STATE BOARD OF EDUCATION GEORGIA GILDA DAY Appellant, vs.

FLOYD COUNTY BOARD OF EDUCATION,

Appellee.

BRIEF OF THE APPELLANT: COMES NOW the Appellant Gilda Day (Ms. Day,) who was a tenured guidance counselor with the Floyd County Schools (FCS) when she was notified her contract would not be renewed for the 2013-14 school year because of a reduction in force (RIF). She appeals the decision of the Local Board showing the State Board of Education as follows. INTRODUCTION Before employees can be selected for a RIF, the Local Boards own policy has been devised in a manner which demands that their demonstrated competence and expertise is the primary consideration, over and beyond seniority. (Ex. S-1.) The mandates of the Local Boards policy prohibited Ms. Days non-renewal from being based solely or primarily on the length of her seniority. Likewise, under the Fair Dismissal Act, the Georgia Legislature recently enacted O.C.G.A. 20-2-948 stating, regarding RIF plans, that: [a] local board of education shall not adopt or implement a policy that allows length of service to be the primary or sole determining factor when implementing a reduction in force. The local board shall consider as the primary
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factor the performance of the educator, one measure of which may be student academic performance. (O.C.G.A. 20-2-948, enacted May 2nd, 2012.) Together, Georgia fair dismissal law and the Local Boards mandated policy of prohibiting RIFs from being based solely or primarily on length of service make sense, especially from a public policy perspective, because an indisputable goal of education is to provide students with an excellent education by hiring and retaining the best teachers possiblenot just those who have been around the longest in a particular system. In this case, the Superintendent violated GBKA policy which states that factors to be considered by the Superintendent shall include first and foremost the professional expertise, effectiveness and performance and only where demonstrated competence and expertise are equal shall seniority be considered. (Ex. S-1.) Unfortunately however, the Superintendent implemented a RIF plan that was nothing more than an end around, to reward local seniority over demonstrated excellence. The Superintendents conduct caused Ms. Day, one of the highest qualified educators, to be RIFd with absolutely no cross comparison of her demonstrated competence and expertise to that of her peers as required. And to make matters worse, Ms. Day lost her job because of an alleged, impending 10 million dollar deficit, a deficit that according to uncontroverted expert testimony, never existed (and will not exist next year)based on the most basic and accepted accounting principles. (R-195-213.) In fact, as Ms. Day suffers her loss of employment, the evidence will show that the Superintendent has admitted FCS is under budget, i.e., doing well, and will be doing well next year. (R-100.) Moreover, the Superintendents handling of the RIF was arbitrary and capricious, evidenced by the fact that he deliberately violated numerous obligations under Floyd County Schools Charter Agreement by excluding all local school governance in his decisions. (R-113,

114.) To say the least, Ms. Day has suffered an unlawful travesty, which this State Board should REVERSE. FACTS: A. FCS Had A Non-Discretionary Duty To Ensure That RIF Decisions Are Not Based Solely Or Primarily On Length Of Service

Floyd County Schools (FCS) as a charter system adheres to the Georgia legal code1 under the Fair Dismissal Act, and has adopted a RIF Policy (GBKA) that expressly states that any RIF plan shall include, first and foremost, the professional expertise, effectiveness and performance of individual employees as reflected in annual evaluations and other evaluations as well as administrators observations and knowledge. (Ex. S-1, S-5.) The policy goes onto to state that only when [d]emonstrated competence and expertise are equal among employees, then and only then shall other factors such as tenure status, level of certification, and length of continuous service with Floyd County Board of Education be considered. (Ex. S-1.) FCS as a charter system affords their tenured educators with the right to fair dismissal under Georgia law. (Ex. S-5.) Under fair dismissal laws in Georgia, O.C.G.A. 20-2-948 states: [a] local board of education shall not adopt or implement a policy that allows length of service to be the primary or sole determining factor when implementing a reduction in force. The local board shall consider as the primary factor the performance of the educator, one measure of which may be student academic performance. Notably, FCS adopted a policy that complies with the language of this statute and mandates that the applicability of GBKA Policy shall apply to all. (Ex. S-1.)

See also FCS Board Policy GBN.

B.

The Superintendents Plan Violated GBKA With An End Around Of Its Own Policy By Inherently Failing To Distinguish Demonstrated Competence And Expertise Between Ms. Days Peer Group

1. The Unlawful Process The Superintendent submitted a RIF Plan to its Board. (Ex. S-3.) Foremost, and building on GBKA policy prohibition against basing non-renewals on length of service, the express language of FCSs RIF plan itself provides an admission that criteria primarily based on performance of the individual employee must be used. (Ex. S-3.) The Plan had three stages, to allegedly differentiate between all employees. (Ex. S-3.) The first stage picked out employees with unsatisfactory annual evaluations. The second stage picked out those who had received a basic evaluation score on two of the last three annual evaluations or PDP. (Ex. S-3.) The problem, as a matter of fact, with the first two stages is that not one of the 24 counselors, including Ms. Day, met the criteria of the first two stages: so it was impossible for FCS to determine demonstrated competence and expertise, because the criteria of the first two stages flat-out did not apply to Ms. Days peer group. (R-63, 64, Superintendent admitting that not one of 24 counselors met the criteria of the first two stages of his RIF plan, so he placed all tenured counselors in a group to determine RIF status by seniority.) In fact, the Superintendent admitted he did not group Ms. Day with her peers for analytical purposes until all counselors reached the third stagethe first and only time Ms. Day and her peers were placed together. (R-60, explaining that after stages one and two, Ms. Day went down into a box or the bucket from there, she was classified into the group of counselors.) That means, as a matter of admitted fact, that once Ms. Days peer group was placed side-by-side for comparison, instead of using objective criteria that complies with its own policy to determine demonstrated competence and

expertise amongst Ms. Day and her colleagues, FCSs plan irrationally skipped that mandatory stage of the process, to determine RIF status of Ms. Day (and her entire peer group) based solely on seniority: Ms. Days lack of seniority, as compared to other counselors, resulted in her being RIFd or non-renewed for the 2013-2014 school year. (See S-5, explaining that Ms. Days lack of seniority caused her to be RIFd.) In addition, seniority was not based on overall seniority; instead, the Superintendent restricted overall seniority to length of service to local Floyd County. C. Ms. Days Demonstrated Competence and Expertise Is Not Equal To The Majority Of Her Peers Who Retained Their Job Under The Unlawful RIF Plan

