Opinion
A13A2088 A13A2094
01-24-2014
CLAYTON COUNTY BOARD OF EDUCATION v. WILMER. CLAYTON COUNTY BOARD OF EDUCATION v. RACHELE.
FIRSTDIVISION
PHIPPS,C. J.,
ELLINGTON,P. J., and BRANCH, J.
NOTICE:Motions for reconsideration must be physically received in our clerk'soffice within ten days of the date of decision to be deemed timely filed.
Ellington, Presiding Judge.
In each of these cases, the Clayton County Board of Education ("the LocalBoard") decided not to renew a tenured teacher's contract, the Georgia Board ofEducation ("the State Board") reversed the decision of the Local Board, and theSuperior Court of Clayton County affirmed the decision of the State Board. TheLocal Board appeals, contending,inter alia, that the State Board erred in reversing the Local Board's decisionsbased on its failure to notify the teachers in writing of the decision and oftheir right to appeal to the State Board in the time and manner required by lawand, therefore, that the superior court erred in affirming the decisions of theState Board. Because the substantive issues in these cases are identical, wehave consolidated them for decision. For the reasons explained below, weaffirm.
This Court granted the Local Board's applications fordiscretionary appeal. See OCGA § 5-6-35 (a) (1). As detailed below, Case No.A13A2088 concerns the Local Board's decision not to renew the contract ofBurnedetta Wilmer, and Case No. A13A2094 concerns the Local Board's decisionnot to renew the contract of Gala Rachele.
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 SE2d 398) (2009). Under theAct, a local board may demote or fail to renew the contract of a tenuredteacher only for cause and after providing specified procedural safeguards. West v. Dooly County School Dist., 316 Ga. App. 330, 331 (729 SE2d 469)(2012); see also Oates v. Coffee County Bd. of Ed., 198 Ga. App. 77, 79(400 SE2d 355) (1990) ("The significance of tenure is that a tenured teacher'scontract 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 tenuredteacher's contract is automatically renewed for the following school year.
See also Boone v. Atlanta Independent School Sys.,275 Ga. App. 131, 132, n. 1 (619 SE2d 708) (2005) ("A tenured teacher is onewho accepts a school year contract for the fourth consecutive school year fromthe same local board of education. OCGA § 20-2-942 (b) (1).") (punctuationomitted); Moulder v. Bartow County Bd. of Ed., 267 Ga. App. 339, 341(599 SE2d 495) (2004) ("OCGA § 20-2-942 is Georgia's teacher tenure statute.");OCGA § 20-2-942 (b) (1) ("A teacher who accepts a school year contract for thefourth consecutive school year from the same local board of education may bedemoted or the teacher's contract may not be renewed only for those reasons setforth in subsection (a) of [OCGA §] 20-2-940."), (b) (3) ("A teacher is deemedto have accepted a fourth consecutive school year contract if, while theteacher is serving under the third consecutive school year contract, the localboard does not serve notice on the teacher by April 15 that it intends not torenew the teacher's contract for the ensuing school year, and the teacher doesnot serve notice in writing on the local board of education by May 1 of thethird consecutive school year that he or she does not accept the fourthconsecutive school year contract.").
OCGA § 20-2-942 (b) provides, in pertinent part,that,
[i]n order to . . . fail torenew the contract of a [tenured] teacher . . . , the teacher must be givenwritten notice of the intention to . . . not renew the contract of the teacher.. . . A teacher who is so notified . . . that his or her contract will not berenewed has the right to the procedures set forth in subsections (b) through(f) of [OCGA §] 20-2-940 before the intended action is taken.
OCGA § 20-2-211 (b); Hall v. Nelson, 282 Ga.441, 445-446 (5) (651 SE2d 72) (2007); Boone v. Atlanta Independent SchoolSys., 275 Ga. App. at 132; Moulder v. Bartow County Bd. of Ed., 267Ga. App. at 341; Woodland v. Richmond County Bd. of Ed., State Bd. ofEd. Case No. 2011-27; Peddle v. Cobb County Bd. of Ed., State Bd. of Ed.Case No. 1985-31 (November 14, 1985).
