Professional Standards Com'n v. Alberson, No. A05A0163.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBernes
Citation273 Ga. App. 1,614 S.E.2d 132
Decision Date19 April 2005
Docket NumberNo. A05A0163.
273 Ga. App. 1
614 S.E.2d 132
No. A05A0163.
Court of Appeals of Georgia.
April 19, 2005.

Page 133


Page 134

Thurbert E. Baker, Attorney General, Langley & Lee, William W. Calhoun, Christina L. Folsom, Penny Hannah, Albany, for appellant.

James D. Dunham, Griffin, for appellee.

BERNES, Judge.

The Professional Standards Commission of the State of Georgia ("PSC") appeals from the order entered by the Superior Court of Turner County reversing the PSC's final decision suspending the educator certificate of Superintendent Jimmy Alberson for one year. The PSC suspended Superintendent Alberson's certificate after concluding that his decision to brandish a firearm while threatening a Georgia Department of Transportation ("DOT") flagman violated Interim Ethics Rules 505-2-.03(1)(n) and (o) (1999), under which a school official may have his educator certificate suspended for "[p]ersonal conduct... detrimental to the ... morals of pupils" or for "[a]ny other good and sufficient cause," respectively.1 On appeal, the PSC contends that the superior court erred by holding that there was no evidence in the administrative record supporting the conclusion that Superintendent Alberson violated Interim Ethics Rules 505-2-.03(1)(n) and (o), and by concluding that Interim Ethics Rule 505-2-.03(1)(o) was unconstitutionally vague. We agree with the PSC and therefore reverse.

[273 Ga. App. 2] On the morning of February 12, 1999, Jimmy Alberson, superintendent of the Turner County School System, had two confrontations with Eddie B. Tookes, Jr. while Tookes was working as a flagman at a DOT work site on Highway 32 in Turner County. It is undisputed that during at least one of these two confrontations, Superintendent Alberson brandished a firearm in front of Mr. Tookes.

After investigating the incident, the PSC found probable cause that Superintendent Alberson had violated Interim Ethics Rules 505-2-.03(1)(n) and (o) and that his educator certificate should be revoked. Interim Ethics Rule 505-2-.03(1)(n) permitted suspension or revocation of an educator's certificate based on a finding of "[p]ersonal conduct that seriously reduces the certificate, license or permit holder's effectiveness in his or her employment position or conduct detrimental to the health, welfare, discipline or morals of pupils." Ga. Comp. R. & Regs. r. 505-2-.03(1)(n) (1999). Interim Ethics Rule 505-2-.03(1)(o) permitted suspension or revocation for "[a]ny other good and sufficient cause." Ga. Comp. R. & Regs. r. 505-2-.03(1)(o) (1999).

Following the PSC's finding of probable cause, Superintendent Alberson requested a full evidentiary hearing before an administrative law judge ("ALJ") with the Office of State Administrative Hearings. An ALJ conducted the requested hearing on June 27, 2002, and August 23, 2002. Thereafter, the ALJ issued her initial decision in which she made specific findings of fact regarding the February 1999 incident:

Respondent [Alberson] holds a certificate to teach in the state of Georgia and has at all times relevant to this matter. He has been the Superintendent of Turner County Schools for the last 13 years. Prior to being elected to the superintendent position, Respondent was Chief of Police.

On February 12, 1999, Respondent and the assistant superintendent, Kip Stevens, drove out to Otis and Ruby Odom's house to monitor tree cutting on Mr. Odom's property. Respondent is a close personal friend of the elderly Odoms and provides them assistance.

Once at the Odoms' house, Otis Odom communicated to Respondent that he believed one of the [DOT] workers working near his house was the same individual who had burglarized the Odoms' home. This individual was asking Mr. Odom to bring money with him when he returned to the DOT site.

Page 135

On February 12, 1999, DOT was doing work on Highway 32 East which is located near the Odoms' home. The [273 Ga. App. 3] DOT worker, Eddie Tookes, Sr. was acting as a flagman since traffic was limited to one-lane.

Prior to seeing Respondent that day, Mr. Odom had passed through the work site several times. When speaking with Mr. Tookes, Mr. Odom asked him his name which Mr. Tookes would not give.

Mr. Tookes, Sr. had been initially charged for the burglary at the Odoms' house but later his son, Eddie Tookes, Jr. was charged. At Mr. Odom's insistence, Respondent accompanied Mr. Odom back to the work site. When they arrived, Mr. Tookes asked Mr. Odom if he had brought it to him. Respondent answered that "we brought that" indicating a gun he had in his left hand. Respondent "palmed the gun", i.e., raised it, holding it in his left palm. He further told Mr. Tookes that he could get this if he came over to Mr. Odom's house.