Had the Superintendent followed policy by ensuring he determined demonstrative competence and expertise amongst Ms. Day and her peer group, the following is what he would have discovered regarding FCSs requirement that all evaluations of Ms. Day and her peer group shall include, first and foremost, the professional expertise, effectiveness and performance of individual employees as reflected in annual evaluations and other evaluations as well as administrators observations and knowledge. First, regarding annual evaluations, on a scale of 1 to 4, with a score of 4 representing distinguished and a score of 3 representing merely proficient, Ms. Day always received scores of perfect 4s, distinguished. (See R-177.) Significantly, the Superintendents selection committee admitted that they never compared these annual evaluation scores. (T-154, 226). Ms. Day has an educational specialist degree, whereas many of her peers have a master degree, or less. But again, the Superintendent admitted that they never compared the subject degrees. (T-153, 225-228.) Indeed, in reviewing the chart, in addition to examining the evidence and witness testimony presented at the hearing, it is clear that Ms. Days demonstrated competence and professional expertise greatly surpassed her peers as she stood head and shoulders above many if not most all of the other 24 guidance
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counselors. (Ex. T-20, R-256.) She was one of the few who possessed a total of 34 years of experience in education, 19 years total in guidance counseling where some of her peers who were not RIFd had only had 5 years of expertise in guidance counseling. (Ex. T-20, R-256.) She held a master degree and educational specialist degree both in the areas of her profession having graduated with a perfect 4.0 GPA in the highest degrees attainable as a guidance counselor, where some of her peers only held master degrees and not even in their particular field. (Ex. T-20, R-256.) On top of the above, the Superintendent admitted that he failed to compare effectiveness of guidance counselors to any kind of performance criteria, such as graduation rates. (R-153157.) Had he done so, he would have discovered that Ms. Day achieved remarkable results with our graduation rate rising from 66% to 76% in a 4 year span. (Ex. T-26 for statement by FCSs Chief of Operations.) Relevantly, raising graduation rates, such as Ms. Day did, is an expressed goal of FCS Charter. (Compare R-157, with Ex T-27 pp. 11-29, for performance goals of FCS.) Regarding observations and knowledge, Ms. Days current Principal compelled him to inform Ms. Day that even if he had to put 50 names on a [RIF] list, I would never have put yours on this list.2 Significantly, the Principals high-praise statement about Ms. Day should have been considered because he was a member of her Local School Governance Team, and as such required to provide input according to the Charter. Furthermore, the Chief of Operations for

See Transcript p. 264. This must be considered as evidence because the hearing officer did not sustain Mr. Duggans objection and allowed Ms. Day to complete her testimony. Also pursuant to Georgias new evidence code O.C.G.A. 24-2-801 (d)(2)(d) excludes from hearsay a statement by a partys employee concerning a matter within the scope of employment made during the existence of the relationship. Principal Hubbard made this statement to Ms. Day within the scope of employment, stating it while he was informing her that she would be nonrenewed as a result of the RIF.
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Floyd County described her as one of the most trusted staff members, and that her professionalism set her apart.(Ex. T-26.) As a matter of admitted testimony, the Committee failed to do any cross comparison of Ms. Day and her peers, because the Superintendent did not place Ms. Day and her peers side-byside until the final stage of the RIF process, then once grouped together, the only comparison made was that of seniority; said differently, once grouped together, the Superintendent has admitted that contrary to the express terms of its RIF Plan, GBKA Policy, and Georgia law, the Superintendent didnt even attempt to determine the demonstrated competence and expertise of the subject counselors by evaluating, as FCS policy required, first and foremost, the professional expertise, effectiveness and performance of individual employees as reflected in annual evaluations and other evaluations as well as administrators observations and knowledge. (S-1.) On top of the Superintendent violating FCS policy, he also violated the relevant Charter Agreement. D. The Superintendent Violated The Charter Agreement In A Manner That Renders Ms. Days Non-Renewal Unlawful A charter system must comply with its obligations and duties under the system charter. See O.C.G.A. 20-2-2060 et seq. Here, the Charter that applies to FCS expressly states that Each System Charter School shall utilize a governing council as its governing body . The Governing Council shall maximize school level governance, which is defined as decision making authority in personnel decisions, financial decisions, curriculum and instruction, resources allocation, establishing and monitoring the achievement of school improvement goals, and school operations. (Ex. T-27 of Transcript.) That established, instead of respecting the local school governments authority over decision making in personnel decisions--especially a RIF process that involved over a hundred educators--the Superintendent acted unilaterally with
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no input from the LSGT. (R-113-114.) Indeed, the Superintendents written statement that future [not present] personnel decisions will be done in a collaborative manner provides objective evidence that the Superintendent deliberately excluded the LSGT. (Ex. T-24 of Transcript, stating [p]rincipals will have a very limited role, if any, regarding personnel decisions. Future [not present] personnel decisions will be done in a collaborative manner.)With that in mind, the Superintendent admitted he did not utilize Local School Governance Teams for any purpose regarding his decision to RIF. (R-113, 114.) The Charter Advisory Committee (CAC) responded, emphatically, by voting unanimously that the Superintendents conduct of completely excluding local school governancebefore RIFing 120 educatorsviolated the Charters express terms. (See Ex. T-17 for CAC meeting minutes and email from the State Department of Education Charter Division informing Superintendent that CAC had voted unanimously that the Superintendent violated several provisions of the controlling Charter Agreement by failing to use local school governance and would be held accountable.) E. FCS Had No Need Under Controlling Policy And Law To Invoke A RIF

