A teacher, administrator, or other employee having a contract of employment for a definite term shall not have such contract terminated or suspended for refusal to alter a grade or grade report if the request to alter a grade or grade report was made without good and sufficient cause.
"You do solemnly swear (or affirm) that the evidence shall be the truth, the whole truth, and nothing but the truth. So help you God."
(Ga. L. 1975, p. 360, § 1; Ga. L. 1986, p. 300, § 1; Ga. L. 1987, p. 3, § 20; Ga. L. 1994, p. 527, § 1; Ga. L. 1996, p. 6, § 20; Ga. L. 1998, p. 750, § 2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2011, p. 99, § 36/HB 24; Ga. L. 2012, p. 890, § 1/SB 153.)
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2011, "subject to Article 2" was substituted for "subject Article 2" in the last sentence of subsection (d).
Ga. L. 2012, p. 890, § 1/SB 253, amended subsection (d) of this Code section and in so doing omitted without expressing an intent to repeal or modify the amendment made to that subsection made by Ga. L. 2011, p. 99, § 36/HB 24. The two amendments were not irreconcilably conflicting, and the amendment to subsection (d) of this Code section made by Ga. L. 2011, p. 99, § 36/HB 24, was treated as not having been repealed by Ga. L. 2012, p. 890, § 1/SB 253. See Reeves v. Gay, 92 Ga. 309 (1893).
Law reviews.- For survey of 1985 Eleventh Circuit cases on civil constitutional law, see 37 Mercer L. Rev. 1253 (1986). For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For survey of 1987 Eleventh Circuit cases on administrative law, see 39 Mercer L. Rev. 1057 (1988). For survey article on education law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 237 (2003). For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For comment, "Testing Our Teachers," 61 Emory L.J. 1493 (2012).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's note.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 32-913, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.
Significance of tenure is that a tenured teacher's contract may be nonrenewed only for one of the reasons specified in O.C.G.A. § 20-2-940. The effect of resignation upon a tenured teacher is immediate loss of tenure rights. Oates v. Coffee County Bd. of Educ., 198 Ga. App. 77, 400 S.E.2d 355 (1990), cert. denied, 198 Ga. App. 898, 400 S.E.2d 355 (1991).
Property interest in continued employment.- Georgia law creates a property interest in continued employment for tenured teachers that may not be denied without granting certain substantive and procedural due process rights. Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546 (11th Cir. 1987).
Teacher status.
- Public school employee was deemed to be a teacher for purposes of Georgia's Fair Dismissal Law, O.C.G.A. § 20-2-940 et seq., since the employee was an administrator tenured prior to April 7, 1995. Siler v. Hancock County Bd. of Educ., 510 F. Supp. 2d 1362 (M.D. Ga. 2007).
Right to procedures ended when teacher retired.
- Tenured assistant principal effectively waived the principal's right to a due process hearing under O.C.G.A. §§ 20-2-940 and20-2-942(b)(1) when the principal voluntarily filed for retirement and began receiving retirement benefits; by operation of O.C.G.A. § 47-3-101(a), the principal was no longer an employee of the school district and no longer entitled to a due process hearing. Ashley v. Carstarphen, 347 Ga. App. 457, 820 S.E.2d 70 (2018).
Teacher who becomes "permanently elected," may only be removed for cause.
- When a teacher, having been employed for more than five years as a principal of a school, became "permanently elected", the teacher could not be suspended or removed except for one of the causes specified and the teacher had the right to defend the position in a hearing before the board. County Bd. of Educ. v. Young, 187 Ga. 644, 1 S.E.2d 739 (1939) (decided under former Code 1933, § 32-913).
Transfer to another school without cause or hearing allowed, provided no salary reduction.
- Board of Education had the right merely to transfer a teacher from a position of principal to that of a teacher in another school without assigning a cause or a hearing, provided the board did not act merely arbitrarily and exercised the board's judgment as to what was best for the school system, and provided the board did not accompany the demotion with a reduction in salary. County Bd. of Educ. v. Young, 187 Ga. 644, 1 S.E.2d 739 (1939) (decided under former Code 1933, § 32-913).