Under Georgia's Education Code every local board "shall constitute atribunal for hearing and determining any matter of local controversy inreference to the construction or administration of the school law[,]" and, assuch a matter, a dispute under the Fair Dismissal Act is committed to thatadministrative process. See Day v. Brantley County School Dist., 298 Ga.App. 717 (680 SE2d 496) (2009). Thus, a teacher with a dispute regarding his orher employment contract generally must first seek redress before the localboard of education. OCGA § 20-2-1160 (a); Day v. Brantley County SchoolDist., 298 Ga. App. at 717 (A complaint against a local board for breach ofcontract was properly dismissed where the plaintiff failed to exhaust heradministrative remedies before filing suit.).
The Fair Dismissal Act requires the local board to give a tenured teacherwritten notice of its intention not to renew the teacher's contract, as well asnotice of the teacher's procedural rights. OCGA § 20-2-942 (b) ;see OCGA § 20-2-940 (b) through (f) (procedures); Patrick v. Huff, 296Ga. App. at 345 (1). If the teacher serves written notice within 20 days thathe or she requests a hearing, the local board then has 14 days to furnish theteacher 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 ofthe Fair Dismissal Act. OCGA § 20-2-942 (b).Furthermore, the teacher is entitled to an evidentiary hearing to contest thereasons for non-renewal before the local school board or, if designated by thelocal board, before a specialized tribunal, which submits findings andrecommendations to the local board for its decision. OCGA § 20-2-940 (e). TheFair Dismissal Act provides that,
The required written notice of the intention not torenew the contract of a tenured teacher
shall contain a conspicuousstatement in substantially the following form:
You have the right to certainprocedural safeguards before you can be demoted or dismissed. These safeguardsinclude the right to notice of the reasons for the action against you and theright to a hearing. If you desire these rights you must send to the schoolsuperintendent by certified mail or statutory overnight delivery a statementthat you wish to have a hearing; and such statement must be mailed to theschool superintendent within 20 days after this notice was mailed to you. Yourrights are governed by [OCGA §§] 20-2-211 [(b)], . . . 20-2-940, and . . . 20-2-942through 20-2-947, and a copy of this law is enclosed.
Under OCGA § 20-2-940 (b)
written notice of the chargesshall be given at least ten days before the date set for hearing and shallstate:
(1) The cause or causes for hisor her discharge, suspension, or demotion in sufficient detail to enable him orher fairly to show any error that may exist therein;
(2) The names of the knownwitnesses and a concise summary of the evidence to be used against him or her.The names of new witnesses shall be given as soon as practicable;
(3) The time and place wherethe hearing thereon will be held; and
(4) That the charged teacher or other person, uponrequest, shall be furnished with compulsory process or subpoena legallyrequiring the attendance of witnesses and the production of documents and otherpapers as provided by law.
[t]he local board shall render its decision at the hearing or within fivedays thereafter. Where the hearing is before a tribunal, the tribunal shallfile its findings and recommendations with the local board within five days ofthe conclusion of the hearing, and the local board shall render its decisionthereon within ten days after the receipt of the transcript.
The State Board is the primary appellate body for reviewing non-renewaldecisions of local boards. OCGA §§ 20-2-940 (f) (In cases ofnon-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]oardgoverning appeals."); 20-2-1160 (b) ("Any party aggrieved by a decision of thelocal board rendered on a contested issue after a hearing shall have the rightto 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 toappeal the decision to the State Board of Education and shall clearly describethe 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 alocal board of education acting as a school law tribunal], or within 15 daysthereafter, the [local board] shall notify the parties of its decision inwriting and shall notify the parties of their right to appeal the decision tothe State Board of Education.").
"Any party aggrieved [by a decision of the State Board] may appeal to thesuperior 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 superiorcourt reviewing a decision of the State Board of Education shall be byapplication for a discretionary appeal, as provided in OCGA § 5-6-35.
With the interplay of the relevant statutes in mind, we turn to thespecific facts of the cases at bar.
