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We’re the faces on education’s front line. We exist to support, protect, and strengthen those who nurture Georgia’s children. After all, our educational programs can be only as good as our educators. For us, standing up for education means standing up for teachers.

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Preface The Georgia Association of Educators is a nonprofit professional organization of educators dedicated to improving education in Georgia and to advancing the professional, political and legal rights of its members. This Educator Rights Handbook was compiled and edited by the Georgia Association of Educators’ Department of Legal Services. Disclaimer This handbook is intended only as a general guide to the employment rights of Georgia educators and is neither complete nor intended to provide legal advice on a particular problem. Court cases or legislative enactments may modify the law at any time and all statements are subject to change. If confronted with a particular problem, consult with appropriate GAE staff or legal counsel to ensure that current provisions of the law are fully examined. Introduction This booklet is designed to provide you with a quick and easy guide to many of the professional and legal rights you have as a GAE member. Although it is not intended to give you an exhaustive explanation of the law, this booklet will aid you in understanding the most significant education laws that directly affect educators. Educator rights in Georgia are primarily based on Georgia statutes, including the “Fair Dismissal Law,” and on State Board of Education policies, local board of education policies, and each employee’s written contract with the local school system. This booklet explains your rights under your contract and these Georgia laws. Your Contract As a professional certificated employee, you are entitled to a written contract signed by the superintendent. You should retain a copy of all your contracts in all school systems where you have taught. These contracts are an important record of your career history and may be needed as evidence of fair dismissal rights and pension entitlements. Your contract sets forth the rights and responsibilities you have as an employee of the local school system. A teacher’s written contract with a local school system usually requires that all policies and rules of the local board of education be observed by both the teachers and the school system. In addition, all local school systems must have job descriptions for each certificated professional position. Georgia law requires your school system, if it intends to renew your contract, to offer the new contract by April 15 or May 15 of the current school year. If the school system does not give you notice of its intention not to renew by this date, your contract is automatically renewed for the following school year. IMPORTANT UPDATE: the notice of non-renewal will be May 15 for the school years 2010-2011, 2011-2012, and 2012-2013 only.

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When you receive a contract take the time to review it thoroughly. The system must give you at least 10 days to review the contract before you sign and return it to your school system. Although many systems use the same contract every year, you should examine each new contract to see if any provisions have been added or changed. It may be helpful to compare the new contract to the one you received the previous year. If you find any differences, it is important that you contact the school system and GAE to find out what effect these changes will have on your rights and obligations. Take advantage of the review period. Don’t trap yourself by signing a contact only to find out later that you’ve agreed to something you wouldn’t have if you “had only known.” Summary of Authorities on Contracts Teachers, principals, and other certificated professionals are entitled to written contracts. OCGA 20-2-211. Georgia law provides that a letter of intent is not a legally binding contract. OCGA 20-2-211 (b). Note that the statute does not provide a date or timeline as to when letters of intent must be presented to employees. Georgia law requires that contracts shall be complete in all terms and conditions, including the amount of compensation to be paid during the ensuing school year. OCGA 20-2-211 (b). The statute does not require contracts to state the specific position or school location. If an educator does not receive a written notice of non-renewal by April 15 or by May 15, then the contract is automatically renewed for the following school year, UNLESS the educator notifies the local board of education in writing not later than May 1or June 1 of their intent not to accept employment for the following school year. OCGA 20-2-211 (b). IMPORTANT UPDATE: the notice of non-renewal will be May 15 for the school years 2010-2011, 2011-2012, and 2012-2013 only. Similarly, the educators’ notice of intent not to return will be June 1 for the school years 2010-2011, 2011-2012, and 2012-2013 only. A local superintendent must provide written notice of non-renewal postmarked by April 15 or by May 15 if he or she will not be recommending the educator for employment for the following school year. OCGA 20-2-211 (b). The law also requires superintendents to provide any teacher whose contract was not renewed, upon written request, a written explanation for failure to renew their contract. OCGA 20-2-211 (b). Educators who have acquired Fair Dismissal due process rights, the notice of non-renewal must be delivered by certified mail, it must inform the educator of the local board’s intention not to renew the contract, it must contain a conspicuous statement of the educator’s due process rights, and it must be signed by the superintendent. By law, the educator must respond within 20 days after the notice was mailed to request a nonrenewal hearing. OCGA 20-2-940 and 20-2-942. We take pride in the fact that GAE provided funding for a case that resulted in a landmark decision by the Georgia Court of Appeals. Musocgee County Board of Education v. Boisvert, 196 Ga. App. 537, 396 S.E.2d 303 (1990) held that teacher contracts have a six year statute of limitations.

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GAE Wins Back Fair Dismissal for Teachers Starting July 1, 2004, all educators who received their initial Georgia teaching certificates on or after July 1, 2000 will be eligible for due process rights to legal representation and a school board hearing before being nonrenewed or demoted from employment with their school system. Such rights accrue after an educator receives and signs a fourth consecutive full school year contract with the same school system. GAE’s leadership and its members’ unwavering persistence in pursuing reinstatement of the Fair Dismissal Act for all educators was a hard-fought, but well-earned victory! GAE was the only educator organization during the 2000 General Assembly to protest, hold rallies on the Capitol steps, and defy former Governor Roy Barnes’ elimination of these due process rights in his A+ Education Reform Act of 2000. In the 2003 General Assembly, GAE played the undisputed, leading role in creating several pieces of legislation to restore the Fair Dismissal Act for all educators. As a result, SB 193 restored these Fair Dismissal Act rights to all educators. On June 4, 2003, Governor Perdue signed the legislation. “Good Cause” To Terminate, Nonrenew, Demote or Suspend A. Georgia Fair Dismissal Law (Enacted July 1, 1975) The Georgia Fair Dismissal Law was created to provide teachers with protection against losing a job unless there is good and sufficient reason. There are eight statutory reasons or grounds for which a Georgia public school teacher may be nonrenewed, terminated, demoted or suspended. Each reason is listed below, followed by citations to State Board of Education decisions. To read the complete text of the State Board’s decisions, go to http://www.doe.k12.ga.us/ 1. Incompetency

