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FILED IN OFFICE

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OCT 2 9 2014
CLERK, COURT OF
APPlALS OF GEORGIA

IN THE COURT OF APPEALS

STATE OF GEORGIA

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GILDA DAY

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Appellant/Cross-Appellee,
CIVIL ACTION
FILE NO: A15A0401
FLOYD COUNTY BOARD OF
EDUCATION A/K/A FLOYD

COUNTY SCHOOL DISTRICT,

Appellee/Cross-Appellant.

BRIEF 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

PART ONESTATEMENT OF THE CASE AND FACTS:

Under the Georgia Charter Systems Act, the most important objective of a
charter school system is "maximizing school level governance." O.C.G.A. 20-22063(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, 598601). 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
1

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
"breach of 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. (R214, 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

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 "put 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" of Ms. 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
annual evaluations and other evaluations 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

3

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 result if the proper
procedures had been followed" thus reversing the local board decision. (R-501502).

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

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 the Fair 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 Policy GBN "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).

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 of Education'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 of Chapter 2 of Title 20 of the Official Code of Georgia Annotated,

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

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 14th 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 County Board 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 systems by 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.
7

FACTUAL HISTORY:

l.The One-Hundred Year History of Due 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 State School Commissioner."

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

Office ofSuperintendent-Appeals Decisions (1985-1918).

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

and Decisions 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 Georgia School Laws and Decisions Published by 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 of which shall be final." Georgia Code 321010, 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 of2000 which reversed fair dismissal

law in Georgia, depriving teachers of their right to due process. The passage of this
10

legislation led to his eventual defeat and the subsequent restoration of fair
dismissal protection for the state's teachers by the Republicans. Scott Grubbs,
Quality of Graduate Experience 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 of GAE, 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 Governor Casey Cagle's signature bill, SB 39

which allowed entire school systems, such as Floyd County Schools, to obtain
11

charter status.5 The Act rendered bipartisan support from the most activist
professional educational associations and teacher advocacy groups such as the

Georgia Association of Educators (GAE) who supported this legislation.6 GAE

would have zealously fought to oppose the bill had it waived teachers' civil rights
to procedural due process through fair dismissal, having just obtained its recent

victory restoring dueprocess laws just three years prior. Instead, GAE, amongst
other education groups lobbied to insure the 2065(b)(5) language so that due
process of educators would be preserved and received assurances from its

lawmakersduring Senate floor proceedings introducers of the legislation

explicitly expressed that the law's intent would still be to "provide for protection
of due process rights." See Megan L. Iorio, Alyssa P. Morris, Elementary and
Secondary Education: Amend Article 31 of Chapter 2 of Title 20 of the Official

Code of Georgia Annotated, Relating to Charter Schools, So As to Enact the

5http://www.legis.ga.gov/legislation/en-US/display/20072008/SB/39

6See http://www.senate.ga.gov/committees/Documents/2007Minutesl20.pdf.
Minutes of the Georgia Senate Education and Youth Committee 2007 Legislative
Session, January 30, 2007.
12

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

127 (2007). Consequently, the Charter Systems Act passed by a sweeping majority
and was embraced by the statewide leading teacher association advocacy groups,
primarily Georgia Association of Educators (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: ENUMERATIONS 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
13

Systems Act due process may not be waived and that Appellant only had tenure
because she was vested. Enumeration of 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. See generally Fort v. Rucker-Fort, 297 Ga.

App. 3, 4, 676 S.E.2d 398, 398 (2009). In this case, the Local Board 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 intent of the Georgia Legislature in passing the

14

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law , but also that of 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 with this article relating to charter schools."
O.C.G.A. 20-2-2065.

Relevantly, the law requires that judicial deference must be given the
agency's interpretation of statutes it is charged with enforcing by the Legislative

branch. Cook v. Bottesch 320 Ga. App. 796, 803 (2013). Thus, the onlyjudicial
deference this Court should offer is to the State Board of Education's

determination that the Charter Systems Act does not permit a waiver of due
process under the Fair Dismissal Act. Both the United States Supreme Court and
Georgia Supreme Court have already emphasized that judicial deference must be

given to state agency decisions. Specifically, the United States Supreme Court has
ruled that if a statute is silent or 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

7 See FN 3.
15

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 subject ofjudicial 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.
A.