Case No. A13A2088
On April 20, 2011, the superintendent of Clayton County Public Schoolsnotified Burnedetta Wilmer, a tenured kindergarten teacher, that he would berecommending to the Local Board that her employment contract not be renewed forthe 2011-2012 school year. Wilmer requested an evidentiary hearing, which tookplace on September 20, 2011, before a tribunal designated by the Local Board.The tribunal recommended non-renewal of Wilmer's contract and submitted writtenfindings to the Local Board. The Local Board voted, at its meeting on November7, 2011, to accept the tribunal's non-renewal recommendation. The Local Boardinformed Wilmer that it had accepted the tribunal's non-renewal recommendation,but it did not provide her with the written findings of the tribunal untilDecember 12, 2011. After repeated requests from Wilmer's attorney for the LocalBoard's decision, the Local Board's attorney notified Wilmer's attorney, viaemail 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 awritten decision setting forth the basis for non-renewal (or expressly adoptingthe findings and recommendation of the tribunal), and it provided Wilmer noformal notice of her right to appeal its decision and the procedure andrequirements for such an appeal.
On February 14, 2012, Wilmer appealed to the State Board, challenging thesufficiency of the evidence and arguing that the Local Board had failed toprovide her with a written explanation of its decision and notice of her rightto appeal the decision to the State Board of Education, as required. The StateBoard found that the Local Board violated OCGA § 20-2-940 (f), in failing toserve 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 ofher right to appeal. The State Board found that Wilmer was harmed by the LocalBoard's procedural faults, in that the Local Board's "fail[ure] to render awritten decision in accordance with OCGA § 20-2-1160" giving the basis for itsdecision made it impossible for the State Board to "ascertain if the decisionwas mistaken[.]" In addition, noting that the time limitations in the FairDismissal Act exist in order to expeditiously provide teachers with a hearing,including the right to appeal, the State Board found that Wilmer was harmed bythe Local Board's conduct, which had caused the matter to be delayed for over ayear since the issuance of the non-renewal letter. Based on these findings, theState Board reversed the Local Board's decision. The Local Board then appealedto the superior court.
The superior court agreed with the State Board that the Local Board hadviolated OCGA § 20-2-1160 (a) by failing to provide timely written notice toWilmer of its decision not to renew her contract. Further, the superior courtfound 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 onNovember 7, 2011, the day that the Local Board met and voted to accept thetribunal's recommendation, and therefore expired on December 7, 2011. Thesuperior court found that, because Wilmer did not appeal until February 14,2012, the State Board was without jurisdiction to consider her appeal and thatthe Local Board's actions deprived Wilmer of an appeal. Because Wilmer wasinjured by the Local Board's violation of OCGA § 20-2-1160 (a), the superiorcourt concluded that the requirements of that Code section are mandatory,rather than directory, under Georgia law. Based on these findings andconclusions, the superior court affirmed the decision of the State Board.
Case No. A13A2094
On April 20, 2011, the superintendent of Clayton County Public Schoolsnotified Gala Rachele, a tenured special education teacher, that he would berecommending to the Local Board that her employment contract not be renewed forthe 2011-2012 school year. Rachele requested an evidentiary hearing, which tookplace on October 20 and November 8, 2011, before a tribunal designated by theLocal Board. The tribunal recommended non-renewal of Rachele's contract andsubmitted written findings to the Local Board. The Local Board voted, at itsmeeting on November 28, 2011, to accept the tribunal's non-renewalrecommendation. On January 17, 2012, the Local Board notified Rachele'sattorney via email that the Local Board had accepted the tribunal's non-renewalrecommendation, with a copy of the tribunal's written findings attached. TheLocal Board did not issue a written decision setting forth the basis fornon-renewal (or expressly adopting the findings and recommendation of thetribunal), and it provided Rachele no formal notice of her right to appeal itsdecision and the procedure and requirements for such an appeal
On February 16, 2012, Rachele appealed to the State Board, arguing thatthe Local Board had violated her due process rights under the Fair DismissalAct. Following the same analysis as in Wilmer's case, the State Board reversedthe Local Board's decision. The Local Board then appealed to the superiorcourt. Following the same analysis as in Wilmer's case, the superior courtconcluded that, because Rachele filed her appeal to the State Board more than30 days after the Local Board voted to accept the tribunal's non-renewalrecommendation, the State Board lacked jurisdiction over her appeal. As inWilmer's case, the superior court found that Rachele was harmed by the LocalBoard's violations of the Fair Dismissal Act's procedural requirements andaffirmed the State Board's decision.
