Linda Jean Quigg v. Georgia Professional Standards Commission

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
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
December 27, 2017
In the Court of Appeals of Georgia
A17A1885. QUIGG v. GEORGIA PROFESSIONAL STANDARDS
COMMISSION.
BARNES, Presiding Judge.
Following the grant of her application for discretionary appeal, Linda Jean
Quigg, former superintendent of the Thomas County School District (“School
District”), appeals the superior court’s order affirming the final decision of the
Georgia Professional Standards Commission (“Commission”) to suspend her
educator’s certificate for 60 days. Quigg argues that the Commission’s initial
investigation of her three alleged ethical violations was conducted in a procedurally
improper manner and that the Commission’s decision to suspend her educator’s
license therefore was made in excess of statutory authority, upon unlawful procedure,
and in violation of her due process rights. Quigg also contends that the Commission’s
decision to sanction her for three alleged ethical violations was clearly erroneous
because it was unsupported by the evidence on the whole administrative record.
For the reasons discussed more fully below, the Commission’s decision to
sanction Quigg for dishonesty under Standard 4 of the Code of Ethics for Educators
(“Ethics Code”) for her involvement in a revision made to her daughter’s high school
transcript to include a personal fitness credit was clearly erroneous in view of the
whole record, given that Quigg was no longer serving as superintendent and had
retired from the School District when the incident occurred and thus was not acting
“in the course of professional practice.” We therefore reverse the superior court’s
order to the extent that it affirmed the Commission’s decision to sanction Quigg for
that alleged ethical violation and remand for further action consistent with this
opinion. We affirm the superior court’s order in all other respects.
On appeal, we view the evidence presented at the administrative hearing in the
light most favorable to the agency’s decision. Bowman v. Palmour, 209 Ga. App. 270,
270 (1) (433 SE2d 380) (1993). So viewed, the evidence showed that Quigg held a
teaching certificate in Georgia at all times relevant to the present case. Quigg started
her career in the School District as an elementary school teacher. Quigg subsequently
left the School District and worked elsewhere for several years, but she later returned
to the School District and was promoted to the position of assistant principal and then
to the position of assistant superintendent of curriculum and instruction. In 2007,
2
Quigg was promoted to the position of School District superintendent and served in
that position until the School District chose not to renew her contract in June 2011.1
Quigg had two daughters who attended the Thomas County High School
during her tenure as superintendent. The ethical violations alleged against Quigg arise
out of a temporary change in the School District’s policy regarding dual enrollment
students in the 2009-2010 school year that benefitted Quigg’s oldest daughter; the
removal of confidential student files from Quigg’s work computer; and the inclusion
of course credit for personal fitness on the high school transcript of Quigg’s younger
daughter even though she had not taken that course.
Dual Enrollment Policy. When Quigg served as superintendent, Georgia’s
Accel Program administered by the Georgia Student Finance Commission offered
high school students the opportunity to enroll in college courses and earn credit hours
toward a college degree while simultaneously meeting their high school graduation
requirements. The Accel Program was funded by the Georgia Lottery and provided
financial assistance for the cost of the college courses taken by high school students
1
Quigg questioned the basis for the non-renewal of her contract and filed
charges of gender discrimination and retaliation with the Equal Employment
Opportunity Commission (“EEOC”). After the EEOC granted her a “right to sue”
letter, Quigg filed a federal discrimination suit against the School District and other
defendants. The final resolution of that case is unclear from the record.
3
enrolled in approved dual enrollment programs. A State regulation issued by the
Georgia Department of Education (“DOE”) required that the grades earned by dual
enrollment students in college courses be placed on the students’ high school
transcripts and be used in computing their high school grade point averages (the
“Dual Enrollment Regulation”).2
Before and after the 2009-2010 school year, all grades of dual enrollment
students in the School District were posted on students’ transcripts in compliance
with the State’s Dual Enrollment Regulation. But, for the 2009-2010 school year
only, the School District adopted a new policy of posting the college class grades of
some, but not all, dual enrollment students on their high school transcripts, which
violated the Dual Enrollment Regulation. Under the School District’s new policy,
2
Ga. Comp. R. & Regs. r. 160-4-2-.34 (6) (b) (2009) provided: “The grades
and amount of credit for each approved course for students who participate in
approved dual enrollment programs shall be placed on high school transcripts and
shall be used in computing grade point averages.” Ga. Comp. R. & Regs. r. 160-4-2-
.34 (2) (e) (2010) provided: “For students who participate in approved dual
enrollment programs, the grades and amount of credit for each approved course shall
be placed on high school transcripts and shall be used in computing grade point
averages.” The current version of the regulation contains the same requirement. See
Ga. Comp. R. & Regs. 160-4-2-.34 (2) (d) (2) (2017) (“Grades earned at an eligible
postsecondary institution shall be included on the high school transcript and shall be
used, by the eligible high school, to compute a student’s grade point average.”).
4
whether college course grades were included on a dual enrollment student’s high
school transcript depended on the student’s SAT score and whether the student
needed the credit from the college class to graduate.
Quigg participated in meetings where the change in the dual enrollment policy
was discussed and saw emails questioning the validity of the change for the 2009-
2010 school year. One result of this change in policy was that the grades earned by
Quigg’s oldest daughter in her dual enrollment classes, including a “D” in one college
class, were not posted on her high school transcript. If the grades had been posted on
the daughter’s transcript, they would have lowered her grade point average.
