October 2016 Court Report
Read the October 2016 issue of Court Report, which includes such topics as immunity and Students First Act. Click the case names to read the complete opinions. This newsletter is an ACSBA member benefit.
OCTOBER 2016 COURT REPORT
Alabama Supreme Court
- Immunity – Decisions During State Intervention
Ex parte State of Alabama Board of Education, -- So.3d --, 2016 WL 4719794 (Ala. Sept. 9, 2016)
This case involves the State Department’s actions during an intervention in a local school district. As a result of concerns regarding the district’s fiscal condition, the state board authorized the appointment of a state intervention chief financial officer to oversee the district’s operations. The state superintendent recommended a financial recovery plan that included a reduction in force which eliminated multiple positions. The local board’s vote was split, but the state superintendent overrode the tie vote and approved the plan. The employees impacted by the RIF sued the state board, the state superintendent and the state intervention chief financial officer in circuit court arguing that the state had no authority to override the local board’s decision. They also argued that their due process rights had been violated. After an assortment of motions, responses and orders, the trial court ultimately denied the state defendants’ motion to dismiss. The state defendants asked the Supreme Court to review the trial court’s order on the grounds that they had immunity.
The Court first determined that the employees had abandoned their state due process claims and were only asserting a violation of their federal due process rights pursuant to §1983. The nature of the claims directly impacts the immunities available to the state defendants.
The Court next addressed the immunities for the state board and state defendants in their official capacities. The Court held that the State Board of Education was entitled to Eleventh Amendment immunity as states and state agencies cannot be named as defendants in suits without their consent. The Court then considered whether the state officials were entitled to Eleventh Amendment immunity as well. The Court held that the state officials were entitled to Eleventh Amendment immunity in their official capacities for claims for money damages, but not for claims seeking injunctive relief in their official capacities. The Court also held that the state defendants were not entitled to Eleventh Amendment immunity in their individual capacities because that amendment does not protect them from suit for employment-related acts.
The Court next considered whether the state officials were entitled to qualified immunity in their individual capacities. State officials are protected from civil damages as long as their discretionary actions do not violate clearly established law. Both parties agreed that the state officials were performing discretionary acts, so the Court examined whether their actions violated clearly established law. The Court noted that neither the US Supreme Court, the Eleventh Circuit or the Alabama Supreme Court have decided whether employees are entitled to due process during a RIF. Because this question is unsettled in the law, the Court held the right to due process was not clearly established. Accordingly, the Court held the state officials were entitled to qualified immunity in their individual capacities.
As of result of this ruling, the Court ordered the trial court to dismiss all claims except for those against the state officials in their individual capacities
seeking injunctive relief in the form of reinstatement.
- Immunity – Election Dispute
Ex parte Wilcox County Board of Education, -- So.3d --, 2016 WL 4585738 (Ala. Sept. 2, 2016)
This case involves an election contest. In the county’s school board election, the incumbent won against two write-in candidates. A lawsuit was filed against the incumbent and he was subsequently removed from the board because he was not a county resident. A citizen then sued the board and board president claiming the local board improperly intervened in the election contest, improperly used board funds to pay legal fees in the dispute and improperly invited the State Board of Education to intervene in the dispute. The defendants moved to dismiss the lawsuit on the grounds of immunity, but the trial court denied the motion because the complaint was only for declaratory relief. The defendants sought review by the Alabama Supreme Court.
The Court first noted that state agencies, including local boards of education, enjoy absolute immunity from lawsuits. Accordingly, the board should have been dismissed from the suit as a local agency of the state.
The Court next considered the citizen’s claims against the board president for injunctive relief and for repayment of the legal fees paid to represent the board in the election contest. In reviewing the allegations, the Court found that the citizen had failed to state a claim that the board president took some action outside his authority, and therefore, failed to overcome the board president’s immunity. Accordingly, the Court held the board president should have also been dismissed.
Finally, the Court considered the citizen’s request for recovery of the legal fees paid by the board in the election contest. The Court noted that taxpayers have no standing to recover improperly spent funds; they can only block a proposed expenditure. Therefore, the citizen had no standing to recover the legal fees and this claim was also due to be dismissed.
Given its decision, the Court granted the board defendants’ petition and ordered the trial court to dismiss the lawsuit in its entirety.