Public school employee's federal procedural due process claims failed because the employee, when transferred from a principal position to a lead teacher position, was not demoted as defined in O.C.G.A. § 20-2-943(a)(2)(C) since the employee did not receive a lesser salary or less prestige, and as such, the employee was not entitled to the procedural protections outlined in O.C.G.A. §§ 20-2-940(b) through (f) and20-2-942(b)(2), which the employee had been denied, because the employee lacked a property interest under Georgia law. Siler v. Hancock County Bd. of Educ., 510 F. Supp. 2d 1362 (M.D. Ga. 2007).
Argument that a former school principal's due process rights under the Fourteenth Amendment were violated when a school district transferred the principal without a hearing was without merit. While O.C.G.A. §§ 20-2-940(b)-(f) and20-2-942(b)(2) provided that an educational employee had a right to a hearing when facing a demotion, to qualify as a demotion, O.C.G.A. § 20-2-943(a)(2)(C) required that the subsequent position be accompanied by a decrease in salary, and the former principal was unable to demonstrate that there was a decrease in salary. Siler v. Hancock County Bd. of Educ., F.3d (11th Cir. Apr. 9, 2008)(Unpublished).
Assignment of a visually impaired teacher to a school more distant than the one to which the teacher had been assigned previously did not violate the Georgia Equal Employment for the Handicapped Code, Ga. L. 1981, p. 1803, because the teacher was not treated any differently from any able-bodied employee; therefore, the teacher's termination for refusal to accept a reassignment was proper. Allen v. Bergman, 198 Ga. App. 57, 400 S.E.2d 347 (1990), cert. denied, 198 Ga. App. 897, 400 S.E.2d 347 (1991).
Notification of termination.
- O.C.G.A. § 20-2-940 was enacted to make certain that public school teachers would receive timely notification of termination of the teachers' employment well in advance of the following school year. Andrews v. Howard, 249 Ga. 539, 291 S.E.2d 541 (1982).
Although termination notice was erroneously addressed, when mail carrier corrected the address, attempted delivery, left notice of attempted delivery and returned certified letter to post office, O.C.G.A. § 20-2-940 was substantially complied with. Andrews v. Howard, 249 Ga. 539, 291 S.E.2d 541 (1982).
Even though the board of education failed to provide a school employee with pretermination notice, the employee could not maintain a claim for damages for procedural due process deprivation under 42 U.S.C. § 1983 since the employee could have sued the board in state court to enforce that right. Merritt v. Brantley, 936 F. Supp. 988 (S.D. Ga. 1996).
Admission of revocation of certificate.
- In a hearing on the termination of a school principal under O.C.G.A. § 20-2-940(a)(8), the amendment of the charge letter did not violate due process because the principal was given at least 10 days' advance notice that the local board would be offering evidence of the Professional Standards Commission (PSC) decision to revoke the principal's certificate; assuming admission of the PSC notice of revocation was error, the principal was not harmed by the improper admission. Dukes-Walton v. Atlanta Indep. Sch. Sys., 336 Ga. App. 175, 784 S.E.2d 37 (2016).
Failure to renew contract and application of law.
- Since a county board of education did not terminate or suspend the complainant teacher during the teacher's contract year, but simply decided that the board was not going to renew the teacher's contract for the upcoming year, O.C.G.A. § 20-2-211(b), and not O.C.G.A. § 20-2-940, applied. Baker v. McIntosh County Sch. Dist., 264 Ga. App. 509, 591 S.E.2d 362 (2003), overruled on other grounds by Wolfe v. Regents of the Univ. Sys. of Ga., 300 Ga. 223, 794 S.E.2d 85 (Ga. 2016).
Evidence sufficient to support non-renewal of employment contract.
