Kohen v. Board of School Com'rs of Mobile County

• Decision Date: 26 June 1987
• Citation: 510 So.2d 216
• Parties: 40 Ed. Law Rep. 1333 Billy Rae KOHEN, et al. v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al. 85-1125.
• Court: Alabama Supreme Court

Page 216

510 So.2d 216

40 Ed. Law Rep. 1333

Billy Rae KOHEN, et al. v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al.

85-1125.

Supreme Court of Alabama.

June 26, 1987.

Wanda J. Cochran and Gregory B. Stein of Blacksher, Menefee & Stein, Mobile, and Terry G. Davis of Seay & Davis, Montgomery, for appellants.

Thomas R. McAlpine of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellees.

MADDOX, Justice.

Plaintiffs, individually, and on behalf of a class of similarly situated persons, sued the Board of School Commissioners of Mobile County and the past and present commissioners in their individual capacities, claiming breach of contract and fraud in that the school board had adopted a sick leave policy and then refused to follow it. The plaintiffs voluntarily dismissed their fraud claim against all defendants; the trial court then granted summary judgment for the defendants, and the plaintiffs appeal.

Two issues are raised in this appeal: (1) whether the sick leave incentive plan, approved by the Board, violates Ala. Const. Art. IV, § 68, and, (2) if the plan is not violative of § 68, whether the Board's failure to comply fully with Code 1975, § 16-8-10, prevents the plan from being enforceable against the Board. We find no constitutional infirmity in the plan, and further hold that the employees are entitled to receive the benefits of the plan.

The facts surrounding this case are essentially undisputed, although their legal effect is contested. The record shows that on October 12, 1983, the Board unanimously approved a policy authorizing payment of $100.00 to all employees who achieved perfect attendance for the 1983-84 school year. At a second Board meeting, on October 26, 1983, the commissioners voted to change that policy to provide, instead of the $100.00 bonus, a bonus of $20.00 for each unused sick leave day, up to a maximum of nine unused days per year. Under both plans, the bonus was to be paid after the end of the school year. As proposed and ratified, both plans were to be retroactive to the beginning of the 1983-84 school year.

After the meeting of October 26, County School Superintendent Hammons assigned to his staff the task of implementing the new policy. The record on appeal contains copies of correspondence between Deputy Superintendent Newton and a Dr. Martin in the Human Resources Division; that correspondence clarified several aspects for the plan's implementation and requested that Dr. Martin have the Human Resources Division prepare a bulletin for inclusion in the school system's weekly information notices. The record also contains copies of a Mobile County Public School System newsletter dated December 1983, which gives notice to all system employees that the $20.00 incentive pay plan had been adopted.

On March 28, 1984, Superintendent Hammons furnished the Board members with a copy of an opinion letter from the Board's attorney which suggested that a cash incentive award would be unconstitutional under Art. IV, § 68. The record is not clear what Board action followed this meeting, but when eligible employees filed notice with the Board requesting pay for unused days, the Board replied that, in the opinion of its attorney, the October 26 plan was unconstitutional, but that it was considering an alternative incentive plan to be implemented in lieu of the cash award plan. Plaintiffs then filed suit to compel the Board to make payments pursuant to the stated sick leave policy.

On appeal from summary judgment in favor of the school board, the plaintiffs contend that, when the school board adopted the sick leave policy and published notice of that policy to its employees, the policy became specifically enforceable under the doctrine of Belcher v. Jefferson County Board of Education, 474 So.2d 1063 (Ala.1985). The Board argues that, under Code 1975, § 16-8-10, its proposals never rose to the level of enforceable policy; further, the Board argues that any such policy, regardless of implementation, would be unconstitutional and thus unenforceable against the Board. Ala. Const. Art. IV, § 68.

We examine first the Board's contention that its proposed policy is unconstitutional under Ala. Const. Art. IV, § 68, which provides:

"The legislature shall have no power to grant or to authorize or require any county or municipal authority to grant, nor shall any county or municipal authority have power to grant any extra compensation, fee, or allowance to any public officer, servant, or employee, agent or contractor, after service shall have been rendered or contract made, nor to increase or decrease the fees and compensation of such officers during their terms of office; nor shall any officer of the state bind the state to the payment of any sum of money but by authority of law. ..."

The Board contends that the sick leave policy would unconstitutionally provide additional compensation to a public servant or employee after services had been rendered. It argues that each employee begins the school year with a contract which states that employee's salary, and that state law provides a specified number of sick leave days and that any unused days may be retained for future use. The Board concludes that, being an illegal contract, the sick leave policy cannot be enforced against it. We do not find the Board's reasoning persuasive.

Section 68 prohibits additional payment for services already rendered, and it prohibits an increase in compensation for officers during their terms of office. However, § 68 contains no prohibition against the granting of additional compensation in exchange for additional consideration given by the officer, servant, or employee.

Forbearance of the exercise of a legal right has long been recognized as valid consideration. Generally, the issue arises in the context of the forbearance of the filing or prosecution of a lawsuit. See, e.g., Wilson v. Vulcan...