Important new nepotism legislation could cause problems for Zepora Roberts

The article below is reprinted from a report in the AJC. Apparently, there is a new law stating that people with immediate family members cannot serve on a board of education and if currently serving, cannot run for reelection as the law states that it applies to those elected after July 1, 2009. The law is being challenged, but as it stands, this law would prevent Zepora Roberts from running for reelection, as she herself admits in a recent email that two of her daughters work for DeKalb County Schools, one of whom was promoted to Assistant Principal in 2009. That said, we are wondering how it is that Zepora has now qualified for reelection. If there is a loophole we're not aware of, hopefully someone will share it in the comments.

Two local Georgia school board members have filed suit in federal court to overturn the state's new "nepotism" provision that restricts them from running for re-election.

Lawmakers passed the provision under unusual circumstances late on the last night of the 2009 legislative session. It bars someone from serving on a local school board if he or she has an immediate family member at work in the same school system as the local superintendent, principal, assistant principal or as a "system administrative staff" member. It went into effect on July 1 of last year -- soon enough to bar Kelvin Simmons, who had served on the Gainesville city school board since 1991, from running for re-election last November.

Simmons is one of the suit's plaintiffs. The other is Lamar Grizzle, an eight-year Bartow County board member who expects to be ineligible to qualify this year for re-election. Both men have immediate family members working in their respective systems. Simmons' wife is an assistant principal of a Gainesville school. Grizzle's daughter is a Bartow assistant principal.

"It's badly targeted [and] vaguely written," said their attorney, Peter R. Olson. Lawmakers last year originally included the provision in a controversial school governance bill inspired by the then-recent loss of accreditation by Clayton County schools. (Clayton County later regained its accreditation.) The governance bill, however, did not pass. But the nepotism provision on the session's last day made its way into another bill that did pass: the school choice bill HB 251, which originally related only to student transfers.

Simmons and Grizzle are asking that the court strike the provision from the law, saying in part that it supersedes voters' rights to elect their own local representation. They also argue that the Georgia Constitution prohibits a bill from having more than one subject matter. They filed their suit in U.S. District Court in Rome, Ga., last week.

Separately, state Rep. Tommy Benton (R-Jefferson) this year has sponsored legislation to essentially do the same thing: amend the law and remove the provision. Benton's bill, HB 924, is in committee.

The actual anti-nepotism text from HB 251 is below:

(2) No person who has an immediate family member sitting on a local board of education or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system shall be eligible to serve as a member of such local board of education. As used in this paragraph, the term 'immediate family member' means a spouse, child, sibling, or parent or the spouse of a child, sibling, or parent. This paragraph shall apply only to local board of education members elected or appointed on or after July 1, 2009. Nothing in this Code section shall affect the employment of any person who is employed by a local school system on or before July 1, 2009, or who is employed by a local school system when an immediate family member becomes a local board of education member for that school system."

To date, it appears that the anti-nepotism clause in HB 251 passed into law, and the attempt to remove it in HB 924 did not pass into law.

(An aside: The new law created by HB 251 allows students to transfer to any school in the district in which the child resides as long as there is classroom space available. Parents must provide transportation. Charter schools are exempt from this law.)

If anyone can provide more insight, please do so in the comments.

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UPDATE: One of our contributors enlightened us as to the lawsuit filed challenging this law.

May 2, 2010

Federal court preliminarily enjoins Georgia from enforcing anti-nepotism law regarding eligibility to serve on local school boards

Grizzle v. Kemp, No. 10-0007 (N.D. Ga. Apr. 21 2010), is not the type of case you see very often. A federal district court in Georgia has issued a preliminary injunction barring the state from enforcing a provision in the state law making a person ineligible to serve on a local school board if that person "has an immediate family member sitting on [that] local board of education or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system."

Plaintiff contends the provision violates: (1) their Fourteenth Amendment equal protection rights; (2) their First Amendment right of free association, both as candidates for office and voters; (3) their Fourteenth Amendment due process rights because the term "system administrative staff" in the provision is facially vague; and (4) the "one subject matter rule" provision in the Georgia Constitution.

The court pointed out that it was well-established law that candidates have the constitutional right to associate for political ends and participate in the electoral process under the First and Fourteenth Amendments. At the same time, the law recognizes a state's compelling interest in regulating the election process and having ballot access requirements. It found that the anti-nepotism provision has a severe impact on the plaintiffs as candidates and the voters of Georgia because of its exclusionary nature. As a result, the court found that the provision should be subjected to strict scrutiny, i.e. determination of whether it is narrowly tailored and advances a compelling state interest, to determine its constitutionality. Applying the strict scrutiny test, the court concluded that the law, O.C.G.A. § 20-2-51(c)(2), failed to pass constitutional muster.

The court noted that the only stated purpose for the provision "was to prevent nepotism, or favoritism to family and friends." Assuming that the purpose is a compelling state interest, it found the provision was not narrowly tailored to serve that purpose. Specifically, the court found that the provision was over-inclusive because it excludes all potential candidates from office who have relatives employed in the capacities enumerated in the provision instead of addressing the actual problem related to nepotism of possible biased decisions by school board members. This is an important decision to watch.