Additionally, the School District reported students, including Quigg’s older daughter,
as dual enrollment students to the Georgia Student Finance Commission for funding
purposes under the Accel Program, even though the students’ college course grades
were not posted on their transcripts as required by the Dual Enrollment Regulation.
The Confidential Student Files. The non-renewal of Quigg’s contract as
superintendent was effective June 30, 2011. Before she left the School District, Quigg
downloaded all of the electronic files from her work computer onto external flash
drives and deleted all of the information on the hard drive. The files included
5
confidential student information, such as test scores and student identification
numbers.
Personal Fitness Course Credit. The School District had a longstanding
practice of allowing students to meet the State graduation requirement of taking a
personal fitness class by instead taking marching band. However, a State regulation
issued by the DOE permitted only Junior ROTC to be substituted for personal fitness
credit (the “Personal Fitness Regulation”).3
After her tenure as superintendent ended, Quigg retired from the School
District and moved with her family to Oconee County, where her younger daughter
enrolled in high school for the 2011-2012 academic year. Her daughter had taken
marching band at her high school in Thomas County, but not personal fitness. Before
3
Ga. Comp. R. & Regs. r. 160-4-2-.48 (5) (VI) (2009) provided:
Health and Physical Education: One unit of credit in health and physical
education is required. Students shall combine one-half or one-third units
of credit of Health (17.011), Health and Personal Fitness (36.051), or
Advanced Personal Fitness (36.061) to satisfy this requirement. Three
(3) units of credit in JROTC (Junior Reserve Officer Training Corps)
may be used to satisfy this requirement under the following conditions:
1) JROTC courses must include Comprehensive Health and Physical
Education Rule requirements in rule 160-4-2-.12 and 2) the local Board
of Education must approve the use of ROTC courses to satisfy the one
required unit in health and physical education.
The regulation was amended in 2011 but contains the same language pertaining to
personal fitness. See Ga. Comp. R. & Regs. r. 160-4-2-.48 (5) (VI) (2017).
6
school started, when an Oconee County School District counselor informed Quigg
that her daughter did not have a personal fitness credit as required for graduation,
Quigg contacted the principal at her daughter’s former school and asked him to check
on her daughter’s transcript in light of the School District’s longstanding policy of
allowing personal fitness credit for marching band. After speaking with Quigg, the
principal contacted the clerk of student records at the daughter’s former school, who
revised the daughter’s transcript to substitute a personal fitness credit for marching
band. The clerk then sent the revised transcript to Oconee County.
The Investigation. George Kornegay succeeded Quigg as superintendent of the
School District in July 2011. Quigg and Kornegay had a strained working relationship
dating back several years. After becoming the new superintendent, Kornegay learned
that Quigg had removed all of the electronic files from the hard drive of her work
computer. Counsel for the School District requested that Quigg return the electronic
files, and she complied with the request. Based on the information contained in the
electronic files and upon learning of the School District’s policies during Quigg’s
tenure that violated the Dual Enrollment Regulation and Personal Fitness Regulation,
Kornegay became concerned that further investigation was needed to determine
whether Quigg had violated any ethical rules. Kornegay took steps to have the School
7
District rescind the dual enrollment and personal fitness policies that had been in
effect during Quigg’s tenure as superintendent and to enact a new dual enrollment
policy consistent with the State’s Dual Enrollment Regulation. Kornegay also had the
personal fitness credit removed from the high school transcript of Quigg’s younger
daughter and a new transcript sent to Oconee County reflecting that she had taken
band rather than a personal fitness class.
In February 2012, Kornegay emailed John Grant, the Commission’s chief
investigator for ethics violations, and requested help in determining whether any of
the “irregular” practices he had identified in the School District rose to the level of
reportable ethics violations. Later that month, before a formal written request for an
investigation had been filed with and approved by the Commission, Grant traveled
to Thomas County, where he reviewed documents, interviewed some of the School
District’s staff, and met with Kornegay.
Following Grant’s initial investigation and after receiving input from him,
Kornegay submitted a written request for an investigation of Quigg to the
Commission in March 2012. The request alleged that Quigg had violated the Code
of Ethics for Educators issued by the Commission (“Ethics Code”) based on her
8
conduct relating to the School District’s dual enrollment policy and the personal
fitness policy and her removal of confidential student files from her work computer.
In April 2012, the Commission’s Educator Ethics Review Committee reviewed
the written request submitted by Kornegay and recommended an investigation of
Quigg to the Commission, and the Commission authorized the investigation of Quigg
for the aforementioned alleged ethical violations. In July 2012, after some additional
investigation by Grant, the Commission notified Quigg that it had found probable
cause to recommend disciplinary action against her. Following the Commission’s
finding of probable cause, Quigg requested a full evidentiary hearing before an
administrative law judge (“ALJ”) with the Office of State Administrative Hearings.
