SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 15, 2013
In the Court of Appeals of Georgia A12A1831. LASKAR v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
MCMILLIAN, Judge.
Joy Laskar, Ph.D., appeals the trial court’s order dismissing his petition for writ
of certiorari for lack of jurisdiction. Laskar filed the petition to challenge a decision
of the Board of Regents of the University System of Georgia (“Board”) upholding his
dismissal from a position as a tenured professor at the Georgia Institute of
Technology (“Georgia Tech”). The petition also named G. P. “Bud” Peterson, in his
official capacity as President of Georgia Tech, as a Defendant. Because we find that
the trial court lacked jurisdiction to consider the petition, we affirm the order of
dismissal. “We review a trial court’s ruling on a motion to dismiss de novo, viewing all
allegations in the complaint as true.” (Footnote omitted.) Oconee Community Service
Bd. v. Holsey, 266 Ga. App. 385 (597 SE2d 489) (2004). Thus, “[w]e owe no
deference to a trial court’s ruling on questions of law and review such issues de novo
under the ‘plain legal error’ standard of review.” (Citations omitted.) Laughlin v. City
of Atlanta, 265 Ga. App. 61, 63 (592 SE2d 874) (2004).
So viewed, the record reflects that Laskar joined the Georgia Tech faculty as
an assistant professor in 1995, became an associate professor in 1998, and received
tenure in 2002. Each year, Laskar entered into a “Fiscal Year Employment Contract”
with the Board setting out the terms of his employment. The contract is made
expressly subject to applicable state and federal laws, Georgia Tech’s rules and
regulations, and the bylaws and policies of the Board. In 2003, Laskar was appointed
Director of the Georgia Electronic Design Center (“GEDC”), an inter-disciplinary
center at Georgia Tech “broadly focused on fostering technology [related to]
communications applications.”
On May 17, 2010, Peterson sent Laskar a letter stating that a recent internal
audit had revealed what appeared to be “substantial evidence of malfeasance” on
Laskar’s part, including the misappropriation of Georgia Tech resources for the
2 benefit of Sayana Wireless, LLC (“Sayana”), a company partly owned by Laskar. The
letter also informed Laskar that he was suspended until Georgia Tech concluded an
investigation into the matter. By letter dated June 15, 2010, Dr. Gary May, Chair of
the School of Electrical and Computer Engineering, notified Laskar that Georgia
Tech intended to initiate dismissal proceedings against him, pursuant to the school’s
faculty handbook. May’s letter explained that the first stage in the process was a
meeting between Laskar and administrative officers to discuss a potential settlement.
This meeting occurred, but the parties did not reach a settlement. The case then was
referred to the Faculty Status and Grievance Committee (the “Grievance
Committee”), which voted in favor of dismissal proceedings. May notified Laskar of
the Grievance Committee’s decision and informed him that he was entitled to a
statement of the charges against him and a formal hearing upon request. Laskar
requested both by letter dated July 28, 2010.
Several months later, on October 6, 2010, Laskar and his counsel received the
statement of charges outlining five charges of willful violation of various Board and
Georgia Tech policies. Following a formal hearing in March 2011 before a Faculty
Hearing Committee (the “Hearing Committee”), the committee submitted its report
and recommendation to Peterson. The report found that one charge was proven in
3 part, two charges were proven in full, and two charges were not proven, but the
Hearing Committee concluded that the charges proven were “sufficiently egregious”
to warrant Laskar’s dismissal due to his leadership position at GEDC. The Hearing
Committee apparently did not notify Laskar of its findings, but instead on May 14,
2011, Peterson wrote Laskar informing him that he agreed with the Hearing
Committee’s “recommendation” and that Laskar’s “tenure [was] revoked and [his]
employment [was] terminated, effective immediately.” Laskar appealed Peterson’s
decision to the Board. On August 10, 2011, Laskar was informed by the Board’s Vice
Chancellor for Legal Affairs that his appeal had been presented to the Board, which
upheld the decision to terminate him, prompting Laskar to file his petition for
certiorari. On appeal, Laskar contends that the trial court erred in finding that it
lacked jurisdiction to consider his petition.
Under OCGA § 5-4-1 (a), “[t]he writ of certiorari shall lie for the correction of
errors committed by any inferior judicatory or any person exercising judicial powers,”
with certain limitations not present here. Thus, the first step in weighing whether a
trial court properly can hear a petition for certiorari is to determine whether the
petition is seeking review of a judicial or quasi-judicial action or merely an
administrative one:
4 A court[,] which is obliged to determine whether it has subject matter jurisdiction over a petition for writ of certiorari[,] must decide whether the hearing officer whose order is being reviewed exercised judicial or quasi-judicial powers[] or whether the officer merely exercised administrative or legislative functions. If the officer exercised judicial powers, his or her actions are subject to review on certiorari; if, however, the officer exercised legislative, executive, or ministerial powers, any error cannot be corrected by certiorari. . . .
