a15a0401 - Brief of Appellant Gilda Day

8/10/2019 a15a0401 - Brief of Appellant Gilda Day

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FILED IN OFFICE

OCT

2 9

2 4

0

Q

CLERK, COURT OF

APPlALS

OF GEORGIA

IN

THE COURT

OF

APPEALS

STATE

OF GEORGIA

GILDA

Y

Appellant/Cross-Appellee,

FLOYD COUNTY BOARD OF

EDUCATION

A /K /A FLOYD

COUNTY SCHOOL DISTRICT,

Appellee/Cross-Appellant.

CIVIL ACTION

FILE NO: A 15A 0401

r>

^ ;

o

5-

BRIE F OF

THE

APPELLANT /CROSS APPELLEE

GILDA DAY

JULIE OINONEN

Ga.

State Bar No.

722018

MARIO

B.

WILLIAMS

Ga.

State

Bar

No.

235254

WILLIAMS

OINONEN

LLC

44 Broad Street Ste 200 Atlanta, Georgia 30303 PH) 404-654-0288


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P RT

ONEST TEMENT

O F T HE SE ND F CTS

Under the Georgia Charter Systems Act, the most important objective

of

a

charter school system is maximizing school level governance. O.C.G.A. 20-2-

2063(d). In Floyd County School District, each school has their

own

local school

governance team (LSGT) and school level governance is defined as having

decision-making authority in personnel and financial decisions. (R-576). LSGTs

are responsible for approving local staffing decisions (R-600) and budgets. (R-

599). LSGT's are made up of its own respective principal, teachers, parents, and

community stakeholders. O.C.G.A. 20-2-2062(5.1). Each LSGT resides under

the umbrella of the larger local school coordinating council (LSCC). (R-598-601,

R-82).

LSGT s make up the membership of the LSCC who advise the

Superintendent on system-wide financial and personnel decisions. (R 82-83, 598-

601). This is not only what the Charter Agreement mandateslocal school

governance is a requirement

under

Georgia law. O.C.G.A. 20-2-2063(d).

In January of 2014, the newly hired Superintendent circumvented the local

school governance process in its entirety. (R-758). Shortly after being hired, he

decided to make sweeping changes of the essential innovate features (R-574) of

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the charter system agreement: closing down instrumental programs, changing the

hybrid block model unique to the charter, and unilaterally implementing a

reduction in force (RIF) of 120 educators all the while excluding all local school

governance from any input. (R-758, 761). His process involved sitting with two of

his central office administrators, picking and choosing which teachers to RIF.

(R-79-80, R-281, R-264-265). The Superintendent's actions caused an enormous

breachof trust (R-758) within the community. Community members lodged

complaints with the State and their outcry caught the attention and concern of

those at the very top. (R-758, R-760-761).

Appellant Gilda Day was the highest performing guidance counselor

unlawfully selected for the RIF based on seniority (solely number of years at

Floyd) without comparing her demonstrated competence and excellence to all

other counselors as required by policy and law under the Fair Dismissal Act. (R-

214, 644, 303-308); O.C.G.A. 20-2-948.

The

evidence

showed she was

heads

and shoulders above her peers, standing out as one

of

the best, most qualified, and

experienced when comparing her experience, education, and performance with all

others. (R-644, R-407, 410, 411, 664). Furthermore, evidence showed that

if her

LSGT had been used as required she never would have been selectedfor


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example, her Principal who led the LSGT and was required to have decision

making authority concerning personnel decisionsinformed Ms. Day that even if

he

had

to

pu t

50 names on a IRIF1 list, I would

never

have

put

yours on

this

list. (R-415). As a matter of

admitted

testimony, in selecting Ms. Day, the

Superintendent failed to do any cross comparison of she and her peers as required.

(R-602). The Superintendent did not place Ms. Day and her peers side-by-side

until the final stage

of

the RIF process, then once grouped together, the

only

comparison made was

that

of seniority

(R-284). Said differently, once grouped

together, the Superintendent has admitted that contrary to the express terms

of

its

RIF Plan, Board Policy, and Georgia law, he didn t even

attempt

to determine the

demonstrated competence and expertise ofMs. Day and her peers (R-303-308)

by evaluating, as the law and policy required, first and foremost, the professional

expertise, effectiveness and performance of individual employees as reflected in

annua l evaluat ions and

other

eva lua tions as

well

as

administrator s

observations

and knowledge.

(R-602);

O.C.G.A.

20-2-948.