Alabama Court of Civil Appeals
- Students First Act - Discretion of Hearing Officer
Escambia County Board of Education v. Lambert, -- So.3d --, 2016 WL 5338669 (Ala.Civ.App. Sept. 23, 2016)
This is the second appeal of this 2012 Students First Act termination case, which we previously reported on in December 2013 and September 2015. As explained in our previous reports, the superintendent recommended the employee’s termination after a loaded handgun was found in a bag in his office. The employee claimed that he had inadvertently brought the gun on campus. While the employee had no disciplinary history, the board had a policy that possession of weapons on school property would lead to suspension or termination. After a hearing was held, the board upheld the superintendent’s recommendation and terminated the employee. The employee appealed to a hearing officer who expressed that he believed a lesser punishment was warranted. Nevertheless, in light of his duty to give deference to the board’s decision and in light of the limitation upon his authority to only reverse or uphold the board’s decision, he upheld the termination. The employee appealed to the Court of Civil Appeals which affirmed the hearing officer’s decision. The employee then appealed that decision to the Alabama Supreme Court. Following oral arguments, the Court issued a mixed decision. In a 4-3-2 split decision, the Alabama Supreme Court agreed with post-Students First Act decisions which have held that the hearing officer must show "extreme deference" to the board's decision under the "arbitrary and capricious” standard of review. The Court recognized that in repealing the former Teacher Tenure Act and Fair Dismissal Act, the legislature intended to return decision-making authority for school employees to boards and to eliminate cumbersome litigation. But, despite its holding that hearing officers must apply an extremely deferential standard of review, it also held that hearing officers have the authority to order a board to reduce its punishment. With that holding, the Court reversed and remanded the case back to the hearing officer to consider whether the decision to terminate was arbitrary and capricious. The hearing officer, using an unknown analytical framework akin to collective bargaining, quickly issued a new order finding the board’s termination decision arbitrary and capricious, despite finding it reasonable in his original order. The hearing officer further determined that the employee should be suspended for no more than one year, apparently based on the fact that a student accused of the same offense could be expelled for only a year. The board appealed this decision to the Court of Civil Appeals.
In this second appeal, the board argued that the hearing officer improperly found the board’s decision to be arbitrary and capricious, used an improper analytical framework and that the hearing officer had no authority to dictate a maximum punishment. The Court reaffirmed the hearing officer’s arbitrary and capricious standard of review set out in Ex parte Lambert. The Court also reaffirmed that a hearing officer has the implied authority to remand a case to the board to impose a lesser punishment if he finds the punishment arbitrary and capricious, despite the Act dictating that the hearing officer’s options are only to “affirm or reverse the board’s decision”. The Court next considered the appropriate definition of arbitrary and capricious. The court noted the arbitrary and capricious standard is “extremely deferential” to the board’s decision. Furthermore, even if the hearing officer disagreed with the wisdom of the board’s decision, he could not substitute his judgment for the board. The Court also addressed the Supreme Court’s suggestion in Ex parte Lambert that the board had to articulate the basis for its decisions in written findings of fact and the hearing officer and employee’s argument that failure to do so was by definition “arbitrary”. The Court noted that the Act only requires the board give notice of the termination decision and rejected any attempt to read a written finding of fact requirement into the Act.
The Court also addressed the hearing officer’s finding that the board had not properly considered the mitigating evidence presented by the employee. The Court rejected that argument finding that the hearing officer overstepped his authority in making this determination. The Court also noted that the board, using the AASB-suggested script, sufficiently stated on the record prior to deliberating that it would discuss the evidence and consider the appropriate penalty during its deliberation.
Finding that the hearing officer improperly substituted his judgment for that of the board, the Court reversed the hearing officer’s decision and ordered him to uphold the board’s decision. The employee is seeking review of this decision by the Alabama Supreme Court. The AASB Legal Assistance Fund is participating in this appeal as amicus curiae.
Eleventh Circuit Court of Appeals
- Fourth Amendment – Breathalyzer Tests
Ziegler v. Martin County School District, -- F.3d --, 2016 WL 4039667 (11th Cir. July 28, 2016)
This case involved a Florida high school that required students wishing to attend the prom to sign a zero tolerance form regarding drugs, alcohol and tobacco.
