Read the September 2013 issue of Court Report, which includes a look at Students First Act notices. This newsletter is an ACSBA member benefit.

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September 2013 Issue of Court Report

• Students First Act - Notice

Taylor v. Huntsville City Board of Education, 2013 WL 4290153 (Ala.Civ.App. Aug. 16, 2013)

In this case, the superintendent made a recommendation to terminate a tenured teacher. The superintendent provided statutory notice by both certified mail and took the extra step of providing notice by regular mail advising the teacher that she had 15 days to contest the recommendation. When the time to contest the recommendation expired and the teacher had not filed a notice of contest, the Board voted to uphold the superintendent’s recommendation. The following day, a letter notifying the teacher that the board upheld the termination was hand-delivered to the teacher at the school. The teacher denied receiving the initial notice and requested a hearing. After the board declined that request, the teacher filed a direct appeal claiming that she had been denied notice and a hearing. The board argued that it had complied with provisions of the Students First Act with respect to notice, but the administrative law judge found in the teacher’s favor finding that, even if the board complied with the notice provisions of the Act, the board had established only a rebuttable presumption of receipt and that the teacher had rebutted that presumption by offering testimony from her neighbors that mail was often misdelivered by their postal carrier, that the USPS tracking system indicated that the teacher had moved when she had not, as well as other evidence.

The board sought review of the ALJ’s ruling in circuit court. The circuit court held that the notice provisions of the Act were unambiguous and that the ALJ placed a burden upon the board that the Act did not. The teacher then appealed to the Court of Civil Appeals.

The Court of Civil Appeals ruled in favor of the teacher, holding that the Act’s establishment of a conclusive presumption that an employee has received a notice within two days of mailing is violative of an employee’s right to due process. According to the Court, due process requires more than a “mere gesture” of notice. The Court determined that the two day mailing rule amounted to a “mere gesture”. Moreover, the Court determined that because the Act placed the burden on the employee to demonstrate that notice was not provided, the Act created a rebuttable presumption rather than a conclusive presumption. In this case, the Court determined that the teacher presented sufficient evidence that the notice was misdelivered to rebut the presumption of delivery. Therefore, the Court ordered that the teacher be provided a hearing by the board.

The board is seeking review of this decision by the Alabama Supreme Court.

• Students First Act - Notice

Jackson v. Geneva County Board of Education, 2013 WL 4614970 (Ala.Civ.App. Aug. 30, 2013)

In this case, the probationary teacher was nonrenewed from her employment. She filed an action in circuit court against the board, its members and the superintendent claiming that she was nonrenewed for political and personal reasons. The board defendants moved to dismiss the teacher’s complaint on the grounds that the personal or political prohibition found in Ala. Code §16-24C-4 did not apply to probationary employees. Additionally, the board defendants argued that they were entitled to absolute immunity pursuant to the Alabama Constitution.The circuit court agreed with the board’s arguments and dismissed the teacher’s suit. The teacher appealed to the Court of Civil Appeals.

In its decision, the Court of Civil Appeals determined that the circuit court properly held that the personal and political prohibition in Ala. Code §16-24C-4 did not apply to probationary employees. Applying the rules of statutory construction, it determined that the controlling provision was Ala. Code §16-24C-5 which specifically addresses the termination of probationary employees and provides that such termination shall be at the discretion of the employer.

— Jayne Harrell Williams

Jayne is a shareholder with the law firm of Hill, Hill, Carter, Franco, Cole & Black

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