Furthermore, the Superintendent's exclusion was deliberate as evidenced by

his written statement that future [not present] personnel decisions will be done in

a collaborative manner, (R-639) a statement that rationally implies he never had

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any intention

of

undertaking a trueand mandatorycollaborative effort utilizing

local school governance in violation

of

law, Board policy, and the Charter

Agreement. (R-573-601, R-602; O.C.G.A. 20-2-948). In sum, the Superintendent

admitted he did not utilize Local School Governance Teams for any purpose

regarding his decision to RIF. (R-264-265, 281, 286). As a result

of

excluding

local school governance, the Superintendent got into serious woe with the State

DOE (R-758) and the statewide Georgia Charter Advisory Committee who voted

unanimously to find his actions a violation of the charter agreement. (See R-757

762 informing him he would be held accountable for violating multiple provisions

of charter as unanimously voted).

Ultimately, after Ms. Day appealed her case to the State Board

of

Education,

it rejected and reversed Local Board's decision because they found this complete

exclusion

of

local school governance to be arbitrary and capricious. They noted,

the decision on who to RIF may have ended in a different resultif the proper

procedures had been followed thus reversing the local board decision. (R-501-

502).

What was and is Floyd County Board of Education's argument in defense of

its actions? They claim they had waived the Fair Dismissal Act, and thus, did not


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need to provide tenured educators with the right to due process. This is simply so

untrue it is baffling as

all

official adopted Local Board policies, practices, and

writings

explicitly stated

adherence

to theFair

Dismissal

Act. '

Floyd County Schools additionally argues that the State Board of Education

had no jurisdiction to hear the appealalso a preposterous argument as again, their

written policies, procedures, and admissions explicitly state the opposite, i.e.

providing written notice to Appellant Day

of

her rights under the Fair Dismissal

Act, that she had the legal right to appeal to the State Board . (R-663: you have

(R-611-612: letter sent pursuant to Georgia's Fair Dismissal act...[p]ursuant to

O.C.G.A. 20-2-940

et seq

a due process hearing will be held....you are

entitled

to a due process hearing...you have a right to be represented by legal counsel at

the due process hearing..

.if

you contend this does not fully comply with the Fair

Dismissal Act in any way, please notify my office immediately. R-663, R-712:

referencing PolicyGBN Floyd County School System adheres to the Georgia

legal code, namely O.C.G.A. 20-2-940, 20-2-11, and O.C.G.A. 20-2-942 as it

relates to separation of certified personnel from employment with the school

system as filed on the record with the local tribunal).


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the right to appeal the local

Board s

decision to the State

Board

of

Education in

accordance with O.C.G.A. 20-2-1160(b). Any party aggrieved by a decision of

the local board after a due-process hearing shall have the right to appeal therefrom

to the State Board

of

Education ). Nevertheless, even if the Local Board

of

Education had not explicitly spelled out that they adhered to the Fair Dismissal Act

in their policies, they were still required to adhere to the Fair Dismissal Act

according to Georgia law. The State Board ofEducation's ruling that the Charter

Systems Act does not waive due process for teachers comports with the Georgia

Legislature's expressed intention to

provide

for protection of due process

rights

, explicitly documented during Senate floor proceedings concerning

2Thus creating a property interest, right to due process: E.g. Perry v. Sindermann,

408 U.S. 593, 602-03 (1972). See pp. 26-30 for explanation.

3During Senate floor proceedings, elected officials

and

introducers of the

legislation made clear that the intent of the General Assembly would still be to

provide

for

protection of due

process rights

with the passage

of

the Act.

Megan L. Iorio, Alyssa P. Morris, Elementary and Secondary Education: Amend

Article 31 ofChapter 2 ofTitle 20 of the Official Code ofGeorgia Annotated,

Relating to Charter Schools, So As to Enact the Charter Systems Act ; Provide

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passage

of

the Act and insuring that language provided that the Charter Systems

Act cannot be read so broadly as to do away with due process rights for tenured

educators because 20-2-2065(b) states charter systems are [s]ubject to all federal,

state and local rules, regulations, court orders and statutes relating to civil rights.

There is no doubt that the right to due process, at the very least, relates to civil

rights, as enshrined under

the

Georgia Constitution,

5th

and

4th amendment.

4At

this point however, by making the dangerous argument that charter systems waive

due process for teachers and that the State Board has no jurisdiction to hear Ms.

Day's appeal, Floyd CountyBoard

of

Education not only threatens the rights

of

its

own educators, it threatens to deprive the due process rights for thousands

of

teachers across our entire state, especially those whose districts switch over to

charter systemsby the June 2015 deadline. O.C.G.A. 20-2-84.3. Affording our

teachers the right to due process has been a bedrock principle

of

school law since

public education was birthed in Georgia well over 100 years, which leads us to our

next sectionthe history

of

due process for teachers in Georgia.

