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STATE OF ALABAMA

Fair Dismissal Act Hearing

[MP],
Employee,

v FMCS No. 08-00952

BISHOP STATE COMMUNITY COLLEGE,


Employer.
_______________________________________/

OPINION OF THE HEARING OFFICER


ON EMPLOYER’S MOTION TO RECONSIDER

May 1, 2008

For the Employee: For the Employer:

A. J. Cooper David M. O’Brien


Cooper Law, PC Jeffrey G. Miller
21 S Section Street Sirote & Permutt, PC
Fairhope, AL 36532 1 St. Louis Center, Suite 1000
Mobile, AL 36602
Raymond Bell, Jr.
Bell & Adams
182 St. Francis Street, Suite 300
Mobile, AL 36602
I. The Procedural Posture Of The Case

On February 2, 2008, the undersigned was appointed as hearing officer in

this case under the Alabama Fair Dismissal Act (“FDA”), Ala Code §§ 36-26-

100 et seq., between Bishop State Community College (“Employer” or

“College”) and its employee, [MP] (“Employee”). On March 3, 2008,

Employee counsel served the Employee’s Motion to Reinstate Pay for Bishop’s

Failure to Provide Due Process (“Employee Motion”). On March 26, 2008,

Employer counsel served the Response of Bishop State Community College to

Employee’s Motion to Reinstate Pay (“Employer Response”). On March 31,

2008, the hearing officer issued the Opinion of the Hearing Officer on

Employee’s Motion to Reinstate Pay (“Opinion on Employee Motion” or

simply “OEEM”).1

The hearing officer granted the Employee Motion in part and denied it in

part, summarizing his orders and setting the schedule for the case as follows:

(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 more of the reasons listed in Section 36-26-102.

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Proceedings were, therefore, commenced “no less than 30 days and no more than 60 days following the
appointment of the hearing officer,” as required by Ala Code § 36-26-104(a).

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(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 a settlement of those claims.

(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, documents supportive of, or in contravention to,
the action, as well as a list of witnesses to be called at such
hearing. OEEM @ 22-23.

On April 14, 2008, Employee counsel sent a letter to Employer counsel,

listing $29,932.57 in claims by the Employee for reimbursement, largely for

medical expenses incurred as a result of her loss of insurance coverage. On

April 15, 2008, Employer counsel served a Motion to Reconsider (“Employer

Motion”), contending that the College’s “short and plain statement of the facts”,

You committed financial improprieties in relation to the receiving of


financial aid, to falsifying your grade in a course, and to falsifying an
employee and dependent tuition waiver.

suffices to satisfy the notice requirements of Ala Code § 36-26-103(a). The

College also contends that it cannot be required to reimburse the Employee for

the benefits that she has lost as a result of the suspension of her pay. The

College has yet to put the Employee back on the payroll or pay her back pay, as

ordered by the hearing officer in his Opinion on Employee Motion.

The Employee’s Response to College’s Motion to Reconsider was served

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April 29, 2008, without exhibits. A revised version with exhibits (“Employee

Response”) was served May 1, 2008; the exhibits are cataloged infra.

It is important to bear in mind that the notice provided by Ala Code §

36-26-103(a) is the employer’s “complaint” against the employee, and the

hearing to which an employee is entitled under § 36-26-104(a) is the

employee’s “trial” on the charges set forth in the notice. The only statutorily

mandated supplement to the notice is the exchange of “documents

supportive of, or in contravention to, the action, as well as a list of witnesses

to be called at such hearing”, under § 36-26-104(a). At stake in these

proceedings is an employee’s livelihood.

Conspicuously absent from the Employer Motion is any judicial authority

in support of its position, despite the facts that the “short and plain” language of

the FDA is taken directly from the pleading standards of ARCP 8(a)(1), which

in turn is taken from FRCP 8(a)(2), and numerous cases have been decided

under those rules. OEEM @ 11. The same language is found also in § 16-24-

9(a) of the Teacher Tenure Act, Ala Code §§ 16-24-1 et seq., which parallels the

FDA, yet the College cites not a single court decision to buttresses its argument.

Because the College offers no compelling reason why the OEEM should be

changed, the Employer Motion is denied, as more particularly explained below.

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II. What The Constitution Requires

In Wilson v Madison County Board of Education, 2007 Ala LEXIS 236;

27 IER Cas (BNA) 228; 2007 WL 3238718, the Alabama Supreme Court held

that a hearing officer in a Teacher Tenure Act case “must apply Alabama law as

set forth in the new Act and court decisions interpreting the new Act and

provisions of the old Act that remain unchanged by the 2004 amendments.”

2007 Ala LEXIS @ *21.

While the instant case arises under the Fair Dismissal Act,

To interpret the Fair Dismissal Act, the courts have referred to the
Teacher Tenure Act and to decisions applying that Act, in an effort to
define and clarify the provisions of the Fair Dismissal Act. See e.g.,
Ledbetter v. Jackson County Bd. of Educ., 508 So. 2d 244 (Ala. 1987);
Ike v. Board of School Comm'rs of Mobile County, supra; Uwakolam v.
Huntsville City Bd. of Educ., 554 So. 2d 1036 (Ala. Civ. App. 1989);
Hughes v. Britnell, 554 So. 2d 1041 (Ala. Civ. App. 1989).

