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[MP],
Employee,
This case arises under the Alabama Fair Dismissal Act, Article 4 of
The Fair Dismissal Act, as originally enacted by Alabama Acts 1983, No.
83-644, was criticized by the courts. See, e.g., Bolton v Board of School
Commissioners of Mobile County, 514 So 2d 820, 824 (Ala 1987) (“not a model
of legislative clarity”). In 2004, the Fair Dismissal Act was revised substantially
Relating to the Fair Dismissal Act; to streamline the contest and appeal
processes for employees; to provide that employees would have contests
of terminations, transfers, and suspensions heard by a hearing officer
from the United States Federal Mediation and Conciliation Service; and
to provide that the hearing officer’s decision in terminations and
suspensions for greater than seven days without pay could be appealed by
either party to the Court of Civil Appeals.1
1
http://arc-sos.state.al.us/PAC/SOSACPDF.001/A0003223.PDF @ 1.
2
As amended, the Fair Dismissal Act reads in pertinent part:
Section 36-26-102
Section 36-26-103
3
(b) Regardless of whether or not the employee elects to have a conference, if
the board votes to terminate the employee, the superintendent shall give
notice to the employee of the board's action by providing notice by personal
service, by the United States registered or certified mail with postage paid
thereon to the employee's last known address, or by private mail carrier for
overnight delivery, signature required, with postage paid thereon to the
employee's last known address within 10 days of the board's action. Such
notice shall be in writing and shall inform the employee of the right to
contest the action by filing with the superintendent a written notice of
contest of the action within 15 days of the receipt of the notice. Such contest
shall be taken by filing a written notice of contest with the superintendent
within 15 days after receipt of the notice of the decision of the employing
board. If the contest is not timely taken, the board's decision shall be final.
The employing board may suspend the employee with pay if the action is
taken. However, no pay shall be provided in cases involving moral turpitude.
If the board's action is overturned on appeal, pay shall be reinstated. No
termination shall be effected until the time for filing notice of contest has
expired and, if notice of contest is filed, not until the hearing officer has
issued an opinion.
Section 36-26-104
4
present at such hearing. The hearing officer shall have power to administer
oaths and issue subpoenas to compel the attendance of witnesses and
production of papers necessary as evidence and/or information in connection
with the dispute or claim. If requested, the hearing officer shall issue
subpoenas for witnesses to testify at the hearing, under oath, either in
support of the charges or on behalf of the employee. The hearing officer
shall conduct a de novo hearing and shall render a decision based on the
evidence and/or information submitted to the hearing officer. The hearing
officer shall determine which of the following actions should be taken
relative to the employee: Termination of the employee, a suspension of the
employee, with or without pay, a reprimand, other disciplinary action, or no
action against the employee. The hearing officer shall render a written
decision, with findings of fact and conclusions of law, within 30 days after
its hearing. Expenses of the hearing officer shall be borne by the State
Department of Education.
(b) All appeals of a final decision of the hearing officer shall lie with the
Alabama Court of Civil Appeals. An appeal by either party shall be
perfected by filing a written notice of appeal with the Clerk of the Court of
Civil Appeals within 21 days after the receipt of the final written decision of
the hearing officer. Failure to file a timely notice of appeal shall render the
decision of the hearing officer final, in which case the employing board shall
take possession of the record of the hearing and shall maintain such record
for a period of three years. The Court of Civil Appeals shall have discretion
to refuse to hear appeals of final decisions of a hearing officer pursuant to
this article. Review by the Court of Civil Appeals pursuant to this article is
not a matter of right, but of judicial discretion, and an appeal may be granted
only when the court determines there are special and important reasons for
granting the appeal. Within 30 days after an appeal is granted, the hearing
officer shall transmit the record to the clerk, with the appealing party bearing
the costs associated with the preparation and transmission of the record and
transcript of the hearing. The decision of the hearing officer shall be
affirmed on appeal unless the Court of Civil Appeals finds the decision
arbitrary and capricious, in which case the court may order that the parties
conduct another hearing consistent with the procedures of this article.
5
decided under the Fair Dismissal Act as originally enacted must be read with
Other differences in the Fair Dismissal Act as originally passed and as amended
6
III. Background
The Fair Dismissal Act requires that pay be provided to employees until a
hearing officer affirms the decision to terminate his or her employment,
except in cases involving moral turpitude. Ala. Code § 36-26-103(b).
Your conduct described above which forms the basis of my intent to
terminate your employment with Bishop State rises to the level of moral
turpitude. Therefore, I intend to terminate your compensation from
Bishop State. Motion Exhibit A; emphasis in original.