Legislative Find. 24 Ga. St. U. L. Rev. 121, 127 (2007).

The full legal argument explaining why this is so is located on pages 21-26.

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FACTUAL H I STORY :

l.The

One-Hundred

Year History ofDue Process, State Board

Appellate

Jurisdiction, and

For

Cause Standard in

Dismissing Teachers:

The public

school system in Georgia was birthed during Reconstruction after the Civil War as

reflected in the Constitution

of

1868 which provided for a thorough system

of

general education to

be

forever free to all children of the state. See Ga. Const,

of

1868 Article VI Sec. 1. Since this foundation

of

public education over a century

ago, Georgia established the State Board

of

Education to act as the high court

of

appeals in school matters, its decision either between parties litigant or upon

questions involving the construction or administration

of

school law being final.

See the 1869 speech by Georgia's second State School Commissioner Dr.

Gustavius J. Orr, quoted in Charles Edgeworth Jones, Education in Georgia, p 37,

(Washington Govt. Printing Office, 1889).

Also see:

Georgia Acts

of

1887, p. 74:

Judicial tribunalappeals, Section 13: That the County Board

of

Education shall

constitute a tribunal for hearing.. ..said decision shall be binding on the parties to

the controversy; provided that either of the parties shall have the right to appeal to

the

S ta te Schoo l

Commiss ioner .


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In fact, at Georgia State Archives' special collections' rare book room

located in Morrow, Georgia, one can dust off these old ledgers filled with appeal

manuscripts written in quill and ink. There, one can view the very first Georgia

state boards of education appeal decisions from the late 1800's and early 1900's

that review Local County Board

of

Education decisions including those that

redressed the concerns

of

teachers.

See

Vol. 2-3578,

EducationOffice

of

SuperintendentAppealsDecisions (1892-1904) and Vol. 2-3580, Education-

Office ofSuperintendent-Appeals Decisions (1985-1918).

In 1916, the State Superintendent of Schools authored Georgia School Laws

andDecisions

writing that it was not according to the letter or spirit

of

Georgia

law for a teacher to be summarily discharged at the whim of a Board without a

trial.

See

M.L. Brittain

GeorgiaSchool LawsandDecisions Publishedby the

Georgia

Dept

ofEducation,

Chapter XI Note 13, (1916). In 1919, the Georgia

legislature enacted Georgia law concerning the suspension

of

teachers, establishing

a fair dismissal due process procedure that permitted teachers first to appeal an

adverse employment decision to the local board of education, then to appeal to the

State Board of Education. Importantly, a teacher could only be removed for cause,

the law of 1919 stating the superintendent shall hereafter suspend any teacher


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under his supervision for non-performance

of

duty, incompetency, immorality or

inefficiency, and for other good and sufficient causes, from which decision the

teacher may appeal to the county board of education, and either being dissatisfied

with their decision, they can appeal to the state superintendent or from there to the

state board of education, the decision ofwhich shall be final. Georgia Code 32-

1010, Acts. 1919, p. 352.

Due process eventually evolved into the 1975 passage of the Fair Dismissal

Act. O.C.G.A. 20-2-940

et seq.

Under the terms

of

this law, teachers who

accepted their fourth consecutive contract from a school district became entitled, in

the event

of

termination, to a written explanation of the circumstances surrounding

their dismissal, the right to a hearing, and the right to appeal. Since 1975, the Act

worked to ensure fair dismissal for Georgia educatorsrooting out teachers that

needed removal yet protecting good teachers from nepotism, political or personal

vendettas, false accusations, reporting a cheating scandal, or being fired in

exchange for less expensive but less experienced, less qualified teachers.

In 2000, Democratic Governor Roy Barnes made a blistering mistake by

introducing the

A Education

Reform

Act

of

2000

which reversed fair dismissal

law in Georgia, depriving teachers

of

their right to due process. The passage

of

this

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legislation led to his eventual defeat and the subsequent restoration

of

fair

dismissal protection for the state's teachers by the Republicans. Scott Grubbs,

QualityofGraduateExperience in a Georgia Case Study:

The

Elimination of

Teacher Tenure in Georgia as Viewed Through the Policy Formulation Process

Model Environment,

Vol. 3 Georgia Educational Research Online Edition (Spring

2005).

The Georgia Association of Educators (GAE) protested vehemently against

Governor Barnes actions to reverse due process protection, held rallies on the

Capitol steps, and most importantly, rallied behind Governor Sonny Purdue. See

Mike McGonigle, Legal Services Director ofGAE, Georgia Association of

Educators Rights Handbook, p. 4 (2011). In 2004, GAE obtained their largest-

ever victory. Their newly elected Governor Purdue, once in office, signed Georgia

Senate Bill 193, restoring the job protections under the Fair Dismissal Act.

