December 2009

Alabama Supreme Court

Cancellation of Supplemental Contracts Before the End of the School Year

Supplemental Contracts

Ex parte Birmingham Board of Education, --- So.3d ---, (No. 1071539) (Ala. Nov. 6, 2009)
      This action was brought by teachers who also held supplemental contracts as coaches and activity sponsors. The Board’s typical practice was to cancel such supplemental contracts prior to the end of the school year, but on three occasions, the notice was not given until after the school year ended. Thereafter, the teachers filed suit claiming that the board’s notice was untimely in violation of Ala. Code §16-24-12, a part of the Teacher Tenure Act which requires boards to notify teachers before the end of the school year if their salary will be reduced. The trial court entered summary judgment in favor of the Board and held that Ala. Code §16-24-12 did not apply to the portion of the teacher’s salary which was received for nonteaching duties. 
      The teachers appealed to the Court of Civil Appeals which reversed the trial court and held that Ala. Code §16-24-12 was not limited to the salary for classroom instruction, but the teacher’s entire salary, including that for supplemental employment. See Boone v. Birmingham Board  of Education, --- So.2d ---, 2008 WL 2854818 (Ala.Civ.App. Jul. 25, 2008). The Court of Civil Appeals relied upon Campbell v. Talladega City Board of Education, 628 So.2d 842 (Ala.Civ.App. 1993) which held that a teacher’s coaching contract was not protected by the Teacher Tenure Act and that notice given before the last day of the school year was appropriate pursuant to Ala. Code §16-24-12 and Davis v. Russell, 852 So.2d 774 (Ala.Civ.App. 2002) which relied on the Attorney General’s interpretation of Campbell to hold that a teacher’s coaching contract could not be terminated after the last day of the school year if that contract would result in a reduction of his salary. The Board filed a petition for writ of certiorari to the Supreme Court and asked the Court to review the lower court’s extension of Ala. Code §16-24-12 to nonteaching positions as a matter of first impression. 
      The Court first rejected the lower court’s reliance upon Campbell because, not only were the subject portions of Campbell dicta (“a passing comment which does not bear on the case before the court”), the dicta was incorrect. Specifically, the Court referred to the following passage in Campbell:

      The Court held that the Campbell court’s comment regarding the timing of the teachers’ notifications was dicta because the issue of notification was not before the court. Further, the Court held that the passage was a “non sequitor,” a statement that does not logically follow the idea that precedes it. That is, the Campbell court incorrectly connected its statement regarding the “last day of the school year” with its citation of Ala. Code §16-24-12. By extension, the Court rejected the lower court’s reliance on Davis as it relied on the attorney general’s discussion of Campbell. 
      The Court then looked to the statute to determine the proper meaning of Ala. Code §16-24-12. The Court noted that while the term “salary” as used in Ala. Code §16-24-12 is not defined by the Teacher Tenure Act, the term “teacher” is. The Supreme Court looked elsewhere in the Act to Ala. Code §16-24-1 which defines “teacher” as “all persons regularly certified…[and] employed as instructors, principals or supervisors…” The Court then substituted that definition in the place of the term “teacher” in Ala. Code §16-24-12 and determined that such a construction did not support the decision that teachers performing non-teaching duties are protected by Ala. Code §16-24-12. To do so would violate the clear definition of “teacher.” Accordingly, the Supreme Court reversed the Court of Civil Appeals and held that boards are not obligated to notify teachers that their supplemental contracts will be cancelled before the end of the school year. AASB’s Legal Assistance Fund filed amicus briefs in support of the Board.

