The United States District Court for the Northern District of Georgia has certified questions to this Court about the constitutionality of OCGA § 20-2-73, which provides in certain circumstances for the suspension and removal of members of local boards of education.
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 ... its accreditation. ... 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... its accreditation, 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.
OCGA § 20-2-73 (c). The statute provides that any hearing on a petition for reinstatement is to be conducted pursuant to the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq., and it provides as well for judicial review of a decision to permanently remove a member. Id.
From the record in this case, it appears that the DeKalb County School District (the “DeKalb School District”) was accredited by the Southern Association of Colleges and Schools (“SACS”), a private accrediting agency recognized by Georgia law. In December 2012, SACS placed the DeKalb School District on “accredited probation” for reasons related to the governance of the DeKalb County Board of Education (the “DeKalb Board”),
In the meantime, Dr. Eugene P. Walker—the chair of the DeKalb Board and one of the suspended members — filed a lawsuit in the United States District Court, alleging that OCGA § 20-2-73 violates both the United States Constitution and Georgia Constitution, and seeking declaratory and injunctive relief.
In his briefs to this Court, Walker contends that OCGA § 20-2-73 violates the Georgia Constitution in several respects. First, he argues that the General Assembly has no authority under our Constitution to provide by statute for the suspension and removal at law of members of a local board of education, who are constitutional officers. Second, he contends that even if the General Assembly has such authority, OCGA § 20-2-73 unconstitutionally delegates the power to suspend and remove the members of a local board of education to a private accrediting agency. Third, he argues that OCGA § 20-2-73 unconstitutionally vests the power of removal in the Governor, thereby effectively giving the Governor the power to control and manage local school systems, in violation of the separation of powers. Fourth, he asserts that OCGA § 20-2-73 unconstitutionally denies due process to members of a local board of education. We are unpersuaded by these contentions, and we conclude that OCGA § 20-2-73 does not violate the Georgia Constitution. Accordingly, we answer the questions of the District Court in the negative.
1. We begin with the contention that the General Assembly is without the authority under the Georgia Constitution to provide by statute for the removal at law of a member of a local board of education. The Constitution vests “[t]he legislative power of the state” in the General Assembly, Ga. Const, of 1983, Art. III, Sec. I, Par. I, and as we have explained, the lawmaking power of the General Assembly is “plenary.” Bryan v. Ga. Public Svc. Comm.,
(a) For several reasons, our recognition of a strong presumption of constitutionality is especially sound in this case. First, it is a fundamental principle of our constitutional tradition that no public officer — whether constitutional or only statutory — is above the law. See United States v. Lee,
Second, the notion that the power to provide for the removal of public officers — even constitutional officers — inheres in the legislative power finds support in our history and precedents. Throughout our history, the General Assembly has understood its legislative power to include the power to provide by general law for the removal of local constitutional officers for cause, notwithstanding that the Constitution did not explicitly and specifically confer such a power, and in some cases, even with respect to officers for whom the Constitution made other provision for their removal.
• The General Assembly enacted a statute in 1799 12 that provided for the removal of a clerk of the superior court upon “conviction ... for malpractice in office,” Cobb’s Digest, p. 198, notwithstanding that the clerk was a constitutional officer, Ga. Const, of 1798, Art. Ill, Sec. X, that the clerk was subject to removal by impeachment, Ga. Const, of 1798, Art. I, Sec. X, and that the Constitution made no express provision for the removal of a clerk, other than by impeachment.13
• In 1833, the General Assembly enacted a Penal Code, Section 180 of which provided for a sheriff to “be dismissed from office” upon conviction for “voluntarily permitting] or suffering] [an] offender [in his custody] to escape and go at large,” and Section 181 of which provided, for a sheriff to “be dismissed from office” upon conviction for “refus [ing] to receive and take charge of [a] person [charged with an indictable offense].” Cobb’s Digest, p. 807. At that time, the sheriff was a constitutional officer, and with respect to his removal, the Constitution of 1798 provided only that the sheriff was subject to removal “by sentence on impeachment[ ] or by the governor on the address of two-thirds of the justices of the inferior court and of the peace in the county.” Ga. Const, of 1798, Art. Ill, Sec. XI. As to both clerks of the superior court and sheriffs, the Penal Code of 1833 also provided, in Section 195, that “[a]ny public officer who shall... be guilty of extortion in demanding and receiving other and greater fees than by law are allowed him ... on conviction shall be punished by fine at the discretion of the [c]ourt, and shall moreover be dismissed from office.” Cobb’s Digest, p. 809.
