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A15a0401 - Brief of Appellant Gilda Day
A15a0401 - Brief of Appellant Gilda Day
A15a0401 - Brief of Appellant Gilda Day
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FILED IN OFFICE
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OCT 2 9 2014
CLERK, COURT OF
APPlALS OF GEORGIA
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GILDA DAY
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Appellant/Cross-Appellee,
CIVIL ACTION
FILE NO: A15A0401
FLOYD COUNTY BOARD OF
EDUCATION A/K/A FLOYD
Appellee/Cross-Appellant.
Under the Georgia Charter Systems Act, the most important objective of a
charter school system is "maximizing school level governance." O.C.G.A. 20-22063(d). In Floyd County School District, each school has their own local school
599). LSGT's are made up of its own respective principal, teachers, parents, and
community stakeholders. O.C.G.A. 20-2-2062(5.1). Each LSGT resides under
the umbrella of the larger local school coordinating council (LSCC). (R-598-601,
R-82). LSGT's make up the membership of the LSCC who advise the
Superintendent on system-wide financial and personnel decisions. (R 82-83, 598601). This is not only what the Charter Agreement mandateslocal school
governance is a requirement under Georgia law. O.C.G.A. 20-2-2063(d).
the charter system agreement: closing down instrumental programs, changing the
hybrid block model unique to the charter, and unilaterally implementing a
reduction in force (RIF) of 120 educators all the while excluding all local school
governance from any input. (R-758, 761). His process involved sitting with two of
his central office administrators, picking and choosing which teachers to "RIF."
(R-79-80, R-281, R-264-265). The Superintendent's actions caused an enormous
"breach of trust" (R-758) within the community. Community members "lodged
complaints" with the State and their outcry caught the attention and concern of
those at the very top. (R-758, R-760-761).
Appellant Gilda Day was the highest performing guidance counselor
unlawfully selected for the RIF based on seniority (solely number of years at
Floyd) without comparing her demonstrated competence and excellence to all
other counselors as required by policy and law under the Fair Dismissal Act. (R214, 644, 303-308); O.C.G.A. 20-2-948. The evidence showed she was heads
and shoulders above her peers, standing out as one of the best, most qualified, and
experienced when comparing her experience, education, and performance with all
others. (R-644, R-407, 410, 411, 664). Furthermore, evidence showed that if her
LSGT had been used as required she never would have been selectedfor
example, her Principal who led the LSGT and was required to have decision
making authority concerning personnel decisionsinformed Ms. Day that even if
he had to "put 50 names on a IRIF1 list, I would never have put yours on this
together, the Superintendent has admitted that contrary to the express terms of its
RIF Plan, Board Policy, and Georgia law, he didn't even attempt to determine the
"demonstrated competence and expertise" of Ms. Day and her peers (R-303-308)
by evaluating, as the law and 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 administrator's observations
admitted he "did not utilize Local School Governance Teams" for any purpose
regarding his "decision to RIF." (R-264-265, 281, 286). As a result of excluding
local school governance, the Superintendent got into serious woe with the State
DOE (R-758) and the statewide Georgia Charter Advisory Committee who voted
unanimously to find his actions a violation of the charter agreement. (See R-757
762 informing him he would be held accountable for violating multiple provisions
of charter as unanimously voted).
Ultimately, after Ms. Day appealed her case to the State Board of Education,
it rejected and reversed Local Board's decision because they found this complete
exclusion of local school governance to be arbitrary and capricious. They noted,
"the decision on who to RIF may have ended in a different result if the proper
procedures had been followed" thus reversing the local board decision. (R-501502).
need to provide tenured educators with the right to due process. This is simply so
untrue it is baffling as all official adopted Local Board policies, practices, and
Act, that she had the legal "right to appeal to the State Board". (R-663: "you have
referencing Policy GBN "Floyd County School System adheres to the Georgia
legal code, namely O.C.G.A. 20-2-940, 20-2-11, and O.C.G.A. 20-2-942 as it
the right to appeal the local Board's decision to the State Board of Education in
Education had not explicitly spelled out that they adhered to the Fair Dismissal Act
in their policies, they were still required to adhere to the Fair Dismissal Act
according to Georgia law. The State Board of Education's ruling that the Charter
Systems Act does not waive due process for teachers comports with the Georgia
Legislature's expressed intention to "provide for protection of due process
rights ," explicitly documented during Senate floor proceedings concerning
2Thus creating a property interest, right to due process: E.g. Perry v. Sindermann,
408 U.S. 593, 602-03 (1972). See pp. 26-30 for explanation.
passage of the Act and insuring that language provided that the Charter Systems
Act cannot be read so broadly as to do away with due process rights for tenured
educators because 20-2-2065(b) states charter systems are "[s]ubject to all federal,
state and local rules, regulations, court orders and statutes relating to civil rights."
