CopyCited 18 times | Published | Supreme Court of Georgia | Nov 25, 2013 | 751 S.E.2d 827
Per curiam.
The United States District Court for the Northern District of Georgia has certified questions to this Court about the constitutionality of OCGA §
20-2-73, which provides in certain circumstances for the suspension and removal of members of local boards of education.1 Georgia law does not require that local school systems be accredited, but it permits school systems to seek accreditation from certain private accrediting agencies,2 and it acknowledges the importance of such accreditation.3 Pursuant to OCGA §
20-2-73, when an accredited school system “is placed on the level of accreditation immediately preceding loss of accreditation for school board governance related *350reasons,” the State Board of Education (the “State Board”) must consider...
...commend that the Governor “suspend all eligible members of the local board of education with pay,” and if the State Board so recommends, the Governor may suspend those members with pay and appoint temporary replacements to the local board.4 OCGA §
20-2-73 (a) (1)....
...A suspended member may petition the Governor for reinstatement, but if a suspended member does not do so within 60 days of suspension, the suspended member is permanently removed from office, and the temporary replacement serves out the term of the suspended member. OCGA §
20-2-73 (b)....
...rary replacement member shall become a permanent member and serve out the remainder of the term of the removed member or until the next general election which is at least six months after the member was permanently removed, whichever is sooner.
OCGA §
20-2-73 (c)....
...In December 2012, SACS placed the DeKalb School District on “accredited probation” for reasons related to the governance of the DeKalb County Board of Education (the “DeKalb Board”),5 which left the DeKalb School District only one step away from a loss of its accreditation. Pursuant to OCGA §
20-2-73, the State Board then convened proceedings to determine whether to recommend that the Governor suspend the six members of the DeKalb Board who were serving at the time SACS put the DeKalb School District on accredited probation.6 The State...
...l of whom were recommended to the Governor by a nominating committee.
In the meantime, Dr. Eugene P. Walker—the chair of the DeKalb Board and one of the suspended members — filed a lawsuit in the United States District Court, alleging that OCGA §
20-2-73 violates both the United States Constitution and Georgia Constitution, and seeking declaratory and injunctive relief.7 The District Court denied preliminary injunctive relief to Walker, finding that Walker had failed to show a substantial likelihood that he would prevail on his claim that the statute violates the United States Constitution. As to the Georgia Constitution, the District Court certified the questions to *352this Court, asking whether “OCGA §
20-2-73, or any portion thereof, violate [s] the Georgia Constitution.”8
In his briefs to this Court, Walker contends that OCGA §
20-2-73 violates the Georgia Constitution in several respects....
...First, he argues that the General Assembly has no authority under our Constitution to provide by statute for the suspension and removal at law of members of a local board of education, who are constitutional officers. Second, he contends that even if the General Assembly has such authority, OCGA §
20-2-73 unconstitutionally delegates the power to suspend and remove the members of a local board of education to a private accrediting agency. Third, he argues that OCGA §
20-2-73 unconstitutionally vests the power of removal in the Governor, thereby effectively giving the Governor the power to control and manage local school systems, in violation of the separation of powers. Fourth, he asserts that OCGA §
20-2-73 unconstitutionally denies due process to members of a local board of education. We are unpersuaded by these contentions, and we conclude that OCGA §
20-2-73 does not violate the Georgia Constitution....
...379, 380 (628 SE2d 589) (2006), and this presumption can be overcome only by a showing of a “clear and palpable” conflict with the Constitution. Dev. Auth. of DeKalb County v. State of Ga.,
286 Ga. 36, 38 (1) (684 SE2d 856) (2009). With respect to OCGA §
20-2-73, we conclude that the strong presumption of constitutionality is especially warranted, and it has not been overcome in this case by a showing of a “clear and palpable” conflict with the Constitution.
(a) For several reasons, our recog...
...See also Thornton,
270 Ga. at 635 (2) (“[C]ourts will not interfere [with the discretion of a local board] unless there has been a violation of law or an abuse of discretion.” (Emphasis supplied)). Again, no one in our Republic is above the law, and the law — OCGA §
20-2-73 — requires local boards of education to refrain from conduct that imperils the accreditation, if any, of the school systems that they control and manage....
...Const, of 1983, Art. VIII, Sec. V, Par. II, and providing that the power to fill vacancies on such boards may be exercised by the Governor or another public officer designated by law. See Ga. Const, of 1983, Art. V, Sec. II, Par. VIII. Finally, we note that OCGA §
20-2-73 is limited to the extraordinary circumstance of an imminent loss of accreditation, but whether to seek accreditation at all and from whom are questions that the law leaves in the first instance to local boards of education....
