brief of appellant gilda day v floyd county board of education final (1)

7/14/2019 Brief of Appellant Gilda Day v Floyd County Board of Education Final (1)

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STATE BOARD OF EDUCATION

GEORGIA

GILDA DAYAppellant,

vs.

FLOYD COUNTY BOARD OFEDUCATION,

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 Board’s 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 Board’s

policy prohibited Ms. Day’s 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 Board’s mandated policy of prohibiting RIF’s 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 possible — not 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 Superintendent’s conduct caused Ms. Day, one of the highest

qualified educators, to be RIF’d 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 Superintendent’s handling of the RIF was arbitrary and capricious,

evidenced by the fact that he deliberately violated numerous obligations under Floyd County

School’s Charter Agreement by excluding all local school governance in his decisions. (R-113,



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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 administrator’s 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.)

1 See also FCS Board Policy GBN.



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B. The Superintendent’s Plan Violated GBKA With An End Around Of Its

Own Policy By Inherently Failing To Distinguish Demonstrated Competence

And Expertise Between Ms. Day’s 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 FCS’s RIF plan itself provides an admission that “criteria primar ily 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. Day’s 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 stage — the 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. Day’s 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



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expertise” amongst Ms. Day and her colleagues, FCS’s 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. Day’s lack of seniority, as compared to other counselors, resulted in her being

RIF’d or non-renewed for the 2013-2014 school year.” (See S-5, explaining that Ms. Day’s lack

of seniority caused her to be RIF’d.) 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. Day’s 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 FCS’s 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

administrator’s 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 4’s, distinguished. (See R-177.)

Significantly, the Superintendent’s 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. Day’s “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 RIF’d 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-153-

157.) 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 FCS’s

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. Day’s 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 Principal’s 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

2 See Transcript p. 264. This must be considered as evidence because the hearing officer did notsustain Mr. Duggan’s objection and allowed Ms. Day to complete her testimony. Also pursuantto Georgia’s new evidence code O.C.G.A. § 24-2-801 (d)(2)(d) excludes from hearsay astatement by a party’s employee concerning a matter within the scope of employment madeduring the existence of the relationship. Principal Hubbard made this statement to Ms. Daywithin the scope of employment, stating it while he was informing her that she would be non-renewed 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-by-

side 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 didn’t 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 administrator’s 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. Day’s 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 government’s 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 Superintendent’s 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

Superintendent’s conduct of completely excluding local school governance — before RIF’ing 120

educators — violated the Charter’s 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 RIF’d and how — and 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 County’s 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



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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 Superintendent’s

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. Day’s 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. Day’s expert opinion. In fact,

on cross examination by opposing counsel, Ms. Day’s 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 Division’s 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. Day’s hearing

3 See Plaintiff’s Reply Supplement to Motion to Dismiss With Prejudice as attached to PretrialMotion 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. Day’s 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. Day’s 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 Board’s precedent and Georgia

law to interpret the mandatory language of the GBKA Policy demonstrates that Ms. Day’s

protected fair dismissal rights were violated by the Superintendent because he based Ms. Day’s

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 FCS’s 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 FairDismissal.

Originally,“[t]he Fair Dismissal Act [encompassed] OCGA §§ 20 – 2 – 940 through 20 – 2 –

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 2 nd, 2012,

4 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, 571 – 72, 92S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). Under the Georgia charter statute, charter schools andsystems 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 thefederal government but also “all state, and local rules, regulations, court orders, and statutesrelating to civil rights” 2013 Georgia Laws Act 335 (H.B. 283)). Thus the right of due processunder the Fair Dismissal Act applies. Georgia law, under the Fair Dismissal Act, creates thisdue process right and property interest in continued employment for tenured teachers that maynot be denied without granting certain substantive and procedural due process rights. O.C.G.A. §20 – 2 – 942(b)(1) provides that: “[a] teacher who accepts a school year contract for the fourthconsecutive school year from the same local board of education may be demoted or the teacher'scontract may not be renewed only for those reasons set forth in subsection (a) of Code Section20 – 2 –940.” 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. S-

5, 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 administrator’s observations and

knowledge.” Relevantly, regarding the term shall that is found both in O.C.G.A. § 20-2-948 and

GBKA’s Policy, the word is a term of command —“the import of the language is mandatory.”

State v. Collier , 279 Ga. 316, 317 (2005). Furthermore, GBKA Policy mandates that — only —

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.” Black’s 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 Board’s 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” when — as in

this case — GBKA 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 administrator ’s observations and

knowledge,” Lisa Parker supra, at 5.



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2. The Superintendent Violated Ms. Day’s 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 RIF’d 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 didn’t 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 “4’s” (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 “3’s’” 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 4’s, the most and

highest distinguished possible. (See R-177.)

The Superintendent admits he never compared or even evaluated Ms. Day’s professional

effectiveness on improving graduation rates, which is an expressed goal of the Floyd County’s

School’s charter . (Compare, R-153-157, for admission, with Ex. T-26 for statement by FCS’s

Chief Operator and Ms. Day’s former supervisor , stating “Gilda’s 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 Superintendent’s 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 RIF’d. (Compare R-153, 225-228, for admission, with Ex. T-20.) He

admitted he didn’t 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 knowledge — outside of her length of service — from her supervisors or principal

about her “demonstrated competency and expertise.” (Compare R-157, admitting he never

attempted to obtain any knowledge from Ms. Day’s 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.

