Board of Water and Sewer Com'rs of City of Mobile v. Smith

• Decision Date: 09 August 1991
• Citation: 591 So.2d 521
• Parties: BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE v. Michael L. SMITH and the Mobile County Personnel Board. 2900113.
• Court: Alabama Court of Civil Appeals

Page 521

591 So.2d 521

BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE v. Michael L. SMITH and the Mobile County Personnel Board.

2900113.

Court of Civil Appeals of Alabama.

Aug. 9, 1991.

Rehearing Denied Sept. 20, 1991.

Certiorari Denied Dec. 13, 1991

Alabama Supreme Court 1910019.

Joe H. Little, Jr., Mobile, for appellant.

Mayer W. Perloff, Mobile, for appellees.

THIGPEN, Judge.

This is an appeal from a judgment sustaining the ruling of the Mobile County Personnel Board (Personnel) upon review of that ruling by common law certiorari in the Circuit Court of Mobile County.

This matter arose when the Board of Water and Sewer Commissioners of the City of Mobile (Board) dismissed an employee for attempted theft of Board property following a pre-disciplinary hearing. The employee thereafter filed a notice of appeal. Personnel heard the evidence de novo and found the dismissal punishment to be too harsh. Personnel determined that the evidence was insufficient to prove attempted theft, but that the employee's conduct in removing the tools from the premises was unbecoming. Personnel thereafter modified and altered the dismissal to a suspension from active duty without pay and other emoluments of employment from the effective date of the dismissal on December 22, 1988, through March 22, 1989, with the employee to be fully restored to active duty thereafter.

The Board thereafter appealed the decision of Personnel to the trial court, which affirmed Personnel's decision. The Board filed a motion for reconsideration and a motion to introduce additional evidence, both of which were denied; hence, this appeal.

The Board first asserts that Personnel did not have the authority to order the employee reinstated and to impose a lesser punishment.

We disagree. Unlike matters brought before the State Personnel Board, this action arises under Act No. 470, Local Acts of Alabama, 1939, which provides for a hearing de novo on appeal to Personnel, after which Personnel may "rescind, modify, alter, or affirm the penalty imposed by the City, [see] Rule 14.7 of the Personnel Board of Mobile County"; City of Mobile v. Personnel Board for Mobile County, 57 Ala.App. 516, 517, 329 So.2d 570 (Ala.Civ.App.1976). This is much broader than the authority of the State Personnel Board, which, upon review and after hearing, if necessary, determines only whether the reasons stated for dismissal are sustained by the evidence presented and may order reinstatement only if the charges are proven "unwarranted." Hilyer v. Blackwell, 377 So.2d 1090 (Ala.Civ.App.1979). Accordingly, Personnel was the trier of fact below. City of Mobile v. Personnel Board for Mobile County, supra.

The standard of review by the trial court, therefore, is, in effect, that of certiorari, and, also, in its review it is limited to a review of the record made before Personnel and the questions of law presented thereto. Ex parte City of Tuskegee, 447 So.2d 713 (Ala.1984). Upon this limited review, the trial court must affirm the judgment of Personnel if there is any substantial or legal evidence to support its finding. Averyt v. Doyle, 456 So.2d 1096 (Ala.Civ.App.1984); Eagle Motor Lines, Inc. v. Alabama Public Service Commission, 343 So.2d 767 (Ala.1977).

The evidence revealed that Michael Smith, a classified employee of the Board, returned to the Board's facility, after hours, ostensibly to "borrow" some tools to use on a personal job. Later that evening, he returned to the facility, allegedly bringing back the borrowed tools. Upon making his rounds about 11:00 P.M., a security guard...