Burks v. Zeanah

• Decision Date: 11 December 1974
• Citation: 54 Ala.App. 55,304 So.2d 610
• Parties: In re Donald BURKS et al. v. Oscar M. ZEANAH et al. Ex parte Grace ETHEREDGE. Civ. 390.
• Court: Alabama Court of Civil Appeals

Page 610

304 So.2d 610

54 Ala.App. 55

In re Donald BURKS et al. v. Oscar M. ZEANAH et al. Ex parte Grace ETHEREDGE.

Civ. 390.

Court of Civil Appeals of Alabama.

Dec. 11, 1974.

J. Victor Price, Jr., Montgomery, for petitioners.

Speake & Speake, Moulton, for respondents.

PER CURIAM.

This matter arises from a petition for writ of mandamus to compel respondent judge to vacate a judgment. The original judgment was entered in favor of the Lawrence County School Board in an action in which the petitioner was a named defendant, but was never served with notice of the proceeding.

On April 27, 1973, petitioner, a tenured teacher, received a letter from the Superintendent of Education of Lawrence County. The letter advised petitioner that her 'contract as principal' would not be renewed for the 1973--1974 school year.

On May 21, 1973, petitioner received a second letter from the superintendent informing her that she had been transferred to a teaching position in the Lawrence County School system for the 1973--1974 school year as a guidance counselor.

Petitioner thereafter requested that the school board send her a W--2 form for her income tax files indicating the pay she received for sick leave during the 1972--1973 school year. In response to this request the board sent a letter to her on June 14, 1973. In this letter the board notified petitioner that 'normally W--2 forms are not issued at this time of year, unless that person is terminated, Which you are not.' (Emphasis added.) Additionally, the letter included the following as a closing paragraph:

'I do not know your intention, but the Board intended to offer you another position at no reduction in salary and probably less strenuous both mentally and physically. They and I will be glad to discuss this with you.'

By this letter and also several other unsuccessful attempts the board attempted to meet and discuss the situation with petitioner.

The first notice the school board received that the proposed transfer was unacceptable was a letter on August 6, 1973, to the board from the State Tenure Commission. The letter was in response to a petition filed with the commission by the petitioner in which she alleged that her employment had been terminated by the board in the absence of procedure regularities, to wit, Tit. 52, §§ 355, 359, Ala.Code (1940).

A hearing was held before the State Tenure Commission on August 17, 1973, which resulted in a ruling by the commission on August 22. The pertinent parts of the ruling are:

'After hearing arguments of counsel and reviewing the record, the Commission is of the opinion that the letter of April 27, 1973, to non-renew the contract of Miss Etheredge, who was on continuing service status as principal of Hazelwood High School, did not meet the procedural requirements of due process as set forth in Title 52, § 359, Code of Alabama, 1940, As Amended, for cancellation of contract.

'The Commission further finds that the letter of May 21, 1973, assigning Miss Etheredge to a teaching position at Lawrence County Technical School as guidance counselor, does not conform to the requirements of Section 355, Title 52, Code of Alabama, 1940, As Amended, for transfer of teachers.

'The Commission hereby orders the Lawrence County Board of Education to reinstate Miss Garce Etheredge as principal of Hazelwood High School and that she be continued in such position until properly transferred pursuant to procedural requirements under Section 355, Title 52, Code of Alabama, 1940, As Amended, or dismissed under procedural requirements under Section 359, Title 52, Code of Alabama, 1940, As Amended.'

Seeking review of the Tenure Commission action, the board filed a petition for mandamus with the Circuit Court of Lawrence County in accord with Alabama Law. Tit. 52, § 361, Ala.Code (1940). Named as defendants by the board were the members of the State Tenure Commission and also petitioner. Service was had on all named defendants except petitioner.

The action was heard before Judge Burney on October 15, 1973. No appearances were made by the defendants or by counsel on behalf of the defendants.

A ruling was issued by Judge Burney on October 22, 1973. In his ruling the learned judge, after a recitation of the facts, held that:

'Following consideration of the oral testimony and the record submitted, the Court is of the opinion that the communications by the Board of Education to the Defendant, GRACE ETHEREDGE, were timely made and the personnel actions of the Board with respect to her, as communicated by said notices were within the purview and authority of the Board of Education of Lawrence County Alabama.

'The Court is further of the opinion that the method of perfecting an appeal from a final personnel action of a Board of Education in the State of Alabama, to the State Tenure Commission is statutory and clearly mandated in Title 52, Section 356 and Section 359 of the Code. Adherence to the procedural requirements in perfecting timely notice of such appeal from actions of Boards of Education has been characterized by our Courts as mandatory and prerequisite to invoking the jurisdiction of the Tenure Commission.

'It is the opinion of the Court and the Court finds as a fact from the review of the evidence in this case, that Defendant, GRACE ETHEREDGE, wholly failed to follow the procedures set forth by the statutes in legally invoking the jurisdiction of the Tenure Commission and the Court concludes that the Commission was without jurisdiction or legal authority to entertain consideration of the proceedings brought by the original petition for and on behalf of the said Defendant, ETHEREDGE, and said Commission should have declined to entertain jurisdiction of said proceedings.

'The Court is further of the opinion that the Board of Education had no intention of terminating the employment of Defendant, ETHEREDGE, as a teacher in the school system of Lawrence County, Alabama, but rather the transfer as evidenced by the letter of May 21, 1973, from her principalship of Hazlewood (sic) High School to the position as Guidance Counselor of the Lawrence County Vocational School, was within the authority of the Board and consistent with its responsibility to administer the personnel requirements for teachers and administrators in the Lawrence County School System and constituted a recognition of her status in the school system as a tenure...