• The General Assembly enacted a statute in 1865 to provide for judges of the superior court to convene a trial by special jury as to the incapacity of the county ordinary, and if the ordinary was found by the special jury to be incapacitated—by virtue of either physical or mental disability—he would be removed from office. Ga. L. 1865 Ex. Session, p. 58, §§ 2-3. At that time, the ordinary was an elected constitutional officer, Ga. Const, of 1861, Art. IV, Sec. Ill, Par. V, the ordinary was subject to removal by impeachment, Ga. Const, of 1861, Art. II, Sec. Ill, Par. IV, and the Constitution made no provision for the removal of the ordinary, other than by impeachment.14
• In 1925, the General Assembly enacted a statute to provide for the removal of a tax collector by the Governor upon a finding that the tax collector failed or refused to pay over moneys owed to the State or to other county officers, or that the tax collector made a false return. Ga. L. 1925, p. 79, § 5 (now codified, as subsequently amended, at OCGA § 48-5-145). By that time, the tax collector had been identified as a constitutional county officer. See Morris v. Glover,121 Ga. 751 , 754 (49 SE 786 ) (1905). By the Constitution of 1877, the tax collector was removable by impeachment (Art. Ill, Sec. VI, Par. Ill) and upon conviction “for malpractice in office” (Art. XI, Sec. II, Par. I). The Constitution of 1877, however, made no other express provision for the removal of the tax collector.
• In 1933, the General Assembly enacted a statute to provide for the Governor to suspend or remove a county tax collector, after a hearing, upon a finding that the tax collector failed to timely submit his account for settlement, or that he failed to promptly cure defaults ascertained upon examination of the account. Ga. L. 1933, p. 78, § 10 (now codified, as subsequently amended, at OCGA § 48-5-155). Again, under the Constitution of 1877, the tax collector was a constitutionalcounty officer, the tax collector was subject to removal by impeachment or conviction “for malpractice in office,” and the Constitution made no other provision for the removal of the tax collector.
• The General Assembly enacted a statute in 1978 providing that, “[i]f the [tax] digest is made out so badly as not to answer the purpose of the tax laws, the tax receiver or tax commissioner ... shall be removed from office by the governing authority of the county on the request of the [State Revenue] Commissioner.” Ga. L. 1978, p. 309, § 2 (now codified at OCGA § 48-5-205). At the time, the tax receiver and tax commissioner were constitutional county officers, see Employees Retirement System v. Lewis,109 Ga. App. 476 , 479 (2) (a) (136 SE2d 518 ) (1964),15 and the Constitution made no provision for their removal other than by impeachment or upon conviction for malpractice.
The understanding of the General Assembly about the broad scope of its legislative power with respect to the removal of local constitutional officers goes back more than 200 years, and though that legislative precedent might not be dispositive, it is entitled to some respect. See generally Youngstown Sheet & Tube Co. v. Sawyer,
Although sparse, the judicial precedents point in the same direction. Nearly a century ago, our Court of Appeals held that the constitutional enumeration of certain means of removal of public officers does not necessarily foreclose removal otherwise by law, and in so doing, it acknowledged the inherent power of the General Assembly to provide by law for the removal of such officers — even local constitutional officers — subject, of course, to any constitutional limitation of that power. See Kent v. State,
(b) Nothing in the Constitution of 1983 “clear [ly] and palpabl[y]” limits the power of the General Assembly to provide by statute for the removal for cause of local constitutional officers. To begin, we note that the Constitution of 1983 expressly provides that the General Assembly may set additional “qualifications” beyond those required by the Constitution itself to hold local constitutional offices — local boards of education (Art. VIII, Sec. V, Par. II), local school superintendents (Art. VIII, Sec. V, Par. Ill), and constitutional county officers (Art. IX, Sec. I, Par. Ill) — and these express provisions seem to confirm the presumption that the General Assembly may provide by law for the removal of such officers. After all, as we said recently in Roberts v. Deal,
(i) First, Walker argues that the power of the General Assembly to provide by general law for the removal of members of local boards of education is inconsistent with the constitutional commitment of the management and control of local school systems to locally elected boards of education. The Constitution provides that “[e]ach school system shall be under the management and control of a board of education, the members of which shall be elected as provided by law.” Ga. Const, of 1983, Art. VIII, Sec. V, Par. II. The discretion of the local board to manage and control the school system is, as we have said before, “broad.” Thornton v. Clarke County School Dist.,