7
After much careful deliberation, you are hereby given notice of my
decision to terminate your employment and compensation from Bishop
State Community College (“Bishop State”) for the reasons set forth in my
August 1, 2007 letter to you.
Pursuant to the Fair Dismissal Act, Ala. Code §§ 36-26-100 et seq., you
have the right to contest my decision to terminate your employment by
filing, with me, a written notice of contest of my decision within fifteen
days after you receive this notice. If you do not contest the decision
within fifteen days after you receive this notice, my decision shall be
final. In the event a notice of contest is filed, a hearing officer shall be
selected as provided in subsection (b) of Code of Alabama § 36-26-114.
The contest shall be heard as provided in Code of Alabama § 36-26-104.
Bishop State’s payroll records reflect that you currently have the
following non-tax items deducted from your paycheck each pay period:
… (9) PEEHIP2 ($194.00) … In addition, Bishop State currently pays
$775.00 each pay period for your PEEHIP insurance over and above your
$194.00 contribution each period. …
The Employee timely contested the Employer’s decision, and the case is before
2
Public Education Employees’ Health Insurance Plan, www.rsa.state.al.us/PEEHIP/peehip.htm.
8
IV. Procedural Considerations
Neither the Fair Dismissal Act, nor the Alabama Arbitration Act (Ala
nor FMCS rules specify the procedures to be followed in hearings under the Fair
Dismissal Act. Inasmuch as the Employer is a state agency and thus bound by
the due process clauses of both the US and Alabama Constitutions, some
reasonable rules must apply. See generally the Alabama Supreme Court’s
the only opportunity for an evidentiary hearing that the employee will ever have,
as a discretionary appeal to the Alabama Court of Civil Appeals is the sole route
(“The Court of Civil Appeals shall have discretion to refuse to hear appeals of
final decisions of a hearing officer pursuant to this article.”). Thus the need
9
In contrast the Federal Rules of Civil Procedure (“FRCP”), upon which the
Alabama Rules are based, Ex parte Christopher Deramus, 882 So 2d 875, 877
Despite the fact that application of the Alabama Rules to this case is not
followed, the hearing officer nevertheless looks to those Rules and to the
Federal Rules for guidance, in an effort to ensure that both parties are afforded
In her Motion:
(1) “The employee requests that the arbitrator [sic] issue an order
reinstating Ms. [P]’s pay until the charges against [P] are heard and
determined.”
(2) “The employee also requests that Bishop State reimburse Ms. [P]
for the medical expenses paid directly by Ms. [P] as a result of the
employer canceling her health insurance and such other normal
and reasonable costs incurred by Ms. [P] as the result of the
termination of her pay.”
10
Motion @ 11; parsing and numbering by hearing officer.
While the Fair Dismissal Act does not provide for motions, since the
Because ARCP 7(b)(1) and FRCP 7(b)(1) expressly authorize motion practice
and because the Employee might be harmed by the delay in hearing her case,3
recommend termination “shall contain a short and plain statement of the facts
showing that the termination is taken for one or more of the reasons listed in
in ARCP 8(a)(1) and FRCP 8(a)(2) (“a short and plain statement of the claim
showing that the pleader is entitled to relief”). The Employee’s Motion hinges in
large part upon the meaning of the italicized portion of the statute.
11
The employing board of education shall give notice in writing to the
employee, stating in detail the reasons for the proposed termination, the
facts upon which such reasons are based, and giving notice of the
employee’s rights to a hearing as set out herein. 4 (Emphasis supplied.)
One of the stated purposes of Act 2004-567 was “to streamline the contest and
furnishing an employee with a detailed statement of facts, and that may be the
clearly and simply; easily understood: plain talk.”5 In this legal context, “a …
plain statement of the facts” surely means one not consisting solely of
conclusory words, terms, or phrases. It is by these short and plain standards that
4
http://arc-sos.state.al.us/PAC/SOSACPDF.001/A0003223.PDF @ 1.
5
"plain." Dictionary.com Unabridged (v 1.1). Random House, Inc. 29 Mar. 2008. <Dictionary.com
http://dictionary.reference.com/browse/plain>.
12
The only facts stated in the Employer’s notice to the Employee are these:
when, where, or how they were committed; and their relationship to the
financial aid, course grade, and tuition waiver is not explained. The phrase
Employee may have taken numerous courses; the particular one at issue is not
identified. The erroneous grade may be the result of faulty memory or even a
typographical error, as may the mistakes regarding tuition waiver. The nexus
between the financial improprieties and aid, grade, and tuition may be so
“plain”. Not even the hearing officer can tell from the Employer’s brief
In truth, the Employer’s statement of facts may be far too short. In urging
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that the hearing officer act now upon the Motion, Employee counsel writes:
In its e-mail to the arbitrator [sic; the hearing officer was not appointed
until February 4, 2008] dated Wednesday, October 31, 2007, Bishop has
stated that relevant grand jury proceedings about [P], and 24 or so other
Bishop employees are not likely to be concluded until early 2008, after
which Bishop will “re-evaluate” [P]’s termination proposal. Motion @
10-11.
