Georgia Injury Lawyer Blog

Gilda Day v Floyd County School District by julie9094

The Rome Tribune featured in the news today that Williams Oinonen LLC filed suit yesterday on behalf of one of the many Floyd County school educator clients, issuing the following statement:

"Not only is the Floyd County School government breaching the charter agreement by violating the people of Floyd County's right to local self-governance by excluding parents, principals, and community leaders who make up the Local Governance Councils in their decision to RIF, but now the local government is depriving Floyd County educators of their constitutional and civil rights. The government is prohibited from depriving life, liberty or property without due process of law, but is now doing exactly that by attacking Floyd County educators right to a fair hearing that is required under the charter agreement, Floyd County Board of Education policy, Georgia state law, and the Constitution.

They are denying Ms. Day the right to obtain the Georgia open records act requests prior to her fair dismissal hearing and are failing to provide both the evidence to be used against her and the blank subpoenas that she is legally entitled to under both Georgia law (the Fair Dismissal Act) and the Constitution. We are asking the Court to order that the local government stop infringing on the constitutional rights of Floyd County educators and comply with Georgia law by ordering them to produce the Open Records Requests, other evidence, and blank subpoenas that she and other Floyd County educators are legally entitled to obtain prior to their due process hearing."

Most troubling, the Superintendent and Board through their attorney is now stating that it does not believe it is required to comply with the Fair Dismissal Act if it doesn't want to, that it can take away tenured educators right to a fair dismissal. This was not the intent of the charter. This was not the intent of the former Superintendent Plunkett, who sought to insure the rights of Floyd County educators were protected.

Under Georgia law and the Board of Education policy, educators are entitled to have a fair dismissal hearing, regardless of whether the district is a charter system or not. The Floyd County community is urged to contact their local school board of education member and demand that they comply with the Georgia Fair Dismissal Act and do not seek to erode the constitutional rights of Floyd County educators to due process by denying them their right to a fair dismissal hearing..

Said Ms. Oinonen: "Just because there is a charter system in place, doesn't mean that the local government doesn't have to follow the Constitution."

In a recent Fair Dismissal Hearing, the Tribunal published its "Findings of Fact and Recommendations to the DeKalb County Board of Education" stating that it "rejects the recommendation to terminate the contract" of a media specialist educator based upon the Reduction in Force plan.

Ms. Oinonen successfully argued that Dekalb County School District's (DCSD's) implementation of the Reduction in Force (RIF) plan is illegal and a violation of the new law, OCGA 20-2-948. This legislation, recently enacted in May 2012 holds it illegal to consider length of service as the primary factor in a RIF. Rather school districts must consider "performance of the educator" as the primary factor in implementing a reduction in force.

Ms. Oinonen argued that this is exactly what DCSD is violating although they denied it--- using a seniority "first in last out system" by claiming that everyone is equal because everyone supposedly has an "overall" satisfactory performance evaluation.

However, under cross examination, the Chief Human Resources officer admitted that DCSD retained people who currently have "Needs Improvements" on their evaluations and who had been on Professional Development Plans ("PDPs") compared to our client with a perfect record.

The Tribunal agreed with Ms. Oinonen's argument and stated in their findings that they "believed that job performance was not fully and properly investigated to differentiate between employees." Additionally, the Tribunal stated the following:

"[T]he Superintendent failed to properly evaluate the final 13 Media Specialists concerning performance, but instead found these 13 to be `equal on performance based solely on an annual evaluation of "satisfactory" without any further review and investigation of these employees. The Tribunal believes it is crucial to further evaluate these employees to weigh and quantify them on performance standards. Failure to do so disregards the intent of OC.G.A. § 20-2-948 which requires the Board to consider performance as the primary factor in implementing a RIF action. Accepting only the annual evaluation of "satisfactory " fails to even minimally comply with this requirement and limits the ability of the District to maintain quality personnel."

The following are two brief excerpts of the cross examination of Dr. Ward Smith, Chief Human Resources Officer during the tribunal hearing and Ms. Oinonen's closing argument:

Excerpt of the Cross Examination of Dr. Ward Smith:

Q. Okay. Now, reminding you that you're under oath, Dr. Ward-Smith, I'd like to ask you would you admit to me that there are some media specialists currently still employed with DeKalb County that have actually been on a PDP at one point in their career?

