Alabama Dept. of Mental Health and Mental Retardation v. Kirby

• Citation: 579 So.2d 675
• Parties: ALABAMA DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION v. Michael KIRBY and Alabama State Personnel Board. Civ. 7789.
• Decision Date: 15 March 1991
• Court: Alabama Court of Civil Appeals

Page 675

579 So.2d 675

ALABAMA DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION v. Michael KIRBY and Alabama State Personnel Board.

Civ. 7789.

Court of Civil Appeals of Alabama.

March 15, 1991.

Thomas B. Klinner and Loree J. Skelton, Asst. Attys. Gen., for appellant.

R. Frank Ussery, State Personnel Dept., Montgomery, and Joe R. Whatley, Jr. and Andrew C. Allen of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for appellee.

ROBERT P. BRADLEY, Retired Appellate Judge.

After being charged with abuse of a client, Michael E. Kirby (employee) was terminated from his employment as a Mental Health Worker I with the Alabama Department of Mental Health and Mental Retardation (Department) at the Albert P. Brewer Developmental Center (Brewer) on February 22, 1989. The employee appealed his termination to the State Personnel Board (Board), and a hearing officer was appointed. Following a hearing on May 25, 1989, the hearing officer determined that the employee had in fact committed client abuse and recommended that the employee's termination be sustained. Pursuant to State Personnel Board Rules, the employee filed exceptions to the Department report and the Board heard oral arguments from both parties. In its opinion issued on October 19, 1989, the Board found that, although the Department's decision to terminate the employee was supported by the evidence, termination was too harsh a punishment. The Board ordered the Department to reinstate the employee, but required the employee to forfeit four months of his back pay and benefits. The Department filed a motion for reconsideration, which was denied. The Department then filed a petition for Judicial Review/Common Law Writ of Certiorari with the Circuit Court of Montgomery County. The parties submitted memorandum briefs and, on June 5, 1990, the circuit court issued an order affirming the Board's decision. The Department appeals the judgment of the circuit court upholding Kirby's reinstatement.

The record reveals these facts: The employee has worked for seven years as a Mental Health Worker I at Brewer Developmental Center. On February 6, 1989 the employee was assigned to care for five severely to profoundly mentally retarded clients. The employee took the clients into the shower area for their evening baths, then left them unattended while he went to procure bath supplies. En route to the linen room, the employee went into a supervisor's office to make a personal call on a telephone reserved for the retarded clients' personal use. A mentally retarded client was using the phone at that time. The employee ordered the client to leave, then forced her out of the room. The client began to scream and was soon hysterical.

At the hearing before the Board, evidence conflicted sharply over exactly how the employee forced the client to leave the supervisor's office. Several clients of the facility signed affidavits stating that they had heard the employee use bad language, then saw him roughly shove the client out of the office. The employee testified that he used no expletives and merely guided her out. The employee admitted to leaving his five charges unattended in the shower area during this time.

On the basis of these facts and its own impressions concerning the conflicting testimony, the Board found that the charges against the employee were warranted, but stated that the charges were mitigated in part by "the employee's seven-year record of service without previous disciplinary action concerning the area of patients." In light of this, the Board ordered Kirby's reinstatement.

On motion for reconsideration of the Board's order, the Department offered the employee's personnel record as "new evidence." The personnel record showed that the employee had been reprimanded on several occasions and had been given a 15-day suspension without pay for various disciplinary infractions. After the motion for reconsideration was denied, the Department introduced the same evidence before the circuit court on certiorari. The circuit court affirmed the Board's decision despite this evidence.

Except where judicial review is by trial de novo, the Board's order shall be taken as prima facie just and reasonable and may not be altered by the circuit court unless the Board's decision is unsupported by substantial evidence or reflects an improper application of law to the facts. Alabama Alcoholic Beverage Control Board v. Tyson, 500 So.2d 1124 (Ala.Civ.App.1986).

The first issue raised by the Department is whether the circuit court erred by failing to rule that the Board lacked the statutory authority to reinstate Kirby.

The statute limiting the Board's reviewing power is found in § 36-26-27, Code 1975. Prior to 1983 this statute allowed the Board to order the reinstatement of the employee only if it found that the charges against the employee were unwarranted. Where the charges were proven warranted, the Board was required to uphold the employee's dismissal. ABC Board v. Malone, 495 So.2d 1137 (Ala.Civ.App.1986). The employee could then appeal the Board's decision to the circuit court. § 41-22-20.

In 1983 the statute was amended to provide that, after finding that the charges against the employee are warranted, and upon a majority vote of the board "[T]he board may impose a punishment other than termination including but not limited to a reinstatement with forfeiture of back wages and benefits ... or a...