As a matter of fact, based on law and policy, FCS shall consider a reduction in the professional work force to include the abolition of job positions the reduction of the number of employees, as a response to the following: a. A decrease in student enrollment in the Floyd County School District which would necessitate a decrease in personnel or a discontinuation of programs; b. A change in state or local curriculum, personnel, or financial practices which would necessitate a change in or elimination of programs or services provided by the Floyd County School District;
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c. A lack of funding for programs, personnel, or services provided by the Floyd County School District; d. A loss of funding due to a reduction of state funds, reduction in local fund, or other funds that make necessary a reduction in spending; or e. Any reasonable reorganization plan to achieve a more efficient school district. [See Ex. S-1] 1. CAC Finds That Superintendent Violated Charter Agreement Regarding Decision To RIF The Superintendent stated to Ms. Day that he believed the evidence will show that for fiscal and budgetary reasons that a RIF was required . (Ex. S-5). Foremost, regarding the initiation of the RIF, the Charter Advisory Committee unanimously voted that the Superintendent violated the Charter Agreement because the Superintendent conducted a closed, internal process to determine that a budget shortfall was impending, that a RIF was the solution needed, and who would be RIFd and howand that FCS did not share in advance the news of an impending budget shortfall with the local school governance teams established as part of Floyd Countys Charter System or with the Local School Coordinating Council, nor did FCS request their advance input on how to best reduce spending to the level required to balance the budget. (Ex. T-17.) In fact, the Superintendent admitted he did not utilize the LSGT for any purpose regarding his decision to RIF. (R-113, 114.) 2. The Superintendent Had No Budget Committee When Determining An Alleged Deficit Relevantly, on top of violating the Charter Agreement by not involving the LSGT in his decision to implement a RIF, the Superintendent admitted he did not refer to a budget committee as part of any budgetary decision he made regarding the RIF and that there has not been an

established budget steering committee since I took my office. (R-103.) Instead, the individuals who determined whom to RIF, in direct violation of the Charter Agreement, were comprised of the Superintendent, April Childers (data analyst) and Knox Wilson (HR Director). (R-130, 135, 217, 224, 225.) Now, without any budget committee, and no legally required assistance from the LGST, when asked why he anticipated a loss of funding, the Superintendent provided no objective evidence, just illogical reasoning based on him being a self-proclaimed statistician and data guy. (R-48, 49.) 3. Uncontroverted Expert Testimony Demonstrates That Superintendents Prediction Of 10M Deficit and Loss of State Funding Was Not Supported By Objective Evidence At The Time Of The Decision To RIF Ultimately, to support his decision to RIF, the only evidence submitted by the Superintendent was an alleged loss of state funding. The problem with that reason is that on cross examination, the Superintendent admitted he was aware that (1) the reduction in state funding was actually not going to occur and that (2) the Governor had exempted K-12 from three percent cuts. (R-98.) In actuality, the Superintendent admitted FCS is under budget, i.e. doing well financially. (R-100.) Just as significant, however, is that expert testimony demonstrates there was no objective, credible basis for the Superintendent to ever rationally predict a 10 million dollar (or any) deficit. At the hearing Ms. Days expert demonstrated: 1. Objective evidence demonstrates there is no way that a 10 million dollar deficit should have been predicted based on standard accounting principles; 2. Objective evidence demonstrates that applying fundamental principles of accounting would have easily predicted that FCS faced no deficit, at all, in the present, or future;

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3. Basic accounting principles demonstrated that FCS had a healthy financial status, at the time the Superintendent proclaimed an erroneous 10M deficit, and thus no loss of jobs was justified based on a deficit. [R-195-213.] Notably, the Superintendent presented no evidence to counter Ms. Days expert opinion. In fact, on cross examination by opposing counsel, Ms. Days expert clarified that there simply is no objective reason to expect a reduction in state funding for next year. (R-210-212.) Again, the Superintendent presented no evidence to counter this expert testimony. PROCEDURAL HISTORY: Shortly after he took office, Superintendent McDaniel informed the people of Floyd County Schools that a RIF would be taking place. (Ex. T-23.) The Georgia Charter Advisory Committee subsequently voted unanimously that Superintendent McDaniel was in breach of the charter agreement by his failure to consult the local school and system governance counsels concerning the RIF. (Ex. T-17.) In response to an invitation from the Georgia Department of Education Charter Divisions request for feedback, Ms. Day filed with the State a petition on behalf of herself individually and 119 other similarly situated educators to hold the Superintendent in breach of the charter agreement. Additionally, she filed a lawsuit requesting injunctive relief for violations of the Georgia Open Records Act because the Superintendent refused to provide the Open Records documents she had been forced to pay $5000.00 for prior to her Fair Dismissal Hearing.3 The hearing was ultimately held on May 10, 2013 and it remains in dispute whether the open records request was ever fully complied with. After Ms. Days hearing

See Plaintiffs Reply Supplement to Motion to Dismiss With Prejudice as attached to Pretrial Motion to Dismiss.
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and approximately 33 minutes of deliberation, the Local Board affirmed the recommendation of the Superintendent to non-renew her contract, a decision of which Ms. Day now appeals. ENUMERATION OF ERRORS: I. It was error for the Local Board to affirm the recommendation of the Superintendent to non-renew Ms. Days contract due to the fact it violated Local Board policy and Georgia law, and thus the choice was arbitrary, capricious, and violated due process under fair dismissal; II. It was error for the Local Board to affirm the recommendation of the Superintendent due to the fact it was an arbitrary and capricious decision, contrary to the weight of the evidence which did not support the basis for non-renewal; and III. It was an error for the Local Board to affirm the recommendation of the Superintendent due to the fact District denied Appellant her due process rights by failing to consider proper issues and admit key evidence. STANDARD OF REVIEW: A local board's decision should not stand if there has been an abuse of discretion or the decision is so arbitrary and capricious as to be illegal. See Ransum v. Chattooga County Bd. of Educ., 144 Ga. App. 783, 242 S.E.2d 374 (1978); Antone v. Greene County Bd. of Educ., Case No. 1976-11 (Ga. SBE, Sep. 8, 1976)." Roderick J. v. Hart Cnty. Bd. of Educ., Case No. 1991-14 (Ga. SBE, Aug. 8, 1991).