(Citation omitted.) Goddard v. City of Albany, 285 Ga. 882, 882-883 (1) (684 SE2d
635) (2009). Thus, courts “must look to the particular function performed . . . in
determining whether it was judicial or quasi-judicial in nature.” Mack II v. City of
Atlanta, 227 Ga. App. 305, 310 (1) (489 SE2d 357) (1997).
The difference between an administrative function and a judicial/quasi-judicial
function generally turns on whether the parties were granted notice and the
opportunity to be heard:
The basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken. The test is whether
5 the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.
Goddard, 285 Ga. at 883 (1).
But the courts also consider whether the hearing officer “was then required to
examine and weigh the evidence and make a decision according to the law – to
exercise discretion and judgment in application of the law . . . to a particular set of
facts.”1 (Citation and punctuation omitted.) Rozier v. Mayor and Aldermen of the City
of Savannah, 310 Ga. App. 178, 181 (712 SE2d 596) (2011) (petition for certiorari
proper where hearing officer applied city beverage ordinance to facts). See also Mack
II, 227 Ga. App. at 309 (1) (petition of certiorari proper for review of hearing
officer’s quasi-judicial function in applying legal standards of res judicata and
collateral estoppel to determine whether party entitled to a hearing under city code);
Starnes v. Fulton County School District, 233 Ga. App. 182, 184 (503 SE2d 665)
1 We note that the Georgia Tech and Board policies applied by the Hearing Committee do not have the force and effect of law. Because they relate to “the employment, compensation, tenure, terms, retirement, or regulation of the employees” of a state agency, they are not considered rules requiring promulgation under the Georgia Administrative Procedures Act, OCGA § 50-13-2 (6) (H), nor are they codified in the Georgia Administrative Code. But even if the policies could be considered a form of law, the functions of the Hearing Committee and the Georgia Tech president in Laskar’s dismissal proceedings are the determining factors in resolving the issue before us.
6 (1998) (pension board performed process “akin to judicial act” where it weighed
evidence, assessed witness credibility and applied “fact-intensive” law governing line
of duty pensions to facts).
Thus, a “‘judicial action’ has been described as ‘an adjudication upon the rights
of the parties who in general appear or are brought before the tribunal by notice or
process and upon whose claims some decision or judgment is rendered.’” (Citation
omitted.) Mack II, 227 Ga. App. at 308 (1). Further, courts have recognized that for
a judicial action,
[t]here must generally be two or more litigants. An issue of law or fact must be joined by them, within the jurisdiction of the tribunal, with respect to property or some personal right in which the litigants are interested. Its conclusion must be binding upon the parties until reversed or set aside in the manner provided by law for opening up judgments of courts.
(Citation and punctuation omitted; emphasis supplied.) Southeastern Greyhound
Lines v. Georgia Public Service Commission, 181 Ga. 75, 83 (181 SE 834) (1935).
Accordingly, we must focus on the function of the hearing officer and the
process used to determine whether they were quasi-judicial or administrative in
nature. The Georgia Tech faculty manual and the Board’s policy manual provide the
7 same procedures for the dismissal of both tenured faculty members and non-tenured
faculty members during their contract term (the “Dismissal Procedures”). These
procedures provide, in pertinent part, that a faculty member who receives notice of
a pending dismissal has the right to request a hearing before a faculty hearing
committee (the “Hearing Committee”) and to obtain a formal statement of the charges
against him. The parties are then granted notice of the hearing, the right to counsel,
the right to present sworn testimony and evidence after first being afforded a
reasonable opportunity to obtain witnesses and documentation, and the right to cross-
examination, although the Hearing Committee is not bound by the strict rules of
evidence. Nevertheless, the Hearing Committee must make findings based solely on
the evidence presented and then report its findings to the Georgia Tech president and
the faculty member.
These findings, however, along with any recommendations regarding the
appropriate penalty for any violations, are not binding on the faculty member,
Georgia Tech or its president, and thus the Hearing Committee’s report does not
determine the faculty member’s employment status. Rather, that decision is left to the
president. The Dismissal Procedures provide that if the Hearing Committee finds that
adequate grounds for dismissal have not been established, and the president does not
8 agree, he need only “state the reasons in writing to the Committee for response before
rendering a final decision.” And if the Hearing Committee recommends an academic
penalty less than dismissal, the president is not required to follow this
recommendation. Although the Dismissal Procedures do not specifically address the
procedure to be followed when the Hearing Committee finds that dismissal is
warranted, absolutely nothing in the procedures makes such a finding binding on the
president. Moreover, in contrast to the requirement placed on the Hearing Committee,
the Dismissal Procedures do not specifically require the president to base his decision
solely on the evidence presented at the hearing. Rather, the final dismissal decision
is left to the president, and if he decides that sufficient cause exists, he may dismiss
the faculty member even if the Hearing Committee finds no adequate basis for such
an action.
