Wiggins v. City of Evergreen

295 So.3d 43

Helen WIGGINS

v.CITY OF EVERGREEN

1170833

Supreme Court of Alabama.

September 20, 2019

Max Cassady of Cassady & Cassady, P.C., Fairhope, for appellant.

James B. Rossler, Mobile, for appellee.

MITCHELL, Justice.

This case concerns the dismissal of a municipal employee. The City of Evergreen ("the City") terminated the employment of Helen Wiggins, a warrant clerk and magistrate, after the Evergreen City Council ("the Council") accepted the recommendation of the City's mayor that she be dismissed for dereliction of duty. Wiggins thereafter filed a wrongful-termination action against the City in the Conecuh Circuit Court. The trial court ultimately entered a judgment in favor of the City and against Wiggins. She now appeals that judgment. We affirm.

Facts and Procedural History

On February 15, 2017, Cynthia Salter, the manager of a Chevron gasoline service station in Evergreen, was reviewing surveillance videos when she discovered that one of her employees and that employee's husband had stolen money from the business. Salter promptly terminated the employment of the employee shown in the video and notified the police of the theft. Police officers were dispatched to the business, and, after they prepared a written report, they instructed Salter to obtain arrest warrants at the City's municipal building ("city hall"). The police officers told Salter that, once she obtained those warrants, they would arrest the former employee and her husband.

At approximately 9:15 a.m. the following day, Salter went to city hall to obtain the warrants the police had told her she needed. Wiggins, one of two warrant clerks and magistrates employed by the City, was on duty at the time.¹ After Salter explained why she was there, Wiggins told her that she would have to return at approximately 11:30 a.m. when Barbara Ashley-Kemp, the other warrant clerk and magistrate, would be on duty. At a subsequent hearing conducted by the Council, Salter testified that Wiggins gave her no explanation for not issuing the warrants.

When Ashley-Kemp reported for work at approximately 12:00 p.m., Salter was waiting for her. Ashley-Kemp promptly issued the warrants Salter needed because, Ashley-Kemp later testified, "I thought she had probable cause." Ashley-Kemp described her encounter with Salter as "a completely routine issuance of a warrant." Ashley-Kemp further testified that when one warrant clerk was not present in the office the other warrant clerk was responsible for issuing warrants.

Salter stated that, after she obtained the warrants, she left the magistrate's office and was confronted by the two individuals who were the subjects of the warrants. Salter stated that they offered her money not to seek warrants for their arrests, but she told them that the warrants had already been issued and they did not escalate the matter. When questioned by Wiggins's attorney at the hearing before the Council, Salter explained why she objected to Wiggins's failure to issue the warrants when they were first sought:

"Q. So why was this upsetting to you that you didn't get the warrant [on your first trip] -- I mean you got the warrant.

"A. Right.

"Q. You just had to come back when [Wiggins] had her assistant there, why is this upsetting to you?

"A. What do you mean why is it upsetting? Well, for the simple fact that at 11:30 when I was doing it with [Ashley-Kemp], the person that I accused of stealing, the husband, he was trying to get back there to the office. Therefore I was afraid, I didn't know what I was going to be confronted with.

"Q. You understand Helen Wiggins has no control over those folks?

"A. Correct.

"Q. And when you did receive the warrant at 11:30 --

"A. Right.

"Q. -- you don't have any complaint that it was issued by her assistant warrant clerk as opposed to herself, do you?

"A. No.

"Q. And didn't she tell you when you came at 9:30 or 9 a.m., whichever one it was the first time, that she was getting something ready for the judge, that she was busy?

"A. No, she did not.

"Q. Well, I don't hear you saying anything about there being a heated exchange, it sounds like you said fine, I'll come back at 11:30.

"A. Right, what else was I supposed to do? I mean she refused to do it at 9, so I was supposed to come back.

"....

"Q. So how as a citizen do you feel that you were denied some right to have a warrant issued by the City of Evergreen? Or do you?

"A. I feel like that if she would have did the job at 9 something that morning, I wouldn't have been confronted outside of City Hall by the two accused people."

