Read the February 2012 issue of Court Report, which includes such topics as immunity, student discipline, contract principals and the Students First Act. This newsletter is an ACSBA member benefit.

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February 2012 Issue of Court Report

Alabama Supreme Court

• Immunity 

In 2011, the board decided to close several schools based on budgetary reasons and declining enrollment. The plaintiff was a contract principal at one of the schools that closed. The superintendent and personnel director set out to determine how to handle the displaced personnel, including the plaintiff who was in the middle of her contract. After much consideration, the superintendent recommended that those displaced principals who were at the end of their contracts would be nonrenewed and the other two principals who were in the middle of their contracts would be terminated. The grounds for plaintiff’s termination were justifiable decrease in the number of positions due to decreased enrollment or funding. The plaintiff filed suit in circuit court and a hearing was held.

Under the Teacher Accountability Act, the board was required to prove that the plaintiff was terminated for the stated reason. The court upheld the board’s decision and the plaintiff appealed to the Court of Civil Appeals. The plaintiff argued that the board wrongfully terminated her because two principal positions would be open by retirement and resignation at the end of the school year. Therefore, according to the plaintiff, the board could not prove there was a justifiable decrease in the number of positions available.

The Court of Civil Appeals rejected the plaintiff’s interpretation of the statute which would require the board to prove a justifiable decrease in the number of “available” positions, stating that to do so would be the equivalent of rewriting the statute. The Court held that the board demonstrated a decrease in the number of principal positions simply by demonstrating that it closed six schools. The fact that principal positions later became available was not relevant.

The plaintiff also argued that the board was required to transfer her into an open principal position. She pointed toPickens County Board of Education v. Keasler, 82 So.2d 197 (1955) which held that a tenured teacher could not be terminated on the grounds of justifiable decrease in positions when four nontenured teachers were retained. The board responded that while it had the authority to transfer her under her contract, it was not required to do so. The Court disagreed with the plaintiff noting that Keasler was a Teacher Tenure Act case; not a Teacher Accountability Act case. The provisions of the two statutes, including the board’s authority to terminate a contract at its end for any reason, made the cases distinguishable.

The Court also found unpersuasive the plaintiff’s arguments that she was retaliated against for contesting her termination and that her termination was motivated by personal bias. The Court pointed to Williams v. Board of Education of Lamar County, 82 So.2d 549 (Ala. 1955) which stated:

As we see it, the only pertinent inquiry was whether there was a “justifiable decrease in the number of teaching positions.” That being established, the reason for selecting appellant’s contract as the one to be cancelled was not open to inquiry. We find nothing in the Tenure Act establishing a criterion for determining what particular tenure teacher’s contract should be cancelled when there is a “justifiable decrease in the number of teaching position.” In such situation, it seems to us that the right of selection is a matter resting entirely with the employing Board of Education.

Id. at 552 (Emphasis added).

The Court agreed stating that the right to decide which principals were retained or terminated rested with the board. That it decided to keep other principals did not establish that the decision was motivated by personal bias.

 

Circuit Court

• Students First Act

Brandi Moody v. Montgomery County Board of Education, Montgomery County Circuit Court, CV-2011-901202 (Feb. 13, 2012)

This suit was filed after the board transferred an assistant principal. Because the employee was being transferred outside her feeder zone, she requested a full due process hearing, but the board refused. She and her counsel were permitted to address the board regarding why she should not be transferred. The employee filed suit asserting she was entitled to a full due process hearing as well as numerous other arguments. The board filed a motion to deny the petition on the grounds that the employee failed to exhaust her administrative remedies by filing a direct appeal with the Administrative Law Judge. After a hearing, the trial court found that the employee failed to exhaust her administrative remedies and would be required to do so before proceeding with any of her other arguments in the trial court.

 

• Education Trust Fund

Alabama Dual Party Relay Fund v. Baxley, Montgomery County Circuit Court, CV-2011-901318 (Nov. 21, 2011)

This suit was filed by the trustees of the Alabama Dual Party Relay Fund. The suit challenged Act 2011-567 which permitted the state to transfer the surcharge phone companies collect for the benefit of deaf and blind consumers to the Education Trust Fund as a result of depleted education funding. The State moved to dismiss the suit arguing that the trustees had no authority to file suit and failed to state a valid claim. The trial court agreed and dismissed the suit. No appeal was filed.

