Fowler v. Johnson
| Decision Date | 29 December 2006 |
| Docket Number | 1041379. |
| Citation | 961 So.2d 122 |
| Parties | Audie Van FOWLER v. James JOHNSON, Sheriff of Baldwin County. |
| Court | Alabama Supreme Court |
W. Gregory Hughes, Mobile, for appellant.
E.L. McCafferty III of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for appellee.
On Application for Rehearing
This Court's no-opinion affirmance of August 11, 2006, is withdrawn, and the following opinion is substituted therefor.
Audie Van Fowler appealed a judgment upholding his termination from employment as a deputy sheriff by James Johnson, the sheriff of Baldwin County. We affirm.
Effective December 2002, the sheriff's office for Baldwin County ("the sheriff's office") established its own personnel merit system pursuant to Act No. 2002-463, Ala. Acts 2002, codified at § 45-2-234 et seq., Ala.Code 1975 ().1 That Act provides that the sheriff's office would adopt rules and regulations applicable to dismissals, suspensions, and other disciplinary action against employees covered by the sheriff's personnel merit system ("merit employees"). Ala.Code 1975, § 45-2-234.03. Act No. 2002-463 also established the Sheriff's Office Personnel Appeals Board ("the appeals board") to enforce the regulations of the sheriff's personnel merit system, conduct administrative hearings on appeals by merit employees concerning disciplinary actions, and make recommendations to the sheriff as to whether preliminary disciplinary decisions should be affirmed, reversed, or modified. See Ala.Code 1975, §§ 45-2-234.06, 45-2-234.07, 45-2-234.08, and 45-2-234.09. The Act further provides that, after receiving a recommendation from the appeals board concerning the discipline of a merit employee, the sheriff has the final responsibility to approve, disapprove, or modify the appeals board's recommendation. Ala.Code 1975, § 45-2-234.09(c)(3).
The operative events leading to Fowler's termination occurred in the first quarter of 2003. Fowler had been employed as a deputy sheriff in Baldwin County for approximately 14 years when the sheriff's personnel merit system was created. Given that longevity, Fowler was a merit employee who had statutory rights related to his employment, including the right not to be terminated except for cause. See Ala. Code 1975, §§ 45-2-234.01(6) and 45-2-234.03.
Early in 2003 Fowler became the subject of a criminal investigation related to his personal finances and the mishandling of funds in the estate of Susan Greek, for which Fowler's wife had been appointed conservator ("the Greek estate"). Fowler was placed on administrative leave with pay on February 11, 2003, pending that investigation. Subsequently, Fowler was indicted by a Baldwin County grand jury on three counts — theft, conspiracy, and exploitation of assets in the Greek estate. Fowler's wife was also indicted on similar charges.
Fowler received a telephone call from his attorney on March 26, 2003, advising him and his wife to surrender to the authorities at the county jail on the following day. When he arrived at the jail on March 27, 2003, Fowler met with two law-enforcement representatives — Lt. Charles Jones of the sheriff's office and Stan Stabler of the Alabama Bureau of Investigation. At the jail, Stabler served Fowler with an arrest warrant and advised Fowler of the nature of the charges against him. Further, on March 27, 2003, Lt. Jones delivered to Fowler a letter dated March 26, 2003, signed by the sheriff stating:
While Fowler was at the jail on March 27, Lt. Jones told Fowler that he was being terminated because an indictment had been filed against him. Fowler was then booked into the jail; he was released later that day after posting bail. Fowler was in custody for a period of approximately 30-45 minutes on March 27. Lynne Tedder, the personnel officer for the sheriff's personnel merit system ("the personnel officer"), also sent the sheriff a memorandum on March 27 stating that Fowler's employment was terminated effective March 26, 2003, the last date through which he was paid.