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ARGUMENT AND CITATION OF AUTHORITY I. It Was Error For The Local Board To Affirm The Recommendation Of The Superintendent To Non-renew Ms. Days Contract Due To The Fact It Violated Local Board Policy And Georgia Law, And Thus The Choice Was Arbitrary, Capricious, and Violated Due Process Under Fair Dismissal. In this section, Ms. Day will demonstrate that using this Boards precedent and Georgia law to interpret the mandatory language of the GBKA Policy demonstrates that Ms. Days protected fair dismissal rights were violated by the Superintendent because he based Ms. Days non-renewal solely or primarily on the length of her service. Then, Ms. Day will demonstrate that when the Superintendent decided a RIF was required, there existed no objective, rational evidence to support his contention that FCS faced a 10 million dollar budget deficit, and no objective evidence indicating a loss of students, or loss of state funding. And finally, Ms. Day will highlight the inequity of her losing her job under a RIF program that violated FCSs Charter Agreement. 1. It Violated GBKA Policy And Georgia Law For Ms. Day To Be Non-Renewed Based Solely Or Primarily On Length Of Service Based On Her Rights To Fair Dismissal. Originally,[t]he Fair Dismissal Act [encompassed] OCGA 202940 through 202 947. West v. Dooly County School District 316 Ga. App. 330 (2012). On May 2nd, 2012, the Legislature enacted O.C.G.A. 20-2-948 to the Act, which states: A local board of education shall not adopt or implement a policy that allows length of service to be the primary or sole determining factor when implementing a reduction in force. The local board shall consider as the primary factor the performance of the educator, one measure of which may be student academic performance. Importantly, FCS adheres to Georgia fair dismissal laws as they relate to separation of

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certified personnel from employment with the school system as part of their policies.4 (Ex. S-5, S-1.) Relevantly, in the context of employment law, local board policies can create property interest rights. See Thomas v. Lee, 286 Ga. 860, 863 (2010) (stating, [p]rotected property interest in continued employment can arise from policies and practices of an institution); see Atlanta School Dist. v. Dowling, 266 Ga. 217, 218 (1996) (reasoning that an education employee was able to successfully challenge her discharge through state court as a result of rights granted under either state statutes or local board policies.) FCS has already agreed to afford its tenured employees the right to fair dismissal and its policies adhere to Georgia laws regarding separation of such. (Ex. S-5, S-1.) Under fair dismissal laws, the Georgia legislature has stated: [a] local board of education shall not adopt or implement a policy that allows length of service to be the primary or sole determining factor when implementing a reduction in force. The local board shall consider as the primary factor the performance of the educator, one measure of which may be student academic performance. See O.C.G.A. 20-2-948. As a result of this legislative enactment which occurred on May 2nd, 2012,

Under the Fourteenth Amendment of the United States Constitution, Ms. Day has a civil right to procedural due process. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 57172, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). Under the Georgia charter statute, charter schools and systems are subject to all civil rights laws that protect both educators and students. See O.C.G.A. 20-2-2065 (b)(5). Notably this does not just protect educators from civil rights laws under the federal government but also all state, and local rules, regulations, court orders, and statutes relating to civil rights 2013 Georgia Laws Act 335 (H.B. 283)). Thus the right of due process under the Fair Dismissal Act applies. Georgia law, under the Fair Dismissal Act, creates this due process right and property interest in continued employment for tenured teachers that may not be denied without granting certain substantive and procedural due process rights. O.C.G.A. 202942(b)(1) provides that: [a] teacher who accepts a school year contract for the fourth consecutive school year from the same local board of education may be demoted or the teacher's contract may not be renewed only for those reasons set forth in subsection (a) of Code Section 202940. E.g. Hatcher v. Bd. of Pub. Educ. & Orphanage for Bibb Cnty., 809 F.2d 1546, 1550 (11th Cir. 1987). Nevertheless, FCS has agreed to afford Ms. Day the right to fair dismissal under Georgia law so this is not a disputed issue.
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Local Boards may no longer use seniority as the primary factor in determining a Reduction in Force, and this mandate is echoed by the mandatory language of GBKA Policy. FCS indisputably adopted the right to the fair dismissal for its tenured employees and affirmed that their charter system will adhere to Georgia laws concerning fair dismissal. (Ex. S5, S-1.) Their GBKA Policy requires that any RIF plan shall include, first and foremost, the professional expertise, effectiveness and performance of individual employees as reflected in annual evaluations and other evaluations as well as administrators observations and knowledge. Relevantly, regarding the term shall that is found both in O.C.G.A. 20-2-948 and GBKAs Policy, the word is a term of commandthe import of the language is mandatory. State v. Collier, 279 Ga. 316, 317 (2005). Furthermore, GBKA Policy mandates thatonly after determining the demonstrated competency and expertise of Ms. Day and her peer group could other criteria such as length of service be considered, mindful that the ordinary meaning of the operative word only is solely. Blacks Law Dictionary, p. 751 (6th Ed. 1991). In sum, controlling law applied to the express language of GBKA policy requires that the Local Board not non-renew Ms. Day based primarily or solely on her length of service. This rational is supported by this Boards opinion in Lisa Parker supra, which reasoned that annual evaluations and observations and knowledge must be used to determin[e]. . .whether there was equality in professional expertise, effectiveness and overall job performance whenas in this caseGBKA policy states that a RIF plan shall include, first and foremost, the professional expertise, effectiveness and performance of individual employees as reflected in annual evaluations and other evaluations as well as administrators observations and knowledge, Lisa Parker supra, at 5.

