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Unofficial Opinion 97-8

Unofficial Opinion 97-8

February 26, 1997
To: 

Senator
District 32

Re: 

Questions regarding charter schools.

You have asked for my opinion on several questions regarding charter schools. You have asked whether the State Board of Education ("the State Board") may declare a charter void if the petition does not provide a proposal for direct and substantial parental involvement, whether the parents' due process rights have been violated if they are not provided with a copy of the proposed charter before meeting on the petition, whether the Department of Education Guidelines on charter schools must be promulgated as rules, and several other questions.

Charter schools are authorized by O.C.G.A. § 20-2-255 to "provide a means whereby local schools may choose to substitute a binding . . . performance based contract approved by both state and local boards of education" for rules, regulations, policies and state statutes. The proposal is brought by the local school system to the State Board through the mechanism of a petition which must include several components, including a "proposal to directly and substantially involve the parents of students enrolled in the school as well as the faculty, instructional staff, and the broader community in the process of creating the petition and in carrying out the terms of the charter." O.C.G.A. § 20-2-255(d)(4).

The State Board has promulgated Rule 160-4-9-.04 which also requires that petitions for charter schools include a proposal to "directly and substantially" involve the parents, faculty, and community. That rule and O.C.G.A. § 20-2-255 direct the Georgia Department of Education to review each petition and make recommendations to the State Board concerning approval

of the petition. The Department may also advise the petitioner about possible amendments to the petition to overcome any deficiencies. Id.

First, you have asked whether the majority of positions on the charter school petition planning committee and governing board must be reserved for and occupied by parents of students enrolled in the school in order to satisfy the requirements of "direct and substantial involvement of the parents and community." There is nothing either in the charter school statute or rule that requires any specific number of parents on the charter school governing board or planning committee. In fact, there is no provision for a governing board either in the statute or the rule. There are a number of possibilities other than giving parents control of a governing board which would "directly and substantially" involve parents. Thus, such a proposal is not demanded by the "direct and substantial involvement" language in the statute.

Next, you have asked whether having teachers and other employees of the school on the governing board of a charter school constitutes an "impermissible conflict of interest" under Georgia law. I understand that your question is directed to the possibility that a charter governing board would have the ability to impact the pay or other conditions of employment of teachers. If teachers were on the board, they would be in the position of granting their own pay raise or of deciding other questions that affect their own employment. Such a situation would raise a conflict at common law, 1985 Op. Att'y Gen. 85-28, or under the "public office is a public trust" mandate in the Georgia Constitution. See Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543 (1982). However, the charter school law in Georgia does not provide for a governing board. See O.C.G.A. § 20-2-255. In practice, the twelve charter schools in existence in Georgia are governed by the local board of education and the teachers are employees of the local board, so a conflict of interest such as you contemplate has not arisen because teachers are ineligible to serve on their employing board of education. See O.C.G.A. § 20-2-51(c).

Next, you ask whether parents are deprived of their constitutional due process rights if they are not given a copy of the proposed charter school petition within a reasonable time prior to a meeting on the petition.

Property interests protected by the due process clause are not created by the Constitution; instead "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

Because state law does not require that a copy of the petition be circulated to the parents prior to a meeting on a charter petition, parents have no property interest in having notice of what the petition provides prior to the meeting and their procedural due process rights are not violated if they do not receive a copy of the proposed petition prior to the meeting. Id. However, I do not disagree that it might be the better practice to provide such a document to the public prior to its consideration.

Next, you have asked whether it would be constitutional for the charter school statute to be amended to delete the requirement of "direct and substantial" parental involvement. The General Assembly has a wide range of authority to enact laws. City of Fort Oglethorpe, Georgia, v. Boger, Ga. (1997); Lee v. City of Jesup, 222 Ga. 530, 531 (1966). I know of no constitutional provision which would be offended if the "direct and substantial" involvement provision were deleted by amendment.

Next, you ask whether the State Board must declare a charter null and void if the charter school petition did not include a proposal to "directly and substantially" involve the parents. The applicable provision of O.C.G.A. § 20-2-255 is found at subsection (f) of that statute. It provides:

The state board will include in the terms of each charter:

(1) A mechanism for declaring the charter null and void if a majority of the faculty, instructional staff of the school, and parents present at a meeting called for the purpose of deciding whether to declare the charter null and void request the state board to withdraw the charter or if, at any time, in the opinion of the state board, the school enjoying charter school status fails to fulfill the terms of the charter.

The above statute on its face does not allow the State Board to do anything other than create a mechanism in the charter for declaring it null and void upon the occurrence of one of two events, neither of which is a deficient petition. It does not give the State Board authority to declare the charter null and void based on a deficiency in the petition. The State Board has only that authority granted to it by statute and that incidental thereto. 1996 Op. Att'y Gen. 96-12. The power to declare any charter null and void for a deficiency in the petition is not specifically granted by statute and cannot be said to be incidental to other powers of the Board. Further, the Model Charter promulgated as a part of Rule 160-4-9-.04 contains a finding by the State Board that the petition did include a provision for parental involvement. Even without such a specific finding, the law would presume that the State Board had properly performed its duty and examined the petition for those elements required by O.C.G.A. § 20-2-255. See Georgia Bd. of Dentistry v. Pence, 223 Ga. App. 603, 606 (1996). Thus, it is my opinion that the State Board lacks the authority to declare a school charter null and void based on a deficiency in the petition.