Id.

2. A Brief

History of

the Charter

Systems Act and

its

Relation

to Fair

Dismissal-Due Process: Prior to the Charter Systems Act

of

2007, only individual

schools, not entire school systems, could become charters. In 2007 this changed

with the passage

of

Lieutenant GovernorCaseyCagle's signaturebill, SB39

which allowed entire school systems, such as Floyd County Schools, to obtain

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charter

status.5

The

Act

rendered

bipartisan support

from

the most

activist

professional educational associations and teacheradvocacy groups such as the

Georgia Association ofEducators GAE) who supported

this

legislation.6 GAE

would have zealously fought to oppose thebill had it waived teachers' civil rights

to procedural due process through fair dismissal, havingjust obtained its recent

victory

restoring dueprocess laws just three years prior. Instead,

GAE,

amongst

other educationgroups lobbiedto insure the 2065(b)(5) languageso that due

process

of

educators would be preserved and received assurances from its

lawmakersduring Senate floorproceedings introducers of the legislation

explicitly expressed thatthe law's intent

would

still be toprovide for protection

of

due process rights.

See

Megan L. Iorio, Alyssa P. Morris, Elementaryand

Secondary

Education:

Amend

Article

31

ofChapter

2

of

Tit le 20

of

the

Official

Code

of

Georgia

Annotated, Relating to

Charter

Schools, So

As

to

Enact the

5

http://www.legis.ga.gov/legislation/en-US/display/20072008/SB/39

6

See http://www.senate.ga.gov/committees/Documents/2007Minutesl20.pdf.

Minutes of the

Georgia Senate

Education and

Youth

Committee

2007

Legislative

Session, January 30, 2007.

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Charter Systems Act ; Provide for Legislative Find. 24 Ga. St. U. L. Rev. 121,

127 (2007). Consequently, the Charter Systems Act passedby a sweeping majority

and was embraced by the statewide leading teacher association advocacy groups,

primarily Georgia Association ofEducators (GAE), after receiving assurances that

due process would be protected, having just obtained their hard-fought victory for

due process a few years prior with the victory of the Republican governor

reinstating the Fair Dismissal Act. E.g.

GAE Educator s

Rights Handbook p. 4.

Regarding the question as to who would oversee the Charter Systems Act,

there was no question that the Legislature granted this authority with the State

Board: The State Board may establish rules, regulations, policies, or procedures

consistent with this article relating to charter schools. O.C.G.A. 20-2-2065(a).

As such, it is within the purview of the State Board to determine that O.C.G.A.

20-2-2065(a) cannot be read so broadly as to violate the due process rights of

school employees who are entitled to due process. Gilda Day v. Floyd County

Board

of

Education, Case No. 2014-01 at 2 (Ga. SBE. November 7, 2013).

PART

TWO : ENUMERAT ION S

OF ERROR :

Enumeration

of

Error One: The Superior Court erred in not giving

judicial deference to the State Board

of

Education's ruling that under the Charter

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Systems Act due process may not be waived and that Appellant only had tenure

because she

was vested.

Enumerat ion

o f Error Two:

The Superior Court erroneously interpreted Georgia law by finding that the State

Board had no authority or jurisdiction to address the validity

of

the Local Board's

conduct under the Charter System Agreement.

PART

THREE JURISDICTION.

STANDARD OF

REVIEW

ARGUMENT

Jurisdiction: is proper pursuant to O.C.G.A. Section 5-6-35 and Article VI,

5, Tf 3 of the Georgia Constitution.

Standard

of

review: Ordinarily, appellate bodies, including the Court

of

Appeals appl[y] the 'any evidence' standard

of

review to the record supporting

the initial decision of the Local

Board. Chatooga County

Bd. of Educ. v. Searels.

302 Ga. App. 731, 732 (2010). However, appeals, such as this one, regarding

questions

of

law, are reviewed

de novo Seegenerally

Fort v. Rucker-Fort, 297 Ga.

App. 3, 4, 676 S.E.2d 398, 398 (2009). In this case, the LocalBoard incorrectly

held that because it is a charter system it waives the Fair Dismissal Act and that the

State Board

of

Education holds no appellate jurisdiction over this matter. As stated

above, this not only thwarts the intentof the Georgia Legislature in passing the

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^^p f^3

n

law , but alsothatof the

State

Board's authority, the state

agency

to

whom

the

legislature has charged with the responsibility to: establish rules,

regulations,

policies, or procedures consistent withthis article relating to charterschools.

