In 2014, Brooks A. Keel, the president of Georgia Southern University, terminated the employment contract of tenured professor Lome Wolfe for violation of University policies, and the Board of Regents of the University System of Georgia denied Wolfe’s application for review of his termination. Wolfe then filed a complaint for breach of contract and mandamus against the Board and Keel in the Superior Court of Fulton County, seeking reinstatement and other relief. The superior court granted the Board’s motion for summary judgment, and Wolfe filed a notice of appeal directed to this Court. As explained below, this appeal falls within OCGA § 5-6-35 (a) (1), and an application to appeal was therefore required. Because Wolfe did not file a discretionary application, this Court lacks jurisdiction to consider the merits of his case. Accordingly, we dismiss the appeal.
On the morning of October 16, 2013, E. J., a female graduate student in Wolfe’s department, and D. M., a male graduate student, were in a break room when E. J. spilled hot coffee on her shirt and shouted. She was looking around for a towel to dry off when Wolfe walked into the break room. He asked what happened, and E. J. reрlied that she spilled hot coffee on herself. Wolfe said to her, “It’s okay; you can dry your breasts off in front of me,” and then sat down; according to Wolfe, he knew E. J. only from seeing her around the department and had spoken to her less than a handful of times. E. J. gave Wolfe a look to let him know that his comment was unwelcome, and Wolfe said, “Well, f**k you then.” As E. J. gathered her things to leave, Wolfe turned to D. M. and said, “Who are you scoring with? Undergrad? Grad? Is it [E. J.]? She’s loose. She’s hot; now her breasts are hot.” E. J. left the break room and was unable to work for the rest of the day because she was so distraught over Wolfe’s conduct.
E. J. filed a sexual harassment complaint against Wolfe with the University’s Director of Diversity Services. The director interviewed E. J., D. M., and Wolfe, reviewed Wolfe’s personnel file, and concluded that Wolfe had created a hostile environment for E. J. in violation of University policy. On October 18, the director sent his investigation report to the University’s provost, with a copy to Wolfe.
After several e-mails from Wolfe to the provost, in which Wolfe pleaded for one more chance to correct his behavior, the provost’s assistant sent Wolfe an e-mail on October 22 to arrange a meeting. Wolfe then called the provost’s office, and the provost’s assistant, who was female, answered the phone. After a few pleasantries, the assistant said, “I guess you’re calling me because of the e-mail I just sent you.” Wolfe replied, “No, I called you to find out what you’re wearing.” The assistant was shocked by Wolfe’s comment and reported it to the provost.
On October 24, the provost met with Wolfe to seek a resolution of the situation. On October 29, the provost sent Wolfe a letter saying that she agreed with the director’s findings and that she had received notification from Wolfe’s attorney that Wolfe did not intend to resign. The letter informed Wolfe that he was on unpaid administrative leave effective immediately and that the provost was assembling a faculty committee to conduct
On December 13, 2013, the provost sent Wolfe’s counsel a formal statement of the charges, which alleged that Wolfe
has engaged in “disruption of. .. teaching, research, administrative, disciplinary, public service, or other authorized activity” by creating a hostile environment based on sexual harassment in violation of University Policy and applicable law. In addition, Dr. Wolfe hаs exhibited a pattern of inappropriate interaction with others, which behavior has continued despite multiple training sessions and despite Dr. Wolfe’s own expressions of recognition and regret.3
The formal evidentiary hearing took place over the course of two days in April 2014. On May 7, the faculty hearing committee submitted its report, which recommended against Wolfe’s immediate termination, in part because the committee did not find that the one incident involving E. J. “constitute[d] creation of a hostile environment.” Instead, the committee recommended that Wolfe be demoted and that his salary be cut, among other sanctions.
On May 12, the University’s president, Brooks A. Keel, wrote to the faculty hearing committee to explain why he disagreed with its recommendations and intended to terminate Wolfe. On May 19, Keel notified Wolfe by letter of his termination for cause, concluding:
I have reviewed the Committee’s work and find the following charges sustained: violation of the University’s Policy Prohibiting Sexual Harassment and policy entitled, “Harassment in the Workplace”; аnd a pattern of inappropriate interaction with others, which behavior has continued despite multiple training sessions ... and expressions of recognition and regret.
Wolfe then sought review of Keel’s decision by the Board of Regents. On August 20, 2014, the Board sent Wolfe a letter declining his application for review and advising that “[t]his is the final action to be taken by the Board in this case.”
On September 16, 2014, Wolfe filed a complaint for breach of contract and mandamus against the Board and Keel in the Superior Court of Fulton County, seeking reinstatement as well as damages, attorney fees, and other relief. Discovery ensued, and the parties filed cross-motions for summary judgment. On November 23, 2015, the superior court entered an order denying Wolfe’s motion and granting summary judgment in favor of the Board and Keel. The order was based on a detailed review of the grounds Keel gave for his decision and whether that decision was consistent with University and Board policies.