Teacher Tenure Act

Ex parte Webb, 2009 WL 3064873 (Ala. Sept. 25, 2009)
      This opinion is a follow-up to a Court of Civil Appeals opinion reported in the June 2009 issue of Court Report [Montgomery County Board of Education v. Webb, 2008 WL 5265042 (Ala.Civ.App. 2008)]. Following an incident that occurred in May 2006 shortly before the end of the 2005/2006 school year, a teacher was placed on administrative leave pending an investigation of the incident. The following school year, the superintendent notified the teacher that she would be recommending his termination based on the May 2006 incident as well as previous incidents which he had been disciplined in the last several years. The hearing officer barred the board from using the May 2006 incident as justification for termination because no action was taken against the teacher before the end of the 2005-2006 school year. Additionally, over the board’s objection, the hearing officer permitted the teacher to relitigate prior disciplinary actions. Following the hearing, the hearing officer reversed the termination, reinstated the teacher to his position and imposed a 10-day suspension without pay for an incident that the teacher was reprimanded for in 2002 as well as the May 2006 incident which the hearing officer determined could still be the basis for some discipline short of termination. As to most of the other prior incidents, the hearing officer ordered them expunged from the personnel file because the teacher had either offered evidence during the hearing that he was not guilty of the offense or claimed he was being disciplined more harshly than other teachers.
      After the board appealed the decision, the Court of Civil Appeals made four holdings: (1) that the board properly provided the teacher with notice of cancellation of his contract since said notice occurred during the school year; (2) that the hearing officer had no authority to relitigate past discipline; (3) that the employee had no right to assert a defense to a prior incident that he did not offer at the time the incident occurred; and (4) that the hearing officer had no authority to expunge the employee’s personnel file of prior discipline. On appeal to the Alabama Supreme Court, the employee argued the case presented a question of first impression: whether the hearing officer was barred from considering evidence regarding past events that have not been the subject of any prior hearing. He also asserted that the Court of Civil Appeals erred in its decision that the hearing officer had no authority to alter or expunge past incidents and infractions from his personnel file. Lastly, he asserted that the Appeals’ Court’s decision related to the timeliness of the termination notice was in conflict with past decisions.
      As to the first question regarding consideration of past events, the Supreme Court first looked to the Teacher Tenure Act which states, “During all hearings conducted before a hearing officer pursuant to this article, the hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years.” Ala. Code §16-24-20(c). The court rejected the board’s argument that “employment history” referred only to the records contained in the teacher’s personnel file. While the court acknowledged the concern raised by the lower court that termination hearings would become extended and protracted if teachers were allowed to litigate past discipline and incidents, it declined to circumvent the clear legislative intent to allow it. Accordingly, the Supreme Court held that the hearing officer properly considered evidence outside of the teacher’s personnel file, including his late-offered defense of past incidents.
      As to the second question, the Supreme Court rejected the teacher’s assertion that the hearing officer had the authority to alter or expunge past incidents from his personnel file.  In making this holding, the court determined that such action would exceed the authority granted the hearing officer pursuant to the Act.
      Lastly, because the court ruled in the teacher’s favor as to the question of consideration of his employment history, he withdrew and the court declined to address his argument regarding timeliness of the termination notice.

State-Agent Immunity/Injury 

Ex parte Yancey, 8 So.3d 299 (Ala. Oct. 31, 2008)*
      The plaintiff was an 11th-grade student who participated in a wrestling class led by a coach.  As part of the class, the students were required to clean the weight room, locker room and bathrooms located in the field house. These duties regularly involved students driving bags of trash to a dumpster in their personal vehicles. In April 2004, several students, including the plaintiff, were taking trash to the dumpster. On this occasion, another student drove his pickup truck, and the plaintiff rode with the trash in the back of the truck with the tailgate down. The plaintiff fell from the bed of the truck and was severely injured. He filed suit against both the driver of the truck as well as the coach. The driver of the truck cross-claimed against the coach, who asserted state-agent immunity against the claims of both students. The trial court rejected his immunity argument and denied summary judgment. The coach appealed.
      According to Ex parte Cranman, 792 So.2d 392 (Ala. 2000), a state agent is immune from civil liability in his personal capacity when his conduct is based upon the exercise of judgment in the discharge of duties imposed by statute, rule or regulation in a variety of tasks, including the educating of students. However, the state agent is not immune from liability if he acts beyond his authority. In this case, the Supreme Court applied the burden-shifting process in the evaluation of the coach’s assertion of immunity. Given that educating students includes, not only classroom teaching, but also supervising and educating students in all aspects of the educational process, the court found that he was engaged in a function that would entitle him to immunity at the time of the student’s injury, especially since he had been given no guidelines in teaching the weightlifting class. However, the court went on to find that the coach exceeded his authority by allowing students to drive their own vehicles when removing trash from the field house. The coach had been provided a copy of the student handbook that prohibited students from going back to their vehicles or to the parking lot without the permission of the principal or assistant principal. Therefore, the court affirmed the trial court and ruled that he did not enjoy state-agent immunity.

