NO.

2080784

IN THE ALABAMA COURT OF CIVIL APPEALS

________________________________

BIRMINGHAM CITY BOARD OF EDUCATION,

Appellant,

vs.

CARLA HAWKINS,

Appellees.
________________________________

On Appeal from the Circuit Court of Montgomery County

________________________________

BRIEF OF THE APPELLEE

________________________________

Gayle H. Gear Sam Heldman

2229 Morris Avenue
Birmingham AL 35203
(205) 254-3995
fax (205) 254-3729
ghgear@bellsouth.net
The Gardner Firm, P.C.
2805 31st St. NW
Washington DC 20008
(202) 965 8884
fax (202) 318-2445
sam@heldman.net
 Statement Regarding Oral Argument

Although the case presents an issue that will be of

great importance to many teachers throughout the State,

oral argument is not necessary because the issues are

adequately presented in the briefs. Furthermore, the

decision of the Administrative Law Judge, affirmed by the

Circuit Court, was clearly correct as a matter of law.

i
 Table of Contents

Statement Regarding Oral Argument . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . iii

Statement of the Case . . . . . . . . . . . . . . . . . 1

Statement of the Issue . . . . . . . . . . . . . . . . 5

Statement of the Facts . . . . . . . . . . . . . . . . 5

Statement of the Standard of Review . . . . . . . . . . 7

Summary of the Argument . . . . . . . . . . . . . . . . 8

Argument . . . . . . . . . . . . . . . . . . . . . . . 10

1. The language of the Tenure Law demonstrates that

a person who has attained tenure is entitled to
notice and hearing under the Law before being
terminated on the grounds of loss of certification,
just as when the termination is based on any
other grounds. . . . . . . . . . . . . . . . . . . 11

2. Existing precedent, and relevant constitutional

considerations, support our position. . . . . . . 22

3. The Teacher Tenure Law is to be read as a whole,

and is to be liberally construed in favor of
teachers in light of its recognized purpose of
securing permanency in the teaching workforce. . . 30

4. A direct appeal to an Administrative Law Judge

is the proper way for an employee such as Ms.
Hawkins to enforce her right to notice and
hearing. . . . . . . . . . . . . . . . . . . . . . 35

Conclusion . . . . . . . . . . . . . . . . . . . . . . 40

Certificate of Service . . . . . . . . . . . . . . . . 41

ii
 Table of Authorities

Ala. Ass’n of School Boards v. Walker,

492 So.2d 1013 (Ala. 1986) . . . . . . 13, 26-28, 36

Alabama Dep't of Envtl. Mgmt. v. Legal Envtl.

Assistance Found., Inc., 973 So. 2d 369
(Ala. Civ. App. 2007) . . . . . . . . . . . . . . 30

Ex parte Athens State College, 795 So.2d 709

(Ala. 2000) . . . . . . . . . . . . . . . . . . . 31

Barger v. Jefferson County Board of Ed.,

372 So.2d 307 (Ala. 1979) . . . . . . . . . . . 22-24

Board of Ed. of Marshall County v. Baugh,

240 Ala. 391, 199 So. 822 (Ala. 1941) . . . . . . 31

Bd. of School Comm’rs v. Biggs, 939 So.2d 942

(Ala. Civ. App. 2006) . . . . . . . . . . . . . . 37

Boone v. Birmingham Board of Education, ___ So.3d ___,

2008 Ala. Civ. App. LEXIS 723
(Ala. Civ. App. 2008) . . . . . . . . . . . . . . 30

Ex parte Dunn, 962 So.2d 814 (Ala. 2007) . . . 18, 21, 24

Edwards v. Kia Motors of America, Inc.,

8 So.3d 277 (Ala. 2008) . . . . . . . . . . . . . 33

Frey v. Adams County School District No. 14,

804 P.2d 851 (Col. 1991) . . . . . . . . . . . . . 25

Golden v. Alabama State Tenure Comm’n,

718 So.2d 73 (Ala. Civ. App. 1998) . . . . . . . . 31

Grogan v. Hillman, 930 So.2d 520

(Ala. Civ. App. 2005) . . . . . . . . . . . . . . 34

Hammond v. Bailey, 394 So.2d 25

(Ala. Civ. App. 1980) . . . . . . . . . . . 13, 25-26

iii
Holland v. Pearson, ___ So.3d ___, 2008 Ala. Civ. App.
LEXIS 767 (Ala. Civ. App. 2008) . . . . . . . . . 39

