May 2006

ALABAMA SUPREME COURT

Probationary contract principals are not entitled to 90 days’ notice of termination. The state high court let stand an appellate court decision holding that school boards are not required to give probationary contract principals 90 days’ notice of their intent to terminate. The Alabama Supreme Court without opinion rejected the principal’s request for review.

The facts in the case were not disputed. The probationary contract principal, who was under a one-year contract which began in July 2004, was given notice of termination by the board in May 2005. The principal challenged the action in circuit court, claiming she was entitled to 90 days’ notice of termination under Ala. Code. §16-24b-3(c). The board argued that §16-24b-3(c) requiring 90 days’ notice of non-renewal applied only to non-probationary contract principals and requested summary judgment. The trial court granted the board’s motion.

At issue is the interpretation of Ala. Code §16-24B-3(c), which states:

Notwithstanding whether the contract is the initial contract or otherwise, should the chief executive officer make a recommendation to the employing board followed by a majority vote of the board not to offer a new, renewed, or extended contract to the contract principal, the vote of the employing board shall be made at least 90 days before the end of the existing contract.

The court rejected the principal’s interpretation that a probationary principal is a subspecies, noting that the statute required an initial contract to be at least three years in duration while it limits a probationary period to two years at the most. The court stated that, under the rules for statutory construction, phrases in the law cannot be read in isolation and must be read in context of the whole statute. Looking at the entire statue, the court further differentiated between the types of principals, noting boards are not required to give a probationary principal a reason for his/her termination but must give a nonprobationary contract principal a reason for nonrenewal.

The manner in which the terms “initial contract, “probationary principals,” and “contract principal” are used and/or defined in the Act precludes the interpretation advanced by Gartman. … Accordingly we decline to extend the 90-day notice requirement of §16-24B-3(c) to probationary principals because to do so would be contrary to the Legislature’s intent as expressed in the Act.

AASB’s Legal Assistance Fund filed briefs on behalf of the school board because of the statewide impact of this decision. Gartman v. Limestone County Board of Education, 2006 WL 250837 (Ala. Civ. App.) (Feb. 3, 2006).

COURT OF CIVIL APPEALS

Special education aide not entitled to immunity. A classified worker who was sued for negligence when she dropped a student while transferring him from a changing table to his wheel chair is not entitled to state-agent immunity because she was not “exercising judgment in … educating students,” according to the appellate court.

The parents of the child sued the employee, the school principal, the special education coordinator and the Colbert County school board, alleging negligence in the accident and violations of §504 of the Rehabilitation Act. They also alleged fraud and bad-faith claims against the administrators. The parents claimed the aide dropped the student and then fell on him, breaking his leg.

The court granted summary judgment for the school board defendants, and the parents appealed the ruling regarding the aide. The board argued the aide met the standards the high court established for state immunity because “she was ‘exercising judgment’ as a special-education aide in transferring [the student] when the incident giving rise to this action occurred.” In affidavits, the aide asserts she was using the procedures she was trained to use; that she always used these procedures; and that she was acting prudently and carefully and, thus, was “‘exercising judgment in the discharge of duties imposed by statute, rule, or regulation in … educating students.’”

Nonetheless, the court held the employee’s act did not constitute exercise of judgment, emphasizing that it would not consider every discretionary act of a state agent empowered by the state which involved skill as being entitled to immunity. The court stated that whether the employee was acting negligently was to be considered only once it was determined the state agent was entitled to immunity.

Although the “[t]he immunity afforded a State agent “who exercises his or her judgment in the education of students” can be withheld “upon a showing by the injured plaintiff that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority,” to the extent that the above-quoted statement from Judge Thompson’s special writing could be misread to imply that a State agent who has not demonstrated that he or she exercises judgment in the education of students is entitled to immunity absent a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority, we disagree; Giambrone does not stand for such a proposition. (Emphasis added by the Wilson court.)

Court rejects one avenue of contesting decisions. Decisions by administrative law judges regarding whether a classified worker should be given a hearing cannot be appealed – at least not as a matter of right – according to a recent Alabama Court of Civil Appeals decision.

When the Mobile County school board changed the work locations of three workers, the employees contended the actions were transfers and requested hearings before the board. The board denied the hearing requests, and the employees challenged the actions by direct appeal to the Administrative Law Judge division of the state Attorney General’s office under Ala. Code §36-26-115. The section in question states: “Action taken by the Administrative Law Judge under this section shall be final.”

In all three cases, the ALJs found the actions to be transfers and the employees were entitled to hearings. The board appealed the ALJ decisions in circuit court, but the court adopted the employee’s argument that ALJ decisions are final and not subject to review and dismissed the case for lack of jurisdiction. The board appealed, arguing the court erred in dismissing the case.

