Dockery v. City of Jasper

303 So.3d 483

Shelby DOCKERY

v.CITY OF JASPER

2180844

Court of Civil Appeals of Alabama.

February 28, 2020

Charles C. Tatum, Jr., and Seth L. Diamond of Charles C. Tatum, Jr., P.C., Jasper, for appellant.

Timothy P. Donahue, Sr., of Donahue & Associates, LLC, Birmingham, for appellee.

PER CURIAM.

Shelby Dockery appeals from a judgment of the Walker Circuit Court ("the trial court") dismissing his purported damages claims against the City of Jasper ("the City") and affirming a decision of the Jasper Civil Service Board ("the Board") regarding the termination of his employment as a police officer for the City.

The City hired Dockery as a police officer on May 6, 2002. On June 9, 2003, the City's police chief, Robert Cain ("Chief Cain"), served Dockery with a letter ("the termination letter") that stated:

"Following our conversation concerning your recent activities, and my consideration of the events raised in my letter to you dated June 5, 2003, I have determined that your employment relationship with the Jasper Police Department is due to be terminated, effective immediately. Please return any property of the Jasper Police Department or the City ... which is currently in your possession.

"If you are dissatisfied with this decision, you are vested with the right to appeal it to the ... Board .... There are time limits and other rules pertinent to this appeal, and you are advised to closely adhere to them in the event you choose to seek a further hearing in this matter.

"In accordance with the provisions of Act 65-113, Acts of Alabama, a copy of this letter is being sent to the ... Board ..., advising them of my decision in this matter. If you have any questions, please contact the Board or myself."

A copy of the termination letter was sent to the Board.

The conversation referenced in the termination letter was a purported pretermination hearing that occurred in Chief Cain's office on June 4, 2003, following an alleged incident involving Dockery and a female citizen that occurred during Dockery's shift on June 3, 2003. Dockery attended that hearing with his attorney, although he thereafter retained a different attorney for purposes of the present case.

After receiving the termination letter, Dockery timely appealed Chief Cain's decision to the Board. The record does not include a copy of the document that Dockery filed notifying the Board of his appeal. See § 14(a) of Act No. 113, Ala. Acts 1965 (1st Spec. Sess.), the City's Civil Service Act ("the Act").¹

Section 14(a) of the Act states, in part:

"The governing body of the city, any member of the governing body, or the head of any department ... can remove, discharge, or demote any employee ... of the city who is subject to the provisions of this Act and who is directly under such governing body, member thereof, or department head, provided that within five days a report in writing of such action is made to the Board, giving the reason for such removal, discharge, or demotion. The employee shall have ten days from the time of notification of his discharge, removal, or demotion in which to appeal to the Board. The Board shall thereupon order the charges or complaint to be filed forthwith in writing and shall hold a hearing de novo on such charges. No permanent employee, officer, or official of the city whose employment comes within the jurisdiction of this Act, and whose probationary period has been served, shall be removed, discharged, or demoted except for some personal misconduct, or fact, rendering his further tenure harmful to the public interest, or for some cause affecting or concerning his fitness or ability; and if such removal, discharge, or demotion is appealed to the Board, then the same will become final only after a hearing upon written charges or complaint has been had and after an opportunity has been given him to face his accusers and be heard in his own defense. Pending a hearing on said appeal, the affected employee may be suspended; and after such hearing the Board may order said employee reinstated, demoted, removed, discharged, or suspended, or take such other disciplinary action as in their judgment is warranted by the evidence and under the law."