On December 3, 2015, Wolfe filed a notice of appeal directed to this Court. On April 18, 2016, we dismissed Wolfe’s direct appeal based on his failure to file an application to appeal, explaining in an unpublished order that the decision of the superior court involved the review of a decision of a state administrative agency (the Board), and that Wolfe therefore was required to apply for a discretionary appeal under OCGA § 5-6-35 (a) (1). Wolfe filed a motion for reconsideration, which we granted, reinstating the appeal and directing the parties to address the appellate jurisdiction issue. They did so in thеir briefs and at oral argument on September 13. Having considered their arguments carefully and with the benefit of our recent decision in State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan,
(a) To begin with, it is clear that the Board of Regents is a state administrative agency for purposes of OCGA § 5-6-35 (a) (1). We have held that the Board is “an agency of the State” in various contexts, including sovereign immunity, see Olvera v. Univ. System of Ga. Bd. of Regents,
Moreover, as relevant to this case, the Board of Regents has statutory authority “[t]o elect or appoint professors . . . for all of the schools in the university system”; “to discontinue or remove them as the good of the system or any of its schools or institutions or stations may require”; and “to make such reasonable rules and regulations as are necessary for the performance of its duties.” OCGA § 20-3-31 (1), (2). The Board exercised that authority to adopt procedural policies for public universities to follow in entering into employment contracts with professors and in terminating those contracts, as well as substantive policies establishing standards of conduct for professors and other employees. Under these policies, which were incorporated into Wolfe’s contract, the Board and the University delineated types of misconduct that could lead to termination and set forth the procedures to be followed before a professor’s contract is terminated. Thus, in this case, the Board was acting аs a state administrative agency for purposes of OCGA § 5-6-35 (a) (1). See Keystone Knights,
(b) We next consider whether the Board of Regents made a “decision” in this case. In Keystone Knights, we explained that a “decision,” as that term is used in OCGA § 5-6-35 (a) (1), is one that is adjudicatory in nature, as opposed to executive or legislative. See
We noted that this understanding of “decision” was consistent with our precedents, as we have often said that OCGA § 5-6-35 (a) (1) requires an application to appeal when “two tribunals” — i.e., an administrative agenсy or other lower tribunal and a superior court — have “adjudicated” the merits of a specific case. S ee Keystone Knights,
Under these principles, it is clеar that the Board of Regents made a decision that was adjudicative in nature in terminating Wolfe. The decision was not of general and future effect; rather, it was based on an assessment of the particular facts surrounding a single person’s past conduct, it involved an application of Board rules and policies to that conduct, and it had the immediate and specific consequence of terminating Wolfe’s contract to serve as a professor. See Keystone Knights,
(c) The final consideration in determining whether Wolfe was required to file an application to appeal under OCGA § 5-6-35 (a) (1) is whether the decision of the superior court was one that reviewed the decision of the Board of Regents. Wolfe advances two reasons why it was not, neither of which is persuasive.
First, Wolfe argues that the superior court was not reviewing an administrative agency decision because it did not discuss the Board’s denial of Wolfe’s application for discretionary review of President Keel’s decision to terminate him. Under the procedures adopted by the Board, however, the president of a university is granted the authority to make a decision to terminate the contract of a faculty member. The Board has the discretionary authority to review that decision, but is not required to do so. Here, the Board declined to review the president’s decision, making Keel’s decision the operative decision of the agency on the matter. See Keystone Knights,
Morе vociferously, Wolfe contends that under the rationale of Laskar v. Bd. of Regents of Univ. System of Ga.,
Laskar addressed only how an aggrieved party can obtain review of an agency decision in a superior court, and in particular whether a terminated Georgia Tech professor could seek such review using a writ of certiorari under OCGA § 5-4-1 (an issue on which we express no opinion). The Court of Appeals did not address OCGA § 5-6-35 (a) (1), which governs how to take an appeal from a superior court to an appellate court. Laskar did not purport to hold that OCGA § 5-6-35 (a) (1) is
Instead, this case is governed by the well-settled principle that “when we consider the nature of the proceedings in the superior court for the purposes of OCGA § 5-6-35 (a) (1), we look to the substance of those proceedings, not merely the form of the relief sought.” Keystone Knights,
Thus, we have held that if a party attacked or defended an adjudicative administrative decision in the superior court by filing or opposing a petition for mandamus, a complaint for breach of contract, an action for declaratory relief, or a petition for injunctive relief— as well as a writ of certiorari — the party seeking to appeal from an adverse decision of the superior court must comply with the discretionary appeal statute. See, e.g., Keystone Knights,
In this case, Wolfe squarely attacked the Board of Regents’ decision, made by President Keel, to terminate his contract in the breach of contract and mandamus claims that he filed in the superior court. Wolfe alleged, for example, that Keel’s “decision set forth no facts supporting [Wolfe’s] termination or [Keel’s] basis for rejecting the [Faculty] Hearing Committee’s recommendations,” and that “Keel set forth no standards by which Dr. Wolfe’s conduct was measured, and, in fact, failed to [take] the facts rendered at the hearing into account in his decision.” In sum, Wolfe alleged that procedural and substantive errors in applying the rеlevant agency policies occurred in the agency proceedings that resulted in the agency decision to terminate his contract, and based on those errors, he sought, among other relief, the direct reversal of that decision by a superior court order reinstating him to his position. Wolfe’s complaint asked the superior court to review a decision of a state administrative agency; the superior court reviewed that decision, denying relief; and Wolfe is now appealing the decision of the superior court.