There is no doubt that the right to due process, at the very least, relates to civil
rights, as enshrined under the Georgia Constitution, 5th, and 14th amendment. 4At
this point however, by making the dangerous argument that charter systems waive
due process for teachers and that the State Board has no jurisdiction to hear Ms.
Day's appeal, Floyd County Board of Education not only threatens the rights of its
own educators, it threatens to deprive the due process rights for thousands of
teachers across our entire state, especially those whose districts switch over to
charter systems by the June 2015 deadline. O.C.G.A. 20-2-84.3. Affording our
teachers the right to due process has been a bedrock principle of school law since
public education was birthed in Georgia well over 100 years, which leads us to our
next sectionthe history of due process for teachers in Georgia.
FACTUAL HISTORY:
reflected in the Constitution of 1868 which provided for "a thorough system of
general education to be forever free to all children of the state." See Ga. Const, of
1868 Article VI Sec. 1. Since this foundation of public education over a century
ago, Georgia established the State Board of Education to act as "the high court of
appeals in school matters, its decision either between parties litigant or upon
questions involving the construction or administration of school law being final."
See the 1869 speech by Georgia's second State School Commissioner Dr.
(Washington Govt. Printing Office, 1889). Also see: Georgia Acts of 1887, p. 74:
"Judicial tribunalappeals, Section 13: That the County Board of Education shall
constitute a tribunal for hearing.. ..said decision shall be binding on the parties to
the controversy; provided that either of the parties shall have the right to appeal to
the State School Commissioner."
located in Morrow, Georgia, one can dust off these old ledgers filled with appeal
manuscripts written in quill and ink. There, one can view the very first Georgia
state boards of education appeal decisions from the late 1800's and early 1900's
that review Local County Board of Education decisions including those that
redressed the concerns of teachers. See Vol. 2-3578, EducationOffice of
SuperintendentAppeals Decisions (1892-1904) and Vol. 2-3580, Education-
and Decisions writing that it was not according to the "letter or spirit of Georgia
law" for a teacher to be summarily discharged at the whim of a Board without a
trial. See M.L. Brittain Georgia School Laws and Decisions Published by the
Georgia Dept. ofEducation, Chapter XI Note 13, (1916). In 1919, the Georgia
adverse employment decision to the local board of education, then to appeal to the
State Board of Education. Importantly, a teacher could only be removed for cause,
the law of 1919 stating the superintendent "shall hereafter suspend any teacher
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teacher may appeal to the county board of education, and either being dissatisfied
with their decision, they can appeal to the state superintendent or from there to the
state board of education, the decision of which shall be final." Georgia Code 321010, Acts. 1919, p. 352.
Due process eventually evolved into the 1975 passage of the Fair Dismissal
Act. O.C.G.A. 20-2-940 et seq. Under the terms of this law, teachers who
accepted their fourth consecutive contract from a school district became entitled, in
worked to ensure fair dismissal for Georgia educatorsrooting out teachers that
needed removal yet protecting good teachers from nepotism, political or personal
vendettas, false accusations, reporting a cheating scandal, or being fired in
exchange for less expensive but less experienced, less qualified teachers.
law in Georgia, depriving teachers of their right to due process. The passage of this
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legislation led to his eventual defeat and the subsequent restoration of fair
dismissal protection for the state's teachers by the Republicans. Scott Grubbs,
Quality of Graduate Experience in a Georgia Case Study: The Elimination of
Teacher Tenure in Georgia as Viewed Through the Policy Formulation Process
Capitol steps, and most importantly, rallied behind Governor Sonny Purdue. See
Mike McGonigle, Legal Services Director of GAE, Georgia Association of
Educators' Rights Handbook, p. 4 (2011). In 2004, GAE obtained their largest-
ever victory. Their newly elected Governor Purdue, once in office, signed Georgia
Senate Bill 193, restoring the job protections under the Fair Dismissal Act. Id.
