Olens referenced O.C.G.A. 20-2-36, which states, “In the event of a misapplication of any of the funds apportioned to any of the institutions of learning or schools receiving state aid, the State School Superintendent shall at once proceed to recover such funds by the institution of proper proceedings in the courts after demand to settle the matter is made upon the party misapplying the funds.”
He also referenced a broader provision, O.C.G.A. 20-2-243, which gives the state board of education authority to withhold state funds in the event of a local school district’s failure to comply with the law.
Both provisions were presented to Barge as a follow-up to a previous letter in which the superintendent asked Olens for advisement after being told by Atlanta attorney Glen Delk last month it was unlawful to post information on the department of education’s website showing opposition to the charter school constitutional amendment, which is up for vote Nov. 6.
If approved, the amendment would create a state charter school committee that could establish local charter schools rather than leaving the establishment of charter schools to local boards of education.
“The application of either of these enforcement provisions is by its nature an extremely fact-specific matter,” Olens wrote.
During a conference call last month, Olens refused to answer questions regarding, for example, local school boards and elected officials, such as the governor, advocating for or against the amendment by means of signing a proclamation or traveling to promote the amendment, citing any instance is a “fact-specific” matter.
“It should be noted that the Code section 20-2-36 focuses on remedying a subset of past wrongs (i.e., recovering misapplied state funds), while Code section 20-2-243 focuses on ensuring prospective compliance (i.e., withholding funds until compliance is achieved),” he wrote. “In the absence of specific facts, it is difficult to determine which mechanism — if any — ought to be considered for use.
“I will note, however, that it appears highly unlikely that substantial state funds have been directly expended for the purpose of electoral advocacy. It is more likely that potential violations would include expenditure of other public resources: employee time, website postings, and the like.”
He went on to say the two provisions are not the only potential consequences for unauthorized use of public resources.
“Depending on the facts of a particular case, unauthorized use of public resources may create a risk of private litigation against the local school entity, and illegal use of public resources for political advocacy may also constitute a violation of the Ethics in Government Act,” he wrote.