...at 747, and within the plenary legislative power, it coexisted with the power to otherwise provide by general law for the removal of local constitutional officers for cause. Moreover, removal of a public officer by a recall election is of an inherently different character than removal at law, such as removal pursuant to OCGA §
20-2-73....
...For these reasons, we cannot say that the recall provision of the Constitution of 1983 conflicts “clear[ly] and palpabl[y]” with the legislative power to provide by general law for the removal for cause of members of a local board of education.
(c) Finally, we consider whether OCGA §
20-2-73 is a proper exercise of the legislative power to provide by statute for the removal of members of a local board of education for cause, that is, for a failure to meet the qualifications of the office, for malfeasance in office, for misfeasance in office, or for nonfeasance in office....
...o one in particular, just an unfortunate result of well-meaning individuals who cannot or do not work well together. The imminent loss of accreditation is a failure of the board as a whole all the same. As part of the same 2010 law that enacted OCGA §
20-2-73, the General Assembly also enacted OCGA §
20-2-61 (a), stating: “Local board of education members should work together with the entire local board of education and shall not have authority as independent elected officials but shall only...
...Whether it is characterized as setting a qualification for continued service on the local board of education in the extraordinary circumstance of an imminent loss of accreditation, or whether it is characterized as providing for removal for malfeasance, misfeasance, or nonfeasance in office, we are satisfied that OCGA §
20-2-73 is a permissible exercise of the legislative power to provide for the removal for cause of members of local boards of education.
2. We turn next to the contention that OCGA §
20-2-73 unconstitutionally delegates the power to suspend and remove the members of a local board of education to a private accrediting agency. Citing Rogers v. Medical Assn, of Ga.,
244 Ga. 151 (259 SE2d 85) (1979), Walker asserts that OCGA §
20-2-73 is unconstitutional because it delegates to SACS — a private accrediting agency that is not accountable to the voters—the authority to remove elected members of local boards of education....
...public office and then designate a governmental appointing authority, it could not delegate the power to appoint to a private organization, noting that such an organization is not accountable to the people but to its membership. Id. at 153 (2). OCGA §
20-2-73, however, does not, in fact, delegate the power of suspension or removal to an accrediting agency....
...ion to suspend eligible members of the local board of education with pay “and, in consultation with the State Board of Education, appoint [s] temporary replacement members who shall be otherwise qualified to serve as members of such board.” OCGA §
20-2-73 (a) (1)....
...On the face of the statute and the record in this case, we see no unconstitutional delegation of the power to suspend or remove members of local boards of education to a private accrediting agency.19
3. We next consider the contention that vesting the power of suspension and removal in the Governor — as OCGA §
20-2-73 does — violates the constitutional separation of powers, insofar as the Constitution commits the control and management of local school systems to local boards of education....
...The Constitution provides that “[t]he legislative, judicial, and executive powers shall forever remain separate and distinct,” Ga. Const, of 1983, Art. I, Sec. II, Par. Ill, but this principle has no application to the questions presented in this case, considering that no one contends that OCGA §
20-2-73 vests legislative or judicial power in the Governor, an executive officer....
...In Division 1 (b) (i) of this opinion, we already have determined that the statute does not conflict with the constitutional commitment of the control and management of local school systems to local boards of education. As we held in Division 1, OCGA §
20-2-73 is an authorized exercise of the legislative power, and the Constitution confers upon the Governor the duty of faithfully executing the laws of the State....
...V, Sec. II, Par. VIII (a). The executive branch of government is authorized to carry laws into effect, including laws that regulate official conduct. We see no violation of the separation of powers in the statute.
4. Last, we consider whether OCGA §
20-2-73 denies due process to suspended and removed board members....
...titution.20 See Joiner u. Glenn,
288 Ga. 208, 209 (702 SE2d 194) (2010); Camden County v. Haddock,
271 Ga. 664, 665 (1) (523 SE2d 291) (1999). In this context, due process requires notice and an opportunity to be heard. Id. Both are afforded by OCGA §
20-2-73....
...an accrediting agency, after which the State Board conducts a hearing within a specified time, which may be continued at the discretion of the State Board upon a showing of good cause by the petition of a majority of members of the local board. OCGA §
20-2-73 (a). As amended, the hearing is required to be conducted as an open meeting at which testimony is required to be taken. Id. Even though these provisions were not expressly contained in the version of OCGA §
20-2-73 that was in effect at the time the hearing was conducted in this case, the record reflects *370adequate notice and an open hearing were provided to Walker and the other suspended members, and Walker cannot complain he was denied due process pursuant to the statute as it was applied to him....