Ex parte Jackson, 625 So.2d 425 (Ala. 1992) . . . . . 35

L.L.M. v. J.M.T., 964 So.2d 66 (Ala. Civ. App. 2007) . 34

Lattimore v. Lattimore, 991 So.2d 239

(Ala. Civ. App. 2008) . . . . . . . . . . . . . . 34

Ledbetter v. Jackson County Board of Education,

508 So.2d 244 (Ala. 1987) . . . . . . . . . . . . 28

Long v. Bryant, 992 So.2d 673 (Ala. 2008) . . . . . . 34

Madison County Board of Ed. v. Wilson,

___ So.2d ___, 2008 Ala. Civ. App. LEXIS 542
(Ala. Civ. App. 2008) . . . . . . . . . . . . . . 37

Mason v. Huntsville City Board of Ed.,

591 So.2d 860 (Ala. Civ. App. 1991) . . . . . . . 28

Ex parte Oden, 495 So.2d 664 (Ala. 1986) . . . . . 28-29

Oxford City Bd. of Ed. v. Hubbert,

627 So.2d 459 (Ala. Civ. App. 1993) . . . . . . . 31

Rogers v. Tenure Commission, 372 So.2d 1313

(Ala. Civ. App. 1979) . . . . . . . . . . . . . . 29

S. Ala. Skills Training Consortium v. Ford,

997 So.2d 309 (Ala. Civ. App. 2008) . . . . . 7, 39-40

Springfield v. Talladega City Board of Education,

628 So.2d 704 (Ala. Civ. App. 1993) . . . . . . . 16

Tenure Comm’n v. Madison County Board of Education,

282 Ala. 658, 213 So.2d 823 (Ala. 1968) . . . . . 31

USX Corp. v. Bradley, 881 So.2d 421 (Ala. 2003) . . . 34

iv
Ala. Code § 16-23-1 . . . . . . . . . . . . . . . . . 17

Ala. Code § 16-24-1 et seq., Teacher Tenure Law . . passim

Ala. Code § 16-24-1 . . . . . . . . . . . 13, 15, 28, 32

Ala. Code § 16-24-2 . . . . . . . . . . . . . . . . 14-15

Ala. Code § 16-24-3 . . . . . . . . . . . . . . . . 12-14

Ala. Code § 16-24-9 . . . . . . . . . . . . . . . passim

Ala. Code § 16-24-10 . . . . . . . . . . . . . . . passim

Ala. Code § 16-24-21 . . . . . . . . . . . . 1, 2, 35, 37

Ala. Code § 36-26-100 et seq.,

Fair Dismissal Act . . . . . . . . . 3, 7, 16, 35-40

Ala. Code § 36-26-115 . . . . . . . . . . . . . . . . 39

v
 Statement of the Case

Carla Hawkins has taught in the Birmingham City school

system for more than a dozen years, and she undisputedly

attained tenure in the system under the Teacher Tenure Law

more than ten years ago. The Board of Education now

claims, however, that it can terminate her without

following the procedures of the Tenure Law – without giving

notice under Ala. Code § 16-24-9, and without allowing a

hearing under § 16-24-10 before a Hearing Officer. The

basis for this claim is that she does not have a current

certification. The Board still kept her working as a

teacher for more than five years after the date on which

the Board says her last certification lapsed. But then the

Board decided in 2008 that it wanted to fire her, effective

at the end of the then-current school year.

An Administrative Law Judge, in a proceeding under §

16-24-21, held that Ms. Hawkins was entitled to a hearing

under the Tenure Law, and that the Board could not simply

“non-renew” her summarily. The Circuit Court agreed. The

Board of Education now seeks a third opinion.

There has not been any litigation or fact-finding, yet,

about why Ms. Hawkins’s certification lapsed, how it

1
occurred, and whether (for instance) it was as much or more

the Board’s fault as it was Ms. Hawkins’s. That is one of

the main things that Ms. Hawkins wants to address, in a

hearing before a Hearing Officer under the Teacher Tenure

Law. It is her position that the facts will show that the

lapse was at least as much the Board’s fault as her own,

and that for this and other reasons, termination is not the

action that “should be taken” against her by the Hearing

Officer under § 16-24-10(a). The Hearing Officer could

instead decide, for instance, that a “suspension … with or

without pay” would be the more appropriate action, id. The

Board’s position, by contrast, is that all such factual

inquiries are entirely immaterial. On the Board’s view, it

can terminate Ms. Hawkins at will simply because she does

not have a current certification, regardless of the reasons

for that status; on the Board’s view, the facts don’t

matter.

Proceedings below have been as follows:

The Board purported to “non-renew” Ms. Hawkins, without

notice under § 16-24-9 or hearing under § 16-24-10. [C-47].

Ms. Hawkins filed a “Notice of Direct Appeal” under §

16-24-21, with the Administrative Law Judges Division of

2
the Office of the Attorney General. By that document, Ms.

Hawkins sought a ruling that she is entitled to the rights

and procedures under the Teacher Tenure Law before she can

be terminated. [C-29 et seq.] The Board filed an Answer

[C-38] and Amended Answer and Motion to Dismiss [C-49].

Ms. Hawkins filed an “Amended Notice of Direct Appeal,”

raising the alternative argument that if she was not

entitled to the protection of the Teacher Tenure Law, then

she was entitled to the protection of the Fair Dismissal

Act, Ala. Code § 36-26-100 et seq. [C-53]. The Board

answered that Amended Notice, and renewed its motion to

dismiss. [C-60].

Having received these submissions reflecting the

parties’ positions, the Administrative Law Judge agreed

with Ms. Hawkins that she was entitled to a hearing and the

other statutory procedures under the Teacher Tenure Law.

[C-18 to –27].

The Board filed a petition for common law certiorari

review in the Circuit Court of Montgomery County; the

petition included the Board’s statement of its position,

argument, and citation of authorities. [C-5 et seq.] Ms.

Hawkins responded to that filing, likewise setting out her

3
own position, argument, and citation of authorities. [C-70

et seq.] The Board filed a reply. [C-83 et seq.]

The Circuit Court agreed with the Administrative Law

Judge, and with Ms. Hawkins. The Circuit Court denied the

Board’s petition, finding that the Administrative Law Judge

was correct on the applicable law. [C-90].

The Board did not argue to the ALJ, or to the Circuit

Court, that either of those bodies should receive evidence

and make findings of fact about why and how Ms. Hawkins’s

certification lapsed. Instead the Board argued to those

bodies – just as it argues to this Court – a pure

proposition of law: that a teacher whose certification

lapses is, ipso facto, automatically not a “teacher”

anymore within the meaning of the Teacher Tenure Law. This

is a legal proposition entirely divorced from any inquiry

into the facts as to why and how the particular teacher’s

certification lapsed. Ms. Hawkins wants an inquiry into

the facts; but that is what the Board is trying to avoid.

The Board argues that it doesn’t even matter if the lapse

in Ms. Hawkins’s certification was the fault of the Board

rather than of Ms. Hawkins. [See, e.g., C-86 (arguing that

Ms. Hawkins’s assertions in this regard are “irrelevant to

4
the issue at hand,” and that the only thing that matters is

that Ms. Hawkins had no current certificate at the time the

Board decided to “non-renew” her)].

Statement of the Issue

Does a tenured teacher automatically lose all

substantive and procedural rights under the Teacher Tenure

Law whenever the teacher’s certification lapses –

regardless of the cause for such lapse, and regardless even

of whether the lapse was attributable to the school board’s

or other government officials’ fault?

Statement of the Facts

Only the barest skeleton of the factual picture has

been compiled at this point. What is known is that Ms.

Hawkins attained tenure as a teacher, working for the

Birmingham City Board of Education, and that she worked in

that capacity for over a dozen years. The Board declared

in April 2008 that her employment was “non-renewed,”

without giving Ms. Hawkins notice under Ala. Code § 16-24-9

and without affording her the right to any hearing (neither

an initial conference with the Board under § 16-24-9 nor a

hearing before a Hearing Officer under § 16-24-10).

5
 It is also undisputed that Ms. Hawkins has no current

certification as a teacher from the State Department of

Education. The Board’s stated position, now, is that her

last certification lapsed in 2002; yet even for several

years after that, the Board kept her employed as a teacher

in its schools. (See Statement of Facts, in Board’s brief

to this Court, p. xiv). Indeed, even when the Board

decided to try to “non-renew” or terminate Ms. Hawkins

because she had no current certification, the Board did not

act immediately; it knowingly and intentionally kept her

employed and working for several weeks after the

announcement of the so-called “non-renewal.” [C-9].