2.
A Brief History of the Charter Systems Act and its Relation to Fair
Dismissal-Due Process: Prior to the Charter Systems Act of 2007, only individual
schools, not entire school systems, could become charters. In 2007 this changed
charter status.5 The Act rendered bipartisan support from the most activist
professional educational associations and teacher advocacy groups such as the
victory restoring dueprocess laws just three years prior. Instead, GAE, amongst
other education groups lobbied to insure the 2065(b)(5) language so that due
process of educators would be preserved and received assurances from its
explicitly expressed that the law's intent would still be to "provide for protection
of due process rights." See Megan L. Iorio, Alyssa P. Morris, Elementary and
Secondary Education: Amend Article 31 of Chapter 2 of Title 20 of the Official
5http://www.legis.ga.gov/legislation/en-US/display/20072008/SB/39
6See http://www.senate.ga.gov/committees/Documents/2007Minutesl20.pdf.
Minutes of the Georgia Senate Education and Youth Committee 2007 Legislative
Session, January 30, 2007.
12
"Charter Systems Act"; Provide for Legislative Find. 24 Ga. St. U. L. Rev. 121,
127 (2007). Consequently, the Charter Systems Act passed by a sweeping majority
and was embraced by the statewide leading teacher association advocacy groups,
primarily Georgia Association of Educators (GAE), after receiving assurances that
due process would be protected, having just obtained their hard-fought victory for
due process a few years prior with the victory of the Republican governor
reinstating the Fair Dismissal Act. E.g. GAE Educator's Rights Handbook, p. 4.
Regarding the question as to who would oversee the Charter Systems Act,
there was no question that the Legislature granted this authority with the State
Board: "The State Board may establish rules, regulations, policies, or procedures
consistent with this article relating to charter schools." O.C.G.A. 20-2-2065(a).
As such, it is within the purview of the State Board to determine that "O.C.G.A.
judicial deference to the State Board of Education's ruling that under the Charter
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Systems Act due process may not be waived and that Appellant only had tenure
because she was vested. Enumeration of Error Two:
The Superior Court erroneously interpreted Georgia law by finding that the State
Board had no authority or jurisdiction to address the validity of the Local Board's
conduct under the Charter System Agreement.
PART THREE JURISDICTION. STANDARD OF REVIEW & ARGUMENT
Appeals "appl[y] the 'any evidence' standard of review to the record supporting
the initial decision of the Local Board." Chatooga County Bd. of Educ. v. Searels.
302 Ga. App. 731, 732 (2010). However, appeals, such as this one, regarding
questions of law, are reviewed de novo. See generally Fort v. Rucker-Fort, 297 Ga.
App. 3, 4, 676 S.E.2d 398, 398 (2009). In this case, the Local Board incorrectly
held that because it is a charter system it waives the Fair Dismissal Act and that the
State Board of Education holds no appellate jurisdiction over this matter. As stated
above, this not only thwarts the intent of the Georgia Legislature in passing the
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law , but also that of the State Board's authority, the state agency to whom the
legislature has charged with the responsibility to: "establish rules, regulations,
policies, or procedures consistent with this article relating to charter schools."
O.C.G.A. 20-2-2065.
Relevantly, the law requires that judicial deference must be given the
agency's interpretation of statutes it is charged with enforcing by the Legislative
branch. Cook v. Bottesch 320 Ga. App. 796, 803 (2013). Thus, the onlyjudicial
deference this Court should offer is to the State Board of Education's
determination that the Charter Systems Act does not permit a waiver of due
process under the Fair Dismissal Act. Both the United States Supreme Court and
Georgia Supreme Court have already emphasized that judicial deference must be
given to state agency decisions. Specifically, the United States Supreme Court has
ruled that if a statute is silent or ambiguous with respect to the specific issue, the
court must defer to administering agency's reasonable interpretation. See Chevron
U.S.A. v. Natural Resources Defense Council. 467 U.S. 837, 843-846 (II), 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("a court may not substitute its own
7 See FN 3.
15
Other than providing this specific deference, this Court should review these
questions de novo.