Section 14(a) contains additional provisions regarding the procedures applicable to charges against an employee filed by a citizen:

"Charges may be filed by any resident citizen of the city as follows: the charges must be in writing, must set forth succinctly the matters complained of, and must be sworn to before any member of the Board or before any person authorized to administer oaths. Upon the receipt of such charges, the Board, after due consideration, shall determine whether in its opinion it considers that the good of the service will be served by a trial thereon; and, if not, such charges may be dismissed by the Board. If in the judgment of the Board such charges are of a minor nature, such charges may be referred by the Board to the proper department head who shall make an investigation of the charges and make his recommendation to the Board within such time as the Board may prescribe, as to what disciplinary action, if any, should be taken. After such recommendation is made by the department head and after due notice is given to the affected employee of the receipt of such recommendation and the contents thereof, the Board may, in its direction, adopt and order executed the action recommended by the department head or any part thereof. However, if the complainant or the affected employee, or both of them, objects to the recommendation of the department head, the Board shall hold a public hearing de novo on the charges, and take such disciplinary action as in their judgment is warranted by the evidence and under the law."

Section 14(a) further provides as follows:

"All hearings before the Board shall be open to the public. All testimony given in all hearings before the Board shall be taken down in shorthand by a stenographer. In all cases, the decision of the Board shall be reduced to writing and entered in the record of the case. In all proceedings before the Board, the city attorney may appear and prosecute all charges instituted by the city governing body or any member thereof or by any department head, when requested or directed to do so by such city governing body. It shall not be the duty of the city attorney to prosecute any charges brought by a private citizen. In all proceedings before the Board, the city attorney may appear and represent the interests of the city, and he shall also give such legal advice and legal assistance to the Board as may be requested by it.

"The Board and its specially authorized representatives shall have the power to administer oaths, take depositions, certify official acts, and issue subpoenas to compel the attendance of witnesses and production of papers necessary as evidence in connection with any hearing, investigation, or proceeding within the purview of this Act."

(Emphasis added.)

The record reflects that counsel for the City sent Dockery's counsel a letter dated July 29, 2003, that stated:

"Please find enclosed the requested copies of ... Dockery's employment file and the audiotape of the pretermination hearing between [Dockery] and Chief Cain. The audiotape is at a very low volume, but is otherwise of decent quality, and is as good as the original in any event. If you need further information, please let me know of the same.

"It also appears that ... Dockery may not have been served with notice of the charges concerning his conduct at the Waffle House this past spring, wherein Officer Bryan Carlton was involved in a fight with a suspect and he did not assist Officer Carlton. I mistakenly believed that this was one ground for Chief Cain's decision, but I understand now that he did not know of this matter until following his decision to terminate ... Dockery. This may be the subject of a further notice and prediscipline hearing, at ... Dockery's option, and I will provide you with notice of the same prior to any such undertaking.

"Thank you for your time and consideration in this matter. If we may provide further information, or if you propose any further resolution, please do not hesitate to contact me at your convenience."²

The record does not reflect that Dockery sought any further information from the City before the hearing before the Board.

On August 29, 2003, the Board conducted a de novo, ore tenus proceeding regarding the termination of Dockery's employment. See § 14(a), supra. At the beginning of the August 2003 hearing, the Board noted that the City was the plaintiff for purposes of Dockery's appeal and that the City had the burden of proof. Before the Board received any testimony, Dockery's counsel made an oral motion to set aside the termination of Dockery's employment:

"The ... Act sets out the rules that have to be followed when the city or a supervisor for the city makes a decision to fire someone or even to suspend someone, for that matter. And basically what the Civil Service Rules [promulgated by the Board] and the Act say is that once the decision to terminate is made, the employee has a right to challenge or to request an appeal before this [B]oard. We did that. The decision to terminate was made by Chief Cain on or about June 9, 2003.

"Now, after that decision was made, of course, we made a written request for a hearing to the [B]oard within the ten-day period. Now, once we made that request, the Act says that the [C]ity ... has to come before this [B]oard and file a complaint in order to uphold or to defend or to proceed with its decision to suspend or to fire. And in that complaint, the Act specifically says that they have to state what decision they made as it related to terminating an employee. And they also have to give an explanation as to the basis for the decision that was made. They have failed to do that as of this day. The [C]ity has failed to do it. And I attached a copy of the pertinent portion of the rule that explains what's

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