Dr. Eric MACKEY, in his official capacity as State Superintendent of Education
Edward Clinton DAVIS.
from Montgomery Circuit Court (CV-17-901917)
R. Ward III, Montgomery, for appellant.
Daughtrey and Victoria D. Relf, Alabama Education
Association, Montgomery, for appellee.
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.
and Procedural History
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
"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
"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
"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
"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
on boundaries and classroom management.
"3. Your misconduct toward T.H., mentioned above,
violated your settlement agreement and your probation with
"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
"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
"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
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.
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
"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
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
"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
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.
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
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 ...