CITY OF DOTHAN PERSONNEL BD. v. DeVane

• Citation: 860 So.2d 881
• Parties: CITY OF DOTHAN PERSONNEL BOARD v. Stanley E. DEVANE.
• Decision Date: 20 December 2002
• Court: Alabama Court of Civil Appeals

860 So.2d 881

CITY OF DOTHAN PERSONNEL BOARD v. Stanley E. DEVANE.

2010809.

Court of Civil Appeals of Alabama.

December 20, 2002.

Rehearing Denied January 31, 2003.

D. Kevan Kelly, asst. city atty., Dothan, for appellant.

Kevin Walding of Hardwick, Hause & Segrest, Dothan, for appellee.

THOMPSON, Judge.

The City of Dothan ("the City") terminated the employment of Stanley E. DeVane, a police officer employed as a member of the City's classified-service system. The Civil Service Act of Dothan, Act. No. 92-442, Ala. Acts 1992 (hereinafter "the Civil Service Act"), governs the procedures for the termination of employees within the City's classified-service system. Pursuant to the provisions of the Civil Service Act, DeVane appealed the City's termination of his employment to the City of Dothan Personnel Board ("the Board"). The Board conducted a hearing at which it received evidence, and it later entered an order affirming the City's decision to terminate DeVane's employment. DeVane then appealed the Board's decision to the trial court. See § 33 of the Civil Service Act. DeVane named the City and the Board as defendants in his appeal to the trial court from the Board's decision.

During the course of those proceedings in the trial court, the Board filed in the Supreme Court of Alabama a petition for a writ of mandamus requiring the recusal of the trial court judge. The Supreme Court of Alabama denied that petition. Ex parte City of Dothan Pers. Bd., 831 So.2d 1 (Ala.2002). The trial court reviewed the evidence presented to the Board. The trial court reversed the Board's decision and ordered that DeVane be reinstated as a police officer with the City. The City did not challenge the trial court's judgment; however, the Board filed a notice of appeal. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

DeVane contends that the Board is not a party to the dispute that forms the basis of this appeal and that, therefore, the Board does not have standing to appeal the trial court's judgment reversing its decision. See Doremus v. Business Council of Alabama Workers' Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala. 1996) ("To say that a [party] has standing is to say that that [party] is a proper party to bring the action."). DeVane and the Board have argued this issue in their briefs submitted to this court, and, in response to a request by this court, each submitted additional arguments in letter briefs. The issue of standing is jurisdictional. Kid's Care, Inc. v. Alabama Dep't of Human Res., 843 So.2d 164 (Ala.2002); McCurdy v. L.C. Props., L.L.C., 781 So.2d 991 (Ala.2000); State v. Property at 2018 Rainbow Drive, 740 So.2d 1025 (Ala.1999). Therefore, because the issue has been squarely presented to this court and argued before it, we address the issue whether the Board has standing to bring the appeal in this matter.

Initially, we note that the Board asserts that it is an administrative agency governed by the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala.Code 1975. The Board is correct that the AAPA allows any person aggrieved by an adverse decision to appeal under that Act, see § 41-22-20, Ala.Code 1975. However, the AAPA governs state agencies — not local entities such as the Board. See §§ 41-22-2 and 41-22-3(1), Ala.Code 1975. See also Ex parte Boyette, 728 So.2d 644 (Ala.1998) (holding that Boyette's appeal from a county personnel board decision was governed by a special enabling act and not by the AAPA). Thus, the AAPA does not govern this case; therefore, it does not afford the Board standing to appeal in this matter.

The Board maintains that it has standing to appeal in this case for several reasons. The Board first contends that DeVane failed to raise the issue of standing when the Board petitioned the supreme court for a writ of mandamus during the course of the proceedings before the trial court. See Ex parte City of Dothan Pers. Board, supra (holding that the Board was not entitled to a writ of mandamus requiring the trial judge to recuse). The Board implies, without explicitly arguing, that DeVane is now precluded, on res judicata grounds, from raising the issue of its standing. An issue or action is barred by the doctrine of res judicata when a court of competent jurisdiction has rendered a judgment on the merits in an earlier action that involved substantially identical parties and that presented the same cause of action. Parmater v. Amcord, Inc., 699 So.2d 1238, 1240 (Ala.1997). The issue of standing was not mentioned or addressed in Ex parte City of Dothan Personnel Board, supra. Therefore, we conclude that the doctrine of res judicata does not apply to foreclose this court's consideration of the merits of that issue. Further, the denial of a petition for mandamus does not have a res judicata effect as to other issues. Jack Ingram Motors, Inc. v. Ward, 768 So.2d 362 (Ala.1999) (citing Quality Truck & Auto Sales, Inc. v. Yassine, 730 So.2d 1164, 1167 n. 4 (Ala. 1999)).