A. Yes, one point in their career. That is the key phrase.

Q. And would you agree with me that there are some media specialists currently employed with DeKalb County School District that have been on a PDP while as employees of the School District, DeKalb County?

A. I just answered it. Yes.

Q. Well, let me clarify just for the point of the record. I earlier asked would you agree with me that there are currently some media specialists that are still employed with your School District who have been over the course of their entire career in the United States of America have been on a PDP. And I believe you answered yes, correct?

A. Yes. Uh-huh (affirmative).

Q. And now, my second question, just to clarify: Would you also agree with me that there are still media specialists that are going to go back to work this fall who have also been on a PDP while under the auspices of employment within the DeKalb County School District?

A. Yes.

Q. Would you agree with me that Mr. Lynch has never been on a PDP at DeKalb County School District?

A. I cannot confirm, but I would say I don't have information in front of me.

Q. Okay. You don't have the information -- you're saying today under oath that you have no idea whether Mr. Lynch has ever been on a PDP?

A. I'm saying I did not have a PDP for Mr. Lynch.

Q. Okay. And you are also saying, and, again, I'm not trying to be difficult, I just want to understand for the purpose of advocating for my client that you are stating under oath today that you have no knowledge whether he's ever been on a PDP before in his life?

A. I am saying I did not have a PDP for Mr. Lynch.

Q. You don't have one today or you don't --

A. I do not have one --

Q. -- have knowledge?

A. I don't have knowledge of a PDP for Mr. Lynch.

Q. Okay. Thank you. Would you admit, Dr. Ward-Smith, that there are some media specialists that are currently still employed with your School District who have received an NI, needs improvement, on their annual performance evaluations at one point during their career over the past year at DeKalb County School District?

A. Yes, ma'am.

Q. Okay. So there are actually media specialists going back to work this fall who have an NI on their annual performance evaluations?

A. I would say yes, there are.

Q. Okay. And you know that Mr. Lynch has never gotten an NI at DeKalb County School District?

A. Over the last three years, the annual evaluation overall ratings that we reviewed -- and like I say, I can't answer that. But at that particular point, I have no knowledge of Mr. Lynch having an NI.

Q. Okay.

A. Over the last three years.

Q. Do you have any knowledge of Mr. Lynch's annual performance evaluation, period?

A. Yes, ma'am. I have knowledge that it was overall satisfactory.

Q. Okay. Now, let's go back to this RIF evaluation that's now required by Georgia law since May of 2012, regarding considering the primary factor the performance of the educator. So I'd like to talk about this. Now, I think you've already admitted that media specialists -- there's media specialists that are still employed at DeKalb who don't have dual certifications like Mr. Lynch and who have been on Needs Improvement, unlike Mr. Lynch, and who have been on PDPs, unlike Mr. Lynch. So I want to ask you how many media specialists, to your know- -- media specialists, it's like a librarian, right?

A. Library media specialist. Yes, ma'am.

Q. Okay. Okay. So how many library media specialists, to your knowledge, have a 4.0 masters degree in Library Information Sciences?

A. I'm not aware.

Q. Okay. Would you agree that certainly there's probably just a small percentage of them out of the whole 130 folks that you evaluated?

A. I'm not aware of an exact number.

Q. So you don't have that data today that you can show us whether --

A. I do not.

Short Excerpt of Ms. Oinonen's Closing Argument:

"We're 85 million dollars in deficit. But at least, let's do it right. We have enough problems in DeKalb County than screwing up this whole thing and not even complying with Georgia law, and for goodness sake, our own policy, our own policy that our Superintendent and our School Board approved, which states: "The criteria and the evaluation is to be based on professional expertise and certification and performance based upon annual evaluation and seniority only after the aforementioned factors have been considered and found to be equal." That's in addition to the requirement of the law.

And that's why you must reverse this RIF, because they're violating Georgia law. They are not following RIF statute, they are not following their own RIF policy.
But, again, they have the burden of proof to prove that they are. And what did they prove? Did they show us this magical database that I was stammering over when I was trying to think of Dr. Fletcher's excellent question about the rubric? Did they even bring one personnel file to show about these 13 people that were RIF'd? Not once did they present any kind of statistical analysis, did they show us the percentages or any type of formula based on number of satisfactory evaluations to unsatisfactory? No, they didn't do any of that.

