CLAYTON COUNTY BOARD OF EDUCATION v. WILMER

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Court of Appeals of Georgia.

CLAYTON COUNTY BOARD OF EDUCATION v. WILMER.

Clayton County Board of Education v. Rachele.

Nos. A13A2088, A13A2094.

-- January 24, 2014

Marquetta J. Bryan, Thomas Alan Cox, Attorney for Appellant. Cerrone Geron Coker, Borquaye A. Thomas, Attorney for Appellee.

In each of these cases, the Clayton County Board of Education (“the Local Board”) decided not to renew a tenured teacher's contract, the Georgia Board of Education (“the State Board”) reversed the decision of the Local Board, and the Superior Court of Clayton County affirmed the decision of the State Board. The Local Board appeals,1 contending, inter alia, that the State Board erred in reversing the Local Board's decisions based on its failure to notify the teachers in writing of the decision and of their right to appeal to the State Board in the time and manner required by law and, therefore, that the superior court erred in affirming the decisions of the State Board. Because the substantive issues in these cases are identical, we have consolidated them for decision. For the reasons explained below, we affirm.

Georgia's Fair Dismissal Act

Under Georgia's Fair Dismissal Act, OCGA §§ 20–2–940 through 20–2–947, after a teacher's fourth consecutive contract with a local board of education, the teacher enjoys what are commonly referred to as “tenure rights.” (Punctuation and footnote omitted.) Patrick v. Huff, 296 Ga.App. 343, 345(1), 674 S.E.2d 398 (2009) .2 Under the Act, a local board may demote or fail to renew the contract of a tenured teacher only for cause and after providing specified procedural safeguards.3 West v. Dooly County School Dist., 316 Ga.App. 330, 331, 729 S.E.2d 469 (2012); see also Oates v. Coffee County Bd. of Ed., 198 Ga.App. 77, 79, 400 S.E.2d 355 (1990) (“The significance of tenure is that a tenured teacher's contract may be non-renewed only for one of the reasons specified in OCGA § 20–2–940.”). Absent non-renewal in compliance with OCGA § 20–2–942, a tenured teacher's contract is automatically renewed for the following school year.4

Under Georgia's Education Code every local board “shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law[,]” and, as such a matter, a dispute under the Fair Dismissal Act is committed to that administrative process. See Day v. Brantley County School Dist., 298 Ga.App. 717, 680 S.E.2d 496 (2009). Thus, a teacher with a dispute regarding his or her employment contract generally must first seek redress before the local board of education. OCGA § 20–2–1160(a); Day v. Brantley County School Dist., 298 Ga.App. at 717, 680 S.E.2d 496 (A complaint against a local board for breach of contract was properly dismissed where the plaintiff failed to exhaust her administrative remedies before filing suit.).

The Fair Dismissal Act requires the local board to give a tenured teacher written notice of its intention not to renew the teacher's contract, as well as notice of the teacher's procedural rights. OCGA § 20–2–942(b)5 ; see OCGA § 20–2–940(b) through (f) (procedures); Patrick v. Huff, 296 Ga.App. at 345(1), 674 S.E.2d 398. If the teacher serves written notice within 20 days that he or she requests a hearing, the local board then has 14 days to furnish the teacher a notice that complies with the requirements of OCGA § 20–2–940(b), which includes the charges or grounds for non-renewal under the provisions of the Fair Dismissal Act. OCGA § 20–2–942(b).6 Furthermore, the teacher is entitled to an evidentiary hearing to contest the reasons for non-renewal before the local school board or, if designated by the local board, before a specialized tribunal, which submits findings and recommendations to the local board for its decision. OCGA § 20–2–940(e). The Fair Dismissal Act provides that,

[t]he local board shall render its decision at the hearing or within five days thereafter. Where the hearing is before a tribunal, the tribunal shall file its findings and recommendations with the local board within five days of the conclusion of the hearing, and the local board shall render its decision thereon within ten days after the receipt of the transcript.

OCGA § 20–2–940(f).

The State Board is the primary appellate body for reviewing non-renewal decisions of local boards. OCGA §§ 20–2–940(f) (In cases of non-renewal,” [a]ppeals may be taken to the [S]tate [B]oard in accordance with [OCGA § ] 20–2–1160 ․ and the rules and regulations of the [S]tate [B]oard governing appeals.”); 20–2–1160(b) (“Any party aggrieved by a decision of the local board rendered on a contested issue after a hearing shall have the right to appeal therefrom to the State Board of Education.”). Under OCGA § 20–2–1160(a), the decision of a local board in its capacity as a tribunal

shall be binding on the parties, provided, however, that the [local] board shall notify the parties in writing of the decision and of their right to appeal the decision to the State Board of Education and shall clearly describe the procedure and requirements for such an appeal[.]