Qualified Immunity

Ex parte Madison County Bd. of Educ., 1 So.3d 980 (Jun. 27, 2008)
      A.S., a fifth-grade student, was allegedly raped by her physical education teacher. While she did not report the rape to anyone, she asked and was allowed to move to another P.E. class.  Thereafter, she had no further contact with the teacher. The following semester, A.S. was transferred to another school at the request of her parents. They did not provide school officials with a reason for their request.
      Nearly two years later, A.S., now in middle school, confided in two friends that she had been raped by her former teacher. They encouraged her to report it to the counselor and she did. The counselor notified both the elementary school principal as well as the girl’s parents. The elementary principal notified the personnel director, who immediately put the teacher on administrative leave and went to the middle school to investigate. While the parents refused to allow the girl to be interviewed, the personnel director was able to interview the administrators, the accused teacher and two others who worked in the teacher’s class at the school. The two employees who worked in the teacher’s classroom denied seeing any inappropriate behavior. The personnel director presented his investigation to the superintendent and the decision was made that the student would be offered counseling.
      Prior to these allegations coming to light, the teacher had been investigated by school or board officials for five incidents over a period of 16 years. Each time, he was reprimanded and the incidents were recorded in his file. The incidents varied in severity ranging from commenting that a female high school student was “looking good” to touching high school students on their breasts. Each time, officials took some action to address the complaint, the most severe of which was to transfer the teacher from the high school to an elementary school to keep him away from high school girls. After being placed on leave following the rape allegation, the teacher retired before a decision was made regarding termination.
      A.S. and her parents sued the teacher, the personnel director and the board on several grounds including Title IX and §1983. The board and the personnel director asserted that they were entitled to state-agent, Eleventh Amendment and qualified immunity. The trial court granted summary judgment as to the Title IX claims, but denied it as to the §1983 claim. The defendants sought relief from the Alabama Supreme Court.
      The board first argued that it was immune from suit under §1983 pursuant to the Eleventh Amendment. The court looked to state law to determine if the board was an arm of the state and therefore entitled to immunity with respect to the board’s authority to transfer or terminate the teacher’s employment. The court considered four questions: (1) state law’s definition of “county board of education,” (2) the state’s degree of control over county boards; (3) where county boards received their funds and (4) who paid judgments entered against county boards. As to the first question, the court found that the state’s definition was not supportive of a county board being considered an arm of the state as it relates to its authority to take personnel actions. As to the degree of control, the court found that the Legislature specifically gave county boards the authority to discipline teachers, which also weighed against the argument that county boards are arms of the state. As to the funding, the court rejected the board’s argument that all public school funds are state funds as previously determined by the Court in Mobile, Ala.-Pensacola, Fla. Bldg. & C.T.C. v. Williams, 331 So.2d 647, 649 (Ala. 1976 ). Rather, the court found that this declaration was not determinative of where county boards actually derive their funds. Lastly, relying on the previous factor regarding the source of county board funds, the court similarly determined that the question relating to judgments belied the assertion that county boards were arms of the state. Based on these factors derived from Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003), the court determined that the board was not entitled to Eleventh Amendment immunity.
The personnel director argued that he was immune from §1983 because he was entitled to qualified immunity. Since there was no dispute that the personnel director was performing discretionary functions, the court sought to determine if his actions violated the child’s constitutional rights. The court determined that while the personnel director’s actions could, at most, be deemed negligent, they were not deliberately indifferent. Accordingly, he was entitled to qualified immunity.

Court of Civil Appeals Opinions

Fair Dismissal Act/Findings of Fact

Bishop State Community College v. Thomas, 13 So.3d 978 (Ala. Civ. App. Nov. 21, 2008)*
      An employee of Bishop State suffered several legal problems unrelated to his employment with the college. He was impeached from his position as a commissioner on the county school board for allegedly using his office to obtain public funds and services for his personal use.  Additionally, he pleaded guilty to leaving the scene of an accident, a class C felony. Finally, he pleaded guilty to using his official position for personal gain, a class A misdemeanor. However, despite his legal troubles, he continued working at the college as the Director of Adult Education and Economic Development. He also continued to receive satisfactory evaluations, although his subsequent evaluations referenced his difficulties in his relationships with other people, which stemmed from his publicized legal troubles. Notwithstanding these evaluations, the college maintained him as an employee for over a year after his legal trouble ended. Ultimately, however, the college initiated termination proceedings and stated that it intended to terminate his pay and his employment based on his felony conviction, his impeachment as a county school board member and his overall ineffectiveness due to the lack of confidence and respect of others.  He subsequently appealed his termination to a hearing officer. Following the hearing, the hearing officer held that his employment had been terminated without good or just cause, finding that despite his legal problems, he had properly performed his job duties. He was ordered reinstated with back pay and the college appealed.
      The Court of Civil Appeals reversed the hearing officer’s decision, holding that the hearing officer failed to consider the other two reasons proffered by the college for its decision to terminate, specifically his felony conviction and his impeachment from the county school board.  Since the Fair Dismissal Act allows termination for “good and just cause,” which refers to “any cause which bears a reasonable relation to the teacher’s fitness or capacity to discharge the duties of his position” [Quoting Alford v. Ingram, 931 F.Supp. 768, 772 (M.D. Ala. 1996)], the hearing officer should have made a specific determination as to whether the employee’s impeachment or felony conviction justified his termination. The Fair Dismissal Act specifically requires the hearing officer to make findings of fact on the issues litigated by the parties. Since the hearing officer did not make findings of fact regarding all of the issues presented in the case before him, the Court of Civil Appeals reversed and remanded the case back to the hearing officer for further consideration.
                          