- Trial court erred in reversing the State Board of Education's decision affirming the decision not to renew the testing coordinator's employment contract since the evidence showed that the Atlanta Independent School System decided not to renew the coordinator's contract because the district lost confidence in the coordinator's ability as an educator after cheating allegations came to light and the Georgia Professional Standards Commission sought to revoke the coordinator's teaching certificate. Atlanta Independent School System v. Wardlow, 336 Ga. App. 424, 784 S.E.2d 799 (2016).
No subpoena power in termination cases.
- There is no statutory authority for the Professional Practices Commission (sitting for a local school board) to issue subpoenas for discovery purposes in teacher termination cases. Lansford v. Cook, 252 Ga. 414, 314 S.E.2d 103 (1984).
Discovery.- Work product doctrine could not be used to escape discovery of records and documents relating to the investigation or disciplinary action taken by the board of public education with regard to the incident which gave rise to the complaint. Chaney ex rel. Guilliam v. Slack, 99 F.R.D. 531 (S.D. Ga. 1983).
Applicability of Superior Court Rules.
- Rule 25 of the Uniform Superior Court Rules, regarding removal, does not apply to school board proceedings under O.C.G.A. §§ 20-2-940 and20-2-1160 because that rule addresses pre-hearing matters. Johnson v. Pulaski County Bd. of Educ., 231 Ga. App. 576, 499 S.E.2d 345 (1998).
Review.
- School appeals are governed by the procedures set out in O.C.G.A. §§ 20-2-940 and20-2-1160 and do not fall within the Georgia Administrative Procedure Act, O.C.G.A. Ch. 13, T. 50. Johnson v. Pulaski County Bd. of Educ., 231 Ga. App. 576, 499 S.E.2d 345 (1998).
Tenured teacher was not required to appeal to the State Board of Education; the Atlanta Public Schools' failure to grant the teacher a hearing on the nonrenewal of the teacher's teaching contract after a hearing was requested, made such an appeal futile, since such appeals were confined to record and presupposed a hearing was held by the local board of education. Atlanta Pub. Schs v. Diamond, 261 Ga. App. 641, 583 S.E.2d 500 (2003).
Although a superior court erred in ruling that the State Board of Education lacked jurisdiction over two tenured teachers' appeals from their nonrenewal under O.C.G.A. § 20-2-942 because the appeals were more than 30 days from the date the local board voted, the superior court properly affirmed the State Board's decision to reverse the local board's nonrenewal decisions because the local board failed to comply with the decision and notice requirements of O.C.G.A. § 20-2-1160(a). Clayton County Bd. of Educ. v. Wilmer, 325 Ga. App. 637, 753 S.E.2d 459 (2014).
Trial court erred in reversing the State Board of Education's decision affirming the local board of education's termination of a teacher's employment on the basis that the hearing tribunal failed to timely provide the tribunal's findings of fact and recommendations to the local board because the teacher failed to raise the issue prior to the appeal to the trial court; thus, the court was prohibited from considering the issue and also prohibited from reviewing the decision of the State Board de novo. Clayton County Bd. of Educ. v. Vollmer, 328 Ga. App. 894, 763 S.E.2d 277 (2014).
Cited in Davis v. Griffin-Spalding County Bd. of Educ., 445 F. Supp. 1048 (N.D. Ga. 1975); Armistead v. Cherokee County Sch. Dist., 144 Ga. App. 178, 241 S.E.2d 19 (1977); Dougherty County v. White, 439 U.S. 32, 99 S. Ct. 368, 58 L. Ed. 2d 269 (1978); Willingham v. Carter, 447 F. Supp. 301 (S.D. Ga. 1978); Fuller v. Williams, 150 Ga. App. 730, 258 S.E.2d 538 (1979); Rockdale County Sch. Dist. v. Weil, 245 Ga. 730, 266 S.E.2d 919 (1980); Sharpley v. Hall County Bd. of Educ., 251 Ga. 54, 303 S.E.2d 9 (1983); Saxby v. Bibb County Bd. of Educ., 173 Ga. App. 633, 327 S.E.2d 494 (1985); Chavis v. Clayton County Sch. Dist., 300 F.3d 1288 (11th Cir. 2002); West v. Dooly County Sch. Dist., 316 Ga. App. 330, 729 S.E.2d 469 (2012).