It cannot be simple human error or mistake. West v. Habersham County, Case No. 1986-53 2. Insubordination

Willful failure to obey a clear and express directive of an appropriate school administrator or a willful and repeated failure to comply with state or local board policy. Mere negligence does not constitute insubordination. Woods v. Fulton County, Case No. 1991-13; Brawner v. Marietta City Bd. Of Educ., 285 Ga. App. 10 (2007)

3. Willful neglect of duties

A flagrant act or omission, an intentional violation of a known rule or policy, or a continuous course of reprehensible conduct. Terry v. Houston County, 178 Ga. App. 296 (1986)

4. Immorality

Proven possession of illegal drugs. Dominy v. Mays 150 Ga. App. 783 (1978) 5. Inciting, encouraging, or counseling students to violate any valid state law, municipal

ordinance, or policy or rule of the local board of education

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6. To reduce staff due to loss of students or cancellation of programs Governed by local school board policies 7. Failure to secure or maintain necessary education training; or 8. Any other good and sufficient cause Limited to actions taken or not taken by an employee that adversely impact upon the employee’s ability to be effective. Cooper v. Atlanta Public Schools, Case No. 2005-08 Note that “Immorality” and “Incompetency” have not yet been clearly defined by Georgia courts. “Any other good and sufficient cause” is a “catch-all” phrase, but local school systems using this as a reason should be required to state precisely what the other “cause” is and the standard being applied for which they are dismissing the teacher. Since the law has not provided definitive explanation to some of these “reasons,” the fact that a school system lists one of them as its justification for dismissing a teacher does not mean that a hearing panel or court will define it as a school system does, or that the evidence will support an employment action against the teacher on any of these grounds. That is why the law requires that the school system give the teacher notice of these “charges” in sufficient detail so that he/she can show any error in the charges. A hearing concerning the nonrenewal, termination, demotion, or suspension will take place before the local board of education, or a tribunal of 3-5 impartial persons with academic expertise, and is similar to a court hearing. The teacher has the right to be represented by a representative of his/her own choosing. Every GAE member is entitled, win or lose, to fully funded representation and counseling from a GAE attorney in the event that he or she has been nonrenewed, terminated, demoted or suspended. B. Steps to Take Regarding Any Employment Action Against You If you receive a nonrenewal, termination, suspension or demotion notice, you should follow these steps: 1. Contact your UniServ Director by telephone. Be prepared to read the notice you received to

the staff member on the telephone. 2. Secure two copies of all evaluations, complaints, and any other materials contained in your

personnel file. If you have any difficulty securing these materials, notify GAE immediately. 3. Obtain and assemble copies of your current teaching contract and all correspondence you’ve

sent to or received from the school board or administration. 4. Prepare a written statement regarding each of the charges in the notice and explain how each

charge can be refuted in the hearing. Following these few steps will help save time and are invaluable in properly preparing for the hearing. NOTE: Only teachers with due process rights have a right to a hearing for nonrenewal or demotion. All teachers have a right to a hearing for termination or suspension.

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Nonrenewal/Demotion Rights A. Why are Due Process Rights Necessary? Due process gives a teacher in Georgia the legal right to a hearing and the right to know the reasons whenever the teacher is nonrenewed or demoted. B. Are you Entitled to a Hearing? A teacher automatically receives due process rights after he/she has worked under a full school year contract with the same public school system in Georgia for three consecutive years and is offered and signs a contract for a fourth year. A teacher who has earned such due process rights will automatically receive due process rights in any other Georgia public school system after he/she has worked under a full school year contract with that system for just one year and is offered and signs a contract for a second year. Georgia law considers a contract to have been offered to a teacher if the school system has not informed him/her by April 15th in writing that it does not intend to renew his/her contract. Only full-time, full-year contracts count toward acquiring due process rights. You should be aware that once you earn due process, it is only recognized in the school system where you acquired it. Due process rights in one school system do not transfer with you to the new school system. Your due process rights do continue when you are on an approved leave of absence and return to the same school system. You should get all approved leaves in writing. C. Due Process Rights If a teacher has due process rights, then a school system must provide the teacher with the following rights if it demotes him/her to a position of “less responsibility, prestige and salary” or nonrenews his/her contract: 1. Notice — The system must give the teacher notice of its intention and the opportunity to

challenge the decision. The notice has to inform the teacher of all the reasons for the decision to demote or nonrenew.

The reasons must be “sufficiently detailed” to allow the teacher to understand and challenge them;

2. List of Witnesses — the system must also provide the teacher with a list of witnesses and a

concise summary of the evidence to be used against him/her; and 3. Hearing — the system must inform the teacher that he/she has a right to a hearing and notify

him/her of the time and the place for the hearing. At the hearing the teacher has the opportunity to show that the reasons given for his/her demotion/nonrenewal are not true.