Athens State College v Ruth, 795 So 2d 703, 706 (Ala Civ App 1999). The

hearing officer therefore looks to Alabama law, including cases decided under

the Teacher Tenure Act. The US Constitution is, of course, an integral part of

Alabama law. Const, Art VI, Clause 2 (Supremacy Clause).

Frizzell v Autauga County Board of Education, 972 F Supp 564 (MD Ala

1997), was a due process case brought under 42 USC § 1983 and is cited by the

College in Employer Response @ 10. There the federal district court stated:

Defendants do not dispute that under the Alabama Teacher Tenure Act,
Ala. Code § 16-24 et seq., plaintiff has a property interest in his continued

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employment. See Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed.
2d 548, 92 S. Ct. 2701 (1972) (holding that state law determines
existence of property interest). In Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) the Supreme
Court held that an employee's property interest in continued employment
cannot be deprived without appropriate procedural safeguards. Id. at 541.

972 F Supp @ 565. In the instant case, the College does not dispute that the

Employee has a property interest in her continued pay and employment. Ala

Code § 36-26-102.

In accord that the minimum process due is that afforded by the US

Constitution is Wells v Dallas Independent School District, 793 F2d 679, 682

(5th Cir 1986), a case mentioned in the Employer Response @ 10:

A public employee with a property interest in his continued employment


is entitled under the Fourteenth Amendment to the following minimum
due process rights in connection with termination of his services: (1) to
be advised of the cause of the termination [or of the charges to be heard]
in sufficient detail to permit him to show any error that may exist; (2) to
be advised of [if he does not himself hear] the names and nature of the
testimony of the witnesses against him; (3) to be afforded a meaningful
opportunity to be heard in his own defense within a reasonable time and
(4) before a tribunal that possesses some expertise and an apparent
impartiality toward the charges. Levitt v. Univ. of Texas at El Paso, 759
F.2d 1224, 1228 (5th Cir. 1985). If a state or local government demands
that its officials afford a more elaborate process than the Constitution
requires, its demands alone cannot expand the boundaries of what
concerns us here: federal constitutional due process. Eguia v. Tompkins,
756 F.2d 1130, 1137 (5th Cir. 1985). See also Levitt v. Univ. of Texas,
supra, 759 F.2d at 1230.

Thus the threshold test is whether the College’s notice to the Employee, issued

pursuant to the “short and plain statement of the facts” requirement of Ala Code

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§ 36-26-103(a), satisfies the notice requirements of the US Constitution. The

hearing officer again concludes that it does not.

There is ample case law describing what notice is and is not sufficient. In

OEEM @ 12, the hearing officer observed that “if the alleged misconduct is

simple, a brief statement suffices.” Birmingham Board of Education v Holifield,

604 So 2d 418 (Ala Civ App 1990), is an example of a simple case:

In September 1988, pursuant to the act, the employee received written


notice from the board of the proposed termination of his employment.
The grounds for the proposed termination were insubordination and good
and just cause. The letter further stated that the proposed action was
based upon the following conduct: "Possession of a gun at Pratt
Elementary School on July 19, 1988, in violation of School Board Policy
# 3131." 604 So 2d @ 418-419; emphasis supplied.

The single underlined statement clearly explained what the alleged act was

(“Possession of a gun”), where it was committed (“at Pratt Elementary

School”), when it was committed (“on July 19, 1988”), and why it was wrong

(“in violation of School Board Policy # 3131”). The College’s notice omits

virtually all such factual information.

Wells v Dallas Independent School District, 793 F2d 679 (5th Cir 1986),

mentioned in the Employer Response @ 10, is more complex:

We are persuaded that material issues of fact did exist as to whether


Wells received notice of the cause of his discharge in sufficient detail to
enable him to show any errors. Wells received a letter dated November
14, 1979, notifying him of the Administrative Council hearing. The letter
further provided:

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At the hearing the Administration will present evidence with
regard to the following matters and charges forming the basis of
your termination:

1. Negligence and misconduct in the management and supervision


of the activities and affairs of the department under your control.
2. Insubordination and disobedience in participating in the
execution of a management contract with the Foundation for
Quality Education in direct opposition and defiance of orders of
the General Superintendent.
3. Negligence and mismanagement by you in your agreement to
terms and conditions and execution of documents related to a
pledge of retainage by Maxwell Construction Company to the
Merchant's State Bank.
4. Approval by you and persons under your direct supervision and
control of payments for charges that you knew or should have
known were unreasonable and excessive on various construction
and repair jobs performed throughout the District.
5. Failure to ensure adequate job site supervision either by DISD
staff or outside architects and engineers under contract to the
District for such purposes.
6. Attempting, by intimidation or other means, to require
principals and other persons at various schools and job sites to
improperly and falsely approve work performed on facilities under
their control and supervision.
7. Failing to maintain adequate procedural and other safeguards as
to competitive bidding.
8. Abuse and misuse of the emergency contract procedures and
open purchase order procedures of the District by you and those
under your supervision and control.

Charges two and three were allegations of misdeeds in specific


circumstances, permitting Wells to prepare his defense. The other
charges, however, are vague and fail to set out the specific circumstances
of the claimed misdeeds. At the very least, these vague charges permit
conflicting inferences as to whether Wells received sufficient notice of
the charges against him. The entry of summary judgment was therefore in
error. 793 F2d @ 682-683; emphasis supplied.

In the instant case, the College’s notice contains none of the specificity found

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charges 2 and 3 in Wells.