O.C.G.A. 20-2-2065.

Relevantly, the lawrequires thatjudicial deference must be given the

agency's interpretation of statutes it is chargedwith enforcing by the Legislative

branch. Cookv. Bottesch 320Ga. App. 796, 803 2013). Thus, the onlyjudicial

deference

this Court

should

offer is to

th e

State Board

of Education s

determination that the Charter SystemsAct does not permit a waiver of due

process under the Fair DismissalAct. Both the UnitedStates SupremeCourt and

Georgia SupremeCourt have already emphasized that judicial deference must be

given to state agencydecisions. Specifically, the UnitedStates Supreme Court has

ruled that if a statute is silentor ambiguous with respect to the specific issue, the

court must defer to administering agency's reasonable interpretation.

See

Chevron

U.S.A. v. Natural Resources Defense Council. 467 U.S. 837, 843-846 (II), 104

S.Ct. 2778, 81 L.Ed.2d 694 (1984) ( a court may not substitute its own

7See FN 3.

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construction

of

a statutory provision for a reasonable interpretation made by the

administrator of an agency ). Likewise, the Georgia Supreme Court has held that

When an administrative agency decision is the subjectofjudicial review, judicial

deference is to be afforded the agency's interpretation of statutes it is charged with

enforcing or administering and the agency's interpretation of rules and regulations

it has enacted to fulfill the function given it by the legislative branch. Cook v.

Bottesch, 320 Ga. App. 796, 803, 740 S.E.2d 752, 757 (2013) citing Pruitt Corp. v.

Georgia Dep't

of

Cmty. Health, 284 Ga. 158, 159, 664 S.E.2d 223, 225 (2008).

Other than providing this specific deference, this Court should review these

questions de novo. ARGUMENT

A . Concerning

Enumerat ion o f

Error One: 1. Due Process is not

waived

under the Charter Systems

Act:

The Georgia legislature and the State Board of

Education has made clear that charter systems may not waive due process for

educators and that in fact, the Charter Systems Act would provide for protection

of

due process rights.

See

FN3. The Superior Court decision thwarts due process

rights that have been established from the very birth of public education during the

late 1800's.

Supra

pp. 9-11. It further thwarts both the intent

of

legislature and the

state agency charged with enforcing the Charter Systems Act, O.C.G.A. 20-2-

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2065. Here, the Superior Court failed to give the State Board

of

Education the

proper judicial deference as is required by law Cook v. Bottesch, 320 Ga. App.

796, 803 (2013), in addition to failing to properly defer to its findings that charter

systems are in fact subject to due process laws. (R-146).

The State Board

of

Education's decision that charter systems may not waive

due process rights for educators comports with the Legislature's intention to

o

provide for protectionof due process rights, by holding that the Charter Systems

Act cannot be read so broadly as to do away with due process rights for tenured

educators because 20-2-2065(b) states that charter systems are [s]ubject to all

federal, state and local rules, regulations, court orders and statutes relating to civil

rights. There is no doubt that the right to due process, at the very least, relates to

civil rights, as

enshrined under

the

Georgia

Constitution,

5th and

4thamendment.

The

Merriam Webster

dictionary actually defines civil rights as the rights

of

personal

liberty guaranteed to

United States

citizens

by

the 3th and 4th

amendments to the Constitution. The very foundation

of

our civil rights are

8

See

FN 3.

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reflected in the oldest-established civil rights United States SupremeCourt

precedent, aptly titled Civil Rights Cases 109 U.S. 3,

11

(1883) which states that

the 4th

amendment

has deeper and broader scope. Itnullifies and

makes

void

all

State legislation, and State action of every kind, which impairs the privileges and

immunities

of

citizens

of

the Unites States, or which injures them in life, liberty, or

property without due process

of law...

Id.

Indisputably, due process relates to civil rights laws. In the event of a

procedural due process violation, an individual has the right to bring what is

known as a

civil rights

action for deprivation of procedural due process rights.

Often referred to as a Section 1983 action and formally titled a 'Civil Action For

Deprivation

of

Rights,' this Civil Rights action can be filed against a government

officer for such a procedural due process violation.

See

42 U.S.C. 1983; U.S.C.A.

Const. Amend. 14; Const. Art. 1, 1.