Respondent returned with Mr. Odom back to his house. Then he and the assistant principal drove back to work stopping again at the work site. Respondent spoke with Mr. Tookes again, telling him not to "go messing with old folks like that." At that time, Mr. Tookes accused Respondent of having pointed a gun at him which Respondent denied.

As a result of the February 12, 1999 incident, Respondent was indicted for aggravated assault and terroristic threats. He has not been convicted.

Respondent has a good reputation in the community where he lives.

(Citation and punctuation omitted.)

The ALJ noted in her discussion of the evidence that there was conflicting testimony over whether Mr. Tookes' interaction with Mr. Odom as Mr. Odom passed through the DOT work site simply involved "teasing" or instead was a calculated effort to extort money. The ALJ further pointed out that Superintendent Alberson and Mr. Tookes gave conflicting testimony over their first confrontation on the side of the highway, with Mr. Tookes claiming that Superintendent Alberson stated "I'll blow your brains out, you black s.o.b.," and Superintendent Alberson claiming that he only warned Mr. Tookes "you'll get this if you come to Mr. Odom's home." The ALJ explained that in view of this conflicting testimony, her findings of fact had been "conservatively made relying largely on the admissions of Respondent" rather than on the testimony of Mr. Tookes.

Based on her findings of fact, the ALJ concluded:

[273 Ga. App. 4] Although Respondent's attorney is correct that there was no persuasive evidence that this incident had diminished Respondent's effectiveness as a superintendent, the vigilante behavior and use of a gun, whether directly pointed or not, to frighten Mr. Tookes is sufficient to find a violation. This is personal conduct detrimental to the morals of pupils and could also fall under any other good and sufficient cause.

The ALJ rejected the PSC's requested sanction of certificate revocation and instead recommended a three-month suspension.

On January 9, 2003, the PSC conducted a hearing to review the ALJ's decision, and issued its final decision adopting the findings of fact and conclusions of law reached by the ALJ. However, the PSC concluded a more severe sanction was warranted and suspended Superintendent Alberson's certificate for one year.

Superintendent Alberson appealed the PSC's final decision to the Superior Court of Turner County pursuant to OCGA § 50-13-19. In its order reversing the PSC's final decision, the superior court concluded that "[t]here was no evidence in the record that the `morals' of any pupil or student had been affected in any way by what happened on February 12, 1999" in violation of Interim Ethics Rule 505-2-.03(1)(n). (Emphasis in original.) In support of this conclusion, the superior court noted that at the evidentiary hearing, the "Transportation Director, Food Services Director, High School Resource Officer, Director of Coastal Plains RESA, Superintendent of Irwin County Schools, and the retired Superintendent of Worth County Schools" all testified that they had not personally observed any negative impact on the student body resulting from the incident.

Page 136

Additionally, the superior court concluded that there was no other identified "good and sufficient cause" under Interim Ethics Rule 505-2-.03(1)(o) upon which Superintendent Alberson's suspension could be based, and that, in any event, subsection (1)(o) was void for vagueness under the Constitution of the State of Georgia and the United States Constitution. It is from this order that the PSC sought discretionary review, which we granted.

1. The PSC first contends that the superior court erred because the PSC's decision to suspend Superintendent Alberson's educator certificate under Interim Ethics Rules 505-2-.03(1)(n) and (o) was not clearly erroneous. Under the Administrative Procedure Act, an administrative agency's findings and conclusions may be reversed by the superior court if they are "[c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record." OCGA § 50-13-19(h)(5). "This language has been interpreted to preclude review if `any evidence' on the record substantiates the administrative agency's findings of fact and conclusions of law. Ga. [273 Ga. App. 5] Dept. of Human Resources v. Holland, 133 Ga.App. 616, 211 S.E.2d 635 [1974]." Flowers v. Ga. Real Estate Comm., 141 Ga.App. 105(1), 232 S.E.2d 586 (1977); see also Emory Univ. v. Levitas, 260 Ga. 894, 898(1), 401 S.E.2d 691 (1991). "The presence of conflicting evidence ... is sufficient to satisfy the any evidence standard." (Citation omitted.) Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga.App. 572, 580(5), 396 S.E.2d 562 (1990). "Upon further discretionary appeal to this Court, our duty is not to review whether the record supports the superior court's decision but whether the record supports the final decision of the ... administrative agency." (Citations and punctuation omitted.) Sawyer v. Reheis, 213 Ga.App. 727, 729(1), 445 S.E.2d 837 (1994).2

With these principles in mind, we conclude that the superior court erred by holding...

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