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STATE BOARD OF EDUCATION

STATE OF GEORGIA

TONYA ANGELI :
:
Appellant, :
: CASE NO.: 2020-23
v. :
: DECISION
POLK SCHOOL DISTRICT :
BOARD OF EDUCATION, :
:
Appellee. :

This is an appeal by Tonya Angeli (“Appellant”) from a determination by the Polk School
District Board of Education (“Local Board”) to terminate her employment as a teacher with the
Polk School District (“District”) pursuant to O.C.G.A. § 20-2-940(a)(7). The Appellant contends
that the Local Board failed to provide her adequate notice of the evidence to be used against her at
the termination hearing and timely notice of her appeal rights. For the reasons set forth below, the
Local Board’s decision is REVERSED.

I. PROCEDURAL BACKGROUND

On October 29, 2019, the District’s superintendent, Laurie Atkins (“Superintendent”), sent
the Appellant a charge letter informing her of the Superintendent’s recommendation to terminate
the Appellant’s 2019-2020 employment contract. The letter contained notice of the grounds for
termination pursuant to the requirements of the Georgia Fair Dismissal Act (“FDA”) codified in
O.C.G.A. § 20-2-940 et seq. The basis for dismissal was the Appellant’s failure to secure and
maintain the necessary educational training and teaching certifications required by the state.

A hearing was held by a tribunal comprised of four (4) Local Board members on November
12, 2019. At the hearing, the District’s attorney handed the Appellant’s attorney several
documents marked as exhibits, some of which were not provided to the Appellant prior to the
hearing. The District and the Appellant were given the opportunity to present evidence and
witnesses. After hearing the testimony and evidence, the tribunal upheld the Superintendent’s
recommendation to terminate the Appellant’s contract for failing to obtain the necessary
educational training and teaching certifications required by the state. On December 20, 2019,
Appellant timely appealed the decision of the Local Board to the State Board of Education (“State
Board”).

II. STATEMENT OF FACTS

Cedartown Middle School (“School”) principal, Shannon Hulsey (“Principal”),


interviewed the Appellant for a special education teacher position even though the Appellant, who
holds a bachelor’s degree in business, had no education or special education training or experience.
The Principal, and subsequently, the Director of Human Resources, David Robinson (“HR”), knew
that Appellant was not certified to teach in accordance with the requirements of the Georgia
Professional Standards Commission (“GaPSC”). Nevertheless, they offered her the special
education teacher job to begin August 15, 2018. On or about September 4, 2018, the Appellant
signed a contract accepting the position as the special education teacher at Cedartown Middle
School for the 2018-2019 school year. The contract for employment expressly stated:

This contract is contingent upon the Employee securing and continuing to hold the
necessary certifications, credentials and professional qualifications, as applicable,
in order to perform the duties of the Employee’s designated position. If the
Employee is unable to maintain proper certification, the daily rate of pay shall be
adjusted to that of a substitute teacher retroactive to the later of the beginning date
of employment of this contract or the date the Employee’s certificate became
invalid.

The contract further stated that “[t]eachers who do not meet professional qualifications in the
subjects where they are assigned to teach are at risk of reassignment or nonrenewal of their
employment contract.

Despite knowing that the Appellant had never taught before and did not have the necessary
education or licensure, the Principal and HR expressed their willingness to allow the Appellant to
obtain the appropriate teaching credentials while working in the capacity as a special education
teacher for the District. The parties disagree on whether the Principal and HR informed the
Appellant, contrary to the contract, that she had up to three (3) years to obtain the necessary
teaching certifications. The record does show that the Appellant had several conversations with
HR throughout the 2018-2019 year about what was necessary to obtain the requisite credentials.

On August 27, 2018, HR uploaded the Appellant’s college transcript and an initial
certification application, which was completed and signed by the Appellant, to the GaPSC site.
On September 13, 2018, the GaPSC Certification Division forwarded a letter to the Appellant’s
GaPSC system mailbox. The record shows that the Appellant did not have access to her GaPSC
account and mailbox at the time GaPSC generated the letter. However, the letter noted a deficiency
in her certification application and essentially placed a hold on the application. On September 18,
2018, HR forwarded the GaPSC letter to the Appellant via email. In the GaPSC letter the
Appellant was advised that her certification application was deficient of two items:

1. Verification of the Georgia Assessments for the Certification of Educators (“GACE”)


Program Assessments or a copy of a college entrance exam (e.g. SAT, GRE, etc.) with a
score high enough to allow exemption; and
2. Verification of the GACE Educator Ethics-Program Entry Assessment.

The GaPSC letter also informed the Appellant that she had 90 days to provide verification
of the above assessments before her case would be closed. Once the 90 days expired, the Appellant
would have to submit a new certification application. The letter noted that the Appellant could
access her GaPSC account and obtain information regarding her case at the GaPSC website listed
therein. After receiving the GaPSC letter, the Appellant inquired of HR whether she “should be
worried.” The record contains no response from HR.