Constitutionality
Fair Dismissal Act constitutional.
- Fair Dismissal Act of Georgia, O.C.G.A. § 20-2-940 et seq., both on the Act's face and as applied, not only met, but exceeded, the minimum due process standard in a situation when a teacher who was to be terminated for cause opposed termination. Holley v. Seminole County Sch. Dist., 755 F.2d 1492 (11th Cir. 1985).
Due process in failing to renew.- County school board and school administrators did not violate standards of federal due process in failing to renew a school teacher's contract since the board and administrators informed the teacher that the reasons for their actions were the teacher's insubordination and willful neglect of duty, in addition to "other good and sufficient cause." Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989).
Recusal was required for due process.
- President of the school board, who recommended the principal's removal from that capacity, should have been recused from participation in the school board's hearing on the matter and the board's failure to recuse the president denied the principal due process. Johnson v. Pulaski County Bd. of Educ., 231 Ga. App. 576, 499 S.E.2d 345 (1998).
Hiring replacement to assume duties of provisionally nonrenewed or terminated teacher constitutional.- Mere fact that a replacement had been hired to assume the duties of a provisionally nonrenewed or terminated teacher prior to that teacher's hearing, when the school district had retained by contract the right to rearrange the teaching duties of the district's teachers, did not as a matter of law violate due process. Holley v. Seminole County Sch. Dist., 755 F.2d 1492 (11th Cir. 1985).
Discharged teacher asserting First Amendment right entitled to de novo federal hearing.- Discharged or nonrenewed teacher asserting a First Amendment "protected" right was entitled to a de novo hearing in federal court regardless of whether that teacher resorted to an administrative hearing or whether such hearing purported to decide the issue, and the teacher should have been allowed to present evidence in the court that other teachers had engaged in similar "improper" conduct, such as that which allegedly justifiably caused the teacher's discharge, known to school personnel and the board, and those teachers were not disciplined, raising an inference that the teacher in question was disciplined for reasons other than "improper" conduct. Holley v. Seminole County Sch. Dist., 755 F.2d 1492 (11th Cir. 1985).
Due process requirements.
- In an action in which an employee was terminated for failing to obtain an educator's certificate, waived a rehearing, and the employee was paid a full salary through the date of a hearing, the employee's due process rights under the Fair Dismissal Act, O.C.G.A. § 20-2-940, were not violated; consequently, the school board was properly granted summary judgment. Oliver v. Lee County Sch. Dist., 270 Ga. App. 61, 606 S.E.2d 88 (2004).
Former tenured teacher failed to state a claim of a procedural due process violation under 42 U.S.C. § 1983 in the nonrenewal of a teaching contract because the teacher failed to utilize available state remedies under O.C.G.A. §§ 9-6-20,20-2-940,20-2-942(b), and20-2-1160(a) through petitioning the board of education for a hearing or seeking mandamus relief. Mason v. Clayton County Bd. of Educ., 334 Fed. Appx. 191 (11th Cir. 2009)(Unpublished).
Grounds for Termination or Suspension
Grounds for termination or suspension not vague or overbroad.
- Fact that O.C.G.A. § 20-2-940, providing grounds for terminating or suspending teachers' or principals' contracts, could be construed as excluding some crimes as a basis for nonrenewal but not others does not in and of itself render the statute vague or overbroad, so as to deprive plaintiff whose contract was not renewed due to plaintiff's conviction for submitting false documents to the Internal Revenue Service of due process; the statute clearly establishes the class of people covered and provides sufficient notice of what conduct is proscribed and there was no question that the plaintiff came within the sweep of the law. Logan v. Warren County Bd. of Educ., 549 F. Supp. 145 (S.D. Ga. 1982).
Cancellation of program warrants termination.