Moreover, the Constitution makes public education not only the business of local jurisdictions, but also the State as a whole. See Ga. Const, of 1983, Art. VIII, Sec. I, Par. I (“The provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia.” (Emphasis supplied)). Although school systems are committed to the management and control of local boards of education, the State has a substantial interest in ensuring that those local boards function competently and in a manner that does not imperil the education or future prospects of the students enrolled in the school systems. And although the Constitution provides that members of local boards be elected, it specifically contemplates a role for the State, leaving the time, place, and manner of the elections to the General Assembly, expressly providing that the General Assembly may impose “additional qualifications” to hold the office beyond those required by the Constitution itself, Ga. Const, of 1983, Art. VIII, Sec. V, Par. II, and providing that the power to fill vacancies on such boards may be exercised by the Governor or another public officer designated by
(ii) Second, Walker notes that the Constitution of 1983 specifically authorizes the General Assembly to provide by general law for the removal of certain constitutional officers — the state constitutional boards and district attorneys — but says nothing expressly about the removal at law of local constitutional officers, including members of local boards of education. This constitutional silence about the removal of members of local boards can only be understood, Walker urges, to deny the General Assembly the power to provide for their removal by general law. Although this textual argument has some superficial appeal, it loses that appeal upon closer examination of the constitutional history of the State, the structure of the Constitution of 1983, and the original understanding of the Constitution of 1983 as evidenced by legislation enacted contemporaneous with its adoption.
First, remember that the General Assembly has for many years treated state constitutional officers and local constitutional officers differently with respect to removal by general law. At least by the turn of the Twentieth Century, the General Assembly seems to have given up the idea that it might provide by general law for the removal of state constitutional officers except to the extent that the Constitution explicitly authorized it to do so. See note 11 supra. But beginning as early as 1799, and continuing right up to the adoption of the Constitution of 1983, the General Assembly has enacted laws to provide for the removal of local constitutional officers for cause, even where the Constitution did not specifically confer such a power, and even where the Constitution otherwise provided a means for the removal of such officers. And the courts have upheld those statutes. See, e.g., Kent,
Moreover, until the Constitution of 1983, the impeachment power in this State ran equally to all constitutional officers, both state and local. See, e.g., Ga. Const, of 1798, Art. I, Sec. X (“all persons who have been or may be in office”); Ga. Const, of 1861, Art. II, Sec. Ill, Par. IV (same); Ga. Const, of 1865, Art. II, Sec. Ill, Par. IV (same); Ga. Const, of 1868, Art. Ill, Sec. Ill, Par. V (“all persons who shall have been or may be in office”); Ga. Const, of 1877, Art. Ill, Sec. VI, Par. Ill (“all persons who shall have been, or maybe, in office”); Ga. Const, of 1945, Art. Ill, Sec. VI, Par. Ill (“all persons who shall have been or may be in office”); Ga. Const, of 1976, Art. Ill, Sec. VI, Par. I (same). That changed, however, with the Constitution of 1983, which limited the impeachment power to state officers: “The House of Representatives shall have the sole power to vote impeachment charges against any executive or judicial officer of this state or any member of the General Assembly.” Ga. Const, of 1983, Art. Ill, Sec. VII, Par. I (emphasis supplied). The contemporary understanding in American law generally is that, “where a state constitution fixes the term of a public officer and provides for the officer’s removal by impeachment, impeachment is the sole remedy to effect removal from office.” 63C AmJur2d, Public Officers & Employees § 214. Although Georgia might historically have hada different understanding—at least