Several other employees have been arrested and charged with Theft of
Property in connection with the Financial Aid fraud at Bishop State. At
this time Bishop State has taken steps to terminate the pay of other
employees on the basis of moral turpitude in the FDA appeals
proceedings involving these employees. Employer Response @ 4, fn 1.
facts did not meet the standards of the Fair Dismissal Act.
[P] has been represented by counsel from the outset of these proceedings.
If [P] had any questions as to the reasons for her termination the same
could have been raised at the meeting with Dr. Lowe on August 29, 2007.
Response @ 12.
what the statute provides (“the employee, or his or her representative, shall be
afforded the opportunity to speak to the board”), much less what it requires.
Rather, the Fair Dismissal Act requires written notice well in advance of the
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conference. The Employer describes the Act’s requirements in these words:
In the Fair Dismissal Act, the legislature has set detailed and exacting
requirements and procedures for the sole purpose of insuring that
employees such as [P] receive due process. Response @ 9; emphasis
supplied.
Were it not for the fact that the Employee requests a new statement of
facts, the hearing officer might be forced to make a no-action ruling from
The hearing officer shall determine which of the following actions should
be taken relative to the employee: Termination of the employee, a
suspension of the employee, with or without pay, a reprimand, other
disciplinary action, or no action against the employee.
However, the Employee does make such a request, which the hearing officer
treats as being in the nature of a motion for a more definite statement under
ARCP and FRCP 12(e), so as not to begin any disciplinary proceedings anew.
While § -104 does not prescribe any specific time period within which
the Board must issue the decision to dismiss, after the employee has
either given notice of an intent to contest or has failed to give such a
notice by the 15th day, we hold that the Board's re-notice on the same
grounds was an abandonment of its original notice of intent to terminate.
15
It is thus unnecessary to determine the time period within which the
Board could have acted following Bolton's first notice of intent to contest.
This would not prohibit the Board, of course, from initiating termination
proceedings against Bolton for failure to perform his duties in a
satisfactory manner, neglect of duty, insubordination, immorality, or
“other good and just causes” occurring after September 11, 1985. The
Board would be estopped to re-notice Bolton only for those acts or
omissions that had occurred prior to the meeting of the Board at which
the Board voted to give Bolton the notice of a proposed termination. Id.;
emphasis in original.
But for the Employee’s request for a more definite statement, Bolton
might dictate that the case against her be dismissed. See also Allen v Bessemer
State Technical College, 703 So 2d 383, 386 (Ala Civ App 1997), in which the
court ruled:
Within fifteen (15) days of the date of this opinion, the Employer must
serve a revised statement of facts upon the Employee’s counsel and the hearing
identifies both its chancellor and vice chancellor & general counsel as attorneys,
and the Employer retains outside counsel as well, so the task should be an easy
one.
The hearing officer agrees with the Employee’s argument that, without
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first complying with the notice provisions of Ala Code § 36-26-103(a), the
10-11. Inasmuch as the hearing officer has concluded that the Employer’s notice
The Fair Dismissal Act requires that pay be provided to employees until a
hearing officer affirms the decision to terminate his or her employment,
except in cases involving moral turpitude. Ala. Code § 36-26-103(b).
Mot Ex A; emphasis in original.
(“a suspension of the employee, with or without pay, … [or] other disciplinary
award of back pay for improper suspension of pay, even if he ultimately should
An interim award is consistent with the purpose of the Fair Dismissal Act, as
articulated by the court in Gainous v Tibbets, 672 So 2d 800, 803 (Ala Civ App
1995):
The purpose of the FDA “is to provide non-teacher employees a fair and
17
swift resolution of proposed employment terminations,” and the FDA
should be liberally construed to effectuate its purpose. Bolton v. Board of
School Commissioners of Mobile County, 514 So.2d 820, 824
(Ala.1987).
See also Saulsberry v Wilcox County Board of Education, 641 So 2d 283, 286
The Employee must be put back on the payroll with benefits and paid
back pay for the period during which her pay erroneously was suspended. As
1992):
Rather, the clear implication of the provisions of the Act is that the
legislature intended that justice be accomplished by requiring an award of
“back pay” to the employee for the time from the Board's decision to
terminate her until the completion of the review process, if the review
panel determines that the initial decision of the Board was erroneous.
