Lead Opinion
Joy Laskar, Ph.D., appeals the trial court’s order dismissing his petition for writ of certiorari for lack of jurisdiction. Laskar filed the petition to challenge a decision of the Board of Regents of the University System of Georgia (“Board”) upholding his dismissal from a position as a tenured professor at the Georgia Institute of Technology (“Georgia Tech”). The petition also named G. P. “Bud” Peterson, in his official capacity as president of Georgia Tech, as a Defendant. Because we find that the trial court lacked jurisdiction to consider the petition, we affirm the order of dismissal.
“We review a trial court’s ruling on a motion to dismiss de novo, viewing all allegations in the complaint as true.” (Footnote omitted.) Oconee Community Svc. Bd. v. Holsey,
So viewed, the record reflects that Laskar joined the Georgia Tech faculty as an assistant professor in 1995, became an associate professor in 1998, and received tenure in 2002. Each year, Laskar entered into a “Fiscal Year Employment Contract” with the Board setting out the terms of his employment. The contract is made expressly subject to applicable state and federal laws, Georgia Tech’s rules and regulations, and the bylaws and policies of the Board. In 2003, Laskar was appointed director of the Georgia Electronic Design Center (“GEDC”), an inter-disciplinary center at Georgia Tech “broadly focused on fostering technology [related to] communications applications.”
On May 17, 2010, Peterson sent Laskar a letter stating that a recent internal audit had revealed what appeared to be “substantial
Several months later, on October 6,2010, Laskar and his counsel received the statement of charges outlining five charges of wilful violation of various Board and Georgia Tech policies. Following a formal hearing in March 2011 before a Faculty Hearing Committee (the “Hearing Committee”), the committee submitted its report and recommendation to Peterson. The report found that one charge was proven in part, two charges were proven in full, and two charges were not proven, but the Hearing Committee concluded that the charges proven were “sufficiently egregious” to warrant Laskar’s dismissal due to his leadership position at GEDC. The Hearing Committee apparently did not notify Laskar of its findings, but instead on May 14, 2011, Peterson wrote Laskar informing him that he agreed with the Hearing Committee’s “recommendation” and that Laskar’s “tenure [was] revoked and [his] employment [was] terminated, effective immediately.” Laskar appealed Peterson’s decision to the Board. On August 10,2011, Laskar was informed by the Board’s Vice Chancellor for Legal Affairs that his appeal had been presented to the Board, which upheld the decision to terminate him, prompting Laskar to file his petition for certiorari. On appeal, Laskar contends that the trial court erred in finding that it lacked jurisdiction to consider his petition.
Under OCGA § 5-4-1 (a), “[t]he writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers,” with certain limitations not present here. Thus, the first step in weighing whether a trial court properly can hear a petition for certiorari is to determine whether the petition is seeking review of a judicial or quasi-judicial action or merely an administrative one:
A court [,] which is obliged to determine whether it has subject matter jurisdiction over a petition for writ of certiorari [,] must decide whether the hearing officer whose order is being reviewed exercised judicial or quasi-judicial powers [ ] or whether the officer merely exercised administrative or legislative functions. If the officer exercised judicial powers, his or her actions are subject to review on certiorari; if, however, the officer exercised legislative, executive, or ministerial powers, any error cannot be corrected by certiorari. . . .
(Citation omitted.) Goddard v. City of Albany,
The difference between an administrative function and a judicial/ quasi-judicial function generally turns on whether the parties were granted notice and the opportunity to be heard:
The basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights isbound by the action taken. The test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.
Goddard,
But the courts also consider whether the hearing officer “was then required to examine and weigh the evidence and make a decision according to the law — to exercise discretion and judgment in application of the law ... to a particular set of facts.”
Thus, a “ ‘judicial action’ has been described as ‘an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered.’ ” (Citation omitted.) Mack II,
[tjhere must generally be two or more litigants. An issue of law or fact must be joined by them, within the jurisdiction of the tribunal, with respect to property or some personal right in which the litigants are interested. Its conclusion must be binding upon the parties until reversed or set aside in the manner provided by law for opening up judgments of courts.
(Citation and punctuation omitted; emphasis supplied.) Southeastern Greyhound Lines v. Ga. Public Svc. Commission,
Accordingly, we must focus on the function of the hearing officer and the process used to determine whether they were quasi-judicial or administrative in nature. The Georgia Tech faculty manual and the Board’s policy manual provide the same procedures for the dismissal of both tenured faculty members and nontenured faculty members during their contract term (the “Dismissal Procedures”). These procedures provide, in pertinent part, that a faculty member who receives notice of a pending dismissal has the right to request a hearing before a faculty hearing committee (the “Hearing Committee”) and to obtain a formal statement of the charges against him. The parties are then granted notice of the hearing, the right to counsel, the right to present sworn testimony and evidence after first being afforded a reasonable opportunity to obtain witnesses and documentation, and the right to cross-examination, although the Hearing Committee is not bound by the strict rules of evidence. Nevertheless, the Hearing Committee must make findings based solely on the evidence presented and then report its findings to the Georgia Tech president and the faculty member.