Case Nos. A13A2088 and A13A2094
1. The Local Board contends that the superior court erred in ruling thatthe State Board lacked jurisdiction over the teachers' appeals on the basisthat the appeals were untimely. The Local Board contends that, "if the StateBoard [had] truly lacked jurisdiction to hear [each teacher's] appeal becauseit was not timely filed, then the State Board would have had no authority to doanything or render any decision at all (other than issue an orderdismissing [the teacher's] appeal)." We agree that, by definition, an appellatecourt or tribunal only has the power to review a judgment or decision of alower court or tribunal if it has jurisdiction over the appeal.Thus, the threshold issue is whether the State Board had jurisdiction over theteachers' appeals.
Black's Law Dictionary (9th ed. 2009) (defining"appellate jurisdiction" as "[t]he power of a court to review and revise alower court's decision"); Fullwood v. Sivley, 271 Ga. 248, 250-252 (517SE2d 511) (1999) (The provisions of the law respecting the procedure to befollowed in perfecting appeals to the appellate courts, including time limits,are jurisdictional and must be uniformly enforced by the appellate courts.Unless an appellate court has jurisdiction over a case, "it is without power orauthority to render a judgment upon review.") (citation and punctuation omitted).
OCGA § 20-2-1160 (b) provides that an appeal to the State Board "shall befiled with the superintendent within 30 days of the decision of the localboard." Ordinarily, the word "shall" in a statute is synonymous with "must" andis a word of command, including with regard to time limits set by the statute. Statev. Henderson, 263 Ga. 508, 510-511 (436 SE2d 209) (1993).Generally, the timely initiation of an appeal is an absolute requirement toconfer jurisdiction upon an appellate court or tribunal.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 conferjurisdiction upon the State Board under OCGA § 20-2-1160, and (2) if theteachers failed to file their appeals within the time allowed.
See also Ga. Subsequent Injury Trust Fund v.ITT-Rayonier, 198 Ga. App. 467 (402 SE2d 54) (1991) (accord); State v.Brantley, 147 Ga. App. 569, 570 (249 SE2d 365) (1978) (accord).
As a prime example, the proper and timely filing of anotice of appeal is an absolute requirement to confer jurisdiction upon thisCourt or upon the Supreme Court of Georgia under the Appellate Practice Act,OCGA § 5-6-30 et seq. See OCGA §§ 5-6-33; 5-6-34; 5-6-35 (application of theAppellate Practice Act); 5-6-38 (a) ("A notice of appeal shall be filed within30 days after entry of the appealable decision or judgment complained of; butwhen a motion for new trial, a motion in arrest of judgment, or a motion forjudgment notwithstanding the verdict has been filed, the notice shall be filedwithin 30 days after the entry of the order granting, overruling, or otherwisefinally disposing of the motion."); 5-6-39 (authorizing limited extensions oftime); 5-6-48 (b) (1) (authorizing dismissal of an appeal "[f]or failure tofile notice of appeal within the time required as provided in [the AppellatePractice Act] or within any extension of time granted [t]hereunder"); see also Gablev. State, 290 Ga. 81, 82-83 (2) (a) (720 SE2d 170) (2011) ("[C]ompliancewith the statutory deadline for filing a notice of appeal is an absoluterequirement to confer jurisdiction on an appellate court" under the Appellate PracticeAct.) (citations and punctuation omitted); Jordan v. Caldwell, 229 Ga.343, 344 (191 SE2d 530) (1972) (Under the Appellate Practice Act, "[t]he properand timely filing of a notice of appeal is an absolute requirement to conferjurisdiction upon the appellate court. . . . [T]he burden is on the partydesiring to take the appeal to determine when the judgment is filed in thetrial court, and the burden is on the party desiring to appeal to file hisnotice of appeal within the 30-day period or within a duly authorized extensionof the 30-day period.").