But I tell you what they did do. They showed you that something really screwed up is going on. And I say this respectfully, because I think these are all nice people. But why? I can't testify, but I represent educators. And I know what goes on. Why are they keeping people that are on PDP? We all know what that means. Why are keeping people that have a bunch of NI's? You heard her testifying under oath that the people that they kept that didn't RIF, the media specialists, the 130 people that they all said were equal or, you know, were all satisfactory, why were they keeping people that are on current Professional Development Plans or receiving NI rankings and RIFing the people that have absolutely satisfactory evaluations?

This stinks to high Heaven. Something is going on. And it's up to you all to address this issue and to let them know that we understand we're in deficit. We understand we have to RIF people, and it's difficult and it's hard decisions. But when we're going to make these hard decisions, my God, at least let's make them right so they don't end up getting reversed and we end up being in a deeper hole. Let's at least follow our own policy, and let's do it as educators.

We're educators. My God. We've trained on how to do these things. I mean, isn't that what we taught constantly as educators, about learning assessments and evaluations, and we can't even evaluate our own properly? There's something that's going on here. And I'm asking you today to address it and nip this in the bud, because if they're doing this to media specialists, then what are they going to do with the teachers?

Think about that when that comes down the pipe, when 250 teachers get passed, and the Board recommends that they're laid off. Is this how they're going to evaluate? If you don't say something now, they're going to do it to all the teachers in the DeKalb County School District. They're going to RIF the people with satisfactory evaluations, and they're going to keep the people on PDP and with NI's in their record. And what outcome for results is that going to be to the children of DeKalb County? Think about that.

The School District failed to meet their burden of proof. I did not see one chart. I did not see one graph. I did not see one personnel file, which by the way, is subject to the Opens Records Act, and if they were concerned about confidentiality, they could have redacted some names. I didn't see any of that. I didn't see anything, anything, not one single document that really analyzed the criteria according to who should be RIF'd and who shouldn't.

All I heard was Dr. Ward-Smith say a quote that I wrote down to be sure I quoted. She used four words, all things are equal. No, they're not. They're not. They're not following. They're not doing what they're supposed to do. They're not complying with RIF policy, and they're not complying with Georgia law.

I'm not asking you to please play favorites on Mr. Lynch. I'm asking you to do the right thing. I'm asking you to do the right thing that he is afforded as a Georgia educator under O.C.G.A. 20-2-940, and I'm asking you to do the right thing regarding Georgia law concerning the reduction in force and concerning our own School District policy.
You've seen his résumé. And you all know whether this is average or not, a 4.0 Master's degree, Honor's Dean List from UGA, Community Service, Obama Organizing Fellow, English Honor's Society Member, Delta Epsilon Iota Honor's Society Member, UGA Honor's Program Member.

The only reason I -- the only thing that I didn't do that I probably should, I mean, I should have asked Mr. Lynch how much he loves teaching. But I didn't talk about -- I didn't ask him about how much he loved the students. So I can't really go into that, because I didn't present it as evidence, and I wish I had.

But I'm asking you to reverse his RIF. I know it's a big thing, but it's the right thing to do. And if it doesn't get done, and if we just rubber stamp this decision, mark my word, they're not going to just do it to Mr. Lynch, they're going to do it to every teacher. Mark my words, you're going to send a message today. And I just ask you to send the right one. And I ask you sincerely to think carefully what I said and to review all the evidence, and to reverse Mr. Lynch's reduction in force and termination."

It's that time of year again, when sadly, many good teachers start to worry whether their principal or school administrator will issue them a non-renewal letter regarding their teaching contract. This can often happen if the teacher has been previously placed on a Professional Development Plan, or "PDP."

One of the biggest way principals or school districts lay the groundwork in order to try and fire a tenured teacher is by putting them on a PDP early on in the school year. Laying the "paper trail" even when the accusations against the teachers are not legitimate, is the most effective legal strategy that school districts use to try and ensure that future adverse employment action against the teacher is deemed legal and fair.

