Bishop State Cmty. Coll. v. Angelo Archiblebishop State Cmty. Coll.
| Decision Date | 12 December 2008 |
| Docket Number | 2070379 and 2070670.,Alabama Supreme Court 1080191. |
| Citation | 33 So.3d 577 |
| Parties | BISHOP STATE COMMUNITY COLLEGEv.Angelo ARCHIBLEBishop State Community Collegev.James Soleyn. |
| Court | Alabama Court of Civil Appeals |
[33 So.3d 577 578]
David M. O'Brien and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellant.
Henry H. Caddell of Thiry & Caddell, Mobile, for appellee Angelo Archible.
J. Cecil Gardner and Allison Kahalley of The Gardner Firm, P.C., Mobile; and L. Daniel Mims, Mobile, for appellee James Soleyn.
In these consolidated appeals, we consider the notice provision of Ala.Code 1975, § 36-26-103, Ala. Acts 2004, Act No. 2004-567, § 1. On August 1, 2007, Bishop State Community College issued letters of intent to terminate the pay and employment of Angelo Archible and James Soleyn. Subsequently, Bishop State terminated the employment of Archible and Soleyn (sometimes hereinafter referred to collectively as “the employees”) based on the reasons set out in the letters. In addition, Bishop State terminated the pay of the employees on the ground that the acts justifying their terminations constituted moral turpitude. The employees contested their terminations and requested post-termination hearings pursuant to the Fair Dismissal Act, Ala.Code 1975, § 36-26-100 et seq. Both cases were ultimately dismissed by the respective hearing officer assigned to each case on the ground that Bishop State had failed to properly notify the employees of the reasons for their terminations in violation of Ala.Code 1975, § 36-26-103(a), and due process. Bishop State timely requested appellate review in both cases,1 which this court granted on February 26, 2008, and April 29, 2008, respectively.
[33 So.3d 577 579]
On August 1, 2007, James Lowe, Jr., the interim president of Bishop State, issued a letter addressed to Archible. In that letter, Lowe stated:
The letter continued:
The letter proceeded to notify Archible of a pre-termination conference to be held on August 29, 2007, to provide him an opportunity to discuss Bishop State's proposed termination. The letter advised Archible that if he wanted the meeting to take place, he needed to file a request within 15 days after the date he received the letter.
On September 10, 2007, Lowe wrote a second letter to Archible, stating, in pertinent part:
The letter further informed Archible of his right to contest his termination by filing a written notice within 15 days.
Archible exercised his right to contest his termination. Thereafter, the parties selected a hearing officer. On October 22, 2007, Archible filed a motion to stay further proceedings regarding his contest of the termination. Archible asserted in that motion that criminal charges “directly related to the alleged grounds for termination of his employment in the above styled case” were pending against him and 25 other Bishop State employees but that those charges had not yet been presented to a grand jury. Archible's criminal attorneys had advised Archible against testifying in the termination hearing until his criminal matters had been resolved. Archible requested that the hearing be stayed in order to assure that he would not incriminate himself by testifying in the termination hearing. Based on that motion, and Bishop State's acquiescence, the hearing officer stayed the hearing.
Eleven days later, on November 2, 2007, Archible filed a “Motion to Reinstate Pay for [Bishop State's] Failure to Provide Due Process.” In that motion, Archible argued that Bishop State had not provided him “a short and plain statement of the alleged facts and charges against him” as required by the Fair Dismissal Act see § 36-26-103(a), and by constitutional due process. Archible requested the hearing officer to order Bishop State to reinstate his pay and to provide the required statement of facts supporting its reasons for terminating Archible's employment. Bishop State responded on November 16, 2007, that its August 1 and September 10, 2007, letters had complied with the notification provisions of the Fair Dismissal Act and that Archible had acknowledged in his motion to stay that his employment and pay was being terminated based on the same facts for which he was under criminal investigation.
On January 4, 2008, the hearing officer issued a 15-page decision in which he concluded that the purpose of the “short and plain statement” provision contained in § 36-26-103(a) is to “simply place the employee on notice of the circumstances and the nature of the activities of his alleged violations.” The hearing officer decided that the notice need not be as detailed as “charges and specifications,” but must be sufficient to “create a material and clear ‘[b]urden of [p]roof’ for the Employer and an equally material and clear ‘[p]osition of [d]efense’ for the [e]mployee.” Based on that understanding, the hearing officer concluded that the notice provided by Bishop State was insufficient to fairly apprise Archible of the factual basis for his termination. The hearing officer ordered Bishop State to reinstate Archible with backpay and benefits until such time as the termination process was reinitiated with an appropriate notice.
Bishop State filed a motion on January 18, 2008, requesting that the hearing officer clarify whether he had dismissed the entire case or had simply ruled that Bishop State must amend its notice. The hearing officer issued a ruling on January 22, 2008, indicating that it had finally adjudicated the case and had rescinded the earlier termination.
On May 18, 2007, Yvonne Kennedy, then president of Bishop State, issued a letter to Soleyn informing him that he was being placed on administrative leave based on criminal charges filed against him by the Mobile County District Attorney on May 8, 2007. While still on leave without pay, Soleyn received a letter from Lowe dated
[33 So.3d 577 581]
August 1, 2007. The August 1 letter contained the identical language as the letter Lowe sent to Archible, except the letter stated:
Unlike Archible, Soleyn attended the pre-termination conference offered by Bishop State on August 30, 2007. At that conference, Soleyn's attorney complained that Soleyn had not been provided sufficient notice of the specific acts of financial impropriety Bishop State was relying upon to terminate Soleyn's employment and his pay. Bishop State's attorney responded essentially that Soleyn had criminal charges pending against him for financial improprieties committed at Bishop State and that his employment and pay were being terminated for the same acts for which he had been criminally charged.
On November 8, 2007, Bishop State issued Soleyn a second letter notifying him that his employment and pay had been terminated in accordance with the grounds outlined in the August 1, 2007, letter. Soleyn contested his termination. After the parties selected a hearing officer, Soleyn filed a motion to dismiss or, in the alternative, to reinstate his pay. On March 25, 2008, the hearing officer granted Soleyn's motion, adopting the January 4, 2008, decision issued by the hearing officer in the Archible case, and dismissed the case.
The basic question before the court is whether the hearing officers erred in rescinding the employees' terminations on the ground that Bishop State had failed to provide the employees proper notice of the factual bases for the termination of their employment and their pay. In resolving that question, we review only the hearing officers' conclusions of law and their application of law to the facts. As such, our standard of review is de novo. Barngrover v. Medical Licensure Comm'n of Alabama, 852 So.2d 147, 152 (Ala.Civ.App.2002) (...
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