And indeed, that is exactly what the Constitution of 1983 does. As to every state constitutional officer subject to impeachment, the Constitution either specifies an alternative constitutional means of removal or expressly provides for removal pursuant to general law. With respect to the Governor and the other state executive constitutional officers — the Lieutenant Governor, the Secretary of State, the Attorney General, the Commissioner of Insurance, the Commissioner of Agriculture, the Commissioner of Labor, and the State School Superintendent — the Constitution itself identifies means for their suspension or removal other than by impeachment. See, e.g., Ga. Const, of 1983, Art. II, Sec. Ill, Par. I (suspension of Governor and state executive constitutional officers upon recommendation of special commission following felony indictment); Art. II, Sec. Ill, Par. II (removal of Governor and state executive constitutional officers upon felony conviction); Art. V, Sec. IV, Par. Ill (removal of Governor and state executive constitutional officers upon finding by Supreme Court of permanent disability). With respect to the judicial officers of the State, the Constitution provides that “[t]he power to discipline, remove, and cause involuntary retirement of judges shall be vested in the Judicial Qualifications Commission,” (Ga. Const, of 1983, Art. VI, Sec. VII, Par. VI), subject to final review of any removal by the Supreme Court (Art. VI, Sec. VII, Par. VIII). With respect to district attorneys and the state constitutional boards and commissions — the Public Service Commission, Board of Pardons and Paroles, State Personnel Board, State Transportation Board, Veterans Service Board, Board of Natural Resources, State Board of Education, and Board of Regents — the Constitution provides for removal pursuant to general law. See, e.g., Ga. Const, of 1983, Art. IV, Sec. VII, Par. I (as to members of Article IV constitutional boards and commissions, “removal from office ... shall be as provided by law”); Art. VI, Sec. VIII, Par. II (“Any district attorney may be disciplined, removed or involuntarily retired as provided by general law.”); Art. VIII, Sec. II, Par. I (“The ... removal from office of the members of the [state] board of education shall be as provided by law.”); Art. VIII, Sec. IV, Par. I (“The . . . removal from office of the members of the board of regents shall be as provided by law.”). There is, however, nothing at all in the Constitution about the removal at law of three kinds of constitutional officers: members of local boards of education, local school superintendents, and constitutional county officers. And those happen to be the same three kinds of constitutional officers that are not subject to the impeachment power.
This understanding is consistent with the original understanding of the Constitution of 1983 as evidenced by nearly contemporaneous legislation.
In April 1984 ■— a little more than a year after the ratification of the Constitution of 1983 — the General Assembly enacted OCGA § 45-5-6, which made provision for the suspension and removal upon felony indictment of not only two state constitutional officers as to whom the Constitution explicitly gave a power to provide for removal to the General Assembly (the Public Service Commission and district attorneys), but also “any elected county officer,” “any member of a county, area, or independent board of education,” and “any school superintendent of a county, area, or independent school system.” Ga. L. 1984, p. 1279, § 1. As to these public officers, the General Assembly provided:
Upon indictment for a felony by a grand jury of this state, which felony indictment relates to the performance or activities of the office of any public official, and in the case of a sheriff, any such indictment by this state or any such indictment by the United States, the Attorney General or district attorney shall transmit a certified copy of the indictment to the Governor who shall . . . appoint a review commission. Except as provided in this subsection, the commission shall be composed of the Attorney General and two public officials who hold the same office as the individual indicted. . . .
Unless a longer period of time is granted by the Governor, the commission shall make a written report to the Governor within 14 days. If the commission determines that the indictment relates to and adversely affects the administration of the office of the indicted public official and that the rights and interests of the public are adversely affected thereby, the commission shall recommend that the public official be suspended from office. If, and only if, the commission recommends suspension, then the Governor shall review the findings and recommendations of the commission and may suspend the public officer from office immediately and without further action pending the final disposition of the case or until the expiration of his term of office, whichever occurs first. . . .
Upon the final conviction, the office of the public official shall be vacated immediately without further action. Said vacancy shall be filled in the manner provided by law for filling vacancies in such office.