One administrator estimates that 50% of the teachers placed on a Professional Development Plan ("PDP") are successful in completing it. School administrators know this 'game' when they place the teacher on a PDP. Oftentimes the end purpose is not to improve the teacher's performance, but rather simply to have legal justification for firing the tenured teacher down the road. To do this successfully, some teachers end up being set up for failure by being placed in a no-win situation.

If you are a tenured teacher who has been placed on a PDP, it is vital that you immediately seek competent, legal counsel in order to begin to fight the one-sided paper trail that will be used to justify non-renewal of your teaching contract from day one.

It is also important to educate yourself on your legal rights as a Georgia teacher. For example, if a school board terminates, suspends, or demotes a teacher in the middle of a contract year, the teacher has a right to be represented by counsel during a hearing - even if the teacher is not tenured (O.C.G.A. 20-2-940). If a school board attempts to non-renew a tenured teacher's contract, the teacher again has a right to a non-renewal hearing. (O.C.G.A. 20-2-942).

Good Georgia Lawyer has written about the rights of teachers relating to employment termination and contract non renewal which we recommend you read here and here.

The important thing is to act sooner rather than later if you are a teacher facing a potential adverse employment action. All too often, human beings procrastinate rather than dealing with the scary things in life that we don't want to have to face such as the loss of a job in this difficult economy. As a result, clients are oftentimes calling us after the fact rather then early on when it is much easier to help them.

Don't end up in a case of too little, too late. The sooner an attorney is on your side, the better the chance your employment as a teacher in a challenging work environment will have a successful outcome.

Continue reading "Good Georgia Education & Employment Lawyer Needed During Non-Renewal of Teacher Contracts, PDP's, and Terminations:" »

Paula Deen, her brother, and her companies have been sued for racial discrimination, assault, battery, sexual harassment, amongst other unlawful, humiliating conduct practiced upon their employees. Ms. Lisa T. Jackson is the plaintiff in this matter and the former general manager at one of Paula's restaurants. Ms. Jackson worked for Paula Deen from approximately 2005 to 2010.

Hired to do "a man's job:"
Paula Deen put her in the position of general manager to clean up her brother Bubba's failing restaurant which was called "Uncle Bubba's." At that time, the complaint alleges that Paul Deen stated, "if you think I have worked this hard to lose everything because of a piece of p***y think again. . . And now I am going to do something I have never done. I am going to put a woman in a man's job" giving Ms. Jackson six months to turn the restaurant around.

Called "my little Jew girl:"
The complaint alleges that in six months, Ms. Deen's directive was accomplished and as a result she was called "my little Jew girl" by Paula's brother and "almost Jewish" by their Certified Public Accountant (CPA). As general manager, Ms. Jackson alleges that in spite of her accomplishments, she was not paid a salary equal to her male counterparts and was told by the CPA that "women are stupid because they think they can work and have babies and get everything done" and that Paula's brother Bubba "would not permit a woman to be paid any more than she was already paid."

Ms. Jackson stated that she and her employees were subjected to oppressive sexual and racial harassment including being subjected to inescapable pornography that brother Bubba brought into her office every single day.

Sexual Harassment:
The complaint alleges that Paula Deen's brother Bubba would ask Ms. Jackson if she would bring pictures of when she was young for him to view, would comment on her physical appearance, comment on other female employees physical appearance, and regularly made abusive comments that included talking about men putting beer on top of a woman's head while "she is giving you a blowjob." Ms. Jackson also alleges that Paula Deen's brother Bubba Hiers forcibly and unlawfully grabbed her face, kissing her and spitting upon her.

Racial Discrimination Including Use of the N-Word:
Ms. Jackson (who is Caucasian) alleges in her complaint that both Paula Deen and her brother Bubba Hiers also subjected her to racially discriminatory conduct every single day. For example, the complaint Ms. Jackson states that when she asked Paula Deen what type of uniforms she preferred the servers to wear, Paula Deen responded by stating:

"Well what I would really like is a bunch of little n*ggers to wear long sleeve white shirts, black shorts and black bow ties, you know in the Shirley Temple days, they used to tap dance around. . .Now that would be a true southern wedding wouldn't it? But we can't do that because the media would be on me about that." laughed Paula Deen to Ms. Jackson.

