Read the December 2013 issue of Court Report, which includes such topics as immunity-student abuse, the Students First Act-notice, hearing officer authority and sick leave. This newsletter is an ACSBA member benefit.

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December 2013 Issue of Court Report

Alabama Supreme Court

• Immunity - Student Abuse
  

Ex parte Bessemer City Board of Educ., 2013 WL 6048731 (Ala. Nov. 15, 2013)

In this case, a student and his parent filed suit against the board, a middle school and the school’s principal in his individual capacity. The student claimed that he had suffered sexual abuse by an unidentified man as a result of the defendants’ negligence. The board filed a motion to dismiss the suit on the grounds that it was entitled to absolute immunity. The motion also asserted that the school was not a separate legal entity from the board. The court denied the motion to dismiss and the board (and school) filed a petition for writ of mandamus to the Supreme Court of Alabama.

Relying on the recent Ex parte Phenix City Board of Educ., 67 So.3d 56 (Ala. 2011), the Court held that city boards of education are local agencies of the state and are therefore entitled to absolute immunity from suit. The Court rejected the student’s claims that the state agent immunity provisions set out in Ex parte Cranman, 792 So.2d 392 (Ala.2000) should control here. State agent immunity provisions govern claims against individuals; not against state agencies like the board. The Court also agreed that the school was not a separate legal entity from the board. Accordingly, it was due to be dismissed from the action. The Court granted the defendants’ petition and remanded the case to the trial court to enter an orderdismissing them from the case.

Alabama Court of Civil Appeals

• Students First Act - Notice

Cox v. Mobile County Board of School Comm., 2013 WL 5583630 (Ala.Civ.App. Oct. 11, 2013)

In this case, the board held a hearing on the superintendent’s recommendation to terminate a teacher pursuant to the Students First Act. At the end of the hearing, the board voted to uphold the superintendent’s recommendation in the presence of the teacher. The Act provides that the superintendent must give written notice of the board’s decision within ten days of its vote. Written notice was not provided for three weeks. The teacher appealed to a hearing officer who upheld the board’s decision. The hearing officer held that while the written notice was provided late, there was no language in the Act that suggested the late notice was fatal and that the late notice did not adversely impact the teacher’s due process or appeal rights. The hearing officer furtherheld that the termination was not based on personal or political reasons.The teacher appealed to the Court of Civil Appeals arguing that the board abandoned its termination decision by providing her late notice and erred in finding that her termination was not based on personal or political reasons.

After noting its obligation to be “extremely deferential” to the hearing officer’s decision, the Court first addressed the issue of the late notice. The Court determined that the ten day provision was“directory rather than mandatory”. It noted that the purpose of the notice was to prevent the teacher from being placed in a “position of limbo”. The teacher here was not because she was fully aware of the board’s vote to terminate her since she was present when the board made its decision. Lastly, the Court noted that the teacher timely filed her Notice of Appeal as further evidence that she was not prejudiced by the late notice. As to the teacher’s claim that the board terminated her for personal and political reasons, the Court determined that the board was the trier of fact, and that absent a clear showing that the hearing officer’s determination was arbitrary and capricious, the decision would stand. Accordingly, the hearing officer’s decision was upheld. The teacher has asked the Court to reconsider its opinion on rehearing, but no decision has been made.

• Students First Act - Hearing Officer Authority

Lambert v. Escambia County Board of Educ., 2013 WL 5583739 (Ala. Oct. 11, 2013)

In this case, the superintendent recommended an employee’s termination after a loaded handgun was found in a bag in his office.The employee argued that he had inadvertently brought the gun on campus. While the employee had no disciplinary history, the board had a policy that possessions of weapons on school property would lead to suspension or termination. After a hearing was held, the board upheld the superintendent’s recommendation and terminated the employee. The employee appealed to a hearing officer. In his decision, the hearing officer expressed that he believed a lesser punishment was warranted, but in light of his duty to give deference to the board’s decision and in light of the limitation upon his authority to only reverse or uphold the board’s decision, he upheld the termination. The employee appealed to the Court of Civil Appeals.

The employee argued that the hearing officer gave too much deference to the board’s decision. The employee also argued that the hearing officer could remand the decision to the board for imposition of a lesser punishment. In addressing the deference argument, the Court noted that the legislative intent of the Students First Act included “restoring primary authority and responsibility” in boards for employment decisions and “eliminating costly, cumbersome and counterproductive legal challenges to routine personnel decisions”. The Court held that the hearing officer appropriately afforded deference to the board’s wishes based on the record presented to him. The fact that the hearing officer would have reached a different conclusion was not a basis upon which to overturn the decision. To do so would have been to substitute his judgment for that of the board. Accordingly, the Court upheld the hearing officer’s decision. The Legal Assistance Fund filed an amicus brief with the Court.

• Sick Leave

A.G.Op. 2014-020

This opinion addressed a common issue facing boards regarding sick leave. On occasion, long-time employees who are planning to retire will seek to use their accumulated sick leave to stay off from work for several weeks or months until the effective date of their retirement. This board asked whether this use of sick leave is appropriate. Ala. Code §16-1-18.1(a)(4) provides that sick leave can only be used for specified reasons, such as personal illness or injury, illness of a family member or death of a family member. The opinion concludes that the board can prohibit the use of sick leave which is not being used for the specified reasons.

Matters of Interest

Walker v. Jefferson County Board of Educ., 2013 WL 4056224 (N.D.Ala. Aug. 12, 2013)

Weaver v. Madison City Board of Educ., 2013 WL 4433799 (N.D.Ala. Aug. 14, 2013)

These two cases were filed in the Northern District of Alabama. The Weaver case related to an employee’s suit against a board alleging violation of the USERRA statute which provides certain protections to employees who are called away for military service. The Walkercase involved claims bought pursuant to the Fair Labor Standards Act. Both boards moved to dismiss the lawsuits on the grounds that they were entitled to Eleventh Amendment immunity. The Walker court granted the motion to dismiss. The Weaver court denied the motion. Both cases are now under appeal to the Eleventh Circuit. The LAF has agreed to join the cases as amicus curiae.

— Jayne Harrell Williams

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

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