Id. This nearly contemporaneous legislation suggests that the General Assembly understood its traditional authority to provide for the removal by general law of local constitutional officers was unchanged by the Constitution of 1983. Considering all these things, we cannot say that the provisions of the Constitution of 1983 specifically authorizing the General Assembly to provide by general law for the removal of certain state constitutional officers “clear [ly] and palpabl[y]” conflict with the notion that the General Assembly may provide by general law without
(iii) Finally, Walker notes that the Constitution of 1983 specifically provides for the removal of members of local boards of education by recall, and that means of removal, he says, must be the only one the Constitution permits. Under our Constitution, the General Assembly is expressly “authorized to provide by general law for the recall of public officials who hold elective office.” Ga. Const, of 1983, Art. II, Sec. II, Par. IV. This Court previously had recognized, however, that the power to authorize a recall of local constitutional officers was a part of the legislative power, even before express provision for recall was added to the Constitution, see Smith,
We note as well that, with respect to local elected officers, recall is a means of removal committed to the voters of the local jurisdiction in which those officers were elected. But the qualifications of such officers and their good conduct in office — especially members of local boards of education — are manifestly of importance to the sovereign People of the State as a whole. After all, the Constitution expressly provides for the General Assembly to establish “additional qualifications” for local boards by law, Ga. Const, of 1983, Art. VIII, Sec. V, Par. II, and it expressly states that “[t]he provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia,” Art. VIII, Sec. I, Par. I (emphasis supplied). See also Smith v. Bohler,
(c) Finally, we consider whether OCGA § 20-2-73 is a proper exercise of the legislative power to provide by statute for the removal of members of a local board of education for cause, that is, for a failure to meet the qualifications of the office, for malfeasance in office, for misfeasance in office, or for nonfeasance in office. Walker says that it is not, inasmuch as it permits the removal of a board member not for any individualized wrongdoing, but for the fault of the board as a whole. We are unpersuaded. As we already have noted more than once, the General Assembly has determined that the one, “clearly essential” measure of the success of a board of education is “maintaining accreditation and the opportunities it
2. We turn next to the contention that OCGA § 20-2-73 unconstitutionally delegates the power to suspend and remove the members of a local board of education to a private accrediting agency. Citing Rogers v. Medical Assn, of Ga.,
3. We next consider the contention that vesting the power of suspension and removal in the Governor — as OCGA § 20-2-73 does — violates the constitutional separation of powers, insofar as the Constitution commits the control and management of local school systems to local boards of education. The Constitution provides that “[t]he legislative, judicial, and executive powers shall forever remain separate and distinct,” Ga. Const, of 1983, Art. I, Sec. II, Par. Ill, but this principle has no application to the questions presented in this case, considering that no one contends that OCGA § 20-2-73 vests legislative or judicial power in the Governor, an executive officer. Instead, Walker merely asserts that the Constitution provides for an elected local board to control and manage each local school system and that the General Assembly, by enacting the statute, violated this provision and effectively gave the power to control and manage local school systems to the chief executive of the State. In Division 1 (b) (i) of this opinion, we already have determined that the statute does not conflict with the constitutional commitment of the control and management of local school systems to local boards of education. As we held in Division 1, OCGA § 20-2-73 is an authorized exercise of the legislative power, and the Constitution confers upon the Governor the duty of faithfully executing the laws of the State. Ga. Const, of 1983, Art. V, Sec. II, Par. II. Moreover, as to the appointment of temporary replacement members of local boards of education, the Constitution expressly authorizes the Governor to “make such appointments as are authorized by this Constitution or by law,” Ga. Const, of 1983, Art. V, Sec. II, Par. IX, and the Governor is charged with the filling of vacancies in public office “unless otherwise provided by this Constitution or by law.” Ga. Const, of 1983, Art. V, Sec. II, Par. VIII (a). The executive branch of government is authorized to carry laws into effect, including laws that regulate official conduct. We see no violation of the separation of powers in the statute.
4. Last, we consider whether OCGA § 20-2-73 denies due process to suspended and removed board members. Walker contends that the procedures for suspension and removal do not afford due process, that the standard for reinstatement or removal is too vague to comport with due process, and that requiring a suspended member of a local board of education to apply for reinstatement to the Governor — who suspended the member in the first place — is a futile act. We will address these contentions in turn.
(a) About the adequacy of the procedural safeguards of the statute, we note to begin with that the District Court already has concluded that Walker has failed to demonstrate a substantial likelihood of success on his claim that the statute denies his right to due process under the United States Constitution, and as we have held before, the procedural rights afforded by the Due Process Clause of the Georgia Constitution in this context are the same as those afforded under the United States Constitution.
Before a member is removed permanently, however, the member is afforded the opportunity to petition for reinstatement, which triggers another hearing conducted after at least 30 days’ notice to the member. OCGA § 20-2-73 (b) and (c).