Prior to the administrative hearing, the Commission filed a Statement of
Matters Asserted that detailed the ethics charges against Quigg relating to the School
District’s dual enrollment and personal fitness policies and the removal of
confidential student files from her work computer. The Commission alleged that
Quigg’s conduct violated Ethics Code Standard 4, “Honesty,” and Standard 10,
“Professional Conduct.” See Ga. Comp. R. & Regs., r. 505-6-01 (3) (d) (2), (j). Based
on Quigg’s alleged ethical violations, the Commission sought the suspension of
Quigg’s educator’s certificate for 90 contract days. Quigg filed an answer to the
9
Commission’s Statement of Matters Asserted, denying any violation of the Ethics
Code.
The ALJ conducted the requested hearing at which the Commission and Quigg
introduced documentary evidence and multiple witnesses testified, including
Kornegay, Grant, and Quigg. After the hearing, the Commission and Quigg both
submitted proposed orders containing findings of fact and conclusions of law. In her
proposed order, Quigg asserted that there was insufficient evidence to support a
finding that she had committed any ethics violations relating to the dual enrollment
and personal fitness policies and the removal of confidential student files. Quigg
further asserted that Commission had violated the applicable statutory framework and
her due process rights based on procedural irregularities in the manner in which Grant
conducted the investigation.
Following the hearing and receipt of the parties’ proposed orders, the ALJ
entered a detailed order containing findings of fact and conclusions of law. The ALJ
noted that while it had “concerns about the procedures that were followed” in the
investigation of the case, the Commission had substantially complied with the
statutory framework for investigating ethics violations and Quigg had failed to show
10
that she suffered any prejudice resulting from the manner in which the investigation
had been conducted.
As to the factual allegations raised by the Commission, the ALJ found that
there was insufficient evidence that Quigg was the “mastermind” who orchestrated
the one-time change to the School District’s dual enrollment policy for the 2009-2010
school year and the policy of allowing students to receive personal fitness credit for
taking marching band. The ALJ concluded, however, that the evidence still supported
a finding that Quigg had violated Ethics Code Standards 4 and 10 through her
inaction in response to the change in the dual enrollment policy that she was aware
violated the State’s Dual Enrollment Regulation; her unjustified removal of the
confidential student files from her computer; and her efforts to have her daughter’s
transcript changed to substitute a personal fitness credit for band when she knew that
the School District’s personal fitness policy violated the State’s Personal Fitness
Regulation. But, the ALJ declined to suspend Quigg’s educator’s certificate for 90
contract days as recommended by the Commission and instead concluded that a
suspension of 60 days was “more suitable to the proven allegations.”
The decision of the ALJ was made the final decision of the Commission. Quigg
filed a petition for judicial review in the superior court, challenging the sufficiency
11
of the evidence and the alleged procedural irregularities in the manner in which the
Commission’s investigation was conducted. The superior court held a hearing on the
petition and entered an order affirming the final decision of the Commission. Quigg
filed an application for discretionary appeal with this Court, which we granted,
resulting in the present appeal.
Under the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq. (the
“APA”), the administrative agency “is the finder of fact and weighs the credibility of
the evidence,” Ga. Public Svc. Comm. v. Southern Bell, 254 Ga. 244, 246 (327 SE2d
726) (1985), and in reviewing the agency’s decision, the superior court “shall not
substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact.” OCGA § 50-13-19 (h). See Ga. Public Svc. Comm. v. Alltel Ga.
Communications Corp., 244 Ga. App. 645, 647 (536 SE2d 542) (2000). But, the
agency’s decision may be reversed or modified by the court
if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are: (1) In
violation of constitutional or statutory provisions; (2) In excess of the
statutory authority of the agency; (3) Made upon unlawful procedure;
(4) Affected by other error of law; (5) Clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole record; or (6)
12
Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
OCGA § 50-13-19 (h). “Upon further discretionary appeal to this Court, our duty is
not to review whether the record supports the superior court’s decision but whether
the record supports the final decision of the [administrative agency].” (Citation and
punctuation omitted.) Alltel Ga. Communications Corp., 244 Ga. App. at 647.
1. Quigg contends that the Commission’s decision to sanction her educator’s
certificate must be reversed under OCGA § 50-13-19 (h) (2) and (3) because the
Commission’s decision was made in excess of statutory authority and upon unlawful
procedure, given the manner in which the Commission conducted the investigation.
We conclude that even if the Commission failed to comply with the proper statutory
procedures in conducting the initial investigation, Quigg has failed to show that her
substantial rights were prejudiced by the procedural impropriety and thus has failed
to establish a basis for reversal of the Commission’s decision under the APA.
One of the legislative purposes of the Georgia Professional Standards Act,
OCGA § 20-2-981 et seq. (the “Act”), is to provide a process for the Commission
“[t]o investigate reports of specified criminal conduct, violations of professional or
ethical codes of conduct, and violations of certain rules, regulations, and policies by
13
school system educators.” OCGA § 20-2-982 (6). To that end, the Act authorizes the
Commission to begin an investigation of alleged ethical violations “[u]pon receipt of
a written request from a local board, the state board, or one or more individual
residents of this state.” OCGA § 20-2-984.3 (a) (2).4 Once a written request for an
investigation is received, the Commission must decide whether to conduct a
preliminary investigation of the alleged ethical violations within 30 days of the
request or seek an extension. OCGA § 20-2-984.3 (b).5 If the Commission determines
that a preliminary investigation is warranted, an investigator of the Commission
conducts the preliminary investigation to determine if probable cause exists to
recommend disciplinary action. OCGA § 20-2-984.4 (a).6 The Commission has
4
OCGA § 20-2-984.3 (a) (2) provides:
Upon receipt of a written request from a local board, the state board, or
one or more individual residents of this state, the commission shall be
authorized to investigate . . . [a]lleged violations by an educator of the
code of ethics of the commission[.]
