GA Code § 20-2-73 (2021)
2021 Georgia Code|Title 20 - Education|Chapter 2 - Elementary and Secondary Education|Article 3 - Local Boards of Education|§ 20-2-73. Suspension and Removal of Local School Board Members Upon Potential Loss of Accreditation or Where One-Half or More of Schools in System Are Turnaround Eligible Schools; Procedures; Petition for Reinstatement; Prohibition on Use of Public Funds for Litigation Expenses; Reimbursement of Expenses

    Notwithstanding Code Section 20-2-54.1 or any other provisions of law to the contrary, if:   A local school system or school is placed on the level of accreditation immediately preceding loss of accreditation for any reason or reasons by one or more accrediting agencies included in subparagraph (A) of paragraph (6) of Code Section 20-3-519, the local board of education shall notify the State Board of Education in writing within three business days of such placement and the State Board of Education shall conduct a hearing in not less than ten days of such notice nor more than 90 days and recommend to the Governor whether to suspend all eligible members of the local board of education with pay; or   One-half or more of the schools in a local school system are turnaround eligible schools, as defined in subsection (a) of Code Section 20-14-45, for the fifth or more consecutive year, the Department of Education shall notify the State Board of Education in writing within three business days of the publication of the list of turnaround eligible schools by the Office of Student Achievement, and the State Board of Education with input from the State School Superintendent shall conduct a hearing in not less than ten days of such notice nor more than 90 days and recommend to the Governor whether to suspend all eligible members of the local board of education with pay; provided, however, that this subparagraph shall be tolled for a local board of education while under a contract amendment or intervention contract pursuant to Code Section 20-14-45 so long as such local board of education is in substantial compliance with the terms of such contract amendment or intervention contract.     A majority of the members of a local board of education may petition the State Board of Education to continue any hearing scheduled under this subsection. Upon a showing of good cause, the state board may in its sound discretion continue any such hearing. Notwithstanding any other provision of law, deliberations held by the State Board of Education pursuant to this subsection to formulate its recommendation to the Governor shall not be open to the public; provided, however, that testimony shall be taken in an open meeting and a vote on the recommendation shall be taken in an open meeting following the hearing or at the next regularly scheduled meeting. If the State Board of Education makes such recommendation, the Governor may, in his or her discretion, suspend all eligible members of the local board of education with pay and, in consultation with the State Board of Education, appoint temporary replacement members who shall be otherwise qualified to serve as members of such board.     Any local board of education member suspended under this Code section may petition the Governor for reinstatement no earlier than 30 days following suspension and no later than 60 days following suspension. In the event that a suspended member does not petition for reinstatement within the allotted time period, his or her suspension shall be converted into permanent removal, and the temporary replacement member shall become a permanent member and serve out the remainder of the term of the removed member.   Upon petition for reinstatement by a suspended local board of education member, the Governor or his or her designated agent shall conduct a hearing for the purpose of receiving evidence relative to whether the local board of education member's continued service on the local board of education is more likely than not to improve the ability of the local school system or school to retain or reattain its accreditation or to improve the ratings of the schools in the local school system so that less than one-half of the schools in such local school system are on the turnaround eligible schools list in subsequent years. The appealing member shall be given at least 30 days' notice prior to such hearing. Such hearing shall be held not later than 90 days after the petition is filed and in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that the individual conducting the hearing shall have the power to call witnesses and request documents on his or her own initiative. For purposes of said chapter and any hearing conducted pursuant to this Code section, the Governor shall be considered the agency, and the Attorney General or his or her designee shall represent the interests of the Governor in the hearing. If it is determined that it is more likely than not that the local board of education member's continued service on the local board of education improves the ability of the local school system or school to retain or reattain its accreditation or to improve the ratings of the schools in the local school system so that less than one-half of the schools in such local school system are on the turnaround eligible schools list in subsequent years, the member shall be immediately reinstated; otherwise, the member shall be permanently removed, and the temporary replacement member shall become a permanent member and serve out the remainder of the term of the removed member or until the next general election which is at least six months after the member was permanently removed, whichever is sooner. Judicial review of any such decision shall be in accordance with Chapter 13 of Title 50.     Subparagraph (B) of paragraph (1) of subsection (a) of this Code section shall apply to a local school system or school which is placed on the level of accreditation immediately preceding loss of accreditation on or after April 20, 2011.   