Ex Parte Auburn University

• Citation: 6 So.3d 478
• Decision Date: 03 October 2008
• Docket Number: 1070174.
• Parties: Ex parte AUBURN UNIVERSITY, Dr. Jay Gogue, and Dr. Gaines Smith. (In re Brenda M. Allen et al. v. Auburn University et al.).
• Court: Alabama Supreme Court

6 So.3d 478

Ex parte AUBURN UNIVERSITY, Dr. Jay Gogue, and Dr. Gaines Smith (In re Brenda M. Allen et al. v. Auburn University et al.).

1070174.

Supreme Court of Alabama.

October 3, 2008.

David R. Boyd, Dorman Walker, and Kelly F. Pate of Balch & Bingham, LLP, Montgomery; and Lee F. Armstrong, gen. counsel, Auburn University, for petitioners.

Jim L. DeBardelaben, Montgomery; and James B. Sprayberry, Auburn, for respondents.

BOLIN, Justice.

Auburn University, its president Dr. Jay Gogue,¹ and Dr. Gaines Smith (hereinafter collectively referred to as "the petitioners") petition this Court for a writ of mandamus directing the Lee Circuit Court to enter a summary judgment in their favor based on sovereign immunity and State-agent immunity as to the claims asserted against them by Brenda M. Allen, Austin K. Hagan, Charles C. Mitchell, Jr., James L. Novak, J. Walter Prevatt, Eugene H. Simpson III, and James O. Donald (hereinafter collectively referred to as "the plaintiffs"), all tenured professors employed by Auburn University ("the University").

Facts and Procedural History

The plaintiffs are faculty members in both the College of Agriculture and the School of Forestry and Wildlife Sciences. Before the 1987-1988 academic year, the plaintiffs were designated as federal Schedule A appointees employed by the University-affiliated Alabama Cooperative Extension Systems ("ACES") as extension specialists. ACES delivers research findings/information of the various land-grant universities to Alabama's farmers. As Schedule A appointees, the plaintiffs were eligible for certain federal benefits, including participation in the Federal Civil Service Retirement System. During the 1987-1988 academic year, the University's Board of Trustees approved a reorganization of the University's administrative structure. As part of this reorganization, the plaintiffs were merged into the College of Agriculture and the School of Forestry and Wildlife Sciences as faculty members and were given rank and tenure. Each plaintiff was given the title "Extension Specialist & Professor" and was no longer considered an ACES employee. However, the plaintiffs, as Schedule A appointees, remained eligible for federal benefits, including the participation in the Federal Civil Service Retirement System.

Before 1997, faculty in the University's College of Agriculture and School of Forestry and Wildlife Sciences were hired on 12-month appointments. Under the 12-month appointments, the faculty members worked for the University year-round. Beginning in 1997, the University began hiring faculty in the University's College of Agriculture and School of Forestry and Wildlife Sciences on nine-month appointments. The University also allowed faculty members who had been hired before 1997 to convert from 12-month appointments to 9-month appointments. Chapter 7, § B. 1., of the University's Faculty Handbook provides:

"Faculty participation in programs and projects administered or conducted by the University and supported by extramural contracts, grants, or other types of agreements shall be considered a part of the faculty member's responsibilities to the University. During the time that a faculty member is under contract to the University, be it on a nine-month or a 12-month appointment, the individual is expected to fulfill his or her total responsibilities. Therefore, if a faculty member is participating in an extramural program or project within the University, whether it is in his or her own or a different department or division of the University, an appropriate part of the faculty member's salary shall be provided by the program or project budget. Under these circumstances, no increase in the faculty member's base compensation shall be permitted."

The import of this policy is that a faculty member on a nine-month appointment is free to supplement his or her salary by pursuing other opportunities, such as research grants through extramural funding, during the three months of the year that he or she is not obligated to the University. A faculty member on a 12-month appointment is obligated to the University on a year-round basis and is unable to supplement his or her base salaries through extramural funding because participation in externally funded programs during the period of the faculty member's appointment, whether it be 9 months or 12 months, is considered part of the faculty member's responsibility to the University and a portion of that faculty member's salary is already provided for by the externally funded program.