(d) Under this Court’s precedents, these determinations dictate that Wolfe was required by OCGA § 5-6-35 (a) (1) to bring his appeal by way of an application for discretionary appeal and that his failure to do so requires the dismissal of his direct appeal. See Keystone Knights,
Moreover, those cases are distinguishable from this one. Here, under Wolfe’s contract with the Board of Regents, for the Board to terminate his contract as a tenured professor, the Board and Wolfe werе required to go through administrative proceedings that resulted in a definitive agency decision on the contract issues for purposes of OCGA § 5-6-35 (a) (1). In Developers Surety and Carroll, by contrast, it appears that no administrative proceedings were required to occur as part of the contract and no administrative proceedings resulting in an agency decision within the meaning of OCGA § 5-6-35 (a) (1) in fact occurred. See Developers Surety,
The last case on which Wolfe relies is a Court of Appeals decision in which it is unclear whether the decision to expel a student was executive or adjudicative in nature. See Barnes, 322 Ga.App. at47-50; Keystone Knights,
To sum up, Wolfe entered into an employment contract with the Board of Regents, a state administrative agency; the contract required
Appeal dismissed.
Notes
The University’s “Policy Prohibiting Sexual Harassment” said:
Sexual harassment is defined as unwelcome conduct of a sexual nature. Such conduct may include sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Conduct that is severe or pervasive enough to create a hostile work or academic environment constitutes one type of sexual harassment. Depending on the severity, it is possible for a single incident to be sufficient to constitute a hostile environment. . . . Students should and employees must report [to the Director of Diversity Services] any unwelcome conduct of a sexual nature regardless of severity or the number of occurrences so that Georgia Southern can take steps to address harassment before it creates a hostile environment.
When a finding is made that sexual harassment has occurred, the University will take appropriate action ranging from informal resolution up to and including termination or dismissal in accordance with the requirements of due process.
The Board of Regents Policy Manual included a similar policy. In addition, the University’s “Harassment in the Workplace” policy provided, among other things, that “[t]he University strictly prohibits employees from engaging in offensive or inappropriate harassing behavior at work. All employees are personally responsible for ensuring that the workplace is free from harassment, including sexual harassment.”
A University policy listing grounds for which a professor could be terminated included “ [disruption of any teaching, research, administrative, disciplinary, public service or other authorized аctivity.” The Board of Regents Policy Manual contained an identical provision.
The statement referenced four other complaints against Wolfe: A 2005 incident involving Wolfe’s use of sexist language with a student; an April 2012 incident involving an e-mail Wolfe sent to a student asking her to bring her lingerie to a charity clothing drive; an unsubstantiated June 2013 complaint; and another October 2013 incident in which Wolfe sent an e-mail to all department faculty and graduate students offering $ 10 and a pair of his dirty underwear for the return of a missing pair of bicycle gloves.
Thе application requirement for appeals in the types of cases listed in OCGA § 5-6-35 (a) applies based on the underlying subject matter of the appeal, even if an order like the superior court’s final order granting summary judgment against Wolfe on his mandamus claim would otherwise be immediately appealable pursuant to OCGA § 9-11-56 (h) or § 5-6-34 (a) (1) or (7). See Ferguson v. Composite State Bd. of Med. Examiners,
This Court has also dismissed similar direct appeals in unpublished orders. See City of Atlanta v. Clarke, S10A1938 (Sept. 7, 2010) (dismissing the City’s direct appeal of a superior court’s order reviewing an administrative agency decision regarding the termination of City employees); Semsar v. Bd. of Regents of Univ. System of Ga. & Martin v. Bd. of Regents of Univ. System of Ga., S09A0561, S09A0562 (Jan. 26, 2009) (dismissing direct appeals from the superior court by professors who had asserted breach of contract and other claims challenging the Board of Regents’ decisions terminating their contracts). “While these orders were not reported and therefore do not constitute binding precedent, they reflect consistent decisions by this Court when it has actually identified and focused on the jurisdictional issue.” Spurlock v. Dept. of Human Resources,