A.
ARGUMENT
under the Charter Systems Act: The Georgia legislature and the State Board of
Education has made clear that charter systems may not waive due process for
educators and that in fact, the Charter Systems Act would "provide for protection
of due process rights." See FN3. The Superior Court decision thwarts due process
rights that have been established from the very birth of public education during the
late 1800's. Supra pp. 9-11. It further thwarts both the intent of legislature and the
state agency charged with enforcing the Charter Systems Act, O.C.G.A. 20-216
2065. Here, the Superior Court failed to give the State Board of Education the
proper judicial deference as is required by law Cook v. Bottesch, 320 Ga. App.
796, 803 (2013), in addition to failing to properly defer to its findings that charter
systems are in fact subject to due process laws. (R-146).
The State Board of Education's decision that charter systems may not waive
due process rights for educators comports with the Legislature's intention to
o
"provide for protection of due process rights, " by holding that the Charter Systems
Act cannot be read so broadly as to do away with due process rights for tenured
educators because 20-2-2065(b) states that charter systems are "[s]ubject to all
federal, state and local rules, regulations, court orders and statutes relating to civil
rights." There is no doubt that the right to due process, at the very least, relates to
civil rights, as enshrined under the Georgia Constitution, 5th, and 14th amendment.
The Merriam Webster dictionary actually defines "civil rights" as "the rights of
personal liberty guaranteed to United States citizens by the 13th and 14th
amendments to the Constitution." The very foundation of our civil rights are
8See FN 3.
17
the 14th amendment has "deeper and broader scope. It nullifies and makes void all
State legislation, and State action of every kind, which impairs the privileges and
immunities of citizens of the Unites States, or which injures them in life, liberty, or
property without due process of law..." Id.
Often referred to as a "Section 1983 action" and formally titled a 'Civil Action For
Deprivation of Rights,' this Civil Rights action can be filed against a government
officer for such a procedural due process violation. See 42 U.S.C. 1983; U.S.C.A.
Const. Amend. 14; Const. Art. 1, 1.
18
process rights" as expressed on the Senate floor9 Note the emphasis on the term
all within O.C.G.A. 20-2-2065(b)(5). (Emphasis added) Importantly, the Georgia
Supreme Court has held that fundamental rules of statutory construction require the
Courts to construe a statute according to its terms, and plain, ordinary meaning
taking into consideration the intent of the General Assembly) Atlanta Indep. Sch.
Sys. v. Atlanta Neighborhood Charter Sch.. Inc.. 293 Ga. 629, 748 S.E.2d 884
(2013). As such, it is notable that the General Assembly did not specifically list
every law relating to civil rights available under the sun because it used the word
all. The plain meaning of the term all within the context of O.C.G.A. 20-2-
2065(b)(5), naturally includes the civil right to due process as enshrined in Article
One, Section One of the Georgia Constitution10 and the Fourteenth Amendment of
9 FN 3.
10 Logically, all state laws relating to civil rights literally means allincluding Fair
Dismissal Act. Merriam Webster's dictionary defines the word "all" as the "whole
quantity, extent, duration, amount quality, or degree of; the whole; the whole
number of; any whatever; every." Simply put, all means all.
19
the U.S. Constitution which prohibits state and local government officials
from depriving any person of life, liberty, or property, without due process of law.
Even if the word all was not included so plainly and unambiguously, wellestablished Georgia law for decades has held that if the language used by the
legislature in a special act is ambiguous or doubtful in meaning, the ambiguity and
doubt will be resolved against harshness and injustice, and thus in favor of letting
the truth be known. Washington Nat. Ins. Co. v. Edwards. 102 Ga. App. 381, 383,
116 S.E.2d 514, 516 (1960). Hence, if the statute may be given two constructions,
one consistent with natural equity and justice, and the other not, the court should
give it the former construction. Jenkins v. State, 93 Ga. App. 360, 366, 92 S.E.2d
43, 47 (1956). Another rule of construction is that, where a law is susceptible of
more than one construction, it must be given that construction which is most
equitable and just. Ford Motor Co. v. Abercrombie. 207 Ga. 464, 468, 62 S.E.2d
209, 213 (1950). Without a doubt, the State Board of Education was irrefutably
correct in interpreting the statute in the most lawful, equitable and just manner-
ruling that charters are subject to aHJaws relating to civil rights including those
granting the procedural right to due process.
