Clayton v. Board of School Com'rs of Mobile County

• Decision Date: 08 June 1988
• Citation: 552 So.2d 145
• Parties: 57 Ed. Law Rep. 599 Linda CLAYTON and Betty Johnson v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al. Tobie F. DAY, et al. v. SOUTHWEST STATE TECHNICAL COLLEGE, et al. Civ. 6052, Civ. 6210.
• Court: Alabama Court of Civil Appeals

Page 145

552 So.2d 145

57 Ed. Law Rep. 599

Linda CLAYTON and Betty Johnson v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al.

Tobie F. DAY, et al. v. SOUTHWEST STATE TECHNICAL COLLEGE, et al.

Civ. 6052, Civ. 6210.

Court of Civil Appeals of Alabama.

June 8, 1988.

Rehearing Denied July 27, 1988.

Gregory B. Stein of Stein and Brewster, and Henry H. Caddell of Thiry, Maples &

Brunson, and Arthur J. Madden III of Madden & Soto, Mobile, for appellants

Thomas R. McAlpine of Sintz, Campbell, Duke, Taylor, & Cunningham, and Mylan R. Engel and Edgar P. Walsh of Engel, Walsh & Zoghby, Mobile, for appellees.

Robert Chanin and Walter Kamiat of Bredhoff & Kaiser, Washington, D.C., for amicus curiae Alabama Educ. Ass'n, in support of appellants.

Don Siegelman, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., amicus curiae in support of constitutionality of statute.

David R. Boyd and W. Joseph McCorkle, Jr., of Balch & Bingham, Montgomery, for amicus curiae Alabama Ass'n of School Boards in support of appellees.

INGRAM, Judge.

These are consolidated appeals from two decisions of the Circuit Court of Mobile County involving the Fair Dismissal Act, § 36-26-100, et seq., Ala.Code 1975.

I.

In one case, the plaintiffs-appellants (employees) were instructors at a two-year educational institution (school) under the control and auspices of the Alabama State Board of Education. The employees filed this action in the circuit court against the school after the school proposed their termination and stopped their pay without any hearing. The employees sought a declaratory judgment, a preliminary and permanent injunction reinstating their pay, a writ of mandamus, damages, and an award of reasonable attorney fees under 42 U.S.C. § 1988.

The school contended that the provision of the Fair Dismissal Act (Act) did not apply to the facts in this case and that the employees were therefore not entitled to a hearing under § 36-26-105 of the Act. The school then contended that the Act, for various reasons, was unconstitutional.

On October 30, 1986, the circuit court denied the employees' request for injunctive relief and the petition for writ of mandamus. The court's order, in part, is as follows:

"This Court has been called upon to decide whether or not Southwest State, acting through its agents or employees, is required to pay Plaintiffs their full salaries and other benefits of office until the charges against them are resolved. Section 36-26-104 of the 1975 Code of Alabama, as amended, reads as follows:

" ' § 36-26-104. Notice of termination; suspension with pay; notice of intention to contest.

" ' Notice to the employee shall be served either by personal service or by United States registered or certified mail with postage prepaid thereon, to said employee's last known address. The employing board may suspend said employee with pay until the charges are heard and determined. This section, however, does not mandate pay in cases involving moral turpitude. If such charges are found to be unfounded, pay would be reinstated. Such notice shall also inform the employee that in order to contest said termination, the employee must file with the employing board, within 15 days after receipt of such notice, notice of an intention to contest the termination of said contract. If the employee does not file an intention to contest with the employing board within 15 days after receipt of such notice of intention to terminate said contract, then the employing board may dismiss the employee by a majority vote and such dismissal shall be final. (Acts 1983, No. 83-644, p. 1004, § 5.)'