A model example of a notice under the FDA can be found in Perine v

Kennedy, 868 So 2d 1123, 1125-1126 (Ala Civ App 2003), a case involving the

College itself as the employing entity:

"This is to notify you that it is my intention to confirm your earlier


resignation/termination of employment with Bishop State Community
College, which was effective July 13, 2000. In the event that I decide
to confirm your earlier resignation/termination of employment, you
will receive another letter from me, specifying that I will be taking
such action.

"Your termination is based upon your unapproved absence from work


for more than three (3) consecutive workdays, as I stated in my letter
to you, dated August 1, 2000, a copy of which is enclosed. The
official records of the College indicate that you were absent from
work, without approval, from July 10, 2000, until August 1, 2000.
Due to your unapproved absences, the following State Board of
Education policy, regarding Abandonment of Position, is applicable to
your employment:

"Policy # 618.01, Section 1.2 -- Any employee who is absent


from work for three (3) consecutive workdays without approval
shall be considered to have abandoned the position and to have
resigned from the employing institution.

"Under the rules of the Alabama State Board of Education, you are
entitled, subject to the terms and conditions of the Fair Dismissal Act,
to appeal my decision should I determine that your termination … will
be imposed or confirmed. If you intend to appeal the termination, if
imposed or confirmed, you must notify me in writing within fifteen
(15) days of your receipt of this letter, of your intent to contest the
termination, if imposed or confirmed. If you do not intend to appeal
the termination, [if] imposed or confirmed, you need not respond to
this letter."

The notice stated the charge, the policy violated, the dates of violation, and the

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evidence against the employee. In the instant case, the College’s notice is short

on evidentiary facts.

In City of Orange Beach v Duggan, 788 So 2d 146, 152 (Ala 2000), the

Alabama Supreme Court cited Cleveland Board of Education v Loudermill, 470

US 532 (1985), for the following proposition:

Therefore, the Supreme Court concluded that under federal procedural-


due-process law all that is required in a pretermination hearing is “oral or
written notice of the charges against [the employee], an explanation of
the employer’s evidence, and an opportunity [for the employee] to
present his side of the story. Id. at 546. (Emphasis supplied.)

The College’s notice to the Employee was devoid of any mention of its

evidence against her. Loudermill, 470 US @ 537 (“the value of presenting

evidence prior to dismissal”).

In the Employer Response @ 10, the College quotes two cases which

tend to undermine its position. The court in Fairfield Board of Education v

Acoff, 868 So 2d 1105 (Ala Civ App 2003), quoted from Wells v Dallas Indep

Sch Dist, 793 F2d 679, 683 (5th Cir 1986):

Any charged person is constitutionally entitled once to be told what he is


charged with and on what evidence … (Emphasis supplied.)

The College’s notice to the Employee said nothing about the evidence on which

the College relied to conclude that she was guilty.

Similarly, in Frizzell v Autauga County, 972 F Supp 564, 565 (MD Ala

1997), Employer Response @ 10, the employee was informed of the charges

10
and evidence against him:

Here, the record is clear that Plaintiff received notice of the charges
against him, the names of the witnesses the board expected to call and
copies of the documents which the board intended to rely upon to support
its proposed cancellation. This is all the process Plaintiff is due under the
Federal Constitution. (Emphasis supplied; footnote omitted.)

Here the College neither provided the Employee with any documentation nor

described its evidence against her so that she and her attorney could prepare for

the pretermination conference.

The Eleventh Circuit succinctly summarized the due process

requirements in the public employment case of Clemons v Dougherty County,

Georgia, 684 F2d 1365, 1374 (11th Cir 1982):

Due process required, at least, that Clemons be advised of the charges


against him in sufficient detail fairly to enable him to show any error that
might exist, and that he be heard by an impartial tribunal. (Emphasis in
original.)

An employee and her attorney are entitled to know the evidence that they have

to counter, else they will be unable to prepare their defense. In the instant case,

the College did not notify the Employee or her counsel of the charges in

sufficient detail or refer to any evidence against her.

III. The College’s Efforts To Supplement The Notice

In OEEM @ 13, the hearing officer remarked:

The Employer’s statement of facts concededly is “short”, but it is


hardly “plain”. Not even the hearing officer can tell from the
Employer’s brief description what the Employee supposedly did or

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why the Employer is convinced of her culpability. The Employer’s
Response provides little additional information about events.

The Employer Motion @ 6-7 finally furnishes some putative factual

information about the College’s charges against the Employee, adduced at a

preliminary criminal hearing on August 8, 2007:

At the hearing, the State’s witness testified that Ms. [P] was being
charged with theft by deception for $1,450 in Pell Grant funds in the
Spring of 2005 and for $3,500 in Pell Grant funds in the 2005/2006
academic year. Specifically, the State’s witness testified that Ms. [P]
took a sociology class, SOC247, in Spring 2005 and received an
incomplete grade. After receiving this incomplete grade, she would
have been required to refund the Pell Grant funds but she did not do
so. Instead, she changed her grade from an incomplete to an “A.” As a
result, she was able to keep the Pell Grant funds. With respect to the
funds received in the 2005/2006 academic year, Ms. [P] represented to
Bishop State that she had a stepdaughter named Shevonda Archible
and that Ms. Archible was one of her dependents. Dependents of
Bishop State employees are eligible for tuition waivers. However, it
turns out that Ms. Archible is not Ms. [P]’s stepdaughter, and they are
not related at all. This ultimately allowed Ms. Archible to improperly
receive a Pell Grant award in 2005/2006 in the amount of
approximately $3,500.

