Mackey v. Davis

         Appeal from Montgomery Circuit Court (CV-17-901917)

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          James R. Ward III, Montgomery, for appellant.

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          Clint Daughtrey and Victoria D. Relf, Alabama Education Association, Montgomery, for appellee.

         HANSON, Judge.

         Dr. Eric Mackey, in his official capacity as State Superintendent of Education, appeals from a summary judgment entered by the Montgomery Circuit Court in favor of Edward Clinton Davis. For the following reasons, we reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion.

         Facts and Procedural History

         On June 29, 2016, the State of Alabama Department of Education ("the Department") sent Davis, who had been employed as an educator by the Montgomery County Board of Education, a certified letter informing him that the Department proposed to take action to revoke and/or to nonrenew his Professional Educator Certificate ("the teaching certificate"). The letter explained:

"Under Ala. Code 16-23-5(a) (1975), `[t]he State Superintendent of Education may revoke any certificate issued under this chapter when the holder has been guilty of immoral conduct or unbecoming or indecent behavior.' Alabama Administrative Code [(Dep't of Educ.)], r. 290-3-2-.04 ... further allows the State Superintendent to refuse to issue, to suspend, to recall a certificate, or to impose other sanctions against a certificate holder for just cause....

"Pursuant to the above authorities, you are hereby notified of the [Department]'s proposed action, up to and including the revocation and non-renewal of your Alabama Professional Educator Certification (`Certification'). This proposed action applies to any and all certification or licensure issued to you by the [Department] or the Alabama State Superintendent of Education. The proposed action is based upon the following reasons:

"1. While you were employed by the Montgomery County School System as an educator at Carver High School, you behaved unprofessionally toward T.H., a 17-year-old female student. More specifically:

"A. You made T.H., the student, feel uncomfortable by touching her on the thigh inappropriately, giving her compliments, and tightly hugging her.

"B. At the beginning of 2015-2016 school year, in your classroom, you touched [T.H.]'s legs while giving her instructions.

"C. On or about November 5, 2015, in your classroom during your fifth-period science class, you placed your hand on [T.H.'s] leg and rubbed her leg while giving her instructions. This was witnessed by another female student (B.C.).

"D. During T.H.'s sixth-period physics class, you entered the classroom and asked her not to report the incident to her parent or the principal.

"E. You have made T.H. feel uncomfortable by telling her every day that she looks pretty and by giving her tight hugs.

"2. As a result of previous action from the [Department] and the State Superintendent of Education, you previously received a suspension, probation, a letter of reprimand, and were required to complete pre-approved classes on boundaries and classroom management. You failed to complete your required classes

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on boundaries and classroom management.

"3. Your misconduct toward T.H., mentioned above, violated your settlement agreement and your probation with the Department.

"4. Your 2013 settlement agreement with the Department arose from your inappropriate behavior toward female students in 2010.

"A. In or around September of 2010:

"1. You asked S.J., a female student, to send a photograph of herself in a swimsuit to your personal cellular telephone.

"2. You told [S.J.] that she had `nice breasts.'

"B. In or around March of 2010:

"1. You offered to change the failing grade of T.W., a female student, in exchange for sex or the purchase of a pair of Air Jordan shoes. You tried to flirt with T.W. on other occasions. You invited T.W. to your house with the implication that you would have sex. You received a pair of shoes purchased by some students in your classroom.

"2. You touched the breasts, thighs, and stomach of C.M., a female student, put your arms around her, and made sexual advances toward her. You showed C.M. photos of scantily-clad women on your cell phone, and you claimed they were former students. You told C.M. that you love her breasts.

"5. Your repeated misconduct has been unprofessional, immoral, unbecoming, and indecent for an educator.

"6. This action is brought based upon the facts and circumstances underlying and giving rise to the conduct referenced."

         Davis requested an administrative hearing concerning the proposed action to revoke and/or to narrow his teaching certificate. A hearing was conducted before an administrative-law judge ("ALJ") on February 3, 2017. On April 17, 2017, the ALJ issued a document stating the ALJ's findings of fact and conclusions of law, determining that Davis was "guilty of immoral, unbecoming, and indecent behavior rendering him unfit to teach" and recommending that Davis's teaching certificate be revoked and not renewed.