Consequently, the Georgia Legislature stating that charter systems are

[s]ubject toall federal, state and local rules, regulations, court orders and statutes

relating to civil rights insured and intended to provide for protection

of

due

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process

rights

as

expressed

on

the Senate

floor9

Note the emphasis

on

the term

all within O.C.G.A. 20-2-2065(b)(5). (Emphasis added) Importantly, the Georgia

Supreme Court has held that fundamental rules of statutory construction require the

Courts to construe a statute according to its terms, and plain, ordinary meaning

taking into consideration the intent of the General Assembly) Atlanta Indep. Sch.

Sys. v.

Atlanta Neighborhood Charter

Sch.. Inc.. 293 Ga. 629, 748 S.E.2d 884

(2013). As such, it is notable that the General Assembly did not specifically list

every law relating to civil rights available under the sun because it used the word

all. The plain meaning of the term all within the context ofO.C.G.A. 20-2-

2065(b)(5), naturally includes the civil right to due process as enshrined in Article

One,

Section One ofthe

Georgia Constitution10 and

the

Fourteenth

Amendment of

9FN 3.

Logically,

all

state

laws

relating

to

civil rights

literally

means

allincluding

Fair

Dismissal Act. Merriam Webster s dictionary defines the word all as the whole

quantity, extent, duration, amount quality, or degree of; the whole; the whole

number of; any whatever; every. Simply put, all means all.

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the U.S. Constitution which prohibits state and local government officials

from depriving any person

of

life, liberty, or property, without due process

of

law.

Even

if

the word all was not included so plainly and unambiguously, well-

established Georgia law for decades has held that

if

the language used by the

legislature in a special act is ambiguous or doubtful in meaning, the ambiguity and

doubt will be resolved against harshness and injustice, and thus in favor

of

letting

the truth be known. Washington Nat. Ins. Co. v. Edwards. 102Ga. App. 381, 383,

116 S.E.2d 514, 516 (1960). Hence, if the statute may be given two constructions,

one consistent with natural equity and justice, and the other not, the court should

give it the former construction. Jenkins v. State, 93 Ga. App. 360, 366, 92 S.E.2d

43, 47 (1956). Another rule

of

construction is that, where a law is susceptible

of

more than one construction, it must be given that construction which is most

equitable and just. Ford Motor Co. v. Abercrombie. 207 Ga. 464, 468, 62 S.E.2d

209, 213 (1950). Without a doubt, the State Board ofEducation was irrefutably

correct in interpreting the statute in the most lawful, equitable and

just

manner-

ruling that charters are subject to aHJaws

relating to

civil rights including those

granting the procedural right to due process.

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The SuperiorCourt's erroneous decisionwhich would suggest due process

rights forchartersystems arewaivedunless teachers werevested with tenureprior

to the execution

of

the charter) doesn't only have the dangerous effect

of

depriving

Floyd County School's educators of their right to due process in the immediate

present and long range future. At the very worst, this decision will be used to

deprive due process rights

of

educators throughout the state

of

Georgia. And at the

very least, the Superior Court's decision will cause confusion with the law being

unequally

and

unevenly applied for educators from school district to school

district. As such,Ms. Day urges this Court to give deference to the State Agency

charged with enforcing the Charter Systems Act by affirming the relevant portion

of

their decision which finds that due process may not be waived.

2. Contrary to the Superior Court s Decision, Floyd County Schools Did Not

Waive Due Process By Executing a Charter Agreement and

Ms.

Day

Had

A

Right

To Due

Process

Regardless

As

To When She Became Vested: Local

Board policies adhered to the Fair Dismissal Act, for example see Local Board

policies adhered to

the

Fair Dismissal Act.11 Superintendent McDaniel wrote Ms.

See FN 1.

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a property interest, an expectation

of

continued employment under the Fair

Dismissal Act that is protected under the 14 amendment.

Importantly, property interests/rights are created and defined by rules and

understandings stemming froman independent source,which include not only state

law, but also the policies and practices

of

an institution to justify a legitimate claim

t i i

of

entitlement to continued employment which triggers the 14 amendment right

to due process. E.g. Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S. Ct. 2694,

2700, 33 L. Ed. 2d 570 (1972) In the Sindermann case, a college professor was

found to have de-facto tenure and thus a property interest which implicated due

process solely based on policies and practices

of

the institution even though no

vested contractual right or tenure provision existed. Similarly, in McKinney v.

Pate. 20 F.3d 1550, 1554 (11th Cir. 1994), the county policy manual, which

provided that a permanent employee could be dismissed only for cause and

outlined the procedures by which an employee could be terminated, established

this continued expectation

of

employment and procedural due process right.

Likewise, the Supreme Court ofGeorgia has stated: We interpret the due process

clause under our State Constitution as providing the same procedural rights in

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public employment cases as the federal due process clause. Under both clauses, the

state must give notice and an opportunity to be heard to a person deprived

of

a

property interest. This Court has found that a public employee has a property

interest in continued employment for due process purposes when a personnel

manual provides that an employee can only be terminated for cause. Boatright v.