5
OCGA § 20-2-984.3 (b) provides in part:
The commission shall decide whether to conduct a preliminary
investigation pursuant to this Code section within 30 days of the request
unless an extension is granted pursuant to the procedure outlined in
subsection (b) of Code Section 20-2-984.5. . . .
6
OCGA § 20-2-984.4 (a) provides in part:
If the commission agrees to investigate matters reported under Code
14
authority during the investigation to conduct plenary hearings, issue subpoenas,
administer oaths and affirmations, and access criminal histories of educators, OCGA
§ 20-2-984.4 (b),7 but the Commission investigator is limited to investigating the
Section 20-2-984.2 or Code Section 20-2-984.3, an investigator of the
commission shall conduct a preliminary investigation of the reported
matters to determine if probable cause exists to recommend disciplinary
action. . . .
7
OCGA § 20-2-984.4 (b) provides:
In conducting an investigation authorized by this Code section, the
commission shall:
(1) Be authorized to conduct plenary hearings;
(2) Have the power to administer oaths and affirmations;
(3) Have the power to issue subpoenas in the name of the commission
to compel the attendance of witnesses and the production of documents
and any other things to be used as evidence. Such subpoenas shall be
served in any manner now or hereafter provided for service of
subpoenas issued by the superior courts. In the event any person fails or
refuses to obey a subpoena issued under this paragraph, such failure or
refusal shall constitute contempt of the commission. Upon application
by the commission to the superior court of the county wherein such
person resides or is found, the superior court shall have power, after
notice and hearing, to adjudge such person in contempt and to punish
such person by a fine not exceeding $300.00 or by imprisonment not
exceeding 20 days or by both such fine and imprisonment and to enter
such other orders and take such other action as may be necessary to
enforce compliance with and obedience to the subpoena. At such
hearing, the person subpoenaed shall be entitled to make any defense
and to show any valid reason why he or she failed or refused to comply
with the subpoena; and
(4) Have the power to access criminal histories of educators through the
Georgia Crime Information Center and the National Crime Information
15
matters asserted in the original written request unless additional written requests are
filed. OCGA § 20-2-984.4 (c).8
Quigg argues that the Commission failed to follow the proper procedure in
conducting the preliminary investigation into her alleged ethical violations because
Grant began assisting the School District with the investigation before the formal
written request for an investigation had been filed with the Commission by Kornegay
and before the Commission had determined that a preliminary investigation was
warranted.9 However, even if the Commission failed to follow the proper statutory
procedures for conducting a preliminary investigation, there is no evidence that the
Center. This access shall include a GCIC terminal. Information provided
by GCIC or NCIC shall be used in accordance with Code Section
35-3-35 and with applicable federal and state laws, rules, or regulations.
8
OCGA § 20-2-984.4 (c) provides in part: “The investigation conducted
pursuant to this Code section is limited to the matters asserted in the written
complaint unless additional written complaints are filed. . . .”
9
Although the Act authorizes the Commission to provide “consultative
services pertaining to the teaching profession to anyone who has a vested interest in
education and make recommendations to the state board or to local boards which will
promote an improvement in the teaching profession,” the Act provides that the
“investigative powers of the [C]ommission may not be exercised” in conducting such
a consultation. OCGA § 20-2-984 (h). Grant’s actions in traveling to the School
District to assist Kornegay thus constituted an investigation rather than “consultative
services” under the terms of the Act.
16
procedural irregularity prejudiced any of Quigg’s substantial rights so as to authorize
the reversal or modification of the Commission’s decision to sanction her. See OCGA
§ 50-13-19 (h); Bd. of Regents of the Univ. Sys. of Ga. v. Houston, 282 Ga. App. 412,
415 (1) (638 SE2d 750) (2006); Safety Fire Commr. v. U.S.A. Gas, 229 Ga. App. 807,
810 (5) (494 SE2d 706) (1997).10
The record reflects that Grant, the Commission investigator, began his
preliminary investigation into Quigg’s three alleged ethical violations after receiving
an email request for help from Kornegay, the current School District superintendent,
rather than after a formal written request for an investigation had been submitted and
approved for investigation by the Commission. Grant did not rely on any of the
authorized powers that are part of a formal Commission investigation, see OCGA §
20-2-984.4 (b), but instead simply served as additional support to the School District,
reviewing documents, interviewing some staff members, and speaking with
10
Because Quigg has failed to demonstrate that her substantial rights were
prejudiced by the alleged procedural irregularities, we need not resolve whether the
Commission was required to act in strict or substantial compliance with the statutory
procedures for investigations. See OCGA § 1-3-1 (c) (“A substantial compliance with
any statutory requirement, especially on the part of public officers, shall be deemed
and held sufficient, and no proceeding shall be declared void for want of such
compliance, unless expressly so provided by law.”); Cook v. NC Two, 289 Ga. 462,
464-465 (712 SE2d 831) (2011) (discussing rule of substantial compliance).
