King v. Board of Education , 214 Ga. App. 325 ( 1994 )

Smith, Judge.

Appellant Joyce King sought a writ of mandamus to compel the Board of Education of the City of Buford (“the Board”) to “retain and renew” her contract “in her capacity as Band Director until such time as it has complied with the law by serving the notice and conducting the hearing as set forth in OCGA §§ 20-2-942 & [20-2-]940.” The superior court denied the writ “on the merits,” finding that “the position of ‘band director’ is not encompassed within the procedural safeguards of the Georgia Fair Dismissal Law.” OCGA § 20-2-940 et seq. King appealed to the Supreme Court pursuant to Ga. Const. 1983, Art. VI, Sec. VI, Par. III and OCGA § 9-6-20. The local board filed a cross-appeal enumerating the denial of its oral motion to dismiss. The Supreme Court transferred the cases to this court for disposition.

Case No. A94A0858

1. “[T]he transfer of the appeai[s] to this court by the Supreme Court is tantamount to a ruling eliminating and resolving the [issues involving the legality or propriety of mandamus] which lie only within the jurisdiction of that court to determine. [Cits.]” Swicegood v. Heardmont Nursing Home, 183 Ga. App. 319 (359 SE2d 3) (1987). We therefore assume that there is no substantive issue here whether a writ of mandamus was the legal or proper relief to be sought in the superior court, as opposed to an administrative remedy, a writ of cer-tiorari, declaratory relief, or some other remedy at law. See Beauchamp v. Knight, 261 Ga. 608, 609 (409 SE2d 208) (1991).¹ Therefore we do not consider procedural matters militating against mandamus relief in particular, such as whether King brought this action for reinstatement prematurely, whether she should have first exhausted her administrative remedies, or whether mandamus is a “personal” action that cannot properly be pursued against the Board as a legal entity. Consequently, the issues raised in appellee’s cross-appeal are deemed to be without merit.

Case No. A94A0857

2. Once it is accepted that other potential issues were resolved or eliminated upon transfer from the Supreme Court, we find that this case turns on the proper interpretation of the Georgia Fair Dismissal Law. OCGA § 20-2-940 et seq. Cf. Community Newspapers v. Baker, 198 Ga. App. 680 (402 SE2d 545) (1991) (interpreting OCGA § 9-13-142). These provisions “[set] forth the notice and hearing procedures for termination, suspension or demotion of teachers, principals and other employees having contracts for a definite term.” Rockdale County School District v. Weil, 245 Ga. 730, 732 (2) (266 SE2d 919) (1980). King essentially contends that the Board’s decision not to reassign her as the school’s “band director” after having assigned those duties to her for the previous four years is a “demotion” within the meaning of the Fair Dismissal Law. We are constrained to disagree.

A “demotion” occurs within the meaning of the Fair Dismissal Law when a teacher or other school employee is effectively moved “from one position in the school system to another position in the school system having less responsibility, prestige, and salary.” OCGA § 20-2-943 (a) (2) (C); Weil, supra. There is no question that King is being deprived of certain responsibilities and supplementary salary as a result of her loss of “band director” duties. Moreover, we have little difficulty in accepting as true that classroom teachers who are also band directors place a significantly higher value on that status than they do on their underlying status as classroom teachers generally. Nevertheless, it does not follow that King has experienced a demotion from one position in the school system to another under OCGA § 20-2-943 (a) (2) (C).

In support of its position, the Board offered the testimony of Judy Wolovick, program director for the Professional Standards Commission of the State of Georgia (“the Commission”). It is Wolovick’s responsibility to govern and oversee the certification procedures for secondary school teachers seeking certification in Georgia. Her undisputed testimony reveals that the position of “band director” is not recognized as a “certifiable” position by the Commission. It therefore follows that “band director” is likewise not a cognizable “position” under the Georgia Fair Dismissal Law.

King wishes to establish a property right in her status as “band director” notwithstanding the fact that it is not a recognized position. Her desire to do so is understandable; she wishes to continue teaching subject matter that is neither confined strictly to the classroom nor to regular school hours. However, the General Assembly has established the Professional Standards Commission as the proper authority to “designate and define the various classifications of professional personnel employed in the public schools of this state. . . .” OCGA § 20-2-200 (a). See also OCGA § 20-2-989.1. That body has declined to establish the position of “band director” as a cognizable tenured position. This is a matter within the Commission’s lawful discretion. It therefore follows that, in the absence of clear authority to the contrary, the position of “band director” is not in itself a distinct “position” affording King the procedural protections of the Fair Dismissal Law.

King’s position appears to be that, over time, a teacher may attain property rights in any extracurricular undertaking he or she is allowed to pursue if additional compensation is received as a result. Moreover, she appears to contend that such undertakings do not merely enhance the teacher’s primary, tenured position; rather, they elevate him or her to a new and distinct tenured “position” within the meaning of OCGA § 20-2-943 (a) (2) (C).

We find no support for this contention, and the Board has certainly not encouraged such an expectation. In the contracts immediately preceding the contract year in question, King signed an addendum containing the following language: “In addition to the regular duties of your official contract, you have been appointed for the school year [specified] to the listed position(s)² in the Buford City School System, for which you will receive a supplemental salary allotment. Your duties will be assigned by your principal or immediate supervisor. This agreement is not automatically renewable as these assignments are made by the principal/supervisor each school year.”

We find nothing unenforceable in the Board’s retention of discretion from school year to school year in personnel matters involving extra duty positions such as band director. King was therefore not entitled as a matter of right to retain her “band director” status until such time as the Board held a hearing under OCGA § 20-2-942 (b) — a hearing to which she was likewise not entitled.

The trial court correctly held that the Fair Dismissal Law does not apply to the loss complained of in this case, and therefore the court properly denied King’s petition for mandamus.

Judgments affirmed.

Birdsong, P. J., Beasley, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., McMurray, P. J., Blackburn, J., and Senior Appellate Judge Harold R. Banke dissent.

1 Beauchamp appears to rely, at least in part, on the traditional distinction between law and equity. However, that rationale is inapplicable to mandamus cases, since “the writ of mandamus is a common law writ, with which equity has nothing to do.” (Emphasis omitted.) Gay v. Gilmore, 76 Ga. 726, 726 (1) (1886).

2 Other than band director, the addendum lists 25 other potential extra duty assignments, including “fine arts director,” “psychologist,” “counselor,” “head football,” “assistant football,” “golf,” “cheerleader sponsor,” “debate,” etc.