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2.

The Superintendent Violated Ms. Days Rights Under Fair Dismissal By Non-Renewing Her Based Solely or Primarily On Length Of Service

Having established that GBKA Policy and Georgia law concerning fair dismissal mandate that a tenured employee should not be RIFd based solely or primarily on length of service, the Superintendent violated that mandate. Foremost, on top of controlling GBKA Policy and Georgia law mandating the determination of demonstrated competency and expertise before considering length of service, the RIF plan itself provides an admission that criteria primarily based on performance of the individual employee must be used. With that in mind, the Superintendent failed to determine the professional expertise, effectiveness, and overall job performance of Ms. Day and her 23 colleagues. Parker supra. He admitted he didnt compare the guidance counselors overall annual evaluation performance scores to one another to differentiate between effectiveness and performance. (R-154.) For example, if a guidance counselor made all 4s (4 = distinguished) on her annual evaluation scores, her effectiveness and performance was not evaluated (as required by the policy) compared to a guidance counselor simply getting all 3s which is a score for proficient. Id. Simply put, the A+ outstanding guidance counselors like Ms. Day were not compared to the C + guidance counselors, i.e. no assessment was made to determine who were the most distinguished counselors for effectiveness and performance, compared to those who were scored proficient. (R-154.) Had he done so, he would have seen that Ms. Day only received perfect scores of 4s, the most and highest distinguished possible. (See R-177.) The Superintendent admits he never compared or even evaluated Ms. Days professional effectiveness on improving graduation rates, which is an expressed goal of the Flo yd Countys Schools charter. (Compare, R-153-157, for admission, with Ex. T-26 for statement by FCSs Chief Operator and Ms. Days former supervisor, stating Gildas love of and dedication of our
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students was evident from the beginning and our Freshman Academy showed remarkable results with our graduation rate rising from 66% to 76% in a 4 year span.) In fact, had the Superintendent decided to collaborate about educators losing their jobs now instead of the future, the Superintendents current Chief of Operations Sam Sprewell could have also told him that Ms. Day was one of the most trusted staff members, and that her professionalism set her apart. (Ex. T-26.) The Superintendent further admits he never compare educational degrees, of which Ms. Day had the highest level of training in guidance counselor than many of her colleagues who did not get RIFd. (Compare R-153, 225-228, for admission, with Ex. T-20.) He admitted he didnt compare the professional expertise of the guidance counselor by considering their training and education in the field of guidance counseling. (R-153.) Furthermore, the Superintendent also admitted he did not assess their effectiveness or performance as guidance counselors. (R-158.) As far evaluating performance based on observation and knowledge, foremost, the Superintendent admits he never personally observed Ms. Day. He also admits he never attempted to gain any knowledgeoutside of her length of servicefrom her supervisors or principal about her demonstrated competency and expertise. (Compare R-157, admitting he never attempted to obtain any knowledge from Ms. Days principal, with R-264, for Principals statement that even if he had to put 50 names on a [RIF] list, I would never have put yours [Ms. Days] on this list,5 with R-152-157, Superintendents admission that he did not even attempt to get knowledge and observations from the central office administrator who oversees all

See R-264. This must be considered as evidence because the hearing officer did not sustain Mr. Duggans objection and allowed Ms. Day to complete her testimony. Also pursuant to Georgias new evidence code O.C.G.A. 24-2-801 (d)(2)(d) excludes from hearsay a statement by a partys employee concerning a matter within the scope of employment made during the existence of the relationship.
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guidance counselors.) The Superintendent deliberately excluded the people who could have afforded Ms. Day a lawful evaluation, evidenced by his written admission that future [not present] personnel decisions will be done in a collaborative manner, a statement that rationally implies he never had any intention of undertaking a trueand mandatorycollaborative effort regarding educators losing their jobs in violation of both the GBKA Policy and Charter. (Ex. T24.) Moreover, the Superintendent admitted there was no comparison to determine how many years of professional expertise each guidance counselor had in working as an actual guidance counselor. (R 155-156.) For example, Ms. Day holds an entire thirty four years in education and nineteen years in counseling experience, compared to some guidance counselors who barely held five years of professional expertise in counseling yet notably were not RIFd. (R-186, R- 155 and Exs T-19 and T-20.) Compared to counselors that had only been a guidance counselor for five years, Ms. Day had on average four times as much professional expertise. (Ex. T-20 and R-186, 256.) In analyzing the entire list, Ms. Day was at least in the most conservative estimate, within the top ten percent if not much higher. (R-259-260.) Whereas, at least nine other guidance counselors solely held master degrees, no teaching experience, and far less professional training in guidance counseling, Ms. Day held teaching experience, two master degrees, one specifically in guidance counseling and then graduated with a perfect 4.0 achieving the highest degree attainable in her field, achieving numerous accomplishments that included raising graduation rates and creating new programs. (R-259-260); (R-256 and Ex. T-20.) The Superintendent did not even attempt to comply with GBKA policy by making a cross comparison of Ms. Day to her peer group which would have shown that Ms. Day stood head and shoulders above her peers in demonstrated competence and professional expertise. (Ex. T-20 and R-186, 256.)