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Demotions and Transfers A. Demotion A demotion is defined as the reassignment of a teacher to a position that has less salary, less responsibility, and less prestige in the community. All three of these factors must be present for the reassignment to constitute a demotion. If a teacher has due process rights, a school system must provide the teacher with notice of the charges and the opportunity for a local school board hearing before it can demote him/her. At the hearing the superintendent must justify the reasons for the demotion. B. Transfers A transfer occurs when a superintendent requires a teacher to teach in a different school. The law specifically grants local boards of education with the authority to transfer teachers to different schools and to teach different subjects as long as they are certified in the appropriate teaching field. Although teachers generally do not have a right to a hearing to challenge a transfer, the State Board of Education has held that such a right exists where the transfer is intended to discipline the teacher or is otherwise punitive in nature. Letters of Reprimand A local superintendent may write a letter of reprimand for any valid reason. The law that provides for this does not give anyone else the authority to write a letter of reprimand to a teacher. A copy of the letter is placed in the teacher’s permanent personnel file. A teacher has two options when he or she receives such a letter. He or she can write a response, explaining his/her position, and request that it be placed in his/her personnel file with the reprimand letter. The teacher also has the right to a hearing to challenge the superintendent’s decision to place the reprimand in his/her file. The hearing is to be conducted before the local school board. If the teacher prevails at the hearing, the superintendent’s decision is reversed and the letter is removed from the teacher’s file. Summary of Administrator Due Process Law In the 1995 Session of the Georgia General Assembly, a bill was passed which affects tenure for public school administrators. Below is a summary of the new law: • Eliminates due process rights upon non-renewal of employment for educators who become

school administrators after the bill was signed by the Governor (April 7, 1995). The elimination of due process rights affects the following groups of educators: teacher promoted to the administrator rank, administrators hired from other school systems and administrators who receive and accept promotions to higher positions.

• Grandfathers in all current, due process rights from administrators only in the administrative

position currently held or in any position to which the administrator is involuntarily transferred. In other words, whatever due process rights that an administrator currently has are retained under the new law.

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• Should a current administrator accept a promotion within the same school system, due

process rights could never be earned in the new position, however, the administrator would retain due process rights in the old position. (Example: Educator A is an assistant principal who accepts a promotion to a principalship in the same school system. Educator A could be demoted back to an assistant principal without a due process hearing because he/she never earns due process rights as a principal. However, Educator A could not be demoted back to the classroom or non-renewed without a hearing.)

• Provides that teachers with due process rights who become school administrators without

any break in their employment with the same local board of education will retain due process rights in the position of teacher only. In other words, this class of educators could be demoted back to the classroom without a due process hearing. New administrators who did not achieve due process as a teacher with the local board (i.e. hired from another system) have no due process rights whatsoever and can have their contracts nonrenewed without a hearing and without good cause.

• Provides that local boards of education may enter into employment contracts with

administrators for up to three years. During the term of the employment contract, administrators retain their due process rights with respect to demotion, suspension, or termination. However, the law expressly provides that the administrator has no right to renewal of the extended employment contract upon the expiration of its term if the administrator is not in the protected class of grandfathered-in administrators.

• Provides that local boards of education may adopt or modify a personnel policy to allow

administrators to earn due process rights. However, the local board must hold a public hearing prior to adopting or modifying such a policy.

• The law expressly states that it does not impair the rights of teachers or administrators with

respect to their employment under annual contracts. In other words, all administrators still retain the right to due process should the local board attempt to terminate or suspend their contract during the school year.

The Professional Standards Commission - Certificate Actions Against Educators The Professional Standards Commission (“PSC”) is authorized by state law to adopt a Code of Ethics and standards of performance and conduct for the teaching profession. GAE and its members were instrumental in the development of the Code of Ethics and ensuring that the rights of educators were protected. The PSC is also statutorily authorized to conduct investigations of violations by an educator of state laws, the Code of Ethics, and rules, regulations, or policies of the PSC, the Georgia Board of Education, or local school boards. After investigation, the PSC may take action against an educator’s certificate, including denying, revoking, or suspending a certificate, and/or reprimanding, warning, or monitoring a certificated educator. The PSC may only take such certificate action subject to the due process rights of educators to a hearing before an administrative law judge of the Office of State Administrative Hearings. GAE members have an automatic right to be represented by a GAE attorney without cost in any PSC investigation or hearing involving potential certification action against them.

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Grievances (O.C.G.A. S20-2-989.5.) The grievance bill was enacted during the 1991-1992 legislative session and became effective July 1, 1992. It was originated solely by the Georgia Association of Educators and gives educators statutorily authorized rights entitling them to a voice in raising work concerns and violations of state laws and local policies through a formal procedure up to and including a full evidentiary hearing before the local school board. It requires all local boards of education to adopt a grievance procedure incorporating the minimum standards set out in the bill for all certificated employees. The grievance bill tremendously enhances the rights granted to teachers under the former State Board policy 160-1-3-.01, Code GAE. It is reproduced in its entirety below. 20-2-989.5. Legislative intent; adoption of complaints policy. a. It is the intent of this part to resolve problems at the lowest organizational level with a

minimum of conflict and formal proceedings so that good morale may be maintained, effective job performance may be enhanced, and the citizens of the community may be better served. These procedures require local units of administration to implement a simple, expeditious, and fair process for resolving problems at the lowest administrative level.

b. It shall be the duty of all local units of administration to adopt a complaints policy for

certified personnel that shall contain the definitions and standards provided in this part. (Code 1981, S 20-2-989.5, enacted by Ga. L, 1992, p. 3303, S 1.)

20-2-989.6. Definitions. As used in this part, the term: a. “Administrator” means the individual at each level designated by the local unit of

administration to preside over and make decisions with respect to complaints. b. “Central office administrator” means the local school system superintendent or the director of

a Regional Education Service Agency (RESA). c. “Complaint” means any claim by a certified employee of any local unit of administration

who is affected in his or her employment relationship by an alleged violation, misinterpretation, or misapplication of statutes, policies, rules, regulations, or written agreements of the local unit of administration with which the local unit of administration is required to comply.

d. “Local unit of administration” means the local board of education or the local board of

control of a RESA. (Code 1981, S 20-2- 989,6, enacted by Ga. L. 1992, p. 3303, S 1.) 20-2-989.7. Matters not subject to complaint. a. The performance ratings contained in personnel evaluations and professional development plans pursuant to Code Section 20-2-210 and job performance shall not be subject, demotion, suspension, or reprimand of any employee, as set forth in Code Section 20-2-940, and the

