2021 Georgia Code
Title 20 - Education
Chapter 2 - Elementary and Secondary Education
Article 17 - Teachers and Other School Personnel
Part 7 - Termination, Suspension, Nonrenewal, Demotion, or Reprimand
§ 20-2-942. Procedure for Nonrenewal; Professional Certificated Personnel; Rights of School Administrators; Tenure

1. As used in this Code section, the term:
   1. "Local board of education" or "local board" means a county or independent board of education, a board of education of an area school system, or any agent with the authority to act on behalf of any such board.

      (1.1) "School administrator" means any professional school employee certificated by the Professional Standards Commission who is required to hold a leadership certificate and is assigned to a leadership position pursuant to rules of the State Board of Education, Department of Education, Professional Standards Commission, or requirements of local policy or job description.

   2. "School year" means a period of at least 180 school days, or the equivalent thereof as determined in accordance with State Board of Education guidelines, beginning in or about September and ending in or about June.
   3. "School year contract" means a contract of full-time employment between a teacher and a local board of education covering a full school year. A contract of employment for a portion of a school year shall not be counted as a school year contract, nor shall contracts of employment for portions of a school year be cumulated and treated as a school year contract. A contract of employment for any time outside a school year shall not be counted as a school year contract, nor shall contracts of employment for time outside a school year be cumulated and treated as a school year contract. A school year contract is deemed included within a contract of full-time employment between a teacher and a local board of education covering a full calendar or fiscal year.
   4. "Teacher" means any professional school employee certificated by the Professional Standards Commission, but not including school administrators.
2. 1. A teacher who accepts a school year contract for the fourth consecutive school year from the same local board of education may be demoted or the teacher's contract may not be renewed only for those reasons set forth in subsection (a) of Code Section 20-2-940.
   2. In order to demote or fail to renew the contract of a teacher who accepts a school year contract for the fourth or subsequent consecutive school year from the same local board of education, the teacher must be given written notice of the intention to demote or not renew the contract of the teacher. Such notice shall be given by certified mail or statutory overnight delivery as provided in subsection (c) of Code Section 20-2-940. Such notice shall contain a conspicuous statement in substantially the following form:

      You have the right to certain procedural safeguards before you can be demoted or dismissed. These safeguards include the right to notice of the reasons for the action against you and the right to a hearing. If you desire these rights you must send to the school superintendent by certified mail or statutory overnight delivery a statement that you wish to have a hearing; and such statement must be mailed to the school superintendent within 20 days after this notice was mailed to you. Your rights are governed by subsection (b) of Code Section 20-2-211, Code Section 20-2-940, and Code Sections 20-2-942 through 20-2-947, and a copy of this law is enclosed.

      A copy of subsection (b) of Code Section 20-2-211, Code Section 20-2-940, this Code section, and Code Sections 20-2-943 through 20-2-947 shall be enclosed with the notice. A teacher who is so notified that he or she is to be demoted or that his or her contract will not be renewed has the right to the procedures set forth in subsections (b) through (f) of Code Section 20-2-940 before the intended action is taken. A teacher who has the right to these procedures must serve written notice on the superintendent of the local board employing the teacher within 20 days of the day the notice of the intended action is served that he or she requests a hearing. In order to be effective, such written notice that the teacher requests implementation of such procedures must be served by certified mail or statutory overnight delivery as provided in subsection (c) of Code Section 20-2-940. Within 14 days of service of the request to implement the procedures, the local board must furnish the teacher a notice that complies with the requirements of subsection (b) of Code Section 20-2-940.

