Title 47, Chapter 2, Section 2
(a) The provisions of this Code section are supplemental to, and not in lieu of, the provisions of paragraphs (20) and (21) of Code Section 47-2-1 defining "involuntary separation from employment without prejudice" and "involuntary separation from employment with prejudice."
(b) The word "employee" as defined in paragraph (2) of subsection
(c) of this Code section shall include any such employee in the
classified or unclassified service of the State Merit System of
Personnel Administration provided for by Chapter 20 of Title 45.
The provisions of that law or any rules or regulations promulgated
pursuant thereto relative to the dismissal of employees from
employment shall not be applicable to the discharge of an employee
from employment pursuant to the provisions of this Code section. Any
such employee who is otherwise subject to that law and rules or
regulations promulgated pursuant thereto shall continue to be
subject thereto for the purpose of any adverse personnel action
other than discharge from employment or suspension pursuant to this
Code section, but for the purposes of such discharge from employment
or suspension, the provisions of this Code section shall be
(c) As used in this Code section, the term:
(1) "Duties" means duties and responsibilities assigned by an
employer to an employee which are reasonably related to the lawful
objectives and responsibilities of the employer and which are
reasonably related to the position of employment held by the
employee for which the employee is compensated.
(2) "Employee" means an employee, other than an elected public official, a public official selected by a vote of a board to serve at the pleasure of the board, or a public official appointed pursuant to law for a specific term of office, as defined in paragraph (16) of Code Section 47-2-1 who was a member of the retirement system prior to April 1, 1972, and who, if involuntarily separated from employment without prejudice, has sufficient membership service under the retirement system to qualify for a retirement allowance because of such involuntary separation from employment.
(3) "Employer" means any person or group of persons authorized by
law or having authority delegated by law to discharge an employee.
(4) "Insubordination" means the refusal by an employee to carry
out the employee's duties when instructed to do so by the employer
or by the employee's supervisor upon the instructions or under the
authority of the employer.
(5) "Irresponsible performance of duties" means the performance of
any duties by an employee or the use of an employee's position of
employment for any one or more of the following purposes:
(A) To make a financial gain or receive materials or services
having financial value, except compensation received as an
employee, under circumstances which would lead a reasonable
person to believe that the financial gain or the receipt of
materials or services was improperly related to the performance
of duties by the employee;
(B) To purchase or authorize the purchase of materials or
services from public funds when the employee knows or reasonably
could be expected to know that the amount paid for such
materials or services unreasonably exceeds the amount for which
substantially equivalent materials or services could be
purchased without excessive delay or inconvenience;
(C) To use publicly owned real or personal property or publicly
supplied services for personal use when the employee knows or
reasonably could be expected to know that such personal use of
public property or services is unauthorized or improper; or
(D) To expend or authorize the expenditure of public funds in a
manner which would lead a reasonable person to believe the
employee shows a reckless disregard for the obligation to
taxpayers to expend public funds in a prudent and efficient
(6) "Malingering" means frequent absences from work or the failure
to perform duties during working hours because of claims of
illness which are unsubstantiated as determined pursuant to
subsection (e) of this Code section.
(7) "Neglect of duty" means the repeated failure by an employee to
carry out the employee's duties, either because of excessive
unexcused absences from work or a failure to perform or the
unsatisfactory performance of duties while at work or a
(8) "Proof of illness" means a written opinion by one or more physicians designated by the medical board provided for by Code Section 47-2-24 stating that an employee's absences from work or unsatisfactory performance of duties are reasonably related to an illness suffered by the employee and describing the nature of such illness.
(9) "Unsatisfactory performance of duties in a willful manner"
means the unsatisfactory performance of duties by an employee when
the past satisfactory performance of duties by the employee
indicates the employee's unsatisfactory performance is willful as
determined pursuant to subsection (f) of this Code section.
(d) 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. Any 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.
(e) An employer shall have a reasonable basis for believing an
employee is malingering when:
(1) The employee has a pattern of absences from work because of
illness or unsatisfactory performance of duties because of illness
or a pattern of absences from work and unsatisfactory performance
of duties because of illness;
(2) The employer has requested the employee, in writing, to
provide proof of illness and the employee has been given a
reasonable opportunity, which shall not be less than 30 days after
the date of the request made by the employer, to respond to the
employer's request; and
(3) The employee has provided no or unsatisfactory proof of
illness to the employer in response to the request made pursuant
to paragraph (2) of this subsection.
(f) An employer shall have a reasonable basis for believing an
employee is engaging in unsatisfactory performance of duties in a
willful manner when:
(1) The past work history of the employee indicates the employee
is capable of satisfactory performance of duties;
(2) The unsatisfactory performance of duties became increasingly
apparent after the employee qualified for a retirement benefit
based on involuntary separation from employment without prejudice;
(3) The employee does not claim illness as a basis for
unsatisfactory performance of duties and has offered no proof of
illness to the employer.
(g) When an employer is considering the discharge from employment of
an employee for any one or more reasons specified in subsection (d)
of this Code section, the employer shall transmit a written notice
to the employee containing the following:
(1) An explanation of the conduct or deficiencies of the employee
which form the basis for the employer's considering the discharge
of the employee;
(2) A statement that such conduct may result in the employee's
discharge from employment on a specified date, which shall not be
earlier than the tenth day following the date of the notice in the
case of insubordination or irresponsible performance of duties and
not earlier than the thirtieth day following the date of the
notice if the basis for considering the discharge of the employee
is for a reason or reasons other than insubordination or
irresponsible performance of duties;
(3) A statement that the employee's discharge from employment for
the reasons specified in the notice shall not constitute
involuntary separation from employment without prejudice within
the meaning of the applicable provisions of the Employees'
Retirement System of Georgia and that if discharged, the employee
shall not be entitled to receive and shall not receive a
retirement benefit based on involuntary separation from employment
(4) A statement that the employee has a right to a hearing before
the employer on a specified date, which shall be at least five
days prior to the date specified for the employee's discharge from
(5) A statement that at the hearing before the employer, the
employee shall be given an opportunity to offer explanations for
the employee's conduct or deficiencies and to present evidence on
the employee's behalf.
(h) An employee being considered for discharge from employment because of insubordination or irresponsible performance of duties may be suspended without pay, except to the extent the employee has accumulated annual leave, pending the completion of the procedures provided for in subsections (g) and (i) of this Code section. If the employer's final decision is not to discharge the employee or if the employee's discharge is not upheld by the court upon judicial review provided for in Code Section 47-2-3, the compensation denied to the employee during suspension shall be reimbursed to the employee and, if applicable, accumulated leave used during the suspension shall be reinstated.
(i) If an employee subject to the provisions of subsection (g) of
this Code section fails to respond to the notice sent to the
employee pursuant to said subsection or if the employer is not
satisfied with the explanation made by the employee for the conduct
or deficiencies specified in said notice and is not satisfied with
the evidence presented in the employee's behalf, the employee may be
discharged from employment on the date specified in said notice or
on such later date as shall be specified in writing by the employer
to the employee. The employee shall be notified, in writing, of the
final decision of the employer and such notice shall provide an
explanation for the employer's decision.
(j) An employer discharging an employee pursuant to this Code
section shall prepare a written report to the board of trustees on
the discharge of the employee. Any notices or other written
communications to the employee which relate to the employer's
decision to discharge the employee shall be attached to and made a
part of the employer's report to the board of trustees.
(k) It shall be the duty of any employer considering the discharge
of an employee for any reason or combination of reasons specified in
subsection (d) of this Code section to follow the procedures
specified in this Code section as a condition precedent to the
discharge of such employee.