See Ga. Bd. of Ed. Rule 160–1–3–.04(3)(6) (“At the conclusion of the hearing [before a local board of education acting as a school law tribunal], or within 15 days thereafter, the [local board] shall notify the parties of its decision in writing and shall notify the parties of their right to appeal the decision to the State Board of Education.”).

“Any party aggrieved [by a decision of the State Board] may appeal to the superior court of the county wherein the local board of education is situated.” OCGA § 20–2–1160(c). An appeal to this Court from a decision of a superior court reviewing a decision of the State Board of Education shall be by application for a discretionary appeal, as provided in OCGA § 5–6–35.

With the interplay of the relevant statutes in mind, we turn to the specific facts of the cases at bar.

Case No. A13A2088

On April 20, 2011, the superintendent of Clayton County Public Schools notified Burnedetta Wilmer, a tenured kindergarten teacher, that he would be recommending to the Local Board that her employment contract not be renewed for the 2011–2012 school year. Wilmer requested an evidentiary hearing, which took place on September 20, 2011, before a tribunal designated by the Local Board. The tribunal recommended non-renewal of Wilmer's contract and submitted written findings to the Local Board. The Local Board voted, at its meeting on November 7, 2011, to accept the tribunal's non-renewal recommendation. The Local Board informed Wilmer that it had accepted the tribunal's non-renewal recommendation, but it did not provide her with the written findings of the tribunal until December 12, 2011. After repeated requests from Wilmer's attorney for the Local Board's decision, the Local Board's attorney notified Wilmer's attorney, via email sent on February 8, 2012, that the Local Board “issued its decision ․ within the time frame” required by statute, but the Local Board did not issue a written decision setting forth the basis for non-renewal (or expressly adopting the findings and recommendation of the tribunal), and it provided Wilmer no formal notice of her right to appeal its decision and the procedure and requirements for such an appeal.

On February 14, 2012, Wilmer appealed to the State Board, challenging the sufficiency of the evidence and arguing that the Local Board had failed to provide her with a written explanation of its decision and notice of her right to appeal the decision to the State Board of Education, as required. The State Board found that the Local Board violated OCGA § 20–2–940(f), in failing to serve the tribunal's findings and recommendation upon Wilmer, and OCGA § 20–2–1160(a), in failing to notify Wilmer in writing of its decision and of her right to appeal. The State Board found that Wilmer was harmed by the Local Board's procedural faults, in that the Local Board's “fail[ure] to render a written decision in accordance with OCGA § 20–2–1160” giving the basis for its decision made it impossible for the State Board to “ascertain if the decision was mistaken[.]” In addition, noting that the time limitations in the Fair Dismissal Act exist in order to expeditiously provide teachers with a hearing, including the right to appeal, the State Board found that Wilmer was harmed by the Local Board's conduct, which had caused the matter to be delayed for over a year since the issuance of the non-renewal letter. Based on these findings, the State Board reversed the Local Board's decision. The Local Board then appealed to the superior court.

The superior court agreed with the State Board that the Local Board had violated OCGA § 20–2–1160(a) by failing to provide timely written notice to Wilmer of its decision not to renew her contract. Further, the superior court found that Wilmer was injured by the Local Board's late notice. Specifically, it found that the time for her to appeal to the State Board began running on November 7, 2011, the day that the Local Board met and voted to accept the tribunal's recommendation, and therefore expired on December 7, 2011. The superior court found that, because Wilmer did not appeal until February 14, 2012, the State Board was without jurisdiction to consider her appeal and that the Local Board's actions deprived Wilmer of an appeal. Because Wilmer was injured by the Local Board's violation of OCGA § 20–2–1160(a), the superior court concluded that the requirements of that Code section are mandatory, rather than directory, under Georgia law. Based on these findings and conclusions, the superior court affirmed the decision of the State Board.

Case No. A13A2094

On April 20, 2011, the superintendent of Clayton County Public Schools notified Gala Rachele, a tenured special education teacher, that he would be recommending to the Local Board that her employment contract not be renewed for the 2011–2012 school year. Rachele requested an evidentiary hearing, which took place on October 20 and November 8, 2011, before a tribunal designated by the Local Board. The tribunal recommended non-renewal of Rachele's contract and submitted written findings to the Local Board. The Local Board voted, at its meeting on November 28, 2011, to accept the tribunal's non-renewal recommendation. On January 17, 2012, the Local Board notified Rachele's attorney via email that the Local Board had accepted the tribunal's non-renewal recommendation, with a copy of the tribunal's written findings attached. The Local Board did not issue a written decision setting forth the basis for non-renewal (or expressly adopting the findings and recommendation of the tribunal), and it provided Rachele no formal notice of her right to appeal its decision and the procedure and requirements for such an appeal

On February 16, 2012, Rachele appealed to the State Board, arguing that the Local Board had violated her due process rights under the Fair Dismissal Act. Following the same analysis as in Wilmer's case, the State Board reversed the Local Board's decision. The Local Board then appealed to the superior court. Following the same analysis as in Wilmer's case, the superior court concluded that, because Rachele filed her appeal to the State Board more than 30 days after the Local Board voted to accept the tribunal's non-renewal recommendation, the State Board lacked jurisdiction over her appeal. As in Wilmer's case, the superior court found that Rachele was harmed by the Local Board's violations of the Fair Dismissal Act's procedural requirements and affirmed the State Board's decision.