   3. A teacher is deemed to have accepted a fourth consecutive school year contract if, while the teacher is serving under the third consecutive school year contract, the local board does not serve notice on the teacher by May 15 that it intends not to renew the teacher's contract for the ensuing school year, and the teacher does not serve notice in writing on the local board of education by June 1 of the third consecutive school year that he or she does not accept the fourth consecutive school year contract.
   4. A teacher who has satisfied the conditions set forth in paragraph (1) of this subsection who is subsequently employed by another local board of education and who accepts a second consecutive school year contract from the local board at which the teacher is subsequently employed may be demoted or the teacher's contract may not be renewed only for those reasons set forth in subsection (a) of Code Section 20-2-940. The provisions set forth in paragraph (2) of this subsection shall likewise apply to such a teacher.
   5. A teacher is deemed to have accepted a second consecutive school year contract if, while the teacher is serving under the first school year contract, the local board does not serve notice on the teacher by May 15 that it intends not to renew the teacher's contract for the ensuing school year, and the teacher does not serve notice in writing on the local board of education by June 1 of the first school year that he or she does not accept the second consecutive school year contract.
   6. Local boards shall make contract offers available to teachers for a minimum ten-day review period. A teacher accepts the contract by signing and returning it any time during the ten-day period.
   7. 1. Professional certificated personnel employed by a county or independent local school system that becomes consolidated with or merged into another county or independent local school system as provided in Article 8 of this chapter or otherwise shall retain their employment, except as provided in subparagraph (B) of this paragraph, in the newly created, or surviving, school system. Such professional certificated personnel shall retain and carry over all the rights already accrued and earned in the professional certificated personnel's prior school system and as set forth in this paragraph.
      2. Any reductions in staff due to loss of students or cancellation of programs in the newly created, or surviving, school system necessitated by the consolidation or merger shall be made first in preference of retaining professional certificated personnel on the basis of uniformly applied criteria set forth in local school board policies of the newly created, or surviving, school system.
3. 1. A person who first becomes a school administrator on or after April 7, 1995, shall not acquire any rights under this Code section to continued employment with respect to any position of school administrator. A school administrator who had acquired any rights to continued employment under this Code section prior to April 7, 1995, shall retain such rights:
      1. In that administrative position which such administrator held immediately prior to such date; and
      2. In any other administrative position to which such administrator has been involuntarily transferred or assigned,

         and only in such positions shall such administrator be deemed to be a teacher for the purpose of retaining those rights to continued employment in such administrative positions.

   2. A teacher who had acquired any rights to continued employment under this Code section prior to April 7, 1995, and who is or becomes a school administrator without any break in employment with the local board for which the person had been a teacher shall retain those rights under this Code section to continued employment in the position as teacher with such local board.

      (2.1) A local board of education may enter into an employment contract with a school administrator for a term not to exceed three years. During the term of any such contract, that school administrator may not be demoted except as provided in the other subsections of this Code section and may not be terminated or suspended except as provided in Code Section 20-2-940, but the school administrator shall have no right to renewal of such contract. The rights provided under such contracts by this paragraph shall be in addition to any rights which a school administrator may otherwise have under the other provisions of this subsection.

   3. Nothing in this subsection shall affect positions which, prior to April 7, 1995, had no rights to continued employment under this Code section, including coach, athletic director, finance officer, comptroller, business manager, nurse, department head or chairperson, and similar positions. Nothing in this subsection shall impair the rights of teachers or school administrators with respect to their employment under annual contracts, including but not limited to those rights under Code Section 20-2-940.
   4. Notwithstanding the other provisions of this subsection, a local board of education may, as part of its personnel policies, adopt or modify a tenure policy which may include the same policies and procedures for the nonrenewal of contracts for any class or category of school administrators that exist for the nonrenewal of contracts for teachers as set forth in this Code section. Before any adoption or modification of a tenure policy, the local board shall hold a public hearing after at least 30 days' notice published in the local legal organ.
4. A person who first became a teacher on or after July 1, 2000, shall acquire rights under this Code section to continued employment as a teacher. A teacher who had acquired any rights to continued employment under this Code section prior to July 1, 2000, shall retain such rights.

(Ga. L. 1975, p. 360, § 3; Ga. L. 1982, p. 2188, §§ 1, 2; Ga. L. 1983, p. 3, §§ 16, 53; Ga. L. 1986, p. 300, § 2; Ga. L. 1987, p. 3, § 20; Ga. L. 1987, p. 1018, § 1; Ga. L. 1991, p. 1546, § 10; Ga. L. 1995, p. 304, §§ 1-3; Ga. L. 2000, p. 618, § 72; Ga. L. 2000, p. 1589, § 3; Ga. L. 2003, p. 896, § 2; Ga. L. 2009, p. 638, § 5/HB 193; Ga. L. 2015, p. 1376, § 38/HB 502.)