A second certification application signed by the Appellant was submitted to the GaPSC on
October 16, 2018. On December 5, 2018, the GaPSC sent a second notice to the Appellant’s

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account informing that the Appellant’s account was still on hold. Thereafter, on January 23, 2019,
the GaPSC sent a final notice which informed the Appellant that her certification case was closed.
On March 10, 2019, HR sent an email to the Appellant inquiring into her progress toward
completing the certification requirements and expressing an urgent need for her to complete them.
Then on March 15, 2019, the Appellant signed a contract for the 2019-2020 school year.

On March 26, 2019, another initial certification application, signed by the Appellant, was
uploaded to the GaPSC system. On April 16, 2019, the Appellant forwarded the verification of
satisfactory completion of the GACE Ethics Assessment, one of the two assessments needed to
complete the GaPSC application for certification. In response, HR emailed the April 1, 2019 hold
letter to the Appellant. HR retrieved the letter from the Appellant’s GaPSC account and noted that
the only item remaining for the Appellant to complete was the GACE assessment, or in the
alternative, she could provide an exempting SAT score. The record shows no response from the
Appellant.

On May 29, 2019, HR emailed the Appellant inquiring about her progress toward
certification. On June 7, 2019, HR received a 45-day notice regarding the Appellant’s application.
Then on July 22, 2019, HR received a final notice that the Appellant’s certification case was once
again closed.

In August 2019, during pre-planning for the 2019-2020 school year, the Principal and HR
met with the Appellant to discuss her certification status. The Principal and HR expressed the
need for the Appellant to take the GACE assessment, as soon as possible. In an email to HR dated
August 5, 2019, the Appellant requested HR discuss GACE testing accommodation options with
her. The Appellant and the District disagree on when the Appellant disclosed that she had a health
condition. Nevertheless, during the hearing, HR acknowledged that at some point between August
2018 and March 2019, the Appellant disclosed her health condition and mentioned that while in
college, she received testing accommodations. In August, however, HR informed the Appellant
that she was responsible for coordinating testing accommodations through the GACE program.
After contacting GACE, the Appellant learned that it could take up to six (6) months, March 2020,
to receive the necessary accommodations. Regardless, the Appellant felt pressured to take the next
available test in August 2019.

HR initiated a third GaPSC certification application on October 8, 2019. On October 10,


2019, the GaPSC certification division sent notice that the Appellant’s certification application
was on hold until verification of the GACE assessment was received. On October 18, 2019, HR
showed the Appellant how to access her GaPSC account. It was then that she learned that she had
failed the GACE assessment. On October 21, 2019, the Principal contacted the Appellant about
her status. The Appellant informed the Principal that she had failed the GACE assessment. The
Superintendent determined that the Appellant was unable to fulfill the requirements of her teaching
contract and offered her a paraprofessional position, which the Appellant declined. Thereafter the
Superintendent recommended the Appellant’s termination to the Local Board.

III. STANDARD OF REVIEW

“The standard for review by the State Board of Education is that if there is any evidence to
support the decision of the local board of education, then the local board’s decision will stand
unless there has been an abuse of discretion or the decision is so arbitrary and capricious as to be

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illegal. See, Ransum v. Chattooga Cnty. 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, Sept. 8, 1976).” Roderick J.
v. Hart Cnty. Bd. of Educ., Case No. 1991-14 (Ga. SBE, Aug. 1991).