Case Nos. A13A2088 and A13A2094

1. The Local Board contends that the superior court erred in ruling that the State Board lacked jurisdiction over the teachers' appeals on the basis that the appeals were untimely. The Local Board contends that, “if the State Board [had] truly lacked jurisdiction to hear [each teacher's] appeal because it was not timely filed, then the State Board would have had no authority to do anything or render any decision at all (other than issue an order dismissing [the teacher's] appeal).” We agree that, by definition, an appellate court or tribunal only has the power to review a judgment or decision of a lower court or tribunal if it has jurisdiction over the appeal.7 Thus, the threshold issue is whether the State Board had jurisdiction over the teachers' appeals.

OCGA § 20–2–1160(b) provides that an appeal to the State Board “shall be filed with the superintendent within 30 days of the decision of the local board.” Ordinarily, the word “shall” in a statute is synonymous with “must” and is a word of command, including with regard to time limits set by the statute. State v. Henderson, 263 Ga. 508, 510–511, 436 S.E.2d 209 (1993).8 Generally, the timely initiation of an appeal is an absolute requirement to confer jurisdiction upon an appellate court or tribunal.9 It follows that the State Board lacked jurisdiction over the teachers' appeals (1) if the timely filing of an appeal is an absolute requirement to confer jurisdiction upon the State Board under OCGA § 20–2–1160, and (2) if the teachers failed to file their appeals within the time allowed.

(a) As to the first question, the reported decisions of the State Board show that, when an appellant fails to file an appeal from a decision of a local board acting as a tribunal within the time allowed, the State Board dismisses the appeal.10 This Court has also ruled that the proper filing of a notice of appeal is necessary to bestow jurisdiction upon the reviewing court under OCGA § 20–2–1160(c).11 Moreover, we find no statutory basis for concluding that the timely filing of an appeal is not a prerequisite to the exercise of jurisdiction by the State Board.12 Based on the foregoing, we conclude that the timely filing of an appeal is an absolute requirement to confer jurisdiction upon the State Board under OCGA § 20–2–1160(b).

(b) In order to determine whether the teachers filed their appeals within the time allowed, we must next determine the date the 30–day period for filing an appeal begins to run. The Education Code does not expressly specify what constitutes the date of a local board's decision.13 Arguably, in cases in which a teacher requests a hearing pursuant to OCGA § 20–2–942(b)(2), the date of a decision not to renew the contract of a tenured teacher is the date a quorum of the local board votes, after a hearing as provided in OCGA § 20–2–940(e), not to renew the teacher's contract. See OCGA § 20–2–57(a) (conduct of business by a local board).

The State Board, however, has held that under these circumstances the 30–day period for filing an appeal under OCGA § 20–2–1160(b) does not begin to run until a local board complies with the notice provisions of subsection (a) of that Code section, which provides that “the [local] board shall notify the parties in writing of the decision and of their right to appeal the decision to the State Board of Education and shall clearly describe the procedure and requirements for such an appeal[.]” See White v. Lamar County Bd. of Ed., State Bd. of Ed. Case No.1987–14 (The State Board had jurisdiction to review on the merits the local board's decision to terminate a driver's contract because the driver filed his appeal within 30 days of the date the local board issued its written decision, even though it was more than 30 days after the local board voted to terminate his contract.); Shane W. v. Gwinnett County Bd. of Ed., State Bd. of Ed. Case No.1986–37 (December 11, 1986) (Where the local board failed, when it notified the parents of its decision to suspend their child, to describe the procedure and requirements for appealing the decision, as required by OCGA § 20–2–1160(a), the State Board had jurisdiction to review on the merits the local board's decision, even though the parents filed the appeal to the State Board more than 30 days after the local board voted to suspend the student.). Because the 30–day period for filing an appeal under OCGA § 20–2–1160 does not begin to run until a local board complies with the notice requirements of that Code section, a local board's failure to comply with those notice provisions will not thwart a teacher's right to appeal. See Shane W. v. Gwinnett County Bd. of Ed., State Bd. of Ed. Case No.1986–37 (December 11, 1986) (“If appeals are dismissed because of untimely filing when a local board fails to give actual notice, then the purpose [of OCGA § 20–2–1160's notice requirements] is thwarted without any remedy.”). The State Board's interpretation of the Fair Dismissal Act, “though not conclusive, is entitled to great weight.” Moulder v. Bartow County Bd. of Ed., 267 Ga.App. at 340, 599 S.E.2d 495 (footnote omitted).14