- When the elimination of the system of centrally administering support services and security constituted the cancellation of an operational program under O.C.G.A. § 20-2-940(a)(6), the discontinuation of the position of director warranted the termination of the employee's contract. Curry v. Dawson County Bd. of Educ., 212 Ga. App. 827, 442 S.E.2d 919 (1994).
Nonrenewal of tenured teacher's contract prohibited except for cause.- At least implicitly, Ga. L. 1975, p. 360, § 3 prohibits the nonrenewal of a tenured teacher's contract except for cause, such as is specified in this section, and provides that a tenured teacher has a protectable property interest in his or her job. LaPier v. Holliman, 514 F. Supp. 692 (N.D. Ga. 1980).
"Willful neglect of duty" under paragraph (a)(3) of O.C.G.A. § 20-2-940 is a flagrant act or omission, an intentional violation of a known rule or policy, or a continuous course of reprehensible conduct. Under either of these interpretations, "willfulness" requires a showing of more than mere negligence. Terry v. Houston County Bd. of Educ., 178 Ga. App. 296, 342 S.E.2d 774 (1986).
It is not necessary to establish a nexus between a conviction and ability to teach to justify discharge or nonrenewal when the conviction involves moral turpitude. Logan v. Warren County Bd. of Educ., 549 F. Supp. 145 (S.D. Ga. 1982).
Submission of false tax document grounds for dismissal or nonrenewal.
- Submission of false documents to IRS is an offense involving moral turpitude under Georgia law, and is sufficient ground for dismissal or nonrenewal of a contract under the provisions of O.C.G.A. § 20-2-940 et seq. Logan v. Warren County Bd. of Educ., 549 F. Supp. 145 (S.D. Ga. 1982).
Evidence supporting finding of incompetence, insubordination, and/or willful neglect basis for contract nonrenewal.
- Competent and probative evidence before a county board which supports a finding of incompetence, insubordination, and/or willful neglect of duties is a sufficient basis for the nonrenewal of a tenured teacher's contract. Ransum v. Chattooga County Bd. of Educ., 144 Ga. App. 783, 242 S.E.2d 374 (1978).
Proven fact of possession of dangerous drugs is evidence from which "immorality" may be inferred, even in the absence of criminal purpose or intent. Dominy v. Mays, 150 Ga. App. 187, 257 S.E.2d 317 (1979).
Physical education teacher who unintentionally showed two classes an "R-rated" movie was not guilty of "willful neglect of duty." Terry v. Houston County Bd. of Educ., 178 Ga. App. 296, 342 S.E.2d 774 (1986).
Principal creating uninviting environment for standardized testing.
- Termination of a principal for "any other good and sufficient cause" under O.C.G.A. § 20-2-940(a)(8) was proper because, although the principal did not cheat, by setting arbitrary and unrealistic standards for the teachers the principal created an environment in which cheating by teachers on standardized tests could occur and in which teachers felt they could not approach the principal to report cheating violations. Dukes-Walton v. Atlanta Indep. Sch. Sys., 336 Ga. App. 175, 784 S.E.2d 37 (2016).
Evidence sufficient to support termination.
- Evidence that high school principal discussed sexual and personal matters with teachers at school in an unprofessional manner, made derogatory remarks to teachers about both teachers and students (and that such unprofessional discussions and comments have impeded effective communication between that principal and certain teachers), and has intimidated certain teachers by remarks with sexual connotations concerning other teachers and students was sufficient to support the school board's termination of the principal's employment. Rabon v. Bryan County Bd. of Educ., 173 Ga. App. 507, 326 S.E.2d 577, cert. denied, 474 U.S. 855, 106 S. Ct. 160, 88 L. Ed. 2d 133 (1985).
There was substantial evidence - in the form of testimony by school personnel that a teacher repeatedly left school grounds without permission, failed to attend classes and lunchroom duties to which the teacher was assigned, threatened students with academic failure if the students did not play football, and directed profanity at students - to support the school board's finding of "cause" not to renew that teacher's contract. Holley v. Seminole County Sch. Dist., 755 F.2d 1492 (11th Cir. 1985).
