Huntsville City Bd. of Educ. v. Sharp

• Decision Date: 16 August 2013
• Docket Number: 2110366.
• Citation: 137 So.3d 917
• Parties: HUNTSVILLE CITY BOARD OF EDUCATION v. Clark SHARP. Clark Sharp v. Huntsville City Board of Education.
• Court: Alabama Court of Civil Appeals

137 So.3d 917

HUNTSVILLE CITY BOARD OF EDUCATION

v.Clark SHARP.

Clark Sharp

v.Huntsville City Board of Education.

2110366.

Court of Civil Appeals of Alabama.

May 3, 2013.

Certiorari Denied Aug. 16, 2013

Alabama Supreme Court 1120959.

Edward E. Wilson, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant/cross-appellee Huntsville City Board of Education.

Christian M. Comor of Wilmer & Lee, P.A., Huntsville; and Sabrina L. Comer of Comer & Gundlach, PLLC, Montgomery, for appellee/cross-appellant Clark Sharp.

On Application for Rehearing

THOMAS, Judge.

The opinion of January 4, 2013, is withdrawn, and the following opinion is substituted therefor.

Clark Sharp was employed by the Huntsville City Board of Education (“the Board”) as a mechanic; Sharp was a nonprobationary support employee. In 2010, the Board was facing a nearly $20 million shortfall in its fiscal year 2009 budget and had also failed to comply with the Fiscal Accountability Act, codified at Ala.Code 1975, § 16–13A–1 et seq., specifically § 16–13A–9, which requires the Board to maintain at least one month's operating budget in reserve. The State Board of Education (“the State”), through its Deputy Superintendent for Finance and Administration, Dr. Craig Pouncey, notified the Board of its concern over the Board's fiscal issues. Among the issues that raised significant concern for Dr. Pouncey was that over 85% of the Board's local funds were used to pay what Dr. Pouncey considered to be an exorbitant number of support staff. In fact, the Board spent $1,400 a year per pupil on its support staff. Based on his review of the Board's finances, Dr. Pouncey urged the Board to implement a drastic reduction in personnel or, he warned, face having the State intervene and take over the operation of the school system.

The Board decided to cooperate with the State; it hired the former State Superintendent of Schools, Dr. Ed Richardson, as a consultant to assist it with making a plan to reduce the Board's operating budget. Dr. Richardson recommended a two-stage reduction of the Board's personnel. Ultimately, the Board, utilizing its Reduction-in-Force (“RIF”) Policy, reduced personnel by terminating nearly all of its probationary support personnel in March 2011 (“the March RIF plan”) and by terminating the remaining probationary support personnel, reassigning 9 or 10 assistant principals, releasing 154 nontenured teachers, and terminating 77 nonprobationary support personnel in April 2011 (“the April RIF plan”) (the March RIF plan and the April RIF plan are sometimes referred to collectively as “the RIF plan”). Sharp was notified in April that he was recommended for termination of employment in conjunction with the April RIF plan.

The notification Sharp received from the Board's superintendent, Dr. Ann Roy Moore, read as follows:

“You are hereby given notice of my intention to recommend termination of [your] employment [as] a Mechanic for Huntsville City Board of Education as provided in § 36–26–102, Ala.Code 1975. The reason for the proposed termination is as follows: justifiable decrease in jobs in the system or other good and just causes.

“The facts showing that the termination is taken for one or more of the reasons listed in § 36–26–102, Ala.Code 1975, are as follows:

“1) Due to financial circumstances, the Board must reduce the number of its employees. To accomplish this, the Board has adopted a Reduction in Force plan. The selection of the employees to be terminated is based upon the job classifications affected by the Reduction in Force plan and years of service within the Huntsville School System (those with fewer years of service in each specifically identified area are to be terminated before those with greater seniority).”

The notice further specified that the Board would hold a meeting on the proposed termination on May 17, 2011, and that Sharp was entitled to request a conference with the Board, provided he gave the Board the requisite notice of his desire for a conference.

Sharp appeared at the hearing, as did his counsel, who spoke with the Board regarding the proposed termination. The Board voted to terminate Sharp's employment, and Sharp was given written notice of the termination. Sharp then gave the Board notice that he contested the termination and that he requested a hearing pursuant to the former Fair Dismissal Act (“the FDA”), former § 36–26–100 et seq., Ala.Code 1975, which has since been repealed and replaced by the Students First Act (“the SFA”), § 16–24C–1 et seq., Ala.Code 1975, effective July 1, 2011.¹ A hearingwas held before a hearing officer on November 2, 2011. After the hearing, the hearing officer entered an award overturning the Board's decision to terminate Sharp's employment.