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In sum, the combination of the Superintendent doing virtually nothing to determine Ms. Days demonstrated competence and expertise with the fact that once he grouped Ms. Day with her peers for the first time the Superintendent based non-renewal solely on seniority, demonstrates that indeed the Superintendent violated GBKA policy and Georgia law by basing non-renewal solely or primarily on her length of service. Consequently, the local boards affirmation of this conduct was non rational. Parker supra (reversing local board when decision was arbitrary, defined as non-rational.) Under Georgia law, local boards may not operate arbitrarily. Terry v. Houston Cnty. Bd. of Educ., 178 Ga. App. 296, 297, 342 S.E.2d 774, 775 (1986). And a non-renewal must be reasonable in light of all the circumstances. Chamberlain v. Wichita Falls Indep. Sch. Dist., 539 F.2d 566, 569 (5th Cir. 1976). II. It Was Error For The Local Board To Affirm The Recommendation Of The Superintendent Due To The Fact It Was An Arbitrary And Capricious Decision, Contrary To The Weight Of The Evidence Which Did Not Support The Basis For Non-Renewal. 1. The Necessity Of The RIF Was Not Proven At Ms. Days Fair Dismissal Hearing.

A RIF must be justified by necessity. Hinton v. Warren Cnty. Bd. of Educ., Case No. 2004-19 (Ga. SBE, Dec. 2003). The essential question is whether a reduction in force program is required. Id. O.C.G.A. 20-2-940(a)(6) permits the termination of a teachers contract [t]o reduce staff due to loss of students or cancellation of programs. Also, and significantly, the burden of proof is on the Local Board in any hearing conducted for the purpose of not renewing an employee's contract. O.C.G.A. 20-2-940(e)(4); Stephen A. Carruthers v. Monroe County Board of Education Case No. 1996-36 (Ga. SBE, Sept. 1996). In this case, the Superintendent provided zero evidence of a decrease in student enrollment or cancellation of programs at the hearing. Furthermore, the Superintendent failed to

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provide any objective evidence of a lack of funding for programs, personnel, or services provided by Floyd County School District as claimed as the reason for the RIF. (R-48.) For example, the Superintendent stated there was a deficit resulting from the reduction in state funds for next year. Ms. Days expert, however, refuted this claim, with no objection from the Superintendent. Ultimately, to support his decision to RIF, the only evidence submitted by the Superintendent was an alleged loss of state funding. The problem with that reason is that on cross examination, the Superintendent admitted he knew that (1) the reduction in state funding was actually not occurring and that (2) the Governor had exempted K-12 from three percent cuts. (R-98-99.) And notably, the Superintendent presented no evidence to counter her expert witness opinion. On cross examination by opposing counsel, Ms. Days expert clarified there simply is no objective reason to expect a reduction in state funding for next year. (R-210 through 212.) (R-98.) Indeed, the Superintendent claimed to be facing a 10M budget deficit. However, Ms. Days uncontroverted expert testimony demonstrates that there was no objective, credible basis for the Superintendent to ever rationally predict a 10 million dollar (or any) deficit. At the hearing, Ms. Days expert provided clear and convincing evidence that: a. Objective evidence demonstrates there is no way that a 10 million dollar deficit should have been predicted based on standard accounting principles; b. Objective evidence demonstrates that applying fundamental principles of accounting would have easily predicted that FCS faced no deficit, at all, in the present, or future; c. Basic accounting principles demonstrated that FCS had a healthy financial

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status at the time the Superintendent proclaimed an erroneous 10M deficit, and thus no loss of jobs was justified based on a deficit. [R-195 through 213.] Notably, the Superintendent presented no evidence to counter Ms. Days expert opinion. To the absolute contrary of any deficit, the Superintendent admitted FCS is doing well under-budget. (R-100.) So Ms. Day is without a job because of a RIF that had no basis in objective evidence and a school system which has an extremely healthy financial forecast for this year, and next. In sum, the Superintendent presented zero evidence to support the actual necessity of a Reduction in Force and did nothing to impeach, rebut or refute the financial expert for Ms. Day who testified that in reviewing all the information available, there was absolutely no financial deficit as claimed (R-197). And that with a conservative analysis, FCS should still leave Fiscal Year 13 with a cash balance of $9.2 million dollars (R-205). And that in looking at Fiscal Year 14, it is more likely than not that Floyd County Schools would continue to remain in good health, without a budget deficit as claimed, with, I might add, no loss in jobs. (R-210.) Based on the above, the Superintendent failed to prove the necessity for a RIF because the Superintendents speculation was simply not based on any objective evidence, or rational decision makingsimply speculation in an irrational manner, with no objective evidence should not be enough to justify implementing a plan that results in job loss for potentially hundreds of educators. Stephen A. Carruthers supra; Hinton v. Warren Cnty. Bd. of Educ., Case No. 2004-19 (Ga. SBE, Dec. 2003) (necessity of a RIF must be shown and that necessity must be based on objective evidence that is rationally interpreted.) This simply was not done. As such, this Board should reverse the Local Boards ruling.

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III.

It Was An Error For The Local Board To Affirm The Recommendation Of The Superintendent Due To The Fact The District Denied Appellant Her Due Process Rights By Failing To Consider Proper Issues And Admit Key Evidence. A local boards reduction in force may not be so arbitrary and capricious as to violate the