(a) As to the first question, the reported decisions of the State Boardshow that, when an appellant fails to file an appeal from a decision of a localboard acting as a tribunal within the time allowed, the State Board dismissesthe appeal. This Courthas also ruled that the proper filing of a notice of appeal is necessary tobestow jurisdiction upon the reviewing court under OCGA § 20-2-1160 (c).Moreover, we find no statutory basis for concluding that the timely filing ofan appeal is not a prerequisite to the exercise of jurisdiction by the StateBoard. Based on theforegoing, we conclude that the timely filing of an appeal is an absoluterequirement to confer jurisdiction upon the State Board under OCGA § 20-2-1160(b).
See, e.g., Josh W. v. Gwinnett County Bd. of Ed.,State Bd. of Ed. Case No. 1991-15 (June 13, 1991) (dismissing a student'sappeal from the local board's decision to expel him on the basis that thestudent's failure to file his appeal within 30 days after the local board'sdecision deprived the State Board of jurisdiction); Coleman v. PauldingCounty Bd. of Ed., State Bd. of Ed. Case No. 1989-03 (April 13, 1989)(dismissing a bus driver's appeal from the local board's decision to award aparticular route to another driver on the basis that the driver's failure tofile his appeal within 30 days after the local board's decision deprived theState Board of jurisdiction).
Cooper v. Gwinnett County Bd. of Ed., 157 Ga.App. 289, 289-290 (277 SE2d 285) (1981) (Where a teacher filed a notice ofappeal from a decision of the State Board in the superior court, instead ofwith the State Board as required by statute, the superior court did not have"jurisdiction to review the decision sought to be appealed because of thefailure to confer jurisdiction upon that court pursuant to the statute." As aresult, the proper disposition by the superior court was dismissal of theappeal.) (citations and punctuation omitted); see also Elbert County Bd. ofEd. v. Gurley, 215 Ga. App. 205, 206 (450 SE2d 258) (1994) (accord).
For an example of such a statutory provision, seeOCGA § 5-3-27, which is part of the statutory chapter that provides for appealsto the superior court from decisions made by the probate courts, OCGA § 5-3-2et seq. OCGA § 5-3-27 provides that "the superior court shall at any timepermit such amendments and enter such orders as may be necessary to cure [any]defect" in a notice of appeal from a decision made by a probate court. Based onthis provision, the Supreme Court of Georgia held that, where the appellantfiled a timely notice of appeal but filed it in the superior court, rather thanin the probate court as required, the superior court did not err in exercisingjurisdiction over the appeal. Mack v. Demming, 248 Ga. 117, 119 (6) (281SE2d 591) (1981).
(b) In order to determine whether the teachers filed their appeals withinthe time allowed, we must next determine the date the 30-day period for filingan appeal begins to run. The Education Code does not expressly specify whatconstitutes the date of a local board's decision.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 atenured teacher is the date a quorum of the local board votes, after a hearingas provided in OCGA § 20-2-940 (e), not to renew the teacher's contract. SeeOCGA § 20-2-57 (a) (conduct of business by a local board).
By contrast, under the Appellate Practice Act, thetime for initiating an appeal begins to run with the "entry of the appealablejudgment or decision complained of," and the Act "provides its own internaldefinition as to what constitutes the entry of a judgment: [t]he filing withthe clerk of a judgment, signed by the judge, constitutes the entry of ajudgment within the meaning of [the Act]." (Citations and punctuation omitted.)GMC Group v. Harsco Corp., 293 Ga. App. 707 (667 SE2d 916) (2008),quoting OCGA § 5-6-31.
The State Board, however, has held that under these circumstances the30-day period for filing an appeal under OCGA § 20-2-1160 (b) does not begin torun until a local board complies with the notice provisions of subsection (a)of that Code section, which provides that "the [local] board shall notify theparties in writing of the decision and of their right to appeal the decision tothe State Board of Education and shall clearly describe the procedure andrequirements 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 reviewon the merits the local board's decision to terminate a driver's contractbecause the driver filed his appeal within 30 days of the date the local boardissued its written decision, even though it was more than 30 days after thelocal board voted to terminate his contract.); Shane W. v. Gwinnett CountyBd. of Ed., State Bd. of Ed. Case No. 1986-37 (December 11, 1986) (Wherethe local board failed, when it notified the parents of its decision to suspendtheir child, to describe the procedure and requirements for appealing thedecision, as required by OCGA § 20-2-1160 (a), the State Board had jurisdictionto review on the merits the local board's decision, even though the parentsfiled the appeal to the State Board more than 30 days after the local boardvoted to suspend the student.). Because the 30-day period for filing an appealunder OCGA § 20-2-1160 does not begin to run until a local board complies withthe notice requirements of that Code section, a local board's failure to complywith those notice provisions will not thwart a teacher's right to appeal. See ShaneW. 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 whena local board fails to give actual notice, then the purpose [of OCGA §20-2-1160's notice requirements] is thwarted without any remedy."). The StateBoard's interpretation of the Fair Dismissal Act, "though not conclusive, isentitled to great weight." Moulder v. Bartow County Bd. of Ed., 267 Ga.App. at 340 (footnote omitted).