What is not yet known, and has not yet been litigated,

is how and why Ms. Hawkins’s certification lapsed. There

has not yet been an occasion for litigating, and compiling

a complete factual portrayal as to who did what, or who

failed to do what, about Ms. Hawkins’s certification during

this period of several years. No ruling in this case, at

this point, can possibly be based on any assertion as to

what the facts are in that regard.

6
 Statement of the Standard of Review

Judicial review of an Administrative Law Judge’s

decision, by common law certiorari, is very limited. In a

proceeding under the analogous provision of the Fair

Dismissal Act, regarding common law certiorari review of an

ALJ’s decision in the school employment context, this Court

has explained the standard of review as follows.

"Questions of fact or weight or sufficiency of the

evidence will not be reviewed on certiorari." …

"'"[A] common-law writ of certiorari extends

only to questions touching the jurisdiction of
the subordinate tribunal and the legality of
its proceedings. The appropriate office of the
writ is to correct errors of law apparent on
the face of the record. Conclusions of fact
cannot be reviewed, unless specially authorized
by statute. The trial is not de novo but on the
record; and the only matter to be determined is
the quashing or the affirmation of the
proceedings brought up for review."'"

… "This court's scope of appellate review is the

same as that of the circuit court."

S. Ala. Skills Training Consortium v. Ford, 997 So.2d 309,

324 (Ala. Civ. App. 2008).

7
 Summary of the Argument

The Board asks the Court to create a new draconian

rule: that a tenured teacher loses the protections of the

law at the moment her certification lapses – for any reason

whatsoever, regardless of the facts or context. On the

Board’s view, the teacher immediately enters an employment

at will status, where she can be fired at the employer’s

sole discretion without recourse. This proposed rule has

no basis in the Teacher Tenure Law, and should be rejected.

The Board is wrongly trying to take two words of the

statute in isolation – the words “regularly certified” in

the definition of “teacher” – and use them to achieve a

result that is entirely at odds with the overall structure,

meaning and purpose of the Teacher Tenure Law as a whole.

Those two words do not even mean what the Board argues,

even if they were taken in isolation; the Board is trying

to make them mean “currently certified,” which is not what

the Legislature said. The law has been clear for more than

half a century that the Teacher Tenure Law is to be read

liberally in favor of teachers, in order to secure

permanence in the teaching workforce. The overall

statutory scheme, as well as precedents, are clear that

8
once tenure is achieved, the employment contract cannot be

terminated except through the means provided in the Law.

While loss of certification may well lead to

termination in many cases, and perhaps even most, there

will be cases in which a Hearing Officer can reasonably

choose some other course of action. For instance, if a

teacher has secured reinstatement of certification by the

time the Hearing Officer renders a decision, the Hearing

Officer would certainly be authorized to decide against

termination. Or, if the lapse in certification is shown to

be a matter of negligence at worst, or even a matter in

which the employee bears no fault at all, the Hearing

Officer could choose to impose a suspension until such time

as the teacher obtains reinstatement of the certification.

These are matters for Hearing Officers to decide in light

of the facts.

The teacher in this case properly exercised her right

to a “direct appeal” to an Administrative Law Judge, to

obtain an order upholding her right to such a hearing

before a Hearing Officer. The ALJ was correct, and the

Circuit Court was also correct. This long-term teacher

should not have her career ended without a hearing.

9
 Argument

As we will show, a person who has attained tenure as a

teacher cannot thereafter have his or her employment

terminated by the employing local board of education,

unless the board takes the steps set forth in the Teacher

Tenure Law. This is true of teachers whose certifications

lapse, just as it is true of teachers in every other

context that the courts have addressed. In all such cases,

the Legislature has set out a procedure, including (at the

teacher’s option) a hearing before a Hearing Officer under

Ala. Code § 16-24-10. The Hearing Officer then has various

options in cases where a teacher’s certification has

lapsed, in terms of deciding what action “should be taken”

with regard to the teacher, depending on the facts as

determined through the hearing. See § 16-24-10(b).

As both the Administrative Law Judge and the Circuit

Court recognized, Ms. Hawkins is entitled to that type of

review by a Hearing Officer. This Court is not called upon

to decide at this point what the fate of her career will

be; the question now is only whether she is entitled to be

heard, under the procedures of the Teacher Tenure Law.

This appeal is not, and cannot be, about what the

10
particular facts of Ms. Hawkins’s situation are. This is

true for two reasons: (1) the case comes to this Court as

an appeal from a petition for writ of common law

certiorari; and as noted in the “Standard of Review”

section above, the judicial role in those circumstances

does not involve inquiring into disputed issues of fact;

(2) the Board’s position, before the ALJ and before the

Circuit Court, has never been based on a willingness

actually to litigate the factual questions of Ms. Hawkins’s

particular situation. Instead the Board has tried to win

based on a pure proposition of law: that a teacher is no

longer a “teacher” as soon as her certification lapses.

1. The language of the Tenure Law demonstrates that a

person who has attained tenure is entitled to notice
and hearing under the Law before being terminated on
the grounds of loss of certification, just as when the
termination is based on any other grounds.

The Teacher Tenure Law, by virtue of the language that

the Legislature used, gives Ms. Hawkins the right to notice

and a hearing before she can be terminated. The best

understanding of legislative intent is that the Tenure Law

gives teachers the right to notice and a hearing before

they can be terminated, and that lapse of certification is

just like any other ground for proposed termination in this

11
regard. The Tenure Law allows a Hearing Officer to

consider the facts as to why, how, and when a teacher’s

certification has lapsed, and other relevant facts, and

then to decide what action should be taken in light of all

the facts. This is not to say that Hearing Officers will

often – or even necessarily that they will ever – order

school boards to keep non-certified teachers in the

classroom on a long-term basis. But Hearing Officers have

many options under the law, and they ought to be allowed to

weigh the facts and consider those options.

In considering the language of the Tenure Law as a

whole, it is useful to start with the central provision,

the one that is the cornerstone of the tenure system

itself. This is § 16-24-3, and it is the very heart of the

overall statutory scheme:

The contract of employment of any teacher who

shall attain continuing service status shall
remain in full force and effect unless superseded
by a new contract signed by both parties, or
cancelled as provided in Section 16-24-9 or 16-24-
10; provided, that the Legislature or, in the
absence of legislation, the employing board of
education may provide for the retirement of
teachers at certain ages.

This language does not support the Board’s view that the

lack of a current certification places a teacher outside

12
the law’s protection. In fact, this language demonstrates

that the Board’s view is incorrect. This language is

written in a way that does not make current certification a

prerequisite for the continued protection of the law. On

the contrary, this language by its natural meaning declares

that once a person has attained tenured status, that

person’s contract of employment will continue unless

cancelled in the manner provided by §§ 16-24-9 and –10

(i.e., notice and hearing).1

The Board’s position, as we have noted and is clear

throughout the Board’s briefs, is that a person without a

current certification is not a “teacher” under § 16-24-1.

