FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 25, 2016
In the Court of Appeals of Georgia
A15A2172. ATLANTA INDEPENDENT SCHOOL SYSTEM v.
WARDLOW.
PHIPPS, Presiding Judge.
The Atlanta Independent School System1 (“AISS”) decided not to renew
Hezekiah Wardlow’s employment contract. The Atlanta Board of Education upheld
the non-renewal following a hearing, and Wardlow appealed to the State Board of
Education, which sustained that determination. Wardlow appealed the State Board’s
decision to the Superior Court of Fulton County. The superior court reversed the State
Board, and we granted AISS’s application for discretionary review. For reasons that
follow, we reverse.
1
Throughout the record, the Atlanta Independent School System is also
referred to as Atlanta Public Schools.
In reviewing a local school board’s termination decision, we – like the State
Board and the superior court – construe the record favorably to the local board’s
ruling and affirm if any evidence supports it.2 Neither this court nor the superior court
may substitute its judgment for that of the school board unless the school board’s
judgment violates the law.3 And we must presume that the school board’s actions are
reasonable, rather than arbitrary or capricious, unless clear evidence demonstrates
otherwise.4 Appellate review is deferential because
states and local authorities have a compelling, legitimate interest and
broad discretion in the management of school affairs. Moreover,
teachers and principals are considered professionals whose services are
affected with the public interest. It follows that state and local
authorities have a legitimate interest in securing the employ only of
those fit to serve the public interest.5
2
See King v. Worth County Bd. of Ed., 324 Ga. App. 208 (749 SE2d 791)
(2013); Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d
629) (2010).
3
King, supra.
4
Id.
5
Id. (citation and punctuation omitted).
2
So viewed, the record shows that in the Spring of 2009, Wardlow was
employed by AISS as the testing coordinator for the annual Criterion-Referenced
Competency Test (“CRCT”) and other standardized tests at Toomer Elementary
School (“Toomer”). The CRCT is a Georgia-mandated test that evaluates student
progress. As testing coordinator, Wardlow oversaw test security, assigned proctors,
and coordinated inspection of all completed tests before delivering them to the school
system’s overall test coordinator.
Following the 2009 CRCT, the Governor’s Office of Student Achievement
(“GOSA”) noticed anomalies in the Toomer test results, including a high number of
wrong-to-right erasures on the test papers. A statistical expert analyzed the data,
concluding that, given the number of “highly unusual wrong to right erasures,”
cheating had occurred at Toomer. GOSA subsequently issued a report, and based on
the report’s findings, AISS placed Wardlow on paid administrative leave. On May 21,
2012, the Georgia Professional Standards Commission (“PSC”) notified Wardlow that
it had probable cause to believe that he had been involved in testing irregularities at
Toomer, in violation of the Code of Ethics for Georgia educators. It thus
recommended that his teaching certificate be revoked. Two weeks later, on June 5,
2012, AISS informed Wardlow that his employment contract would not be renewed.
3
A termination hearing was held before an AISS tribunal pursuant to the Fair
Dismissal Act.6 The tribunal determined that a preponderance of the evidence
supported non-renewal. Specifically, it found that the recommended revocation of
Wardlow’s teaching certificate, as well as his implication in cheating allegations, had
caused the school superintendent to lose confidence in his ability to be an AISS
educator. It further concluded that these circumstances constituted “Other Good and
Sufficient Cause [under the Fair Dismissal Act] so as to justify non-renewal.” The
Atlanta Board of Education adopted the tribunal’s findings and affirmed.
Wardlow appealed to the State Board of Education, which found that the
evidence supported the loss-of-confidence determination. The State Board explained
that, in previous cases, it had upheld terminations where a local board lost confidence
in an educator based on a PSC recommendation. And in this case, statistical data
indicated that cheating had occurred on a test that Wardlow oversaw. It thus sustained
the local board’s decision. On further appeal, the superior court reversed. It found that
the State Board had acted arbitrarily and capriciously in relying on the PSC
recommendation, which it categorized as hearsay, and the GOSA investigation, which
6
See OCGA § 20-2-940 (e); see also Moulder v. Bartow County Bd. of Ed., 267
Ga. App. 339, 340 (599 SE2d 495) (2004) (“OCGA § 20-2-940 is referred to as
Georgia’s Fair Dismissal Act.”) (footnote omitted).
4
offered no admissible evidence that Wardlow had acted improperly. The superior
court also concluded that the State Board’s decision was “not based upon any
competent or probative evidence.”
We disagree. Pursuant to the Fair Dismissal Act, an educator may be
terminated for seven specified grounds, as well as “[a]ny other good and sufficient
cause.”7 The phrase “other good and sufficient cause” has not been specifically
defined by our courts or the legislature.8 Under these circumstances, the interpretation
given by the State Board – the governmental agency charged with enforcing the Act
– is entitled to great weight.9 As we have explained:
Where statutory provisions are ambiguous, courts should give great
weight to the interpretation adopted by the administrative agency
charged with enforcing the statute. Although the appellate court is not
bound to blindly follow an agency’s interpretation, we defer to an
7
OCGA § 20-2-940 (a) (8). The seven specified grounds are: (1)
incompetency; (2) insubordination; (3) wilful neglect of duties; (4) immorality; (5)
inciting, encouraging, or counseling students to violate a law, ordinance, policy, or
rule; (6) to reduce staff due to loss of students or program cancellation; and (7) failure
to secure and maintain necessary educational training. OCGA § 20-2-940 (a).