The Hearing Committee’s function, therefore, is analogous to that of the liquor
license review board in What It Is, Inc. v. Jackson, 146 Ga. App. 574 (246 SE2d 693)
(1978). The pertinent city ordinance in that case charged the board with “‘conducting
hearings on any charges which may be brought against any licensee under the police
powers of the city where those charges may be the basis for suspension or revocation
of the license and to report its findings and recommendations to the mayor.’” Id. at
9 575. The license review board conducted a hearing on charges that the license holder
“had violated specific provisions of the law at its place of business,” and
recommended the revocation of the liquor license to the mayor, and the mayor
approved the recommendation. Id.
Considering whether the license holder had the right to petition for certiorari,
this Court noted first that the city ordinance did not grant the license holder an
express right to “a trial in accordance with judicial procedure” because it provided
that all hearings “‘shall be administrative’” and did not require compliance with the
evidentiary rules. But the Court also found that “the board was not authorized to enter
any judgment but only was permitted to make a recommendation to the mayor which
was not binding on him,” and thus the board’s authority “does not fall within the
category of a judicial proceeding.” Id. And “the mayor, who had only administrative
or executive powers, could only approve or disapprove the board’s recommendation.”
Id. The license holder, therefore, “was not as a matter of right entitled to any judicial
hearing before him. The action of the mayor was administrative.” Id. Based upon all
these factors, the Court concluded that the trial court properly dismissed the license
holder’s petition for certiorari.
10 Although the Dismissal Procedures did not expressly label the Hearing
Committee proceeding as administrative, this Court’s decision in Mack II clarified
that neither descriptive terms nor a lack of judicial procedure control the analysis.
Mack II, 277 Ga. App. at 308-309 (1). Instead, it is the “character and nature of the
authorized function” that controls whether the hearing officer is acting judicially or
administratively. (Citation and punctuation omitted.) Id. at 309 (1). The function of
the Hearing Committee in this case, like the license review board in Jackson, was not
judicial in nature because it did not render a binding decision, and the president, like
the mayor, acted only administratively in accepting the recommendation.
We conclude, therefore, that despite the procedures for notice and a hearing
before the Hearing Committee, the decision to dismiss Laskar was essentially an
administrative one.2 “It is one thing to provide that a thing may be done if it is made
to appear that under the law a certain situation exists; it is another thing to provide
that a thing may be done if in the opinion of a named party a certain situation exists.
The one is justiciable; the other is administrative.” Southeastern Greyhound Lines,
2 The trial court reached a similar conclusion, finding that although the termination procedures in this case “may appear quasi-judicial, [Laskar] had no right under law to demand a trial in accordance with judicial procedure.” (Emphasis in original.)
11 181 Ga. at 80. And at Georgia Tech, whatever the Hearing Committee decides, a
tenured professor may be fired if in the president’s opinion good cause exists for his
or her discharge. This case, therefore, is materially similar to the Georgia Supreme
Court’s holding in Southeastern Greyhound Lines that the Georgia Public- Service
Commission was acting administratively when, “after notice and opportunity to be
heard and for reasonable cause,” it revoked a motor common carrier’s certificate of
need because “in the opinion of the commission” the carrier was not providing
adequate service. Id. at 79. See 1931 Ga. L., p. 199, Secs. 2 (b) and 4 (d).
As Southeastern Greyhound Lines demonstrates, neither the requirement that
the Georgia Tech president find cause in order to dismiss Laskar nor the provision of
notice and the opportunity to be heard alters the nature of his decision:
An act is none the less ministerial because the person performing it may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act. . . . [Thus,] it must still be recognized that the ascertainment of facts, or the reaching of conclusions upon evidence taken in the course of a hearing of parties interested, may be entirely proper in the exercise of executive or legislative, as [opposed to] judicial powers. . . . It is the nature of the final act that determines the nature of the previous inquiry.
12 (Citations and punctuation omitted.) Southeastern Greyhound Lines, 180 Ga. at 80-
81. Here, the final act resulting in Laskar’s discharge was not the Hearing
Committee’s report, but rather the president’s finding that good cause existed to
revoke Laskar’s tenure and terminate his employment, and that decision was an
administrative one.
And although a faculty member may seek Board review of the president’s
decision and the Board is required “to investigate the matter thoroughly” before
rendering a decision, the faculty member has no right to any further hearing on the
matter. Rather, any opportunity for a notice and a hearing is restricted to the Hearing
Committee, which acts merely in an advisory capacity to the president and by
extension to the Board. Thus, the Board’s subsequent review of the president’s
decision must also be considered administrative in nature.