But that position does not help the Board at all, in

reading § 16-24-3. Section 16-24-3 is not framed in terms

of whether a person has a current certification, nor is it

even framed in terms of whether the person currently meets

the definition of “teacher.” It is framed instead as a

1
As we will show in the next section, precedent has
confirmed the understanding stated above: the nature of
tenure is that once a person attains that status, the
person’s contract cannot be terminated except through the
procedures of the Tenure Law. See, e.g., Ala. Ass’n of
School Boards v. Walker, 492 So.2d 1013 (Ala. 1986);
Hammond v. Bailey, 394 So.2d 25, 27 (Ala. Civ. App. 1980).
That is the central point of the statutory scheme, which
the Board’s argument seeks to undermine.
13
protection of each person who has once attained tenured

teacher status; after that moment, the person’s contract

cannot be cancelled except through §§ 16-24-9 and –10.

Section 16-24-2(a) is to the same effect. That section

provides:

(a) Any teacher in the public schools who shall

meet the following requirements shall attain
continuing service status: Such teacher shall have
served under contract as a teacher in the same
county or city school system for three consecutive
school years and shall thereafter be reemployed in
such county or city school system the succeeding
school year.

This does not make a person’s “continuing service status”

(i.e., tenure) depend on whether the person has a current

certification. Instead it declares that a person attains

“continuing service status” by serving three years as a

teacher (as Ms. Hawkins undisputedly did) – and it does not

provide any way in which such status is ever lost, whether

by failure to have a current certification or anything

else. It does not even, by its terms, make “continuing

service status” depend on anything about the person –

neither her certification status nor anything else – at any

time after “continuing service status” is once obtained.

Other statutory provisions should be understood to be

in harmony with these central provisions. When § 16-24-3

14
protects every person who attains tenure, § 16-24-9 should

not be read to give only some such people the right to

notice of the reasons for a proposed termination.

Likewise, § 16-24-10 should not be read to give only some

such people the right to a hearing before they can be

terminated. When § 16-24-2 makes tenure a status that a

person obtains and makes no provision by which a person

ever loses such status, §§ 16-24-9 and –10 should not be

read to create hidden and implicit limitations on that.

Even the definitional section on which the Board

fundamentally relies, § 16-24-1, does not actually say what

the Board wants it to say. The Board’s position is that a

person without a current certification is not a “teacher”

at all, but that is not what § 16-24-1 says. It does not

speak in terms of having a current, or valid, or active,

certificate at the moment of proposed termination or any

particular moment. Instead it uses a very different

phrase: “The term ‘teacher,’ as employed in this chapter,

is deemed to mean and include all persons regularly

certified by the teacher certificating authority of the

State of Alabama …” The word “regularly” is not the same

as the word “currently,” though the Board’s argument

15
assumes that the two words are synonyms.

What, then, does this definitional section mean? It is

most naturally read as a common-sense way of dividing the

world of school system employees into two groups. The

“teachers” are, in general, the ones who are subject to the

State’s requirement of getting certified on a regular

(i.e., periodically recurring) basis; the Tenure Law is for

them. Others – the people who are not subject to that

requirement – are covered by the Fair Dismissal Act, § 36-

26-100 et seq.2 That is a reasonable way to understand the

statutory definition of “teacher,” with its somewhat

ambiguous reference to the certification process.3

2
Ms. Hawkins has made the alternative claim that she is
entitled to notice and hearing under the Fair Dismissal
Act, if she is not covered by the Tenure Law. [C-53]. The
ALJ did not need to reach this issue, because the ALJ ruled
for Ms. Hawkins on the Tenure Law issue (and the Circuit
Court affirmed); but the Fair Dismissal Act issue would
have to be addressed on remand if this Court reversed.
3
Caselaw shows that if there is doubt about whether a
given individual falls within the scope of the Teacher
Tenure Law, that doubt will be resolved in favor of
coverage, given the established principle that the Law is
construed liberally in favor of teachers. See, e.g.,
Springfield v. Talladega City Board of Education, 628 So.2d
704 (Ala. Civ. App. 1993). But the understanding we have
set forth in the text above is the most reasonable way of
setting the dividing line, as a general matter, between who
is covered and who is not.
16
 If the Legislature had meant to declare that anyone

whose certification is not current becomes, at that moment,

non-tenured – then the Legislature surely would have said

so. This would have been a very important thing to state

clearly. The Legislature did no such thing. Instead, the

Legislature created a simple system with the central

promise: once you have attained tenure (“continuing service

status”), your contract will not be cancelled except

through the procedures in §§ 16-24-9 and –10: notice and

hearing. That rule is simple and easy to follow. It does

not contain the exception that the Board seeks to create.

One might ask why the Tenure Law should be interpreted

to give a person without a current certification the right

to notice and a hearing, when § 16-23-1 requires teachers

to hold certifications. Is termination a foregone

conclusion, and the only legally permissible outcome, for

every teacher whose certification lapses, regardless of the

reasons, and so would it be a waste of time and money to

require notice and hearing? Absolutely not.

There will be situations in which a Hearing Officer

will legitimately be able to choose some other course. It

therefore makes perfect sense to read the statutory scheme,

17
as a whole, in a way that allows Hearing Officers to

determine the facts and exercise their judgment under § 16-

24-10(a). That statutory section authorizes the Hearing

Officer, after determining the relevant facts, to exercise

broad discretionary judgment as to “which of the following

actions should be taken relative to the employee:

Cancellation of the employment contract, a suspension of

the employee, with or without pay, a reprimand, other

disciplinary action, or no action against the employee.”

See Ex parte Dunn, 962 So.2d 814 (Ala. 2007) (recognizing

the broad discretionary authority that the Tenure Law gives

to Hearing Officers, to determine the appropriate action to

be taken in light of all the facts).

