Huntsville Vity Bd. of Educ. v. Frasier

• Decision Date: 30 November 2012
• Docket Number: 2110427
• Parties: Huntsville Vity Board of Education v. Ann Frasier et al.
• Court: Alabama Court of Civil Appeals

Huntsville Vity Board of Education

v.Ann Frasier et al.

2110427

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2012-2013

Dated: November 30, 2012

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.

(FMCS No. 11-02946)

MOORE, Judge.

The Huntsville City Board of Education ("the Board") appeals from a hearing officer's decision reversing the Board's decision to terminate the employment of Ann Frasier, Jodie Lindstrom, Johnna Lamelle, Rene Robinson, DeborahHatton, Bryant Benson, Anthony McCurdy, Freeman Milton, Tracy Powell, Anthony Crutcher, Garrison Friend, Patty Smith, David Yarborough, Carl Ford, Harvey Fisher, Jimmy Cobble, and Steve Berryhill (hereinafter referred to collectively as "the employees").

On April 25, 2011, Dr. Ann Moore, who was at that time the superintendent of the Board, gave notice to each of the employees and to the Board of her intent to recommend the termination of the employment of each of the employees. In each of those notices, Dr. Moore cited the reason for the proposed termination as "justifiable decrease in jobs in the system or other good and just causes," in accordance with former § 36-26-102, Ala. Code 1975, a part of 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 Code 1975, which has since been repealed and replaced by the Students First Act ("the SFA"), § 16-24C-1 et seq., Ala.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 The notices further stated, in pertinent part:

"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 to be terminated before those with greater seniority)."

In response to Dr. Moore's notices, the employees contested their proposed terminations. Pursuant to conferences held by the Board on May 17 and 18, 2011, the Board upheld the recommended terminations of the employees. Each of the employees was informed of the Board's decision, and each contested the Board's decision, pursuant to the FDA. The contests filed by the employees were consolidated, and a hearing was held on October 24 and 25, 2011. On January 26, 2012, the hearing officer entered a decision reversing the Board's decision, concluding that no action should be taken against the employees and sustaining the employees' objections to the Board's proposed terminations; the hearing officer made the following conclusions of law:

"Pursuant to the Fair Dismissal Act, the issue to be decided in the present matter is,

"Which of the following actions should be taken relative to the employee: Terminationof the employee, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee?

"After careful consideration of the evidence submitted, argument advanced, and relevant statutes and case law precedents, the Hearing Officer concludes that no action should be taken against the Employee[s]. The Hearing Officer's reasoning follows.

"The Board has asserted two bases for its determination to initiate termination proceedings, a justifiable decrease in positions and other good and just cause. Both of these are supported exclusively by the financial difficulties the Board is facing. At the outset it is important to note that the adverse employment action is not being proposed for any disciplinary reasons.

"Neither a justifiable decrease in jobs nor good and just cause have been defined by the Fair Dismissal Act. In Ex Parte Wilson, 984 So. 2d 1161 (Ala. 2007) the Alabama Supreme Court analyzed the companion Teacher Tenure Act. The Court rejected Arbitrator Daugherty's 'seven tests' of Just Cause from labor grievance arbitration and held,

"'"good cause" in a statute of this kind [the Teacher Tenure Act] is by no means limited to some form of inefficiency or misconduct on the part of the teacher dismissed, but includes any ground put forward by a school committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system.'

"Id. at 1168 (Internal quotations omitted) (Bracketed information in original). To support theproposed adverse action, the Board must, therefore, show its actions were rational, reasonable, relevant to its tasks, and logical. In less ephemeral and more concrete terms, the Board must provide sufficient proof that it was suffering a severe financial hardship, that the actions taken were in response to that hardship, and that it is reasonably likely that the actions will improve the financial condition of the Board.

"The Hearing Officer will assume -- without deciding -- that the Board is suffering a substantial financial hardship.⁶ The Board has presented sufficient evidence in the form of the testimony of [Dr. Warren] Pouncey, who stated that there was a budgetary shortfall of approximately $36 million, to at least presume a financial hardship for purposes of this Award. This, however, is merely a necessary precondition and not, in and of itself sufficient to provide just cause or establish a justifiable decrease in positions. The Board also has the burden of proving by sufficient evidence that the action taken in response to this hardship is a necessary and reasonable step designed to directly improve the fiscal position of the institutions. Here, the Board failed to carry its burden.

"Evidence was presented regarding the salaries of each of the ... Employees. Those individuals' pay ranged from thirteen thousand to thirty-nine thousand per year. In an overly simplistic analysis, one could then assume that terminating the . . . Employees would result in an annual reduction in expenditures of the combined salaries of each of the positions. However, this assumes without any proof that the work done by the ... Employees would either be performed by reassigned staff with no diminution in their ability to perform their original tasks, that the work could be outsourced or subcontracted at a reduced price, or that some or all of the ... Employees' tasks could be eliminated. Merelyeliminating the positions, without reducing or eliminating the duties or the cost of performing those duties may reduce the amount of salary in one line item of the Board's budget, but it does not provide any real savings to the Board. The proposed termination may not be supported by shifting amounts in line items in a budget; instead, it must meaningfully address the financial troubles and provide direct and measurable relief from those troubles.

"The above stated principle can be clearly seen in the evidence and argument set forth by the Board itself. During the hearing, the Board presented substantial evidence regarding the decision to rehire Lee Edminson, one laid off member of its staff. The argument presented by the Board was that this particular employee, by the nature of his duties and his performance thereof provided substantial cost savings over and above the actual cost incurred in maintaining him on payroll. That is, without looking at the value of the work produced, the salary and associated costs of the employee in a vacuum would be inadequate to evaluate the retention of the position.

"During the hearing, the Board presented evidence of two people who directly or indirectly supervise [many] of the ... Employees. As noted in the prior section, [John] Brown and [Marc] Seldon are the first or second level supervisors of each of the ... Employees except the Clerical Assistants. Many of the . . . Employees spoke with great passion and feeling about the importance of their jobs and the effect their departures will have on the school. However, each is clearly personally invested in this testimony and should not be accepted without an understanding of this bias. Contrastingly, having observed it ore tenus and been able to witness the demeanor and conduct on the witness stand, the Hearing Officer finds that the testimony of Boardemployees Brown and Seldon should be afforded great weight.

"In the instant case, the evidence presented by witnesses called by the Board and employed by the Board reflected little or no cost savings to be derived from the proposed termination of the . . . Employees. The Hearing Officer can not merely assume there would be such benefit absent any evidence to support this assertion. In the Findings of Fact, supra, the Hearing Officer synopsized the testimony of Brown and Seldon regarding the positions they supervised. For example, Brown testified that the contracting of vehicle maintenance to another school system has resulted in the receipt of invoices that reflect greater costs than would have been observed had the work been performed by Berryhill and the rest of the Mechanics. Similarly, Brown stated that the employment of a Qualified locksmith like Yarborough, saves the Board between $3,500 and $5000 per month far exceeding the annual salary this position earns. And Brown further testified that Smith's duties operating a complex order tracking system, is critical and saves the system money every month Seldon testified about preliminary plans to change warehouse and inventory duties but did not provide any testimony about cost savings accruing for these positions Similarly Seldon testified about contracting out landscaping duties but acknowledged that the cost emote he received did not include services for two Board facilities As such it would be

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