Keeping Blacks in the Back:
Ms. Jackson states in her complaint that all African American staff persons at her restaurant were required to use one restroom in the back of the restaurant and not the customer restrooms even though the white staff were allowed to. Additionally, she alleges that African American staff persons were not allowed to go to the front of the restaurant and that when Ms. Jackson hired two African American hostesses, Paula's brother Bubba Hiers repeatedly complained. Ms. Jackson also alleges that Bubba would start drinking whiskey at approximately upon 10:00 a.m. where he began his day of drinking and abusive behavior.

"Don't You Wish You Could Rub All The Black Off of You And Be Like Me?":
The complaint alleges many of Bubba's abuse including stating: "I wish I could put all those n*ggers [in the kitchen] on a boat to Africa;" that he told a black security guard: "don't you wish you could rub all the black off of you and be like me. . you just look dirty I bet you wish you could;" told a vendor that he had a "bunch of coons in this kitchen," told jokes using the word n*gger in the presence of others, physically and violently shook an African American kitchen staff person and challenged other black kitchen workers to fight him.

After five years of being subjected to Bubba Hier's abusive violent conduct Ms. Jackson states she began developing enormous stress which caused her chest pains, panic attacks and later serious medical consequences which made her doctor insist she stay away from work and request that he admit her to the hospital. The complaint allege that she made pleas for relief to senior management reporting the discriminatory conditions and abusive treatment she confronted.

Ms. Jackson is asking that the Court permanently enjoin Paula Deen, her brother, and her companies from further unlawful conduct including awarding her damages and attorney fees.

To view the actual complaint, click here: Jackson v. Deen, et al. Complaint(1).pdf

Continue reading "Good Georgia Lawyer Discusses Paula Deen Lawsuit For Racial Discrimination, Use of the N-Word, Sexual Harassment of Employees" »

Williams Oinonen LLC is happy to report recent success in representing a Georgia educator with decades of experience who had her contract non-renewed with the Fulton County School District. To add insult to injury, the school district denied her employment benefits putting this divorced mother at risk of losing her home and not being able to provide for her young children right before the Christmas holiday.

Williams Oinonen LLC generally bills clients in all employment matters but in this case, we accepted this matter on a pro bono basis as this successful educator had been a loyal client of ours in the past and was in an emergency situation in need of urgent help. It was the least we could do to help a dedicated and committed educator who had served the Georgia public schools for so many years.

We are happy to say that we were able to win our client's appeal and she was awarded back pay and her unemployment benefits just in time for Christmas. We were humbled to receive from her the following email which she gave permission to share:

"Williams Oinonen LLC is a law firm whose attorneys command that justice be served. My case involved complex tactics on the defendant's part to undermine my professional integrity and years of service as an educator, including denying my rights to unemployment benefits in a tough job market.

Thank you again, Ms. Oinonen. You are a life saver! Everyone (my loved ones) is ecstatic with your work!"

Williams Oinonen LLC is committed to helping teachers, educators, parents, and students insure that their rights are protected under the law. If you are a Georgia teacher, Georgia parent, or Georgia student that is in need of legal assistance, don't wait till the situation gets worse.

Often times, we are able to do things before the injustice occurs to mitigate damages or prevent the worst from happening. If you suspect that your rights are being slowly violated, don't wait till negative action is taken such as through a non-renewal letter. Contact our office first to schedule an appointment in order to set in place the necessary protections to protect your legal interests.

Today a Barrow County judge ruled against a former teacher who alleged that she lost her job due to a posting on Facebook.

Ashley Payne resigned from her job as a teacher at Apalachee High School in the Fall of 2009 after an individual who stated they were a parent sent a complaint about postings Ms. Payne had made on Facebook showing her drinking alcohol and stating that she was headed to a game of "Crazy Bitch Bingo" at an Atlanta restaurant. Ms. Payne claims she was under pressure to resign however the school district disputes this claiming she volunteered.

Ms. Payne is now graduate student at UGA and filed suit asking the court for a determination stating she was entitled to a due process hearing. It is unfortunate that Ms. Payne did not ask for a due process hearing, speak to her union advisor, or consult an attorney prior to resigning.