On March 2, 2017, the mayor sent Wiggins a letter notifying her that he was recommending that her employment be terminated for "dereliction of duty by failing to issue a warrant when probable cause existed."² Wiggins was placed on administrative leave with pay effective immediately and was advised that she had the right to a pre-termination hearing before the Council if she desired. Wiggins promptly exercised that right and, on March 23, 2017, the Council conducted a hearing to consider two charges against Wiggins. The first charge was based upon Wiggins's alleged dereliction of duty as stated in the mayor's letter; the second charge, which was added only two days before the hearing, involved an alleged ethics violation unrelated to Wiggins's actions on February 16, 2017. At the conclusion of the hearing, the five-person Council voted 3-0 to accept the mayor's recommendation to terminate Wiggins's employment, with two council members abstaining.

On March 28, 2017, Wiggins sued the City, alleging that it had wrongfully terminated her employment.³ Wiggins specifically argued that the City's dismissal was wrongful because, she says, she had engaged in no conduct that violated § 11-43-160(a), Ala. Code 1975, which provides:

"(1) Any person appointed to office in any city or town may, for cause, after a hearing, be removed by the officer making the appointment.

"(2) The council of the municipality may remove, by a two-thirds vote of all those elected to the council, any person in the several departments for incompetency, malfeasance, misfeasance, or nonfeasance in office and for conduct detrimental to good order or discipline, including habitual neglect of duty."

Wiggins accordingly sought backpay, reinstatement, compensatory and punitive damages, attorney fees, and costs. In its subsequent answer, the City asserted several affirmative defenses and generally denied Wiggins's claim that it had acted wrongfully.

Wiggins and the City agreed that her complaint was tantamount to a petition seeking certiorari review of the Council's decision, and the City thereafter moved the trial court to enter a judgment based on the record before the court, including a transcript of the pre-termination hearing held by the Council and other documentary evidence. See, e.g., Hammonds v. Town of Priceville, 886 So. 2d 67, 68 (Ala. 2003) ("A municipal employee has no statutory right to appeal from a town council's decision to terminate the worker's employment. Because a terminated municipal employee has no such right, a petition for a common-law writ of certiorari is the proper method for having the trial court review the council's decision."). Wiggins subsequently filed her own motion seeking a summary judgment.

On March 16, 2018, the trial court heard arguments from both Wiggins and the City. Both parties thereafter submitted proposed orders, and on May 8, 2018, the trial court entered a final judgment in favor of the City. In rendering that judgment, the trial court explained that testimony at the pre-termination hearing established that Wiggins was one of two warrant clerks employed by the City and that it was her job to issue warrants, if probable cause existed, when the other warrant clerk was not in the office. The trial court further stated that additional testimony indicated that, when Salter came to city hall on February 16, 2017, to obtain warrants, Wiggins told her without explanation that she would have to come back later. The trial court concluded:

"The testimony indicates that [Wiggins] did not do her job, and [Wiggins] chose not to testify at the hearing so the testimony presented by the City was not rebutted. Under these circumstances, where the undisputed evidence shows that [Wiggins] did not perform the act she had responsibility to perform, the Court is of the opinion that the first charge is supported by substantial legal evidence."

The trial court further explained that "nonfeasance" was one of the grounds in § 11-43-160 for which a municipality could terminate an employee's employment and that Wiggins's "nonperformance is the essence of nonfeasance, and is a sufficient basis for [her] dismissal from employment that is supported by substantial, and undisputed, legal evidence in the record."⁴

Because the trial court held that the first charge against Wiggins was supported by substantial evidence, it did not consider the second charge against her. See Ex parte Belcher, 280 Ala. 252, 252, 192 So. 2d 454, 454 (1966) ("If there is any substantial legal evidence supporting one of the charges, which alone would warrant the dismissal, we have no alternative but to affirm."). On June 11, 2018, Wiggins filed a timely notice of appeal to this Court.

Standard of Review

Because a municipal employee has no statutory right to appeal the termination of his or her employment, the trial court properly treated Wiggins's complaint as a petition for a common-law writ of certiorari. See Hammonds v. Town of Priceville, 886 So. 2d at 68. This Court has stated that, if such an employee thereafter seeks appellate review of the trial court's decision upholding the termination of employment, this Court will apply the same standard of review that the trial court used. Ex parte Wade, 957 So. 2d 477, 481 (Ala. 2006).

The Court of Civil Appeals described that standard of review in Hicks v. Jackson County Commission, 990 So. 2d 904, 910 (Ala. Civ. App. 2008), an appeal that was similarly brought by a...