The court noted the newly amended fair dismissal law creates distinct review procedures for employment actions and a specific provision whereby employees denied a board hearing can file a direct appeal to the ALJ which “shall be final.” The court also recognized the legislature’s authority to prohibit appeals and noted that act does not provide for review of ALJ decisions. “We must conclude that under §36-26-115 the Alabama Legislature intended that the decision of an administrative law judge after a school board denies an employee a hearing is final and that there is no right to appeal that decision.”

The board also argued an ALJ decision could be appealed under the Alabama Administrative Procedures Act because it provides minimum procedural code for state agencies. The court rejected this argument, holding the board is not a state agency and that the AAPA does not apply to schools.

The court set aside the board’s argument that prior to the 2002 amendments to the act, the “final” decisions of the employee review panel could be reviewed by petition for a writ of certiorari because argument was not presented to the trial court. “… [W]e decline to determine the issue whether an administrative law judge’s decision under §36-26-115 is subject to review in the courts through a petition for a writ of certiorari.” Board of School Commissioners of Mobile County v. Biggs, 2006 WL 964549 (April 14, 2006).

CIRCUIT COURT

Board not required to immediately release names of employees on administrative leave. A circuit court has ruled that a school board is not obligated under the state open records act to provide the names of employees placed on administrative leave. The Montgomery Advertiser sued the Montgomery County school board to force the board to divulge the names of employees placed on administrative leave. The board, conceding the information is public record, refused to provide the names until the employees had a chance to clear their names based on the Alabama Supreme Court decision in Water Works and Sewer Board of Talladega v. Consolidated Publishing. The newspaper argued all names should be divulged.

…The disclosure of the names of Board employees on administrative leave could violate those employees’ constitutional rights unless those employees have been allowed an opportunity to clear their name. Therefore, this Court cannot grant the relief sought by the Advertiser. This Court can hypothesize situations wherein the Advertiser could make a stronger claim for the disclosure it seeks. Yet, it seeks a blanket declaration that it shall always be entitled to the names of these on paid administrative leave. Given a specific fact situation, the rights of the employee on paid administrative leave might well yield to the right of the public to know what public servants are up to. However, this Court is of the opinion that the unfettered access sought by the Advertiser is contrary to the established precedent which this Court is bound to follow.

The newspaper did not appeal the ruling. The Advertiser Company v. Montgomery County Board of Education, CV 05-389 (Oct. 7, 2005).

ATTORNEY GENERAL’S OPINIONS

“Physical presence” required for a quorum under the Open Meetings Act. A board member joining a meeting via a conference call cannot be counted present for the purpose of a quorum under the Open Meetings Act, according to Attorney General’s advisory opinion 2006-071 (March 21, 2006). The new law states: “[e]lectronic communications shall not be utilized to circumvent any provisions of this chapter.”

The question posed was whether the OMA would permit a meeting where some members are present via a conference call. Previously, the Attorney General had interpreted the forerunner to the OMA, the sunshine law, to prohibit conducting a meeting via a conference call.

The opinion noted: “Although the Legislature modified the sunshine law by enacting the OMA, the Legislature did not explicitly or impliedly modify the presumption that physical presence at a meeting is required for there to be a quorum. If the Legislature had intended to change the physical-presence requirement at meetings, it could have done so easily in the OMA. Accordingly, it is the opinion of this office that only persons that are physically present at a meeting can be counted towards a quorum.”

Excessive tardiness, suspensions and expulsions are not “absences” for the purposes of truancy. Under state law, it can be a misdemeanor if a parent or guardian doesn’t require a child in their custody, who is subject to the compulsory attendance law, to attend school regularly, and whether a student is truant is determined by school absences. But, according to the Attorney General, absences that are the result of excessive tardies, suspensions or expulsions should not be counted as absences to determine whether a student is truant. Advisory opinion 2006-056 (Feb. 16, 2006) did state that if a student were so tardy that he/she missed a half day, then the absence would count as an absence.

Current employees may be interviewed in executive session under certain circumstances. In an opinion requested by a city personnel board, the Attorney General advised that some interviews of public employees can be conducted in executive session, under the Open Meetings Act, provided the employee is not required to file a statement of economic interest under the ethics law and that the discussion involves general reputation and character, physical condition, professional competence, mental health or job performance, according to Attorney General’s advisory opinion 2006-088 (April 17, 2006). The opinion noted that job performance cannot be discussed in executive session if the employee must file a statement of economic interest and professional competence can only be discussed in executive session for those professions meeting the statutory definition in the OMA.

