
• Citation: 338 S.E.2d 1,255 Ga. 352
• Parties: , 29 Ed. Law Rep. 825 HAGGINS v. EMPLOYEES' RETIREMENT SYSTEM OF GEORGIA et al.
• Court: Georgia Supreme Court

Page 1

338 S.E.2d 1

255 Ga. 352, 29 Ed. Law Rep. 825

HAGGINS v. EMPLOYEES' RETIREMENT SYSTEM OF GEORGIA et al.

No. 42620.

Supreme Court of Georgia.

Jan. 7, 1986.

Reconsideration Denied Jan. 16, 1986.

Gary J. Leshaw, Decatur, for Robert E. Haggins.

Michael J. Bowers, Atty. Gen., Susan L. Rutherford, Staff Asst. Atty. Gen., Carl C. Jones, Sr. Asst. Atty. Gen., for Employees Retirement System of Georgia et al.

MARSHALL, Presiding Justice.

In this case, the appellant, Robert E. Haggins, an erstwhile employee of the Georgia Department of Education, filed a petition for writ of mandamus, seeking to compel the appellee, Board of Trustees of the Employees' Retirement System of Georgia, to pay him involuntary-separation retirement benefits. At the trial of the case, the jury returned a verdict finding that the appellant had not been involuntarily separated from state employment. He appealed. We affirm.

For approximately 25 years, the appellant was employed as a stock worker by the Georgia Department of Public Education, Office of Administrative Services, Division of Public Library Services. The sum of the evidence showed that the appellant's work history was filled with instances of failure to report to work on time, failure to observe lunch and break periods, unexplained absences from work during working hours, disruption of work activity, defiance of supervisor's instructions, insubordination, as well as various forms of harrassment of co-workers. As a result, in November of 1981, the appellant was temporarily suspended from work, and he was warned that such misconduct would not be tolerated. However, such misconduct continued, and, therefore, in March of 1982 his employment was terminated. He was given written notice of his right to appeal this determination to the State Personnel Board, but he declined to pursue such an appeal.

Chapter 2 of OCGA Title 47 governs the Employees' Retirement System of Georgia.

Under OCGA § 47-2-123(a), upon the death or "involuntary separation from employment without prejudice," any member in service is entitled to a service retirement allowance under subsection (c) of § 47-2-123. At the time of the appellant's termination of employment, the only definition of "involuntary separation from employment without prejudice" was found in OCGA § 47-2-1(20), which defines that phrase as meaning "separation or release from service other than by the willing choice of a member, provided that such member has not been convicted in a court of competent jurisdiction of theft of public funds or property or malfeasance in office or has not been forced to make restitution for any funds or property wrongfully taken by him. Involuntary separation shall not include the defeat in an election of an elected official who becomes a member of this retirement system for the first time on or after July 1, 1971." In addition, OCGA § 47-2-123(a), supra, states that the provisions relating to "upon becoming involuntarily separated from employment without prejudice" shall not be applicable to "any person who first becomes a member after March 31, 1972."

In 1984, pursuant to a constitutional amendment approved by the voters in 1984 (Art. III, Sec. X, Par. VI, of the Georgia Constitution of 1983), the General Assembly enacted OCGA § 47-2-2 (effective January 1, 1985). Subsection (d) of § 47-2-2 provides, "An employee may be discharged from employment pursuant to the requirements of this Code section for insubordination, irresponsible performance of duties, malingering, neglect of duty, or unsatisfactory performance of duties in a willful manner, or for any combination of such reasons. An employee so discharged from employment shall not be entitled to and shall not receive a retirement benefit based on involuntary separation from employment without prejudice pursuant to Code Section 47-2-123." Subsection (g) of § 47-2-2 contains certain requirements as to the employee's rights to notice and a hearing prior to the employee's being discharged from employment for one or more of the reasons specified in subsection (d).

In the case of a member with at least 20 years of service who is under 60 years of age, OCGA § 47-2-123(c)(2), supra, grants the retirement allowance, upon "involuntary separation from employment without prejudice," which would have been payable upon service retirement at age 60 had the employee continued in service to age 60 without further change in compensation. See also OCGA § 47-2-124 (providing that any member who is serving in the year which represents 95% of the time required for vesting of benefits under, among other things, § 47-2-123(c) shall be deemed to qualify for the required number of years). Thus, the appellant's retirement benefits would be substantially increased if he were granted involuntary-separation benefits; otherwise, he would have to wait until age 60 to begin to collect his retirement benefits or withdraw his contributions, with interest, upon termination of his employment with the state.

1. The evidence supports the jury's finding that the appellant's separation from state employment was voluntary.

In Employees['] Retirement System of Georgia v. Almgren, 235 Ga. 368, 219 S.E.2d 749 (1975), this court was presented with the argument that a state employee was not involuntarily separated from his employment with the state, because, by his own actions, which allegedly included insubordination to his superiors in his department, he had precipitated and brought about his own discharge. In Almgren, the trier of fact, the trial judge there, found that the employee's separation...