Madeline Nelson et al.
Ken Megginson et al
Appeal from Mobile Circuit Court. (CV-12-901475). Trial Judge: Joseph S. Johnston.
For Appellants: Henry H. Caddell of Thiry & Caddell, LLP, Mobile; and Gregory B. Stein of Stein & Pilcher, LLC, Fairhope.
For Appellees: Edgar P. Walsh of The Atchison Firm, P.C., Mobile.
Moore, C.J., and Stuart, Parker, Shaw, and Main, JJ., concur. Bolin, Wise, and Bryan, JJ., dissent.
Madeline Nelson and 25 other individuals formerly employed as nontenured teachers or probationary classified employees in the Mobile County Public School System (" the school system" ) appeal from the dismissal by the Mobile Circuit Court of their action against the members of the Board of School Commissioners of Mobile County -- Ken Megginson, Judy P. Stout, Reginald A. Crenshaw, Levon C. Manzie, and William Foster -- and against the superintendent of the school system, Martha Peek. We reverse and remand.
I. Facts and Procedural History
The plaintiffs were nontenured teachers or probationary classified employees in the school system who were terminated/nonrenewed from employment at the end of the 2007-2008 school year. In 2009, the plaintiffs filed an action against the Board of School Commissioners of Mobile County (" the Board" ). That action was voluntarily dismissed without prejudice three years later in light of this Court's decision in Board of School Commissioners of Mobile County v. Weaver, 99 So.3d 1210 (Ala. 2012). In Weaver, this Court concluded that in order for plaintiffs such as those in this case to receive the relief they have requested, they must name as defendants the individual members of the respective school board in their representative or official capacities rather than naming as a defendant the school board itself " because the Board is an agency of the State of Alabama [and] it is entitled to absolute immunity under § 14 [of the Alabama Constitution]." 99 So.3d at 1217.
On July 13, 2012, the plaintiffs refiled their action in Mobile Circuit Court, naming as defendants the members of the Board and the superintendent of the school system. In their complaint, the plaintiffs alleged that their employment was terminated " pursuant to a reduction-in-force implemented by Defendants in response to alleged financial constraints." The plaintiffs further alleged that the failure to rehire them by the conclusion of the following school year was a violation of a written policy of the school system.
Section 16-1-33(b), Ala. Code 1975, provides that " [e]ach board shall adopt a written reduction-in-force policy consistent with Section 16-1-30[, Ala. Code 1975]. The policy shall include, but shall not be limited to, layoffs, recalls, and notifications of layoffs and recalls. The reduction-in-force policy of the board shall be based on objective criteria." Section 16-1-33 defines a " layoff" as " [a]n unavoidable reduction in the work force beyond normal attrition due to decreased student enrollment or shortage of revenues." § 16-1-33(a)(3), Ala. Code 1975.
Section 16-1-30, Ala. Code 1975, which is referenced in § 16-1-33(b), provides, in part:
" (b) The local board of education shall, upon the written recommendation of the chief executive officer, determine and establish a written educational policy for the board of education and its employees and shall prescribe rules and regulations for the conduct and management of the schools. Before adopting the written policies, the board shall, directly
or indirectly through the chief executive officer, consult with the applicable local employees' professional organization. Input by the applicable professional organization shall be made in writing to the chief executive officer. ... The written policies, rules, and regulations, so established, adopted, or promulgated shall be made available to all persons affected and employed by the board. Any amendments to the policies, rules, and regulations shall be developed in the same manner and furnished to the affected persons employed by the board within 20 days after adoption."
In December 2007, the Board adopted a policy pertaining to reduction-in-force procedures: School Board Policy No. 6.44 (" the policy" ). The policy provides, in relevant part:
" A reduction in force may take place when the board determines that a financial exigency, program change, serious natural disaster or other legitimate business reason requires the reduction of personnel through contract termination and approves acting under this policy. Such a determination constitutes the necessary cause for dismissal.
" Irrespective of a reduction in force, if a non-tenured or probationary employee is non-renewed in accordance with state law, this policy does not apply to those individuals and in such circumstances, there will be no right to recall pursuant to this policy. This policy applies to non-tenured and probationary employees only to the extent that the individual would have been rehired by the school the following year but for the reduction in force. Otherwise, non-tenured and probationary employees are not granted any retention or recall rights by this policy except as provided under state law. Unless there are no qualified tenured or non-probationary employees for a particular position, non-tenured and probationary employees will be reassigned or terminated before any tenured or non-probationary employee.
" Certified Employees
" 2. Non-Tenured Employees
" Again, this policy in no way gives non-tenured employees a contractual right to employment. The state law right to non-renew remains with the board in all respects. However, if a reduction in force is declared by the board and the principal of a particular school designates a non-tenured employee as an individual that would have been rehired but for the reduction in force, that employee shall have a one time recall right to a position for which he or she is certified and legally qualified for one calendar year from the effective
date of his or her termination or demotion that resulted only because of a reduction in force IF there is no tenured employee legally qualified based on state certification and federal highly qualified standards to teach ...