         On September 13, 2017, Michael Sentance, who was then the State Superintendent of Education, sent a certified letter to Davis announcing his decision to accept the ALJ's recommendation to revoke and to nonrenew Davis's teaching certificate. Sentance wrote:

"The Administrative Law Judge has recommended in this case that the revocation and non-renewal of your Alabama Professional Educator Certificate is justified and warranted pursuant to her findings of fact applied to the above-referenced statutory, administrative, and regulatory authority and guidelines in conjunction with authoritative case law.

"The entire administrative record in this matter, including the Administrative Law Judge's recommendation, was submitted for my review and consideration. I have thoroughly and carefully read, examined, and analyzed the complete administrative record for this matter. Based upon my review, I agree with and adopt the factual and legal determinations made by the Administrative Law Judge. Additionally, based upon my full review of the material contained in the administrative record and the application of the factors set out in controlling case law ..., I find a direct relationship between your conduct and your ability to be an effective teacher of and role

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model for Alabama students. I find your conduct to have been immoral, indecent, unbecoming, and just cause for the revocation and non-renewal of your Alabama Professional Educator Certificate.

"Thus, pursuant to Ala. Code 16-23-4 (1975) and Ala. Admin. Code, r. 290-3-2-.04... and the authority granted therein, my finding is that your Alabama Professional Educator Certificate is hereby revoked and will not be renewed."

         On the same day Sentance's decision to revoke and to nonrenew Davis's teaching certificate was issued, Sentance notified the State Board of Education of his intent to resign effective the following day.

         On October 2, 2017, Davis filed an application for rehearing with the Department, which was denied by operation of law, and Davis timely filed his notice of appeal with the Department. On December 11, 2017, Davis timely filed in the circuit court his petition for judicial review of the decision to revoke and to nonrenew his teaching certificate, contending that the decision to revoke/nonrenew his teaching certificate was in error for two reasons. First, Davis contended that, pursuant to § 41-22-15, Ala. Code 1975, and Bice v. Taylor, 157 So.3d 161 (Ala.Civ.App. 2014), the State Superintendent of Education was required to have read and reviewed the entire administrative record before rendering a decision to revoke/nonrenew Davis's teaching certificate. Specifically, Davis questioned whether, given the timing of Sentance's resignation letter, Sentance had actually read the entire administrative record. Second, Davis contended that, because he had previously been acquitted of criminal-harassment charges arising from the alleged at-school inappropriate touching of T.H., the double-jeopardy provisions of the state and federal constitutions prohibited the Department from taking additional action against him based upon the same alleged conduct.

         On April 3, 2018, Dr. Ed Richardson, in his capacity as the acting State Superintendent of Education, moved the circuit court for the entry of a summary judgment in favor of the Department. Richardson argued that the undisputed facts established that Sentance had indeed read and reviewed the entire administrative record before revoking and/or nonrenewing Davis's teaching certificate. Richardson also argued that double jeopardy had no application. In support of the motion, Richardson attached, amongst other exhibits, the affidavit of Sentance. In that affidavit, Sentance testified, in pertinent part:

"7. On or about May 15, 2017, I was provided with what I understand to be the entire administrative record from Edward C. Davis's certification case. The pages that I read are now labeled as CV Admin. Rec. 50 to CV Admin. Rec. 832, in the record filed for purposes of this appeal....

"8. When I received the record, I was aware of the opinion issued by the Alabama Court of Civil Appeals in [Taylor v.] Bice [v. Taylor], 157 So.3d 161 (Ala.Civ.App. 2014). I had also been advised by the Department of Education's Office of General Counsel that I must be sure to read the entire administrative record before making a decision regarding any contested administrative case heard by a hearing officer.

"9. In addition to receiving a paper copy of the entire administrative record on or about May 15, 2017, I also received an electronic copy of the administrative record on or about July 6, 2017.

"10. After I ...