"This Court construes § 36-26-104 to mean that an employer could not terminate someone's employment during a contract period on grounds not involving moral turpitude, without pay. However, in the cases before this Court, the employment contracts of each of the Plaintiffs have, in fact, expired. Is the employing board required to continue to pay employees pending resolution of a termination hearing where an employee's contract has expired? From an examination of the complaint and the briefs of the parties, the Court presumes that "It is clear from reading the Fair Dismissal Act, however, that should the charges be unfounded, and the Plaintiffs prevail in their appeals, then pay and other emoluments would be fully reinstated." (Emphasis in original.)

                proper notice was given to the Plaintiffs of their terminations in compliance with the Fair Dismissal Act, § 36-26-101.  Assuming that § 36-26-104 is applicable to the facts in these cases (i.e. where an employee's contract has already expired), this Court does not interpret that Section as requiring Plaintiffs to receive pay after their termination and prior to their hearings.  Section 104, supra, simply holds that the employing board may suspend said employee with pay until the charges are heard and determined.   This language places no compelling duty on the employing board, but gives the Board the discretion to do so.  Thus, this Court is of the opinion that Southwest State is not obligated, by the terms of that statute, to pay Plaintiffs after their contracts have expired
                

On the basis of the stipulated facts and documents, the circuit court entered a final order on June 27, 1987. The order, in part, is as follows:

"The Court adopts the reasoning and results contained in its Order of October 30, 1986; that is, there is no requirement on the part of the Defendants to continue to pay the Plaintiffs their salaries from the end of their contract period until their termination hearings.

"In order to dispose of the declaratory judgment action in its entirety, as well as the Plaintiffs' challenge to the above Order based on the Fourteenth Amendment and § 1983, this Court must reach the question of the Act's constitutionality.

"This Court is well aware of the long settled proposition that Courts have a general duty to avoid constitutional questions. However, if the legislative Act is repugnant to constitutional principles, a Court not only has the power, but also the duty, to declare the Act unconstitutional when the issue is properly presented. Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978).

"It is the opinion of this Court that the Fair Dismissal Act fits the constitutionally repugnant standard set forth in the Peddycoart case. This Court is without any choice but to declare the entire Act unconstitutional. This Court finds that the Act is void as an unconstitutional delegation of legislative power. This Court also holds that the Act violates the due process clauses of both the Alabama and the United States Constitutions. Further, the Act is both vague and overbroad. Finally, the Act is unconstitutional because it provides for compulsory and binding arbitration without accompanying judicial review." (Emphasis added.)

The employees then appealed to this court.

The employees filed this action to establish a single principle. The school cannot terminate the employees' pay until the employee review panel established by the Act has heard and decided the charges against them. As noted above, the circuit court rejected the employees' contention. The court initially held that while an employer could not terminate someone's pay during a contract period on grounds not involving moral turpitude, it could terminate these employees' pay without a hearing because the termination coincided with the expiration of the employees' contract. (We point out that the employees here were all working pursuant to a three-month contract which was to expire.) The court went on, however, and held that assuming these employees whose contract had expired did come within the Act, the school still did not have to pay them their salary pending a hearing, as the school was not obligated by the statute to do so.

The Act was enacted in 1983 for the dual purpose of providing job security to nonprofessional educational employees by providing a fair termination procedure for those employees. The Act provides that an employee who has completed his probationary period may not be terminated except for cause. See Ala.Code 1975, § 36-26-102 (1985 Supp.). The Act then goes on to set up the procedure that is to be followed for "Notice to the employee shall be served either by personal service or by United States registered or certified mail with postage prepaid thereon, to said employee's last known address. The employing board may suspend said employee with pay until the charges are heard and determined. This section, however, does not mandate pay in cases involving moral turpitude. If such charges are found to be unfounded, pay would be reinstated. Such notice shall also inform the employee that in order to contest said termination, the employee must file with the employing board, within 15 days after receipt of such notice, notice of an intention to contest the termination of said contract. If the employee does not file an intention to contest with the employing board within 15 days after receipt of such notice of intention to terminate said contract, then the employing board may dismiss the employee by a majority vote and such dismissal shall be final."

termination of employment. The section at issue here is § 36-26-104, as follows:

As noted above, the employees here were working pursuant to a three-month contract, and the school therefore contends that they were not covered under the Act as their contracts had expired. It appears to this court that to allow such action would emasculate the intent of the Act. By deliberately designing and requiring short, three-month contracts of employment, the school could effectively modify and evade the requirements of the Act. See Haas v. Madison County Board of Education, 380 So.2d 873 (Ala.Civ.App.1980), cert. denied, 380 So.2d 877 (Ala.1980). Therefore, we hold that these employees, even though employed pursuant to a three-month contract, do come within the provision of § 36-26-104...