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revocation, suspension, or denial of certificates of any employee, as set forth in Code Section 20-2-790, shall not be subject to complaint under the provisions of this part. b. A certified employee who chooses to appeal under Code Section 20-2-1160 shall be barred from pursuing the same complaint under this part. (Code 1981,S 20-2-989, 7, enacted by Ga. L. 1992, p. 3303, S 1) 20-2-989.8. Establishment and contents of complaint policy. Local units of administration shall establish a complaint policy that shall include the following: 1. A statement that a complaint by the certified employee at the initial level shall be in writing

and shall clearly state the intent of the employee to access the complaints policy. All certified employees shall request in writing successive levels of review;

2. A method and time frame for filing complaints and appeals, including successive levels of

appeal from the complainant’s immediate supervisor to the central office administrator to the local unit of administration, provided that the complainant shall be entitled to file a complaint within ten days from the most recent incident upon which the complaint is based, and provided that the complainant shall have a minimum of ten days to file an appeal at any level up to and including the local unit of administration, and provided that the total time frame shall not exceed 60 days from the initiation of the complaint until notification to the complainant of the decision rendered by the local unit of administration;

3. A statement setting forth the manner in which notice of the initial hearing and appeals shall

be given; 4. A statement that the complainant shall be entitled to an opportunity to be heard, to present

relevant evidence, and to examine witnesses at each level; 5. A provision whereby the complainant is entitled to the presence of an individual of his or her

choice to assist in the presentation of the complaint to the central office administrator and at the local unit of administration level. The policy shall also include a provision whereby the presence of any individual other than the complainant and the administrator at any lower level is specifically prohibited. At the local unit of administration level nothing shall prevent the local unit from having an attorney present to serve as the law officer who shall rule on issues of law and who shall not participate in the presentation of the case for the administrator or the complainant;

6. Provisions for keeping an accurate record of the proceedings at each level, requiring the

proceedings to be recorded by mechanical means, preserving all evidence, and requiring that these be made available at all times to the parties involved but which provisions do not permit the presence of a third person at any level below the central office administrator or local unit of administration level;

7. A statement that the complainant cannot present additional evidence at each level of the

complaint process unless it is submitted in writing by the complainant five days prior to the set date for the Level II and Level III hearing to the administrator presiding over the complaint. The board of the local unit of administration, when hearing an appeal from a prior complaint level, shall hear the complaint de novo;

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8. A statement that each decision be made in writing and dated. Each decision shall contain findings of fact and reasons for the particular resolution reached. The decision reached at each complaint level shall be sent to the complainant by certified mail or hand delivered by a person designated by the central office administrator within 20 days of the decision;

9. A statement that any complaint not processed by the administrator or the local unit of

administration within the time frames required by the local complaint procedure and this part shall be forwarded to the next level of the complaint procedure;

10. A provision that all costs and fees shall be borne by the party incurring them unless

otherwise agreed upon by the parties involved, except that the cost of preparing and preserving the record of the proceedings shall be borne by the local board of education; and

11. A statement that a complaint shall not be the subject of any reprisal as a result of filing a

complaint under this part. Should any reprisal occur, the complainant may refer the matter to the Professional Practices Commission. (Code 1981, S 20-2-989.8, enacted by GA. L. 1992, p. 3303, S 1.)

20-2-989.9. Supplemental rules and policies authorized. Nothing in this part shall be construed to prevent a local unit of administration from adopting supplemental rules and policies not inconsistent with this part that grant additional substantive and procedural rights to the complaint with respect to this part. (Code 1981, S 20-2-989. 9. enacted by GA. L 1992, p. 3303, S 1.) 20-2-989.10. Collective bargaining not permitted or fostered. Nothing in this part shall be construed to permit or foster collective bargaining as part of the state rules or local unit of administration policies. (Code 1981, S 20-2-989. 10. enacted by GA. L 1992, p. 3-03, S 1.) 20-2-989.11. Appeals to State Board of Education. Appeals from the decision of the local unit of administration to the Georgia Board of Education shall be governed by state board policy and Code Section 20-2-1160. (Code 1981, § 20-2-989.11, enacted by Ga. L. 1992, p. 3303, § 1.) Duty Free Lunch All teachers who teach kindergarten through 5th grade are entitled to a 30-minute duty free lunch period. This 30-minute duty free lunch period is included in the number of hours worked and is separate and apart from noninstructional time, such as planning periods. Local boards of education are prohibited from extending the work day as a result of providing teachers with a 30-minute duty free lunch period. You may agree to exchange your right to a 30-minute duty free lunch period for another benefit or additional compensation, but the school system may not otherwise withhold your right to a duty free lunch.

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Leave A. Sick Leave Each teacher or other professional employee is entitled to sick leave with full pay computed on the basis of one and one-fourth working days for each completed contract month. Sick leave days can be accumulated from one contract year to the next up to a maximum of 45 days. A local board of education may provide an additional leave time as long as it is financed locally. Local boards are required to develop and maintain policies addressing sick leave. Upon approval of the local superintendent or his representative (for example, the principal), accrued sick leave may be used for: 1. Personal illness or injury; 2. Absence necessitated by exposure to contagious disease; 3. Absence due to illness or death in the employee’s immediate family; 4. Personal or professional reasons. Additionally, teachers shall not be charged with sick leave for up to seven days of absence due to an injury caused by a physical assault on the teacher or other school employee during the course of their job duties. Further, the teacher shall not have their pay reduced or have to pay for a substitute for such absence. B. Personal and Professional Leave During any school year, a teacher may utilize up to a maximum of 3 days of accumulated sick leave for personal or professional reasons if prior approval is given by the superintendent or his/her authorized representative. The approval cannot be conditioned upon the teacher’s being required to disclose the specific purpose of the leave, except that the teacher may be required to state whether the absence is personal or professional. Such absence can only be denied if it is in conflict with a local policy concerning school days on which a teacher’s presence is essential for effective school operation. C. Jury Duty If you are called to serve jury duty or are subpoenaed to testify in a case arising out of your duties as a teacher you are entitled to a leave of absence without any loss of pay. Also, any teacher who serves as a juror or witness will not have jury/witness leave deducted from sick, personal, or professional leave, nor can the teacher be required to pay for a substitute teacher. D. Maternity Leave A leave of absence for maternity reasons shall be granted to a teacher as follows: 1. A teacher who is pregnant is entitled to a leave of absence to begin at a time to be

determined by the teacher, her physician, and the local school superintendent, between the commencement of pregnancy and the anticipated date of delivery. The teacher must notify the superintendent in writing of her desire to take such leave and, except in case of

