Brenda Gates v. Taylor County School District , 346 Ga. App. 248 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 13, 2018
In the Court of Appeals of Georgia
A18A0118. GATES et al. v. TAYLOR COUNTY SCHOOL DO-004
DISTRICT et al.
DOYLE, Presiding Judge.
Brenda Gates and 283 other plaintiffs sued the Taylor County School District;
Superintendent Jennifer Albritton; and current or former Taylor County Board of
Education (“School Board”) members Mary Bentley, Ronald Harris, Eloise Doty,
Rufus Green II, and Joseph Patterson. The plaintiffs challenged the voting authority
of Green and certain resulting acts undertaken by the School Board, and they sought
injunctive and other equitable relief. Following a dismissal on the pleadings, the
plaintiffs appeal, contending that the trial court erred by concluding that the officer
de facto doctrine defeats their challenge to the School Board’s actions. Because the
trial court properly ruled that Green was acting as an officer de facto when he cast the
votes at issue, we affirm.
“We review a grant or denial of a motion to dismiss to determine whether the
allegations of the complaint, when construed in the light most favorable to the
plaintiff[s], and with all doubts resolved in the plaintiffs[‘] favor, disclose with
certainty that the plaintiff[s] would not be entitled to relief under any state of provable
facts.”1 When, as here, the defendants have moved for a judgment on the pleadings,
“[w]e may also consider any exhibits attached to and incorporated into the complaint
and the answer, also construing them in the [plaintiffs’] favor.”2 “A trial court’s ruling
on a motion to dismiss is subject to de novo review on appeal.”3
The complaint alleges that Green was a member of the School Board in
November 2013, when the School Board voted to hire Gary Gibson as superintendent
of the School District, entering into a contract for a three-year term in December
1
(Punctuation omitted.) Penny v. McBride, 282 Ga. App. 590 (639 SE2d 561)
(2006).
2
(Punctuation omitted.) Shelnutt v. Mayor & Aldermen of City of Savannah,
333 Ga. App. 446 (776 SE2d 650) (2015). See also OCGA § 9-11-10 (c) (“A copy of
any written instrument which is an exhibit to a pleading is a part thereof for all
purposes.”).
3
(Punctuation omitted.) Penny, 282 Ga. App. at 590.
2
2013. In March 2015, the School Board voted to employ Green’s daughter-in-law,
Shonda Green, as a middle school principal in the School District. In September
2016, while Rufus Green was still acting as a member, the School Board voted to
terminate Gibson’s contract early, effective September 20, 2016. In November 2016,
the School Board executed a contract with Albritton, employing her to serve a three-
year term as superintendent.
Green voted in favor of terminating Gibson’s contract and hiring Albritton. The
plaintiffs sought to challenge these acts and filed a petition for a writ of mandamus,
declaratory judgment, injunctive relief, and for leave to file a writ of quo warranto.
They argued that Green’s challenged votes were unauthorized because they occurred
after Green’s daughter-in-law was hired as a principal in the School District, citing
an anti-nepotism clause in OCGA § 20-2-51 (c) (4) (A). That Code subsection
provides:
No person who has an immediate family member sitting on a local board
of education or serving as the local school superintendent or as a
principal, assistant principal, or system administrative staff in the local
school system shall be eligible to serve as a member of such local board
of education. As used in this paragraph, the term “immediate family
3
member” means a spouse, child, sibling, or parent or the spouse of a
child. . . .4
The defendants filed a motion to dismiss or for judgment on the pleadings on
the ground that Green was acting as an officer de facto during the votes in question.
Following briefing and argument, the trial court granted the motion, giving rise to this
appeal.
The plaintiffs contend that the trial court erred (1) by applying the officer de
facto doctrine on the pleadings without further factual development, (2) because
Green vacated his office as a matter of law, and (3) by applying the officer de facto
doctrine to Albritton. We disagree.