The 2015 amendment, effective July 1, 2015, in subsection (b), substituted "May 15" for "April 15" in paragraphs (b)(3) and (b)(5), substituted "June 1" for "May 1" in paragraphs (b)(3) and (b)(5), and substituted "Such professional" for "Said professional" at the beginning of the second sentence in subparagraph (b)(7)(A).

- Pursuant to Code Section 28-9-5, in 1986, a comma was inserted following "effective" in the next-to-last sentence of paragraph (b)(2).

Pursuant to Code Section 28-9-5, in 1995, in subsection (c), "April 7, 1995," was substituted for "the date this subsection first becomes effective" twice in paragraph (c)(1) and in paragraphs (c)(2) and (c)(3).

Pursuant to Code Section 28-9-5, in 2003, "and Code Section 20-2-941" was deleted following "this Code section" near the end of the first sentence in subsection (d).

- Ga. L. 2000, p. 618, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'A Plus Education Reform Act of 2000.'"

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2003, p. 896, § 2, which amended this Code section, purported to amend Code Section 20-2-940 but actually amended Code Section 20-2-942.

- For survey article on education law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 237 (2003). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008).

JUDICIAL DECISIONS

Editor's note.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 32-913, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

- By the statute's plain and unambiguous terms, O.C.G.A. § 20-2-942(c)(2) preserves the expectations of a teacher who obtained tenure rights prior to April 7, 1995, and after that date accepted a school administrator position with the same local board of education so long as no break in employment with that board of education occurred in the interim. Patrick v. Huff, 296 Ga. App. 343, 674 S.E.2d 398 (2009).

Critical phrase "without any break in employment with the local board for which the person had been a teacher," when read in the context of the clause preceding that clause in O.C.G.A. § 20-2-942(c)(2), clearly means that there can be no break in employment with the local board with which a teacher originally obtained tenure rights prior to April 7, 1995. Patrick v. Huff, 296 Ga. App. 343, 674 S.E.2d 398 (2009).

- Georgia law creates a property interest in continued employment for tenured teachers that may not be denied without granting certain substantive and procedural due process rights. Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546 (11th Cir. 1987).

Public school employee's federal procedural due process claims failed because the employee, when transferred from a principal position to a lead teacher position, was not demoted as defined in O.C.G.A. § 20-2-943(a)(2)(C) since the employee did not receive a lesser salary or less prestige, and as such, the employee was not entitled to the procedural protections outlined in O.C.G.A. §§ 20-2-940(b) through (f) and20-2-942(b)(2), which the employee had been denied, because the employee lacked a property interest under Georgia law. Siler v. Hancock County Bd. of Educ., 510 F. Supp. 2d 1362 (M.D. Ga. 2007).

Significance of tenure is that a tenured teacher's contract may be nonrenewed only for one of the reasons specified in O.C.G.A. § 20-2-940. The effect of resignation upon a tenured teacher is immediate loss of tenure rights. Oates v. Coffee County Bd. of Educ., 198 Ga. App. 77, 400 S.E.2d 355 (1990), cert. denied, 198 Ga. App. 898, 400 S.E.2d 355 (1991).

Trial court erred in overturning the State Board of Education's decision to reverse the local education board's vote to terminate the teacher as the fact that the teacher had tenure meant that the teacher's employment contract could only be not renewed for the reasons set forth in O.C.G.A. § 20-2-940(a), regarding grounds for teacher dismissal, and the local education board did not show that any of those grounds had occurred in the time since the board offered to renew the teacher's contract. Moulder v. Bartow County Bd. of Educ., 267 Ga. App. 339, 599 S.E.2d 495 (2004).

- There is nothing in U.S. Const., amend. 14 that would restrict due process protections to tenured teachers; when no formal system of tenure exists, due process may be mandated nonetheless when state rules or understandings between the parties support a claim of entitlement to continued employment. LaPier v. Holliman, 514 F. Supp. 692 (N.D. Ga. 1980).