This is precisely the type of factual information that the College was

required to provide in its notice to the Employee.2 The College appears to

confuse “a short and plain statement of the facts” with “a short and plain

statement of the allegations”, the latter of which is neither constitutionally

nor statutorily sufficient.

The College urges that the Employee and her counsel had ample

2
The hearing officer passes no judgment as to the truth or falsity of the “facts” stated; they await proof.

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knowledge of the facts:

Further, Ms. [P] and her counsel were informed at the pre-termination
due process conference on August 29, 2007, that the specific facts
supporting the decision to terminate Ms. [P]’s employment and her
compensation on the basis of moral turpitude are the same as the facts
involved in her parallel criminal case. Prior to the pre-termination due
process conference, Ms. [P]’s preliminary hearing in her criminal case
was held on August 8, 2007. Ms. [P] and her counsel were present at
that hearing, and her counsel cross-examined the State’s witness
thoroughly. A copy of the transcript from Ms. [P]’s preliminary
criminal hearing is attached hereto as Exhibit “M.” Employer Motion
@ 6; footnotes omitted.

Unfortunately for the College, this is not what the Constitution and the

FDA require. It undoubtedly is true that a person who commits a crime has

actual knowledge of all aspects of the crime, but the accused’s own

knowledge is no substitute for the government’s notice of charges. The

purpose of the notice under Ala Code § 36-26-103(a) is to enable the

employee or her attorney “to speak to the board on matters relevant to such

termination.”

Without adequate advance notice of the charges, neither employee nor

attorney has a reasonable opportunity to prepare a rebuttal. The College

presents no evidence that, in advance of the pretermination conference, the

Employee or her counsel ever were told “that the specific facts supporting

the decision to terminate Ms. [P]’s employment and her compensation on the

basis of moral turpitude are the same as the facts involved in her parallel

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criminal case.”

IV. The Scope Of An FDA Proceeding And The Remedies Available

In OEEM @ 18-21, the hearing officer explained why he believes that

the Employee is entitled to present her claims for reimbursement in this

proceeding. In the Employer Motion, the College makes no effort to rebut the

hearing officer’s reasoning, particularly his observation that “pay” is a flexible

term. In Employee Response @ 6, counsel point out that the College itself used

the more inclusive term “compensation” in its letters to the Employee.

Employer Response, Exhibits B & C. The College also uses that same broader

term throughout the Employer Response and the Employer Motion.

Board of School Commissioners of Mobile County v Dunn, 962 So 2d

814 (Ala 2007), decided under the Teacher Tenure Act, is instructive as to the

authority of a hearing officer to fashion an appropriate remedy:

The responsibilities of the hearing officer are found in § 16-24-10(a):

"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: 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. The
hearing officer shall render a written decision, with findings of fact
and conclusions of law, within 30 days after its hearing."

An ore tenus hearing was held on April 7, 2005. On April 30, 2005, the
hearing officer rendered his written decision. The hearing officer found

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beyond question "that the Board ha[d] reasonably and substantially
proven that Dunn engaged in serious misconduct, as set forth in the five
charges made in the superintendent's recommendations to the Board."
However, the hearing officer did not cancel Dunn's employment contract.
Instead, he ordered that Dunn be barred from any coaching position for
four years, that he be suspended without pay for 30 days, and that he
apologize to his players orally and to each of their parents or guardians in
writing. Dunn's employment as a science teacher was not terminated.
962 So 2d @ 815-816; footnote omitted.

Section 16-24-10(a) gives the hearing officer the authority to determine


the appropriate disciplinary action. In exercising this authority, "the
hearing officer may consider the employment history of the teacher,
including, but not limited to, matters occurring in previous years." § 16-
24-20(c). In this case, the hearing officer's decision clearly reflects his
careful consideration of Dunn's entire "employment history," including
the good as well as the indefensible. Only after doing so did the
experienced hearing officer determine what he considered to be the
appropriate sanction for Dunn's misconduct. Although we may disagree
with the wisdom of the decision, we may not substitute our judgment for
that of the hearing officer. In our opinion, the hearing officer's decision is
not arbitrary, because it is clear that he examined all the facts, articulated
a satisfactory explanation for his action, and stated a rational connection
between the facts and the discipline he imposed. 962 So 2d @ 823-824.

Thus a hearing officer has broad discretion in fashioning an appropriate remedy.

In Coaker v Washington County Board of Education, 646 So 2d 38 (Ala

Civ App 1993), a suit brought by an employee covered by the FDA, the court

noted the employee’s receipt of compensation for medical expenses:

On August 19, 1991, Coaker filed a motion for preliminary injunction


to prohibit his termination. The trial court conducted ore tenus
proceedings on Coaker's motion on October 9 and November 20,
1991. Meanwhile, on November 6, 1991, Coaker accepted a
settlement payment from the State Board of Adjustment in the amount
of $12,171.43, representing a compensation of $11,701.44 for 34
weeks of lost wages beginning on January 26, 1990, and a

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compensation of $469.99 for uninsured medical expenses following
his shoulder injury.

In the present case, the Board concedes that Coaker negotiated for
light duty assignments as part of the settlement. He accepted a
settlement agreement containing a provision that he receive only light
duty, but he did not receive light duty. As a result, he not only lost the
opportunity to sue the Board for its failure to hold a hearing before
transferring him to a job with lower pay, but he also had to endure
heavier duty assignments. It is undisputed that these assignments
caused Coaker to suffer further injuries.