Day’s] on this list,”5 with R-152-157, Superintendent’s admission that he did not even attempt

to get knowledge and observations from the central office administrator who oversees all

5 See R-264. This must be considered as evidence because the hearing officer did not sustain Mr.Duggan’s objection and allowed Ms. Day to complete her testimony. Also pursuant to Georgia’snew evidence code O.C.G.A. § 24-2-801 (d)(2)(d) excludes from hearsay a statement by a party’s employee concerning a matter within the scope of employment made during the existenceof 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 true — and mandatory — collaborative effort

regarding educators losing their jobs in violation of both the GBKA Policy and Charter. (Ex. T-

24.)

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 RIF’d. (R-186, R- 155 and

Ex’s 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.)



19

In sum, the combination of the Superintendent doing virtually nothing to determine Ms.

Day’s “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 boar d’s

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. Day’s Fair Dismi ssal

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 teacher’s 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



20

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. Day’s 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. Day’s 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.

Day’s 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. Day’s 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



21

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. Day’s 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 Superintendent’s “speculation” was simply not based on any objective evidence, or rational

decision making — simply 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 Board’s ruling.



22

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 board’s 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 Board’s 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 Superintendent’s

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. Day’s 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 Team’s perspective concerning the R IF of Ms. Day. The fact is

that Coosa High School’s LSGT member’s 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 administrator’s 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. (R-

236.) The local Board violated Ms. Day’s right to due process by failing to fully allow her to



23

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 “what’s 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),

6 See Pretrial Motion to Dismiss as attached to the record.

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



24

the Superintendent responded: “And I appreciate that question. I really do neither. . .I just don’t

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. Day’s detriment.

Finally, Ms. Day’s right to a fair dismissal was violated in that the Local Board nearly

quashed all of Ms. Day’s 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. Day’s 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. Day’s due process rights, the Local Board’s 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.



25

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. Day’s non-renewal.

As discussed supra, Ms. Day’s 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. Day’s 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.)

9 See Exhibit T-27, Page 4, Item 13, section B of the Charter —“School Level Governance: TheGoverning Council shall maximize school level governance which is defined as decision makingauthority in personnel decisions, financial decisions, curriculum and instruction, resourceallocation, establishing and monitoring the achievement of school improvement goals and schooloperations.” Also see Exhibit T-17 and transcript pages 113-114.

10 See Record pages 115-124 and 143-148.



26

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 (R-

113-114.):

25 Q Now, Dr. McDaniel, you've admitted that you

1 did not utilize local school governance teams in2 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 RIF’d were he, April Childers

(data analyst), and Knox Wilson (HR director)(R-130, 135.):

13015 Q So please elaborate for me. Who actually16 was on this RIF committee to select who would be17 RIFed?18 A There were three people involved primarily19 and basically with the RIF plan: the superintendent,20 obviously; the HR director; and our data analyst.

1354 Q But I'm just trying to get the people5 clear, the names of the people clear.6 A Okay.7 Q And you're saying regarding -- the only8 people doing the picking was Knox, April, and you;9 is that correct?10 A That is correct.11 Q Okay. Now, at some point to do this12 organized, since we obviously aren't mind-readers,13 we would have had to actually sit down and actually14 come up with the list. Correct?15 A That is correct.16 Q And write things down as to which folks are17 getting the PDPs and which folks have the18 unsatisfactory evals and which folks are going to be19 RIFed. Correct?20 A That is correct.

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



27

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:

21716 Q Very good, sir. And I understand that you17 were -- out of the three people in charge of the RIF18 selection process, implementing the actual plan19 part, it was yourself, Superintendent McDaniel, and20 Ms. Childers. Is that correct?21 A That is correct.22 Q Is there anybody else we don't know about?23 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 Charter —“School Level Governance: TheGoverning Council shall maximize school level governance which is defined as decision makingauthority in personnel decisions, financial decisions, curriculum and instruction, resourceallocation, establishing and monitoring the achievement of school improvement goals and schooloperations.”



28

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. Day’s 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 board’s

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. Day’s

12 Exhibit T-17.



29

non-renewal should be reversed. Moreover the local board and hearing officer’s failure to

consider these issues and admit evidence of such violated Ms. Day’s 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 Board’s

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 OINONENGa. State Bar No. 722018MARIO B. WILLIAMS

Ga. State Bar No. 235254Attorneys for GILDA DAY AppellantWILLIAMS OINONEN LLC44 Broad Street Ste 200Atlanta, Georgia 30303http://www.goodgeorgialawyer.comPh) 404-654-0288Fax) 404-592-6225



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@brinson-

askew.com and depositing a copy via U.S. mail to:

Mr. Stewart Duggan, Esq.Brinson, Askew, Berry, Seigler, Richardson & Davis, LLP615 West First Street

P. O Box 5007Rome, Georgia 30162-5007

This 22nd day of JULY 2013

By: ____________________________

Julie OinonenGeorgia Bar No. 722018Counsel for APPELLANT

Williams Oinonen LLCThe Grant Building, Suite 20044 Broad Street, N. W.Atlanta, Georgia 30303Telephone: 404-654-0288

Fax: 404-592-6225