Richardson v. Terry

• Decision Date: 19 March 2004
• Citation: 893 So.2d 277
• Parties: Ed RICHARDSON, individually and as superintendent of the Alabama Department of Education; et al. v. Karen TERRY et al.
• Court: Alabama Supreme Court

893 So.2d 277

Ed RICHARDSON, individually and as superintendent of the Alabama Department of Education; et al. v. Karen TERRY et al.

1011702.

Supreme Court of Alabama.

March 19, 2004.

Rehearing Denied June 11, 2004.

William H. Pryor, Jr., atty. gen., and Michael R. White, deputy atty. gen., and Anita L. Kelly, asst. atty. gen., Alabama Department of Education; Carl Johnson and Whit Colvin of Bishop, Colvin, Johnson & Kent, Birmingham; and Joe L. Tucker, Jr., Birmingham, for appellants.

Charles Norton, Alabama Education Association; Sam Heldman of Gardner, Middlebrooks, Gibbons & Kittrell, Washington, D.C.; and Candis A. McGowan of John D. Saxon, P.C., Birmingham, for appellees.

JOHNSTONE, Justice.

The defendants Ed Richardson, in his individual capacity and as superintendent of the Alabama Department of Education ("the State Superintendent"); the Alabama Department of Education; Wayland Blake, in his individual capacity and as the chief financial officer of the Bessemer School System ("the chief financial officer"); Marvin Taylor, Sr., in his individual capacity and as a financial officer of the Bessemer School System; Marvin Taylor, Jr., in his individual capacity and as a financial officer of the Bessemer School System; Michael Taylor, in his individual capacity and as a financial officer of the Bessemer School System; Alan Stevens, in his individual capacity and as the chief administrative officer of the Bessemer School System; and the Bessemer Board of Education ("the Bessemer Board") appeal summary judgments for the plaintiffs Karen Terry, Tarus Lyons, Maggie McCall, Jerry Dismuke, and Yohance Prioleau. We affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.

Facts

In March 2000, the Bessemer Board requested that the State Board of Education assume control over the finances of the Bessemer Board. The State Board of Education authorized the State Superintendent to appoint a chief financial officer for the Bessemer School System under § 16-6B-4, Ala.Code 1975, and the State Superintendent appointed Blake to that position.

At a regularly scheduled meeting of the Bessemer Board on May 15, 2001, the following occurred:

"[The State Superintendent]: ...

"I asked Mr. Russell[, the interim superintendent of the Bessemer School System,] this morning if he would be prepared to make these recommendations that lie before you at this time. Mr. Russell's position, and I think in fairness to him not having adequate chance to review those, was that he would prefer not. Is that still your position, Mr. Russell?

"Mr. Russell: Correct.

"[The State Superintendent]: Ok. Since he is not in a position to make the personnel recommendations, what I'd like to do is ask Mr. Blake, our chief financial officer, to come forward and to simply call to your attention the names that lie before you without calling the names, of course, that let you know that those are some actions to be taken. We will notify those individuals this afternoon or tomorrow, at least it will get out, and then after that notification has been completed, we would be in a position, then, to release those.

"[The chief financial officer]: Thank you, Dr. Richardson. Now, before you are the recommendations regarding both the transfers of certain staff who are in the Bessemer city schools and the non-renewal of certain staff. I recommend at this time that you approve the personnel report as amended that you have before you."

The Bessemer Board then voted to approve the recommended personnel changes. These recommended changes consisted of transferring James Jones, Terry, and Lyons, who were tenured teachers, and non-renewing Dismuke, McCall, and Prioleau, who were nontenured teachers. The tenured teachers were notified that the Bessemer Board had voted to transfer them, and the nontenured teachers were notified that the Bessemer Board had voted to non-renew them.

Jones and Terry then contested their putative transfers in accordance with § 16-24-6, Ala.Code 1975, by filing a written demand for a hearing before the Bessemer Board.¹ At the hearing convened by the Bessemer Board on the contests filed by Jones and Terry, counsel for Jones and Terry informed the Bessemer Board that Jones and Terry intended to sue the Bessemer Board for a judgment declaring that the putative transfers of Jones and Terry were void because the local superintendent had not recommended the transfers as required by § 16-24-5, Ala.Code 1975. The Bessemer Board then voted to suspend the hearing pending that judicial determination.