Subparagraph (B) of paragraph (1) of subsection (a) of this Code section shall apply to a local school system which, on or after July 1, 2017, has one-half or more of the schools in the local school system on the turnaround eligible schools list for the fifth or more consecutive year.     For purposes of this Code section, an eligible member of a local board of education shall mean a board member who:   Was serving on the local board at the time the accrediting agency placed the local school system or school on the level of accreditation immediately preceding loss of accreditation; or   Was serving on the local board at the time the local school system had one-half or more of the schools in the local school system on the turnaround eligible schools list for the fifth or more consecutive year and had served on the local board for at least the immediately preceding two years.     A local board of education shall not expend any public funds for attorney's fees or expenses of litigation relating to proceedings initiated pursuant to this Code section except to the extent such fees and expenses are incurred prior to and through the recommendation of the state board as provided for in subsection (a) of this Code section; provided, however, that nothing in this subsection shall be construed to prohibit an insurance provider from covering attorney's fees or expenses of litigation under an insurance policy.   Any suspended board member who is reinstated by the Governor pursuant to this Code section may be reimbursed by the local board of education for his or her reasonable attorney's fees and related expenses incurred in pursuing such reinstatement.     (Code 1981, §20-2-73, enacted by Ga. L. 2010, p. 452, § 8/SB 84; Ga. L. 2011, p. 1, § 12/HB 326; Ga. L. 2011, p. 26, § 3/SB 79; Ga. L. 2011, p. 752, § 20/HB 142; Ga. L. 2013, p. 763, § 1/HB 115; Ga. L. 2017, p. 75, § 3-1/HB 338; Ga. L. 2020, p. 62, § 2-1/SB 68.)    The 2017 amendment,  effective July 1, 2017, rewrote subsection (a); in subsection (c), inserted "or to improve the ratings of the schools in the local school system so that less than one-half of the schools in such local school system are on the turnaround eligible schools list in subsequent years" at the end of the first sentence and the middle of the fifth sentence; designated the existing provisions of subsection (d) as paragraph (d)(1); substituted "Subparagraph (B) of paragraph (1) of subsection (a)" for "Subsection (a)" at the beginning of paragraph (d)(1); added paragraph (d)(2); and substituted the present provisions of subsection (e) for the former provisions, which read: "For purposes of this Code section, an eligible member of a local board of education shall mean a board member who was serving on the local board at the time the accrediting agency placed the local school system or school on the level of accreditation immediately preceding loss of accreditation."    The 2020 amendment,  effective July 1, 2021, in subparagraph (a)(1)(B), inserted a comma following "Office of Student Achievement" and inserted "with input from the State School Superintendent".   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2011, "subparagraph (A) of paragraph (6) of Code Section 20-3-519" was substituted for "subparagraph (6.1)(A) of Code Section 20-3-519" in paragraph (a)(1) (now subparagraph (a)(1)(A)); and "April 20, 2011" was substituted for "the effective date of this subsection" in subsection (d) (now paragraph (d)(1)).    Pursuant to Code Section28-9-3, in 2011, the amendment of paragraph (a)(1) (now subsection (a)) of this Code section by Ga. L. 2011, p. 1, § 12, was treated as impliedly repealed and superseded by Ga. L. 2011, p. 26, § 3, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).   Editor's notes.   - Ga. L. 2011, p. 1, § 17/HB 326, not codified by the General Assembly, provides, in part, that the 2011 amendment shall be applicable to postsecondary students beginning in the fall of 2011.   Ga. L. 2011, p. 26, § 4/SB 79, not codified by the General Assembly, provides: "If a local school system or school is placed on the level of accreditation immediately preceding loss of accreditation on or after July 1, 2010, but prior to the effective date of this Act, local board of education members elected or appointed on or after July 1, 2010, but prior to the effective date of this Act shall be subject to the provisions of Code Section 20-2-73 as they existed on the day prior to the effective date of this Act." The Act became effective April 20, 2011.   Ga. L. 2011, p. 752, § 54(e)/HB 142, not codified by the General Assembly, provides: "In the event of an irreconcilable conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2011 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to paragraph (a)(1) of this Code section by Ga. L. 2011, p. 752, § 20/HB 142, was not given effect.   Ga. L. 2017, p. 75, § 1-1/HB 338, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'First Priority Act - Helping Turnaround Schools Put Students First.'"   Law reviews.   - For article, "Education: Postsecondary Education," see 28 Ga. St. U.L. Rev. 193 (2011). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 169 (2017).   JUDICIAL DECISIONS   Constitutionality.    - Whether characterized as setting a qualification for continued service on the local board in the extraordinary circumstance of an imminent loss of accreditation, or whether characterized as providing for removal for malfeasance, misfeasance, or nonfeasance in office, O.C.G.A. § 20-2-73 was held by the Georgia Supreme Court to be a permissible exercise of the legislative power to provide for the removal for cause of members of local boards. DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349, 751 S.E.2d 827 (2013).    Georgia Supreme Court held that the removal of local school board members under O.C.G.A. § 20-2-73 was not an unconstitutional infringement upon the governing authority of local school boards, nor was it a violation of any other constitutional provision or right. DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349, 751 S.E.2d 827 (2013).