Under Georgia law, it would be very difficult to show that a voluntary resignation is truly one made under duress and a violation of one's due process rights. Thus, it is very important for a teacher to seek legal advice prior to making such an important decision concerning their employment.

Here at Good Georgia Lawyer, we have represented many teachers dealing with employment issues and we have written about the rights of school teachers in Georgia previously.

In a nutshell, O.C.G.A. §§ 20-2-940, et seq., regulates the hiring and firing of teachers in Georgia. Firing or suspension can only be had based on eight grounds as listed and the district is required to hold a hearing before this happens.

Notice is required to be given to the teacher notifying them of the hearing and charges placed against them at least ten days prior. To learn more information, please read our article here which explains the process in more detail.

To understand your legal rights, we recommend you read our article here.

To schedule an appointment to meet with an attorney to discuss your personal employment situation, contact Williams Oinonen LLC at 404-654-0288.

Today, the AJC reported that a Georgia restaurant chain called "This Is It" has been ordered by the feds to provide 230 workers $104,000 in back pay and fined nearly $1,900 for letting minors work illegal hours.

The U.S. Department of Labor took legal action after investigating the restaurant and found violations of record keeping, overtime, and minimum wage laws which protect workers. Furthermore, it found the restaurant chain wrongly classified employees as "exempt" consequently failing to pay them overtime (time and a half their regular rates) for hours over forty in a work week as required by the Fair Labor Standards Act.

Moreover, the restaurant chain did not pay workers minimum wage because it illegally deducted lunch breaks and uniform expenses. Additionally, underage workers were allowed to work restricted times. Finally, the company failed to maintain correct records of hours worked and money earned by the workers.

Unfortunately, Good Georgia Lawyer has seen that many businesses, especially the restaurant industry, make the mistake of committing numerous illegal and evasive business practices. This includes paying employees "under the table" without reporting them and denying them from overtime wages. This hurts businesses by exposing them to future liability, hurts the low-income worker who is especially vulnerable to being exploited, and ultimately further hinders our economy.

The Fair Labor Standards Act is a federal law which creates minimum wage, overtime wages, record keeping requirements, and laws concerning child labor. The FLSA protects both full and part time workers who work for private employers, state, local, and federal governments.

What We Recommend For Employers: It is advisable to seek a legal consultation so a lawyer can review your business operations and make sure you are in compliance with the law in order to avoid costly litigation. Additionally, hiring a payroll firm to help correctly compute wages and overtime compensation for workers is key.

What We Recommend For Employees: If you believe you are a victim of a wage and hour violation, we encourage you to come in for a legal consultation to protect your legal rights. Please review our law firm's practice area for different types of wage and hour abuses.

For an extensive listing of all Georgia employment laws, we encourage all to view the Georgia Department of Labor's website at this specific page.

This is the second part of our article concerning the rights of Georgia public school teachers relating to termination, non-renewal of contracts, demotions, reprimands and the like.

You As A Contracted Public School Employee, Teacher Or Principal Are Entitled To Proper Service:

All notices relating to suspension from duty must be served to the employee either personally, or by statutory overnight delivery, or by certified mail. Service is considered "perfected" when it is deposited in the United States mail, sent with sufficient postage stamps, and delivered to the last known address of the employee.

You Have A Right To An Attorney Present:

Any teacher, principal, or other public school district contract employee against whom such charges are brought shall be entitled to be represented by counsel and, if upon request, can also subpoena witnesses and production of documents.

The Requirements Of The Hearing:

(1) The hearing is conducted in front of the local school board, or they can designate a tribunal made up of between three to five impartial people who have expertise in academics. This tribunal will then submit findings and recommendations to the local school board who will make the final decision.

(2) The hearing will be transcribed and the board is responsible to pay for that expense. The transcript does not need to be typed unless the decision is appealed to the State Board of Education which in that event whomever is making the appeal must pay.

(3) An oath must be taken by all witnesses during the hearing to tell the truth.

(4) All questions relating to legal matters such as admissibility of evidence is decided by the chairperson or presiding officer and can be appealed. In all hearings, the burden of proof shall be on the school system, and it shall have the right to present the opening and closing.

Decision And Appeals:

The local board must make a decision at the hearing or within five days of the hearing. If a tribunal hears the matter they must offer their recommendations within five days and then the school board has ten days to make their final decision. Appeals can be taken to the state board of education.