1. Application of the officer de facto doctrine to Green based on the facts
pleaded by the plaintiffs without further factual development. We begin with the
general rule established by the officer de facto doctrine. “It is well settled in Georgia
that, although a person may be absolutely ineligible to hold any civil office whatever
in this state, yet his official acts, while holding a commission as a public officer, are
4
(Emphasis supplied.)
4
valid as the acts of an officer de facto.”5 The official acts of such an office holder “are
recognized as valid on grounds of public policy, and for the protection of those
having official business to transact.”6
The principle on which the whole doctrine . . . rests, is not how
[officers] happen to act de facto, — whether the cause be an illegal
appointment or election, or an illegal holding over, but [instead] it is the
convenience of the public — the necessity of the thing — the
impossibility of one always knowing when an officer to whom he goes
on business of a ministerial character is legally in office, was properly
elected or has held too long.7
Thus, Georgia’s courts long “have held that the fact that a person is ineligible to hold
a particular office, or has failed to take an oath, does not prevent that person from
being an officer de facto, and while de facto in such office, competent to act therein.”8
5
(Punctuation omitted.) Health Facility Investments, Inc. v. Ga. Dept. of
Human Resources, 238 Ga. 383, 384 (233 SE2d 351) (1977).
6
(Punctuation omitted.) Tarpley v. Carr, 204 Ga. 721, 728 (1) (51 SE2d 638)
(1949), quoting Norton v. Shelby County, 118 U.S. 425, 445 (6 SCt 1121, 30 LEd
178) (1886).
7
Smith & Bondurant v. Meador, 74 Ga. 416, 419 (1885).
8
Freeman v. State, 172 Ga. App. 168 (1) (322 SE2d 289) (1984) (collecting
cases).
5
Here, the plaintiffs argue that the trial court prematurely applied the doctrine
on the face of the pleadings because more factual development is necessary to decide
whether the doctrine should be applied in this particular case. Specifically, they argue
that the trial court should have considered whether Green acted “in good faith” and
whether public policy weighs against application of the doctrine in this case. But all
of the precedent regarding good faith cited by the plaintiffs merely references good
faith in dicta explaining the public policy interests served by the de facto officer
doctrine.9 There is nothing about the scenario in this case that removes the normal
policy considerations favoring the doctrine,10 and none of the cases cited by the
plaintiffs articulate a fact-based test based on the particular evidence in the case.
Further, other Georgia cases have applied the doctrine without further factual
9
See, e.g., Smith & Bondurant, 74 Ga. at 418 (“But suppose [an officer] was
not de jure a public officer, was he not de facto such, and his acts good, when done
in good faith by him for any of the public also acting in good faith? We think so most
clearly.”)
10
See generally Godbee v. State, 141 Ga. 515, 519 (81 SE 876) (1914) (The
officer de facto doctrine is “supported . . . [o]n grounds of public policy, because it
would be against the interest of the community to allow the acts of de facto officers
to be collaterally impeached, by drawing into question the official title of such
officers[; and o]n grounds of justice, because to judge a man unheard and without an
opportunity to defend himself would be contrary to natural equity.”).
6
development and without explicit reference to the “good faith” of the acting officer.11
There is no allegation or implication of bad faith in this case, and in light of current
precedent, we discern no error by the trial court in ruling on the defendants’ motion
on the pleadings.
The plaintiffs also argue that because the officer de facto doctrine would not
extend to Green if his original commission was fatally flawed ab initio, further factual
development is required. But this exception only applies if the officer’s original
commission is facially void and, upon examination, “fades away without exposure to
anything extrinsic to itself.”12 Here, by contrast, the plaintiffs’ complaint alleges that
Green was an “acting member” of the School Board, and his “term of office began in
January 2013.” The only defect alleged by the plaintiffs in the complaint or argued
on appeal is the appointment of his daughter-in-law as a principal in the School
District — an event that took place after his official commission.13 The plaintiffs do
11
See, e.g., McLendon v. State, 259 Ga. 778, 779 (2) (387 SE2d 133) (1990);
Hagood v. Hamrick, 223 Ga. 600, 602 (3) (157 SE2d 429) (1967) (sustaining general
demurrer); Keith v. State, 279 Ga. App. 819, 828 (7) (632 SE2d 669) (2006).