IV. SUPPLEMENTATION OF RECORD

On February 19, 2020, the Appellant’s attorney submitted a Motion to Supplement the
Record with four (4) attachments. The attachments contained the documents supplied by the
District’s attorney to the Appellant’s attorney, as well as emails notifying the Appellant of the
Local Board’s decision and of the Appellant’s right of appeal. The Appellant offered these
documents on the basis they were relevant to this appeal but not included in the record submitted
to the State Board.
Pursuant to O.C.G.A. § 20-2-1160(b), the record before the State Board is limited to “the
transcript of evidence and proceedings, the decision of the local board, and other matters in the file
relating to the appeal to the state board.” Neither the Appellant, nor the Local Board, contend that
the Local Board omitted documents that should have been included in the record, rather the
Appellant seeks to supplement the record with documents she believes are relevant to the questions
of adequate notice. For the reasons set forth below, the motion to supplement the record is
GRANTED, to the extent the records may constitute “other matters in the file relating to the appeal
to the state board” and appear relevant to the procedural issues in this case.
On November 6, 2019, the Appellant, requested, among other documents, a complete copy
of the Appellant’s personnel file and a summary of the evidence to be used against her at the
hearing. On November 8, the District forwarded several documents to the Appellant’s attorney.
Thereafter, at the start of the hearing on November 12, 2019, the District’s attorney handed thirteen
(13) documents marked as exhibits to the Appellant’s attorney. The Appellant objected to receiving
documents moments before the hearing. The District’s attorney acknowledged that there were
emails included with the District exhibits that were not provided to the Appellant prior to the
hearing. Later, during the hearing, the Appellant objected to the admission of several of those
documents into the record. The Appellant insisted that although she was unable to compare the
documents handed to her at the hearing to the documents emailed to her prior to the hearing1, they
were not, in total, the same documents.
The Appellant’s motion to supplement contains the documents that were emailed to the
Appellant’s attorney prior to the hearing. A review of the documents offered in the Motion to
Supplement the record shows that the District did not provide the Appellant with the following
exhibits, prior to the hearing:
AA – 10/21/19 email (Angeli to Hulsey)
CC – Hearing Letter
E – missing first page 8/24/18 email (Robinson to Angeli)
G – missing first page 9/18/18 email (Robinson to Angeli)
H – 9/18/18 email (Robinson to Angeli)
L – 3/10/19 email (Robinson to Angeli)
N – 3/25/19 email (Robinson to Angeli)

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The Appellant’s attorney stated, during the hearing, that she was unable to access to the internet in the hearing room.
As a result, the Appellant’s attorney could not compare the documents emailed by the District’s attorney prior to the
hearing to the documents offered as District exhibits during the hearing.

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O – 3/25/19 email (Robinson to Angeli)
P – 4/16/19 email (Angeli to Robinson) with attachment
Q – 4/16/19 email (Robinson to Angeli)
R – missing first page 4/16/19 email (Robinson to Angeli)
S – 5/29/19 email (Robinson to Angeli)
V – 8/5/19 email (Angeli to Robinson)

The motion to supplement also includes the November 22, 2019 and December 20, 2019
emails from the District’s attorney to the Appellant’s attorney notifying the Appellant of the Local
Board’s decision. These documents are related to the procedural issues this case.

V. ISSSUES ASSERTED ON APPEAL

A. Did the Local Board Comply with the Notice Requirement Contained within O.C.G.A. §
20-2-940(b)?

The Georgia Fair Dismissal (“FDA”) codified at O.C.G.A. § 20-2-940(b) states:

Notice. Before the discharge or suspension of a teacher, principal, or other


employee having a contract of employment for a definite term, written notice of the
charges shall be given at least ten days before the date set for hearing and shall
state:

(1) The cause or causes for his discharge, suspension, or demotion in


sufficient detail to enable him fairly to show any error that may exist therein;

(2) The names of the known witnesses and a concise summary of the
evidence to be used against him. The names of new witnesses shall be given
as soon as practicable;

(3) The time and place where the hearing thereon will be held; and

(4) That the charged teacher or other person, upon request, shall be
furnished with compulsory process or subpoena legally requiring the
attendance of witnesses and the production of documents and other papers
as provided by law.

As previously stated, the FDA requires that before an educator with a teaching contract can
be discharged, a written notice of the charges must be provided at least ten (10) days before the
termination hearing. O.C.G.A. § 20-2-940(b) mandates that the notice of the charges must include
“a concise summary of the evidence to be used against him”. “The test to be applied is whether
the notice permits the person charged to establish a defense without the benefit of discovery.”
Johnson v. Pulaski Cnty. Bd. of Educ., Case No. 1996-44 (Ga. SBE, Nov. 1996), aff'd., Johnson v.
Pulaski Cnty. Bd. of Educ. 231 Ga. App. 576 (1998); Goode v. Atlanta City Bd. of Educ., Case No.
2005-07 (Ga. SBE, Jan. 2005).

A review of the charge letter dated October 29, 2019 shows that it does not contain a
concise summary of the evidence to be used against the Appellant at the hearing. The record shows

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that on November 6, 2019, six (6) days before the hearing, the Appellant specifically requested the
District provide a concise summary of the evidence to be used against her. Neither the clear
language of the statute nor the Appellant’s specific request resulted in the District providing the
Appellant with a summary of the evidence to be used against her. As a practical matter had the
District provided a summary of the evidence to be used against the Appellant, as required under
O.C.G.A. § 20-2-940(b)(2), the Appellant might have been on notice prior to the hearing that
several pieces of email correspondence, which were not included in the Appellant’s personnel file,
would be used against her during the hearing. The denial of notice as prescribed under the FDA
denies the educator due process rights. See Dowling v. Atlanta City Bd. of Educ., Case No. 1993-
14 (Ga. SBE, July 1993). The State Board finds that the District failed to adequately comply with
the notice provision of the FDA.

