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Dailey v. Monroe County Board of Education

Alabama Court of Civil Appeals

May 12, 2017

Carolyn J. Dailey
v.
Monroe County Board of Education

          Appeal No. 2016114

          ON APPLICATION FOR REHEARING

          THOMPSON, Presiding Judge.

         The opinion of February 17, 2017, is withdrawn, and the following is substituted therefor.

         On January 12, 2016, the superintendent of the Monroe County Board of Education ("the Board"), pursuant to the Students First Act ("the SFA"), § 16-24C-1 et seq., Ala. Code 1975, notified Carolyn J. Dailey, a nonprobationary classified employee, of his intention to terminate Dailey's employment with the Board. Dailey timely contested the superintendent's proposed termination of her employment, and she requested a hearing pursuant to the SFA. See § 16-24C-6(b), Ala. Code 1975.

         The Board conducted a hearing. On March 23, 2016, at the close of the hearing, the Board orally informed Dailey that it had voted to uphold the superintendent's recommendation to terminate her employment.

         On April 22, 2016, Dailey filed a notice of appeal to the State Superintendent of Education, requesting an administrative hearing. See § 16-24C-6(e), Ala. Code 1975. An administrative-hearing officer conducted a hearing on July 26, 2016. It is undisputed that the Board did not include a written decision in the record it submitted to the hearing officer; Dailey disputed that she had received a written decision from the Board terminating her employment. At the close of the administrative hearing, the Board, apparently orally, moved to supplement the administrative record to include a copy of the Board's written decision to terminate Dailey's employment. The Board later filed an undated post-hearing brief that included a motion to supplement the administrative record with a copy of its written decision to terminate Dailey's employment. The Board stated that it had attached its written decision as an exhibit to that filing, but that exhibit is not included in the record before this court. Dailey opposed the Board's motion to supplement the administrative record, and both parties submitted briefs on their respective positions on that issue. The hearing officer never ruled on the motion to supplement.

         The hearing officer issued an undated decision affirming the Board's termination decision; in a motion to clarify filed after that decision was issued, Dailey alleged that the hearing officer's decision had been transmitted to her or her attorney on August 4, 2016. In the August 10, 2016, motion to clarify that decision, Dailey requested that the hearing officer clarify his decision to specify whether he found that she had received the Board's written decision and, if he found that she had not received the Board's written decision, to determine the effect of the Board's failure to notify her in writing of its termination decision. The hearing officer denied the motion to clarify on August 10, 2016.

         Later, in an August 16, 2016, letter Dailey's attorney sent to the hearing officer concerning the composition of the record on appeal to be submitted to this court, Dailey's attorney asked, among other things, for a copy of "[a]ny document filed with you represented as the decision or notice of decision from the [Board] terminating the employment of [Dailey]." The hearing officer responded by letter, dated August 24, 2016, stating, in pertinent part, that "any such document as it might be interpreted by the parties is in the original record."

         Dailey timely appealed the hearing officer's affirmance of the Board's termination decision to this court. On appeal, Dailey argues that the SFA requires that the Board issue a written decision and that its failure to do so deprived her of her due-process rights under the United States Constitution. In support of her argument that the SFA requires that she be provided written notice of the Board's termination decision, Dailey cites § 16-24C-6(d). That section provides:

"Whether or not the employee requests a hearing before the governing board ..., the chief executive officer shall give written notice to the employee of the decision regarding the proposed termination within 10 calendar days after the vote of the board .... If the decision follows a hearing requested by the employee, the notice shall also inform the employee of the right to contest the decision by filing an appeal as provided in this chapter."

(Emphasis added.)

         Dailey contends that she did not receive written notice of the Board's decision until the close of the administrative hearing, when the Board sought to supplement the record before the hearing officer to include its written decision; she avers in her brief submitted to this court that, out of an abundance of caution, she had appealed following the oral ruling of the Board within the period set forth in the SFA. The Board maintains that it did provide Dailey with "post-hearing notice of the Board's decision, " but it concedes that the official record submitted to the hearing officer did not include a written decision by the Board concerning Dailey's employment.

         Thus, the parties agree that the record before the hearing officer contained no written notice of the Board's decision. The parties disagree, however, regarding whether such notice was required.

"'[It is well established that where the issues involve only the application of law to undisputed facts appellate review is de novo. See, e.g., State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 810 (Ala. 2005). This has been held to be true where a hearing officer's decision is otherwise subject to more limited review. Ex parte Wilbanks Health Care Servs., 986 So.2d 422, 425 (Ala. 2007) ("Review of the hearing officer's conclusions of law or application of the law to the facts is de novo."); Barngrover v. Medical Licensure Comm'n of Alabama, 852 So.2d 147, 152 (Ala. Civ. App. 2002) ("The presumption of correctness does not attach to the hearing ...

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