Accordingly, this case is reversed and the cause remanded with


instructions to issue a writ of mandamus directing the Board to (1)
reinstate Coaker to his original position and salary as of November 17,
1987, with adjustments for increases in the cost of living and other
nondiscretionary pay raises; (2) cease further efforts to illegally
transfer Coaker; (3) compensate Coaker with backpay plus interest
and adjustments for increased cost of living and nondiscretionary pay
raises, from November 17, 1987, less the $11,701.44 that Coaker
received for 34 weeks of lost wages from the State Board of
Adjustment; and (4) award any other equitable relief to which Coaker
may be entitled.

Although interest, cost-of-living adjustments, and “any other equitable relief

to which [the employee] may be entitled” are not mentioned in the FDA, the

court had no difficulty awarding them.

The hearing officer repeats his admonition in OEEM @ 19, that the

College, by resisting resolution of the Employee’s claims in this proceeding, is

taking a risky position. If the Employee is forced to go to court to press her

claims, she very well may bring a due process suit under 42 USC § 1983,

against the College and its officials. According to Young v McLeod, 841 So 2d

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245 (Ala Civ App 2001), the College officials would not have immunity, even if

suit were filed in State court:

In its first opinion, this court dealt with the appeals of two instructors at
Wallace State Community College, John McLeod and Barbara Dinkins,
who had both sued the college and its then president, Dr. Larry Beaty.
Ms. Dinkins settled her claim with the college and is now deceased. The
college has a new president, Dr. Linda Young, who has been substituted
for former President Beaty. 841 So 2d @ 247, fn 1.

"In general, § 14 prohibits the State and its agencies from being made
defendants in any court. Alabama State Docks v. Saxon, 631 So. 2d 943
(Ala. 1994). This protection from suit also applies to officers or agents of
the State who are sued in their official capacities or individually, when
the action is, in effect, one against the State. Mitchell v. Davis, 598 So. 2d
801 (Ala. 1992); Phillips v. Thomas, 555 So. 2d 81 (Ala. 1989).
However, the immunity from suit conferred by § 14 is not absolute. A
state officer is not immune from suit when he or she has acted under a
mistaken interpretation of the law, when the lawsuit is to compel the
performance of a legal duty or ministerial act, or where the lawsuit is
brought under the Declaratory Judgment Acts." 841 So 2d @ 248;
emphasis supplied.

Punitive damages and attorney’s fees may be recovered under § 1983, in

addition to actual damages, and a jury trial is available for the asking. The

hearing officer is of the opinion that it is better for both parties to settle all

claims arising out of the Employee’s proposed termination in this single

proceeding. Indeed, it would be anomalous for the Employer to be able to

terminate the Employee’s pay under the FDA but for the Employee to be unable

to obtain compensation for wrongful termination, under that same statute. The

Employee’s claims for reimbursement are certainly “matters relevant to such

17
termination” within the meaning of FDA § 36-26-103(a).

The College continues to insist that “appeal” in Ala Code § 36-26-103(b)

refers to the proceeding before the hearing officer. Employer Motion @ 7-8. In

Wilson v Madison County Board of Education, 2007 Ala LEXIS 236, *10; 27

IER Cas (BNA) 228; 2007 WL 3238718, the Alabama Supreme Court wrote in

dicta:

Wilson objects to the Court of Civil Appeals' use of the word "appeal"
with reference to a teacher's right to "contest the board's decision" at a
hearing before a hearing officer. Although the word "contest" might be
more precise, the action taken is an "appeal" in the general sense of
subjecting the board's decision to review by the hearing officer. Further,
the Court of Civil Appeals recognized that the hearing was de novo when
it used the language "after receiving ore tenus and documentary
evidence" in its opinion. ___ So. 2d at ___, 2006 Ala. Civ. App. LEXIS
496 at *2.

The court did not have before it the precise meaning of “appeal”, as does the

hearing officer.

Interpreting “appeal” to refer to the hearing officer would do violence to

the broad authority granted him under Ala Code § 36-26-104(b):

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.

In a case in which an employer wrongfully terminates an employee’s pay for

alleged moral turpitude, the hearing officer nevertheless may determine that the

employee is deserving of a suspension without pay and may assess the

18
employee’s lost pay as punishment, much as a criminal court utilizes time

served.

Under the FDA, the Court of Appeals’ only authority is to review the

hearing officer’s decision under an arbitrary and capricious standard and order a

new hearing if warranted. Ala Code § 36-26-104(b). If the appellate court

overturns a board’s action of terminating an employee’s pay for moral turpitude,

then the FDA provides that “pay shall be reinstated.” Ala Code § 36-26-103(b).

For these reasons, the hearing officer does not accept the College’s argument.

The Employee’s claims for reimbursement beg for settlement. If they are

not resolved before the hearing, it will be protracted, as the claims will have to

be analyzed in light of the medical insurance contract, which may call for

deductibles or copays. In the meantime, the parties are in a position to negotiate

settlements with service providers for the amounts that the providers would

have received under the insurance contract, which may be substantially less than

the Employee was charged. Therefore, the hearing officer reiterates his directive

for the parties to meet and attempt to achieve a settlement. If he finds that either

party has failed to negotiate in good faith, then that fact will be factored heavily

into his final decision.