Consider, for instance, a teacher who – through no

fault of her own, but only because of bureaucratic delays

outside her control – does not receive a renewed

certification before her prior certification expires. This

is not a far-fetched hypothetical; as explained in the

amicus curiae brief of the Alabama Education Association,

for instance, a large number of teachers throughout the

state suffered delays in certification renewal because of

the fingerprinting process that was entirely outside the

18
teachers’ control.4 Under the Board’s interpretation of the

law, each school board would have the unreviewable right to

pick and choose which of those teachers it wanted to keep,

and which it wanted to fire. Each school board could

simply give notice of “non-renewal” to everyone it chose,

and then claim that those disfavored people were not

entitled to the Law’s protections because they were not

“teachers” at the crucial moment.5

4
Temporary lapses in certification without fault on the
teacher’s part are not a rare event, given the reality of
the teacher certification process. As explained in the
brief of amicus curiae Alabama Education Association, the
process is a complicated one. It is the subject of a large
number of pages of administrative rules and regulations.
It is a process that involves, and requires action by,
various people and offices in addition to the teacher him-
or herself. It requires action by the employing school
board, it requires action by State-level officials and
employees, and it requires action by third-party private
personnel as well. It is a process, like all human
endeavors, in which things can go wrong. Things can go
wrong because of bureaucratic backlog due for instance to
funding constraints; and things can go wrong in ways as
simple as misplaced or delayed letters in the U.S. Mail.
Things can go wrong.
5
Would a school board be legally required to terminate all
such teachers, in the event of such a bureaucratic delay in
renewing certifications? Certainly not, and the Board does
not even so claim. Recall that the Board in this case kept
Ms. Hawkins employed for years after the date on which it
claims that her certification lapsed – even intentionally
keeping her employed for some time after it gave her the
notice of non-renewal. The only penalty that a board of
19
 A proper interpretation of the Tenure Law as a whole

would allow a Hearing Officer to use reasonable judgment

about such a situation. Particularly if such a teacher

actually had received the renewed certification by the time

of the hearing under Ala. Code § 16-24-10, it would surely

be permissible for a Hearing Officer to conclude that the

teacher ought not lose her career because of a temporary

bureaucratic backlog, or other sort of temporary problem,

that was outside the teacher’s control and was resolved by

the time of the hearing.

Even in cases where the teacher has not succeeded in

obtaining a renewed or reinstated certificate at the time

of the hearing, the Hearing Officer will have options

depending on the facts. There may be cases, for instance,

where the lapse in certification is attributable to more

fault on the employing board’s part than on the teacher’s

part. Or there may be cases where the teacher has some

education might suffer, for allowing the continued

employment of someone in these circumstances, would be a
minor administrative penalty if the State Department of
Education sought it (and even that possibility seems
unlikely). In other words, the Board’s position is not
that a teacher whose certification lapses must be fired.
It is that a teacher whose certification lapses enters at-
will employment status.
20
other reasonable explanation of compelling circumstances

that explain the reason for the lapse. In those instances,

and particularly if (as here) the teacher’s career is a

long and valuable one, a Hearing Officer could reasonably

conclude that termination is not the action that “should be

taken” under § 16-24-10(a). Among the other options that

section –10(a) expressly grants to the Hearing Officer is

the authority to impose a “suspension of the employee, with

or without pay.” That option will be well-suited to some

cases of this sort. Rather than having her career ended, a

loyal and valuable teacher could be suspended until such

time as she succeeds in once again obtaining a current

certification. When the Legislature granted such broad

discretionary decisionmaking authority to Hearing Officers

(see Dunn, supra), it permitted Hearing Officers to make

judgments of this sort.

This is not to say that a Hearing Officer will have to

rule in favor of the teacher, in this case or in any

particular case. It is only that the Tenure Law gives the

teacher a right to notice and hearing, so that the teacher

can make her case to the Hearing Officer.

21
2. Existing precedent, and relevant constitutional
considerations, support our position.

Our position is also supported by precedent, as well as

being grounded in the statutory text as explained above.

Much of the Board’s argument is based on the contention

that Barger v. Jefferson County Board of Ed., 372 So.2d 307

(Ala. 1979), requires a ruling in the Board’s favor. This

is a mis-reading of Barger. In fact, Barger supports our

position more than it does the Board’s.

The facts in Barger were that the school system

terminate Mr. Barger. He invoked his rights under the

Teacher Tenure Law; at that time the Law gave recourse

through the Tenure Commission, and the Tenure Commission

ruled in Mr. Barger’s favor, reversing the school board’s

action. The suit, giving rise to the published opinion,

was Mr. Barger’s suit in Circuit Court seeking backpay and

reinstatement. Id., 372 So.2d at 307-08.

The Supreme Court affirmed the trial court’s denial of

reinstatement, because Mr. Barger’s certification had

lapsed in the interim. This is the point that the Board

relies on. But this does not mean, as the Board in this

case contends, that Barger stands for the proposition that

a tenured teacher whose certification lapses can be fired

22
without regard to the facts. On the contrary, the Supreme

Court reached its ruling only after considering the facts

of the particular case, and in particular considering

whether the lapse in certification was something that was

Mr. Barger’s fault rather than the employer’s. The Court’s

discussion reflects the possibility that a different result

might obtain in a case presenting a different set of facts,

where the fault in the lapse of certification could not be

so definitively laid at the teacher’s own feet.

During the period between the last order of

the Tenure Commission and the judgment of the
circuit court, the appellant's teaching
certificate expired. …

The appellant asserts that he relied upon the

Jefferson County Board of Education to apply for
the renewal of his teaching certificate. Whether
under some set of circumstances a teacher might
reasonably rely upon a school board to renew the
certificates of the teachers in its employ, we
need not decide. In the instant case, the teacher
had been discharged, albeit wrongfully, by the
Board of Education prior to the time for
application for renewal of his certificate.
Despite the fact that his reinstatement had been
ordered by the State Tenure Commission, he had not
been reinstated at the time of his certificate's
expiration.

Although the appellant presented evidence

indicating that the Jefferson County Board of
Education had unilaterally requested that his
certificate be renewed in 1973 when it was due to
expire, he has not established that the Board, as
a matter of common practice, automatically
23
 requested that the State Board of Education renew
certificates of its teachers, instructors, and
other educators. We are not persuaded that the
appellant was entitled to rely on the Board of
Education to renew his certificate in this
instance, especially in light of the difficulties
which had developed between the appellant and the
Board with respect to his employment.

Moreover, the record reflects that the State

Board of Education has raised questions relative
to additional requirements before the appellant's
certificate could be renewed. Under these circum-
stances, it was the appellant's responsibility to
assure his continued certification.

Barger, 372 So.2d at 308.

Thus, far from establishing a blanket rule to the

effect that even a temporary lapse in certification leaves

a tenured teacher effectively in at-will status regardless

of any relevant facts, the decision in Barger actually

represents the very sort of nuanced factual understanding

that makes sense in this sort of case. Under the Teacher

Tenure Law in its current form, the responsibility for

finding the relevant facts and making the relevant judgment

resides in the Hearing Officer. See Ex parte Dunn, supra.