The Attorney General said embedded in the question was an inference of whether persons other than board members could attend executive sessions under the OMA. The opinion stated: “[A] governmental body may invite persons to attend an executive session as long as that person does not participate in the deliberation of the board (cites omitted) and topics discussed are limited to accepted exceptions found within the Open Meetings Act.”

The opinion noted the OMA does not define “physical condition,” so the court adopted a definition from Webster’s Dictionary, which states: “the physical status of the body as a whole or one of its parts.” It also adopted a Webster’s Dictionary definition for health: “the conditions of an organism or one of its parts in which it performs its vital functions normally or properly, the state of being sound in body or mind.”

Foundation funds cannot be used to hire library aides. The Foundation Program law does not allow funds for librarians earned under it to be used to hire library aides, according to Attorney General advisory opinion 2006-35 (Dec. 20, 2005).

The state Department of Education, based on Southern Association of Schools and Colleges accreditation standards and the Foundation Program, calculates school library personnel allocations based on school enrollment. As a result, schools may earn funding for a partial unit for which the SDE provides aide funding. However, the opinion said the SDE’s method is at odds with SACS standards and the foundation law.

“Partial credits, as calculated by the Department of Education, represent library aides/clerks, which are not authorized to be funded with Foundation Program funds according to section 16-13-232(a) of the Code.” Since the school year already had started, the Attorney General said the opinion is to be applied prospectively. NOTE: Language in the 2006-07 Education Trust Fund budget act expressly states these funds can be used to hire library aides.

Mandatory reporting of drug offenses does not necessarily include positive student drug tests. A student who, under a school board policy testing certain students for drug and alcohol use, has a positive test result does not have to be reported to local police for violating board policy, absent a violation of specific policy regarding alcohol or drug possession or use on campus, according to Attorney General advisory opinion 2006-46 (Jan. 31, 2006). The attorney general was asked whether the requirement of Ala. Code § 16-1-24.1 to report to local law enforcement any violation of school board policies involving drugs, alcohol, weapons, physical harm or threats of physical harm applied to positive drug/alcohol test results under a school board’s student drug testing policy.

[T]he Legislature’s objective in promulgating this legislation was to prohibit students and other persons from bringing illegal drugs, alcohol, or weapons on a school campus. Any person who perpetrated such an action could be arrested for possession of the substance or item. Thus, a violation of any school policy of this nature necessitates the school board reporting such violations to proper law enforcement officials. The drug policy at issue in this opinion, however, is not a policy that prohibits the possession or bringing of drugs on school campus. The policy is not being proposed pursuant to § 16-1-24.1 of the Code. ... The policy is intended to deter the use of alcohol and drugs among high school students.

Presence of cell phone on campus violates state law. A cell phone found in a locker or backpack — even if it is turned off — during the school day, would violate state law unless the student was carrying it under the law’s exception for health or other extraordinary reasons, according to Attorney General’s advisory opinion 2006-32 (Dec. 8, 2005). The opinion stated the law, which generally prohibits students from having electronic communication devices, is violated if a student possesses the phone on any school property but only during the school day. NOTE: The Legislature amended this law to allow school boards to adopt policies regarding the use of electronic communication devices on campus. The new law goes into effect July 1, 2006.

NOTES

Troy school board receives unitary status. The Troy Board of Education is no longer under federal court supervision for desegregation. The school board was awarded unitary status this winter.

ACSBA Summer Conference July 23-24 in Sandestin. Plans are under way for the annual school law conference which will be held in conjunction with the National School Boards Southern Region Conference July 23-26, which AASB is hosting. If you are interested in volunteering to present, please contact Sally Howell (showell@alabamaschoolboards.org or 334/277-9700) as soon as possible. Conference registration material will be mailed soon, and housing information is available on AASB’s Confernce Information web page. Only a limited number of rooms, villas and condos are still available. If you plan to attend, make your housing reservations immediately.

Dismissing employees: AASB Progressive Discipline workshops. AASB is hosting two workshops on “Progressive Discipline: Disciplining and Dismissing Employees in Today’s Legal Climate” from 9:30 a.m. until noon June 13 at Quality Inn & Suites in Montgomery and June 14 at The Wynfrey Hotel in Hoover.

At both events, veteran school board attorney Carl Johnson will explain how progressive discipline can be used to give employees an opportunity to change unacceptable behavior and strengthen the board’s legal position should dismissal become necessary. You will learn what arbiters expect to see in an employee’s personnel record in order to uphold termination, how to make a termination case stick and how the case will be analyzed. Each workshop will be followed by a 1:30 to 2:30 p.m. bonus session previewing AASB’s new Policy Reference Guide.

Member registration is $90; non-member registration is $180. Call AASB at 800/562-0601.