...1, 4 (2) (b) (364 SE2d 854) (1988).
Before a member is removed permanently, however, the member is afforded the opportunity to petition for reinstatement, which triggers another hearing conducted after at least 30 days’ notice to the member. OCGA §
20-2-73 (b) and (c).21 This reinstatement hearing is an evidentiary hearing conducted by the Governor or his or her designated agent in accordance with the APA. OCGA §
20-2-73 (c)....
...at 4 (2) (b), involving a proceeding for temporary suspension from office, the “amount of due process required depends upon the circumstances at hand.” In this case, potentially involving a proceeding for permanent removal, the procedural due process afforded by the APA and OCGA §
20-2-73isconsiderablymoreextensivethanthatprovidedin the Eaves case for temporary suspension and affords a full and fair evidentiary hearing in which the member is permitted to address the merits of the issue presented — whether the member’s continued service on the board is more likely than not to improve the ability of the school system or school to retain its accreditation. Accordingly, we hold that OCGA §
20-2-73, both before and after the 2013 amend*371ment, adequately protects the procedural due process rights of a member who is temporarily suspended and subject to permanent removal.22
(b) About the contention that the statutory standard for rei...
...applied, the lawsuit in which the District Court has certified this question to us is not an action for judicial review of a decision of the Governor to reinstate or remove a member of a local board of education. The judicial review afforded by OCGA §
20-2-73 (c) is the proper forum in which to raise questions about the application of the standard for reinstatement, and we reserve judgment about any application of that standard to members of the DeKalb Board. That said, we note that OCGA §
20-2-73 permits a suspended member petitioning for reinstatement to present evidence relevant to his or her role in the school board governance issues cited by the accrediting agency as grounds for placing the school system on the level of accreditation immediately preceding loss of accreditation....
...As the people of Georgia seek to improve Georgia’s educational system, this Court must be mindful of the broad discretion granted by the Constitution to local school boards to manage and control local school systems. For all the reasons set forth herein, however, we conclude that OCGA §
20-2-73 is not an unconstitutional infringement upon the governing authority of local school boards, nor is it a violation of any other constitutional provision or right, as asserted by Walker in this case, and we answer the questions of the District Court in the negative.
Certified questions answered.
All the Justices concur, except Melton, J., who concurs in judgment only as to Division 4 (b).
In 2013, the General Assembly amended OCGA §
20-2-73, Ga. L. 2013, p. 763, but the amendment was enacted only after the events from which this case arose. Unless otherwise specified, when we refer in this opinion to OCGA §
20-2-73, we refer to the statute as it existed prior to the 2013 amendment.
Georgia law recognizes seven private accrediting agencies....
...Nevertheless, the DeKalb School District later moved to withdraw from the lawsuit, the District Court granted its motion, and the DeKalb School District has made no appearance in this Court.
More specifically, the District Court asked us to consider the following:
Does OCGA §
20-2-73, or any portion thereof, violate the Georgia Constitution, either generally or by virtue of an affirmative answer to either of the following specific questions:
(A) Does OCGA §
20-2-73 violate the Georgia constitutional doctrine that each school system shall be under the management and control of a board of education, the members of which shall be elected as provided by law? Or
(B) Does the potential removal of school board members, as provided for by OCGA §
20-2-73, exceed the General Assembly’s authority to enact general laws regarding local boards of education under Article VIII, Section V?
Although this fundamental principle runs throughout our Constitution, it is most clearly expressed in the...
...770 (243 SE2d 28) (1978), this Court disapproved dicta in Lewis concerning the constitutional status of county commissioners, but we noted that Lewis otherwise accurately identified the constitutional county officers.
240 Ga. at 773, n. 7.
At oral argument, Walker conceded as much, although he contends that OCGA §
20-2-73 cannot be fairly characterized as setting a “qualification” to hold office....
...I, Transcript of Meeting of June 30, 1981, p. 7 (emphasis supplied). Although there are other portions of the drafting history that suggest other conclusions, the drafting history as a whole is ambiguous, and it certainly evinces no “clear and palpable” conflict with OCGA §
20-2-73.
As amended in 2013, OCGA §
20-2-73 (a) now requires the State Board to hold an open and public evidentiary hearing....
...in other cases or to permanent removal proceedings in this or other cases are not presented for decision at this time.
As far as the possibility that an accrediting agency might threaten to withdraw accreditation based on arbitrary standards, OCGA §
20-2-73 (a) provides that the threatened or actual loss of accreditation must he “for school board governance related reasons,” and that phrase reasonably can be understood to limit application of the statute to threatened or actual loss of accreditation based on rational standards....