Barger does not create a rule of unreviewable authority in

the hands of the employing board, as the Board in this case

seeks to create.

Going beyond Barger, other existing caselaw also

24
supports our view that the Tenure Law creates a rule that

is simple and easy to apply: once a person has attained

“continuing service status” (tenure) under the Tenure Law,

that person’s employment cannot be terminated except

through notice and hearing under §§ 16-24-9 and –10. A

teacher’s failure to keep current with certification

requirements can of course be a ground upon which a school

board may commence termination proceedings; but the

procedures of §§ 16-24-9 and –10 must be followed

nonetheless. In this way, Alabama precedent is consistent

with the caselaw from other jurisdictions discussed in the

brief of amicus Alabama Education Association, holding that

a lapse in certification does not ipso facto remove a

teacher from the protections of statutory tenure law.6

This Court stated the central and dispositive rule

quite clearly in Hammond v. Bailey, 394 So.2d 25 (Ala. Civ.

App. 1980): once a person attains the status of tenured

6
For instance, the Supreme Court of Colorado has given a
well-reasoned explanation that a teacher who has attained
tenure remains a “teacher,” and retains the statutory right
to notice and hearing before termination, even when the
teacher’s certification has lapsed. This decision involved
statutory definitions and interpretive principles that are
very similar to our state’s law. Frey v. Adams County
School District No. 14, 804 P.2d 851 (Col. 1991).
25
teacher, his or her employment cannot be terminated except

by following the procedures of §§ 16-24-9 and –10.

To state the proposition succinctly, tenure once

obtained will remain, unless charges by the board
are properly brought and sustained. There is no
basis in the tenure law for discussion to the
contrary. The legislative intent of the tenure law
is to establish two classes of teachers, those
that have earned continuing service status and are
thereafter protected by procedural and due process
safeguards and those that are probationary and not
so protected.

Id. at 27. To repeat: “[T]enure once obtained will remain,

unless charges by the board are properly brought and

sustained.” Id. Once you earn tenure, “thereafter” you

are protected by the safeguards of the Tenure Law. Id.

The Board may argue that these statements were made in a

case that raised issues not exactly like this case, but the

point remains: that is how this Court described the Tenure

Law, and this Court declared that it was crystal-clear that

this was the meaning of the law. The Legislature, and all

teachers, are entitled to have relied on this settled

understanding.

The same understanding was at work in the decision of

the Supreme Court in Ala. Ass’n of School Boards v. Walker,

492 So.2d 1013 (Ala. 1986): that once a person has attained

tenured-teacher status, the only way to end that person’s

26
employment is through compliance with the Tenure Law. “If

it is uncontradicted that tenure status was originally

gained, and the teacher's contract was thereafter

cancelled, one disputing that cancellation must follow the

administrative remedies set forth by the statutory scheme

of the tenure act.” Id. at 1015 (emphasis in original).

The Court recognized that by once attaining tenured-teacher

status, the employee has gained a due process entitlement

to notice and hearing before termination of employment.

Tenure status creates in a teacher an important

“property interest” that cannot easily be taken
away. … Our state legislature expressly created
this scheme of administrative procedures to insure
that teachers who have attained such a property
interest may have security and permanence in their
employment.

Id. at 1017. The Board’s view in this case – that the

protections of tenure are something that can just fly away

without notice and hearing – is flatly inconsistent with

the principles of Walker, including the constitutional

principles of due process protection.7

7
Because tenure creates a property right, as recognized in
Walker, it would in fact be unconstitutional to allow the
termination of Ms. Hawkins’s employment without notice and
hearing. It would violate both the state and federal due
process provisions. This Court should interpret the
education laws in a way that avoids such constitutional
27
 Our understanding of tenure as a personal right that

does not just disappear, but stays with the person

throughout her employment, is also consistent with the

statement in Mason v. Huntsville City Board of Ed., 591

So.2d 860, 861 (Ala. Civ. App. 1991): “[P]ositions are not

tenured. People are tenured.” (emphasis supplied).

Caselaw also supports our view that a lack of current

certification does not mean, ipso facto, that one is no

longer a “teacher” with rights under the Tenure Law. For

instance, in Ex parte Oden, 495 So.2d 664 (Ala. 1986), the

question was whether Mr. Oden was a “supervisor” within the

protection of the Tenure Law. And in order to count as a

“supervisor,” one must count a “teacher” as well, under the

law. See § 16-24-1. So, on the Board’s argument in this

case, Mr. Oden could have been a “supervisor,” protected by

the Tenure Law, only if he had a current certification.

But that is not how the Supreme Court analyzed the

situation; in fact it seems rather clearly implied that Mr.

Oden did not have a current certification at the time of

the dispute. He had attained tenure as a teacher (in the

problems, as the Supreme Court has done in such cases as

Walker and Ledbetter v. Jackson County Board of Education,
508 So.2d 244 (Ala. 1987).
28
classic sense of being an instructor) and then became a

supervisor in a field that did not require certification at

all. Oden, 495 So.2d at 665. It was this lack of a

certification requirement that led to the dispute of law,

as to whether he was covered by the Tenure Law. The

Court’s answer was that he was covered. Id. at 665-66.

The Court did not suggest that this answer depended on

whether, by happenstance, he still happened to be within

the period of some old certification he had obtained while

working as an instructor.

Existing caselaw also supports the understanding that a

lack of current certification is a valid basis for

proposing termination – but it is not in itself a thing

that removes a person from the Law’s protection entirely.

This understanding can be seen, for instance, in Rogers v.

Tenure Commission, 372 So.2d 1313 (Ala. Civ. App. 1979), in

which this Court held that “failure to meet certification

requirements” was a valid ground for proposing termination

and thus for invoking the procedures of §§ 16-24-9 and –10.

That is what should have happened in this case, if the

Board had wished to pursue termination of Ms. Hawkins’s

employment.

29
3. The Teacher Tenure Law is to be read as a whole, and is
to be liberally construed in favor of teachers in light
of its recognized purpose of securing permanency in the
teaching workforce.

We have shown above that, even just reading the statute

in a straightforward fashion, the Court should reject the

Board’s argument. This conclusion is strengthened by long-

standing precedent about the manner in which the courts are

to read the Teacher Tenure Law. Since this is a case about

statutory interpretation, it is a case about legislative

intent. See, e.g., Boone v. Birmingham Board of Education,

___ So.3d ___, 2008 Ala. Civ. App. LEXIS 723 (Ala. Civ.

App. 2008), quoting Alabama Dep't of Envtl. Mgmt. v. Legal

Envtl. Assistance Found., Inc., 973 So. 2d 369, 376 (Ala.