The Dismissal Procedures in this case are thus distinguishable from the
procedures followed in cases where our courts have found that a quasi-judicial action
occurred. For example, in Morman v. Pritchard, 108 Ga. App. 247 (132 SE2d 561)
(1963), the Board of Education of Richmond County discharged Morman from her
teaching position, and she filed a petition for certiorari in court without first
exercising her right of appeal to the State Board of Education. Morman’s discharge
13 hearing was conducted pursuant to a statute that authorizes a “county, city or other
independent board of education” to conduct evidentiary hearings to determine any
“local controversy.” See OCGA § 20-2-1160 (a) (formerly Code of 1933, § 32-910).
That statute provides that the board’s decision “shall be binding on the parties,”
provided that they are granted a right of appeal to the Board of Education. Id. This
Court concluded that the county board of education hearing was quasi-judicial in
nature because the discharged teacher “had a right to appear . . . , had a right to be
heard, had a right to notice in advance of the hearing, and had a right to present
witnesses and give evidence before the board, and the decision of the board was
binding on the board and on the teacher concerned.” Morman, 108 Ga. App. at 253
(1) (b). See also, e. g., Mack II, 227 Ga. App. at 309 (appellate procedure in city code
judicial in nature where hearing officer required to make a decision according to the
law to resolve adverse claims); Board of Commissioners of Effingham County v.
Farmer, 228 Ga. App. 819 (493 SE2d 21) (1997) (board acted judicially where it
granted terminated employee a public hearing and opportunity to present evidence to
review final termination for cause). Although the hearing officers in these cases acted
in a judiciary capacity in rendering or reviewing a final decision, the Hearing
Committee in this case acted more in a fact-finding and advisory capacity for the
14 Georgia Tech president, who alone had the authority to make the final decision. And
the Board’s decision in Laskar’s subsequent appeal relied solely upon the existing
administrative record. Accordingly, we find that the trial court properly held that it
lacked jurisdiction to consider Laskar’s petition for certiorari.
We note, however, that Laskar is not without judicial recourse with regard to
his dismissal. He had a written contract with the Board, incorporating the Dismissal
Procedures, and even though the Board is a state agency protected by sovereign
immunity, that defense “is waived as to any action ex contractu for the breach of any
written contract entered into by the state or its departments and agencies.”
(Punctuation, emphasis and footnote omitted.) Board of Regents of University System
of Georgia v. Ruff, 315 Ga. App. 452, 456 (2) (726 SE2d 451) (2012). See also Ga.
Const. 1983, Art. I, Sec. II, Par. IX; Moffie v. Oglethorpe University, 186 Ga. App.
328, 329 (367 SE2d 112) (1988) (concluding that tenure provisions in a faculty
handbook “of which plaintiff was aware, form a part of the plaintiff’s contract of
employment”) (citation omitted). Similarly, he could have raised his due process
claims in a direct action against the Board. See, e. g., McKinney v. Pate, 20 F3d 1550,
1557 (11th Cir. 1994), cert. denied, 513 U.S. 1110 (15 SCt 898, 130 LE2d 783)
(1995) (a claim under 42 USC § 1983 arises when the State refuses to provide
15 procedural due process); Edmonds v. Board of Regents of University System of
Georgia, 302 Ga. App. 1, 11-12 (4) (b) (689 SE2d 352) (2009) (reviewing
constitutional due process claim against Board filed by tenured Georgia Tech
professor after he was suspended indefinitely).
Judgment affirmed. Barnes, P. J., concurs. McFadden, J., concurs fully and
specially.
16 A12A1831. LASKAR v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al. MCFADDEN, Judge, concurring fully and specially.
I concur fully but reluctantly. I write separately to acknowledge the practical
consequences of our decision.
We have rejected Dr. Laskar’s argument for a bright line between tenure
litigation involving private institutions and such litigation involving public
institutions. When such litigation involves private institutions, Dr. Laskar argues,
tenure rights are enforceable in contract actions. See Moffie v. Oglethorpe University,
186 Ga. App. 328, 329 (367 SE2d 112) (1988). When such disputes involve public
institutions, he argues, the proper procedure is certiorari from superior court pursuant
to OCGA § 5-4-1 et seq. Instead we have held that, as to public institutions, the available procedure
turns on a close – and costly – examination of the institution’s procedures. Such an
examination will need to be performed anew of the procedures at each public
institution where such a dispute arises. Indeed if Georgia Tech has revised its
procedures when it next faces such a dispute, its procedures will then need to be
reexamined.
The people of Georgia would, in my opinion, be well served by a
comprehensive undertaking to secure “the just, speedy and inexpensive
determination” of actions arguably within the appellate and certiorari jurisdiction of
our state and superior courts. See OCGA § 9-11-1. But such an undertaking falls
within the competence and authority of the General Assembly.