20
The Superior Court's erroneous decision which would suggest due process
rights for charter systems are waived unless teachers were vested with tenure prior
to the execution of the charter) doesn't only have the dangerous effect of depriving
Floyd County School's educators of their right to due process in the immediate
present and long range future. At the very worst, this decision will be used to
deprive due process rights of educators throughout the state of Georgia. And at the
very least, the Superior Court's decision will cause confusion with the law being
unequally and unevenly applied for educators from school district to school
district. As such, Ms. Day urges this Court to give deference to the State Agency
charged with enforcing the Charter Systems Act by affirming the relevant portion
of their decision which finds that due process may not be waived.
2. Contrary to the Superior Court's Decision, Floyd County Schools Did Not
Waive Due Process By Executing a Charter Agreement and Ms. Day Had A
Right To Due Process Regardless As To When She Became Vested: Local
Board policies adhered to the Fair Dismissal Act, for example see Local Board
policies adhered to the Fair Dismissal Act.11 Superintendent McDaniel wrote Ms.
11 See FN 1.
21
Day: "This letter is being sent pursuant to Georgia's Fair Dismissal Act" and
"pursuant to OCGA 20-2-940 et seq, a due process hearing with be held, before the
Floyd County Board of Education on April 8
445 for statements of the Local Board's Hearing Officer informing Ms. Day that
"this can be appealed to the state board within 30 days of this decision."
Even if in fact charter systems could choose to waive due process, which the
State Board correctly deemed they cannot, the Local Board admitted that: (1) it
adheres to Georgia's fair dismissal laws as part of its Local Board policies entitling
her to a fair dismissal hearing pursuant to the Fair Dismissal Act; (2) it has
afforded its employees due process protections, and (3) it has submitted to the
appellate jurisdiction of the State Board. (See FN 1. R 611-612, 663). In sum, the
policies, practices, rules and understandings created by the Local Board established
22
amendment.
understandings stemming from an independent source, which include not only state
law, but also the policies and practices of an institution to justify a legitimate claim
tii
2700, 33 L. Ed. 2d 570 (1972) In the Sindermann case, a college professor was
found to have "de-facto" tenure and thus a property interest which implicated due
process solely based on policies and practices of the institution even though no
vested contractual right or tenure provision existed. Similarly, in McKinney v.
Pate. 20 F.3d 1550, 1554 (11th Cir. 1994), the county policy manual, which
provided that a permanent employee could be dismissed only for cause and
outlined the procedures by which an employee could be terminated, established
23
public employment cases as the federal due process clause. Under both clauses, the
Just like in the case at bar, the Court of Appeals has held that "a public
employee has a property interest in his job if his employment allows dismissal only
for cause. An explicit contractual provision, rules, or common understandings may
determine whether an employee is terminable at will or only for cause. The issue is
not dependent upon the presence of the specific words 'for cause' in the employer's
analogous to allowing termination only for cause. The expectations of the parties
involved are also relevant to this issue. DeClue v. City of Clayton. 246 Ga. App.
487,489, 540 S.E.2d 675, 677 (2000)
Here, local board explicitly written policies and practices established Ms.
Day's right to due process-the Local Board affirms that it "adheres to the Georgia
legal code" as "it relates to separation of certified personnel from employment with
the school system." See FN 1. The Local Board agreed to afford its tenured
employees the right to fair dismissal and its policies adhere to Georgia's fair
In sum, Mrs. Day holds a constitutionally protected property interest and due
process right for reasons aforementioned and Local Board must adhere to fair
dismissal laws not only because they are not permitted to waive such civil rights
pursuant to the charter statutes but also because their own policies afford her
such an entitlement. {See FN 1, R-663, R-445).
B.
