Warren v. Jefferson Cnty. (Ex parte Jefferson Cnty.)
| Decision Date | 08 January 2021 |
| Docket Number | 2190685 |
| Citation | 330 So.3d 830 |
| Parties | EX PARTE JEFFERSON COUNTY (In re: Cleophert Warren v. Jefferson County) |
| Court | Alabama Court of Civil Appeals |
Allison Nichols Gault, asst. county atty., Birmingham, for petitioner.
Lauren Holt Shine of Shine Law Firm, LLC, Birmingham, for respondent.
Jefferson County ("the county") seeks review of a judgment of a three-judge panel of the Jefferson Circuit Court ("the circuit court"), which reversed a decision of the Jefferson County Personnel Board ("the board") terminating the employment of Cleophert Warren and rendered a judgment in favor of Warren.
The record indicates the following. Warren worked as a juvenile-detention officer at the Jefferson County Youth Detention Center ("the detention center") when his employment was terminated on July 21, 2016, for initiating "inappropriate contact" on social media with the mother of one of the juvenile detainees. Specifically, the action taken against Warren was based on violations of the board's rules and regulations, including Rule 12.2(c), addressing conduct unbecoming a classified employee; Rule 12.2(g), addressing incompetence or inefficiency; and Rule 12.2(p), addressing any other legitimate and nondiscriminatory reason that constitutes good cause for disciplinary action, is reasonably specific, is consistent with the rules, and is not motivated by any non-work-related preference or animus for or against any person. Warren received notice of the disciplinary action on July 21, 2016, and filed a timely appeal of that decision with the board on July 22, 2016. His attorney filed an amended appeal with the board on July 28, 2016.
An evidentiary hearing to consider Warren's appeal was held before a hearing officer on June 27, 2017. The county's primary evidence against Warren were printouts of a social-media conversation between someone identified as Warren and J.H., a detention-center resident's mother. The conversation reads:
An audio recording of an interview between J.H. and Katrina Andrews, the interim director of the detention center, and Cornelius Washington, a supervisor at the detention center, was also presented during the hearing. J.H. could not be called as a witness at the hearing because she was killed in an automobile accident between the time of the events made the basis of the termination of Warren's employment and the hearing. Warren objected to the introduction of the audio recording on the ground that, because she was unavailable, J.H. could not be cross-examined. The hearing officer permitted the playing of the audio recording during the hearing.
Although the record indicates that the audio recording was included as an exhibit before the hearing officer and in the circuit court, it was not included in the record before this court. In his findings of fact, the hearing officer, Michael A. Anderson, stated that, during the interview, J.H., who was not giving sworn testimony during the interview, said that she received unsolicited contact from Warren through the social-media Web site Facebook.
Mark Schofield, a juvenile-detention officer at the detention facility, testified at the hearing. He also provided a written statement as part of his job duties. Schofield testified that, on July 7, 2016, after J.H. had visited her son ("the resident") at the detention center, the resident was returning from that visit and appeared to be upset. Schofield said that he had a conversation with the resident, who told him he was angry because his mother had told the resident about messages Warren had sent to her on Facebook that were "personal and inappropriate." At the hearing, Schofield testified that the resident told him he believed that Warren was attempting to "get a date or hook up" with J.H. Schofield said that the resident told him that Warren and J.H. did not know each other. Schofield said that the resident explained to him that, earlier that week, Warren had woken up the resident to ask him his mother's name and how to spell it. According to Schofield, the resident said that he believed that Warren had used the information to contact J.H. and the resident felt guilty about having provided the information to Warren.
Warren told the hearing officer that he never sent a message to J.H. via Facebook or any other means. He said that if he had wanted to know the name of the resident's mother, he would have checked the "data sheets" at the detention center. Additionally, Warren said, the photograph associated with his purported Facebook account from which the messages to J.H. were sent was a 2010 mug shot of him, and he did not have access to that mug shot. He also pointed out that anyone could create a Facebook account, suggesting that someone else had created the account from which the messages were sent to J.H. Warren also said that a youth who was close to the resident had taken Warren's cell phone before the incident and that the cell phone was found in that youth's mattress. By having access to his cell phone, Warren said, the youth could have learned personal information about Warren and shared that information with others.
Cornelius Washington, a shift supervisor at the detention center who conducted the investigation into the communications sent to J.H., testified that he saw the communications on J.H.'s cell phone. Washington conceded that, during that investigation, he did not look at or inspect Warren's cell phone to see whether the communications were sent from that device. He also said that the Facebook page from which the communications originated was not reviewed in any way. The communications as they appeared on J.H.'s cell phone and the printouts from that phone were the basis for the claims against Warren. In his decision, the hearing officer stated that, based on the totality of the circumstances and facts, he believed that Warren had in fact made the communications with J.H. and that those communications were improper. The hearing officer opined that, had someone other than Warren sent the communications in an effort to have Warren blamed, "it seems quite logical that far more offensive statements and overtures would have been used to achieve this goal with greater certainty in the outcome." The hearing officer concluded that Warren's conduct amounted to a breach of public trust and "would certainly have placed [J.H.] in a position where she felt that if she did not entertain or ‘give in’ to advances by Warren" her son, "under Warren's authority, could suffer consequences." The hearing officer sustained the charges of conduct unbecoming a classified employee and of any other legitimate and nondiscriminatory reason that constituted good cause for disciplinary action against Warren. However, the hearing officer did not sustain the charge of incompetence or inefficiency. Based on his findings and conclusions, the hearing officer recommended that the termination of Warren's employment be sustained, and the board followed that recommendation.
Warren appealed the decision of the board to the circuit court, as permitted pursuant to § 22 of Act No. 248, Ala. Acts 1945, as amended.1 In addition to reviewing the record created before the hearing officer, the circuit court heard the arguments of the parties. We note that, initially, the county was not a party to the appeal to the circuit court; instead, the parties were Warren and the board.
The circuit court entered an order on January 14, 2019, setting forth a summary of facts that included information not set forth in the hearing officer's factual findings and emphasizing different evidence.2 The circuit court found that Warren had never met J.H. before July 5, 2016, when she came to visit the resident. The circuit court stated that the board "contend[ed]" that Warren had
In its summary of the facts, the circuit court also recounted Warren's testimony that the photograph used to create the Facebook page from which the inappropriate communications originated was his mug shot from 2010 but that Warren had questioned how anyone could have obtained that photograph because it was a law-enforcement record. The circuit court stated that Warren had testified that anyone could create a Facebook account and that it takes only minutes to do so on a cell phone.
The circuit court then found:
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