17
Kornegay. The School District subsequently submitted a formal written request to the
Commission pursuant to OCGA § 20-2-984.3 (a) (2) that detailed Quigg’s three
alleged ethical violations that had initially been identified by Kornegay, and the
Commission voted to approve a preliminary investigation of Quigg, as authorized by
OCGA § 20-2-984.3 (b). After further investigation had been conducted and reviewed
by the Commission, the Commission notified Quigg that it had found probable cause
to suspend her educator’s certificate. See OCGA § 20-2-984.5 (a), (c).11 After Quigg
contested the basis for the recommended suspension, she received a Statement of
Matters Asserted from the Commission that detailed her alleged ethical violations.
11
OCGA § 20-2-984.5 (a) and (c) provide:
(a) After a preliminary investigation authorized by Code Section
20-2-984.4, the commission shall review the report of the investigator
and either determine that no further action need be taken or recommend
that a particular disciplinary action be imposed. This determination shall
be made no later than the commission’s regularly scheduled meeting
next occurring after 60 days from receipt of the findings of the
preliminary investigation. . . .
(c) If the commission finds that there is probable cause for imposing a
sanction against the educator, it may recommend any combination of the
following:
(1) That the educator be warned, reprimanded, monitored, or any
combination thereof; or
(2) That the certificate of the educator be suspended, revoked, or denied.
The commission shall provide to the educator, at the time of the initial
probable cause finding, a written summary statement of the findings of
fact upon which the probable cause was determined.
18
See OCGA § 50-13-13 (a) (2) (D).12 A two-day administrative hearing before an
impartial ALJ then was held in which Quigg was provided ample opportunity to
present a full defense to the alleged violations. See OCGA § 20-2-984.5 (d).13
“An initial procedural violation can be cured by a subsequent procedural
remedy.” Pryor Organization v. Stewart, 274 Ga. 487, 491 (3) (554 SE2d 132)
(2001). See Murray v. Hooks, 313 Ga. App. 485, 486 (722 SE2d 82) (2011). That is
the situation here, where any initial irregularity in the Commission’s investigatory
procedure was cured by the subsequent procedures undertaken before the ALJ and the
Commission and by the notice and full opportunity to be heard that was afforded to
Quigg. Furthermore, there is no evidence that Grant’s initial investigation led to
ethics charges against Quigg different from the ones that Kornegay originally sought
12
OCGA § 50-13-13 (a) (2) (D) provides that in contested cases, an agency
shall provide a “short and plain statement of the matters asserted.”
13
OCGA § 20-2-984.5 (d) provides:
In a contested case, if the commission determines that probable cause
exists to impose a sanction against an educator or to deny a certificate
to an applicant, an opportunity for a hearing shall be provided to the
educator or applicant pursuant to Code Section 50-13-41 [of the APA].
Based on the findings of fact and conclusions of law of the
administrative law judge as provided in that Code section, the
commission may take any combination of the actions referred to in
subsection (c) of this Code section.
19
help in investigating. Under these circumstances, Quigg has not demonstrated that her
substantial rights were prejudiced by the alleged procedural irregularities and
therefore has failed to supply a basis for reversing or modifying the Commission’s
decision to sanction her. See id. See also Ga. Dept. of Human Resources v. Odom,
266 Ga. App. 493, 498 (597 SE2d 559) (2004) (appellant’s substantial rights were not
prejudiced, where appellant had “not shown how she was harmed by the procedure
employed by the board in issuing its decision”). Cf. State v. Lampl, 296 Ga. 892, 896
(2) (770 SE2d 629) (2015) (defendant was not entitled to dismissal of indictment and
suppression of grand jury testimony even though special purpose grand jury exceeded
the scope of its authority in its investigation).14 Accordingly, the trial court properly
determined that the Commission’s decision should not be reversed or modified under
OCGA § 15-13-19 (h) based on a failure to follow proper investigatory procedures.
14
Quigg also argues that Grant’s initial investigation, which occurred before
the written request to investigate had been filed by the School District and the
preliminary investigation had been approved by the Commission, was an ultra vires
act that rendered the Commission’s efforts to sanction her entirely null and void. But,
an action is ultra vires only if it is beyond the power or authority of the governmental
entity to perform under any circumstances; a procedural irregularity in the exercise
of granted powers, as alleged to have occurred in the instant case, does not rise to the
level of an ultra vires act. See Faulk v. Twiggs County, 269 Ga. 809, 811 (504 SE2d
668) (1998); City of Atlanta v. North by Northwest Civic Assoc., 262 Ga. 531, 539 (7)
(a) (422 SE2d 651) (1992); Gove v. Sugar Hill Investment Assoc., 219 Ga. App. 781,
784 (2) (466 SE2d 901) (1995).
20
2. Quigg further contends that the procedural irregularities in the Commission’s
investigation violated her due process rights, necessitating the reversal of the
sanctions imposed upon her.
Suspension of a professional license must satisfy the procedural due process
requirements of the United States and Georgia Constitutions, and “due process
requires that some form of a hearing must be held before one is finally deprived of
their property interest in a professional license.” Gee v. Professional Practices
Comm., 268 Ga. 491, 493 (1) (491 SE2d 375) (1997).
The constitutionally-guaranteed right to due process of law is, at its
core, the right of notice and the opportunity to be heard. Neither the
federal nor the state constitution’s due process right guarantees a
particular form or method of procedure, but is satisfied if a party has
reasonable notice and opportunity to be heard, and to present [his or her]
claim or defense, due regard being had to the nature of the proceeding
and the character of the rights which may be affected by it.
