Read the February 2016 issue of Court Report, which includes such topics as use of subpoenas, private advertisements and competitive bids. Click the case names to read the complete opinions. This newsletter is an ACSBA member benefit.

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February 2016 Issue of Court Report

 

Alabama Court of Civil Appeals

• Students First Act – Use of Subpoenas

Calhoun Community College v. Hudson, -- So.3d --, 2015 WL 7356423 (Ala. Nov. 20, 2015)

This case began when the community college attempted to transfer a tenured employee following the elimination of a program. Because the transfer would have resulted in a decrease in salary, the employee was notified of his right to a hearing pursuant to the Students First Act. Within that notice, the president advised the employee that any requests for subpoenas must be submitted by a certain date approximately two weeks before the scheduled hearing date. The instructor did not request any subpoenas by the designated. The original hearing was ultimately rescheduled for a later date at the request of the employee’s attorney. Several days prior to the rescheduled hearing, the employee requested the president issue multiple subpoenas. She refused to do so because the request was late. Following the hearing, the transfer was approved and the employee appealed to a hearing officer. The hearing officer reversed the transfer holding that the president denied the employee due process when she refused to issue the requested subpoenas. The college appealed to the Court of Civil Appeals.

While the Court was critical of the employee’s attorney for missing the initial deadline for requesting subpoenas, it found the president erred in refusing the issue the requested subpoenas once the hearing date was rescheduled, especially since the subpoenas sought only testimony rather than production of documents. Nevertheless, the Court reversed the hearing officer’s ruling that the employee should be reinstated to his now-defunct position. The Court held that the proper remedy was for the hearing officer to remand the case, require the president to issue the requested subpoenas and hold a new hearing.

 

• First Amendment – Private Advertisements

The Happy Fun Math Tutor v. School Board of Palm Beach County, Fla., 806 F.3d 1070 (11^th Cir. Nov. 23, 2015)

This case involved the right of a school board to remove a business’s banner from school property. The district adopted a program which permitted it to recognize sponsors of school programs by hanging banners on school fences consistent with its policy and educational mission. The sponsors were not required to purchase space, but were required to make minimum donations to the schools or its programs. In this case, the tutoring business sought the ability to place its banners on the fences at three schools. The owner complied with the district’s requirements regarding size, color and content and the banners were hung. Upon discovering that the tutoring business shared a mailing address and principal place of business with the owner’s pornography business, the schools removed the banners as inconsistent with the educational mission of the board. The owner sued the board claiming it violated his First Amendment right to free speech. The district court ruled in favor of the board on summary judgment, holding that the board did not act based on the content of the speech, but on the tutoring company’s connection to the pornography business, which is not a violation of the First Amendment. The owner appealed.

The Eleventh Circuit agreed that the district court had reached the correct result in ruling for the board, but for a different reason. The owner argued that the banners were private speech in a limited public forum which is protected by the First Amendment. The board argued that the banners were government speech and therefore not subject to the First Amendment. The Eleventh Circuit looked to three factors to determine whether the banners constituted government speech: 1) whether the banners historically communicated a government message; 2) whether the government had endorsed the message; and 3) whether the government controlled the message. While there was little historical evidence to support the banner program as government speech, the evidence strongly suggested that the school endorsed and controlled the banner messages. In light of these factors, the Court concluded that the banners are government speech and therefore not protected by the First Amendment.

 

Attorney General’s Opinions

• Competitive Bids

Atty. Gen. Op. No. 2016-015 (Dec. 8, 2015)

In this opinion, the Attorney General considered whether a school system was required to competitively bid a contract for extensive computer networking and software assistance. The opinion noted that all boards must competitively bid expenditures for services or items exceeding $15,000 unless the expenditure falls into one of three exceptions: 1) contracts for services involving a high degree of professional skill, 2) purchases of certain computer hardware and custom software, and 3) single source providers. Ala. Code §16-13B-2. The Attorney General’s Office has previously determined that computer engineers performing complex services satisfies the first exception regarding professional skills. A.G. No. 90-121. The Office has also determined that customized software is exempt under the second exception, especially when the software has to be modified to suit the board’s needs. A.G. No. 94-023. Based on these exceptions, the opinion determined that the proposed contract fell within the exceptions to the competitive bid law. 

 

 

— Jayne Harrell Williams

Jayne is General Counsel & Director of Legal Advocacy for the Alabama Association of School Boards

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