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emergency, must give notice at least 60 days prior to the date she wants to begin her leave. This notice must include a doctor’s statement of anticipated date of disability. The teacher may continue to teach as late into her pregnancy as she desires so long as she is able to properly perform the required functions of her job. If a dispute arises, the local board of education makes the final determination of the teacher’s ability to properly perform the required functions of her job.

2. After the completion of the leave, the returning teacher must submit a doctor’s statement

indicating that the teacher is able to return to work. Upon the approval of the superintendent, the teacher is assigned to her original position or a substantially equivalent position. A teacher who has been granted leave for a period longer than the period of physical disability, but not exceeding one school year, is entitled to return to active employment upon written request for reassignment and contingent on a vacancy for which the teacher is qualified. Such a teacher is to be given preference equal to any other applicant returning from a period of physical disability for a vacancy for which she is qualified.

Evaluations O.C.G.A. 20-2-210 provides that the State Board of Education shall draft a model annual evaluation instrument and that local units of administration are authorized to use such models. Accordingly, local units of administration now have the discretion to use the evaluation instrument drafted by the State Board of Education or to draft their own evaluation instrument. The State Board of Education has decided to use the evaluation instrument under GTEP as the model annual evaluation instrument. Therefore, to the extent that local units of administration continue to use the annual evaluation instrument under GTEP, the procedure contained therein apply to the annual evaluation process. However, the procedures under GTEP do not apply to non-GTEP evaluation instruments. Board meetings should be closely monitored to ensure that annual evaluation instruments adopted by local units of administration are fair, equitable and provide for maximum participation by educators. “Improved Student Learning Environment and Discipline Act of 1999” In 1999, the Georgia General Assembly adopted landmark, comprehensive student discipline legislation entitled the “Improved Student Learning Environment and Discipline Act of 1999.” This “Discipline Act” greatly increases the tools available to educators to improve the student learning environment by improving and instilling age-appropriate student behavior and discipline. The Act requires that, no later than July 1, 2000, local school boards adopt policies including a student code of conduct containing standards of behavior, a student support process, a progressive discipline process, and a parental involvement process. The Georgia Board and Department of Education are required to set minimum standards for all the local board policies. The Act also makes clear that it is a state policy preference to reassign disruptive students to isolated and individual oriented in-school suspension programs or alternative educational settings rather than to suspend or expel such students from school. Student Codes of Conduct for School Bus Safety—Protection of School Employees

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To protect and improve the safety of children and public school employees when being transported on school buses, GAE lobbied successfully to amend the existing statute requiring student codes of conduct at school and school related functions to also include safety rules for student conduct while on and around school buses. As a result, no later than August 15, 2002, each local board of education must adopt a student code of conduct that prohibits physical violence, bullying, physical assault and battery, verbal assault, disrespectful conduct, and other unruly conduct by students toward other students, school bus drivers, bus monitors, teachers, administrators, and any other school personnel while on the school buses. Students guilty of violating the local board policies shall be subject to disciplinary action up to and including expulsion. In addition, the legislation prohibits students from using any electronic devices during the operation of a school bus, including but not limited to cell phones; pagers; audible radios, tape or compact disc players without headphones; or any other electronic device in a manner that might interfere with the school bus communications equipment or the school bus driver’s operation of the school bus. Students are also specifically prohibited from using mirrors, lasers, flash cameras, or any other lights or reflective devices in a manner that might interfere with the school bus driver´s operation of the school bus. The student codes of conduct shall be distributed to each student and their parents or guardians, and signatures may be solicited acknowledging receipt. The student codes of conduct shall also be available in each school and classroom. Local boards of education shall provide for disciplinary action against students who violate the codes of conduct. Teacher Rights and Responsibilities Under the Discipline Act Once such local board policies are adopted, the teacher is required to file a one page report when a student has exhibited behavior that repeatedly or substantially interferes with the teacher’s ability to communicate effectively or the other students’ ability to learn in a class and the behavior is in violation of the student code of conduct. The report must be filed with the principal or his/her designee within one school day of the behavior and shall describe the behavior. The principal or designee shall, within one school day of receiving the report, send a copy to the student’s parents or guardians. If student support services are utilized or disciplinary action taken, the principal shall also notify the parents or guardians of the action taken. The Act unequivocally recognizes that teachers shall have the authority, consistent with local board policy, to manage their classroom, discipline students, and refer students to the principal for disciplinary action. On and after July 1, 2000, a teacher shall have the authority to remove from his or her class a student who repeatedly or substantially interferes with the teacher’s ability to communicate effectively or the other students’ ability to learn in a class and the behavior is in violation of the student code of conduct, provided that the teacher has filed the required report, or the teacher determines that the student’s behavior poses an immediate threat to the safety of the student’s classmates or the teacher. An additional report must be filed by the teacher by the end of the day of the student’s removal from class, and such report shall be sent by the principal or designee within one school day. After removal, the principal shall give the student oral or written notice of the grounds for his or her removal. If the student denies the conduct, the principal shall explain to the student the evidence supporting removal. If, after these discussions with the student, the principal seeks to return the student to the classroom and the teacher gives consent, the student can be returned to the class. The principal may also take disciplinary action against the student as warranted.