(b) About the contention that the statutory standard for reinstatement is too vague to satisfy due process, Walker complains that whether reinstatement of a member is “more likely than not” to improve the prospect of the school system to retain its accreditation is purely speculative and requires the Governor to engage in conjecture about the potential action of a private accrediting agency. We are not persuaded, however, that the standard for reinstatement is unconstitutionally vague. We previously
(c) Relying upon WMM Properties, Inc. v. Cobb County,
5. Few things are more important than the education of our children. As the people of Georgia seek to improve Georgia’s educational system, this Court must be mindful of the broad discretion granted by the Constitution to local school boards to manage and control local school systems. For all the reasons set forth herein, however, we conclude that OCGA § 20-2-73 is not an unconstitutional infringement upon the governing authority of local school boards, nor is it a violation of any other constitutional provision or right, as asserted by Walker in this case, and we answer the questions of the District Court in the negative.
Certified questions answered.
Notes
In 2013, the General Assembly amended OCGA § 20-2-73, Ga. L. 2013, p. 763, but the amendment was enacted only after the events from which this case arose. Unless otherwise specified, when we refer in this opinion to OCGA § 20-2-73, we refer to the statute as it existed prior to the 2013 amendment.
Georgia law recognizes seven private accrediting agencies. See OCGA § 20-3-519 (6).
Among other things, Georgia law provides that graduates of an accredited school system may be qualified for state scholarship programs that provide those graduates with substantial financial assistance for their post-secondary education. See, e.g., OCGA §§ 20-3-519 (6); 20-3-519.2 (a) (1) (A). We note as well that graduates of unaccredited schools may be subject to additional requirements for admission to public institutions of post-secondary education. See, e.g., “Admission Information for Students Who Are Home Educated or Who Attend a Non-Accredited High School,” https://www.admissions.uga.edu/article/home-educated-or-nonaceredited-high-school.html. Georgia law acknowledges that maintaining accreditation is a “clearly essential” measure of the success of a local board of education. OCGA § 20-2-49 (“And although there are many measures of the success of a local board of education, one is clearly essential: maintaining accreditation and the opportunities it allows the school system’s students.”).
Prior to the 2013 amendment, see note 1 supra, the statute did not define “eligible member.” The State Board and the Governor in this case appear to have understood “eligible member” to mean a member of the local board of education at the time the school system “is placed on the level of accreditation immediately preceding loss of accreditation,” and the parties in this case appear to take no issue with that understanding. In any event, the 2013 amendment expressly defines “eligible member” as “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.” Ga. L. 2013, p. 763, § 1.
SACS placed the DeKalb School District on accredited probation after months of investigation, including site visits, a review of documents produced by the DeKalb School District, and interviews of educators and other interested persons identified and made available to SACS by the DeKalb School District. The placement on accredited probation also followed training and mediation sessions for members of the DeKalb Board, whereby SACS sought to help the DeKalb Board with respect to the governance issues about which SACS was concerned.
The six members were Dr. Eugene P. Walker (the plaintiff in this case), Nancy Jester, Sarah Copelin-Wood, Jesse “Jay” Cunningham, Donna Edler, and Pamela A. Speaks. Three other members of the DeKalb Board had only been recently elected, and they were not serving on the DeKalb Board at the time SACS placed the DeKalb School District on accredited probation. See note 4, supra.
See DeKalb County School Dist. v. Ga. State Bd. of Ed.,
More specifically, the District Court asked us to consider the following:
Does OCGA § 20-2-73, or any portion thereof, violate the Georgia Constitution, either generally or by virtue of an affirmative answer to either of the following specific questions:
(A) Does OCGA § 20-2-73 violate the Georgia constitutional doctrine that each school system shall be under the management and control of a board of education, the members of which shall be elected as provided by law? Or
(B) Does the potential removal of school board members, as provided for by OCGA § 20-2-73, exceed the General Assembly’s authority to enact general laws regarding local boards of education under Article VIII, Section V?
Although this fundamental principle runs throughout our Constitution, it is most clearly expressed in the provision that “[p]ublic officers are the trustees and servants of the people and are at all times amenable to them.” Ga. Const, of 1983, Art. I, Sec. II, Par. I.
