Georgia Department of Education v. Niemeier

616 S.E.2d 861, 274 Ga. App. 111, 2005 Fulton County D. Rep. 2108, 23 I.E.R. Cas. (BNA) 162, 2005 Ga. App. LEXIS 689
CourtCourt of Appeals of Georgia
DecidedJune 29, 2005
DocketA05A0797
StatusPublished

This text of 616 S.E.2d 861 (Georgia Department of Education v. Niemeier) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Georgia Department of Education v. Niemeier, 616 S.E.2d 861, 274 Ga. App. 111, 2005 Fulton County D. Rep. 2108, 23 I.E.R. Cas. (BNA) 162, 2005 Ga. App. LEXIS 689 (Ga. Ct. App. 2005).

Opinion

Bernes, Judge.

We granted appellant Georgia Department of Education’s (“Department”) application for discretionary appeal to determine whether the State Personnel Board (“the Board” or “SPB”) was authorized to issue additional findings of fact based on the record evidence and to reverse the administrative law judge’s (“ALJ”) initial decision upholding the Department’s dismissal of Sam Niemeier. We conclude that the Board was so authorized and therefore, we affirm.

“ ‘(V)iewed in a light most favorable to [Niemeier], the prevailing party before the [B]oard, and with every presumption in favor of the [B]oard’s decision indulged, (cit.)’ [cit.]” Dept. of Corrections v. Shaw, 217 Ga. App. 33 (456 SE2d 628) (1995), the evidence shows that Niemeier, a physical education instructor, taught at the Georgia School for the Deaf (“GSD”) for 26 years. GSD is a school serving deaf and special needs children. The Department charged Niemeier with [112]*112violations of the Code of Ethics for Educators following two separate incidents involving students on August 28, 2002.

The first incident occurred during Niemeier’s morning PE class, and involved J. S., a deaf middle school student. J. S. was observed hitting another student, W. B., in the head repeatedly, and Niemeier interceded to stop J. S.’s bullying antics. Even after Niemeier admonished J. S., he continued his bullying by hitting W. B. in the head with a ball. W. B. was crying and screaming, and his face was red. J. S. was preparing to throw the ball at W. B. again when Niemeier physically intervened.1 Niemeier took J. S.’s arm, turned him around, knocked the ball out of his hands, and forced him to sit down on the bleachers. J. S.’s shirt was ripped during the physical intervention. J. S. reacted in an emotional outburst and yelled obscenities at Niemeier. Thereafter, J. S. continued to act out by throwing a 55-gallon trash can and a table across the floor.

Although J. S. later claimed that his back was injured during the incident with Niemeier, he initially made no complaints of injury. J. S. did not seek any medical treatment, and he participated in football warm-ups that afternoon. J. S. did not report the incident to anyone until after he was told to perform extra drills during football practice as punishment for his misbehavior in class.

The second incident occurred during Niemeier’s afternoon PE class, and involved a partially blind, deaf, and autistic student, Z. G. During the class, Z. G. became upset when Niemeier took away a pair of shoes that he was smelling. Z. G. reacted by picking up and dropping the heavy flaps on the bleachers in the gym. Z. G.’s conduct was dangerous and could have caused him harm. When Niemeier’s PE aide attempted to intercede, Z. G. violently kicked her. Z. G. also threw a chair and a table across the floor.

Niemeier gave Z. G. a toy in an effort to calm and redirect him, but Z. G. threw the toy at Niemeier, hitting him on the shoulder. Z. G. then started pinching, spanking, and hitting himself. Niemeier testified that Z. G.’s self-abusive behavior did not seem to be harmful at first, but he intervened when Z. G. started hitting himself harder. Z. G. eventually became calm.

Z. G.’s teachers observed red marks and scratches on Z. G.’s shoulder and a bruise on his arm after he returned from PE class. They reported Z. G.’s injuries to the school’s principal and superintendent. A few of the teachers who had interacted with Z. G. testified that he had engaged in self-abusive behavior on prior occasions. Yet, [113]*113none of Z. G.’s teachers specifically knew how his injuries were inflicted on this occasion. Z. G. had been to art class before he was taken to Niemeier’s PE class, and Niemeier testified that Z. G.’s red marks were present before Z. G. arrived. The PE aide testified that she did not observe Niemeier strike Z. G. during the class.

At the hearing, several of the school’s experienced teachers and administrators and a stipulated expert testified that physical intervention is necessary and appropriate to prevent a student from bullying or causing injury to himself or to others. The testimony also reflected that the “time out” technique is commonly used to give emotionally explosive autistic students a chance to cool off, and that autistic students generally must be calmed before they can be redirected. The PE aide, who was present and observed both incidents, testified that Niemeier did not restrain J. S. any differently than other teachers imposing physical intervention, and that he did not strike Z. G. during the class.

Nevertheless, as a result of the two incidents, the Department charged Niemeier with violations of the Code of Ethics for Educators Standard 2 governing abuse of students and Standard 10 governing professional conduct.2 The Department issued a notice of dismissal to Niemeier on October 9,2002. Niemeier requested a hearing to contest his termination. A hearing was subsequently conducted by an ALJ with the Office of State Administrative Hearings (“OSAH”) who concluded Niemeier’s dismissal was authorized.

Niemeier thereafter appealed the ALJ’s initial decision to the Board. In its final decision, the Board reversed the ALJ’s decision and concluded that the evidence failed to prove the charges against Niemeier by a preponderance of the evidence. The Board’s final decision was affirmed by the Superior Court of Floyd County.

In the instant appeal, the Department claims that the Board erroneously reversed the ALJ’s initial decision and failed to give due regard to the ALJ’s opportunity to personally observe witnesses and determine witness credibility. The Department additionally claims the Board violated OCGA § 50-13-41 (d) by rejecting the ALJ’s proposed findings without giving reasons for doing so in the form of findings of fact and conclusions of law.

[114]*114 The Board’s Authority to Issue Additional Findings and Conclusions

As correctly asserted by the Department, OCGA § 50-13-41 (d) requires that “[i]n reviewing initial decisions by the [OSAH], the reviewing agency shall give due regard to the [ALJ’s] opportunity to observe witnesses.”3 Based on this provision, the Department contends that the Board is not authorized to reverse the ALJ’s credibility determinations. However, OCGA§ 45-20-9 (e) (2) and Ga. Comp. R. & Regs. r. 478-1-.20.305.3 expressly provide that “[o]n review of the entire record from the [ALJ], the [B]oard shall have all the powers it would have in presiding at the reception of the evidence.” Accordingly, OCGA § 45-20-9 (e) (2) and Ga. Comp. R. & Regs. r. 478-1-.20.305.3 authorize the SPB to make its own findings of fact, determine witness credibility, weigh the evidence, and issue conclusions of law based on its review of the record evidence. See Ga. Dept. of Human Resources v. Odom, 266 Ga. App. 493, 496 (597 SE2d 559) (2004); OCGA § 50-13-41

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616 S.E.2d 861, 274 Ga. App. 111, 2005 Fulton County D. Rep. 2108, 23 I.E.R. Cas. (BNA) 162, 2005 Ga. App. LEXIS 689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-department-of-education-v-niemeier-gactapp-2005.