(According to the Board, without question, the review panel may order
back pay from the date of termination to the date of the review panel's
decision if the review panel finds that the Board's decision to terminate
was unwarranted or that the Board failed to comply with the Act. That is
correct.)
See also Allen, supra. A final adjudication of the Employee’s rights will be
other losses resulting from the Employer’s improper suspension of her pay is
18
In her request for relief, [P] asks for reimbursement of medical expenses
incurred subsequent to Bishop States termination of her pay. No authority
exists under the Fair Dismissal Act for such relief. The clear language of
the Act (36-26-103(b)) provides that if the Hearing Officer disagrees with
the decision to terminate the employee’s pay, “pay shall be reinstated”. In
consequence, Bishop State respectfully submits that the Hearing Officer
is without authority to order reimbursement of medical expenses under
the Fair Dismissal Act. Response @ 13.
Although agreeing that the issue is not perfectly clear, to the hearing officer,
That all courts shall be open; and that every person, for any injury
done him, in his lands, goods, person, or reputation, shall have a
remedy by due process of law; and right and justice shall be
administered without sale, denial, or delay. (Emphasis supplied.)
she could sue for damages in court. Were she to do so, she might sue not
only the College, but also the officials involved in the suspension of her pay.
Thus, there is some protection for College officials in resolving her claims
Moreover, “pay” is not defined in the statute; some courts have given the
Commw 619, 623; 464 A2d 679, 681-682 (1983), the court explained:
19
Webster's Third New International Dictionary 1659 (1966) characterizes
"pay" as including wages, salary and remuneration and as "money paid in
addition to basic wages or salary." (Emphasis added.)
Under such a broad definition, “pay” could include the $775.00 that the College
should have contributed each pay period toward the Employee’s health
(“to streamline the contest and appeal processes”) and of the State Constitution
for reimbursement. Gainous, supra (“fair and swift”). The College asserts that
“[t]he Alabama Legislature has determined the rights due employees such as
[P]. It’s called the Fair Dismissal Act.” Response @ 9. If the Act is to be
The hearing officer does not read the statutory language quoted in the
Court of Civil Appeals. As used in the Fair Dismissal Act, the proceeding
before the hearing officer is the “contest”. §§ 36-26-103(b) & 104(a). Any
“appeal” is to the Court of Civil Appeals. §§ 36-26-103(b) & 104(b). See also
Act 2004-567 (“contest and appeal”). The hearing officer’s authority is specified
20
employee whole. As the College concedes:
Within fifteen (15) days of the date of this opinion, the Employee is to
serve upon the Employer and the hearing officer an itemized list of her claims
for reimbursement, and the parties then are to attempt to negotiate a settlement
of those claims. All that remain unsettled at the time of the hearing are to be
raise and substantiate its argument anew at the hearing and in final briefs.
point, as the Employer will not have a second bite at the apple by suspending
the Employee’s pay on the basis of its revised statement of facts. Bolton, supra.
Chapman v Gooden, 2007 Ala LEXIS 98, 2007 WL 1576103 (Ala). Although
6
The Hon. Robert S. Vance, Jr., Jefferson County Circuit Judge, the trial judge, graciously emailed a copy of his
thoughtful opinion to the hearing officer, Gooden v Worley, No CV-2005-5778-RSV. Judge Vance deserves
enormous credit for effecting a reform of Alabama’s voter registration procedures, and his thorough analysis of
21
The Employer must state facts which support an allegation of moral
turpitude; the interim president’s mere belief (“I believe”, Mot Ex B) will not
suffice. It might be wise to follow ARCP and FRCP 9(b), which require that
“[i]n alleging fraud or mistake, a party must state with particularity the
accusation of moral turpitude may require a higher standard. Elkouri & Elkouri,
For all the foregoing reasons, the Employee’s Motion is granted in part
and denied in part. The hearing officer’s orders are summarized and the
(I) The Employer forthwith shall put the Employee back on its payroll with
benefits and give her back pay for the period during which her pay has
been suspended.
(II) Within fifteen (15) days of the date of this opinion, the Employer shall
serve upon the Employee’s counsel and the hearing officer a revised
statement of the facts showing that the termination is taken for one or
22
(III) Within fifteen (15) days of the date of this opinion, the Employee shall
serve upon the Employer and the hearing officer an itemized list of her
claims for reimbursement, and the parties then are to attempt to negotiate
(IV) The hearing is scheduled for June 2, 2008, unless the parties agree
otherwise.
(V) Unless the parties agree otherwise, on or before May 1, 2008, the parties
shall submit to the hearing officer, with a copy to the opposing party,
The hearing officer’s findings of fact and conclusions of law are embodied in
_____________/s/_____________
E. Frank Cornelius, PhD, JD
Hearing Officer
Dated March 31, 2008
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