- When a teacher, having been employed for more than five years as a principal of a school, became "permanently elected," the teacher could not be suspended or removed except for one of the causes specified, and the teacher had the right to defend the position in a hearing before the board. County Bd. of Educ. v. Young, 187 Ga. 644, 1 S.E.2d 739 (1939) (decided under former Code 1933, § 32-913).

- Board of education had the right merely to transfer a teacher from the position of principal to that of a teacher in another school without assigning a cause or a hearing, provided the board did not act merely arbitrarily and exercised the board's judgment as to what was best for the school system, and provided the board did not accompany the demotion with a reduction in salary. County Bd. of Educ. v. Young, 187 Ga. 644, 1 S.E.2d 739 (1939) (decided under former Code 1933, § 32-913).

In a case in which a former school principal argued that the former principal's due process rights were violated under the Fourteenth Amendment when a school district transferred the former principal without a hearing, that argument was without merit. While O.C.G.A. §§ 20-2-940(b)-(f) and20-2-942(b)(2) provided that an educational employee had a right to a hearing when facing a demotion, to qualify as a demotion, O.C.G.A. § 20-2-943(a)(2)(C) provided that the subsequent position must be accompanied by a decrease in salary, and the former principal was unable to demonstrate that there was a decrease in salary. Siler v. Hancock County Bd. of Educ., F.3d (11th Cir. Apr. 9, 2008)(Unpublished).

- Administrator who had formerly worked as a teacher and as a counselor was not entitled to the procedural protections of the Fair Dismissal Act, O.C.G.A. § 20-2-940 et seq. Because there had been a break in the administrator's employment when the administrator worked in another school district, the administrator did not meet the requirement of O.C.G.A. § 20-2-942(c)(2) that the administrator be continuously employed in the district in which the administrator originally obtained tenure. Patrick v. Huff, 296 Ga. App. 343, 674 S.E.2d 398 (2009).

- Tenured assistant principal effectively waived the principal's right to a due process hearing under O.C.G.A. §§ 20-2-940 and20-2-942(b)(1) when the principal voluntarily filed for retirement and began receiving retirement benefits; by operation of O.C.G.A. § 47-3-101(a), the principal was no longer an employee of the school district and no longer entitled to a due process hearing. Ashley v. Carstarphen, 347 Ga. App. 457, 820 S.E.2d 70 (2018).

- Mere fact that a replacement had been hired to assume the duties of a provisionally nonrenewed or terminated teacher prior to that teacher's hearing, when the school district had retained by contract the right to rearrange the teaching duties of the district's teachers, did not as a matter of law violate due process. Holley v. Seminole County Sch. Dist., 755 F.2d 1492 (11th Cir. 1985).

- Trial court properly granted the defendant's motion to quash or dismiss an indictment charging three counts of sexual assault of a student under O.C.G.A. § 16-6-5.1(b)(1) because the defendant was not a teacher for purposes of the statute since that term was not defined and the defendant was only an uncertified substitute who monitored students and facilitated assistance for the students. State v. Rich, 348 Ga. App. 467, 823 S.E.2d 563 (2019).

- Elementary school orchestra and band teachers' equal protection claims failed because: (1) the school district had a rational basis for treating those teachers and Grades 1 through 3 paraprofessionals differently with regard to which employees would be retained since, inter alia, "teachers" and "paraprofessionals" were treated differently under Georgia law; and (2) the district was not collaterally estopped from defending against the equal protection claims since the district was not subject to offensive, non-mutual collateral estoppel. Demaree v. Fulton County Sch. Dist., F.3d (11th Cir. Apr. 8, 2013)(Unpublished).

Intent of this section is to require notice and a meaningful hearing when the local board tentatively decides not to renew the contract of a tenured principal or teacher. Owen v. Long County Bd. of Educ., 245 Ga. 647, 266 S.E.2d 461 (1980).

- County school board and school administrators did not violate standards of federal due process in failing to renew a school teacher's contract after the board and administrators informed the teacher that the reasons for their actions were the teacher's insubordination and willful neglect of duty, in addition to "other good and sufficient cause." Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989).

