Phelps v. Public Service Commission

• Decision Date: 30 June 1970
• Docket Number: 3 Div. 17
• Parties: W. J. PHELPS, Walter H. Whittle and Henry L. Dickinson v. PUBLIC SERVICE COMMISSION of the State of Alabama, Eugene (Bull) Connor, as its President, C. C. (Jack) Owen and Sibyl Pool, as its Associate Commissioners.
• Court: Alabama Court of Civil Appeals

Page 499

237 So.2d 499

46 Ala.App. 13

W. J. PHELPS, Walter H. Whittle and Henry L. Dickinson v. PUBLIC SERVICE COMMISSION of the State of Alabama, Eugene (Bull) Connor, as its President, C. C. (Jack) Owen and Sibyl Pool, as its Associate Commissioners.

3 Div. 17.

Court of Civil Appeals of Alabama.

June 30, 1970.

O. J. Goodwyn and S. G. Culpepper, Montgomery, for appellants.

Hill, Hill, Stovall, Carter & Franco, William A. Oldacre and William F. Black, Montgomery, for appellees.

WRIGHT, Judge.

On January 20, 1967, in order to promote efficiency of operation and to effect substantial savings in expenditures, the Public Service Commission adopted a resolution calling for the elimination of certain employees as staff members of the commission. The appellants herein are three of those employees. The State Personnel Board and the director of personnel declined to review the action of the commission imposing the lay-offs and the appellants petitioned the Circuit Court of Montgomery County to order such review by the personnel board. The circuit court directed the board to make an investigation or study of Title 55, Section 314, Code of Alabama 1940 (Recompiled 1958), and determine whether the complainants were laid off for reasons other than those enumerated in said Section 314. That section provides in pertinent part:

'In accordance with the rules, an appointing authority may lay off an employee in the classified service whenever he deems it necessary by reason of shortage of work or funds, or the abolition of a position or other material change in duties or organization.'

The order also provided that if the board were to determine that the employees were laid off for reasons other than those enumerated in Section 314, the board shall take such actions as necessary to reinstate the complainants. This portion of the decree entered by the circuit court was upheld by the Supreme Court, and is reported in Waggoner v. Whatley, 282 Ala. 84, 209 So.2d 370. Thereafter, the personnel board conducted a hearing in the matter and a majority of the board, without making any findings, directed that the appellants should be reinstated without retroactive pay in their former employment with the commission. The Public Service Commission petitioned the Circuit Court of Montgomery County for a writ of certiorari and the writ was granted. The circuit court, after considering the entire file, all proceedings preliminary to and including the directive entered by a majority of the board, and the record, testimony, and evidence considered and made the basis of the decision of the board, quashed the directive, holding that upon the evidence before it, the board lacked the power, authority, or jurisdiction to order the reinstatement of the laid off employees. It is from this decision that the appellants prosecute this appeal.

The appellants were all public utilities examiners with the Public Service Commission at the time of the layoffs. Their duties were to investigate complaints with regard to various types of utilities and then to recommend any necessary corrective action to their superiors. In performance of these duties, they often required the use of state automobiles and travel expenses. The work with which they were involved is now performed mainly by telephone and a personal investigation is conducted only when the telephone call does not produce results.

The Public Service Commission had only a common law writ of certiorari available in seeking to have the decision of the personnel board reviewed. The provisions governing the actions of the personnel board and the personnel department are found in Title 55, Section 293 et seq. Code of Alabama 1940 (Recompiled 1958). There is no right of appeal or statutory certiorari provided by those sections. Therefore, the common law writ is the only means of review.

There are eight assignments of error on this appeal. The first assignment is based upon the refusal of the circuit court to grant appellant's motion to quash or dismiss, as amended, which motion points out that the record sent up from the personnel board was incomplete. The record indicates that the transcript of testimony in Waggoner v. Whatley, supra, was discussed and counsel stated that he would like to offer it in evidence. However, the record does not reflect that this transcript was received into evidence, or if it was ever considered by the board. Moreover, the writ issued by the circuit court specified that the board should 'certify and transmit to the clerk of this court a complete record of all proceedings, preliminary to, and including the order entered by it on the 10th day of September, 1968, including a transcript of all testimony and evidence considered and made the basis of such order.' It seems evident that the transcript of the testimony in Waggoner was not considered by the board in reaching its decision. The circuit court could only review the record proper of the personnel board. Jefferson County v. Berkshire Development Corp., 277 Ala. 170, 168 So.2d 13. That record indicates all evidence considered and made a basis of the board's directive was certified to the circuit court. It is not enough, as appellants assert, that the transcript was available for consideration by the personnel board, when as here, the record shows that it was not considered. If such record was actually received in evidence and considered by the board, and the certificate to the circuit court was incorrect in this respect, the...