You have also asked whether the Guidelines must be approved by the State Board. The Guidelines have been prepared by the Department of Education in its role of reviewing the petitions and making recommendations to the State Board. For the most part, they are an explanation or restatement of the legal requirements for charter schools already stated in the statutes and Rule 160-4-9-.04. There are exceptions where the Guidelines contain substantive requirements for the approval of petitions that are not found in either the rule or the statute. For example, the Guidelines contain a provision that the meeting at which parents vote on the petition be "well-publicized." That requirement is not found in either the statute or the rule.

The State Board of Education is an "agency" as that term is used in the Georgia Administrative Procedure Act (APA), O.C.G.A. § 50-13-1 et seq. Thus, it must promulgate its rules according to the APA. Department of Educ. v. Kitchens, 193 Ga. App. 229 (1989). Some actions of an agency are not rules and need not be promulgated. O.C.G.A. § 50-13-2(6). For instance, when an agency decides a contested case, its statements of policy or interpretations are not rules. Id. Agency statements that apply only to its internal management

and do not affect private rights or procedures available to the public are not "rules" and need not be promulgated according to the APA. O.C.G.A. § 50-13-2(6)(A).

In the case of statements made in the Department Guidelines for submitting charter school petitions, however, the procedures available to the public are affected by the Guidelines and they must be promulgated as rules in order to be enforced against charter school petitioners. Those statements in the Guidelines which are merely duplicative of statements in a statute or previously promulgated rule need not be promulgated again, of course. But those statements which are not must be promulgated pursuant to the APA in order to be effective. See Kitchens, supra.

Next, you have asked whether the provisions in subsections (c)(4) and (d)(1) relating to the petition's "plan for school improvement, improving student learning and meeting the national and state educational goals is constitutional." I know of no constitutional provision which would be offended by the requirements that the petition contain plans for improvement and goals. Although Art. VIII, Sec. V, Paras. I & II of the Georgia Constitution give authority to establish and maintain schools to local boards of education, O.C.G.A. § 20-50-255, subsections (c)(4) and (d)(1), do not impermissibly infringe upon the local school boards' authority. See Powell v. Studstill, 264 Ga. 109 (1994); 1975 Op. Att'y Gen. 75-63; 1977 Op. Att'y Gen. 77-60. The statute merely requires that whoever prepares the petition should include such a plan. If the local board of education does not agree with the goals expressed in the plan, it is free to disapprove and as a result charter school status would not be granted. See O.C.G.A. § 20-2-255(b)(1).

Next, you have asked whether only local school boards are empowered to approve charters so as to exempt a charter school from state rules. Although the local school board has broad authority under the constitutional provision cited above, it is still subject to regulation by the State Board in connection with state funds. See 1975 Op. Att'y Gen. 75-63; 1977 Op. Att'y Gen. 77-60. Under the provisions of the law as they exist today, the State Board is the only entity which could exempt charter schools from state regulations. The local school board's authority does not extend to these matters.

Finally, you have asked whether the General Assembly could constitutionally allow charter schools to be created as "special" schools without the approval of the county or

independent board of education in whose territory the charter school would be located. Special schools are authorized by Art. VIII, Sec. V, Para. VII of the Georgia Constitution (1983) in "such areas as may require them." The General Assembly may create special schools and may provide for participation of local boards of education in their establishment "under such terms and conditions as it may prescribe." Id. That constitutional provision uses the permissive term "may" in describing the General Assembly's authority to provide for participation by local boards. Use of this permissive word indicates that the General Assembly may create special schools with or without a provision for the participation of local boards of education. See Berman v. Berman, 253 Ga. 298, 299 (1984). The contrary rule that the word "may" means "must" or "shall" does not apply to a constitutional proposal such as this which contemplates a grant of discretion to the General Assembly. See Foster v. Brown, 199 Ga. 444, 449 (1945). The "special school" constitutional provision is of equal weight and should be harmonized with the constitutional provision that school systems be under the "management and control" of local boards of education, Art. VIII, Sec. V, Para. II. See Cason v. State, 217 Ga. 339 (1961). Thus, there is no constitutional requirement that local boards approve special schools created within their territory, and the General Assembly may create such a school without providing for approval of the local board of education.

In summary it is my unofficial opinion that charter school petitions must be approved by the State Board and the local board of education. The State Board is authorized to waive the requirements of state statutes and regulations for charter schools; local boards may not do so. The charter school statute does not unconstitutionally infringe on local board control. The General Assembly may create charter schools as special schools without the approval of local boards of education. The Department of Education Charter School Guidelines are required to be promulgated as rules by the State Board to the extent that they are not merely restatements of a statute or previously promulgated rule. Charter school legislation in effect now does not have a provision for a governing board. Currently, charter school teachers are employees of the local board of education.

There is no requirement that parents be in the majority on the governing board. Delivering a copy of the proposed school charter to parents prior to a meeting on the petition is not legally required. The charter school statute provides for "direct and substantial" involvement of parents in charter

schools, however, it would not be unconstitutional if there were not such a provision. The State Board is not authorized to declare a school charter null and void if the petition did not include a proposal for the "direct and substantial" involvement of parents.

Prepared By:

KATHRYN L. ALLEN
Senior Assistant Attorney General