We note that the State Board departed somewhat fromits own precedent on the issue in McClain v. Griffin-Spalding County Bd. ofEd., State Bd. of Ed. Case No. 1998-50 (March 11, 1999), and C. K. F. v.Peach County Bd. of Ed., State Bd. of Ed. Case No. 1993-29 (December 11,1986). In McClain v. Griffin-Spalding County Bd. of Ed., the State Boardheld that, if a local board gives the parties notice of an adverse decision andin that notice discloses the date the local board reached its decision, thetime for filing a notice of appeal under OCGA § 20-2-1160 (b) begins to run onthe date the local board rules against the appellant. In that case, the StateBoard dismissed an appeal filed by a teacher from the local board's decision toterminate his teaching contract, even though the teacher filed his appealwithin 30 days after the local board issued its written decision (on July 2,1998), because, when the local board issued its written decision, it advisedthe teacher that it had made its decision three days earlier (on June 30,1998). In allowing the local board to shorten the teacher's time to appeal inthis way, the State Board relied on its previous decision in C. K. F. v.Peach County Bd. of Ed., State Bd. of Ed. Case No. 1993-29 (December 11,1986), where it stated that a local board's decision "will be deemed to havebeen made on the date of the notice [of a decision] if the notice does not givethe date of the decision; if the notice gives the date of the decision, [on theother hand,] then that date will be deemed the date of decision." To the extentthat these two decisions, which did not discuss the importance of the noticeprovisions of OCGA § 20-2-1160 (a), are inconsistent with the State Board'swell-reasoned analysis in White v. Lamar County Bd. of Ed., State Bd. ofEd. Case No. 1987-14 and Shane W. v. Gwinnett County Bd. of Ed., StateBd. of Ed. Case No. 1986-37 (December 11, 1986), we disapprove them.
As the Local Board contends, therefore, the State Board was not deprivedof jurisdiction over the teachers' appeals in these cases merely by the factthat the teachers filed their appeals more than 30 days after the Local Boardvoted, after receiving the findings and recommendation of the tribunal, not torenew their contracts. Indeed, because the Local Board failed to comply withthe notice requirements of OCGA § 20-2-1160 (a), the teachers' appeals werearguably premature. The LocalBoard, however, never moved to dismiss the teachers' appeals on the basis ofprematurity, but, to the contrary, has insisted throughout that the State Boardhad jurisdiction to hear the merits of the teachers' appeals. Furthermore, onlythe Local Board had the power to issue a written decision and otherwise complywith OCGA § 20-2-1160 (a) so as to trigger the 30-day period for filing anappeal, yet it failed and refused to do so. Under the circumstances, weconclude that the State Board had jurisdiction over the teachers' appeals, andthe superior court erred in ruling otherwise. This error does not requirereversal of the superior court's judgments, however, for the reasons explainedin Division 2, infra.
See OCGA § 5-6-34 (a) (appeals under the AppellatePractice Act from final judgments); Christopher J. McFadden et al., Ga.Appellate Practice § 11:17 (updated November 2013) (discussing when anotice of appeal filed before entry of judgment will be deemed timely). We notethat the Education Code neither expressly provides for interlocutory appeals,nor expressly prohibits them. Cf. OCGA § 5-6-34 (b) (providing for applicationsfor interlocutory appeal under the Appellate Practice Act).
