Ex parte Jefferson Cnty.

• Decision Date: 08 January 2021
• Docket Number: 2190685
• Parties: Ex parte Jefferson County (In re: Cleophert Warren v. Jefferson County)
• Court: Alabama Court of Civil Appeals

Ex parte Jefferson County

(In re: Cleophert Warren
v.
Jefferson County)

2190685

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2020-2021
January 8, 2021

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

PETITION FOR WRIT OF CERTIORARI

(Jefferson Circuit Court, CV-17-309)

THOMPSON, Presiding Judge.

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Jefferson County ("the county") seeks review of a judgment of a three-judge panel of the Jefferson Circuit Court ("the circuit court"), which reversed a decision of the Jefferson County Personnel Board ("the board") terminating the employment of Cleophert Warren and rendered a judgment in favor of Warren.

The record indicates the following. Warren worked as a juvenile-detention officer at the Jefferson County Youth Detention Center ("the detention center") when his employment was terminated on July 21, 2016, for initiating "inappropriate contact" on social media with the mother of one of the juvenile detainees. Specifically, the action taken against Warren was based on violations of the board's rules and regulations, including Rule 12.2(c), addressing conduct unbecoming a classified employee; Rule 12.2(g), addressing incompetence or inefficiency; and Rule 12.2(p), addressing any other legitimate and nondiscriminatory reason that constitutes good cause for disciplinary action, is reasonably specific, is consistent with the rules, and is not motivated by any non-work-related preference or animus for or against any person. Warren received notice

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of the disciplinary action on July 21, 2016, and filed a timely appeal of that decision with the board on July 22, 2016. His attorney filed an amended appeal with the board on July 28, 2016.

An evidentiary hearing to consider Warren's appeal was held before a hearing officer on June 27, 2017. The county's primary evidence against Warren were printouts of a social-media conversation between someone identified as Warren and J.H., a detention-center resident's mother. The conversation reads:

"[Warren]: Hey I thought I recognized you, you can [sic] to my work yesterday.

"[J.H.]: Your work?

"[Warren]: Yeah. I'm a officer at the Youth Detention Center I saw you yesterday.

"[J.H.]: Oh ok.

"[Warren]: Do you remember? That's why I kept looking at you, Facebook kept suggesting you to me.

"[J.H.]: In between two doors?

"[Warren]: Yeah, that was me. When are you coming back up here?

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"[J.H.]: Tomorrow.

"[Warren]: Ok, I won't be here. Who's your son?

"[J.H.]: [K.]

"[Warren]: [D.]?

"[J.H.]: Yes

"[Warren]: Oh sh** lol, he's in my unit.

"[J.H.]: I hope he's behaving.

"[Warren]: He's cool as f***.

"[J.H.]: He's a good kid just has a smart mouth sometimes.

"[Warren]: He's always cool with me. I wanted to holla at you yesterday, but I don't like people in my business. You single?

"[J.H.]: No I'm not single.

"[Warren]: Smh .... F***! ! ! ! LOL

"[J.H.]: Lol

"[Warren]: I'm digging you tho, you sexy af ... even though you was looking a lil rough yesterday lol. So is he your only kid?

"[J.H.]: No.

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"[Warren]: How many do you have?

"[J.H.]: 3

"[Warren]: Me too, ps .... I won't tell your son we talking on FB, so don't mention it, cool?

"[J.H.]: Ok

"[Warren]: So where you from? And what do you do for a living?"

An audio recording of an interview between J.H. and Katrina Andrews, the interim director of the detention center, and Cornelius Washington, a supervisor at the detention center, was also presented during the hearing. J.H. could not be called as a witness at the hearing because she was killed in an automobile accident between the time of the events made the basis of the termination of Warren's employment and the hearing. Warren objected to the introduction of the audio recording on the ground that, because she was unavailable, J.H. could not be cross-examined. The hearing officer permitted the playing of the audio recording during the hearing.

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Although the record indicates that the audio recording was included as an exhibit before the hearing officer and in the circuit court, it was not included in the record before this court. In his findings of fact, the hearing officer, Michael A. Anderson, stated that, during the interview, J.H., who was not giving sworn testimony during the interview, said that she received unsolicited contact from Warren through the social-media Web site Facebook.

Mark Schofield, a juvenile-detention officer at the detention facility, testified at the hearing. He also provided a written statement as part of his job duties. Schofield testified that, on July 7, 2016, after J.H. had visited her son ("the resident") at the detention center, the resident was returning from that visit and appeared to be upset. Schofield said that he had a conversation with the resident, who told him he was angry because his mother had told the resident about messages Warren had sent to her on Facebook that were "personal and inappropriate." At the hearing, Schofield testified that the resident told him he believed that Warren was attempting to "get a date or hook up" with J.H. Schofield said that the

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resident told him that Warren and J.H. did not know each other. Schofield said that the resident explained to him that, earlier that week, Warren had woken up the resident to ask him his mother's name and how to spell it. According to Schofield, the resident said that he believed that Warren had used the information to contact J.H. and the resident felt guilty about having provided the information to Warren.

Warren told the hearing officer that he never sent a message to J.H. via Facebook or any other means. He said that if he had wanted to know the name of the resident's mother, he would have checked the "data sheets" at the detention center. Additionally, Warren said, the photograph associated with his purported Facebook account from which the messages to J.H. were sent was a 2010 mug shot of him, and he did not have access to that mug shot. He also pointed out that anyone could create a Facebook account, suggesting that someone else had created the account from which the messages were sent to J.H. Warren also said that a youth who was close to the resident had taken Warren's cell phone before the incident and that the cell phone was found in that youth's

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mattress. By having access to his cell phone, Warren said, the youth could have learned personal information about Warren and shared that information with others.

Cornelius Washington, a shift supervisor at the detention center...