                              FOURTH DIVISION
                                 BARNES, P. J.,
                            RAY, and MCMILLIAN, JJ.

                    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/


                                                                       July 13, 2015


In the Court of Appeals of Georgia
 A15A0363. GEORGIA PROFESSIONAL                              STANDARDS
     COMMISSION v. LEE.

      BARNES, Presiding Judge.

      The Georgia Professional Services Commission (PSC) appeals the superior

court’s order reversing on due process grounds the suspension of Clarissa Lee’s

teaching certificate. The PSC contends that the court erred because Lee suffered no

violation of a cognizable due process right when the ALJ hearing her case exercised

discretion and declined to hold the record open to obtain additional evidence after

Lee’s subpoenaed witnesses failed to appear. The PSC further argues that even if the

ALJ erred, the superior court should have remanded the case for further proceedings

rather than simply reversed the ALJ’s decision. Because we cannot determine from

the superior court’s order whether it intended to remand the case to the Office of State

Administrative Hearings (OSAH) for further proceedings or to reverse it entirely, we

vacate the order and remand the case for clarification of the court’s order.
      Lee was a fifth-grade teacher who proctored a Criterion-Referenced

Competency Test (CRCT) science test in April 2010. After the test, another teacher

told the school principal that some of her students were saying that Lee “gave some

answers on the test.” The principal retrieved seven students, sat them in every other

seat around a big table in the instructional coach’s room, and told them “to write

down anything they had seen or heard that they thought might be inappropriate during

the test.” The principal then left the students with the coach to call her executive

director for further instructions.

      Meanwhile, the CRCT testing coordinator, who had been present in the

principal’s office when the report of irregularities was made, was obligated to report

the issue to her supervisor. The coordinator submitted a “Testing Irregularities

Documentation Form,” which indicates that statements from seven students were

attached when submitted, although it is difficult to tell from the record or hearing

transcript whether the brief written statements in the record are the ones the students

wrote on test day. Four children said either Lee told them to check specific answers

or they heard her tell someone else to check her answers. On the documentation form

submitted by the testing coordinator is a note indicating that Lee did not sign it

because the principal asked the coordinator not to show it to Lee.

                                          2
      In response to a request from an investigator assigned to the former Internal

Affairs Department of the Professional Standards and Practices Commission, the

testing coordinator reviewed the test booklets and answer sheets of four students who

made statements and found no erasures. The coordinator reported that the students

had identical questions and answers on the page that contained the question that Lee

was accused of helping with (the children apparently are not given the exact same test

in the exact same order of questions), and three of them had answered the question

incorrectly. One of those was the student who said Lee gave her the correct answer

to that question. The coordinator also examined the overall number of erasures on the

answer sheets of the entire class, and while most students had one or two erasures,

they all involved different questions. She concluded, “There was nothing consistent

about the erasures from student to student.”

      The Internal Affairs investigator interviewed multiple students about the

allegations of impropriety during the CRCT testing, although he did not recall the

substance of the interviews at the administrative hearing. He testified that the

interviews would have been included in his full report, although no statements are

attached to the report in the record. The investigator also interviewed Lee and

described her at the administrative hearing as being “very forthright” and in his

                                          3
opinion was not attempting to conceal anything. In his report, the investigator noted

that one student, C.R., insisted that Lee gave her the correct answer, but while the

students seated around C.R. heard Lee say something to C.R. they were not sure what

was said. The investigator said the students agreed that Lee was leaning over each

student as she patrolled the aisles, telling him or her to check their answer sheets and

occasionally pointing to a particular answer or part of the test to be checked.

      A compliance investigator with the Educator Ethics Division of the PSC

investigated the alleged CRCT violations and interviewed the HR director, the testing

coordinator, the principal, and the system investigator. She read the students’

statements, and although Lee through her attorney asked to speak with her, the

investigator never interviewed Lee, relying instead on a written statement from Lee

that her attorney sent to the investigator. The PSC sent Lee a letter of suspension

dated November 18, 2010, notifying her of the PSC’s recommendation that she be

sanctioned by suspending her teaching certificate for a year. That letter is not in the

record either. On December 3, 2010, Lee notified the PSC that she sought a hearing

before an administrative law judge and written notice of the causes for her

suspension.



                                           4
      About 17 months later, in May 2012, the PSC finally asked OSAH to schedule

a hearing on Lee’s request. The hearing was initially scheduled for July 2012, then

reset to August 2012 upon the request of the PSC because one of its witnesses had

scheduled a vacation during that time. Lee’s counsel moved to reset the hearing again

due to a CLE panel conflict but the ALJ denied the motion. Both parties served

multiple witness subpoenas, and the hearing was held on August 13, 2012.