Service of Process

Montgomery County Board of Education v. Addison, 3 So. 3d 885 (Ala. Civ. App. Aug. 15, 2008)*
      A former administrator brought a breach of contract action against the board related to a personnel action. After the board failed to answer or otherwise respond, the administrator moved for default judgment. After the trial entered the default judgment, the board moved to set aside the judgment asserting that it had not been properly served. The trial court denied the motion and the Board appealed.
      The Court of Civil Appeals noted that Alabama Rule of Civil Procedure 4(c)(8) requires that service of process shall be made upon governmental entities such as school boards by serving the Chief Executive Officer or the Clerk, or person designated by appointment or by statute to receive service of process. In this case, the complaint had been served on an employee of the board.  While it was undisputed that he was neither the Chief Executive Officer nor Clerk for the Board, the plaintiff asserted that the employee was a department director and was therefore an officer of the board. Even assuming that the employee was a director, service on him could not have perfected service. Since “strict compliance with the rules regarding service of process is required,” service was not perfected upon the board and the default judgment was set aside. Citing Ex parte Pate, 673 So. 2d 427 (Ala. 1995).

Attorney General’s Opinion

Dissemination of Correspondence

Ala. Op. Atty. Gen. No. 2009-102 (Sept. 8, 2009)
      An opinion was requested regarding when a superintendent is obligated to share correspondence mailed to him with his board members.  Four scenarios were presented: (1) If a person addresses a letter to the superintendent alone, but asks that he provide a copy of the letter to the board members, must he do so? (2) If a person addresses a letter to the superintendent alone and asks that he provide a copy of the letter to board members, but the letter involves a personnel matter that might come before the board, must he do so? (3) If a person addresses a letter to the superintendent and board members, but mails it to the superintendent and asks that he provide a copy to the board members, must he do so? and (4) If a person addresses a letter to the superintendent and board members and asks that he provide a copy to the board members, but the letter involves a personnel matter that might come before the board, must he do so?
      The Attorney General opined that the superintendent should use his discretion when determining when to share correspondence with board members that deals with potential personnel issues. However, absent concerns over personnel matters that may eventually come before the board, the superintendent should disseminate mail addressed to the board members in a timely manner irrespective of to whom the letter is addressed or mailed.

Eleventh Circuit Court of Appeals    

Qualified Immunity

Davis v. Carter, 555 F.3d 979 (11th Cir. Jan. 23, 2009)*
        The parents of a high school student who died after a rigorous football practice filed suit against the State of Georgia, the school district and the football coaches at the school. The complaint alleged that the coaches failed to provide enough water to keep the boy hydrated, ignored both the warning signs and the boy’s complaints that he was becoming dehydrated, subjected him to rigorous conditioning drills at the end of a two-hour practice and failed to attend to him until after a team meeting, even though he had collapsed in the middle of the drills.  While the practice was admittedly voluntary, the parents alleged that had their son not performed all the exercises and activities in the workout, he would have been subjected to discipline from the coaches, such as additional drills, exclusion from try-outs or demotion to the junior varsity team. After the defendants filed a motion to dismiss, the trial court dismissed all of the defendants except for the coaches, specifically finding that they were not entitled to qualified immunity. The coaches appealed to the 11th Circuit.
        The 11th Circuit reversed the trial court and held that the coaches were entitled to qualified immunity, given that the facts alleged in the complaint did not show a violation of the boy’s substantive due process rights. Conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience-shocking in a constitutional sense. In this case, the court found that the boy had voluntarily participated in the extracurricular after-school activity and no custodial relationship existed between him and the school. The allegations in the complaint did not support a finding that the coaches acted willfully or maliciously with intent to injure. Rather, while the facts alleged that the coaches were deliberately indifferent to the safety risks posed by their conduct to the players, the court found that the allegations did not rise to the conscience-shocking level required for a constitutional violation.           