B. Did the Local Board Fail to Comply with O.C.G.A. § 20-2-1160(a) and Ga. Comp. R. &
Regs. 160-1-3-.04(3)(a)(6) in Violation of the Appellant’s Due Process Rights?

The Appellant argues that the Local Board decision must be reversed because it did not
include timely notice of her appeal rights, as required by O.C.G.A. § 20-2-1160(a) and Ga. Comp.
R. & Regs. 160-1-3-.04(3)(a)(6).

O.C.G.A. § 20-2-1160(a) provides that:

Every county, city, or other independent board of education shall constitute a


tribunal for hearing and determining any matter of local controversy in reference to
the construction or administration of the school law, with power to summon
witnesses and take testimony if necessary. When such local board has made a
decision, it shall be binding on the parties; provided, however, that the board shall
notify the parties in writing of the decision and of their right to appeal the decision
to the State Board of Education and shall clearly describe the procedure and
requirements for such an appeal which are provided in subsection (b) of this Code
section.

The Georgia Court of Appeals held in Clayton Cnty. Bd. of Educ. v. Wilmer, 325 Ga. App.
637 (2014), that the requirement in O.C.G.A. § 20-2-1160(a) that a local board must “notify the
parties in writing of the decision and of their right to appeal the decision to the State Board of
Education and shall clearly describe the procedure and requirements for such an appeal which are
provided in O.C.G.A. § 20-2-1160(b)” is an “absolute requirement.” Id. at 644.

In Laquita Buckner v. Muscogee Cnty. Bd. of Educ., Case No. 2015-13 (Ga. SBE, Feb.
2015), the State Board said that “a local board’s failure to comply with O.C.G.A. § 20-2-1160(a)
imposes the penalty that the decision is not binding on the parties. See Wilmer at 467-68 [sic]
(2014). Thus, the mandate of O.C.G.A. § 20-2-1160(a) places four (4) notice requirements on
local boards. A local board must notify an educator (1) in writing, (2) of its decision, (3) of the
educator’s appeal rights, and (4) to do so by clearly describing the procedures and requirements
for an appeal as provided for in O.C.G.A. § 20-2-1160(b).”

In Buckner, as in this case, the Local Board emailed the Appellant’s attorney. Here, the
email was sent on December 22, 2019, one (1) day after the release of the Local Board’s decision.
However, the notice failed to include any language regarding the Appellant’s appeal rights and the

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procedures and requirements for an appeal, as provided in O.C.G.A. § 20-2-1160(b). In Buckner,
the State Board concluded that without the appeal rights included, the email failed to meet the
requirements of O.C.G.A. § 20-2-1160(a). Buckner at 3.

The Local Board in this case, as in Buckner, but unlike in Wilmer, emailed a second notice,
which included the required appeal rights information, to Appellant on December 20, 2019 at
10:26 AM. The record shows that the Appellant overnighted her appeal request on December 20,
2019, as well. Thus, the Local Board complied with O.C.G.A. § 20-2-1160(a). However, the
Local Board did not comply with Ga. Comp. R. & Regs. 160-1-3-.04(a)(6), which states:

At the conclusion of the hearing, or within 15 days thereafter, the LBOE shall notify
the parties of its decision in writing and shall notify the parties of their right to
appeal the decision to the State Board of Education.

The Local Board issued a proper decision on December 20, 2019, thirty-one (31) days after
issuing the first decision. The record shows that the Local Board failed to comply with Ga. Comp.
R. & Regs. 160-1-3-.04(a)(6). The Local Board argues, as did the local board in Buckner, “that it
substantially complied with this Board’s rule, and that there is no harm to Appellant by the late
notice because she was able to appeal to this Board.” Buckner at 4. However, the State Board
noted in Buckner that it “cannot allow parties to ‘substantially comply’ with its rules, especially
regarding notice requirements in light of the Georgia Court of Appeals decision in Wilmer.
Moreover, this Board concludes that the Local Board’s failure to provide timely notice is akin to
a default judgment in a civil action. Under Georgia law, in a default judgment situation, the burden
is on the Local Board to show ‘excusable neglect’. See Mecca Constr. v. Maestro Invs. LLC, 320
Ga. App. 34, 36 (2013). It is not Appellant’s burden to show harm when the Local Board failed
to comply with this Board’s rules. The Local Board has failed to establish excusable neglect.
Therefore, this Board is regrettably compelled to reverse the decision of the Local Board.”
Buckner at p. 4.

VI. CONCLUSION

While there is evidence in the record to support a finding that Appellant is subject to
dismissal under the FDA, the Local Board violated the Appellant’s due process rights by failing
to provide the Appellant both adequate notice of the evidence to be used against her at the
termination hearing and timely notice of her appeal rights. For these reasons, the decision of the
Local Board is REVERSED.

This the 23rd day of July, 2020.

LISA KINNEMORE
VICE CHAIR FOR APPEALS

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