2. The Local Board contends that the State Board exceeded its authorityin giving the teachers a substantive remedy, that is, reversing the LocalBoard's decisions not to renew the teachers' contracts, based on its findingthat the Local Board failed to comply with the applicable statutory noticeprovisions. The Local Board contends that, although OCGA § 20-2-1160 (a) usesthe commanding term "shall" in directing that a local board notify the partiesinvolved of its decision and their appeal rights, the statute fails toestablish any penalty for a local board's failure to comply with those noticerequirements. The Local Board contends that, as a result, the statutorytimelines are merely directory in the absence of any resulting injury.The Local Board contends that, because the State Board did not dismiss theteachers' appeals, the teachers were not injured by its failure to comply withthe dictates of the statute. The Local Board contends that, under thecircumstances, its failure to comply with the statutory timelines cannot be thebasis for reversing its decisions.
See Charles H. Wesley Ed. Foundation v. StateElection Bd., 282 Ga. 707, 709 (654 SE2d 127) (2007) ("[L]anguage containedin a statute which, given its ordinary meaning, commands the doing of a thingwithin a certain time, when not accompanied by any negative words restrainingthe doing of the thing afterward, will generally be construed as merelydirectory and not as a limitation of authority, and this is especially so whereno injury appeared to have resulted from the fact that the thing was done afterthe time limited by the plain wording of the Act.") (citations and punctuationomitted); Glass v. City of Atlanta, 293 Ga. App. 11, 15 (2) (666 SE2d406) (2008) ("[I]n the absence of injury to the defendant, a statute whichdirects that some act be done within a given time period, but prescribes nopenalty for not doing it within that time, is not mandatory but directory; thatis, . . . in such instances 'shall' denotes simple futurity rather than acommand.") (citation and punctuation omitted). We note that the State Board andthe superior court found that there is no statutory penalty in either OCGA §§20-2-940 (f) or 20-2-1160 (a) for a local board's failure to timely do what thestatutes direct, but went on to find that each teacher had been substantiallyinjured by the Local Board's violation of its statutory duties and that, as aresult, the procedural requirements were mandatory under the circumstances. Seefootnote 18, infra.
See OCGA § 1-3-1 (c) ("A substantial compliance withany statutory requirement, especially on the part of public officers, shall bedeemed and held sufficient, and no proceeding shall be declared void for wantof such compliance, unless expressly so provided by law.") (emphasisadded).
We reject the underlying premise that OCGA § 20-2-1160 (a) fails to establishany penalty for a local board's failure to comply with the proceduralrequirements of the statute. As noted earlier, OCGA § 20-2-1160 (a) providesthat a decision of a local board "shall be binding on the parties, provided. . . that" the local board notifies the parties in writing of thedecision, with notice of their right to appeal and how to obtain such anappeal. (Emphasis supplied.) The consequence of a local board's failure tocomply with the notice directive is inherent in the statute's terms. Here, theplain meaning of "provided . . . that" is conditional, that is, that thebinding effect of the decision is conditioned upon the local board's compliancewith the notice requirements. Thus, when the converse situation exists, thatis, when a local board fails to notify the parties in writing of thedecision and their right to appeal to the State Board, with a clear descriptionof the procedure and requirements for such an appeal, then the decision of thelocal board shall not be binding on the parties. By providing that alocal board's failure to notify the parties in writing of a decision, in themanner 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 thathas undertaken the process of non-renewal.Because in these cases the Local Board failed to notify the teachers in writingof its decisions and of their right to appeal, as required, the statute plainlydictates that the decisions of the Local Board are not binding on the parties.Because the Local Board failed to comply with OCGA § 20-2-1160 (a), the StateBoard did not err in declaring that the Local Board's non-renewal process wasinvalid as to these teachers. See Thebaut v. Ga. Bd. of Dentistry, 235Ga. App. 194, 195 (1) (509 SE2d 125) (1998) (An agency decision or action willbe invalidated where the applicable statute explicitly states that such is thepenalty for noncompliance with the statute's directives.).
Because we have rejected the premise that OCGA §20-2-1160 (a) provides no penalty for a local board's failure to comply withthe statute's notice requirements, it follows that those requirements are notmerely directory in the absence of any resulting injury. Consequently, theLocal Board's argument that the State Board and the superior court erred infinding that the teachers were injured by its (the Local Board's) proceduralfaults is moot.
