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Is There A Right To Hold A Public Office?

The U.S. Constitution guarantees that no person may be “deprived of life, liberty, or property, without due process of law.” It makes no mention of the right to hold a public school board seat.

In DeKalb County, Ga., however, six recently suspended school board members are claiming that an executive order from Gov. Nathan Deal removing them from their posts violated their constitutional rights.

Deal ousted six of the district’s nine board members (leaving three who had been elected just last autumn) after an independent accreditor, the Southern Association of Colleges and Schools (SACS), placed the district’s schools on probation, citing financial mismanagement and nepotism.

A 2011 Georgia state law, the School Board Suspension Statute, specifically gives the state the authority to remove board members if their districts are placed on probation by an accrediting agency. Following the procedures set out by that law, the Georgia Board of Education held a hearing to decide whether to recommend removal to the governor. Deal followed that recommendation in clearing the board of its longer-standing members.

The district responded with a lawsuit, arguing that, by relying on the SACS report, which made heavy use of confidential interviews, the state had failed to grant the board members full due process.

While Deal has already begun searching for replacement board members, the case remains in limbo. Faced with a request for an injunction, a federal district judge ruled last week that, while there is “considerable evidence that due process as required by the Fourteenth Amendment has been satisfied,” the School Board Suspension Statute may not be consistent with Georgia’s own constitution. Georgia’s constitution contains detailed language relating to the treatment of local boards, including the provision that “Each school system shall be under the management and control of a board of education, the members of which shall be elected as provided by law.”

Rather than having the parties navigate the state court system themselves, the federal judge, U.S. District Judge Richard Story, took the unusual step of asking the Georgia Supreme Court directly to address the question of whether the School Board Suspension Statute is valid under the state constitution. The ruling shifts the focus from the question of due process requirements to the proper interpretation of Georgia’s state constitution as it relates to the balance of power between local and state entities.

While awaiting word from the Georgia Supreme Court, the board members will be suspended with pay.

Story was right to turn the decision over to Georgia’s own court system. States are sovereign entities, and their own courts are responsible for interpreting their constitutions. If there is a conflict between the Georgia constitution and the 2011 law, Georgia’s courts can and should address the deficiency.

The school board members did not present a valid reason for federal courts to intervene. Federal jurisdiction would apply in some circumstances, such as in the case of a law that is racially discriminatory. But although there are some racial undercurrents in the DeKalb case - the district includes a portion of the Atlanta urban area, in addition to surrounding suburban and rural areas - there is no evidence that race was a factor in the law’s design or in Deal’s decision to implement it.

By redirecting the case to the Georgia court system, Story left open the question of whether a locally elected office can be considered “property” under the Due Process Clause. In one part of the opinion, however, he suggested that the school board’s former chairperson “appears to have a property interest that is subject to the protections of the Fourteenth Amendment,” which provides for due process.

That is a startling - and probably incorrect - interpretation, which views a job as property that can belong to the employee. This is not generally true in the private sector, where jobs are traditionally subject to termination “at will” by the employer, unless that power is restricted either by contract or by law. It ought to be even less true for public officials. Voters may have a right to enjoy the faithful services of the person whom they elected, but it is a stretch to argue that, once elected, an individual who fails to meet the demands of his or her office - which is what Georgia’s governor determined happened in this case - is entitled to keep the job anyway.

School board officials are ultimately accountable to voters, not only in their own districts, but throughout the state that provides their districts’ funding. The results of a local election should not prevent the state legislature from taking actions it considers necessary to serve the interests of voters statewide. The Georgia Legislature may or may not be right that replacing the members of the DeKalb school board will ultimately improve the district’s performance, but the Legislature’s authority to make decisions is not contingent on the decisions’ efficacy.

The DeKalb case should eventually make its way back to Story’s federal courtroom. If the Georgia Supreme Court advises Story that the law passes constitutional muster, Story should find that it is within the state’s power to remove school board members under whatever non-discriminatory criteria it chooses to set. Elected office carries with it the privilege of serving one’s constituents, not a right to get a paycheck whether your service is useful or not.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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