(Citations and punctuation omitted.) Cobb County Sch. Dist. v. Barker, 271 Ga. 35,
37 (2) (518 SE2d 126) (1999).
Here, Quigg was provided with detailed notice of the ethical charges brought
against her in the Statement of Matters Asserted filed by the Commission, and she
was afforded an opportunity to cross-examine the Commission’s witnesses and
21
present her own witnesses and documentary evidence in the evidentiary hearing
conducted before the ALJ. And, as previously noted, even if there were procedural
irregularities in the initial investigation conducted by Grant, those irregularities were
cured by the subsequent procedures, including the School District’s filing of a written
request for investigation, the Commission’s approval of the investigation, and the full
hearing before the impartial ALJ. See Pryor Organization, 274 Ga. at 491 (3);
Murray, 313 Ga. App. at 486. Consequently, Quigg has failed to show that her due
process rights were violated.
3. Quigg also contends that the Commission’s decision to sanction her for (a)
her conduct relating to the dual enrollment policy, (b) the removal of confidential
student files from her work computer, and (c) the alteration of her daughter’s
transcript to reflect a personal fitness credit must be reversed because the evidence
was insufficient to support the decision.
Under the APA,
an administrative agency’s findings and conclusions may be reversed by
the superior court if they are “[c]learly erroneous in view of the reliable,
probative, and substantial evidence on the whole record.” OCGA § 50-
13-19 (h) (5). This language has been interpreted to preclude review if
any evidence on the record substantiates the administrative agency’s
22
findings of fact and conclusions of law. The presence of conflicting
evidence is sufficient to satisfy the any evidence standard.
(Citations and punctuation omitted.) Alberson, 273 Ga. App. at 4-5 (1).
(a) Dual Enrollment Policy. The ALJ found that there was insufficient evidence
to support the Commission’s allegation that Quigg was the “mastermind” who
orchestrated the one-time change to the School District’s dual enrollment policy for
the 2009-2010 academic year that made the reporting of college courses dependent
on a student’s SAT score and whether the student needed the credit from college
classes to graduate. However, the ALJ found that Quigg had known that the School
District’s change to its dual enrollment policy violated the State’s Dual Enrollment
Regulation but had done nothing about it in her role as superintendent. The ALJ
further found that Quigg had allowed the School District to report students as dual
enrollment for funding purposes, knowing that their college course grades would not
be reported on their transcripts as required by the Dual Enrollment Regulation, and
that she took advantage of the temporary policy change to benefit her older daughter
“while ignoring her obligation to comply with the law.”
Based on these findings, the ALJ concluded that Quigg’s conduct pertaining
to the dual enrollment issue violated Ethics Code Standard 4, entitled “Honesty,”
23
which provided that “[a]n educator shall exemplify honesty and integrity in the course
of professional practice” and further provided that unethical conduct included but was
not limited to “falsifying, misrepresenting or omitting . . . information submitted to
federal, state, local school districts and other governmental agencies.” Ga. Comp. R.
& Regs., r. 505-6-.01 (3) (d) (2) (2010).15 Additionally, the ALJ concluded that
Quigg’s conduct violated Ethics Code Standard 10, entitled “Professional Conduct,”
which provided in part that “[a]n educator shall demonstrate conduct that follows
generally recognized professional standards and preserves the dignity and integrity
of the teaching profession.” Ga. Comp. R. & Regs., r. 505-6-.01 (3) (j) (2010).16
These findings and conclusions were adopted by the Commission as its final decision.
(i) Quigg argues that the Commission’s decision must be reversed because
there was no evidence that she knew of the one-time change to the School District’s
dual enrollment policy for the 2009-2010 academic year. Quigg’s argument is belied
by the record when construed in the light most favorable to the Commission, as our
15
The current version of the Ethics Code contains the same language in
Standard 4. See Ga. Comp. R. & Regs., r. 505-6-.01 (3) (d) (2) (2017).
16
The current version of Standard 10 does not materially differ from the prior
version. See Ga. Comp. R. & Regs., r. 505-6-.01 (3) (j) (2017) (“An educator shall
demonstrate conduct that follows generally recognized professional standards and
preserves the dignity and integrity of the education profession. . . .”).
24
standard of review requires. See Bowman, 209 Ga. App. at 270 (1). The former
director of technology for the School District testified that in 2010, she was in a
meeting with Quigg and others in Quigg’s office where questions were raised about
the validity of the change in the dual enrollment policy, and a decision was made to
have the School District curriculum director contact the DOE about the change. After
speaking with DOE officials, the curriculum director sent an email on which Quigg
was copied in which the director noted that those officials were unaware of any
“minimum SAT requirement for a college course to count as high school credit.” An
assistant principal also sent an email in which he questioned the dual enrollment
policy change to the principal of his school, noting that only posting some students’
dual enrollment grades on their high school transcripts “may violate our code of
ethics” and further noting that dual enrollment students “whose tuition has been paid
by the state” through the Accel Program “must have their grades reflected on their
high school transcripts.” A copy of the response to that email was found on the
computer files later retrieved from Quigg that she had removed from her work
computer, indicating that she had been aware of the assistant principal’s concerns.