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Placement Review Committee If the teacher withholds consent to return the student to the classroom, the principal shall determine an appropriate temporary placement for the student. Such temporary placement shall provide the least interruption to the student’s education considering the severity of the student’s behavior and the available education settings. The principal shall then convene a meeting of a “Placement Review Committee.” Local board policies must provide for establishment of Placement Review Committees at each school. The Committee shall be composed of three members. Each Committee shall determine the placement of a student when a teacher withholds consent to the return the student to the teacher’s class. For each Committee, the faculty shall choose two members and an alternate for the Committee. The principal shall choose one member of the professional staff of the school to serve on the Committee. The teacher withholding consent may not serve on the Committee. The Placement Review Committee shall have the authority to: 1. Return the student to the teacher’s class upon determining that such placement is the best

alternative or the only available alternative; or 2. Refer the student to the principal or the principal’s designee for appropriate action, after

considering appropriate student support services and the student’s procedural constitutional rights. Such action may include:

a. In-school suspension;

b. Out-of-school suspension for not more than ten days; or

c. Other disciplinary decision or recommendation consistent with local board policy.

The Placement Review Committee’s decision must be in writing and made within three school days after the teacher withholds consent to the return of a student. If the Committee decides not to return the student to the class, the principal shall implement the Committee’s decision and determine any other combination of appropriate placement and disciplinary action for the student. After so doing, the principal may return the student to the class from which he or she was removed upon the student’s completion of the disciplinary or placement action taken. If any teacher removes more than two students from their total class enrollment in any school year who are subsequently returned by the Placement Review Committee because such class is the best available alternative, then the teacher may be required to complete a professional development plan to improve their skills in classroom management, identification/remediation of academic and behavioral student needs, and/or other instructional skills. Local boards of education must provide training to Placement Review Committees regarding the Disciplinary Act, the local board policies, and the student code of conduct. The Discipline Act’s requirements do not limit the authority of a local board of education to establish additional requirements relating to student and parent notifications and conferences. The Discipline Act requires the Georgia Board of Education to provide grants to local school systems for use in alternative education programs to serve students in grades 6-12 who violate the student

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codes of conduct. Local boards of education must file annual reports by August 1 each year regarding discipline and placement actions taken during the prior school year. The Discipline Act specifically states that nothing in the Act shall infringe on any rights provided to students with Individualized Education Programs pursuant to the federal Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990. Educator Arrest Statute GAE succeeded in having the 2000 Georgia General Assembly adopt special statutory protections prior to the arrest of any teacher or administrator for a school–related matter. This law provides that an arrest warrant for a teacher or administrator alleging an offense committed in the performance of their job duties can only be issued by a judge after notice to the teacher or administrator, a hearing with right of legal representation, and a finding by the judge of probable cause that the offense was committed. GAE proposed this law to prevent or minimize the effect of frivolous arrest warrants on certificated employees. By requiring notice and a hearing, the teacher or administrator may go before the judge and, in appropriate cases, prevent any warrant from being issued. In other cases, the notice and hearing may at least prevent any arrest of the teacher or administrator from taking place on school grounds. Historic GAE Legal Victories Drug Testing - GAE is not opposed to the firing or disciplining of employees for whom there is a finding of drug use affecting their employment. GAE is also not opposed, in light of recent U.S. Supreme Court rulings, to testing employees for whom there is an individualized and reasonable basis of suspicion of drug use affecting employment. However, GAE is opposed to the wholesale drug testing of everyone without any basis whatsoever that the individual has any drug use. This is the reason GAE challenged former Governor Miller’s signing of a bill which would have required all applicants for public employment, including both state and local school system employees, to submit to a drug test. GAE challenged this law as an unreasonable search and seizure under the Georgia and U.S. Constitutions. The Court agreed with our position and declared the law to be unconstitutional. The Georgia Association of Educators v. Joe Frank Harris, 749 F. Supp. 1110 (N.D. Ga. 1990) Privacy Rights of Public School Employees - To prevent the public disclosure of the personal, private identifying information of public school employees, especially their social security numbers, GAE filed a class action statewide lawsuit on November 2, 2000, against the State Department of Education. With the lawsuit pending, GAE then went to the 2001 Georgia General Assembly and succeeded in amending the Georgia Open Records Act to prevent the release of public school employees’ private information with the following language:

“(a) Public Disclosure shall not be required for records that are: (13.1) Records that reveal the home address, the home telephone number, or the social security number of or insurance or medical information about teachers and employees of a public school. For the purposes of this paragraph, the term ‘public school’ means any 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.”

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When Georgia’s news media organizations sought an exception so that they could obtain all public employees’ social security numbers and date of birth, GAE repeatedly testified before the House Judiciary Committee and protected public employees’ private information by inserting the following language into the news media exception:

“[t]his news media organization exception for access to social security numbers and day and month of birth and the other protected information set forth in this subparagraph shall not apply to teachers and employees of a public school.”