law or result from an abuse of discretion. Lisa Parker et al. v Montgomery Board of Education Case Nos. 2012-28, 29, 31. (Ga. SBE. April 5, 2012). Regrettably, the Local Boards decision to RIF Ms. Day was unlawful and a gross abuse of discretion for the following reasons: 1. It Was Error For The Local Board To Affirm The Superintendents Recommendation Due To The Fact They Denied Ms. Day Her Due Process Rights By Quashing Key Witness Subpoenas And Failing To Produce Relevant Documents: Other than April Childers, Superintendent McDaniel, and Knox Wilson who testified on the witness stand, nearly all of Ms. Days relevant, key witnesses were quashed by the hearing officer. Ms. Day wished to have Joe Agan, LSGT member of Coosa High School testify as to their Local School Governance Teams perspective concerning the RIF of Ms. Day. The fact is that Coosa High Schools LSGT members information and perspective was relevant as the charter agreement required local school governance involvement regarding these issues. The witness subpoenas of her current and former supervisors (Principal Hubbard and Chief of Operations Sam Sprewell) should have been relevant as the Local Board policy had required a RIF to consider the administrators observation and knowledge. Ms. Day offered proof that Principal Hubbard, both as Principal and as a member of the LSGT for Coosa High School, would never have chosen to RIF her. (R-242.) Nearly every key witness that Ms. Day sought to subpoena was wrongfully quashed, including each guidance counselor she had intended to call to the witness stand to assist her by providing empirical, concrete data to provide further evidence how the RIF plan defied RIF policy as applied to the guidance counselors. (R236.) The local Board violated Ms. Days right to due process by failing to fully allow her to
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participate in the hearing by nearly quashing every one of her witnesses she had subpoenaed to testify. (R-245.) Finally, Ms. Day contends that a good majority of the open records requests she paid $5000.00 for continued to be wrongfully withheld and her related subpoenas quashed.6 Ms. Day did everything possible from paying $5000.00, to filing a highly publicized lawsuit, to calling on the Attorney General for assistance.7 Ms. Day was put in an untenable, no-win situation in her hearing without an ability to obtain key evidence necessary for her defense in violation of her right to due process. Some of the documents she both subpoenaed and sued over concerned the email and text message communications from Superintendent McDaniel from the start of his time in office as Superintendent to the current date.8 Unbelievably, barely any emails were produced (nothing relevant concerning the RIF) and not a single text message sent or received from the Superintendent was provided. Ms. Day contends it is incredulous that a Superintendent of such a school system would not have a single electronic communication that went between himself, the Local Board, and his direct reports. While the Superintendent claimed he fully complied with the Georgia Open Records Act, Ms. Day contends that the evidence presented shows otherwise. See how the Superintendent claimed he neither texts nor emails and that while his teenage kids might argue with it, Dad has not jumped on board to texting and emailing to conduct my business. (R-127, 128.) When he is asked whats the primary mode of written communication that you have with your direct reports? Did you text them at all or do you email them? (R-128),

See Pretrial Motion to Dismiss as attached to the record. See Pretrial Motion to Dismiss as attached to the record. 8 See Pretrial Motion to Dismiss.
7

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the Superintendent responded: And I appreciate that question. I really do neither. . .I just dont do that. (R-128.) Despite the Superintendent adamantly denying that he ever sends texts and emails, his data analyst, Ms. April Childers, while appearing to cover for the Superintendent, impeached his credibility by admitting he has sent her both emails and texts in the scope of his job as Superintendent. (R-248.) Clearly, this shows that the Superintendent was not being truthful or credible in the withholding of evidence to Ms. Days detriment. Finally, Ms. Days right to a fair dismissal was violated in that the Local Board nearly quashed all of Ms. Days witness subpoenas in violation of her due process rights under O.C.G.A. 20-2-940 (d) including the other guidance counselors and almost every single person, from the local governance teams, to Ms. Days principal to administrators. (R-244, 245.) This inhibited her from presenting most of her evidence and testimony to the Local Board at the hearing. In sum, the Local Board violated her right to due process by failing to allow her to fully participate in her defense by presenting key evidence, withholding key documents from her that included texts and emails of the Superintendent concerning the RIF either requested via open records or via subpoena, besides nearly quashing all of her witnesses who had been subpoenaed. Because of these errors in violation of Ms. Days due process rights, the Local Boards decision should be reversed. 2. The RIF Was Unlawful And A Gross Abuse Of Discretion Because It Violated The Charter Agreement By Excluding Local School Governance Involvement As Required By the Charter Agreement. The Local Board Failed To Consider This Issue And Admit Key Evidence Concerning The Charter Violation.

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Under Georgia law, a charter system must comply with its obligations and duties under the system charter. See O.C.G.A. 20-2-2060 et seq. In the case at bar, the reduction in force violated the charter agreement, and was subsequently unlawful because it excluded local school governance. (Ex. T-27.)9 Ms. Day contends that the Local Board wrongly failed to consider this issue in their determination as the hearing officer erroneously advised them that the breach of charter was not relevant to the proceeding. (R-115-124.) The Local Board should have considered the matter because the fact that the Superintendent deliberately chose to exclude local school governance from the RIF as required by the charter is relevant to Ms. Days non-renewal. As discussed supra, Ms. Days principal sat on the LSGT and the Charter mandated collaboration with persons who, and in a manner that, would have easily brought forth facts demonstrating that Ms. Days demonstrated competence and expertise was greater than many of her peers who did not lose their jobs. Ms. Day also contends that evidence as to violating this charter agreement, including emails from the State Department of Education and Charter Division Director Lou Erste which discussed this breach of the charter agreement, with minutes of the Charter Advisory Committee were wrongfully excluded by the hearing officer. (Ex. T-17.) Notably, an offer of proof was made.10 (R-115-124 and 143-148.)

See Exhibit T-27, Page 4, Item 13, section B of the CharterSchool Level Governance: The Governing Council shall maximize school level governance which is defined as decision making authority in personnel decisions, financial decisions, curriculum and instruction, resource allocation, establishing and monitoring the achievement of school improvement goals and school operations. Also see Exhibit T-17 and transcript pages 113-114. See Record pages 115-124 and 143-148.
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10

Relevantly, the Superintendent excluded the local governance teams in the RIF and this was admitted into evidence. He admitted as such under oath during his cross examination (R113-114.): 25 Q Now, Dr. McDaniel, you've admitted that you

1 did not utilize local school governance teams in 2 your decision to RIF; is that correct? 3 A Yes. Additionally, he admitted that the only individuals involved with the RIF plan and the only individuals involved in picking which employees to be RIFd were he, April Childers (data analyst), and Knox Wilson (HR director)(R-130, 135.): 130 Q So please elaborate for me. Who actually was on this RIF committee to select who would be RIFed? A There were three people involved primarily and basically with the RIF plan: the superintendent, obviously; the HR director; and our data analyst. 135 Q But I'm just trying to get the people clear, the names of the people clear. A Okay. Q And you're saying regarding -- the only people doing the picking was Knox, April, and you; is that correct? A That is correct. Q Okay. Now, at some point to do this organized, since we obviously aren't mind-readers, we would have had to actually sit down and actually come up with the list. Correct? A That is correct. Q And write things down as to which folks are getting the PDPs and which folks have the unsatisfactory evals and which folks are going to be RIFed. Correct? A That is correct.

