Cherokee County School Board Attorney Thomas A. Roach Jr. represented the local board’s case for upholding the sanction on Marlow, when arguments on the appeal were heard in Atlanta.
Marlow’s main arguments to overturn the sanction and $3,600 fine was that the policy was inaccurate and her free speech was being silenced.
Marlow was sanctioned by the Cherokee County Board of Education on Oct. 2 for violating its code of ethics policy, and appealed the local board’s decision to the Georgia Department of Education on Nov. 1.
Roach and Marlow each presented their case to attorney K.P. Reddy of the Reddy Law Firm, who was contracted by the state Department of Education to make a recommendation to the state board.
Matt Cardoza, spokesman for the state Department of Education, said Reddy will make a recommendation to the state Board of Education based on the briefs filed by each party and their arguments made Monday.
“K.P. does not work for the State DoE, but he is contracted through us as a hearing officer. He will give a recommendation to the board, who will make the ultimate decision,” Cardoza said. “The board may vote at the February board meeting.”
Cardoza said the state Board of Education will have 25 days from the time the case is presented to them to make a decision.
Marlow said during the appeal she believed there was a clear problem with the policy she was found in violation of at the Oct. 2 code of ethics hearing in front of the Cherokee Board of Education.
“Mr. Roach, his staff and the administration continue to refer to ‘Domain 7’ of our board policy as ‘conduct as a board member,’ when it is clearly not ‘conduct as a board member.’ The title of that domain is ‘financial governance,’” Marlow said at the appeal hearing. “Our school board policy is inaccurate.”
Roach said the policy adopted by the Cherokee Board of Education “is identical to the model developed by the state board.”
“It appears that Domain 7 does address financial governance. It has one item under it, denoted with a number ‘1’, which speaks to financial governance. Under that is ‘Conduct as a board member’ and it has six items, which, if you try to engraft the term ‘financial governance’ within any of those statements, it becomes nonsensical,” Roach said. “I can’t imagine the intent of that policy was to limit the interpretation of ‘conduct as a board member.’”
Roach said Marlow’s complaint letter to AdvancEd, the agency in charge of accreditation, made many serious allegations that put the board and school district at risk.
“What Ms. Marlow did is send a letter to AdvancEd in which she made several, pretty serious allegations against the board chair and the board, and never did she address those concerns to the Board of Education,” Roach said.
Marlow said she was sanctioned for the “act of sending a letter,” and if the sanction is upheld, “the effect would be chilling.”
“It will send a message that the voice of the minority does not matter,” she said. “It’s not OK for a member, who is in the minority, to speak up when they see something wrong. To not be able to say, ‘I smell smoke, I think there may be a fire.’”
Roach said the “matter of free speech in this context is quite complicated.”
“It’s hard enough with some legal training to understand, let alone somebody who doesn’t,” Roach said. “The context of the regulation of Ms. Marlow’s speech is of ‘reasonable time, place and manner.’ It’s unreasonable for Ms. Marlow, without the authority of the board, to ask AdvancEd to come in and conduct an investigation. It’s certainly not unreasonable for Ms. Marlow to raise these concerns with the media, to raise these concerns to her fellow board members, to raise these concerns in a board meeting. None of that was done.”
The agency later cleared the school district of any violations.
Marlow identified herself in the first sentence of her letter to AdvancEd, and signed her letter “Kelly Marlow, Cherokee County Board of Education, District 1.”
“I am a sitting board member in Cherokee County,” Marlow’s letter to the director of the agency began.
Marlow said she identified herself as a board member because she agreed “to be public” in her actions.
“In no way, shape or form did I say I was acting on behalf of the board,” Marlow said.
Roach said he asked if Marlow shared her letter with the media, and she said no. Roach also said Marlow had no right to free speech, unless it was made as a private citizen.
“She doesn’t have free speech. … She has to speak as a citizen, not as a public employee,” Roach said. “The First Amendment is not intended to shield politicians from the political process. In other words, you make your statements, you take your shots in the political arena, and you bear the responsibility for those political things.”
Marlow argued that she has the right to use free speech, complain and whistle-blow.
“I believe it is my responsibility as a board member,” Marlow said. “I believe that this action taken by the board was retaliatory.”
Roach said for Marlow to believe it was her right of free speech to send the letter to AdvancEd asking for an investigation of the district “is just not the law.”
Roach said the local board’s response to Marlow sending the letter to AdvancEd was not retaliatory, but reactionary, and “clearly, Ms. Marlow’s actions in sending a letter to AdvancEd was political.”
“If she really had the concerns that she expressed, she would be talking with the media, she would be talking to others, she would copy the media on these letters. The only people she copied on her letter is other politicians,” Roach said. “Practically every elected official in Cherokee was copied on her letter.”
On Oct. 2, the Cherokee School Board agreed Marlow had violated two policies. The board voted 5-2, with Marlow and School Board member Michael Geist opposed, that Marlow violated the first policy in question.
“Recognize that the authority of the board rests only with the board as a whole and not with individual board members and act accordingly,” the first policy reads.
The board also voted 6-1, with Marlow opposed, that she violated the second policy in question.
“Take no private action that will compromise the board or school system administration,” the second policy reads.
Marlow said the school board has policies for a reason.
“I believe I followed the school board policies,” Marlow said.
Roach said there are “acceptable ways for people in the minority to deal with politics,” but in this instance, Marlow tried “to bend the will of the majority.”
“This was outside the realm of those acceptable things,” Roach said.