In his award, the hearing officer noted that the Board had faced financial issues and that it had faced being taken over by the State if it had not acted to address its financial shortcomings. The hearing officer then found that Dr. Richardson had recommended to the Board which employees to terminate; he further found and took issue with the fact that, according to the hearing officer, Dr. Richardson had not conferred with John Brown, the Board's Director of Maintenance, Facilities, Construction, Transportation, and Safety, regarding Brown's opposition to the termination of all the mechanics in the Board's employ. The hearing officer also stated that “[t]here was no evidence that by firing the mechanics and outsourcing their various duties, any money would be saved.” The hearing officer concluded:

“It was the duty of the Board to prove that [its] RIF of these mechanics did accomplish the statute requirement [ (sic) ] that the decrease in jobs was justifiable or that there was good and just cause[. Ala.Code 1975, § ] 36–26–102.

“In view of the absence and failure of the Board to establish a legitimate need to lay off this employee, I shall determine that no action should have been [ (sic) ] against this employee.”

Finally, the hearing officer noted that, after the institution of the RIF plan, the Board had added certain “staff employees” with salaries ranging from $49,271 to $141,600 per year, that the Board intended to contract with Teach for America to supply teachers for $550,000, and that the Board had purchased for $853,000 certain computer equipment for students in lieu of textbooks. The hearing officer stated that he had recited these expenditures in the award to “underscore the point that enough adjustment in the work force had been made and[, thus, that the financial issues faced by the Board had been resolved] and did not necessitate the termination of this employee who conceivabl[y] saves money for necessary services.”

The Board sought to appeal the hearing officer's award to this court. After the Board filed a letter brief setting out “special and important reasons,” pursuant to former Ala.Code 1975, § 36–26–104(b), we accepted the appeal. Sharp perfected a cross-appeal from the hearing officer's award.

On appeal, the Board argues that the hearing officer impermissibly substituted his judgment for the Board's judgment and erred by requiring the Board to prove a legitimate need to lay off Sharp instead of requiring the Board to prove only a justifiable decrease in jobs within the system. The Board further argues that it proved a justifiable decrease in jobs within the system. On cross-appeal, Sharp argues that the hearing officer should have also determined that the notice of proposed termination of his employment did not comply with former Ala.Code 1975, § 36–26–103(a), because it did not give him enough factual information to form a defense to the proposed termination. The Board argues that we should dismiss the cross-appeal filed by Sharp because the hearing officer's award was wholly in Sharp's favor and he therefore has no adverse decision from which to appeal. See, e.g., Personnel Bd. of Jefferson Cnty. v. Bailey, 475 So.2d 863 (Ala.Civ.App.1985). In the alternative, the Board further argues that the termination notice provided to Sharp complied with former § 36–26–103(a).

We will first consider the issues raised by the Board's appeal. We have recently had the opportunity to clarify the role of a hearing officer when faced with an appeal from a termination of employment under a RIF plan. See Huntsville City Bd. of Educ. v. Stranahan, 130 So.3d 204, 206 (Ala.Civ.App.2013); Huntsville City Bd. of Educ. v. Frasier, 122 So.3d 193, 201 (Ala.Civ.App.2013); and Board of Sch. Comm'rs of Mobile Cnty. v. Christopher, 97 So.3d 163, 174 (Ala.Civ.App.2012). Once a hearing officer has concluded that a school board has demonstrated that it had established as a ground for termination a justifiable decrease in jobs within the system, in the absence of allegations that the termination was motivated by an improper motive, the hearing officer is not permitted to further inquire into “whether the termination of a particular employee's employment was justifiable under a RIF policy.” ²Christopher, 97 So.3d at 174. As we have further explained, “the responsibility for making the difficult decisions regarding which positions to eliminate pursuant to a justified implementation of a RIF policy rests with the Board and ... hearing officers and the courts ‘are not permitted to usurp the role of the school board.’ ” Id. at 176 (quoting Walker v. Montgomery Cnty. Bd. of Educ., 85 So.3d 1008, 1016 (Ala.Civ.App.2011)).

In his award, the hearing officer specifically determined that the Board had not proven that it had “a legitimate need” to terminate Sharp's employment specifically. In support of his conclusion, the hearing officer noted that Sharp and the other mechanics employed by the Board had performed valuable services that, according to the hearing officer, had saved money for the Board. In addition, the hearing officer concluded that the outsourcing of the duties performed by the mechanics would not result in any savings to the Board.

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