Furthermore, Quigg herself conceded during questioning by the ALJ that she was
made aware of the School District’s dual enrollment policy change when her daughter
25
enrolled in college classes that year, and that she reviewed in “general fashion” the
reports sent to the State by the School District in which students were reported as dual
enrollment students for funding purposes.
In light of the record construed as a whole, there was evidence to support the
ALJ and Commission’s finding that Quigg knew of the change to the School
District’s dual enrollment policy for the 2009-2010 school year and of the questions
that had been raised about the validity of the policy change, which violated the clear
and unambiguous language of the State’s Dual Enrollment Regulation. See Ga.
Comp. R. & Regs. r. 160-4-2-.34 (6) (b) (2009); Ga. Comp. R. & Regs. r. 160-4-2-.34
(2) (e) (2010). The evidence further shows that despite that knowledge, Quigg, in her
role as local school district superintendent, failed to ensure that the State’s Dual
Enrollment Regulation was properly enforced in the School District, instead allowing
the School District to continue reporting students as dual enrollment for funding
purposes and taking advantage of the policy change for the benefit of her own
daughter.17 See generally OCGA § 20-2-109 (a local school superintendent is the
17
Quigg testified that she did not use her position as superintendent to help her
daughters academically, but the ALJ and Commission rejected that testimony as
lacking credibility based on an email chain reflecting that when she was
superintendent, Quigg would email teachers and principals when she was upset over
the grades of one of her daughters. Under the APA, the Commission, rather than the
26
“executive officer of the local board of education” and has the duty “to enforce all
regulations and rules of the State School Superintendent and of the local board
according to the laws of the state and the rules and regulations made by the local
board that are not in conflict with state laws”); Hall v. Nelson, 282 Ga. 441, 444 (4)
(651 SE2d 72) (2007) (a local school superintendent is the “executive officer” of the
school district “who must comply with state law” in carrying out his or her duties).
Accordingly, the Commission was authorized to find that Quigg violated Ethics Code
Standards 4 and 10 based on her conduct with respect to the dual enrollment policy
change.
(ii) Quigg also emphasizes that while the Commission initially charged her
with causing the one-year change in the School District’s dual enrollment policy, the
ALJ and Commission ultimately found that she was not the “mastermind” who
orchestrated the change and instead sanctioned her based on evidence that she was
aware that the policy violated the State’s Dual Enrollment Regulation, did nothing
about it in her role as superintendent, allowed the School District to continue
reporting students as dual enrollment for funding purposes even when their college
courts, was authorized to evaluate Quigg’s credibility and resolve any conflicts in the
evidence regarding her role overseeing the education of her children while serving
as superintendent. See Southern Bell, 254 Ga. at 246.
27
course grades were not posted on their transcripts, and took advantage of the policy
change for the benefit of her older daughter. According to Quigg, her due process
rights were violated because she was ultimately sanctioned for conduct that varied
from the conduct for which she was charged. We disagree.
[I]n contested cases, such as the present case, the APA provides
for a hearing after reasonable notice. See OCGA § 50-13-13 (a) (1). The
notice must include “[a] short and plain statement of the matters
asserted.” OCGA § 50-13-13 (a) (2) (D); see also OCGA § 50-13-
18(c)[.] Mere vagaries or generalities are insufficient, and the notice
must be sufficiently specific and detailed to convey to the employee the
substantial nature of the charge without requiring speculation on [her]
part as to the precise complaint [s]he must answer.
(Citations and punctuation omitted.) Ga. Professional Standards Comm. v. James,
327 Ga. App. 810, 814 (761 SE2d 366) (2014).
Here, the Statement of Matters Asserted filed by the Commission before the
administrative hearing alleged that Quigg used her authority to change the School
District’s policy on dual enrollment. Of course, necessarily included within that
allegation by implication was that Quigg was aware of the policy change. Moreover,
the Statement also alleged that Quigg was aware through emails that the dual
enrollment policy change violated State regulations, and that the result in the change
28
in policy was that Quigg’s older daughter was able to avoid having her dual
enrollment grades posted on her high school transcript. The Statement further alleged
that Quigg’s older daughter was listed as a dual enrollment student on School District
reports for funding purposes and that her classes were paid for by the State, even
though her college course grades were not posted on her transcript. Given these
combined allegations, we conclude Quigg was sufficiently put on notice that she
could be sanctioned for the conduct found by the ALJ and Commission in this case.
Cf. Bennett v. State, 334 Ga. App. 381, 388 (3) (a) (779 SE2d 420) (2015) (indictment
in criminal case puts defendant on notice that he can be convicted of the offenses
expressly charged in the indictment as well as any lesser included offenses).
(b) The Confidential Student Files. The ALJ found that Quigg had removed
multiple confidential student files from her work computer without any legitimate
reason, and that while there was no evidence that Quigg had misused or improperly
disclosed the confidential information, the effect of her actions had been to cause
inconvenience for Kornegay, the new superintendent. The ALJ concluded that
Quigg’s conduct in removing the computer files violated Standard 10 of the Ethics
Code, and the Commission adopted the ALJ’s findings and conclusions.
29
Quigg emphasizes that Ethics Code Standard 10 requires evidence that the
educator engaged in conduct that does not follow “generally recognized professional
standards,” Ga. Comp. R. & Regs., r. 505-6-.01 (3) (j) (2010), and she argues that
there was no evidence that her removal of the computer files violated such standards.