Notice given to a teacher of the nonrenewal of the teacher's contract adequately advised the teacher of the specific grounds for the non-renewal of the teacher's contract as well as the names of the witnesses who might be called to testify in compliance with O.C.G.A. § 20-2-942(b). The notice also highlighted several specific incidents and noted that the teacher had these problems for the past eight years. King v. Worth County Bd. of Educ., 324 Ga. App. 208, 749 S.E.2d 791 (2013).

- Although a school system did not send a timely non-renewal notice under O.C.G.A. § 20-2-942(b)(2), the teacher knew that the basis for the notice was the teacher's unexcused absences; because the teacher did not mitigate damages and the school system was stubbornly litigious, lost wages, and attorney's fees, at the agreed-upon rate, were proper under O.C.G.A. §§ 13-6-5 and13-6-11. Boone v. Atlanta Indep. Sch. Sys., 275 Ga. App. 131, 619 S.E.2d 708 (2005).

"Tentative" means decision that is final unless good cause is shown to set the decision aside. Owen v. Long County Bd. of Educ., 245 Ga. 647, 266 S.E.2d 461 (1980).

- Trial court properly concluded that as the teacher was hired after the school year began, the teacher had not been employed for two consecutive school terms and thus had not met the requirements for tenure provided in O.C.G.A. § 20-2-942; thus, the teacher was not entitled to notice and a hearing before non-renewal of the teacher's employment contract. Dorsey v. Atlanta Bd. of Educ., 255 Ga. App. 104, 564 S.E.2d 509 (2002).

- At least implicitly, Ga. L. 1975, p. 360, § 5 prohibits the nonrenewal of a tenured teacher's contract except for cause, such as is specified in Ga. L. 1975, p. 360, § 1 and provides that a tenured teacher has a protectable property interest in his or her job. LaPier v. Holliman, 514 F. Supp. 692 (N.D. Ga. 1980).

- First sentence of subsection (c) of O.C.G.A. § 20-2-942 modifies subsection (a) of that section and requires renewal of a teacher's contract for a fourth consecutive year as a prerequisite to application of § 20-2-942. Andrews v. Howard, 249 Ga. 539, 291 S.E.2d 541 (1982).

When the teacher's contract was not renewed for a fourth year, the teacher was not entitled to the protection of O.C.G.A. § 20-2-942, and former § 20-2-941 governed the method of termination. Andrews v. Howard, 249 Ga. 539, 291 S.E.2d 541 (1982).

- If a party does not request a list of charges and a hearing within the specified statutory period permitted, the decision of the board becomes final and conclusive as a matter of law. Owen v. Long County Bd. of Educ., 245 Ga. 647, 266 S.E.2d 461 (1980).

- Competent and probative evidence before a county board which supports a finding of incompetence, insubordination, and/or willful neglect of duties is a sufficient basis for the nonrenewal of a tenured teacher's contract. Ransum v. Chattooga County Bd. of Educ., 144 Ga. App. 783, 242 S.E.2d 374 (1978).

- Defendant's conviction for the sexual assault of a 16-year-old student was properly reversed because the term "teacher" in the sexual assault statute did not mean a paraprofessional such as the defendant; the defendant did not do the sorts of things that teachers typically do as the defendant did not assign class work, homework or any other tasks, give lectures, teach lessons, grade work, administer tests, attend faculty meetings, or report to school on teacher workdays; the defendant did not devote any meaningful portion of the defendant's time to the instruction of students; and the defendant was legally proscribed from being employed as a teacher at a public school as the defendant did not have a teaching certificate. State v. Morrow, 300 Ga. 403, 794 S.E.2d 37 (2016).

- Former tenured teacher failed to state a claim of a procedural due process violation under 42 U.S.C. § 1983 in the nonrenewal of a teaching contract because the teacher failed to utilize available state remedies under O.C.G.A. §§ 9-6-20,20-2-940,20-2-942(b), and20-2-1160(a) through petitioning the board of education for a hearing or seeking mandamus relief. Mason v. Clayton County Bd. of Educ., 334 Fed. Appx. 191 (11th Cir. 2009)(Unpublished).

