                            FIRST DIVISION
                             PHIPPS, C. J.,
                    ELLINGTON, P. J., and MCMILLIAN, J.

                    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.
                               http://www.gaappeals.us/rules/


                                                                    August 29, 2014




In the Court of Appeals of Georgia
 A14A1114. CLAYTON COUNTY BOARD OF EDUCATION v. JE-058
     VOLLMER.

      ELLINGTON, Presiding Judge.

      The Clayton County Board of Education (hereinafter, the “Local Board”)

appeals from an order by the Superior Court of Clayton County reversing a decision

by the State Board of Education (the “State Board”). The State Board had affirmed

the Local Board’s termination of a teacher, David Vollmer.1 The Local Board

contends that the superior court erred in reversing Vollmer’s termination based upon

an issue that he raised for the first time in the superior court, specifically, that the

tribunal that conducted the initial termination hearing had failed to timely comply

with its statutory reporting requirements. The Local Board argues that Vollmer

      1
      This Court granted the Local Board’s application for discretionary review,
Case No. A14D0141.
waived the issue by failing to raise it in the prior proceedings. The Local Board also

contends that, to the extent the superior court found as a matter of law that there was

insufficient evidence in the record to support the termination of Vollmer’s

employment, this conclusion is erroneous. For the following reasons, we find that

Vollmer waived the issue of whether the hearing tribunal timely complied with the

applicable statutory requirements. Further, the hearing evidence supported the Local

Board’s termination decision. Consequently, we reverse the superior court’s order.

      Viewed in the light most favorable to the Local Board’s decision,2 the record

shows the following, undisputed facts. In January 2012, Clayton County’s

Superintendent of Schools recommended that the Local Board terminate Vollmer’s

employment as a teacher, pursuant to the Georgia Fair Dismissal Act, OCGA § 20-2-

940 et seq. A tribunal appointed by the Local Board (the “hearing tribunal”)3 heard

evidence on the recommendation and, on May 22, 2012, issued its findings of fact and



      2
       Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d
629) (2010).
      3
         See OCGA § 20-2-940 (e) (1) (“The [termination] hearing shall be conducted
before the local board, or the local board may designate a tribunal to consist of not
less than three nor more than five impartial persons possessing academic expertise to
conduct the hearing and submit its findings and recommendations to the local board
for its decision thereon.”).

                                          2
recommended that the Local Board terminate Vollmer’s employment. In a June 5,

2012 e-mail to Vollmer’s counsel, the Local Board notified Vollmer that it had

“upheld the [termination] decision of the Tribunal at its Monthly Board Meeting last

night.”

      Vollmer appealed the Local Board’s decision to the State Board,4 raising seven

separate “Issues on Appeal,” including whether the Local Board had “acted in

compliance with its mandate in OCGA § 20-2-940 (f)” because “[n]owhere in the

unofficial minutes [of the Local Board’s June 4, 2012 meeting], the only minutes

available, does it appear that any action respecting [Vollmer] was taken [by the Local

Board],” and because he had “received no notice that any action was taken [by the

Local Board] as required by law[.]” The State Board responded to the notice of appeal

with a letter stating that it would “not consider any question not specifically raised

in the written appeal.”




      4
        See OCGA § 20-2-1160 (b) (“Any party aggrieved by a decision of the local
board rendered on a contested issue after a hearing shall have the right to appeal
therefrom to the State Board of Education. The appeal shall be in writing and shall
distinctly set forth the question in dispute, the decision of the local board, and a
concise statement of the reasons why the decision is complained of[.]”).


                                          3
      In his subsequent appellate brief to the State Board, Vollmer abandoned all but

the following two issues: whether there was sufficient evidence to support his

termination, and whether the Local Board had failed “to act on the Decision of the

Hearing Tribunal in a timely manner.” As to the latter issue, Vollmer contended that

there was no proof that the Local Board had taken any official action on the hearing

tribunal’s recommendation and that neither he nor his counsel had “ever received any

required notice from the Board that [he] had the right to appeal the decision of the

[Local] Board.”

      The State Board affirmed the Local Board’s termination decision after finding

that there was sufficient evidence to support Vollmer’s termination; it did not address

Vollmer’s contention regarding the Local Board’s alleged failure to provide him with

timely notice of its decision or his right to an appeal.

      Vollmer then appealed the State Board’s decision to the Superior Court of

Clayton County,5 contending, inter alia, that the hearing tribunal had failed to comply

with a statutory mandate that it provide its findings of fact and recommendations to


      5
        See OCGA § 20-2-1160 (c) (“Any party aggrieved [by a decision of the State
Board in a termination appeal] may appeal to the superior court of the county wherein
the local board of education is situated. Such appeal shall be filed in writing within
30 days after the decision of the state board.”).