This Court previously has cited this section of the Throop treatise with approval. See Gray v. McLendon,
Early in the history of the State, the General Assembly also understood its legislative power to include the power to provide by general law for the suspension or removal of certain state constitutional officers by means other than those for which the Constitution provided. For instance, the General Assembly enacted a statute in 1826 that provided for the attorney general or a solicitor to be imprisoned for failure to “pay over moneys collected by them for the State,” and in the event of such imprisonment, it authorized the judges of the superior court to “appoint, temporarily, some attorney to execute the duties [of the office].” Cobb’s Digest, p. 1026. At that time, the attorney general and solicitors-general were constitutional judicial officers, entitled to “hold their offices for the term of three years, unless removed by sentence on impeachment, or by the governor on the address of two-thirds of each branch of the general assembly,” Ga. Const, of 1798, Art. Ill, Sec. Ill, and the Constitution of 1798 made no provision for their temporary suspension. Under Section 166 of the Penal Code of 1833, a “member of the General Assembly or officer [of the State], Judge, [or] Justice ... who shall accept or receive [a] bribe, shall on conviction ... be removed from his office.” Cobb’s Digest, p. 805. At that time, judges of the superior courts were, according to the Constitution, “removable by the Governor upon the address of two-thirds of both branches of the General Assembly for that purpose, or by impeachment and conviction thereon.” Ga. Const, of 1798, Amend. V (adopted December 19, 1818). And by the Constitution, members of the General Assembly were expressly removable only by impeachment, Ga. Const, of 1798, Art. I, Sec. X, or by expulsion by the chamber in which they sat, Art. I, Sec. XIII. Likewise, in the Code of 1873, it was provided that “[the secretary of state and comptroller general] shall not, directly or indirectly, be interested or engaged in the purchase and sale of wild lands or speculation, on pain of removal by the Governor or the General Assembly.” Code of 1873, §§ 88 (secretary of state); 112 (comptroller general). At the time, both the secretary of state and comptroller general were constitutional officers, Ga. Const, of 1868, Art. IV, Sec. II, Par. VIII, and the Constitution made no provision for their removal, other than by impeachment.
The tide seems to have turned against the removal of state constitutional officers by general law without explicit constitutional sanction, however, by the late Nineteenth Century. In 1876, the General Assembly enacted a statute that authorized the Governor to suspend the state treasurer - a constitutional officer, Ga. Const, of 1868, Art. IV, Sec. II, Par. VIII - upon a finding by a majority of the attorney general, secretary of state, and comptroller general that the treasurer was “insane or manifestly insolvent, or that he has absconded or concealed himself, or is guilty of conduct which is to the hazard of the public treasury.” Ga. L. 1876, p. 126, § 7. The suspension was to continue “until the next session of the General Assembly thereafter,” id., and was, therefore, apparently in aid of the power of impeachment committed to the General Assembly. The Constitution of 1868 did not expressly provide for such a suspension, but the Constitution of 1877 - commissioned by the succeeding General Assembly - explicitly provided that “[t]he General Assembly shall have authority to provide by law for the suspension of [the treasurer or comptroller general] from the discharge of the duties of his office, and, also for the appointment of a suitable person to discharge the duties of the same.” Ga. Const, of 1877, Art. V, Sec. I, Par. XVIII. But see Daniel v. C&S Nat. Bank of Atlanta,
This statute was enacted on February 16, 1799, Cobb’s Digest, p. 198, not quite nine months after the adoption of the Constitution of 1798. See Saye, A Constitutional History of Georgia, p. 157 (1948). Courts long have acknowledged that, when a legislature enacts a statute that touches upon a constitutional provision close in time to the adoption of that constitutional provision, the statute is powerful evidence of the contemporary understanding of the constitutional provision. See Marsh v. Chambers,
The Constitution of 1798 provided that clerks of the superior courts “shall continue in office during good behavior.” Ga. Const, of 1798, Art. Ill, Sec. X. This provision cannot itself be understood as implying a power to remove for other than “good behavior,” inasmuch as the justices of the inferior courts (Art. Ill, Sec. IV) and justices of the peace (see Art. Ill, Sec. V) also were entitled to continue in office “during good behavior,” but the Constitution of 1798 expressly provided means other than impeachment for their removal at law. Indeed, the Constitution of 1798 provided specifically that justices of the peace were to be removed “by conviction on indictment in the superior court, for malpractice in office, or for any felonious or infamous crime.” Ga. Const, of 1798, Art. Ill, Sec. V. We note as well that the Constitution of 1798 made express provision for the removal of numerous other constitutional officers other than by impeachment, including judges of the superior courts (Art. Ill, Sec. I), solicitors (Art. Ill, Sec. Ill), and sheriffs (Art. Ill, Sec. XI).
