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12/16/94 HORACE WILLIAMS v. PERRY W. WARD

December 16, 1994

HORACE WILLIAMS
v.
PERRY W. WARD, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF LAWSON STATE COMMUNITY COLLEGE



Appeals from Jefferson Circuit Court. (CV-91-7197). Jack D. Carl, TRIAL JUDGE.

Application for Rehearing Overruled June 30, 1995, . Certiorari Denied September 8, 1995. Released For Publication February 17, 1996.

Thigpen, Judge. Yates, J., concurs. Robertson, P.j., concurs in the result only.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This is the second time these parties have appeared before this court in this action. See Williams v. Ward, 612 So. 2d 489 (Ala. Civ. App. 1992). The issues arise from a notice of termination of Horace Williams's employment with Lawson State Community College (Lawson). Dr. Perry W. Ward is the president of Lawson.

The prior appeal involved the review of a summary judgment on the issue of whether the Fair Dismissal Act (Act), Ala. Code 1975, § 36-26-100 et seq., applied to Williams's employment status with Lawson. The trial court had entered a summary judgment in favor of Ward and against Williams, holding in substance that the Act did not apply to Williams. On appeal, this court reversed, holding that summary judgment was not proper, inasmuch as the record was insufficient to determine the nature of Williams's employment with Lawson, which was critical to the determination of whether the Act applied to Williams. This court instructed the trial court to determine on remand the nature of Williams's employment with Lawson. Williams, (supra) .

On remand, the trial court considered additional evidence and conducted further proceedings. Ward again filed a motion for a summary judgment. To support his motion, Ward provided Williams's affidavit stating that he was a full-time, tenured instructor. The transcript of the proceedings on remand discloses that both parties agreed that Williams's status with Lawson was as a full-time, tenured instructor. After that fact was ascertained, the trial court again entered a summary judgment in favor of Ward, and against Williams, on the grounds that Williams's employment was not subject to the Act. Without evidence or argument, the trial court then, apparently ex mero motu, dismissed the claims against Ward in his individual capacity. It is from this judgment that Williams now appeals, contending that the summary judgment was inappropriate, and that the trial court erred in dismissing his claims against Ward in his individual capacity. Williams specifically argues that, in view of this court's prior reversal, the trial court's entry of summary judgment violated the law of the case; that the trial court erred in determining that the Act does not apply to Williams's employment with Lawson; that the summary judgment was inappropriate, even if the Act is inapplicable, in view of the fact that Williams was tenured; that the hearing panel ruled that he should be reinstated, and that Ward refused to comply with that ruling; and, finally, that the trial court erred in dismissing the claim against Ward individually. The pertinent facts and procedural history necessary for a clearer understanding of this case are discussed below and are derived primarily from the pleadings in this record on appeal and from the prior opinion of this court. See Williams, (supra) .

In August 1989, Ward notified Williams that his position as a sewing instructor at Lawson would be eliminated, because of low enrollment, and that his compensation would cease on August 31, 1989. That notice advised Williams of his right to contest the termination, and to request a hearing, pursuant to the "Revised Hearing Procedure" regulation of the Alabama State Board of Education. A copy of that regulation was included with Ward's letter. Subsequently, a hearing was conducted by a three-person panel, which designated itself as a "Fair Dismissal Act Review Panel." That panel ultimately ruled, on January 24, 1990, that Williams's termination was arbitrary and unwarranted, and the panel ordered that Williams be reinstated. Ward refused Williams's attempt to report to work, and he notified Williams by letter that he was seeking to have the panel's decision set aside as invalid. Williams sued, seeking a writ of mandamus, directing reinstatement, and seeking damages and declaratory relief. Ward petitioned the circuit court for certiorari, seeking judicial review of the panel's decision. The court consolidated Ward's petition for trial with Williams's action. Ultimately, both actions were dismissed without prejudice. Thereafter, on September 6, 1991, Williams again sought the identical relief. The record contains nothing to indicate that Ward's petition was filed again; therefore, the only action now pending, and the only one here on this appeal, results from Williams's petition.

The record on the prior appeal did not adequately reveal the nature of Williams's employment status, which was central to the issue of whether the Act applied to Williams. The record after remand makes it clear that Williams was a full-time, tenured instructor at Lawson when he received Ward's notice of employment termination.

Legislation creating the Post-Secondary Education Department also provides that "the state board of education, upon recommendation of the chancellor, shall be authorized to: ... (5) Prescribe qualifications for faculty and establish a salary schedule and tenure requirements for faculty at each junior college and trade school." Ala. Code 1975, § 16-60-111.4(5). Pursuant to this statutory scheme, the State Board of Education implemented and published its Policies, Procedures, and Regulations Governing Alabama State Community, Junior, and Technical Colleges/Institutes, 1979 (hereinafter, Regulations); these Regulations provide, inter alia, for the certification of post-secondary teachers, the attainment of Continuing Service Status (tenure) by faculty members, and a procedure to be followed in cases involving termination. See specifically Sections 610 - 617 of the Regulations.

The Fair Dismissal Act, codified in Ala. Code 1975, § 36-26-100 et seq., states its purpose as being "to provide for fair dismissal procedures for non-teachers and non-certified or classified employees in the public school systems, two-year institutions under control of the State Board of Education."

1983 Ala. Acts, Act No. 83-644. The Act clarifies its application by stating in its definition of "employees":

"Only full-time employees who are not otherwise covered by the state merit system, the teacher tenure law, or other state statute at the time this article is adopted are intended to be covered by this article. Fulltime employees include (a) adult bus drivers and (b) other employees whose duties require 20 or more hours in each normal working week of the school term, employing ...


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