The Board also contends that it has standing to bring this appeal because the appellate courts of this state have "consistently allowed cases to proceed on appeal in the name of the Board." The Board cites a number of cases in support of this contention. See Ex parte City of Dothan Pers. Bd., 791 So.2d 353 (Ala.2000); Tucker v. Personnel Bd. of Dothan, 644 So.2d 8 (Ala.Civ.App.1994); City of Dothan Pers. Bd. v. Herring, 612 So.2d 1231 (Ala.Civ. App.1992); Williams v. City of Dothan Pers. Bd., 579 So.2d 1350 (Ala.Civ.App. 1990). Although the Board is correct that Alabama appellate courts have considered appeals brought or defended in the name of the Board alone, it does not appear in any of those earlier cases that the Board's standing was challenged or that the courts considered the issue of standing ex mero motu. Therefore, the cases the Board relies upon are not determinative of the Board's standing in this case.

The Board, citing § 11-44E-45, Ala.Code 1975, argues that the Legislature, by enacting that provision, clearly intended to prevent the City from taking part in personnel matters involving members of the classified service. However, § 11-44E-45 governs the manner in which a city commission for a Class 5 municipality¹ may deal with employees in the city's administrative system.

Assuming that the City is a Class 5 municipality governed a city commission, § 11-44E-45 specifically prohibits the city commission or its members from directing or requesting that a person be appointed to or removed from service in the city's administrative system, and it prohibits the commission from taking part in the appointment or removal of officers or employees in the administrative service of the city; the section provides that the commission may "deal" with matters concerning the City's administrative service through the city manager. § 11-44E-45, Ala.Code 1975. We do not interpret § 11-44E-45 as divesting the City of its status as a party to an action appealing the City's decision to terminate the employment of an employee in its classified-service system.

The Board also maintains that it is a "party" entitled to appeal under the Civil Service Act. The relevant portion of the Civil Service Act provides:

"Section 33. COURT PROCEEDINGS. Orders of the personnel board may be enforced by mandamus, injunction, quo warranto, or other appropriate proceedings, in any court of competent jurisdiction. Any person or city official directly interested may, within five days, appeal to the Circuit Court of Houston County from any order of said board by filing notice thereof with the board, whereupon said board shall certify to a transcript of the proceedings before it and file the same in said court. The findings of fact by said board, duly set forth in the transcript, if supported by substantial evidence adduced before said board, after notice to the interested party or parties and after affording such parties an opportunity to be heard, shall be conclusive on any appeal. The issues on such appeal shall be made up under the directions of the court and within 30 days after such transcript is filed in court; and the trial thereof shall proceed on the evidence contained in such transcript, if it appears that the evidence was taken after such notice and opportunity to be heard. If upon such appeal, the court finds that the ruling, order, or action appealed from is unlawful or unreasonable, within the meaning of this act, it shall have power to vacate or modify the same."

(Emphasis added.) In making its argument on this issue, the Board does not assert that it is a party to the appeal to the Board. Rather, the Board contends that when one of the parties that had appeared before it appeals its decision to the circuit court, the Board becomes a party to that action in the circuit court. However, in discussing the standard by which the circuit court reviews the Board's decision, the Civil Service Act provides for "notice to the interested party or parties." We believe that provision refers to the parties that appeared before the Board, and we conclude that the provision does not expressly provide that the Board is a party to an appeal of its own decision to the circuit court.

The Board next argues that, assuming that it is not a "party" under the Civil Service Act, it has standing to appeal the trial court's judgment because the Civil Service Act authorizes such an appeal for any "person or city official." The Board contends that in providing a right of appeal to a "person or city official," the Civil Service Act includes the Board as a "person" entitled to appeal. In making this argument, the Board ignores the fact that the provision allowing an appeal by a "person or city official" provides for an appeal from the Board's own decision to the trial court. Also, the term "person" is not defined in the Civil Service Act. However, it seems apparent that there would be no...