      At the hearing, Lee testified and denied providing any assistance to students

during the CRCT in April 2010, noting that one of the students who accused her of

supplying the correct answer to a question became upset with Lee because Lee would

not let the student leave the room during the testing. Lee testified that she merely

patrolled the aisles and generally encouraged the students to check over their answers

when there was enough time for them to do so. Four students who took the CRCT test

in question testified. One said Lee gave her the correct answer to question number

seven but she did not change it, and another said Lee told her answers were wrong

and she should fix them but also that Lee declined to explain one of questions when

asked and did not tell her the correct answers. A third student said his prior statement

that he heard Lee tell another student to check over two or three answers was true.

The fourth and last student did not remember the test or her statement, in which she

                                           5
said Lee told her to check her work and talked to another student about her work, but

testified that she would not have made those statements if they had been false. The

record includes a page of pre-printed questions that each of the four students

answered “yes” or “no,” which asked the students whether Lee asked any students to

change their answers, whether she reviewed the answer sheets and gave any back for

students to change their answers, whether she corrected any answers, and whether she

gave any students answers to questions. On the back of the forms were additional

statements. It is unclear from the record who gave the students these forms to

complete or when they were completed, but the compliance investigator signed and

dated them.

      Other students were interviewed during the investigation, but their statements

were not admitted into the record at the administrative hearing because they did not

appear in response to Lee’s subpoenas. An administrator who was present during the

testing also did not appear pursuant to subpoena, and Lee asked the ALJ to continue

the matter or leave the record open until she could attempt to compel their testimony

through some other means. The PSC objected, arguing first that the ALJ had enough

information to decide whether Lee’s teaching certificate should be suspended.

Alternatively, the PSC asked that if the ALJ were inclined to leave the record open,

                                         6
that it be left open for only a short time. Counsel for the PSC stated that she had

released the adult witness from the PSC’s subpoena, but had not, of course, released

her from Lee’s subpoena. The ALJ denied Lee’s request to continue the hearing or

hold the record open, reasoning that the matter had been “pending for some time, it’s

in the interest of everyone to expeditiously conclude it, and ... there appears to be

sufficient evidence on this issue for me to make a determination.”

      On August 20, 2012, the ALJ issued a decision finding credible evidence that

Lee assisted students in taking the test and also that she was regarded as honest and

trustworthy, and finding no credible evidence that she had adhered to the requirement

to refrain from offering assistance to students during the CRCT test in April 2010.

The ALJ concluded that a factual basis existed to support the PSC’s recommendation

that Lee’s teaching certificate be suspended for one year based on conduct that

violated the Code of Ethics for Educators.

      On September 20, 2012, Lee petitioned the superior court for judicial review.

In October 2013, the court held a hearing, the transcript of which is not included in

the record, and on May 23, 2014, the court issued an order reversing the ALJ, finding

that Lee was not afforded due process because she was unable to attempt to enforce



                                         7
her administrative subpoenas through the superior court as provided in OCGA §§ 50-

13-13 (7), (9). This court granted the PSC’s application for discretionary review.

      The PSC argues on appeal that the superior court erred in finding that the ALJ

violated Lee’s due process rights and abused its discretion; and in reversing the case

rather than remanding it so the subpoenas could be enforced and the absent witnesses’

testimony considered.

      1. The superior court’s judicial review of administrative decisions under the

Georgia Administrative Procedure Act (APA), OCGA § 50-13-1 et seq., is a two-step

process. First, the superior court must decide whether the factual findings are

supported by any evidence, without substituting its judgment regarding the weight of

the evidence. OCGA § 50-13-19 (h); Professional Standards Comm. v. Smith, 257

Ga. App. 418 (571 SE2d 443) (2002). Second,

      the court is statutorily required to examine the soundness of the
      conclusions of law drawn from the findings of fact supported by any
      evidence, and is authorized to reverse or modify the agency decision
      upon a determination that the agency’s application of the law to the facts
      is erroneous. A determination that the findings of fact are supported by
      evidence does not end judicial review of an administrative decision.




                                          8
Pruitt Corp. v. Ga. Dept. of Cmty. Health, 284 Ga. 158, 161 (3) (664 SE2d 223)

(2008). We apply the same standards of review when considering the superior court’s

decision on an APA appeal. See Professional Standards Comm. v. Valentine, 269 Ga.

App. 309, 312 (603 SE2d 792) (2004).

