Reed v. BD. OF TRUSTEES FOR AL. STATE UNIV.

• Decision Date: 26 May 2000
• Parties: Joe L. REED et al. v. BOARD OF TRUSTEES FOR ALABAMA STATE UNVERSITY et al.
• Court: Alabama Supreme Court

778 So.2d 791

Joe L. REED et al. v. BOARD OF TRUSTEES FOR ALABAMA STATE UNVERSITY et al.

1981227.

Supreme Court of Alabama.

May 26, 2000.

Rehearing Denied August 18, 2000.

J. Cecil Gardner and Kimberly J. Calametti of Gardner, Middlebrooks, Fleming & Gibbons, Mobile; James A. Anderson of Beers, Anderson, Jackson, Nelson, Hughes & Patty, Montgomery; George L. Beck of Beck & Byrne, P.C., Montgomery; and Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, for appellants.

Kenneth L. Thomas and Wendell J. Chambliss of Thomas, Means, Gillis, Devlin, Robinson & Seay, P.C., Montgomery, for appellees.

PER CURIAM.

Dr. Joe L. Reed, Patsy B. Parker, and Toreatha L. Johnson appeal from a judgment removing Parker and Johnson from the Board of Trustees for Alabama State University ("the Board"). We affirm the judgment insofar as it relates to Johnson, but we reverse it insofar as it relates to Parker, and we remand the cause. It appears that the claims originally made against Dr. Reed are moot; therefore, we grant the motion to dismiss the appeal insofar as it relates to him.

This is an appeal from a judgment in a quo warranto action commenced on February 8, 1999, by the Board and the State of Alabama against Parker, Johnson, and others, challenging the right of Parker and Johnson to serve on the Board. The Board based its challenge on Ala.Code 1975, § 16-50-20(a), which provides:

"(a) There is hereby created a board of trustees for Alabama State University, the state educational institution at Montgomery, Alabama. The board of trustees shall consist of two members from the congressional district in which the institution is located and one member from each of the other congressional districts in the state as constituted on October 6, 1975, and who shall reside in that district, four members from the state at large who shall reside in different districts, and the Governor, who shall be ex officio president of the board. Except for a trustee at large, the position of any trustee shall be vacated at such time as he shall cease to reside in the district from which he was appointed. The trustees shall be appointed by the Governor, by and with the advice and consent of the Senate, in such manner that the membership shall consist of at least a majority who are alumni and who have received a bachelor's degree from the said university; at least one-half of the board shall be from the prevailing minority population of the state according to the last or any succeeding federal census. Trustees shall hold office for staggered terms of three, six, nine and 12 years with an equal number appointed to like terms, such period of terms designated by the appointing authority, with one-fourth to expire every three years, or until their successors are appointed. All appointments shall be effective until adversely acted upon by the Senate. Provided, however, no trustee who is currently serving on the board or whose term has just expired, who has been previously confirmed by the Senate, shall be required to be reconfirmed for the new term under this section, once appointed by the Governor. A member may be appointed to serve a second term of 12 years, but no member shall be appointed to serve as trustee for more than a total of two terms. The first members, however, shall be eligible to serve for two full additional terms in addition to their initial terms. No trustee shall receive any pay or emolument other than his actual expenses incurred in the discharge of his duties as such. No member of the governing board or employee or student of any public postsecondary education institution, no elected or appointed official having the power of review of the Alabama State University budget, other than the Governor and no employee of the State of Alabama shall be eligible to serve on the board. No member shall serve past September 30 following his seventieth birthday."

(Emphasis added.) The Board relies specifically on that provision prohibiting an "employee ... of any public postsecondary education institution" from serving on the Board.

Parker and Johnson concede that they have had "working relationships" with postsecondary institutions coincident with their membership on the Board. In particular, Parker has served on the Board continuously since September 1, 1981. From March 23, 1987, to December 2, 1998, she had a "working relationship" with Southern Union State Community College ("Southern Union"), a "postsecondary education institution." Thus, she no longer has a "working relationship" with Southern Union. Johnson has served on the Board continuously since 1993. From September 26, 1996, until now, she has also worked with Alabama Southern Community College ("Alabama Southern"), a "postsecondary education institution," as a "project quest specialist."

