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Clayton County Bd. of Educ. v. Vollmer

Court of Appeals of Georgia, First Division

August 29, 2014

CLAYTON COUNTY BOARD OF EDUCATION
v.
VOLLMER

Teacher; termination of employment. Clayton Superior Court. Before Judge Simmons.

Fincher Denmark Williams & Minnifield, Winston A. Denmark, Emilia C. Walker, for appellant.

Warren C. Fortson, for appellee.

Phipps, C. J., and McMillian, J., concur.

OPINION

Page 278

Ellington, Presiding Judge.

The Clayton County Board of Education (hereinafter, the " Local Board" ) appeals from an order by the Superior Court of Clayton County reversing a decision by the State Board of Education (the " State Board" ). The State Board had affirmed the Local Board's termination of a teacher, David Vollmer.[1] The Local Board contends that the superior court erred in reversing Vollmer's termination based upon an issue that he raised for the first time in the superior court, specifically, that the tribunal that conducted the initial termination hearing had failed to timely comply with its statutory reporting requirements. The Local Board argues that Vollmer waived the [328 Ga.App. 895] issue by failing to raise it in the prior proceedings. The Local Board also contends that, to the extent the superior court found as a matter of law that there was insufficient evidence in the record to support the termination of Vollmer's employment, this conclusion is erroneous. For the following reasons, we find that Vollmer waived the issue of whether the hearing tribunal timely complied with the applicable statutory requirements. Further, the hearing evidence supported the Local Board's termination decision. Consequently, we reverse the superior court's order.

Viewed in the light most favorable to the Local Board's decision,[2] the record shows the following, undisputed facts. In January 2012, Clayton County's superintendent of schools recommended that the Local Board terminate Vollmer's employment as a teacher, pursuant to the Georgia Fair Dismissal Act, OCGA § 20-2-940 et seq. A tribunal appointed by the Local Board (the " hearing tribunal" )[3] heard evidence on the recommendation and, on May 22, 2012, issued its findings of fact and recommended that the Local Board terminate Vollmer's employment. In a June 5, 2012 e-mail to Vollmer's counsel, the Local Board notified Vollmer that it had " upheld the [termination] decision of the Tribunal at its Monthly Board Meeting last night."

Vollmer appealed the Local Board's decision to the State Board,[4] raising seven separate

Page 279

" Issues on Appeal," including whether the Local Board had " acted in compliance with its mandate in OCGA § 20-2-940 (f)" because " [n]owhere in the unofficial minutes [of the Local Board's June 4, 2012 meeting], the only minutes available, does it appear that any action respecting [Vollmer] was taken [by the Local Board]," and because he had " received no notice that any action was taken [by the Local Board] as required by law[.]" The State Board responded to the notice of appeal with a letter stating that it would " not consider any question not specifically raised in the written appeal."

In his subsequent appellate brief to the State Board, Vollmer abandoned all but the following two issues: whether there was sufficient evidence to support his termination, and whether the Local [328 Ga.App. 896] Board had failed " to act on the Decision of the Hearing Tribunal in a timely manner." As to the latter issue, Vollmer contended that there was no proof that the Local Board had taken any official action on the hearing tribunal's recommendation and that neither he nor his counsel had " ever received any required notice from the Board that [he] had the right to appeal the decision of the [Local] Board."

The State Board affirmed the Local Board's termination decision after finding that there was sufficient evidence to support Vollmer's termination; it did not address Vollmer's contention regarding the Local Board's alleged failure to provide him with timely notice of its decision or his right to an appeal.

Vollmer then appealed the State Board's decision to the Superior Court of Clayton County,[5] contending, inter alia, that the hearing tribunal had failed to comply with a statutory mandate that it provide its findings of fact and recommendations to the Local Board within five days of the conclusion of the termination hearing.[6] Although the Local Board argued that Vollmer had waived this issue by failing to raise it in the proceedings below, the superior court rejected that argument, finding as a matter of fact that Vollmer had raised the issue in his appeal to the State Board. The superior court then concluded that the hearing tribunal had, in fact, violated ...


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