However, Kornegay, the School District’s current superintendent, testified that
Quigg’s removal of the files was “irregular,” “unusual,” and “strange” from a
professional standpoint and was inconsistent with his own professional experience
as an educator. Construed in the light most favorable to the decision of the ALJ and
Commission, Kornegay’s testimony provided some evidence to support a finding that
Quigg’s removal of the files did not follow generally recognized professional
standards.
(c) Personal Fitness Course Credit. The ALJ found that after Quigg’s role as
superintendent had ended and she had moved with her family to Oconee County, she
requested that her younger daughter’s transcript be altered to show credit for personal
fitness, a course that the daughter had not taken, and allowed the altered transcript to
be submitted to the Oconee County School District. The ALJ further found that while
there was insufficient evidence to support the Commission’s allegation that Quigg
had created the School District’s longstanding practice of allowing students to receive
30
personal fitness credit for taking marching band, there was evidence that Quigg knew
that the practice was inconsistent with the State’s Personal Fitness Regulation when
she requested that her daughter’s transcript be altered in the summer of 2011. The
ALJ concluded that Quigg’s conduct in having her daughter’s transcript altered was
a violation of Ethics Code Standard 4, and the Commission adopted the findings and
conclusions of the ALJ.
Quigg highlights that Ethics Code Standard 4 applies to conduct committed by
an educator “in the course of professional practice,” Ga. Comp. R. & Regs., r. 505-6-
.01 (3) (d) (2) (2010), and she maintains that there was no evidence that she was
acting in the course of professional practice when she sought to have her daughter’s
transcript changed to reflect a personal fitness credit, given that she was no longer
superintendent and was retired from the school system. The Commission does not
respond to Quigg’s argument on this specific point. We agree with Quigg.
“In construing agency regulations, we employ the basic rules of statutory
construction and look to the plain meaning of the regulation to determine its
meaning.” Walker v. Dept. of Transp., 279 Ga. App. 287, 292 (2) (a) (630 SE2d 878)
31
(2006).18 See Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App.
499, 502 (1) (734 SE2d 242) (2012). The phrase “in the course of” is generally
defined as “at some time or times during; in the process or during the progress of.”
Webster’s New International Dictionary 610 (2d ed. 1959) (unabridged). See The
Compact Oxford English Dictionary 351 (2d ed. 1991) (“in the course of” means “in
the process of, during the progress of”); Webster’s New World Dictionary (4th
College ed. 2010) (“in the course of” means “in the progress or process of; during”).
See also Couch v. Red Roof Inns, 291 Ga. 359, 361 (1) (729 SE2d 378) (2012)
(consulting dictionary for plain meaning of word). Cf. Stokes v. Coweta County Bd.
of Ed., 313 Ga. 505, 508 (722 SE2d 118) (2012) (“in the course of employment” in
the context of worker’s compensation law means, among other things, “within the
period of employment”) (citation and punctuation omitted). Hence, we construe the
18
Courts accord considerable weight and deference to an agency’s
interpretation of its own rules and regulations. See Welker v. Ga. Dept. of Examiners
of Psychologists, 340 Ga. App. 853, 854 (1) (798 SE2d 368) (2017). But, that rule of
deference does not apply in this case because the Commission has not provided an
interpretation of the phrase “in the course of professional practice.” See, e. g., Aqua
Products v. Matal, 872 F3d 1290, 1318 (V) (2) (a) (Fed. Cir. 2017) (judicial
deference “does not apply where an agency has not actually addressed the issue it
purports to be within its discretion to address”); Northern Air Cargo v. U. S. Postal
Svc., 674 F3d 852, 860 (III) (D.C. Cir. 2012) (judicial deference does not apply where
agency “never actually advanced any interpretation”).
32
phrase “in the course of professional practice” to mean during the time of professional
practice of an educator.
In the present case, however, the uncontroverted evidence presented at the
administrative hearing shows that Quigg was involved in the alteration of her
daughter’s transcript to reflect personal fitness course credit after she was no longer
serving as superintendent and had retired from the School District. Moreover, the ALJ
and Commission expressly found that Quigg’s efforts to have her daughter’s
transcript change occurred “[a]fter [Quigg] was removed as Superintendent.” Under
these circumstances, the ALJ and Commission erred in concluding that Quigg
violated Ethics Code Standard 4 with respect to the issue of personal fitness course
credit and sanctioning her for that alleged misconduct because Quigg was not acting
“in the course of professional practice.” Ga. Comp. R. & Regs., r. 505-6-.01 (3) (d)
(2) (2010). See generally Welker, 340 Ga. App. at 854 (1) (even if there is evidence
to support an agency’s factual findings, the court also must “examine the soundness
of the conclusions of law drawn from the findings of fact supported by any
evidence”) (citation and punctuation omitted). We therefore reverse the superior
court’s order to the extent that it affirmed the Commission’s decision sanctioning
Quigg for violating the Ethics Code based on the revision to her younger daughter’s
33
transcript to reflect personal fitness course credit, and we remand to the superior court
for further action consistent with this opinion.
Judgment affirmed in part, reversed in part, and case remanded with direction.
McMillian and Mercier, JJ., concur.
34