If you are a teacher or principal who finds yourself in this situation, don't go it alone. Remember, you are entitled to have an attorney represent you at the hearing.

Continue reading "Legal Rights For Georgia Teachers Relating To Demotion, Termination, Non-Renewal of Contract or Reprimand" »

The Official Code of Georgia §§ 20-2-940, et seq., governs the demotion,
dismissal, and suspension of professional, certificated school district employees in Georgia. This law also governs the termination and suspension of school district employees who have a contract for a definite term. The law applies equally to all employees who have contracts with the school district, but does not apply to at-will employees without contracts.

Termination or suspension can only be based only on the eight grounds listed in
O.C.G.A. § 20-2-940(a), and the school district is required to hold a hearing before this happens. (Suspension is without pay and may last up to 60 days under O.C.G.A. § 20-2-943(a)(1)(b), and the suspended employee cannot be working at this time.) These eight specific grounds for suspension or termination are as follows:

(1) Incompetency--for example, deficient record keeping or a high failure rate of students.

(2) Insubordination--for example, failure to obey instructions.

(3) Willful neglect of duties--for example, failure to complete lesson plans and grades.

(4) Immorality--for example, sexual encounters at school.

(5) Inciting, encouraging, or counseling students to violate any valid state law, municipal ordinance, or policy or rule of the local board of education--for example, encouraging students to protest a board of education policy.

(6) To reduce staff due to loss of students or cancellation of programs--for example, due to budgetary considerations.

(7) Failure to secure and maintain necessary educational training--for example, a teacher who does not possess the necessary teacher certifications and failed to obtain it during a provisional probationary period.

(8) Any other good and sufficient cause--for example, making false statements about the school administration or assaulting a student.

Notice must be given to the employee of the hearing and charges at least ten days
prior to the date of hearing on the proposed termination.
At a minimum, the notice must include:

(1) The cause or reasons for suspension, discharge or demotion in detail enough that permits the employee to refute it if it is made in error.

(2) The names of witnesses and a concise summary of evidence that will be utilized to prove the case against the employees. The names of all new witnesses must be given as soon as practical.

(3) The place and time of the hearing.

(4) That the charged employee/teacher shall be given subpoenas (if requested) requiring the production of documents or compulsory attendance of witnesses as provided by law.

The burden of proof is on the school district and the employee has the right to appeal to the State Board of Education and later to the court system if necessary. In our next article, we will discuss service, the hearing itself, and the right to bring counsel.

Most importantly, if you are a teacher or a public school employee facing such a hearing, don't go it alone. Consider contacting our law firm for more information and legal assistance to aid you through the process.

The Official Code of Georgia § 13-2-2 sets out "rules for interpretation of contracts generally." The law states that the following rules, among others, shall be used in order to arrive at the truthful interpretation of a contract. This means if you are having a business dispute with your partner, vendor, tenant, or another company and a question turns on what the contract between you two actually means or whose version (yours or theirs) interprets the contract correctly, consider the following rules:

(1) Parol evidence is inadmissible to interpret the written contract.--Parol evidence is anything that is outside of the four written corners of the piece of paper that the contract is actually written on. This could mean conversations that you had over the telephone or notes written on a dinner napkin at a restaurant you were eating at during contract negotiations. The only time this outside evidence ("parol evidence")should come in to interpret the meaning of the written contract is if it the written contract is somehow ambiguous (unclear) and it is obvious that the written contract wasn't intended to represent the entire agreement.

(2) Words generally should be interpreted by their usual and common meaning; but a technical word used in particular trades should be interpreted the way they are generally used in that line of business. The local use of a word can be brought in as evidence to determine the actual meaning intended by the parties who entered the contract. In other words, if you and I were chicken farmers and we entered into a contract where you would sell me 500 Rock Cornish broilers, if there was any dispute as to what a "broiler" was, the courts would look to the ordinary local use of how Georgia chicken farmers interpret "broilers."

So for example, the courts would not interpret "broilers" to mean a grill you'd set on the stove for broiling and assume that you and I were in the pots and pans business. Rather, they'd look at the language of the Georgia chicken farmer industry to interpret what a "Rock Cornish broiler" actually means.