Glynn Cnty. Sch. Dist., 315 Ga. App. 468, 470, 726 S.E.2d 591, 593 (2012), cert,

denied (Oct. 29, 2012). Also see Thomas v. Lee, 286 Ga. 860, 863 (2010) (stating,

[protected property interest in continued employment can arise from

policies

and

practices of an institution ); Atlanta School Dist. v. Dowling, 266 Ga. 217, 218

(1996) (reasoning that an education employee was able to successfully challenge

her discharge through state court as a result of rights granted under either state

statutes

or local board policies. )

Just like in the case at bar, the Court ofAppeals has held that a public

employee has a property interest in his job if his employment allows dismissal only

for cause. An explicit contractual provision, rules, or common understandings may

determine whether an employee is terminable at will or only for cause. The issue is

not dependent upon the presence

of

the specific words

fo r

cause' in the employer's

written personnel policies, as long as whatever provisions apply are meant to be

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analogous to allowing termination only for cause. The expectations

of

the parties

involved are also relevant to this issue. DeClue v. City ofClayton. 246 Ga. App.

487,489, 540 S.E.2d 675, 677 (2000)

Here, local board explicitly written policies and practices established Ms.

Day s

right to due

process-the

Local Board affirms that it adheres to the Georgia

legal code as it relates to separation

of

certified personnel from employment with

the school system.

See

FN 1.

The

Local Board agreed to afford its tenured

employees the right to fair dismissal and its policies adhere to Georgia's fair

dismissal laws thus providing a property interest in continued expectation

of

employment and procedural due process rights. See FN 1.

In sum, Mrs. Day holds a constitutionally protected property interest and due

process right for reasons aforementioned and Local Board must adhere to fair

dismissal laws not only because they are not permitted to waive such civil rights

pursuant to the charter statutes but

also because their

own

policies afford her

such an entitlement.

{See

FN

1, R-663, R-445).

B.

Enumerat ion

o f Err or Two, Concerning The S ta te Board s Authori ty

To

Address The

Validi ty

o f The Local

Board s

Conduct Under

t he Chart er

Agreement: The Superior Court erroneously interpreted and misapplied Georgia

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Q

law in in deciding that the State Board had no authority or jurisdiction to address

the validity of the Local Board's conduct under the Charter System Agreement. (R-

149). This holding is not only contrary to the law

of

Georgia which charges the

State Board ofEducation's authority under the Georgia Charter Systems Act, but is

particularly problematic for school systems seeking to decide whether to adopt a

charter system

by

the June 15th deadline. O.C.G.A. 20-2-84.3.

Moreover, it irrationally suggests that the only recourse for whether a State

Board determines whether a Local Board is violating their charter agreement

would be to institute termination proceedings, i.e. to terminate the charter pursuant

to O.C.G.A. 20-2-2068. This would lead to chaos and absurdity as there are

certainly many scenarios where a State Board of Education encounters a Local

Board to be in violation

ofGeorgia law that implicates a breach of a material term

of their charter agreement. For example, where local school systems (whether they

are classified as status quo, IE2, or a charter systems) fail to appropriately adhere

to various health and safety laws, fail to utilize local school governance, or fail to

appropriately comply with any various number of laws that they are subject to

pursuant any form of various agreement a school district might have with the State.

If

in fact such circumstances would arise, the Superior Court's order implies that

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the only option the State Board might havewould be to initiate proceedings to

terminate charteran extremist response that might be colloquially described as

throwing the baby out with the bath water.

The State Board ofEducation is the appellate body for handling all local

controversies concerning the administration

of

school law. In any appeal under

O.C.G.A. 20-2-1160, whether if it be a due process hearing pursuant to the fair

dismissal act as in Ms. Day s case or in any other appeal, the State Board has the

authority to determine if

the

record establishes that

the

Local Board acted

arbitrarily and capriciously and thus, may lawfully reverse the Local Board's

decision pursuant to their authority under Georgia law. See Wilmer at 462.

The truth is that the Superintendent did admit to excluding Local School

Governance Teams (R-(R-264-265, 281, 286) completely from the decision to

implement the RIF and in the personnel decisions that were made in implementing

the RIF. Gilda Day at 4. Consequently the State correctly found that, the Local

Board erred by declining to rule on this issue

and

excluding Appellant's evidence

regarding the Local Board's failure to follow the charter system agreement.

Id

This failure constitutes arbitrary and capricious conduct. Id at 5.