15 16 17 18 19 20 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Moreover, Knox Wilson, HR Director admitted the same, that he was one of the only

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three people involved in implementing the RIF plan and in charge of the actual selection process. There was no one else other than himself, the Superintendent, and Ms. Childers as discussed in the cross examination of Mr. Knox Wilson:

16 17 18 19 20 21 22 23

217 Q Very good, sir. And I understand that you were -- out of the three people in charge of the RIF selection process, implementing the actual plan part, it was yourself, Superintendent McDaniel, and Ms. Childers. Is that correct? A That is correct. Q Is there anybody else we don't know about? A No, ma'am.

What is important to understand regarding Floyd County Schools (FCS) is that it is a charter system where parents, teachers, and community members of Floyd County have the right, responsibility, and duty of local self-governance concerning the important decisions that impact their local schools such as a reduction in force. To obtain this charter status, FCS entered into a charter agreement with the State Board of Education (Ex. T-27) and FCS must abide by this contractual agreement to maintain the charter system. See O.C.G.A. 20-2-2068. Under the Charter Agreement, members of the community, parents, principals, and teachers must make up a Local School Governance Team (LSGT) and Local School Coordinating Council (LSCC) to make the important decisions that include budgets and staffing for local schools. (Ex. T-27.) 11 These important decisions must not be made unilaterally, behind closed doors or dictatorially decided by the elite few in positions of governmental power. Rather, the people of

11

See Exhibit T-27, Page 4, Item 13, section B of the CharterSchool Level Governance: The Governing Council shall maximize school level governance which is defined as decision making authority in personnel decisions, financial decisions, curriculum and instruction, resource allocation, establishing and monitoring the achievement of school improvement goals and school operations.
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Floyd County through their community leaders, parents, principals, and teachers who are members of the LSGT and LSCC have the duty and responsibility to local self-governance and involvement in these vitally important decisions including such matters involving a RIF such as personnel and financial decisions (Ex. T-27, T-17) under the Charter. Notably, a copy of the charter agreement was entered into evidence. (Ex. T-27.) The Local Board however, incorrectly failed to consider this issue as relevant and failed to properly admit evidence of the charter agreement being violated solely for self-serving reasons, including that just a few days prior the Superintendent had been compelled by the State Department of Education to answer and account for his actions before a specially called Board meeting of the Charter committee12 after the Charter Advisory Committee had unanimously voted him to be in breach of the charter. This evidence was improperly excluded from the hearing to Ms. Days detriment and in violation of her right to due process. One of the essential questions in a reduction in force case is whether the method of selecting which teachers to dismiss was arbitrary or capricious. Lisa Parker et al. v Montgomery Board of Education Case Nos. 2012-28, 29, 31. (Ga. SBE. April 5, 2012). A local boards reduction in force may not violate the law or result from an abuse of discretion. Id. In this case, the decision to exclude local school governance in the RIF resulted from a gross abuse of discretion in that it violated the legal requirement that the charter system comply with its obligations and duties under the system charter. See O.C.G.A. 20-2-2060 et seq. In sum, because the Superintendent and Local Board did not include, inform, or involve the parents, principals or the Floyd County School members of the LSGT and LSCC in the Reduction in Force as required by the charter, this constituted a gross abuse of discretion and thus, Ms. Days

12

Exhibit T-17.
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non-renewal should be reversed. Moreover the local board and hearing officers failure to consider these issues and admit evidence of such violated Ms. Days right of due process under fair dismissal. As stated, grant of a charter does not grant the license to act arbitrarily and capriciously by choosing to ignore its own Board policy and Charter Agreement. Under Georgia law, local boards may not operate arbitrarily. Terry v. Houston Cnty. Bd. of Educ., 178 Ga. App. 296, 297, 342 S.E.2d 774, 775 (1986) and a non-renewal must be reasonable in light of all the circumstances. Chamberlain v. Wichita Falls Indep. Sch. Dist., 539 F.2d 566, 569 (5th Cir. 1976). CONCLUSION: For the reasons above, Ms. Day demonstrated at her hearing that the Local Boards decision to non-renew her was arbitrary, capricious, unlawful, and a gross abuse of discretion. As such, Ms. Day requests the State Board to reverse the decision of the Local Board. Consequently, this Local Board should reinstate Ms. Day as a guidance counselor, awarding her attorney fees, back pay, and benefits for the 2013-14 school year. RESPECTFULLY SUBMITTED:

JULIE OINONEN Ga. State Bar No. 722018 MARIO B. WILLIAMS Ga. State Bar No. 235254 Attorneys for GILDA DAY Appellant WILLIAMS OINONEN LLC 44 Broad Street Ste 200 Atlanta, Georgia 30303 http://www.goodgeorgialawyer.com Ph) 404-654-0288 Fax) 404-592-6225
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CERTIFICATE OF SERVICE

This shall certify that I have this day served counsel with a copy of the foregoing BRIEF OF THE APPELLANT by emailing electronically to: Mr. Stewart Duggan, isduggan@brinsonaskew.com and depositing a copy via U.S. mail to: Mr. Stewart Duggan, Esq. Brinson, Askew, Berry, Seigler, Richardson & Davis, LLP 615 West First Street P. O Box 5007 Rome, Georgia 30162-5007

This 22nd day of JULY 2013

By: ____________________________ Julie Oinonen Georgia Bar No. 722018 Counsel for APPELLANT Williams Oinonen LLC The Grant Building, Suite 200 44 Broad Street, N. W. Atlanta, Georgia 30303 Telephone: 404-654-0288 Fax: 404-592-6225

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