12
Parrish v. Adel, 144 Ga. 242, 244 (86 SE 1095) (1915), quoting Hawkins v.
Intendant of Jonesboro, 63 Ga. 527, 529 (1879).
13
The plaintiffs do not dispute this, arguing in their appellate brief that Green
“was ineligible to serve as a member of the [School] Board as of March 12, 2015, the
7
not challenge Green’s original commission; they only argue that he vacated his office
as a matter of law when the anti-nepotism clause in OCGA § 20-2-51 (c) (4) (A) was
violated. Thus, as alleged in the complaint and argued on appeal, there is no issue
presented with respect to Green’s original commission, nor any defect in his status
as an office holder that would be apparent on the face of his commission to that
office. Accordingly, even assuming as true the undisputed facts pleaded by the
plaintiffs, the plaintiffs’ suit was properly resolved on the pleadings.14
2. Vacating office as a matter of law. The plaintiffs argue that Green vacated
his office as a matter of law because he became ineligible to serve on the date his
daughter-in-law was hired as a principal in the School District. As noted above, they
rely on OCGA § 20-2-51 (c) (4) (A), which provides that any person who has an
immediate family member, including a spouse of a child, serving as a principal “shall
be ineligible to serve as a member of” the local board of education. Based on this, the
date the Board hired his daughter-in-law as principal. . . .” Cf. Keith, 279 Ga. App.
at 828 (7) (holding that a magistrate’s official actions were valid until he was later
removed from office for misconduct).
14
See, e.g., Hagood, 223 Ga. at 602 (3) (sustaining a general demurrer on the
ground that “[a]lthough a county board of education may consist in part of persons
who are not legally qualified to hold the office as members, they are de facto in office
and competent to act until ejected”); Varnadoe v. Housing Auth. of Doerun, 221 Ga.
467, 471 (7) (145 SE2d 493) (1965) (same).
8
plaintiffs argue that Green’s alleged ineligibility resulted in him vacating the office
as a matter of law upon his ineligibility pursuant to OCGA § 45-5-1 (a) (4), which
provides: “All offices in the state shall be vacated: . . . [b]y voluntary act or
misfortune of the incumbent whereby he is placed in any of the specified conditions
of ineligibility to office.” The plaintiffs then argue that this vacancy was effective
immediately upon Green’s ineligibility under the accompanying subsection, OCGA
§ 45-5-1 (b), which states:
Upon the occurrence of a vacancy in any office in the state, the officer
or body authorized to fill the vacancy or call for an election to fill the
vacancy shall do so without the necessity of a judicial determination of
the occurrence of the vacancy. Before doing so, however, the officer or
body shall give at least ten days’ notice to the person whose office has
become vacant, except that such notice shall not be required in the case
of a vacancy caused by death, final conviction of a felony, or written
resignation. The decision of the officer or body to fill the vacancy or call
an election to fill the vacancy shall be subject to an appeal to the
superior court; and nothing in this subsection shall affect any right of
any person to seek a judicial determination of the eligibility of any
person holding office in the state. The provisions of this subsection shall
apply both to vacancies occurring under this Code section and to
vacancies occurring under other laws of this state.15
15
(Emphasis supplied.)
9
Based on this subsection, the plaintiffs argue that Green vacated his office on the date
his daughter-in-law was hired, and this vacancy was effective “without the necessity
of a judicial determination of the occurrence of the vacancy.”16
Nevertheless, giving the statutory text its plain and ordinary meaning,17 the
emphasized language in OCGA § 45-5-1 (b) merely addresses the authority of the
School Board to fill the vacancy or call for an election after giving ten days notice to
the vacating officer. This Code section clarifies that the School Board did not need
to obtain a judicial determination before doing so. Even so, the plaintiffs have not
alleged that the Board took any action to fill Green’s seat; instead, the complaint
reveals that Green simply continued to act as an officeholder without interruption.
