State Personnel Bd. v. State Dept. of Mental Health and Mental Retardation

• Decision Date: 13 December 1996
• Citation: 694 So.2d 1367
• Parties: 12 IER Cases 619 STATE of Alabama PERSONNEL BOARD and James Hurst v. STATE DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION. 2950650.
• Court: Alabama Court of Civil Appeals

Page 1367

694 So.2d 1367

12 IER Cases 619

STATE of Alabama PERSONNEL BOARD and James Hurst v. STATE DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION.

2950650.

Court of Civil Appeals of Alabama.

Dec. 13, 1996.

Rehearing Denied Jan. 17, 1997.

Certiorari Denied April 18, 1997

Alabama Supreme Court 1960780.

Frank Ussery, Montgomery, for appellant State Personnel Board.

Richard P. Rouco of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for appellant James Hurst.

Nancy S. Jones, Alabama Department of Mental Health and Mental Retardation, Bryce Hospital Legal Office, Tuscaloosa, for appellee.

CRAWLEY, Judge.

James Hurst was employed by the Department of Mental Health and Mental Retardation ("the Department") as a mental health worker at Bryce Hospital for 14 years. In April 1994, the Department dismissed him from his employment, based upon charges that he had sold marijuana to a patient and that he had refused to provide a urine sample for a drug test.

Hurst appealed his dismissal to the State Personnel Board ("the Board"). The Board appointed a hearing officer to conduct an administrative hearing. At the hearing, the Department presented evidence that on January 15, 1994, Bryce Hospital employee Hursey Wilson found J.A. and two other Bryce patients smoking cigarettes in the restroom. During a search for contraband smoking materials, Wilson discovered marijuana in J.A.'s possession. J.A. told Wilson that he had purchased the marijuana from James Hurst.

At the request of James F. Reddoch, Jr., director of Bryce Hospital, Lt. Jerry Boyd of the Bryce Hospital Police Department conducted an internal investigation of the alleged sale of marijuana. Boyd testified that J.A. told him that he (J.A.) had bought the marijuana from Hurst for a female patient, T.J. Boyd said that T.J. admitted that she had given J.A. money to buy marijuana for her.

According to Boyd, J.A. also said that there were two other Bryce patients, A.W. and C.F., who were witnesses to the sale. When Boyd questioned A.W., that patient corroborated J.A.'s version of the sale and named Hurst as the seller. C.F. refused to reveal any information to Boyd. Several months later, however, C.F. told Larry Pate, a Bryce employee, that he had seen Hurst sell marijuana to J.A. After Hurst was dismissed from his employment, A.W. informed Glenda Lee, another Bryce Hospital employee, that he had seen Hurst sell the contraband to J.A.

None of the Bryce patients testified at the evidentiary hearing. All the testimony concerning the alleged sale of marijuana came from Bryce employees Hursey Wilson, Jerry Boyd, Larry Pate, and Glenda Lee.

Boyd testified that on January 19, 1994, four days after the marijuana was found, he asked Hurst to submit a urine sample for drug testing, pursuant to Department policy number 70-25. That policy states, in pertinent part, the following:

"7. Testing of Employees Based on Reasonable Suspicion:

"(a) If there is evidence sufficient to constitute a reasonable suspicion, any employee who is believed to have consumed a controlled substance may be required by the Appointing Authority or designee to take a toxicological test to determine the usage of controlled substances.

"(b) Reasonable suspicion is the suspicion, based on specific facts available to the Appointing Authority or designee and any rational inferences that may be drawn from these facts in light of their experience, that any employee has consumed controlled substances.

"8. Disciplinary Action:

"(a) Employees who ... refuse to be tested shall be recommended for dismissal from employment...."

Lt. Boyd testified that he requested the drug test as part of his investigation into the sale of marijuana to J.A. He also said that he thought it was reasonable to infer that if a person were selling marijuana he might also be consuming it. When Boyd asked Hurst to submit to the drug test, he had the following information: (1) Hurst had a prior drug offense arrest; (2) Hurst had recently returned from a treatment center for drug and alcohol abuse; and (3) Hurst had been the subject of previous allegations relating to the use or sale of alcohol and drugs at Bryce Hospital. Hurst refused to submit to the drug test.

Upon completion of his investigation, Lt. Boyd concluded that there was insufficient evidence to substantiate the allegation that Hurst had sold marijuana to J.A. Boyd reached that conclusion, he said, because all the witnesses to the alleged drug transaction were Bryce patients and the statements of those witnesses contained inconsistencies concerning the location of the sale and the amount of money transferred in the sale.