      The superior court here found that the ALJ’s violated Lee’s right to due process

by denying her request to hold the record open until she attempted to obtain the

subpoenaed witnesses’ testimony. While OCGA § 50-13-13 (a) (6) authorizes the

agency and hearing officer to issue subpoenas, and (a) (7) provides that “[w]hen a

subpoena is disobeyed, any party may apply to the superior court of the county where

the contested case is being heard for an order requiring obedience,” Lee had no

opportunity to use this mechanism to compel the attendance of her witnesses, one of

whom the PSC had dismissed from its subpoena without consulting Lee.

      Although a reviewing court may not substitute its judgment for the agency on

questions of fact, pursuant to OCGA § 50-13-19 (h) (3) it “may reverse or modify the

decision if substantial rights of the appellant have been prejudiced because the

administrative findings, inferences, conclusions, or decisions are . . . [m]ade upon

unlawful procedure.” Here, the superior court found that the ALJ’s denial of Lee’s



                                          9
request to continue the matter or hold the record open to obtain testimony from her

absent subpoenaed witnesses violated Lee’s right to due process.

      [O]nce the State issues a professional license, such as the teaching
      license at issue in this case, its continued possession may become
      essential in the pursuit of a livelihood. Suspension of issued licenses
      thus involves state action that adjudicates important property interests
      of the licensees. In such cases, the licenses are not to be taken away
      without that procedural due process required by the Fourteenth
      Amendment. In cases such as this, due process requires that some form
      of a hearing must be held before one is finally deprived of their property
      interest in a professional license.


(Punctuation and footnotes omitted.) Gee v. Professional Practices Comm., 268 Ga.

491, 493 (1) (491 SE2d 375) (1997). Further,

      [t]he constitutionally-guaranteed right to due process of law is, at its
      core, the right of notice and the opportunity to be heard. Neither the
      federal nor the state constitution’s due process right guarantees a
      particular form or method of procedure, but is satisfied if a party has
      reasonable notice and opportunity to be heard, and to present [her] claim
      or defense, due regard being had to the nature of the proceeding and the
      character of the rights which may be affected by it.


(Citation and punctuation omitted.) Cobb County School Dist. v. Barker, 271 Ga. 35,

37 (2) (518 SE2d 126) (1999) (workers’ compensation statute defining as


                                            10
“catastrophic” an injury for which a claimant was awarded Social Security disability

benefits conferred a rebuttable, not mandatory, presumption, and thus did not violate

due process principles).

      Under the APA, the ALJ can consider a broad range of factors, including the

need for an expeditious resolution of the matter at issue, when deciding whether or

not to grant a continuance. Ga. Comp. R. & Regs. 616-1-2-.41. But under the facts

of this case, the superior court did not err in concluding that the ALJ abused its

discretion in denying Lee’s request for an opportunity to produce evidence on her

behalf based on the need for an expeditious decision.

      Although Lee requested a review of the PSC’s November 2010 suspension

decision in December 2010, the PSC did not even ask for a hearing to be scheduled

until May 2012, almost a year and a half later. After the hearing was scheduled for

July 2012, the ALJ granted the PSC’s request to reset it because one of the PSC’s

witnesses was going on vacation. The administrative hearing was not held until

August 2012, about 20 months after Lee requested a hearing and 27 months after the

CRCT was administered. While the PSC frames the argument as whether the ALJ was

absolutely required to continue the hearing to enforce Lee’s subpoenas, the question



                                         11
is whether the ALJ abused its discretion in denying the request and thus violated

Lee’s due process rights.

      Considering the length of time between Lee’s request for a hearing and the

hearing itself, the superior court did not err in concluding that the ALJ’s ruling

denying Lee the right to present evidence from her witnesses was an abuse of

discretion and a violation of Lee’s rights to due process.

      2. The PSC further argues that the superior court should have remanded the

case to the Office of State Administrative Hearings instead of reversing it outright.

While the superior court determined that the ALJ violated Lee’s due process rights,

it did not determine whether Lee’s “substantial rights” were prejudiced due to this due

process violation, and its order is ambiguous as to whether it intended to remand the

case to OSAH for further proceedings or reverse the ALJ outright. Under OCGA §

50-13-19 (h) (3), the reviewing court “may reverse or modify the decision if

substantial rights of the appellant have been prejudiced because the administrative

findings, inferences, conclusions, or decisions are . . . [m]ade upon unlawful

procedure.” (Emphasis supplied.) Absent a finding that Lee’s substantial rights were

prejudiced by this constitutional violation, we cannot presume that the superior court

intended to reverse the ALJ outright and thus terminate the disciplinary proceedings

                                          12
against her, rather than remand the case to the ALJ for further proceedings.

Accordingly, we vacate the decision of the superior court and remand this case to the

superior court for further proceedings consistent with this opinion.

      Judgment vacated and remanded. Ray, J., concurs in Division 2 and in the

judgment. McMillian, J., concurs in the judgment.




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