Judge John Ellington, Georgia Court of Appeals (Photo: John Disney/ALM) Judge John Ellington, Georgia Court of Appeals (Photo: John Disney/ALM)


Teachers who contend the DeKalb County Board of Education illegally ended contributions to their retirement fund have won a victory with the Georgia Court of Appeals.

Presiding Judge John Ellington wrote for a panel that included Judge Charlie Bethel and Senior Judge Herbert Phipps in a June 1 decision reversing DeKalb County Superior Court Judge Gregory Adams, who tossed out the teachers’ case.

The teachers “contend that the court’s order was erroneous because the evidence shows the existence of an enforceable ‘governmental promise’ that required two years’ notice before reducing or suspending funding,” Ellington said. “We agree and reverse the judgment of the superior court on the issue of liability.”

The panel remanded the case to DeKalb Superior Court to consider the teachers’ claims. They have asked for summary judgment in their favor and for certification of a class action for the teachers.

The teachers’ legal team includes Michael Terry of Bondurant Mixson & Elmore, who made their case at oral arguments before the panel, as well as Jason Carter of Bondurant and former Gov. Roy Barnes and John Salter of the Barnes Law Group.

Barnes Law Group released the following statement from plaintiff Elaine Gold:

“Ever since the district broke its promise to us in 2009 they have fought tooth and nail—for almost ten years. The district’s decision to bully teachers instead of doing what was right has dragged this case out. We feel so happy that a court finally said that what the district has been doing is wrong and that the district has to keep its promises.”

The school district was represented by Allegra Lawrence-Hardy, Thomas Bundy III, Lisa Haldar and Leslie Bryan of Lawrence & Bundy.

The defense attorneys deferred to the school district, which emailed this response: “The District received the decision of the Georgia Court of Appeals in the Gold case last week. The District is reviewing the decision carefully and considering its next steps.”

Ellington gave a detailed history of the DeKalb teachers’ pension program, which was created like those of other school districts that opted during the 1970s to create an alternative to Social Security retirement benefits. The dispute dates to 2009 and the Great Recession, when then-Gov. Sonny Perdue announced a 3 percent reduction in state funding for all Georgia school systems.

“In an effort to manage the expected loss of up to $20 million in state funding and the resulting budget deficit, the board decided to suspend contributions” to the teachers retirement plan, Ellington said. “Although the board notified employees that funding of the [retirement] plan would be suspended, it did not give two years’ notice prior to suspending funding.”

Ellington pointed to “evidence in the record from which a fact-finder could infer” that the school board was aware that suspending funding to the retirement plan without the required two-year notice violated its own policies.

Furthermore, Ellington said, “There is no evidence in the record that the district has restored any funding.” He said that, in June 2010, the school board “amended its by-laws and policies to remove the two-year notice provision.”

The board disputed the two-year notice requirement, but the teachers argued that failing to meet it made the budget cuts illegal. The $20 million on the line for the year the contributions were cut, multiplied by the 10 years of budgets since, could mean $200 million or more is at stake in the case.

The case is Elaine Gold et al. v. DeKalb County School District, No. A18A0526.