This action was tried without a jury. At trial, Parker and Johnson argued that they have never been "employees" of their respective postsecondary institutions within the meaning of § 16-50-20(a). The trial court disagreed, and found that Parker and Johnson each had served as an "employee" of a postsecondary institution, within the meaning of § 16-50-20(a), during her tenure on the Board. Apparently reasoning that this service disqualified them from any further service on the Board, it ordered them removed. Parker and Johnson appealed. Because the Board's case against Parker and Johnson turns on dissimilar circumstances, we shall address the case against each of those members in separate sections of this opinion.¹

I. Parker

Preliminarily, there is a question regarding the correct standard of review. Parker argues that the judgment must be reviewed de novo. The Board contends that the ore tenus rule applies. In Parker's case, however, we need not—and do not—choose between the two standards, for we conclude that the trial court erred as a matter of law in removing Parker from the Board.²

In entering its judgment against Parker, the trial court appears to have adopted one particular argument constructed by the Board. The Board states that argument as follows:

"Parker became ineligible to serve on the Board of Trustees upon the date of acceptance of her employment with Southern Union. However, she has continued to illegally serve on the Board of Trustees since 1987—the initial date of her employment.... Her last reappointment was in 1996 for a term to expire in 2008. She was, of course, an employee of Southern Union on the date of that appointment.

"According to [§ 16-50-20(a) ], the ineligibility exists because of and at the time of the employment. The statute does not contain a remedial provision that allows an individual to violate the statute for twelve (12) years, and then by voluntary termination of the employment relationship with the public postsecondary education institution, cure the ineligibility. In this case, the statutory language is plain and unambiguous.... There is no statutory provision to allow Parker to cure her ineligibility."

Brief of Appellee, at 27-28 (emphasis added). On the basis of this reasoning, the Board regards as entirely irrelevant the fact that Parker has not had an association with Southern Union since December 2, 1998. In other words, it regards the fact that she is now eligible to serve on the Board as of no consequence.

We reject this argument. Parker was qualified to serve on the Board when she began to serve and she is qualified now. In fact, her relationship with Southern Union had terminated two months before this action was commenced.

But, according to the Board, neither the passage of time nor the change of circumstances has affected Parker's ineligibility. On its face, the Board's argument is that Parker, having sometime served on the Board in violation of § 16-50-20(a), may never again serve on the Board. Otherwise stated, Parker will never be able to purge herself of the ineligibility. Indeed, the Board has neither proposed, nor suggested, any remedial scenario.

This is an unreasonable position and one that is not supported by the language of the statute. The Board is correct in noting that the statute does not say how ineligibility may be cured. That silence, however, does not support the Board's position, for the statute also does not say that ineligibility is incurable. But the statute does offer us a significant clue as to the intent of the Legislature in this matter.

The Board's argument may be, although it is not expressly so stated: (1) that Parker was employed by Southern Union in 1996, the date of her last appointment to the Board; (2) that she was ineligible for appointment in 1996 because of her employment, and, therefore, (3) that her ineligibility will follow her until, and unless, she is reappointed at a time when she is not employed by a postsecondary education institution. If this is the Board's argument, the statute offers the following clue.

Section 16-50-20(a) specifically states that employees of postsecondary education institutions are not "eligible to serve on the board." (Emphasis added.) It does not say that such persons are per se ineligible for appointment. In other words, the disability of which the Board complains does not attach to the appointment, but merely follows the Board member's service.

It will not be presumed that the Legislature has employed "meaningless words." Elder v. State, 162 Ala. 41, 45, 50 So. 370, 371 (1909). Instead, "we presume that the Legislature knows the meaning of the words it uses in enacting legislation." Ex parte Jackson, 614 So.2d 405, 407 (Ala. 1993). Had the Legislature intended the result urged by the Board, it might, for example, have said: "No ... employee or student of any public postsecondary education institution ... shall be appointed to the board." It did not do so, and this Court is not at liberty to rewrite the statute.

In short, the Board has cited no authority for the position it urges, and we know of none. Such a disability may be cured through the...