V. The Burden And Standard Of Proof

The FDA is silent on the burden (the risk of non-persuasion) and standard

19
(beyond a reasonable doubt, clear and convincing, or more probable than not) of

proof to be applied in these cases. Both of these issues are presented in the

instant case. Peace v Employment Security Commission of North Carolina, 349

NC 315, 327-329; 507 SE 2d 272, 281-281 (1998), contains an excellent

discussion of these issues in a public employment case:

The United States Supreme Court has never indicated that procedural due
process requires a particular allocation of the burden of proof among
parties in a civil matter. The Supreme Court has, however, addressed the
determination of the appropriate standard of proof, recognizing that the
determination of an appropriate standard of proof must reflect the value
society places on the individual interest sought to be protected. Santosky,
455 U.S. at 754-55, 71 L. Ed. 2d at 607. The Santosky Court utilized the
Mathews-Eldridge balancing test to determine the appropriate standard of
proof in a case involving the termination of parental rights, reaffirming
the Mathews-Eldridge test as the benchmark for procedural due process
compliance. Id.

In addition to the Mathews-Eldridge analysis, we must also consider


applicable North Carolina law addressing the allocation of the burden of
proof. The North Carolina Constitution, like the United States
Constitution, does not compel the allocation of the burden of proof to
either party in a "just cause" employment termination controversy.
Furthermore, the North Carolina General Assembly has not specifically
addressed the proper allocation of the burden of proof in "just cause"
termination cases. The State Personnel Commission likewise has not
dictated a specific allocation of the burden of proof pursuant to its rule-
making authority found in N.C.G.S. §§ 126-4(6), (7a), (9), (11) and 126-
26.

In the absence of state constitutional or statutory direction, the


appropriate burden of proof must be "judicially allocated on
considerations of policy, fairness and common sense." 1 Kenneth S.
Broun, Brandis & Broun on North Carolina Evidence § 37 (4th ed.
1993). Two general rules guide the allocation of the burden of proof
outside the criminal context: (1) the burden rests on the party who asserts

20
the affirmative, in substance rather than form; and (2) the burden rests on
the party with peculiar knowledge of the facts and circumstances. Id. The
North Carolina courts have generally allocated the burden of proof in any
dispute on the party attempting to show the existence of a claim or cause
of action, and if proof of his claim includes proof of negative allegations,
it is incumbent on him to do so. Johnson v. Johnson, 229 N.C. 541, 544,
50 S.E.2d 569, 572 (1948).

Applying these general principles to the case sub judice, it is clear that an
employee terminated pursuant to the "just cause" provision of N.C.G.S. §
126-35 should bear the burden of proof in an action contesting the
validity of that termination. Petitioner, the terminated employee, is the
party attempting to alter the status quo. The burden should appropriately
rest upon the employee who brings the action, even if the proof of that
position requires the demonstration of the absence of certain events or
causes. Neither party in a "just cause" termination dispute has peculiar
knowledge not available to the opposing party. A terminated employee
may readily utilize the procedures outlined in chapter 126 and section
1A-1 of the North Carolina General Statutes, as well as title 26 of the
North Carolina Administrative Code, to obtain any and all necessary
information to establish and advocate his or her position.

Cf. Ala Administrative Code § 670-x-5-.08 (Hearing Procedure), which,

although more detailed than the FDA, still does not shed much light on the

questions presented here.

There is a suggestion in Wilson v Madison County Board of Education,

2007 Ala LEXIS 236; 27 IER Cas (BNA) 228; 2007 WL 3238718, that the

burden is on the employer to justify its reasons for terminating an employee in a

Teacher Tenure Act case:

The new Act gives guidance as to the issues for decision by the hearing
officer. Issues that may be considered include, but are not limited to: (1)
Whether the evidence proves a ground or grounds asserted for
cancellation of the teacher's contract; (2) Whether there are any improper

21
motives for cancellation5 under § 16-24-8, Ala Code 1975, such as
political or personal reasons; and (3) Whether cancellation of the
teacher's employment contract or one of the other alternatives under § 16-
24-10(a) is the appropriate penalty based upon the law and the facts.

5 The existence of an improper motive for termination, a political or personal reason, is in the nature of a
defense. The teacher asserting such a motive must place the motive "at issue" by specifically pleading the
facts alleged to establish an improper motive.

2007 Ala LEXIS @ *22-23.

Issue (1) is the type of issue in which the burden of proof devolves upon

the employer. That is certainly true in arbitration over a discharge under a

collective bargaining agreement. Elkouri & Elkouri, How Arbitration Works

(ABA/BNA 6th ed 2003) @ 349, 949; Hill & Sinicropi, Evidence in Arbitration

(BNA 2nd ed 1987) @ 39-41. In Board of School Commissioners of Mobile

County v Dunn, 962 So 2d 814, 815 (Ala 2007), decided under the Teacher

Tenure Act, the hearing officer found “‘that the Board ha[d] reasonably and

substantially proven that Dunn engaged in serious misconduct’.” Inasmuch as

the employer is required to provide reasons for its actions under the FDA, it is

reasonable to conclude that the burden is on the employer to substantiate those

actions at the hearing.