(3) The custom of any trade or business is only binding only when it is such a universal practice that it justifies the interpretation of the contract. This speaks for itself. We would want to know that the custom and practice of chicken farmers in Georgia and as long as it is a "universal practice" we would be able to use it in order to interpret the contract.

(4) Additionally, when you interpret a contract you should interpret it in such a way that will uphold the entire meaning of the contract, not just a few parts here and there.

(5) If the meaning of the contract is at doubt, and you have to interpret it in such a way that favors one party over the other, you should interpret it against the party that actually drafted (wrote up) the contract. This is because you assume that the writers of the contract were at the biggest advantage and the party that did not write it is already at a disadvantage so you should interpret in their favor.

Consequently, if you are the party that is in charge of drafting the contract, you had absolutely be sure that you have good competent legal counsel drafting your legal document. If you don't and you just throw something together that you cut and pasted off the internet, you are bound to run into trouble later on. Because you were the one who actually drafted the contract, the courts may disfavor your side if having to interpret the meaning of the contract in a business dispute.

Thus, always make sure the contract is drafted in such a way that protects your legal rights. We regularly represent clients involved in litigation disputes who often wish they had hired us much earlier so they might have avoided or prevented the litigation dispute in the first place.

What The Cardinal Rule Is For Interpreting Contracts:

Finally, we need to mention what the cardinal rule is for interpreting contracts as explained in the Official Code of Georgia Annotated § 13-2-3. The cardinal rule of interpreting the contracts is to ascertain ("figure out") what was the intention of the parties entering into the contract. If that intention is clear, it doesn't contradict a rule of law, and sufficient words (enough written descriptions) show what this intention is, then the "parties intent" is what the courts will enforce irrespective of all other technical or arbitrary rules.

"How can I be sure that this non-compete contract is fair and enforceable?" is a question many clients ask us whether they be employers or employees.

For employers:

Our advice is this: Don't go it alone! Believe it or not, there are many employers who think that it is okay to just "cut and paste" whatever contract they find googled over the internet. This is the fastest way to draft a bad contract. The most important thing for any contract is enforceability. That means you know that in the event of a dispute your contract will hold up as "enforceable" in a court of law. Cutting and pasting a contract is the surest way to have your important legal agreement fail to hold up in a court of law, thus failing to protect your and your company.

The law in Georgia changes regularly and in 2010 the legislature made very important revisions to the laws on non-compete contracts. These laws were passed in November 2010 and actually went into effect in January 2011 for all new non-compete contracts. If you have a non-compete contract signed prior to November 2010, the old law will still apply.

In any event, the contracts that employers regularly find on the internet are generally out of date, and worse, often have laws applicable to another state entirely. For example, the laws in Arizona concerning non-compete may be very different then the laws in Georgia.

Unless you are applying federal law (which applies to all states, e.g. laws on employment discrimination under Title VII of 42 U.S.C. § 2000e), every state has different laws. The laws in Georgia may be very different than the law in Alabama, Tennessee, or New York. Thus, the contract you cut and pasted off the internet very possibly may be created under a different state's law and will not even be applicable to Georgia.

Consequently, it is important to obtain the assistance from an attorney who can help you successfully navigate the law and insure that you create a contract that protects your interests.

For employees:
Unfortunately, many times the non-compete clause your employer wishes you to sign may not have been properly drafted by a competent attorney. Therefore, a lot of times we have clients who present non-compete contracts that their new employer wishes them to sign which are not even in compliance with Georgia law. Before you sign a non-compete contract, make sure an attorney reviews this document in order to protect your interests. The lawyer can tell you whether the contract is in fact legal or not, whether it will likely be too restrictive for you in the future, the likelihood of its enforceability, and whether it makes sense for you to negotiate certain provisions.

Prior to the new law, Georgia did not alow "blue-penciling" which meant if a non-compete law had an illegal section, the whole non-compete contract could be deemed void and thrown out. Now, with the recent changes in Georgia, the courts will allow the invalid section to be removed or made compliant with the law, but the rest of the contract will still apply. This change protects employers, but does not protect employees.

Consequently, before you sign your name on the dotted line, make sure you know what you are signing by seeking legal counsel to protect your interests.