As the Local Board contends, therefore, the State Board was not deprived of jurisdiction over the teachers' appeals in these cases merely by the fact that the teachers filed their appeals more than 30 days after the Local Board voted, after receiving the findings and recommendation of the tribunal, not to renew their contracts. Indeed, because the Local Board failed to comply with the notice requirements of OCGA § 20–2–1160(a), the teachers' appeals were arguably premature.15 The Local Board, however, never moved to dismiss the teachers' appeals on the basis of prematurity, but, to the contrary, has insisted throughout that the State Board had jurisdiction to hear the merits of the teachers' appeals. Furthermore, only the Local Board had the power to issue a written decision and otherwise comply with OCGA § 20–2–1160(a) so as to trigger the 30–day period for filing an appeal, yet it failed and refused to do so. Under the circumstances, we conclude that the State Board had jurisdiction over the teachers' appeals, and the superior court erred in ruling otherwise. This error does not require reversal of the superior court's judgments, however, for the reasons explained in Division 2, infra.

2. The Local Board contends that the State Board exceeded its authority in giving the teachers a substantive remedy, that is, reversing the Local Board's decisions not to renew the teachers' contracts, based on its finding that the Local Board failed to comply with the applicable statutory notice provisions. The Local Board contends that, although OCGA § 20–2–1160(a) uses the commanding term “shall” in directing that a local board notify the parties involved of its decision and their appeal rights, the statute fails to establish any penalty for a local board's failure to comply with those notice requirements. The Local Board contends that, as a result, the statutory timelines are merely directory in the absence of any resulting injury.16 The Local Board contends that, because the State Board did not dismiss the teachers' appeals, the teachers were not injured by its failure to comply with the dictates of the statute. The Local Board contends that, under the circumstances, its failure to comply with the statutory timelines cannot be the basis for reversing its decisions.17

We reject the underlying premise that OCGA § 20–2–1160(a) fails to establish any penalty for a local board's failure to comply with the procedural requirements of the statute. As noted earlier, OCGA § 20–2–1160(a) provides that a decision of a local board “shall be binding on the parties, provided ․ that ” the local board notifies the parties in writing of the decision, with notice of their right to appeal and how to obtain such an appeal. (Emphasis supplied.) The consequence of a local board's failure to comply with the notice directive is inherent in the statute's terms. Here, the plain meaning of “provided ․ that” is conditional, that is, that the binding effect of the decision is conditioned upon the local board's compliance with the notice requirements. Thus, when the converse situation exists, that is, when a local board fails to notify the parties in writing of the decision and their right to appeal to the State Board, with a clear description of the procedure and requirements for such an appeal, then the decision of the local board shall not be binding on the parties. By providing that a local board's failure to notify the parties in writing of a decision, in the manner required, deprives the decision of any binding effect, OCGA § 20–2–1160(a) imposes a very severe penalty from the perspective of a local board that has undertaken the process of non-renewal.18 Because in these cases the Local Board failed to notify the teachers in writing of its decisions and of their right to appeal, as required, the statute plainly dictates that the decisions of the Local Board are not binding on the parties .19 Because the Local Board failed to comply with OCGA § 20–2–1160(a), the State Board did not err in declaring that the Local Board's non-renewal process was invalid as to these teachers. See Thebaut v. Ga. Bd. of Dentistry, 235 Ga.App. 194, 195(1), 509 S.E.2d 125 (1998) (An agency decision or action will be invalidated where the applicable statute explicitly states that such is the penalty for noncompliance with the statute's directives.).

Given the lack of any binding non-renewal decision at the time the State Board considered the teachers' appeals, and given the fact that the State Board did not review the sufficiency of the evidence adduced in support of non-renewal,20 it might have been preferable for the State Board to have simply declared that the teachers' contracts had been automatically renewed, rather than ruling that “the decision of the Local Board is reversed.” We look to the substance of the decisions of the State Board, however, and will not reverse on this basis. Accordingly, although the superior court erred in ruling that the State Board lacked jurisdiction over the teachers' appeals, see Division 1, supra, the judgments of the superior court that affirmed the decisions of the State Board that reversed the decisions of the Local Board not to renew the teachers' contracts are affirmed.21

Judgments affirmed.

ELLINGTON, Presiding Judge.

PHIPPS, C.J., and BRANCH, J., concur.

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