8
See Chattooga County, supra at 734 (b).
9
Moulder, supra.
5
agency’s interpretation when it reflects the meaning of the statute and
comports with legislative intent.10
On appeal, Wardlow argues that “good and sufficient cause” arises only when
there is proof that the educator actually engaged in intentional or wilful misconduct.
He cites several prior decisions of the State Board to support his position. In this case
and on other occasions, however, the State Board has interpreted “good and sufficient
cause” as permitting non-renewal when a superintendent loses confidence in an
educator’s ability to perform following a PSC revocation recommendation. This
interpretation is not unreasonable or arbitrary. Nothing in the statutory language
precludes it,11 and it comports with the legitimate interest State and local authorities
have in employing educators who are fit to serve the public interest.12
Moreover, the evidence supports a loss-of-confidence finding here. Statistical
analysis of wrong-to-right erasures at Toomer showed that significant cheating took
place on a test supervised by Wardlow. According to the AISS Deputy
10
Id. at 341 (punctuation and footnote omitted).
11
See OCGA § 20-2-940 (a).
12
See King, supra. See also Dukes-Walton v. Atlanta Independent School
System, __ Ga. App. __ (1) (Case No. A15A2296, decided March 11, 2016) (finding
that State Board’s interpretation of “good and sufficient” cause was authorized).
6
Superintendent for Curriculum and Instruction, when AISS learned that the PSC had
recommended revocation of Wardlow’s teaching certificate, the school district
became concerned that retaining him would raise issues of trust and integrity with
other employees, as well as parents and students in the community. Ultimately, the
PSC recommendation, as well as the cheating allegations that developed during
GOSA’s investigation, caused the district to lose “all confidence” in Wardlow’s
ability to serve as an AISS testing coordinator and educator.
The superior court dismissed evidence of the PSC recommendation and GOSA
investigative analysis, concluding that this evidence contained unproven, hearsay
allegations that should not have been considered by the tribunal or the local board.
The evidence, however, was not admitted at the hearing to prove that Wardlow
actually engaged in testing irregularities at Toomer. In fact, the hearing officer
instructed the tribunal that, other than certain statistical data,13 the allegations and
statements in the analysis and PSC recommendation should not be considered or
taken as fact.
Instead, the information was admitted – and relied upon by AISS – as evidence
that the cheating allegations and PSC revocation recommendation existed, causing the
13
Wardlow did not object to admission of the statistical data.
7
school district to lose confidence in Wardlow’s ability to function as a testing
coordinator. The evidence explained why AISS took the action it did. Namely, when
the cheating allegations arose and the PSC recommended revocation of Wardlow’s
teaching certificate, it determined that his ability to work in the district as an educator
had been undermined. The evidence was not hearsay.14
“[T]he superior court should not interfere with a local board’s administration
of its schools unless the board has grossly abused its discretion or acted arbitrarily or
contrary to law.”15 The evidence shows that AISS decided not to renew Wardlow’s
14
See Club S. Burlesque v. Carrollton, 265 Ga. 528, 530 (2) (457 SE2d 816)
(1995) (evidence of studies relied upon by city in crafting adult entertainment
ordinance was not hearsay; the evidence was admitted to show that the city relied
upon outside studies, not to prove the “veracity and competency of the studies
themselves or their authors”); Avery v. Colonial Pipeline Co., 213 Ga. App. 388, 391
(2) (444 SE2d 363) (1994) (“Where evidence is offered to establish the fact that
something was said, not the veracity of its content, it is admissible to explain conduct
and ascertain motives, not as hearsay, but as original evidence.”) (citation and
punctuation omitted). See also Walker v. State, 308 Ga. App. 176, 183 (3) (707 SE2d
122) (2011) (“An out-of-court statement is original evidence, not hearsay, when used
as proof that such a statement was made and not offered as evidence to prove the truth
of the matter asserted.”) (footnote and emphasis omitted); MARTA v. Allen, 188 Ga.
App. 902, 905 (2) (374 SE2d 761) (1988) (incident reports of prior robberies in
MARTA parking lot not hearsay where reports were offered to show incidents had
been reported to MARTA, not to prove that robberies occurred).
15
Clinch County Bd. of Ed. v. Hinson, 247 Ga. App. 33, 36 (1) (543 SE2d 91)
(2000) (footnote omitted).
8
teaching contract because the district lost confidence in his ability as an educator –
and particularly a testing coordinator – after the Toomer cheating allegations came
to light and the PSC sought to revoke his teaching certificate. Interpreting the Fair
Dismissal Act, the State Board concluded that such loss of confidence provided good
and sufficient cause for his termination. Neither this determination, nor the local
board’s non-renewal decision, was arbitrary or constituted a gross abuse of discretion.
Accordingly, the trial court erred in reversing the State Board’s decision affirming the
local board.16
Judgment reversed. Doyle, C. J., and Boggs, J., concur.
16
See Chattooga County, supra at 734 (b) (because competent evidence
supported local board’s “good and sufficient cause” determination, superior court
overstepped its bounds by reversing board’s decision); Moulder, supra at 346-347
(superior court erred in reversing State Board’s authorized interpretation of Fair
Dismissal Act).
9