The form stated that anyone attending the prom could be subject to a breathalyzer test. The form also stated that profanity was prohibited and that
students would be barred from the prom if they arrived after 10:00 PM. On the night of the prom, dozens of students and their dates arrived at the
prom on a party bus after 10:00 PM. After the students left the bus, a resource officer asked the driver if he could search it for contraband. With
the permission of the driver, he boarded the bus and found an empty champagne bottle and several plastic cups. The students claimed the bus had not
been cleaned when they boarded and the contraband did not belong to them. The driver disputed their claims, stating that the contraband belonged to
the students. The administrators told the students they would have to pass a breathalyzer test before entering the prom. The resource officer lined
the students up and made them wait until additional breathalyzer materials could be retrieved. This took between 45 minutes and an hour. While they
waited, some students became frustrated and asked if they could go home rather than take the test. The resource officer refused their requests and
told them they had to wait. The tests were eventually administered and all students passed the tests with 0.00 blood alcohol content. By the time all
of the students had been tested, the prom was over. Some students were ultimately suspended for using profanity during the wait. Another student was
later questioned, but not disciplined, about an interview she gave to the local media about the incident. Nine of the students sued the district, the
school, and the school officials as well as the sheriff for violation of their First, Fourth and Fourteenth Amendment rights pursuant to Section 1983.
The claims related to the search of the bus, the seizure of their persons while they waited for the test, the discipline for cursing and the questioning
of the student who spoke to the media. They also claimed they were improperly targeted because they arrived in a party bus in violation of their right
to equal protection. The school officials moved for summary judgment based on qualified immunity. The trial court granted their motion and the students
appealed to the Eleventh Circuit.
The Court first considered the students’ Fourth Amendment claims noting that the most important factor to consider in this context is reasonableness. The
Court noted that students’ constitutional rights in the school context are generally reduced because of the school’s unique relationship to students
and the educational process. In determining whether the search was reasonable, the Court noted a two-part test: (1) was the search justified at its
inception; and (2) was the search reasonably related in scope to the situation. The search is justified when the school official has a reasonable suspicion
that the search will establish a violation of the law or school rule. The Court noted that this is not a question of fact for the jury, but a question
of law to be determined by the court.
The students first argued that the search was improper because the prom was not held on school property. The Court quickly rejected that argument and held
that school officials had authority to control behavior at a school event, supervised by school personnel, even if it was not on school property. The
students then argued that they had an expectation of privacy in the party bus during the term of their rental that night. The Court also rejected this
argument finding that the students had voluntarily gotten off of the bus and had not planned to return to it after the prom. The party bus was only
rented to drop them off; it was not rented to pick the students up after the prom. They had not left personal belongings behind or objected when they
were told the bus would be searched. Therefore, the Court held they had no reasonable expectation of privacy in the party bus once they left it.
The students next argued that the driver could not give valid consent to the search. The resource officer admitted that he did not have reasonable suspicion
when he began the search, but argued that he had the consent of the driver. The Court noted that searches are permissible with consent, even if there
is no warrant or probable cause. Consent is valid when the person granting it has actual or apparent authority to give it. The Court held that the
company that owned the party bus gave the driver the authority to control it. Additionally, because all of the students had disembarked and the driver
was the only occupant remaining in the bus, he had, at a minimum, the apparent authority to consent to a search.
The students next argued that the breathalyzer test was an improper search. The Court found that the detention of the students while they waited to be
tested was justified at its inception because the resource officer found the contraband in the party bus and the driver said it belonged to the students.
Based on these facts, the resource officer had reasonable suspicion that they had violated the law and/or a school rule. The Court also found the school
officials had a legitimate interest in testing the students for alcohol. The Court also found the duration of the wait to be reasonable under the circumstances.
The Court noted that the students arrived late to the prom and that this may have contributed to the proper personnel and testing supplies being unavailable.
The students next argued that it was unreasonable to continue the detention until every student in the group had been tested. They argued that they should
have been released once the individual tests were passed. The school officials countered that doing so would have been unfair to the remaining students.