On March 31, 2003, Fowler's attorney appealed the termination of Fowler's employment by writing the personnel officer. Fowler's attorney also asked the personnel officer to furnish a copy of the personnel guidelines for the sheriff's office. The review of the disciplinary action against Fowler was the first administrative proceeding since the creation of the sheriff's personnel merit system. In an April 2, 2003, letter, the personnel officer advised Fowler's attorney that the sheriff's office had not printed and disseminated its own guidelines but was following the practices in the personnel policies and procedural manual used by the Baldwin County Commission ("the manual"). The personnel officer sent Fowler's attorney a copy of the manual and notified him of a tentative hearing date before the appeals board to consider Fowler's appeal.
The manual contained multiple provisions related to termination, suspension, or demotion of a merit employee (hereinafter collectively "disciplinary actions"). The manual provides that the consideration of a disciplinary action generally involves three steps: (a) a predisciplinary hearing; (b) a hearing before a personnel appeals board; and (c) an appeal to the circuit court for a trial de novo. The key provisions in the manual relating to those steps are summarized as follows:
1. Prior to the institution of a disciplinary action, the employer of the merit employee (manual, p. 38);
2. The predisciplinary hearing can be bypassed if "extraordinary situations" exist. Those situations are where (a) retention of the worker would "result in damage to public property," (b) retention would "result in injury whether to the employee, a fellow employee, or to the general public," (c) "the employee is confined in jail or prison under a writ of arrest or other judicial process," (d) the employee is under the influence, or has in his possession, an intoxicating beverage, illegal drug, narcotic, or controlled substance, or (e) the "personal conduct of the employee is abusive or disruptive to the orderly conduct of the office or department." (manual, p. 38);
3. If the employer does not hold a predisciplinary hearing because of an extraordinary situation, the employer "shall, nevertheless, furnish written notice of the reasons for the termination or suspension within 24 hours of such dismissal or suspension." (manual, p. 38);
4. A merit employee may appeal an adverse disciplinary action to a personnel appeals board. That board will conduct an administrative hearing to review the action. In conducting the hearing, the appeals board may subpoena witnesses, compel production of documents, administer oaths; the parties may be represented by counsel at the hearing, and the board may receive testimony without applying rules of evidence. (manual, pp. 34-35);
5. Within seven days after the employer receives a notice that the employee intends to appeal a disciplinary action to the appeals board, "the personnel [officer] shall file with the chairman of the board and mail to the employee by certified mail a statement specifying the charges against the employee on which the disciplinary action is based." (manual, p. 35);
6. "Any employee may be dismissed for the good of the County service. Reason(s) for dismissal may include, but shall not be limited to:
7. After final administrative action concerning a disciplinary action, "the employee shall be entitled to, within 7 days, appeal to the Circuit Court of Baldwin County for a nonjury trial de novo." (manual, p. 34.)
(Emphasis added.)
The sheriff's office did not conduct a predisciplinary hearing before terminating Fowler's employment. Further, the sheriff's office did not furnish Fowler a written notice within 24 hours after his dismissal specifying the reasons for his termination, as required by the manual. Additionally, the personnel officer did not provide Fowler a statement by certified mail within seven days of Fowler's appeal of his termination specifying the charges on which the disciplinary action was based.
Fowler's appeal was heard by the appeals board on April 17, 2003 ("the administrative hearing").2 Larry Milstid, the chief deputy in the sheriff's office, represented the sheriff at that hearing and presented evidence to support Fowler's termination. No witnesses other than Milstid testified for the sheriff. Fowler — then under indictment — did not testify at the administrative hearing, but his attorney participated in the hearing.
Milstid's presentation at the administrative hearing addressed events related to Fowler's indictment and his employment history over his 14-year career. Approximately 15 minutes before that hearing, Milstid provided Fowler's attorney with a document summarizing Fowler's work history. That document noted allegations of mishandling of funds in the Greek estate and Fowler's indictment and summarized events concerning eight employment matters unrelated to the indictment. Four of those eight events led to disciplinary warnings against Fowler, and the other four were matters that had been investigated by the sheriff's...
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