Boaz City Sch. Bd. v. Stewart

233 So.3d 986

BOAZ CITY SCHOOL BOARD

v.Kevin STEWART

2150582

Court of Civil Appeals of Alabama.

November 4, 2016

Rehearing Denied February 17, 2017

Certiorari Denied April 14, 2017

Alabama Supreme Court 1160463

Jeffrey McLaughlin of McLaughlin & Edmondson, LLC, Guntersville, for appellant.

John D. Saxon, Birmingham, for appellee.

Carl Johnson of Bishop, Colvin, Johnson & Kent, LLC, Birmingham, for amicus curiae Alabama Association of School Boards, in support of the appellant.

PITTMAN, Judge.

This appeal arises from teacher-disciplinary proceedings under the Students First Act ("the SFA"), Ala. Code 1975, § 16–24C–1 et seq., involving Kevin Stewart ("the teacher"), a teacher in the City of Boaz school system. The superintendent of the Boaz school system, in a letter dated April 8, 2015, notified the teacher that termination of the teacher's employment would be recommended by the superintendent because of the teacher's work at a pawn shop during the course of a paid medical leave from his employment as a teacher with the Boaz school system. After an ore tenus proceeding, the Boaz City School Board ("the Board") voted to terminate the teacher's employment. The teacher timely sought appellate review of that decision, and a hearing officer was appointed to hear the teacher's appeal on the administrative record. That hearing officer issued an order determining that the Board's action was arbitrary and capricious and that the Board's decision was due to be reversed. The Board appealed to this court from the hearing officer's order.

Under the SFA, hearing officers are to apply an "arbitrary-and-capricious standard of review ... of employers' decisions under the SFA." Ex parte Lambert, 199 So. 3d 761, 768 (Ala. 2015). That standard "is meant to be extremely deferential to the ... decision" of a board of education employing a teacher, such as the Board in this case, and " ‘require[s] ... deference to’ " the pertinent board's decision from hearing officers " ‘even if [a hearing officer] would have reached a different result than did the [b]oard.’ " Huntsville City Bd. of Educ. v. Jacobs, 194 So.3d 929, 939 (Ala. Civ. App. 2014) (quoting Chilton Cty. Bd. ofEduc. v. Cahalane, 117 So.3d 363, 368 (Ala. Civ. App. 2012) ).

We further note that, in undertaking appellate review of a hearing officer's order entered in a case governed by the SFA, we review that order with no presumption that the order, as opposed to the decision of the disciplining board of education, is correct. See Cahalane, 117 So.3d at 368 (noting that, in disciplinary proceedings under the SFA, school boards receive evidence and are triers of fact and that hearing officers are "in no better position than is this court to review" disciplinary decisions of school boards under the SFA). Cf. Alabama Dep't of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 385 (Ala. Civ. App. 2008) (noting that, in the analogous context of proceedings involving judicial review of an administrative-agency decision under the Alabama Administrative Procedure Act, Ala. Code 1975, § 40–22–1 et seq., this court will review a circuit court's judgment without a presumption of correctness because the circuit court is in no better position to review an agency's decision than is this court). In effect, this court's review function under the SFA is similar to that obtaining in administrative-law settings generally—that is, review of the underlying decision "as though the [initial] appeal had been taken directly to this court." State Oil & Gas Bd. v. Seaman Paper Co., 285 Ala. 725, 742, 235 So.2d 860, 876 (1970) ; accord Alabama Pub. Serv. Comm'n v. Nunis, 252 Ala. 30, 34, 39 So.2d 409, 412 (1949).

The record before the Board reveals the following facts. In pursuance of its responsibilities as to governance of the school system in the City of Boaz, the Board has adopted a policy manual governing the conduct of, among other things, the Board's employees. Among the provisions of the policy manual is § 5.9.3, which governs paid sick leave of regular, full-time employees; two of its subdivisions provide as follows:

"5.9.3.a.1.3Use of Sick Leave—Eligible employees may only use sick leave for absences caused by the following:

"1. Personal illness.

"2. Incapacitating personal injury.

"....

"5.9.3.a.1.4Certification—Employees must certify that sick leave was used for one of the reasons provided in state law and specify the reason. If the employee's principal or department head has probable cause to believe that an employee has abused or misused sick leave, a physician's statement verifying the existence and nature of the illness or medical condition may be required by the Board. Abuse of sick leave may subject the employee to disciplinary action.

"[Reference: Ala. Code § 16–1–18.1 (1975) ]."

(Emphasis added.) The Board's policy manual also contains a prohibition of conflicts of interest, § 5.6, that provides that "[e]mployees may not use their offices or positions for personal gain and must adhere to applicable provisions of" state ethics laws and may engage in "outside employment" only under particular terms and conditions, including:

"a. Employees will not engage in outside business activities or render any service for another employer during such time as duties and responsibilities have been assigned by the Board;

"b. Employees will not accept outside employment that would interfere with or impair the ability of the employee to perform duties as a Board employee effectively."

The teacher has worked as an agricultural-science instructor at Boaz High School since 2001 and has, on occasion, worked as a tennis and swimming coach there. On or before January 12, 2015, the teacher and two other persons formed a corporation called "Sand Mountain Pawn and Outdoors, Inc.," in order to operate an existing pawn-shop business that was conveyed to the incorporators by another person; according to testimony at the hearing before the Board, the teacher held a 35% ownership interest in the pawn-shop business. Soon thereafter, the teacher began disengaging from his work for the Board, directly notifying a superior on January 21, 2015, that he would no longer be able to coach tennis "[d]ue to the advice of [his] physician" and submitting a form "absence authorization" dated January 26, 2015, obtained from a chiropractor stating that the teacher was under the chiropractor's care and recommending that the teacher be "excused" from January 27, 2015, through February 24, 2015. However, the particular illness or injury made the basis of the teacher's absence from his duties was not disclosed in either communication.

On February 4, 2015, during the period for which the teacher had sought to "excuse" his absence from his educational duties, another Board employee who had received information that the teacher was working at the pawn-shop business's location went to that location and observed the teacher assisting customers of the business; when asked why he was working for the pawn-shop business while on sick leave from his employment with the Board, the employee admitted that the question was "kind of tricky" but apparently did not provide a substantive answer. On February 10, in response to that encounter, the teacher hand delivered a letter to the school-system superintendent again formally requesting a medical leave of absence and a form signed by a physician at a family-medicine clinic stating that the teacher was "[f]ully restricted" from working "until reassessment on February 24, 2015, and release[ ] by" the chiropractor who had executed the January 26, 2015, form. Again, however, neither the letter nor the form specified an illness or injury suffered by the teacher.

On February 16, 2015, the Boaz school superintendent sent a letter to the teacher ("the February 2016 letter") stating that the work excuse from the family-medicine physician "failed to certify the information required under" § 5.9.3 of the Board's policy manual; directing the teacher to "immediately obtain certification regarding the existence, nature and extent of [his] medical condition," to include "whether reasonable accommodations might be provided by the Board so that [he could] continue working for the Board"; and seeking, if no accommodations could be provided, "an explanation as to how [the teacher could] be unable to teach but still perform work" for the pawn-shop business. The February 2016 letter was hand delivered to the teacher at the pawn-shop business's location on February 18, 2015. Six days later, on February 24, 2015, the teacher sent an e-mail message to the superintendent stating that he was "requesting to extend [his] medical leave"¹ and that he would "remit [his] physician's certification" on February 27, 2015. Also on February 24, 2015, the teacher's chiropractor prepared a letter to the superintendent averring that the employee was "being treated for a serious chronic degenerative health condition" that "can result in transient periods of partial to full incapacitation," that...