Department of Educ. v. Kitchens

• Decision Date: 04 October 1989
• Docket Number: No. A89A1383,A89A1383
• Citation: 387 S.E.2d 579,193 Ga.App. 229
• Parties: , 58 Ed. Law Rep. 360 DEPARTMENT OF EDUCATION v. KITCHENS.
• Court: Georgia Court of Appeals

Page 579

387 S.E.2d 579

193 Ga.App. 229, 58 Ed. Law Rep. 360

DEPARTMENT OF EDUCATION v. KITCHENS.

No. A89A1383.

Court of Appeals of Georgia.

Oct. 4, 1989.

Rehearing Denied Oct. 18, 1989.

Michael J. Bowers, Atty. Gen., H. Perry Michael, Executive Asst. Atty. Gen., William B. Hill, Jr., Deputy Atty. Gen., Patricia T. Barmeyer, Sr. Asst. Atty. Gen., Richard S. Thompson, Asst. Atty. Gen., for appellant.

Bensonetta T. Lane, Atlanta, for appellee.

SOGNIER, Judge.

Lee Ann Kitchens petitioned the Superior Court of Fulton County for review of the decision of the Board of Education of the State of Georgia (the "Board") upholding a special master's decision denying her certification as a public school teacher. The trial court reversed the ruling because in promulgating the regulations relied upon in the certification decision the Board failed to follow the procedures mandated by the Georgia Administrative Procedure Act, OCGA § 50-13-1, et seq. (the "APA"). The Department of Education ("DOE"), the named defendant, filed this appeal.

1. Appellant first contends the trial court erred by exercising personal jurisdiction over it because the Board, not DOE, is empowered to take the challenged actions.

We agree with appellant that the Board should have been named as a defendant because it is responsible for teacher certification and promulgation of regulations for the certification process. OCGA §§ 20-2-200; 20-2-240. Indeed, appellee concedes the Board should have been named as a defendant, but asserts the designation of DOE as the defendant was a clerical error. However, we find this issue to be one of misjoinder, not jurisdiction, as DOE, the administrative arm of the Board, was a proper, albeit not necessary, party to this suit. See Guhl v. Tuggle, 242 Ga. 412-414(1), 249 S.E.2d 219 (1978); see also OCGA §§ 9-11-19(a); 9-11-21. We see no risk of prejudice to the Board by the action taken in its absence because it had notice of the suit and its interests were ably represented by the Attorney General and by DOE, the administrative arm of the Board. Accordingly, there is no basis for dismissal of the action. OCGA § 9-11-21; see Guhl, supra at 414, 249 S.E.2d 219. Parties may be added by the court on its own initiative at any stage of the litigation, including appeal, Guhl, supra, and thus we direct the trial court to add the Board as a party defendant upon remittitur of this case to the trial court. Id.

2. Appellant maintains the trial court erred by concluding that the regulations pursuant to which appellee was denied a teaching certificate were invalid because appellant had not complied with the APA.

The procedural requirements set forth in OCGA § 50-13-4 for adoption or amendment of "rules," which are the aspect of the APA at issue here, apply to any "agency." The APA defines the term "agency" as "each state board, bureau, commission, department, activity, or officer authorized by law expressly to make rules and regulations or to determine contested cases, except ... any school, college, hospital, or other such educational, eleemosynary, or charitable institution" and other specific exceptions not relevant to the case at bar. (Emphasis supplied.) OCGA § 50-13-2(1). " 'Rule' means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy" with certain enumerated exceptions. OCGA § 50-13-2(6). Appellant maintains that although it is a "department," it is also an "educational institution" and thus exempt from the APA.

"[I]t is the duty of the courts in the construction of statutes to give effect to the intention of the legislature when it is ascertainable [cit.]; and in construing laws ... proper regard should be given to the old law, the evil, and the remedy. [Cits.]" Moore v. Baldwin County, 209 Ga. 541, 545-546, 74 S.E.2d 449 (1953). The legislative intent of the APA, as reflected in the Senate committee report included in the record sub judice, was to provide for "uniformity in administrative procedure" among state agencies, and in so doing to "equip each agency with the means of attaining statutory purposes and to provide ample safeguards in protecting the public interest." Accordingly, the committee stated that "[e]xclusions from the [APA] should be as few as possible and should not occur except for cause." For additional analysis of the legislative intent to provide uniform state agency procedures through the APA, see 1965-66 Op.Att'y Gen. No. 65-73.

With this legislative intent in view, we turn to analysis of the exclusion in OCGA § 50-13-2(1) at issue. "Where the language of a statute consists of common, ordinary words, and there is nothing to show that any unusual meaning is to be attached thereto, the court cannot deny the language its ordinary, usual signification; nor is the court required to give the language a forced and strained interpretation. [Cit.]" Sheffield v. Cotton States, etc., Ins. Co., 141 Ga.App. 861, 863, 234 S.E.2d 695 (1977). The American Heritage Dictionary, 2d ed., defines "educational" as "[s]erving to educate; instructive," and as "[o]f or relating to education," with "education" defined as "[t]he act or process of educating or being educated." Id. at 439. "Institution" means, inter alia, "[a]n established organization or foundation, esp[ecially] one dedicated to public service or to culture." Id. at 666. Black's Law Dictionary, 5th ed., p. 461 defines "educational institution" as "a school, seminary, college, or educational establishment." The term "educational institution" also has been defined by Georgia courts and the legislature in other contexts. In construing a statute concerning testamentary bequests to "any charitable, religious, educational, or civil institution" in Trustees of Univ. of Ga. v. Denmark, 141 Ga. 390, 394, 81 S.E. 238 (1914), overruled on other grounds, Hood v. First Nat. Bank, 219 Ga. 283, 286, 133 S.E.2d 19 (1963), the Supreme Court concluded the University of Georgia was an "educational institution." Id. 141 Ga. at 398, 81 S.E. 238. OCGA § 48-5-41(a)(6), which governs property tax exemptions, equates "educational institution" with "college, incorporated academy, or other seminary of learning." See J.A.T.T. Title Holding Corp. v. Roberts, 258 Ga. 519-520(1, 2), 371 S.E.2d 861 (1988).

Construing the language of OCGA § 50-13-2(1) as a whole so as to give effect to the legislative intent of the entire statute, Board of Trustees v. Christy, 246 Ga. 553, 554(1), 272 S.E.2d 288 (1980), we find that the exclusion of "any school, college, hospital, or other such educational, eleemosynary, or charitable institution" was intended to apply only to those institutions which provide educational or charitable services directly, and not to the administrative bodies through which they are...