This scenario fits squarely within the officer de facto doctrine.
Further, putting aside the absence of any allegation that such notice was given
or election called for, nothing in this subsection addresses the validity of the acts
subsequently taken by a holdover officer such as Green. For example, in contrast to
16
(Emphasis supplied.) OCGA § 45-5-1 (b).
17
See generally Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337)
(2013) (“[W]e must afford the statutory text its ‘plain and ordinary meaning,’ we must
view the statutory text in the context in which it appears, and we must read the
statutory text in its most natural and reasonable way, as an ordinary speaker of the
English language would.”) (citations omitted).
10
OCGA § 45-5-1, the very next Code section, OCGA § 45-5-2, states that “[u]pon
final conviction of a felony, the office of any state officer shall be vacated
immediately without further action.” This explicit language — “shall be vacated
immediately without further action” — does not appear in OCGA § 45-5-1. Absent
some action taken by Green or the School Board manifesting his removal, Green’s
actions while holding office were valid under the officer de facto doctrine.
Thus, this argument has the same effect of taking as true the allegation that
Green was ineligible to hold his office. It does not create an end run around the
officer de facto doctrine because the whole purpose of the doctrine is to address what
happens when an officer acting under color of law is nevertheless without authority
to take official action: “All that is required when there is an office to make an officer
de facto, is that the individual claiming the office is in possession of it, performing
its duties and claiming to be such officer under color of an election or appointment,
as the case may be.”18 This is true “whether the cause be an illegal appointment or
election, or [as alleged in this case] an illegal holding over.”19
18
Tarpley v. Carr, 204 Ga. 721, 728 (1) (51 SE2d 638) (1949).
19
Smith & Bondurant, 74 Ga. at 419.
11
The same result is embraced by the statutory version of the officer de facto
doctrine codified at OCGA § 45-2-1, which does not directly control Green’s case,
but reflects the policy behind the doctrine applied here. That Code section enumerates
certain categories of “persons ineligible to hold any civil office,” such as persons of
unsound mind or persons who are constitutionally disqualified, but nevertheless states
that the acts of these people, “while holding a commission, shall be valid as the acts
of an officer de facto,” despite their ineligibility to hold office.20 Thus, Georgia law
explicitly contemplates that a person may be ineligible to hold office but still validly
act under color of law while holding a commission. The plaintiffs’ challenge to
Green’s votes results in the same conclusion.
3. Applying the officer de facto doctrine to Albritton. Finally, the plaintiffs also
argue that the trial court erred by holding that Albritton is an officer de facto. As an
initial matter, the trial court held that “Green’s vote [appointing Albritton] was valid
as the action of an officer de facto.” For the reasons stated above, this was a correct
application of the officer de facto doctrine to Green. With respect to Albritton herself,
the plaintiffs rely on cases that address appointments that were made without the
20
OCGA § 45-2-1.
12
color of law and that were void on their face,21 arguing that Albritton’s acts are
therefore not valid. But this is not such a case: Albritton’s office was duly constituted,
and her appointment made according to the normal process — a School Board vote
— for filling her office.22 Thus, nothing on the face of her appointment reveals a fatal
defect, and this argument presents no basis for reversal.
Judgment affirmed. Dillard, C. J., and Mercier, J., concur.
21
See, e.g., Hawkins, 63 Ga. at 529; Parrish, 144 Ga. at 245 (1915) (“One who
intrudes upon an office and assumes to exercise its functions, without even the legal
title or color of right to do it, is not a de facto officer, and his acts are entirely void.”).
22
Compare Hawkins, 63 Ga. at 529 (“[T]hat [the officer] was ineligible,
appears upon the very resolution by which he was appointed.”).
13