Civ. App. 2007) (“The fundamental rule of statutory

construction is to ascertain and give effect to the intent

of the legislature in enacting the statute.”). The Board’s

position is utterly contrary to settled principles about

legislative intent in the Teacher Tenure Law itself, and to

settled principles about the interpretation of statutes in

general.

"It is well established that the Teacher Tenure Act has

as its primary purpose the securing of permanency in the

teaching force and that it is remedial in nature and is

30
therefore to be liberally construed in favor of the

teacher." Ex parte Athens State College, 795 So.2d 709,

714 (Ala. 2000). This has been the law of Alabama for well

over sixty years at least. See Tenure Comm’n v. Madison

County Board of Education, 282 Ala. 658, 672, 213 So.2d

823, 834 (Ala. 1968) (“In Pickens County Board of Education

v. Keasler, 263 Ala. 231, 82 So.2d 197, decided by this

court in 1955, among other things, it was held that the

principal purpose of the Teachers' Tenure law is to secure

permanency in the teaching force.”); Board of Ed. of

Marshall County v. Baugh, 240 Ala. 391, 395, 199 So. 822,

825 (Ala. 1941) (requiring liberal construction in light of

this purpose).

This Court has repeatedly recognized these principles.

See, e.g., Golden v. Alabama State Tenure Comm’n, 718 So.2d

73, 74 (Ala. Civ. App. 1998) (“It is well established that

the Teacher Tenure Act has as its primary purpose the

securing of permanency in the teaching force and that it is

remedial in nature and is therefore to be liberally

construed in favor of the teacher.”); Oxford City Bd. of

Ed. v. Hubbert, 627 So.2d 459, 461 (Ala. Civ. App. 1993).

The Board’s argument in this case is directly contrary

31
to that “primary purpose” of the Teacher Tenure Law. The

law’s overriding purpose, as has been recognized for

decades, is to secure permanence and security for the

teaching workforce; the Legislature has recognized that

this is good not only for teachers, but for students and

the public as a whole. The Board’s position in this case

seeks to undermine that security, by leaving any tenured

teacher in at-will status, at the mercy and sole discretion

of the employing board of education, whenever the teacher’s

certification lapses for any reason at all.

The Board seeks to reach this draconian result through

an aggressive and uncharitable interpretation of one phrase

in the overall statutory scheme: the provision in § 16-24-1

defining the word teacher to “mean and include all persons

regularly certified by the teacher certificating authority

of the State of Alabama …” The Board argues that a two-

word phrase in that passage, “regularly certified,” means

that a person who is not currently certified for any reason

whatsoever is not a “teacher” within the meaning of the

law.

As we have shown above, the Board’s position is not

even supported by a reasonable reading of those two words,

32
even if they were taken in isolation. But by trying to pin

its case on these two isolated words in one section of the

overall Teacher Tenure Law, the Board is taking an

incorrect approach to statutory interpretation. As stated

recently in Edwards v. Kia Motors of America, Inc., 8 So.3d

277 (Ala. 2008), Alabama’s rules of statutory

interpretation require a court to determine legislative

intent by looking to a statute as a whole, rather than by

taking particular words in isolation.

[In ascertaining legislative intent] we must look

to the entire Act instead of isolated phrases or
clauses …. In determining legislative intent our
interpretation of the statutory language in § 8-
20-11, therefore, must be guided by the Franchise
Act as a whole, instead of simply accepting as
exclusive and inevitable the possible meaning of
two isolated words outside this or any other
particular context. … We decline to ignore the
legislative intent expressed in the Franchise Act
as a whole in favor of an isolated interpretation
of the phrase `any waiver’ …

Edwards, 8 So.3d at 282.

The same principle, regarding interpretation of

statutes as a whole rather than taking words in isolation,

has been reaffirmed in many cases.

"The fundamental rule of statutory construction is

that this Court is to ascertain and effectuate the
legislative intent as expressed in the statute.
... In this ascertainment, we must look to the
entire Act instead of isolated phrases or clauses
33
 ...." Darks Diary, Inc. v. Alabama Dairy Comm'n,
367 So. 2d 1378, 1380 (Ala. 1979). In construing
statutes, we may glean legislative intent from the
language used, the reason and necessity for the
legislative act, and the purpose sought to be
obtained. Bama Budweiser of Montgomery, Inc. v.
Anheuser-Busch, Inc., 611 So. 2d 238 (Ala. 1992).
Courts do not interpret statutory provisions in
isolation, but consider them in the context of the
entire statutory scheme. Siegelman v. Alabama
Ass'n of School Boards, 819 So. 2d 568 (Ala.
2001). Where more than one Code section is
involved, each should be construed in harmony with
the other Code sections then in effect, so far as
is practical. Kinard v. Jordan, 646 So. 2d 1380
(Ala. 1994).

Long v. Bryant, 992 So.2d 673, 684 (Ala. 2008).

This Court has recognized the same principles. See,

e.g., Lattimore v. Lattimore, 991 So.2d 239, 242 (Ala. Civ.

App. 2008); L.L.M. v. J.M.T., 964 So.2d 66, 72 (Ala. Civ.

App. 2007) (“We do not look at one word or term in

isolation but instead we look to the entire statutory

context.”); Grogan v. Hillman, 930 So.2d 520, 523 (Ala.

Civ. App. 2005) (“In ascertaining legislative intent, this

court looks to the entire act instead of isolated phrases

or clauses.”); USX Corp. v. Bradley, 881 So.2d 421, 426

(Ala. 2003) (“In interpreting statutory language, a court

does not look at one word or one provision in isolation,

but rather looks to a whole statutory scheme for

clarification and contextual reference.”). This mode of

34
interpretation, reading all parts of the law as a

harmonious whole, has been applied to the Teacher Tenure

Law just as it has to other laws. See, e.g., Ex parte

Jackson, 625 So.2d 425, 428 (Ala. 1992).

These settled principles, about the manner of

interpreting the Tenure Law, make it all the more clear

that the Board’s position is incorrect.

4. A direct appeal to an Administrative Law Judge is the

proper way for an employee such as Ms. Hawkins to
enforce her right to notice and hearing.

The Board also contends that a “direct appeal” to an

Administrative Law Judge under § 16-24-21 was not the

proper way for Ms. Hawkins to try to assert her rights; the

Board contends that only a person whose tenured-teacher

status is undisputed can have a direct appeal under § 16-

24-21. (Board brief pp. 8-9). The Board says that, if she

was to have any recourse at all, she should have filed a

suit in Circuit Court instead.