The Court disagreed and held that once a student is exonerated, he must be free to go and continuing the detention under the circumstances, was not
reasonable. Once the Court determined the school officials had violated the students’ rights in this limited respect, it considered whether the officials
were entitled to qualified immunity. In order to be entitled to qualified immunity, the defendants have to establish that they were acting within their
discretionary authority and that the constitutional right they violated was not clearly established by the law. The students could point to no case
which would establish that the school officials should have known the continued detention was unlawful. Because the right was not clearly established,
the defendants were entitled to qualified immunity for this Fourth Amendment violation.
The Court next considered the students’ First Amendment claims. Two students, who were suspended for using profanity during the incident, argued their
First Amendment rights were violated. The Court first noted that the school could properly discipline cursing at a school-sponsored event. It also
noted that students did not enjoy the same extensive First Amendment rights in the school context that adults do in other settings. Accordingly, the
Court held the discipline appropriate and found no violation of the First Amendment. The other First Amendment claim related to the student who was
questioned by school officials following an interview with the media. The Court noted that she was not retaliated against for her statements because
she was not actually punished. The Court also rejected the students’ Equal Protection argument that they were targeted because they arrived on a party
bus since there was no suspect classification at issue.
The students did not raise any argument on appeal regarding the school district, high school or sheriff, so the Court found that those claims were abandoned. Accordingly, the Court found that all defendants were properly granted summary judgment and the claims were dismissed.
Matter of Interest
- AEA Payroll Deductions Appeal
One of the amendments passed during the 2010 special session involved changes to the payroll deduction law. Act 2010-761 prohibited our boards and other public entities from arranging payroll deductions for organizations that used dues for political activities. AEA and its political counterpart A-VOTE sued the state in federal court to block the law. The Eleventh Circuit recently ended the nearly six-year-old lawsuit finding that the law did not violate the Constitution. Earlier this year, AEA restarted payroll deductions in Alabama boards of education and has certified that it will not use dues for political purposes.
- Definition of "Principal" and the Ethics Law
This Ethics Commission recently released an opinion which arose from the conviction of Mike Hubbard that may be applicable to some board members and board employees, either in their board service or their private lives. Board members and board employees already have certain restrictions placed on their affairs because they are considered “public officials” and “public employees”. This opinion would expand the restrictions by potentially making high-ranking officials and employees “principals” as well. A “principal” is defined as a person or business that employs a lobbyist. Prior to this opinion, a principal was generally considered the entity that employed the lobbyist, rather than persons within the entity. This opinion greatly expands “principal” to include:
- Persons in top-level, decision-making positions within the business;
- Persons at the executive level who influence the lobbyist’s pay or actions or who can act on the entity’s behalf; including
- Members of the board of directors, officers and related individuals.
While most boards of education do not employ lobbyists, some board members and employees may sit on other boards that do, including non-profits, professional associations, hospital boards, etc. For example, AASB employs a lobbyist. Should this opinion stand, our Board of Directors and executive level staff would be considered “principals” under the Ethics Act and be subject to substantially more restrictions under the law.
The Commission has delayed final adoption of this opinion to give an opportunity for public comment. Based on those comments, the opinion may be modified at a later date. Additionally, Hubbard has appealed his conviction and the Alabama Supreme Court may provide further guidance with respect to the definition of “principal”. If you believe you may be impacted by this opinion, either in your board service or private life, we encourage you to seek legal advice regarding the law’s application to your position.
- Construction Training Fee
A question was recently raised regarding whether school boards have to pay the new Construction Industry Craft Training Program fee passed last year. Act 2015-308 assesses this fee for any nonresidential building permit issued by the county, city or town in the amount of $1 per each $1,000 of construction authorized by the local building permit.
There is no apparent exclusion in the law for local school boards, but based on Attorney General’s Opinion 2004-165 , which states that local boards of education are subject to the Alabama Building Commission (now referred to as “Department of Finance, Division of Construction Management”)—not local building codes and permits—we do not believe local boards have to pay this fee since the fee appears to be triggered only by the local building permit assessment.
We encourage you to work closely with your local counsel with respect to any attempt to assess this fee against your construction projects. If anyone has
any difficulty with this fee, please let us know so we can track this issue.
-Jayne Harrell Williams
Jayne is General Counsel &
Director of Legal Advocacy for the
Alabama Association of School Boards