These findings, however, along with any recommendations regarding the appropriate penalty for any violations, are not binding on the faculty member, Georgia Tech or its president, and thus the Hearing Committee’s report does not determine the faculty member’s employment status. Rather, that decision is left to the president. The Dismissal Procedures provide that if the Hearing Committee finds that adequate grounds for dismissal have not been established, and the
The Hearing Committee’s function, therefore, is analogous to that of the liquor license review board in What It Is, Inc. v. Jackson,
Considering whether the license holder had the right to petition for certiorari, this Court noted first that the city ordinance did not grant the license holder an express right to “a trial in accordance with judicial procedure” because it provided that all hearings “ ‘shall be administrative”’ and did not require compliance with the evidentiary rules. But the Court also found that “the board was not authorized to enter any judgment but only was permitted to make a recommendation to the mayor which was not binding on him,” and thus the board’s authority “does not fall within the category of a judicial proceeding.” Jackson,
Although the Dismissal Procedures did not expressly label the Hearing Committee proceeding as administrative, this Court’s decision in Mack II clarified that neither descriptive terms nor a lack of judicial procedure control the analysis. Mack II,
We conclude, therefore, that despite the procedures for notice and a hearing before the Hearing Committee, the decision to dismiss Laskar was essentially an administrative one.
It is one thing to provide that a thing may be done if it is made to appear that under the law a certain situation exists; it is another thing to provide that a thing may be done if in the opinion of a named party a certain situation exists. The one is justiciable; the other is administrative.
As Southeastern Greyhound Lines demonstrates, neither the requirement that the Georgia Tech president find cause in order to dismiss Laskar nor the provision of notice and the opportunity to be heard alters the nature of his decision:
An act is none the less ministerial because the person performing it may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act. . . . [Thus,] it must still be recognized that the ascertainment of facts, or the reaching of conclusions upon evidence taken in the course of a hearing of parties interested, may be entirely proper in the exercise of executive or legislative, as [opposed to] judicial, powers. ... It is the nature of the final act that determines the nature of the previous inquiry.
(Citations and punctuation omitted.) Southeastern Greyhound Lines,
And although a faculty member may seek Board review of the president’s decision and the Board is required “to investigate the matter thoroughly’ before rendering a decision, the faculty member has no right to any further hearing on the matter. Rather, any opportunity for a notice and a hearing is restricted to the Hearing Committee, which acts merely in an advisory capacity to the president and by extension to the Board. Thus, the Board’s subsequent review of the president’s decision must also be considered administrative in nature.
The Dismissal Procedures in this case are thus distinguishable from the procedures followed in cases where our courts have found that a quasi-judicial action occurred. For example, in Morman v. Pritchard,
We note, however, that Laskar is not without judicial recourse with regard to his dismissal. He had a written contract with the Board, incorporating the Dismissal Procedures, and even though the Board is a state agency protected by sovereign immunity, that defense “is waived as to any action ex contractu for the breach of any written contract entered into by the state or its departments and agencies.” (Punctuation, footnote and emphasis omitted.) Bd. of Regents of Univ. System of Ga. v. Ruff,
Judgment affirmed.
Notes
We note that the Georgia Tech and Board policies applied hy the Hearing Committee do not have the force and effect of law. Because they relate to “the employment, compensation, tenure, terms, retirement, or regulation of the employees” of a state agency, they are not considered rules requiring promulgation under the Georgia Administrative Procedure Act, OCGA § 50-13-2 (6) (H), nor are they codified in the Georgia Administrative Code. But even if the policies could he considered a form of law, the functions of the Hearing Committee and the Georgia Tech president in Laskar’s dismissal proceedings are the determining factors in resolving the issue before us.
The trial court reached a similar conclusion, finding that although the termination procedures in this case “may appear quasi-judicial, [Laskar] had no right under law to demand a trial in accordance with judicial procedure.” (Emphasis in original.)
Concurrence Opinion
concurring fully and specially.
I concur fully but reluctantly. I write separately to acknowledge the practical consequences of our decision.
We have rejected Dr. Laskar’s argument for a bright line between tenure litigation involving private institutions and such litigation involving public institutions. When such litigation involves private institutions, Dr. Laskar argues, tenure rights are enforceable in contract actions. See Moffie v. Oglethorpe Univ.,
Instead we have held that, as to public institutions, the available procedure turns on a close — and costly — examination of the institution’s procedures. Such an examination will need to be performed anew of the procedures at each public institution where such a dispute arises. Indeed if Georgia Tech has revised its procedures when it next faces such a dispute, its procedures will then need to be reexamined.
The people of Georgia would, in my opinion, be well served by a comprehensive undertaking to secure “the just, speedy and inexpensive determination” of actions arguably within the appellate and certiorari jurisdiction of our state and superior courts. See OCGA § 9-11-1. But such an undertaking falls within the competence and authority of the General Assembly.