The court’s discussion of a defense in footnote 5 of Wilson also is

germane to the instant case. In Employer Motion @ 8, the College asserts that

the Employee could have continued her insurance coverage by paying the

premiums herself. That assertion is in the nature of an affirmative defense of

22
failure to mitigate damages. Elkouri & Elkouri, How Arbitration Works

(ABA/BNA 6th ed 2003) @ 1224-1228. Again, following Wilson, the burden of

proof should be on the employer, the party asserting the defense. In the instant

case, the College must prove that the Employee had a duty and the financial

capacity to pay the insurance premiums despite having her pay suspended.3

More difficult than the burden of proof is the issue of the proper standard

of proof. At least four times in the Employer Motion, the College accuses the

Employee of fraud:

(1) The undersigned is counsel for Bishop State in numerous of these FDA
cases, many of which arise out of the same massive financial aid,
scholarship, and academic fraud scheme out of which this case arises.
Employer Motion @ 1; emphasis supplied.

(2) We included as Exhibits “E” and “F” orders from two different hearing
officers in separate, though very similar termination cases. While these
cases do not arise from the fraud scheme out of which the others,
including the case against Ms. [P], arise, we included these orders here to
highlight the fact that there has been virtually no arbitral consistency in
these termination cases. Employer Motion @ 4, fn 3; emphasis supplied.

(3) In another FDA termination case involving a Bishop State employee


that arises out of the same massive fraud scheme out of which the case
against Ms. [P] arises, the hearing officer determined that Bishop
State did not provide the employee, Angelo Archible, with specific
enough facts to satisfy the FDA’ “short and plain statement of facts”
requirement, despite the fact that Mr. Archible was provided with the
same quantum of facts that were provided to all of the other
employees, including Ms. [P]. Employer Motion @ 5; emphasis
supplied.

3
But see Alabama Department of Mental Health and Mental Retardation v Alabama State Personnel
Department, 863 So 2d 1118 (2003). Query, whether there is a duty to mitigate under Alabama law.

23
(4) The purpose of the preliminary hearing was to determine whether
there was probable cause for the case to be presented to the grand
jury. The Judge determined that probable cause existed and bound the
case over to the grand jury. We understand that the District Attorney’s
office is preparing this and several other cases related to the fraud
scheme at Bishop State for presentation to the grand jury at this time.
Employer Motion @ 6, fn 4; emphasis supplied.

As the hearing officer pointed out in OEEM @ 14, if the College is

charging the Employee with being part of a “fraud scheme”, then it is incumbent

upon the College to state facts that support the charge. To date, the College has

stated none regarding any such scheme. Furthermore, the hearing officer also

pointed out that, to the extent that ARCP and FRCP 9(b) provide guidance,

fraud must be stated with particularity. OEEM @ 22. The Committee

Comments on 1973 Adoption explain:

Subdivision (b). This subdivision is identical with federal Rule 9(b) and
similar state rules. It is a qualification of the generalized pleading
permitted by Rule 8(a). But this special requirement as to fraud and
mistake does not require every element in such actions to be stated with
particularity. It simply commands the pleader to use more than
generalized or conclusory statements to set out the fraud complained of.
The pleading must show time, place and the contents or substance of the
false representations, the fact misrepresented, and an identification of
what has been obtained.

23 Michie’s Alabama Code (2003 Replacement Volume) @ 73. See also Case

Notes, id. @ 78-79, and 2007 Cumulative Supplement @ 23.

In addition to having to allege fraud with some particularity, it is

generally held that a higher standard of proof is required to sustain an allegation

24
of fraud or other criminal misconduct or conduct involving moral turpitude. Hill

& Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987) @ 33-36; Elkouri &

Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003) @ 950-952.

Historically, the hearing officer has applied a clear and convincing evidence

standard in such cases. See, e.g., IBT Local 391 and Johnson Controls, 03-1

ARB ¶ 3467, 31 LAIS 292 (Arb 2003) (unemployment compensation fraud

alleged); SEIU Local 79 and United Methodist Retirement Communities, 32

LAIS 270 (Arb 2004) (consorting on job with prostitute alleged).

VI. Other Cases And Extraneous Material

In support of the Employer Motion, the College submitted the following

material, primarily from other cases before hearing officers; the sequence below

follows the College’s exhibit labels:

A. Pre-Hearing Order, dated July 15, 2007, from Bishop State Community
College and Charlotte Powe, FMCS No. 07-01405 (Potter, Hrg Off)
B. Order, issued June 11, 2007, from Bishop State Community College and
Emma Perkins, FMCS No. 07-01406 (Gutman, Hrg Off)4
C. Order, dated June 12, 2007, from Bishop State Community College and
Marlene A. French, FMCS No. 07-01051 (Goldie, Hrg Off)
D. Decision on Employee’s Motion to Dismiss Termination or in the
Alternative to Reinstate Pay, dated August 17, 2007, from Bishop State
4
In footnote 1 on page 3 of his Order, Mr. Gutman explains, without citation to authority, the apparent
discrepancy between the language of FDA § 36-26-103, which calls for a determination by “the employing
board”, and the practice of leaving all decision-making to the college president in a case involving a junior
college, an issue not addressed by either party in the instant case. Presumably the practice arises under Ala
Code § 16-60-111.7, which make the president the employing official:

The president of each junior college and trade school shall appoint the faculty and staff of each
junior college and trade school according to qualifications prescribed by the board and such other
regulations which may be adopted by the board in accordance with Section 16-60-111.4.

