Grant v. City of Mobile

• Decision Date: 30 August 1973
• Citation: 291 Ala. 458,282 So.2d 291
• Parties: In re Jack E. GRANT and Morris Berger et al., as Members of the Mobile County Personnel Board v. The CITY OF MOBILE, a municipal corp. Ex parte CITY OF MOBILE. S.C. 468.
• Court: Alabama Supreme Court

Page 291

282 So.2d 291

291 Ala. 458

In re Jack E. GRANT and Morris Berger et al., as Members of the Mobile County Personnel Board v. The CITY OF MOBILE, a municipal corp.

Ex parte CITY OF MOBILE.

S.C. 468.

Supreme Court of Alabama.

Aug. 30, 1973.

William H. Brigham, Mobile, for petitioner.

Mylan R. Engel, Mobile, for respondents.

COLEMAN, Justice.

An employee of the City of Mobile was employed as a toll collector on the Bankhead Tunnel. He had been employed about twenty-seven months and had no suspensions or reprimands during that period. His duties included the collection of money and placing the money in a safe near his place of employment. At regular times other employees or agents of the city went to the safe, removed the money and took it to a bank. The procedure provided a method of checking and reporting toll collections so that the agents who took the money to the bank could, upon opening the safe, promptly determine whether any money was missing.

On a certain morning, the agents of the city discovered that a money bag charged to the employee toll collector was missing from the safe. The bag contained $280.00. The toll collector testified that he had placed the bag in the safe. He did not contend that the bag was not missing when the safe was opened.

The city dismissed the toll collector from employment by the city. He appealed to the Personnel Board of Mobile County as provided by Act No. 470, approved September 15, 1939; Local Acts 1939, page 298.

After a hearing the Board found that the city was justified in taking disciplinary action against the employee, but found that the penalty of dismissal was too severe. The Board ordered:

'THEREFORE, after giving careful and deliberate consideration to all of the evidence adduced at the hearing, it is the decision and finding of the Board that the action of dismissal heretofore imposed upon the employee, Jack E. Grant, be and the same is hereby modified and altered to suspension from active duty, without pay, from the date of his dismissal until September 16, 1971, and that the employee thereafter be fully restored to active duty on the express condition, however, that the employee make arrangements to pay to the City of Mobile the monies unaccounted for, to-wit, the sum of $280.00, within a period of six (6) months from the date of this order. The Board is of the opinion that if the employee wishes to resume employment he owes this obligation to the public for his failure to exercise the necessary degree of care.

'It is the further order of the Board that the employee, after having been restored to active duty, shall be on a probationary basis until such time as payment is made in full.

'And it is the further order of the Board that should the employee fail to pay the monies as aforesaid, then the Board of Commissioners of the City of Mobile shall be justified in dismissing said employee forthwith.'

Rule 14.7, adopted by the Board, provides that the Board may rescind, modify, alter or affirm the penalty imposed by the appointing authority or impose such additional or different penalty 'as may be warranted by the evidence adduced at the hearing.' In Jordan v. City of Mobile, 260 Ala. 393, 71 So.2d 513, this court held that, as against the objection urged against Rule 14.7 in Jordan, the rule was not contrary to the authority to adopt rules granted by Act No. 470.

In the instant case, the city appealed to the circuit court as provided by Section XXXIV of Act No. 470. Section XXXIV provides that findings of fact of the Board contained in the transcript of the proceedings before the Board, '. . . if supported by substantial evidence adduced before said Board . . .' shall be conclusive on such appeal.

The order of the circuit court contains the following statement:

'Even if this review of the evidence was of the limited nature of that under a Writ of Certiorari, which it is not, the finding of facts and conclusions of the Personnel Board Order would have to have some basis of legal evidence. Yeilding (sic) v. Stevens, 265 Ala. 562, 92 So.2d 895, (1957); No. Ala. Motor Exp. v. Rookis, 244 Ala. 137, 12 So.2d 183 (1943). This Court finds that there was no evidence of any necessary 'safeguard' lacking in the City Tunnel System, either for the protection of the toll collector against his own intentional, or careless or negligent, loss of money. The Board 'Order' set out no other basis than the lack of 'safeguards' for setting aside the City's dismissal of Jack Grant.

'The Court finds that in Alabama, the determination of whether an Order by a Board acting as in this case is supported by substantial evidence, is held to mean whether it is supported by Legal evidence of substantial weight and probative force. Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409 (1949); Hearn v. United States Pipe, 217 Ala. 352, 116 So. 365 (sic) (1928) Yeilding (sic) v. Stevens, supra. (Emphasis added.)'

The circuit court found that the charges of the city against the employee were not proved to be unwarranted; that the finding of the Board concerning the insufficiency of necessary 'safeguards' for toll collectors' protection was not supported by substantial evidence; and that the order of the Board is not reasonable in that its findings of fact, that necessary 'safeguards' were lacking which justified a refusal to uphold the dismissal of the employee toll collector, is based on no legal evidence. The circuit court vacated the order of the Board and reinstated the city's order of dismissal of the employee.

The employee appealed to the Court of Civil Appeals. That court reversed the order of the circuit court and reinstated the order of the Board. The city applies to the Supreme Court for certiorari to review the judgment of the Court of Civil Appeals.

The city asserts that the decision of the Court of Civil Appeals is in conflict with prior decisions of this Court in two respects.

1.

The city argues that this court has specifically held that the power of the Board concerning dismissals by the city under Act No. 470 is to:

(1) Reinstate an employee if the charges of the appointing authority are proved unwarranted.

(2) Adopt rules governing cases where the grounds for dismissal are technical, or the cause trivial, followed by severe and excessive punishment by the appointing authority.

The assertion by the city is taken from a statement in Jordan v. City of Mobile, 260 Ala. 393, 400, 71 So.2d 513, 519, where this court said:

'. . . We do not consider that the mere fact that the legislature saw fit to declare by Section 22(a) what the judgment of the board should be when a charge against an employee is proven unwarranted, that this inhibits the board or limits its powers to adopt rules governing cases where the grounds for dismissal are technical or the cause therefor trivial, followed by severe and excessive punishment by the appointing authority, namely, the city or the county. If it be appropriate or necessary to the just administration of the act that the board modify excessive punishment, then surely it is empowered to adopt a rule to that effect. . . .'

The last quoted statement from Jordan was made by this court in considering argument that Rule 14.7 was not authorized by Act No. 470. This court quoted from Section IX of the act which authorizes the Board to adopt rules necessary, appropriate, or desirable to carry out the provisions of the act. This court, in Paragraph (1) of the opinion, agreed that the delegation of power to make rules cannot extend to the making of rules which subvert the statute giving such power or which repeal or abrogate the statute.

Rule 14.7 contains the following provision:

"Decision. 14.7. The hearing on appeal shall be de novo, and the Board may rescind, modify, alter or affirm the penalty imposed by the appointing authority, or may impose such additional or different...