Carolyn J. Dailey
Monroe County Board of Education
ON APPLICATION FOR REHEARING
THOMPSON, Presiding Judge.
opinion of February 17, 2017, is withdrawn, and the following
is substituted therefor.
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.
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.
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
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
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."
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."
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.
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
"'[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 ...