ARGUMENT

Concerning Enumeration of 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. 20-216

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 protection of 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 14th amendment.
The Merriam Webster dictionary actually defines "civil rights" as "the rights of

personal liberty guaranteed to United States citizens by the 13th and 14th
amendments to the Constitution." The very foundation of our civil rights are

8See FN 3.

17

reflected in the oldest-established civil rights United States Supreme Court

precedent, aptly titled "Civil Rights Cases 109 U.S. 3, 11 (1883)" which states that

the 14th amendment has "deeper and broader scope. It nullifies 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 to all federal, state and local rules, regulations, court orders and statutes
relating to civil rights" insured and intended to "provide for protection of due

18

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

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

One, Section One of the Georgia Constitution10 and the Fourteenth Amendment of

9 FN 3.

10 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.
19

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, wellestablished 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. 102 Ga. 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 of Education 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.

20

The Superior Court's erroneous decision which would suggest due process

rights for charter systems are waived unless teachers were vested with tenure prior
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.

11 See FN 1.
21

Day: "This letter is being sent pursuant to Georgia's Fair Dismissal Act" and
"pursuant to OCGA 20-2-940 et seq, a due process hearing with be held, before the
Floyd County Board of Education on April 8

to determine whether there are

sufficient grounds to take adverse employment action of terminating your

employment... You are entitled to a due process hearing." (R-611-612). See also,
the letter McDaniel sent on May 15 as attached as Exhibit 1 to Appellee's
Response Brief (R-663), "you have the right to appeal the Local Board's decision
to the State Board of Education in accordance with OCGA 20-2-1160." See also R-

445 for statements of the Local Board's Hearing Officer informing Ms. Day that
"this can be appealed to the state board within 30 days of this decision."

Even if in fact charter systems could choose to waive due process, which the
State Board correctly deemed they cannot, the Local Board admitted that: (1) it

adheres to Georgia's fair dismissal laws as part of its Local Board policies entitling
her to a fair dismissal hearing pursuant to the Fair Dismissal Act; (2) it has
afforded its employees due process protections, and (3) it has submitted to the
appellate jurisdiction of the State Board. (See FN 1. R 611-612, 663). In sum, the
policies, practices, rules and understandings created by the Local Board established

22

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 from an independent source, which include not only state
law, but also the policies and practices of an institution to justify a legitimate claim
tii

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 of Georgia has stated: "We interpret the due process
clause under our State Constitution as providing the same procedural rights in

23

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 of Appeals 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 'for cause' in the employer's

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

24

analogous to allowing termination only for cause. The expectations of the parties
involved are also relevant to this issue. DeClue v. City of Clayton. 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.

Enumeration of Error Two, Concerning The State Board's Authority

To Address The Validity of The Local Board's Conduct Under the Charter

Agreement: The Superior Court erroneously interpreted and misapplied Georgia

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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 of Education'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 of Georgia 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
26

the only option the State Board might have would 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 of Education 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 time 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 of Education 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 Constitution.

Respectfully, the Court of Appeals 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 decision will be reversed if its reduction in force violated the

law, or resulted from an abuse of discretion, i.e., resulted from arbitrary and

capricious conduct. Lisa Parker et al. v Montgomery Board of Education 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).

29

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.
CONCLUSION:

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 of Education's

decision should be reversed, and now threatens overturning over a century of well
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 of Georgia.

RESPECTFULLY SUBMITTED:

tlZ^C^
Julie Oinonen

Georgia Bar No. 722018

Counsel for GILDA DAY

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Mario Williams

Georgia Bar No. 235254

Counsel for GILDA DAY

Williams Oinonen LLC

The Grant Building, Suite 200

44 Broad Street, N. W.

Atlanta, Georgia 30303

Telephone: 404-654-0288
Fax: 404-592-6225

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CERTIFICATE OF SERVICE

This shall certify that I have this day served counsels with a copy of the

foregoing APPELLANT'S/CROSS-APPELLEE'S BRIEF by depositing a 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 Wist St, Rome, GA 30161

This 29TH OF OCTOBER 2014

W^

June Oinonen

Georgia Bar No. 722018

Counsel for GILDA DAY

Mario Williams

Georgia Bar No. 235254

Counsel for GILDA DAY

Williams Oinonen LLC

The Grant Building, Suite 200

44 Broad Street, N. W.

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

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