 

Attorney General's Opinions

• Personnel Files

A.G. Op. 2012-019

A board of education requested an opinion regarding the treatment of employee personnel files. It is the responsibility of the superintendent to maintain the personnel files, but the responsibility of the board to establish policies regarding how those files are established and maintained. The opinion referred to Ala. Code §16-22-14 which requires that a file be maintained and be accessible to the employee and the public, but does not specify precisely which documents must be maintained. However, in light of Ala. Code §16-22-14, the opinion provided the following non-exhaustive list stating, “a personnel file could include information pertaining to an employee’s current assignment, work history, payroll status, job qualifications, certification, licenses, employment contract(s) evaluation data, and disciplinary information...[as well as] documents reflecting professional achievement, recognition or letters of commendation.” As to what documents should not be maintained in personnel files, the opinion noted that the only bar provided by statute related to uninvestigated, anonymous materials. However, the opinion noted that it may be advisable to segregate other materials, e.g., documents related to litigation.

 

• Chief School Financial Officers/Protected Status

A.G. Op. 2012-005

A board of education requested an opinion regarding whether the position of chief school financial officer was eligible for tenure or nonprobationary status, and if not, whether the CSFO could gain such protected status for other duties he performed as technology supervisor.

CSFOs were specifically excluded from the protections offered by the Students First Act of 2011. Therefore, the opinion addressed whether CSFOs could have gained tenure or nonprobationary status prior to the effective date of the Students First Act.

The opinion first noted that the Teacher Tenure Act covered those persons who held a teaching certificate and had taught for three consecutive years. The Office could find no authority requiring CSFOs to hold a teacher’s certificate, but they were required to be certified by the State Department of Education to perform CSFO duties. Notwithstanding this fact, the School Fiscal Accountability Act dictated that the board could unilaterally remove the CSFO. Accordingly, CSFOs were not covered by the former Teacher Tenure Act

The opinion next addressed whether CSFOs could gain nonprobationary status under the Fair Dismissal Act. It first listed the positions which were covered under the Act. The opinion found that CSFOs were not “employees” as that term is defined in the Act.

The opinion then addressed whether the CSFO could gain protected status for his non-CSFO duties. Because no certification or teaching was required for the technology supervisor position, the opinion determined that it was not eligible for Teacher Tenure Act protection. However, assuming his technology supervisor duties required more than 20 hours per week and he was employed by the board for more than three years, he could be eligible for nonprobationary status under the former Fair Dismissal Act.

 

• Public Records

A.G. Op. 2011-094

A college requested guidance on whether employment applications and supporting documents were subject to the Open Records Law, and if so, what responsibility or liability could the college have to protect the privacy of its applicants. The college had already provided access to the applications of the finalists, but withheld those of those not selected as finalists.

The opinion first noted that it has repeatedly determined that résumés from applicants are public documents in light of Chambers v. Birmingham News Co., 552 So.2d 854 (Ala. 1989). It found no authority for treating finalists different from those who were not deemed finalists. It also declined to apply the exception to résumés received in confidence noting that disclosure of those documents outweighed any potential embarrassment caused to the applicant. It did, however, determine that certain information could be withheld, including sensitive information, or information that it deemed more personal than public, e.g., home addresses, telephone numbers, marital status and social security numbers.

 

Cases of Interest

• Education Trust Fund

Gibson v. Bentley, Montgomery County Circuit Court, Case No. CV-2011-900998

The Complaint in this case challenged the constitutionality of three laws passed during the 2011 Regular Session. The first gave the governor authority to approve tax credits for industrial projects which the plaintiffs claimed would in turn hurt Education Trust Fund revenues. The second bill provided tax deductions to neighborhood associations to improve subdivisions and the third provided tax deductions to homeowners wishing to make improvements to their house to prevent tornado and storm damage. The plaintiffs argued that the bills, which originated in the Senate, should have originated in the House because they were revenue bills. The State filed a motion to dismiss arguing that the plaintiffs had no standing to bring suit and that the impact of the laws was too speculative at this point. The trial court denied the State’s motion to dismiss and has set the case for a final hearing in March 2012.

 

• Immigration

U.S. v. Alabama, 2011 WL 4469941 (N.D. Ala. Sept. 28, 2011)

U.S. v. Alabama, 2011 WL 4863957 (11th Cir. Oct. 14, 2011)

As you know, there is a significant amount of litigation regarding the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (Immigration Law). Rather than detailing the courts’ rationale, please be aware that Section 28 which impacted schools has been temporarily blocked by the Eleventh Circuit. We will keep you informed as the cases develop.

 

— Jayne Harrell Williams

Jayne is a shareholder with the law firm of Hill, Hill, Carter, Franco, Cole & Black

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