Notably, the Constitution of 1861 made express provision for the removal of certain other constitutional officers by means other than impeachment, including the justices of this Court (Art. IV, Sec. I, Par. II), the judges of the superior courts (Art. IV, Sec. II, Par. I), and the State’s attorney and solicitors (Art. IV, Sec. Ill, Par. II). We note as well that the Constitution of 1865 was adopted only a few months after this statute was enacted, but it too made no express provision for the removal of the ordinary, other than by impeachment. See Art. IV, Sec. Ill, Par. V.
In Lucas v. Woodward,
At oral argument, Walker conceded as much, although he contends that OCGA § 20-2-73 cannot be fairly characterized as setting a “qualification” to hold office. We address that contention in Division 1 (c) below.
Perhaps not surprisingly, the drafting history of the Constitution of 1983 is ambiguous about the power to provide by general law for the removal of local constitutional officers, although some support can be found in that history for the notion that the drafters understood that the General Assembly would have such a power, notwithstanding that the Constitution said nothing about it explicitly. For instance, in the report of the Committee to Revise Article IX, the committee recommended the omission of a provision from the Constitution of 1976 that provided expressly for the removal of constitutional county officers upon conviction for malpractice in office, a recommendation that ultimately was incorporated into the original Constitution of 1983. In support of that recommendation, the committee explained that the removal from office of constitutional county officers was a “matter[ ] to be provided for by general law.” Select Committee on Constitutional Revision, Legislative Overview Committee, Vol. I, Materials Considered at Meeting of June 30, 1981, Notes and Comments on Article IX, p. 1. Moreover, in a meeting of the Legislative Overview Committee, the same explanation was given for the omission of any provision for removal upon conviction for malpractice: “The four-year term requirement for these officers was retained, but the two-year residency requirement was omitted [,] as was the removal provision for conviction for malpractice in office, which matters are to be provided for by general law” Select Committee on Constitutional Revision, Legislative Overview Committee, Vol. I, Transcript of Meeting of June 30, 1981, p. 7 (emphasis supplied). Although there are other portions of the drafting history that suggest other conclusions, the drafting history as a whole is ambiguous, and it certainly evinces no “clear and palpable” conflict with OCGA § 20-2-73.
As amended in 2013, OCGA § 20-2-73 (a) now requires the State Board to hold an open and public evidentiary hearing. Although not explicitly required at the time of the hearings in this case, the record reflects that the State Board made its hearings open to the public.
We see no indication in the record of this case that the State Board or Governor has failed to exercise discretion under the statute and instead has deferred unreasonably to SACS. We will reserve judgment about whether such an occurrence would pose a constitutional problem.
“No person shall be deprived of life, liberty, or property except by due process of law.” Ga. Const, of 1983, Art. I, Sec. I, Par. I. This Court has recognized that elected officials have a property right in their office that cannot be taken away without due process. See Northway v. Allen,
These two subsections remain identical pre- and post-amendment.
Specific procedural issues that may arise when the statute is applied to temporary suspension proceedings in other cases or to permanent removal proceedings in this or other cases are not presented for decision at this time.
As far as the possibility that an accrediting agency might threaten to withdraw accreditation based on arbitrary standards, OCGA § 20-2-73 (a) provides that the threatened or actual loss of accreditation must he “for school board governance related reasons,” and that phrase reasonably can be understood to limit application of the statute to threatened or actual loss of accreditation based on rational standards. After all, an arbitrary action is one undertaken for no good reason at all, so an arbitrary threatened or actual loss of accreditation would not he one for any reason, including “for school board governance related reasons.” And in any event, the State Board has discretion to recommend suspension or not, and in exercising that discretion, it presumably will consider whether the accreditation decision is out of step with public policy or otherwise is unreasonable. Cf. Eaves,
Contrary to Walker’s argument, we do not understand the statute to require the Governor to hold the member up against her temporary, Governor-appointed replacement for purposes of reinstatement. Instead, the Governor must consider whether the member is more likely than not to contribute to a resolution of the “school board governance related” problems for which accreditation was threatened or withdrawn. Whether that consideration is to be given in the abstract or in comparison specifically to the temporary replacement appointed by the Governor is a question that we will leave to be addressed in any proceedings for judicial review of a decision to permanently remove a member. The case in which the District Court certified questions to us is not such a proceeding.