                                           4
the Local Board within five days of the conclusion of the termination hearing.6

Although the Local Board argued that Vollmer had waived this issue by failing to

raise it in the proceedings below, the Superior Court rejected that argument, finding

as a matter of fact that Vollmer had raised the issue in his appeal to the State Board.

The superior court then concluded that the hearing tribunal had, in fact, violated the

five-day reporting requirement under OCGA § 20-2-940 (f), and, based solely upon

that finding, it reversed the Local Board’s termination of Vollmer’s employment.

      1. The Local Board contends that the superior court erred in considering and

ruling upon this issue because Vollmer had waived it by failing to raise it in the

proceedings below. Pretermitting whether the superior court erred in finding that the

hearing tribunal had violated the reporting requirement of OCGA § 20-2-940 (f), or

that such violation mandated the reversal of Vollmer’s termination, the record shows

that the court clearly erred in finding that Vollmer had preserved the issue for its

consideration. As shown above, in Vollmer’s appeal to the State Board, he

specifically identified the issues he wanted the State Board to consider. That pleading


      6
        See OCGA § 20-2-940 (f) (“Where the [termination] hearing is before a
tribunal, the tribunal shall file its findings and recommendations with the local board
within five days of the conclusion of the hearing, and the local board shall render its
decision thereon within ten days after the receipt of the transcript.”).

                                          5
and his supporting brief indisputably show that he did not ask the State Board to

decide whether the hearing tribunal had issued its findings and recommendations

within the required five-day period and, if the tribunal did not, whether that failure

mandated the reversal of the Local Board’s decision to terminate his employment.7

      Because Vollmer failed to raise the issue prior to his appeal to the superior

court, the court was prohibited from considering the issue; it was also prohibited from

reviewing the decision of the State Board de novo. OCGA § 20-2-1160 (e) (“Neither

the state board nor the superior court shall consider any question in matters before the

local board nor consider the matter de novo, and the review by the state board or the

superior court shall be confined to the record.”); Sharpley v. Hall County Bd. of Ed.,

251 Ga. 54, 54-55 (1) (303 SE2d 9) (1983) (The appellant failed to challenge the

constitutionality of a statute in proceedings before the county or state boards of



      7
       In fact, in his 32-page brief to the State Board, Vollmer’s only reference to the
timing of the hearing tribunal’s actions is as follows:
      On May 22, 2012, the Hearing Tribunal rendered its Findings of Fact,
      Analysis and Conclusions, supporting its decision on May 20, 2012 to
      uphold the decision of the Superintendent. This decision was in due
      course filed with the [Local] Board. . . . On June 5, 2012, [the Local
      Board sent Vollmer’s attorney an e-mail that stated:] “The Board upheld
      the decision of the Tribunal at its Monthly Board Meeting last night.”

                                           6
education. Consequently, the superior court was not authorized to consider the issue,

and the Supreme Court refused to consider its merits on appeal.); Fulton County Bd.

of Ed. v. D. R. H., 325 Ga. App. 53, 57-58 (1) (752 SE2d 103) (2013) (This Court

ruled that, in an appeal from a Local Board’s decision, the superior court erred in

considering a matter de novo and in failing to confine its appellate review to the

record and to the issues that had been raised before the Local Board, in violation of

OCGA § 20-2-1160 (e)).

      Consequently, the superior court erred in reversing the State Board’s decision

affirming the Local Board’s termination of Vollmer’s employment on this basis.

      2. Although the superior court did not expressly rule on Vollmer’s claim that

there was insufficient evidence presented at the tribunal hearing to support the

termination of his employment, we have reviewed the evidence presented in the light

most favorable to the Local Board’s decision and conclude that, under the “any

evidence” standard of review, the evidence supports the Local Board’s termination

decision. See Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691

SE2d 629) (2010) (“Not unlike the State Board and the superior court, this Court as

an appellate body applies the ‘any evidence’ standard of review to the record

supporting the initial decision of the Local Board.”) (citations omitted); Ransum v.

                                         7
Chattooga County Bd. of Ed., 144 Ga. App. 783, 785 (5) (242 SE2d 372) (1978)

(“Historically, the appellate courts of this State have followed the policy of refusing

to nullify facts supported by evidence which have been found by the various fact-

finding bodies.”) (citation and punctuation omitted). Accordingly, the superior court

was not authorized to reverse Vollmer’s termination on this basis.

      Judgment reversed. Phipps, C. J., and McMillian, J., concur.




                                          8