To Address The Validity of The Local Board's Conduct Under the Charter
law in in deciding that the State Board had no authority or jurisdiction to address
the validity of the Local Board's conduct under the Charter System Agreement. (R-
149). This holding is not only contrary to the law of Georgia which charges the
State Board of Education's authority under the Georgia Charter Systems Act, but is
Moreover, it irrationally suggests that the only recourse for whether a State
Board determines whether a Local Board is violating their charter agreement
would be to institute termination proceedings, i.e. to terminate the charter pursuant
to O.C.G.A. 20-2-2068. This would lead to chaos and absurdity as there are
certainly many scenarios where a State Board of Education encounters a Local
Board to be in violation of Georgia law that implicates a breach of a material term
of their charter agreement. For example, where local school systems (whether they
are classified as status quo, IE2, or a charter systems) fail to appropriately adhere
to various health and safety laws, fail to utilize local school governance, or fail to
appropriately comply with any various number of laws that they are subject to
pursuant any form of various agreement a school district might have with the State.
If in fact such circumstances would arise, the Superior Court's order implies that
26
the only option the State Board might have would be to initiate proceedings to
terminate charteran extremist response that might be colloquially described as
"throwing the baby out with the bath water."
The State Board of Education is the appellate body for handling all local
controversies concerning the administration of school law. In any appeal under
O.C.G.A. 20-2-1160, whether if it be a due process hearing pursuant to the fair
dismissal act as in Ms. Day's case or in any other appeal, the State Board has the
authority to determine if the record establishes that the Local Board acted
arbitrarily and capriciously and thus, may lawfully reverse the Local Board's
decision pursuant to their authority under Georgia law. See Wilmer at 462.
The truth is that the Superintendent did admit to excluding Local School
Governance Teams (R-(R-264-265, 281, 286) completely from the decision "to
implement the RIF and in the personnel decisions that were made in implementing
the RIF." Gilda Day at 4. Consequently the State correctly found that, "the Local
Board erred by declining to rule on this issue and excluding Appellant's evidence
regarding the Local Board's failure to follow the charter system agreement." Id
This failure constitutes arbitrary and capricious conduct. Id at 5.
27
did not have the authority or jurisdiction to address the validity of the Local
Board's conduct under the Charter System Agreement. First, requiring that the
State Board initiate the termination of a charter each and every time a charter
system violates a material term of their agreement would be a draconian, extremist
reaction that would throw school systems into chaos. Second, it hamstrings the
state Department of Education at being able to carry out their legislative mandate
28
and would create havoc for Georgia public education in contravention of Georgia
law and its Constitution.
Education's determination that the Local Board acted arbitrarily and capriciously
by excluding Local School Governance in violation of their charter agreement
when it decided to RIF Appellant Day. The law is clear: even if a Local Board's
decision to reduce employment positions can be justified by any facts in the record,
the Local Board's decision will be reversed if its reduction in force violated the
law, or resulted from an abuse of discretion, i.e., resulted from arbitrary and
capricious conduct. Lisa Parker et al. v Montgomery Board of Education Case Nos.
2012-28, 29, 31. (Ga. SBE. April 5, 2012). Moreover, non-renewal must be
In sum, the granting of a charter system in Georgia does not grant a Local
Board the license to arbitrarily and capriciously choose to ignore their own Board
policy and the Charter agreement itself. Under Georgia law, "local boards may not
operate arbitrarily." Terry v. Houston Ct. Bd. Of Educ. 178 Ga. App. 296 (1986).
29
Consequently, Ms. Day respectfully requests that this Court grant its appeal
to reverse the Floyd County Superior Court decision and rather to affirm the
findings of the State Board of Education, especially that portion which held that
charter systems may not waive due process/fair dismissal for teachers.
CONCLUSION:
Based on the facts and authority set forth above, the Appellant Gilda Day
submits that the Order of the Floyd County Superior Court should be overturned.
The Superior Court made errors in deciding the State Board of Education's
decision should be reversed, and now threatens overturning over a century of well
established law based on erroneous interpretations that contradict the intent of the
Legislature and cannot be allowed to stand. Based on the foregoing, it is
respectfully requested that the Court of Appeals fairly interpret the law, applying
justice not only to the Appellant and Floyd County educators but to the thousands
tlZ^C^
Julie Oinonen
30
Mario Williams
31
CERTIFICATE OF SERVICE
This shall certify that I have this day served counsels with a copy of the
W^
June Oinonen
Mario Williams
32