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The Superior Court's erroneously interprets Georgia law by suggesting that

the State Board should have held the procedure (termination of the charter

proceedings) set forth under O.C.G.A. 20-2-2068 to determine whether a Local

Board complied with a charter agreement (R-149). Respectfully, this is completely

misguided. Georgia law under O.C.G.A. 20-2-2068 provides provisions for

when

a

State

Board

may terminate

a

charter

based on such

reasons

such as a failure

to adhere to a material term

of

the charter or a failure to promote school level

governance. It is not a requirement. In the case at bar, the State Board

of

Education

chose not to undergo a termination hearing or seeking to terminate the Local

Board s

charter. Rather, it was simply reviewing the appeal

of

a fair dismissal

hearing pursuant to its authority as the appellate body for review.

This Court should reject the Superior Court s decision that the State Board

did not have the authority or jurisdiction to address the validity of the Local

Board s

conduct under the Charter System Agreement. First, requiring that the

State Board initiate the termination

of

a charter each and every t ime a charter

system violates a material term of their agreement would be a draconian, extremist

reaction that would throw school systems into chaos. Second, it hamstrings the

state Department ofEducation at being able to carry out their legislative mandate

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and would create havoc for Georgia public education in contravention

of

Georgia

law

and its

Consti tution.

Respectfully, the Court ofAppeals must affirm the State Board of

Education's determination that the Local Board acted arbitrarily and capriciously

by excluding Local School Governance in violation of their charter agreement

when it decided to RIF Appellant Day. The law is clear: even

if a Local Board's

decision to reduce employment positions can be justified by any facts in the record,

the

Local Board s

dec is ion wi ll

be reversed i f its r educ ti on in force

viola ted the

law, or resulted from an abuse

of

discretion, i.e., resulted from arbitrary and

capricious conduct. Lisa Parker et al. v Montgomery Board ofEducation Case Nos.

2012-28, 29, 31. (Ga. SBE. April 5, 2012). Moreover, non-renewal must be

reasonable in light of all the circumstances. Chamberlain v. Wichita Falls Indep.

Sch. Dist., 539

F.2d

566, 569 (5th Cir. 1976).

In sum, the granting

of

a charter system in Georgia does not grant a Local

Board the license to arbitrarily

and

capriciously choose to ignore their

own

Board

policy and the Charter agreement itself. Under Georgia law, local boards may not

operate arbitrarily. Terry v. Houston Ct. Bd. Of Educ. 178 Ga. App. 296 (1986).

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Consequently, Ms. Day respectfully requests that this Court grant its appeal

to reverse the Floyd County Superior Court decision and rather to affirm the

findings

of

the State Board

of

Education, especially that portion which held that

charter systems may not waive due process/fair dismissal for teachers.

CONCLUS ION :

Based on the facts and authority set forth above, the Appellant Gilda Day

submits that the Order

of

the Floyd County Superior Court should be overturned.

The Superior Court made errors in deciding the State Board ofEducation's

decision should be reversed, and now threatens overturning over a century ofwell

established law based on erroneous interpretations that contradict the intent of the

Legislature and cannot be allowed to stand. Based on the foregoing, it is

respectfully requested that the Court

of

Appeals fairly interpret the law, applying

justice not only to the Appellant and Floyd County educators but to the thousands

of hard working teachers throughout the state ofGeorgia.

RESPECTFULLY SUBMITTED:

t l ^ ^

Julie

Oinonen

Georgia

Bar

No. 722018

Counsel

for

GILDA

Y

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Will iams Oinonen LLC

The Grant Building, Suite 200

44 Broad

Street, N. W.

Atlanta, Georgia 30303

Telephone: 404-654-0288

Fax:

404-592-6225

Mario

Will iams

Georgia Bar No. 235254

Counsel for GILDA Y

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o

CERT IF ICATE

OF SERVICE

This shall certify that I have this day served counselswith a copy

of

the

foregoing APPELLANT'S/CROSS-APPELLEE'S BRIEFby depositinga copy via

U.S. mail FEDERAL EXPRESS OVERNIGHT to: Brinson, Askew, Berry,

Seigler, Richardson Davis, LLP, c/o Mr. King Askew and Mr. Stewart Duggan,

615 Wis t

St,

Rome,

GA 30161

This 29THOF OCTOBER 2014

June Oinonen


Counsel

for

GILDA

Y

Mar io Wi ll iams


Counsel for GILDA Y

Williams Oinonen LLC

The Grant Building, Suite 200

44

Broad Street, N. W.

Atlanta, Georgia 30303Telephone: 404-654-0288 Fax: 404-592-6225

\