Read the January 2017 issue of Court Report, which includes such topics as Students First Act and public records requests. Click the case names to read the complete opinions. This newsletter is an ACSBA member benefit.

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JANUARY 2017 COURT REPORT

Click the case names to read the complete opinions!

Alabama Court of Civil Appeals

• Students First Act – Discretion of the Hearing Officer

J.F. Ingram State Technical College v. Carter, -- So.3d --, 2017 WL 65330 (Ala.Civ.App. Jan. 6, 2017) 

This is an appeal of a Students First Act action. While this case originates from the Department of Post Secondary Education rather than a public school board, both systems use the Students First Act. The employee worked at J.F. Ingram State Technical College as a high-ranking and longtime administrator. Following an investigation regarding sexual harassment allegations, the employee was suspended and reassigned to another administrative position which resulted in a pay cut. Because of this pay cut, he was entitled to a full due process hearing under the Act. A hearing was held pursuant to the Act and the reassignment was approved. The employee contested the decision and a hearing officer was assigned. The hearing officer found that the employee’s actions did not constitute “other good and just cause” and were not severe enough to warrant the discipline and reversed the College’s decision. The College appealed to the Court of Civil Appeals.

The College argued that the hearing officer used the wrong standard of review. The Court reaffirmed that the proper standard was “arbitrary and capricious” which is “extremely deferential”. The Court further reaffirmed that the hearing officer could not substitute his judgment for the College. The Court noted that “other good and just cause” refers to “any cause which bears a reasonable relation to the teacher’s fitness or capacity to discharge the duties of his position.” It noted that even an employee who does his job well can be terminated for this reason if some other circumstance makes his presence harmful to the school. Based on the sexual harassment allegations and the employee’s response, the College President could properly hold that his actions constitute just cause. The Court noted that the President, not the hearing officer, had the authority to weigh the facts and punishment. Because the President had good cause, his decision could not be overturned.

The College also argued that the hearing officer improperly penalized it for relying on hearsay evidence. The Court reaffirmed the principle that administrative bodies are not subject to the rules of evidence. While they may consider whatever information that will assist them in rendering a decision, they must also have some evidence that is legally sufficient. That is, the employee cannot rely solely on hearsay or other illegal evidence. The Court found that the College President’s decision was based both on hearsay and non-hearsay evidence and was therefore legally proper. Accordingly, the Court reversed the hearing officer’s decision and entered judgment in favor of the College.

Matters of Interest

• SPLC and Public Records Requests

Late last year, we learned that the SPLC had made an extensive public records request to the State Department which requested Compliance Monitoring documents. The focus of the request appears to be on discipline issues within the local districts, specifically whether the districts have appropriate discipline policies in place and whether the State Department has cited the districts during the monitoring process. This request may be a signal that the recent discipline lawsuit against a south Alabama district is going to spread across the state. Be mindful that requests may begin to flow into individual districts. If you receive such a request, please let us know so that we may track them.

• Students First Act and Pre-K Employees

We have received several questions regarding whether local Pre-K employees are protected by the Students First Act. As many of you are aware, employees hired based on finite funding, such as grants, do not enjoy Students First Act protection. See Ala. Code §16-24C-4(3)(b). Most pre-K positions in the state are funded by a state grant, rather than a local grant. The Act is not clear whether the source of the grant determines whether the positions are eligible for tenure or not, but we suspect that these positions are eligible for tenure. We are considering whether to request an Attorney General’s Opinion to get guidance on this question, but we wanted to alert you to the issue which may impact your pre-K employees.

• Clarification on Teachers and Gift-Giving

In December, we alerted you to a new Ethics Opinion which focused on the issue of teacher gifts, but had implications for all public officials and employees. In that alert, we reminded you that to rely on the de minimus value limits ($25 per occasion; $50 per calendar year). Upon closer review and consultation with ethics attorneys, we now recognize that the Ethics Commission has now held that de minimus limits on gifts do not apply to public officials and public employees, as long as the gift-giver is not a principal or a lobbyist and as long as the gift is not given in exchange for official action. Despite this, the Commission still suggests that the de minimus limits are a best practice for all gift-giving and should be placed in board policy. We apologize for any confusion and you’re welcome to contact us with any questions.

• A New Administration

Finally, we must mention the new administration in Washington and how that may impact local school boards in Alabama and around the country. President Obama shaped a good bit of policy on a number of topics either through agency direction, such as Dear Colleague Letters from the Department of Education Office of Civil of Rights, and executive orders. The incoming administration will have the authority to shape its own policy. For this reason, some of the instruction we have received from Washington over the past few years may change in the coming weeks, months or years. As always, we will remain vigilant and notify you of changes which impact our local school districts.

-Jayne Harrell Williams

Jayne is General Counsel &

Director of Legal Advocacy for the

Alabama Association of School Boards