Superior court erred in reversing a local school board's decision to terminate a teacher for insubordination and willful neglect of duty pursuant to O.C.G.A. § 20-2-940(a) because the decision was supported by evidence that the teacher made inappropriate comments about special education students, among other evidence. The "any evidence" standard of O.C.G.A. § 20-2-1160(e) applied. Chattooga County Bd. of Educ. v. Searels, 302 Ga. App. 731, 691 S.E.2d 629 (2010).
Nonrenewal of a teacher's contract under O.C.G.A. § 20-2-940(a) was upheld based on evidence that the teacher disregarded school policies, failed to monitor the teacher's students' work, was tardy, left the class unattended repeatedly, did not conduct roll calls, and was belligerent and insubordinate to co-workers and the teacher's principal; furthermore, evidence from other contract years was admissible. King v. Worth County Bd. of Educ., 324 Ga. App. 208, 749 S.E.2d 791 (2013).
Insufficient evidence of insubordination to support termination.
- School board erroneously terminated the employment of a teacher, who was on approved long-term disability leave, on grounds of insubordination and for disobeying a board directive, as the teacher's attendance at a planning meeting at the workplace was insufficient to amount to the teacher's return to full teaching duties, and the evidence failed to show that the teacher ever sought to be restored to full teaching duties as of the date of the meeting. Brawner v. Marietta City Bd. of Educ., 285 Ga. App. 10, 646 S.E.2d 89 (2007), cert. denied, 2007 Ga. LEXIS 543 (Ga. 2007).
RESEARCH REFERENCES
Am. Jur. 2d.
- 63C Am. Jur. 2d, Public Officers and Employees, § 223 et seq. 68 Am. Jur. 2d, Schools, §§ 147 et seq., 219 et seq.
C.J.S.- 78 C.J.S., Schools and School Districts, §§ 294, 374, 378, 390 et seq.
ALR.
- Temporary inability of teacher without fault of school authorities to perform duty as justifying termination of contract or removal, 72 A.L.R. 283.
Marriage of teacher as ground of removal or discharge, 118 A.L.R. 1092.
Candidacy for or incumbency of public office or other political activity by teacher or other school employee as ground for dismissal or compulsory leave of absence, 136 A.L.R. 1154.
Assertion of immunity as ground for removing or discharging public officer or employee, 44 A.L.R.2d 789.
Sufficiency of teacher's request for hearing, under statute requiring hearing on request before discharge, 89 A.L.R.2d 1018.
Test of moral character or fitness as requisite to issuance of teacher's license or certificate, 96 A.L.R.2d 536.
Revocation of teacher's certificate for moral unfitness, 97 A.L.R.2d 827.
Right to dismiss public school teacher on ground that services are no longer needed, 100 A.L.R.2d 1141.
What constitutes "incompetency" or "inefficiency" as a ground for dismissal or demotion of public school teacher, 4 A.L.R.3d 1090.
Use of illegal drugs as ground for dismissal of teacher, or denial or cancellation of teacher's certificate, 47 A.L.R.3d 754.
Dismissal of, or disciplinary action against, public school teacher for violation of regulation as to dress or personal appearance of teachers, 58 A.L.R.3d 1227.
Sexual conduct as ground for dismissal of teacher or denial or revocation of teaching certificate, 78 A.L.R.3d 19.
What constitutes "insubordination" as ground for dismissal of public school teachers, 78 A.L.R.3d 83.
Dismissal of public school teacher because of unauthorized absence or tardiness, 78 A.L.R.3d 117.
Termination of teacher's tenure status by resignation, 9 A.L.R.4th 729.
Public school teacher's self-defense, or defense of another, as justification, in dismissal proceedings, for use or threat of use of force against student, 37 A.L.R.4th 842.
Sufficiency of notice of intention to discharge or not to rehire teacher, under statutes requiring such notice, 52 A.L.R.4th 301.