Through GAE’s statewide, class action lawsuit against SDOE, and GAE’s legislative amendments and action during the 2001 Georgia General Assembly, GAE was singularly responsible for protecting from public disclosure the social security numbers and other personal information of teachers and other school employees. James Hope - The Gateway Whistleblower: A long-time opponent of the Gwinnett County’s controversial Gateway exam, James Hope wanted to raise awareness about how poorly the high-stakes test is designed, and believed he had a responsibility to do so. Hope posted six of the poorly worded and confusing test questions on the Concerned Parents of Gwinnett’s website. Hope had already administered the test to his class and he knew that the six questions were never to be used again. Gwinnett County Public Schools, however, alleged that Hope’s actions violated the portion of the Code of Ethics dealing with standardized tests. As a result, the school system launched an aggressive investigation and prosecution of Hope that lasted three years. According to Hope’s GAE attorney, Gwinnett County school officials chose to ignore that, under the Open Records Act, the Gateway test questions are available to all citizens, without exception. School officials sent armed police to Hope’s home; he was ordered to undergo a lie detector test administered by a Georgia Bureau of Investigation agent; police confiscated his phone records, and interrogated his colleagues and friends; and, in a particularly heinous move, authorities threatened Hope and his wife with jail time and with having their daughter taken away from them. Following its investigation, Georgia’s Professional Standards Commission (PSC) recommended that Hope’s teaching certificate be suspended. In a hearing held in early 2002, Administrative Law Judge Catherine Crawford delivered a decision that Hope had violated the Code of Ethics and that his certificate should be suspended for six months. GAE attorneys immediately appealed the decision and later represented Hope during the appeal. In December of 2002, GAE’s attorneys successfully persuaded Fulton County Superior Court Judge Gail S. Tuscan to clear Hope of misconduct charges. GAE Wins Class Action Backpay Case for 4,000 Regents Faculty: The Georgia Court of Appeals held up a 2002 ruling by Fulton County Superior Court Judge Elizabeth Long resulting in 4,000 statewide faculty of the Board of Regents’ University System of Georgia’s member colleges collecting several days of backpay for merit salary increases denied them at the start of the 1998-1999 school year. The total amount of backpay plus interest was over $700,000 and breaks down to between $100-$200 per faculty member. Polk County Pays Over $500,000 in Local Salary Supplements: GAE brought a class action lawsuit in January 2004 for over 350 Polk County teachers. As a result of GAE’s lawsuit and the terms of an agreed-to settlement between GAE, the lead plaintiffs, and the school district, the school district issued checks to 350 teachers. More than 350 teachers received checks totaling over $500,000. The school district also paid attorneys fees and costs back to GAE for bringing the lawsuit.

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Principal Cleared of Sexual Misconduct Charges: An elementary school principal was reinstated with the Atlanta Public School System effective May 1, 2002, after a parent falsely accused the 38-year educator—with an impeccable record—of improper sexual conduct. GAE Legal Services defended the principal and obtained a court-ordered stay. GAE obtained clear evidence of the falsity of the parent’s accusation. Negotiations then resulted in the principal’s reinstatement. APS completely dismissed the charge of sexual misconduct. Legal Precedent – Teacher Contract Statute of Limitations. In a landmark GAE case brought on behalf of 36 GAE members of the Muscogee County Association of Educators, the Georgia Court of Appeals ruled in 1990 that beginning teachers must be paid according to the method of granting “credit” as prescribed by the Georgia Department of Education, and that teacher contracts have a six-year statute of limitations. By way of background, the minimum state teacher salary is determined by the number of years of creditable experience earned and the highest level and type of certificate held. In 1981, the State Department of Education appended Note A to the state salary schedule, which provided a “credit” or additional number of years experience as follows: “After successful completion of one year of experience and the CRT exam and assessment, the teacher will move to the third year of experience on the salary schedule. If the beginning teacher does not complete the assessment during the first year but completes the assessment at the beginning of the second year of teaching, then the teacher will move to the third year of experience on the schedule the month following completion of permanent (PBT certification. After permanent certification and one year of experience the teacher will resume annual increments.” Muscogee County had been paying its teachers based solely on the actual number of years experience, and not the “credited” or additional number of years experience that teachers were entitled to under the state salary schedule. The Court noted that although Muscogee County paid its teachers the state minimum plus a local supplement resulting in a total salary in excess of the state minimum, it must adhere to the prescribed method of granting “credit” (i.e. jump ahead on the salary schedule as if he or she had actual years of creditable experience) to determine the salaries of beginning teachers. Muscogee County also argued that a two-year statute of limitations relating to wage claims applied to the case. The Court disagreed, finding that teacher contracts are made in consideration of and in agreement with the laws of Georgia, and the statute of limitations on all simple contracts in writing is six years. Therefore, the correct statute of limitations applied to teacher contracts is six years. Michael E. Kramer, Esq. provided legal representation. Musocgee County Board of Education v. Boisvert, 196 Ga. App. 537, 396 S.E.2d 303 (1990). Legal Precedent – Evidence of Prior Years’ Conduct. A Bartow County teacher was accused of grabbing a student in the February of 2002. In March, the teacher signed and returned her employment contract for the 2002-2003 school year and it was accepted by the board of education. Although no other incident had occurred since the February incident, the board of education terminated her 2002-2003 contract based solely on the earlier misconduct. The State Board of Education reversed the local board’s decision relying on an earlier decision and found that Bartow County could not terminate the 2002-2003 contract based solely on events that occurred before the contract was issued. The Superior Court, Bartow County, reversed the State Board and an appeal to the Georgia Court of Appeals was made. The Georgia Court of Appeals carefully reviewed out-of-state judicial decisions, and decisions by the Georgia State Board of education. In a unanimous decision the Court of Appeals reversed, finding that the State Board’s