See also Whisenant v. Douglas County Bd. of Ed.,State Bd. of Ed. Case No. 1997-52 (March 12, 1998) Whisenant v. DouglasCounty Bd. of Ed., State Bd. of Ed. Case No. 1997-52 (March 12, 1998)(Noting that a local board is subject to mandatory requirements under OCGA §20-2-940 that, when a tribunal conducts a hearing, the local board must issue adecision within 10 days after it receives the transcript, the State Boardreversed a decision of a local board to terminate a teacher's contract becauseit violated the teacher's procedural due process rights when it failed to issueits decision within the time allowed.); Peddle v. Cobb County Bd. of Ed.,State Bd. of Ed. Case No. 1985-31 (November 14, 1985) (Holding that the 14-daytime limit imposed by OCGA § 20-2-942 (b) (2) for a local board to respond to atenured teacher's timely request for notice of the causes for the local board'sdecision not to renew the teacher's contract is mandatory, not discretionary,the State Board held that a decision of a local board not to renew a teacher'scontract was not binding, entitling the teacher to reinstatement, because thelocal board failed to give the teacher written notice of the causes fornon-renewal within 14 days after the teacher's request.).
Given the lack of any binding non-renewal decision at the time the StateBoard considered the teachers' appeals, and given the fact that the State Boarddid not review the sufficiency of the evidence adduced in support ofnon-renewal, it mighthave been preferable for the State Board to have simply declared that theteachers' contracts had been automatically renewed, rather than ruling that"the decision of the Local Board is reversed." We look to the substance of thedecisions of the State Board, however, and will not reverse on this basis.Accordingly, although the superior court erred in ruling that the State Boardlacked jurisdiction over the teachers' appeals, see Division 1, supra, thejudgments of the superior court that affirmed the decisions of the State Boardthat reversed the decisions of the Local Board not to renew the teachers'contracts are affirmed.
See OCGA § 20-2-1160 (e) ("Neither the state boardnor the superior court shall consider any question in matters before the localboard nor consider the matter de novo, and the review by the state board or thesuperior court shall be confined to the record. In the superior court, theappeal shall be determined by the judge sitting without a jury."); ChattoogaCounty Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d 629) (2010)(The State Board, the superior court, and the Court of Appeals all apply the"any evidence" standard of review to the record supporting the initial decisionof the Local Board.); Moulder v. Bartow County Bd. of Ed., 267 Ga. App.at 340 ("[W]hen reviewing decisions of a local board, both the State Board andsuperior court sit as appellate bodies applying an 'any evidence' rule to thefacts of the case.") (footnote omitted); Johnson v. Pulaski County Bd. ofEd., 231 Ga. App. 576, 577 (1) (499 SE2d 345) (1998) ('[T]he courts willnot interfere with a local board's administration of its schools unless theboard's actions are contrary to law or it appears that the board has grosslyabused its discretion.") (citation and punctuation omitted); Ransum v.Chattooga Bd. of Ed., 144 Ga. App. 783, 785 (5) (242 SE2d 374) (1978) (Thesuperior court applies the "any evidence" rule to a decision of the localboard. Under former Ga. Code Ann. § 32-910 (now codified as OCGA § 20-2-1160(e)), "[n]either the state board nor the superior court is authorized toconsider a matter de novo from the local board." The superior court acts as anappellate body and, if it finds that there existed evidence sufficient tosupport the decision of the local board, the superior court is bound to affirmit.) (citations and punctuation omitted).
The Local Board suggests that, if its non-renewaldecision "must be overturned, [then] an . . . incompetent teacher [will] bereturned to the classroom to continue to fail the students of Clayton County,solely because written notice of the [L]ocal [B]oard's decision was notdelivered to the teacher within ten days of the Board's vote to affirm therecommendation of the hearing tribunal to uphold the Superintendent'srecommendation to terminate the teacher." Not so. Under appropriate circumstances,a teacher under contract may certainly be relieved of classroom duties, as longas any new assignment does not constitute an unauthorized demotion. Hall v.Nelson, 282 Ga. at 445 (5).
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Judgments affirmed. Phipps, C. J.,and Branch, J., concur.
See also OCGA § 20-2-940 (a)(grounds for non-renewal).