When a faculty member converts from a 12-month appointment to a 9-month appointment, that faculty member agrees to a permanent reduction in his or her base salary to approximately 91% of his or her 12-month salary. Faculty members who were converting from 12-month appointments to 9-month appointments were guaranteed by the University two summer salaries at 25% of the 9-month base salary until extramural funding could be obtained. Once the University had met its commitment as to the summer salaries, it was the faculty member's responsibility to obtain extramural funding to supplement his or her nine-month base salary, and there was no guarantee that the faculty member could obtain the extramural funding.

Dr. Smith, the interim director of ACES during the conversion, contacted the United States Department of Agriculture ("the USDA") in June 2002, to inquire as to the possibility of Schedule A appointees converting from 12-month appointments to 9-month appointments. The USDA responded that Schedule A appointees were not eligible for nine-month appointments, stating that Schedule A appointees must be "employed [by the University] under a permanent year round arrangement with Extension functions being performed at least 50% of the time throughout the entire year."

Section 7220 of the Farm Security and Rural Investment Act of 2002 terminated all Schedule A appointments on January 31, 2003. However, the plaintiffs, as former Schedule A appointees, remained eligible for participation in the Federal Civil Service Retirement System under the Farm Security and Rural Investment Act if the plaintiffs remained employed by the University on a permanent year-round basis with at least 50% of their employment time being devoted to extension functions. ACES is required to certify annually to the USDA that the former Schedule A appointees are meeting the USDA's requirements in order to maintain their eligibility for the Federal Civil Service Retirement. These former Schedule A appointees were also permitted to begin participating in the State of Alabama Retirement Systems at a rate of 50% of their annual salaries. The vast majority of the University's faculty, who are not former Schedule A appointees, are not eligible to participate in the Federal Civil Service Retirement System.

In April 2005, the plaintiffs expressed to Dr. Smith their discontent with being denied the opportunity to participate in the nine-month conversion process afforded the other faculty members in their departments. The plaintiffs had determined that their being denied the opportunity to participate in the nine-month conversion process had resulted in their annual compensation levels falling below those of their colleagues who were not former Schedule A appointees, who had been allowed to convert to nine-month appointments. The plaintiffs requested an increase of 13.75% to 21.13% in their base salary in order, they said, to create equity with the salaries of their colleagues who, as nine-month appointees, were allowed to enhance their salaries through extramural sources during the summer months.

Dr. Smith responded to the plaintiffs by letter in June 2005, expressly informing the plaintiffs that conversion from 12-month appointments to nine-month appointments was prohibited by the federal regulations of the USDA. Dr. Smith also denied the plaintiffs' requested salary increases as unjustified, explaining:

"There are two additional points to consider. First, all faculty who have elected to convert their salaries at 91% or less have opted to have their base salary reduced permanently. While summer salary, whether guaranteed or funded from funds raised by the faculty member, increases compensation, it does not increase the base salary for these individuals.

"Secondly, after summer funding commitments are met, then the faculty member is responsible for raising funds for additional compensation. There is a risk for the individual that the funds will not be available. By electing to shift to a nine-month appointment, the individual has assumed the risk.

"Therefore, based on these points relating to the conversions, the requested increase in base salary for a continuing 12-month appointment would place your benefits substantially above others in the College. Further, the average salary of your group making this request is 120% of the southern region average for Extension specialists. Hence, your requested salary adjustments are not approved."

Although Dr. Smith denied the plaintiffs' request to increase their salaries, he did offer the plaintiffs the following option:

"There is, however, another straightforward process for removing the circumstances that disallows you to be on a nine-month appointment; that is, your former Schedule A federal appointment that requires a 12-month appointment can be ended through retirement or job abolishment. As the designated administrator responsible for the management of federal Schedule A appointees, I have the authority to abolish your current position making you eligible to receive an immediate federal retirement annuity and free to negotiate a nine-month appointment as others in the College of Agriculture have done.

"For those eligible, the same can be accomplished through regular retirement.

"Let me know if there is any interest in either of these options. We can initiate the process immediately."

The plaintiffs rejected this...