Laskar v. Bd. of Regents of the Univ. Sys. of Ga.

• Decision Date: 15 March 2013
• Docket Number: No. A12A1831.,A12A1831.
• Citation: 740 S.E.2d 179,320 Ga.App. 414
• Parties: LASKAR v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA, et al.
• Court: Georgia Court of Appeals

320 Ga.App. 414

740 S.E.2d 179

LASKAR

v.BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA, et al.

No. A12A1831.

Court of Appeals of Georgia.

March 15, 2013.

Gaslowitz Frankel, Craig M. Frankel, Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert Peter Marcovitch, Atlanta, LeAnne Marie Gilbert, for Appellant.

Samuel S. Olens, Atty. Gen., Julia B. Anderson, Sr. Atty. Gen., for Appellees.

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 S.E.2d 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 S.E.2d 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 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 wilful 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 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:

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 S.E.2d 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 S.E.2d 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 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), 684 S.E.2d 635.

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 S.E.2d 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), 489 S.E.2d 357 (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 S.E.2d 665 (1998) (pension board performed process “akin to a 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 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), 489 S.E.2d 357. 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 S.E. 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 same procedures for the dismissal of both tenured faculty members and nontenured 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...