Immunity

Andrews v. Monroe County Board of Education, 299 Fed.Appx. 937 (11th Cir. Nov. 10, 2008)*
      In this case, the 11th Circuit addressed the question of whether a middle school principal enjoys either qualified or state-agent immunity when being sued for allegations stemming from sexual misconduct by a teacher against a middle school student. In January 2000, a student’s mother reported to the principal that her daughter had made allegations of sexual molestation by a teacher. The principal immediately convened a meeting with the teacher, the student and her mother. During that meeting, the student repeated the allegations, but the teacher denied that they were true. Thereafter, the principal occasionally looked in on the teacher’s classroom and monitored his interaction with the students between classes and in the hallways. The student later alleged that she had been further abused by the teacher after the meeting with the principal.   

      The school’s sexual harassment policy requires, in relevant part, that upon learning of a complaint (1) the principal shall start an immediate investigation into the matter, and (2) the completed investigation shall be reviewed by the superintendent or his designee and legal counsel for prompt and appropriate action, if warranted. 

      The principal moved for summary judgment asserting that he was entitled to qualified immunity and state-agent immunity, but the trial court denied his motion. Upon review, the 11th Circuit stated that in order to establish the defense of qualified immunity, the burden is first upon the defendant to establish that the allegedly unconstitutional conduct occurred while he was acting within the scope of his discretionary authority. In order for challenged actions to be within the scope of discretionary authority, the defendant must show that those actions were (1) undertaken pursuant to the performance of his duties, and (2) within the scope of his authority.   The 11th Circuit determined that the principal acted within his discretionary authority as investigating and reporting complaints of sexual harassment were clearly within the principal’s duties. Further, the means utilized to accomplish these duties were within his authority, even if he did not do all that was required of him. Therefore, the 11th Circuit found that the principal acted within his discretionary authority and remanded the case to the trial court for determination of whether his actions violated clearly established constitutional law.
      However, the 11th Circuit found that the principal was not entitled to state-agent immunity.  State-agent immunity applies when the claim is based on the exercise of judgment in the discharge of duties imposed by statute, rule or regulation in the educating of students. However, a state agent is not immune from civil liability when he willfully acts beyond his authority. In this case, the court found that the school’s policy imposed an affirmative duty on the principal to investigate complaints of sexual harassment and submit a completed investigation to the superintendent for review. Since the principal failed to do so, he acted beyond his authority and therefore was not entitled to state-agent immunity.

Special Education

Roy v. Fulton County School District, 288 Fed.Appx. 686 (11th Cir. Aug. 8, 2008)*
A special education student and his father filed suit against this school, complaining of due process and equal protection violations arising from the student’s eight-day suspension from school. The trial court dismissed their claims, and the plaintiffs appealed to the 11th Circuit. Regarding the due process claims, the 11th Circuit found no violation under the federal guidelines set forth in Goss v. Lopez, 419 U.S. 565 (1975).  Since the student was suspended for fewer than 10 days, the process required only oral or written notice of the charges against him, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The court determined the board provided at least this level of due process prior to suspension. The court also ruled in the board’s favor on the equal protection claim brought by the student. While a student of a different race was subjected to less discipline than this student, the allegations against the other student were significantly different, and therefore, the other student did not qualify as a similarly-situated individual.     

Pledge of Allegiance

Frazier v. Winn, 535 F.3d 1279 (11th Cir. Jul. 23, 2008)*
This First Amendment case challenged the Florida statute which requires all students from kindergarten through 12th grade to stand at attention while reciting the Pledge of Allegiance.  While the statute provides that students may be excused from reciting the pledge upon written request by the student’s parent, the statute dictates that all “civilians” are obligated to stand during the pledge, even if they have been excused from reciting it. The trial court ruled in favor of the plaintiff-student finding that the statute was unconstitutional and the state education defendants appealed. The 11th Circuit, following Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) agreed with the trial court and found that the requirement that all students stand at attention during the pledge, including those who have been excused, is unconstitutional as it violates the First Amendment. However, the court rejected the student’s argument that the portion of the statute requiring students to obtain parental permission to be excused “too broadly deter[red] free speech.” Accordingly, the court exercised its authority to sever the unconstitutional portion which required students to stand, but retain the remainder of the statute obligating student’s to recite the pledge unless they have permission from a parent to decline.

*Opinion summaries marked with an asterisk were copied in part from the “Education Law Update” provided during the 2009 ACSBA Summer Conference, with permission.

— Jayne Harrell Williams

Jayne is with the law firm of Hill, Hill, Carter, Franco, Cole & Black in Montgomery, Ala.

info@alabamaschoolboards.org

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