In this, the Board relies only on cases that predate

the 2004 amendments to the Teacher Tenure Law and Fair

Dismissal Act. But even under the pre-2004 caselaw, the

Board’s assertion is incorrect. In this case it is

completely undisputed that Ms. Hawkins did attain tenured

35
(“continuing service”) status. Therefore this is not even

a case in which the question is whether the person did

attain that status. The question in this case is whether,

having attained that status, Ms. Hawkins is entitled to

notice and hearing before her employment can be terminated.

This case is, in that sense, unlike even the pre-2004-

amendment cases on which the board relies. This case is

governed instead by the explanation in Walker, explaining

and distinguishing the case on which the Board relies in

this case; as the Supreme Court said in Walker, the role of

the Circuit Court extended only to cases in which the

dispute was “whether tenure was ever gained.” 492 So.2d at

1015 (emphasis in original). By contrast, in cases where

(as here) “it is uncontradicted that tenure status was

originally gained,” (id., emphasis in original), Circuit

Court is not the place that the litigation must start.

But even if pre-2004 caselaw might have supported the

Board’s argument about how this sort of dispute should have

been litigated in the past, the 2004 amendments to the

Tenure Law and Fair Dismissal Act made a change. It was

the 2004 amendments to each statute that first created this

avenue of direct appeal to ALJs. This was, quite clearly,

36
part of the overall purpose of each set of amendments,

which was to “streamline”8 the processing of disputes under

these laws. Given that purpose, it would be counter-

productive to require an employee to file suit in Circuit

Court, and to go through the whole expensive process of

civil litigation, when a simple direct appeal to an ALJ is

provided by statute.

The best interpretation of § 16-24-21 in this regard is

that, like other judicial and quasi-judicial bodies, an ALJ

in this instance has the jurisdiction to determine the

facts necessary to establish jurisdiction. In this type of

case, an ALJ can determine whether the person bringing the

direct appeal is a person entitled to invoke the rights at

issue. If so, the ALJ can grant relief; if not, the ALJ

dismisses the case. The ALJ is not relegated, on a

jurisdictional basis, to deciding only those cases in which

the claimant’s tenure status is undisputed.

Even if the Board is right that the former Tenure

8
See Madison County Board of Ed. v. Wilson, ___ So.2d ___,
2008 Ala. Civ. App. LEXIS 542, * 3 (Ala. Civ. App. 2008)
(Bryan, J., dissenting) (noting the stated legislative
intent to “streamline” in the Teacher Tenure amendments);
Bd. of School Comm’rs v. Biggs, 939 So.2d 942, 944 (Ala.
Civ. App. 2006) (noting same stated intent in Fair
Dismissal amendments).
37
Commission was allowed to hear “direct appeals” only from

people whose tenure was undisputed, it is reasonable to

conclude that Administrative Law Judges under the current

scheme, as adopted in the 2004 amendments, are different.

The Tenure Commission was a body created specifically for

the purpose of dealing with tenured teachers, and only

tenured teachers. Therefore it could make sense to say

that its jurisdiction was limited, in a very strict sense,

even when exercising its “direct appeal” authority.

Administrative Law Judges are different, under the 2004

amendments. They do not occupy the dual roles that the

Tenure Commission used to occupy, of which deciding “direct

appeals” was only one. Now, the ALJs’ only role is to

decide direct appeals, from people who are denied a hearing

but who claim that the Tenure Law entitles them to such a

hearing. It makes perfect sense, then, that the ALJ’s role

is to decide all matters necessary to determining whether

the employee was entitled to a hearing.

This conclusion is supported by the cases that this

Court has already decided, after the 2004 amendments, under

the Fair Dismissal Act. The “direct appeal” provision of

the Fair Dismissal Act, like that of the Tenure Law, gives

38
appeal rights only to those who are actually in the secure

employment status that the law creates; under the Fair

Dismissal Act, this is the class of “employees” who are

“non-probationary.” See § 36-26-115 (“An employee who has

attained nonprobationary status and has been denied a

hearing … shall have the right to appeal …”)

This Court has now heard multiple appeals in which

ALJs, in cases brought to them under § 36-26-115, decided

whether the people bringing the direct appeal were in the

category of persons protected by the Act, or not. See

Holland v. Pearson, ___ So.3d ___, 2008 Ala. Civ. App.

LEXIS 767 (Ala. Civ. App. 2008); S. Ala. Skills Training

Consortium v. Ford, 997 So.2d 309 (Ala. Civ. App. 2008).

In those cases, this Court has wrestled on the merits with

the question of whether the employees were covered by the

Act, or not.

This Court has not suggested in those cases that the

ALJs lacked jurisdiction, or that ALJs can decide only

cases in which a person’s “employee” status and “non-

probationary” status are undisputed. This Court has not

suggested that such a case was jurisdictionally barred and

that a suit originating in Circuit Court, and bypassing the

39
ALJ altogether, was the only avenue for a person whose

coverage status was in dispute. In fact, in Ford, where

the primary issue was whether the employees were within the

coverage of the Fair Dismissal Act, this Court upheld the

decision that the employees at issue were within the

coverage of the Act. And so this Court affirmed the ALJ’s

conclusion that the ALJ had jurisdiction. Ford, 997 So.2d

at 329. This is incompatible with the Board’s theory in

this case, which is that an ALJ has jurisdiction only if

the employee’s coverage status is undisputed.

In short, this Court has allowed the “direct appeal”

provision of the Fair Dismissal Act to play its natural

role in streamlining the processing of disputes; this Court

should give the same interpretation to the parallel

provision of the Teacher Tenure Law, and should uphold the

Administrative Law Judge’s exercise of his statutory

authority in this case.

Conclusion

For the reasons stated herein, this Court should affirm

the decision of the Circuit Court, which had in turn upheld

the decision of the Administrative Law Judge. Ms. Hawkins

is entitled to notice and hearing under the Teacher Tenure

40
Law before she can be terminated, and she is entitled to

backpay for the time during which the Board has been

violating her rights.

Respectfully submitted,

__________________________
Gayle H. Gear Sam Heldman
2229 Morris Avenue The Gardner Firm, P.C.
Birmingham AL 35203 2805 31st St. NW
(205) 254-3995 Washington DC 20008
fax (205) 254-3729 (202) 965 8884
ghgear@bellsouth.net fax (202) 318-2445
sam@heldman.net

This document was prepared in Courier New, 13 point type.

Certificate of Service

I certify that a copy of the foregoing was served by

U.S. Mail on the following this ____ day of September,
2009.

Thomas L. Stewart
Leslie M. Klasing
Waldrep Stewart & Kendrick, LLC
2323 Second Ave. North
Birmingham AL 35203

________________________

41