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decision was in line with judicial decisions in other states and the termination was not authorized under Georgia law. Velma Jean Moulder v. Bartow County Bd. Of Educ., 267 Ga. App. 339 (2004). Legal Precedent – Insubordination. Dr. Sharon Brawner, a City of Marietta elementary school teacher, was terminated after she attended a pre-planning day at her school while she was on extended long-term disability leave because of treatment and complications from breast cancer. The school board required that Brawner obtain certification of her fitness for work duty “prior to being restored to work.” The Georgia Court of Appeals found there was no evidence that Brawner sought to be restored to duty. The Court noted that the school board may have interpreted her action of attending the pre-planning meeting as seeking to be “restored to duty” but no evidence suggested that she sought to be restored to work as a classroom teacher. Dr. Brawner testified that she knew her disability benefits were extended and was not capable of returning to work because she needed to undergo additional surgery. It follows that if she did not seek to be “restored to duty,” then Brawner did not refuse to obey the reasonable directive that she submit a doctor’s certification before doing so. Brawner v. Marietta City Bd. Of Educ., Ga. App. 10 (2006). 14-Day Rule. Atlanta Public Schools did not renew Margery Diamond’s teaching contract for the 2002-2003 school year. There was no dispute that Ms. Diamond had acquired rights to notice and due process under the Fair Dismissal laws. APS initially provided appropriate notice of its decision not to renew her contract, and Ms. Diamond requested via certified mail the reasons for non-renewal within the 20 day statutory time line. However, APS did not notify Ms. Diamond of the detailed reasons for non-renewal within the 14 day time line as set forth in the Fair Dismissal law. Ms. Diamond, through her GAE attorneys, demanded that APS issue her a contract. When APS refused to issue the contract, GAE attorneys filed a lawsuit in Fulton County Superior Court. The Superior Court ordered APS to provide Ms. Diamond a 2002-2003 contract, to pay attorneys fees and costs of litigation. Although APS appealed the order, the Court of Appeals affirmed the lower court’s decision. Atlanta Public Schools v. Diamond, 261 Ga. App. 641 (2003). Also, Walter Boone v. Atlanta Public Schools, Case No. 2003-29. Adequacy of Written Notice. A GAE member had taught successfully for eleven years. However, a new principal rated him unsatisfactory in his eleventh and twelfth years and recommended not to renew his contract for the 2004-2005 school year. Atlanta Public Schools sent notice of nonrenewal pursuant to the Fair Dismissal laws and the educator requested a detailed list of reasons for the decision not to renew his contract. Through GAE attorneys, the educator protested that the “charge letter” was deficient because it failed to outline any specific facts that would permit him to establish an adequate defense. APS sent a second “charge letter” that also deficient in that it failed to provide specific dates, times, places, and people involved in each allegation. The State Board reversed the decision to terminate the educator because the school district denied the educator due process by failing to provide him with a “charge letter” that contained specific facts to show error. The school district also failed to prove insubordination or willful neglect of duties. Lionel Goode v. Atlanta Public Schools, Case No. 2005-07. GAE Wins Retaliation Case and Payroll Deduction. GAE and its local affiliate, the Gwinnett County Association of Educators, and individual members filed a federal lawsuit against Gwinnett County claiming that the school district terminated its automatic payroll deduction in retaliation for members’ exercise of the First Amendment speech. The Court’s ruling took note that the school district terminated dues deduction after GAE/GCAE leaders had spoken to the school board on behalf of members. The Court’s decision shows that the First Amendment will

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protect members engaged in advocacy from retaliation at the hands of state officials. Georgia Association of Educators v. Gwinnett County School District, 856 F.2d 142 (11th Circuit 1988). Federal Appeals Court Protects GAE Members from Job Retaliation for Organizing Bus Drivers. The Court says that the facts in the record show that the Gwinnett County School District, the Superintendent, and the other individual defendants violated Ms. Liz Cook’s First Amendment constitutional rights to recruit bus drivers as members into the GAE and to speak out on bus safety and management issues when they retaliated against her by demoting her a fulltime team leader position. The Court’s decision makes it clear that employees who GAE members will be protected against job retaliation. Read the complete text of the Eleventh Circuit’s June 29, 2005 decision at http://www.ca11.uscourts.gov/opinions/ops/200412914.pdf. Role of UniServ in Protecting Rights Your area UniServ Director is your first line of defense when you are faced with what you believe may be a violation of your professional rights. The UniServ Directors that serve Georgia are knowledgeable about what rights teachers possess in this state, and spend much of their time assisting and representing members when these rights have been violated. When confronted with an employment problem, you should contact your UniServ Director first. He or she will be able to advise you of the best course of action. If your problem requires legal assistance, he/she will discuss the problem with the GAE attorneys for appropriate legal action. GAE Legal Services Program A. Teacher Representation Tenured teachers who are demoted, suspended or nonrenewed, and nontenured teachers terminated or suspended during the school year are provided GAE attorney representation at the Fair Dismissal Hearing with no charge to the member. GAE will also fund meritorious cases involving Title VII (employment discrimination on the basis of race, sex, national origin, and religion), handicapped and age discrimination, and violation of members’ constitutional rights (First Amendment and due process). The GAE Executive Committee determines funding for all state and federal court cases. GAE spends approximately $800,000 per year in legal fees representing hundreds of members in Fair Dismissal hearings and in state and federal court. Many GAE court cases have expanded the professional and legal rights of teachers in Georgia. Several thousand calls are handled each year by the Legal Services Department, staffed by Michael McGonigle, Director; and Caleta Smith, Legal Secretary/Paralegal. The Legal Services Department also conducts teacher rights workshops for GAE local associations and provides legal opinions to the GAE Executive Director, UniServ Directors and GAE governing bodies. B. Educators Employment Liability Insurance The liability insurance you receive as a member of GAE entitles you to several important benefits:

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> members are covered for up to $1,000,000 in damages and attorneys’ fees if they are sued for damages arising out of their employment activities;

> members are entitled to reimbursement up to $35,000 for attorneys’ fees incurred in

defending criminal charges brought as a result of administering corporal punishment (even if the member is found guilty);

> members are entitled to reimbursement up to $35,000 for attorneys’ fees incurred in

defending any other criminal charges arising out of their employment activities if the member is found not guilty or the charges are dropped; and

> members are entitled to reimbursement up to $1,000 for the cost of paying a bail bondsman

for each bond arising out of the member’s employment activities. C. Attorney Referral Program Members are entitled to two free 30-minute consulting sessions each year with a participating attorney to discuss legal problems not related to the member’s employment, including, e.g., wills, real estate, domestic relations, traffic violations, etc. If the member decides to use the services of the participating attorney beyond the 30-minute initial consultation, the attorney’s regular fee will be discounted 30 percent. Call your UniServ Director or GAE Legal Services to determine the closest referral attorney to you. Attorneys listed on the next two pages currently participate in GAE’s Attorney Referral Program.