Thereafter, Jones, Terry, Lyons, Dismuke, McCall, and Prioleau sued the defendants on the theory that these putative employment actions were unlawful.² The tenured teachers claimed that they could not be validly transferred without the transfer being recommended by the superintendent of the Bessemer School System because § 16-24-5, Ala.Code 1975, provides that school boards can transfer tenured teachers only upon the recommendation of the local superintendent. The nontenured teachers claimed that they could not be validly non-renewed without the non-renewals being recommended by the Bessemer superintendent because the Bessemer Board had customarily non-renewed nontenured teachers only upon the recommendation of the Bessemer superintendent. The nontenured teachers asserted that this custom constituted a "policy" of the Bessemer Board and that the deviation from this custom by the Bessemer Board constituted a violation of the requirement of § 16-1-30, Ala.Code 1975, that amendments to certain policies of local boards of education be made only after first consulting with the professional organization of the school employees.

Jones, Terry, Lyons, Dismuke, McCall, and Prioleau moved for summary judgments on their claims of unlawful employment action, and the defendants cross-moved for summary judgments on those claims. As grounds for their cross-motions for summary judgments, the defendants asserted that (1) the putative transfers of the tenured teachers were valid because § 16-6B-4 authorizes a chief financial officer appointed by the State Superintendent to recommend transfers of tenured teachers, (2) the putative transfers of the tenured teachers were valid because the tenured teachers' failure to appeal their transfers to the State Tenure Commission in accordance with § 16-24-7, Ala.Code 1975, waived their claims that the transfers were invalid, and (3) the putative non-renewals of the nontenured teachers were valid because § 16-24-12, Ala.Code 1975, the statute governing non-renewal of nontenured teachers, does not require that the local superintendent recommend the non-renewal.

Entering summary judgments for Jones, Terry, Lyons, Dismuke, McCall, and Prioleau on their claims of unlawful employment action³ and denying summary judgments for the defendants on those claims, the trial court held that both the putative transfers of the tenured teachers and the putative non-renewals of the nontenured teachers were void because they lacked the recommendation of the local superintendent. The trial court held also that the tenured teachers had not waived their claims by failing to appeal the putative transfers to the State Tenure Commission. In holding that the putative transfers of the tenured teachers were void, the trial court reasoned that the local superintendent's recommendation was required for the putative transfers by § 16-24-5. In holding that the tenured teachers had not waived their claims by failing to appeal their transfers to the State Tenure Commission, the trial court reasoned that the Bessemer Board had not made an appealable "decision" within the meaning of § 16-24-7 because the Bessemer Board had suspended the hearing on the contests filed by Jones and Terry before a final "decision" was made on the transfers. In holding that the putative non-renewals of the nontenured teachers were void, the trial court reasoned that the Bessemer superintendent's recommendation was required for the putative non-renewals of the nontenured teachers because the Bessemer Board, by customarily non-renewing nontenured teachers only upon the recommendation of the Bessemer superintendent, had adopted a policy that could not be amended without consulting with the professional organization of the nontenured teachers in accordance with § 16-1-30. The trial court made the summary judgments for Jones,⁴ Terry, Lyons, Dismuke, McCall, and Prioleau on their claims of unlawful employment action final judgments in accordance with Rule 54(b), Ala. R. Civ. P.

Issues

This appeal raises these issues: (1) whether § 16-24-5 allowed the transfers of the tenured teachers without the recommendation of the local superintendent but upon the recommendation of the chief financial officer appointed by the State Superintendent pursuant to § 16-6B-4 (2) whether the tenured teachers waived their claims that their transfers were invalid by failing to appeal to the State Tenure Commission in accordance with § 16-24-7, and (3) whether § 16-1-30(b) required that the Bessemer Board consult with the professional organization of the nontenured teachers before it deviated from the custom of non-renewing nontenured teachers only upon the recommendation of the Bessemer superintendent.

Law

"Summary judgment is appropriate only when `there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.' Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). `[W]here the evidence is in conflict, the issue must [be tried to the fact-finder].' Kitchens v. Winn-Dixie Montgomery, Inc., 456 So.2d 45, 47 (Ala.

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