- Tenured teacher was not required to appeal to the State Board of Education; the Atlanta Public Schools' failure to grant the teacher a hearing on the nonrenewal of the teacher's teaching contract after a hearing was requested made such an appeal futile; since such appeals were confined to the record and presupposed that a hearing was held. Atlanta Pub. Schs v. Diamond, 261 Ga. App. 641, 583 S.E.2d 500 (2003).

Although a superior court erred in ruling that the State Board of Education lacked jurisdiction over two tenured teachers' appeals from their nonrenewal under O.C.G.A. § 20-2-942 because the appeals were more than 30 days from the date the local board voted, the superior court properly affirmed the State Board's decision to reverse the local board's nonrenewal decisions because the local board failed to comply with the decision and notice requirements of O.C.G.A. § 20-2-1160(a). Clayton County Bd. of Educ. v. Wilmer, 325 Ga. App. 637, 753 S.E.2d 459 (2014).

- School district administrator, who had not obtained tenure before the Georgia legislature abolished tenure for administrators by the enactment of O.C.G.A. § 20-2-942(c)(1), which was made effective on April 7, 1995, was not entitled to due process and the protections of the Georgia Fair Dismissal Act, O.C.G.A. § 20-2-940 et seq., because the administrator did not have a property interest in the administrator's job. West v. Dooly County Sch. Dist., 316 Ga. App. 330, 729 S.E.2d 469 (2012).

- Trial court erred in finding that an elementary school principal was entitled to a demotion hearing pursuant to the Fair Dismissal Act, O.C.G.A. § 20-2-940 et seq., in addition to offering the administrator continued employment as a teacher because the principal did not become an administrator until August 1995, four months after amendments to the Act took effect; however, the administrator retained the administrator's rights as a tenured teacher under the grandfather clause, O.C.G.A. § 20-2- 942(c)(2). DeKalb County Sch. Dist. v. Butler, 295 Ga. 672, 763 S.E.2d 473 (2014).

Cited in Goodin v. Ramsey, 235 Ga. 671, 221 S.E.2d 432 (1975); Davis v. Griffin-Spalding County Bd. of Educ., 445 F. Supp. 1048 (N.D. Ga. 1975); Willingham v. Carter, 447 F. Supp. 301 (S.D. Ga. 1978); Long County Bd. of Educ. v. Owen, 150 Ga. App. 245, 257 S.E.2d 212 (1979); Emerson v. Bible, 247 Ga. 633, 278 S.E.2d 382 (1981); Arp v. Bremen Bd. of Educ., 171 Ga. App. 560, 320 S.E.2d 397 (1984); Benson v. Carter, 241 Ga. App. 499, 526 S.E.2d 922 (1999).

OPINIONS OF THE ATTORNEY GENERAL

"School year" defined.

- Phrase "school year" is clearly not a term of art and is ordinarily understood to mean a period of nine months beginning in September and ending in June. Under this construction, a teacher would not receive credit for a partial school year's service. 1981 Op. Att'y Gen. No. 81-94.

- After tenure is established in a local board of education, following which there is an interruption in teaching service, a teacher subsequently employed by another local board of education may nonetheless establish tenure in the latter board of education upon acceptance of a second consecutive school year contract. 1990 Op. Att'y Gen. No. U90-16.

RESEARCH REFERENCES

Am. Jur. 2d.

- 68 Am. Jur. 2d, Schools, § 246.

- 78 C.J.S., Schools and School Districts, §§ 362 et seq., 383, 384, 390, 392, 393, 399 et seq.

- Teachers' tenure statutes, 110 A.L.R. 791; 113 A.L.R. 1495; 127 A.L.R. 1298; 145 A.L.R. 1078.

Constitutionality and construction of repeal or modification by legislative action of teachers' tenure statute, as regards retrospective operation, 147 A.L.R. 293.

Compensation of tenure teacher, 154 A.L.R. 148.

Sufficiency of teacher's request for hearing, under statute requiring hearing on request before discharge, 89 A.L.R.2d 1018.

Termination of teacher's tenure status by resignation, 9 A.L.R.4th 729.