Bryce Hospital Director James F. Reddoch, Jr., testified that the purpose of the Department's drug testing policy is to prevent employees from working under the influence of controlled substances. In deciding whether to dismiss Hurst, Reddoch reviewed Lt. Boyd's investigative file, including the transcripts of Boyd's witness interviews, and reached a conclusion different from Boyd's. Reddoch decided that there was "credible evidence to base a decision that the act with which Mr. Hurst was charged had occurred." Reddoch also determined that there was a reasonable suspicion of drug use by Hurst so as to authorize a request that Hurst submit to a drug test. Reddoch gave his opinion that "experience would lead one to think or to conclude that sale [of drugs] and use [of drugs] oftentimes go together."

The hearing officer determined that there was insufficient evidence to support the charge that Hurst had sold marijuana to a patient and that there were no legal grounds for requesting a urine sample from Hurst for a drug test. The hearing officer found that Boyd's request for a drug test "was not based on any suspicion that Hurst had consumed a controlled substance, [or] that Hurst had reported to work under the influence of alcohol or a controlled substance." Instead, the hearing officer was "convinced that Officer Boyd's request ... was merely an attempt to buttress the unsubstantiated charge that Hurst had sold a controlled substance to a patient." This, the hearing officer concluded, was an impermissible reason for requesting a drug test. The hearing officer recommended that Hurst be reinstated. The Board accepted the hearing officer's findings of fact and conclusions of law and ordered that Hurst be reinstated with back pay.

The Department appealed the Board's decision to the Tuscaloosa Circuit Court. The circuit court determined that the Alabama Administrative Procedure Act (AAPA) did not give the Department a right of appeal, and it dismissed the appeal. At the Department's request, however, the court treated the appeal as a petition for a writ of certiorari.

On certiorari review, the circuit court determined that, as to the issue of the alleged drug sale, there was sufficient evidence to support the Board's factual finding that Hurst did not sell marijuana to a Bryce patient. On the drug testing issue, however, the circuit court held that "some of the [Board's] factual findings are not supported by the evidence and some of the Board's conclusions of law are not supported by the law."

The circuit court decided that the following factual finding by the Board was not supported by the evidence: Lt. Boyd did not have reasonable suspicion to believe that Hurst was using drugs and Boyd requested a urine sample from Hurst merely to buttress the charge that Hurst had sold marijuana to a patient. The circuit court determined that the evidence did support a finding that Lt. Boyd requested the drug test because he suspected that Hurst was using drugs. The court held that the request for the drug test was, therefore, permissible, and that Hurst's refusal to submit to the test was grounds for his dismissal. The circuit court set aside the Board's order reinstating Hurst and upheld the Department's decision to terminate Hurst. The Board appealed to this court.

The Propriety of Certiorari Review

The Board contends that the circuit court erred by treating the Department's request for review as a petition for a writ of certiorari. It argues that §§ 41-22-3(7) and 41-22-20(a), Ala.Code 1975, part of the AAPA, reveal the legislature's intent to prohibit one state agency from seeking judicial review of the ruling of another state agency. Therefore, the Board insists, allowing an agency to obtain judicial review by means of a writ of certiorari subverts the legislative intent of the AAPA.

Those arguments were not made below. The Board did not challenge the propriety of certiorari review in the circuit court. Generally, arguments not presented to the trial court are not preserved for review and will not be addressed on appeal. West Town Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So.2d 1290, 1294 (Ala.1993); McAliley v. McAliley, 638 So.2d 10 (Ala.Civ.App.1994).

The Department did not cross-appeal the dismissal of its appeal to circuit court. Normally, we would not address the issue of whether the appeal should have been dismissed. However, the Board has made appealability under the AAPA an issue by arguing that if judicial review is not available pursuant to the AAPA, then it is also not available pursuant to a writ of certiorari. Thus, the issues of appealability under the AAPA and certiorari review are intertwined, and they present jurisdictional matters that are not subject to waiver. See Hayden v. Harris, 437 So.2d 1283 (Ala.1983); Davis v. Townson, 437 So.2d 1305 (Ala.Civ.App.1983).

Alabama law is clear that, in the absence of a right of appeal, a party seeking review of a ruling by an administrative agency may petition the circuit court for a common law writ of certiorari. See Ellard v. State, 474 So.2d 743 (Ala.Crim.App.1984), affirmed, 474 So.2d 758 (Ala.1985). See also Alabama Dep't of Mental Health & Mental Retardation v. Kirby, 579 So.2d 675 (Ala.Civ.App.1991); Stewart v. Hilyer, 376 So.2d 727 (Ala.Civ.App.1979).

Certiorari...