25
Community College and Elston Turner, FMCS No. 07-02606
(Bendixsen, Hrg Off)
E. Order Denying Employee’s Motion to Reinstate Compensation Pending
the Hearing and Decision in This Matter, dated January 28, 2008, from
Bishop State Community College and Henry R. Douglas, FMCS No. 08-
00835 (Odom, Hrg Off)
F. Opinion and Award on Motion to Reinstate Pay, dated January 28, 2008,
from Bishop State Community College and Herman Packer, FMCS No.
08-00834 (Feinstein, Hrg Off)
G. Letter order, dated January 9, 2008, from Bishop State Community
College and Jacqueline Williams, FMCS No. 07-00953 (Donovan, Hrg
Off)
H. Letter, dated August 1, 2007, to Jacqueline Williams, from James Lowe,
Jr.
I. Letter re Motion To Reconsider, dated March 30, 2008, from Bishop
State Community College and Zulieka Boykin Frazier, FMCS No. 08-
00951 (Tanksley, Hrg Off)
J. Letter, dated August 1, 2007, to Zulieka Boykin Frazier, from James
Lowe, Jr.
K. Grant of appeal and stay, dated February 26, 2008, in Alabama Court of
Civil Appeals No. 2070379, from Bishop State Community College and
Angelo Archible, FMCS No. 07-04797 (Serda, Hrg Off)
L. Letter brief, dated January 25, 2008, to Clerk of Alabama Court of Civil
Appeals, from Jeffrey G. Miller, from Bishop State Community College
and Angelo Archible, FMCS No. 07-04797 (Serda, Hrg Off)
M. Pages 1-3, 223-274 & 298 of transcript made August 8, 2007, from State
of Alabama v [MP], Mobile County District Court No. 07-4913
(McMaken, J)

Accompanying the Employee Response were these exhibits, labeled

below as they are in the Employee Response:

A. Record of Employee’s arrest from Mobile County Sheriffs Office


B. Decision on Employee’s Motion to Dismiss Termination or in the
Alternative to Reinstate Pay, dated August 17, 2007, from Bishop State
Community College and Elston Turner, FMCS No. 07-02606
(Bendixsen, Hrg Off)
C. Order, dated June 12, 2007, from Bishop State Community College and
Marlene A. French, FMCS No. 07-01051 (Goldie, Hrg Off)

26
D. Opinion and Order of Officer, dated December 19, 2007, from Bishop
State Community College v Elma Thomas, FMCS No. 07-04798
(Shriftman, Hrg Off)
E. Ruling – On Grievant’s Motion to Reinstate His Pay, dated January 4,
2008, from Bishop State Community College and Angelo Archible,
FMCS No. 07-04797 (Serda, Hrg Off)
F. Order, issued June 11, 2007, from Bishop State Community College and
Emma Perkins, FMCS No. 07-01406 (Gutman, Hrg Off)
G. Ruling on Employee’s Motion to Dismiss or in the Alternative to
Reinstate Pay, dated March 25, 2008, from Bishop State Community
College and Alabama Education Association / James Soleyn, FMCS No.
08-01166 (Williams, Hrg Off)

The hearing officer did read all of the materials submitted to him but sees little

value in critiquing them, inasmuch as he has detailed his reasons for his rulings

in the case before him.

In Employee Response @ 2, counsel seek to interject Alabama politics

into these proceedings:

Mrs. [P]’s case arises out of the political shenanigans of the Republican
Governor of Alabama, Richard Riley; a then Republican State Senator,
and now Chancellor of the Junior College System, Bradley Byrne, whom
the Governor would like to succeed him; and a determined effort to
embarrass and remove a twenty year veteran Democratic State
Representative, Yvonne Kennedy, who served as the President of the
College some two decades and is the Chair of a powerful committee in
the legislature. These efforts were also part of an attempt to wrest control
of the Democratic dominated legislature. These politicians were joined
by a John Tyson, conservative Democrat, and the District Attorney of
Mobile County, who had just lost a close and heated campaign for
Attorney General. The Republican he lost to just happened to be the guest
of honor at $500.00 a person fundraiser at the home of the Dean of
Academic Affairs at the College, who was also a principle target of the
investigation.

27
The hearing officer is weary of politics—the interminable presidential

campaign; cases reeking of small-town politics, Police Officers Association of

Michigan and County of Leelanau, Michigan and Its Sheriff, 07-2 ARB ¶ 3926

(Arb 2007), supplemental opinion, 07-2 ARB ¶ 3927; the assignations and

prevarications of Detroit’s mayor, about whom Jay Leno quipped, “He’s scored

more times than the Detroit Tigers.”—and does not wish hear any more. The

hearing will be restricted to evidence about the Employee’s actions and the

College’s efforts to terminate her employment.

VII. Conclusion

For all the foregoing reasons:

(a) The College’s Motion to Reconsider is DENIED.

(b) Unless the parties agree otherwise, if, within seven (7) days of the date of

this Opinion, the College has not complied with paragraphs (I) and (II) on

pages 22-23 of the Opinion of the Hearing Officer on Employee’s

Motion to Reinstate Pay, dated March 31, 2008, the hearing officer will

entertain a motion by the Employee to dismiss the charges against her

with prejudice. Such motion must be accompanied by one or more

competent affidavits of individuals having personal knowledge of the

facts.

(c) In all other respects, the Opinion of the Hearing Officer on Employee’s

28
Motion To Reinstate Pay, dated March 31, 2008, remains in full force

and effect.

The hearing officer’s findings of fact and conclusions of law are embodied in

this written opinion, although not expressly designated as such.

Dated May 1, 2008 ____________________________


E. Frank Cornelius, PhD, JD
Hearing Officer

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