STATE OF ALABAMA

Fair Dismissal Act Hearing

[MP],
Employee,

v FMCS No. 08-00952

BISHOP STATE COMMUNITY COLLEGE,

Employer.
_______________________________________/

OPINION OF THE HEARING OFFICER

ON EMPLOYEE’S MOTION TO REINSTATE PAY

March 31, 2008

For the Employee: For the Employer:

A. J. Cooper David M. O’Brien

Cooper Law, PC Jeffrey G. Miller
21 S Section Street Sirote & Permutt, PC
Fairhope, AL 36532 1 St. Louis Center, Suite 1000
Mobile, AL 36602
Raymond Bell, Jr.
Bell & Adams
182 St. Francis Street, Suite 300
Mobile, AL 36602
 I. The Nature Of The Proceeding

This case arises under the Alabama Fair Dismissal Act, Article 4 of

Chapter 26 of Title 36 of the Alabama Code, §§ 36-26-100 et seq. Before the

undersigned hearing officer, selected pursuant to § 36-26-114(b) from the roster

of arbitrators maintained by the Federal Mediation and Conciliation Service

(“FMCS”), is the Employee’s Motion to Reinstate Pay for Bishop’s Failure to

Provide Due Process (“Motion”), served March 3, 2008. The Response of

Bishop State Community College to Employee’s Motion to Reinstate Pay

(“Response”) was served March 26, 2008.

II. The Fair Dismissal Act, As Amended

The Fair Dismissal Act, as originally enacted by Alabama Acts 1983, No.

83-644, was criticized by the courts. See, e.g., Bolton v Board of School

Commissioners of Mobile County, 514 So 2d 820, 824 (Ala 1987) (“not a model

of legislative clarity”). In 2004, the Fair Dismissal Act was revised substantially

by Act 2004-567, an Act:

Relating to the Fair Dismissal Act; to streamline the contest and appeal
processes for employees; to provide that employees would have contests
of terminations, transfers, and suspensions heard by a hearing officer
from the United States Federal Mediation and Conciliation Service; and
to provide that the hearing officer’s decision in terminations and
suspensions for greater than seven days without pay could be appealed by
either party to the Court of Civil Appeals.1
1
http://arc-sos.state.al.us/PAC/SOSACPDF.001/A0003223.PDF @ 1.

2
 As amended, the Fair Dismissal Act reads in pertinent part:

Section 36-26-102

Nonprobationary status; causes for termination.

Upon the completing by the employee of said probationary period, said

employee shall be deemed employed on a nonprobationary status and said
employee's employment shall thereafter not be terminated except for failure
to perform his or her duties in a satisfactory manner, incompetency, neglect
of duty, insubordination, immorality, justifiable decrease in jobs in the
system, or other good and just causes; provided, however, such termination
of employment shall not be made for political or personal reasons on the part
of any party recommending or voting to approve said termination.

(Acts 1983, No. 83-644, p. 1004, §3.)

Section 36-26-103

Termination of employment - Procedure; notice.

(a) An employee on nonprobationary status may be terminated only in the

following manner: The superintendent shall give written notice to the
employing board and the employee of the superintendent's intention to
recommend a termination as provided in Section 36-26-102. Such notice
shall state the reasons for the proposed termination, shall contain a short and
plain statement of the facts showing that the termination is taken for one or
more of the reasons listed in Section 36-26-102, and shall state the time and
place for the board's meeting on the proposed termination, which meeting
shall be held no less than 20 days and no more than 30 days after the receipt
of such notice by the employee. The notice shall inform the employee that in
order to request a conference with the board, the employee must file a
written request with the superintendent within 15 days after the receipt of
such notice. At such conference, which shall be public or private at the
discretion of the employee, the employee, or his or her representative, shall
be afforded the opportunity to speak to the board on matters relevant to such
termination. The employee shall have the right to counsel and to have a
court reporter record his or her statement, both at the expense of the
employee. Thereafter, the board shall determine whether such termination
shall be effectuated.

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(b) Regardless of whether or not the employee elects to have a conference, if
the board votes to terminate the employee, the superintendent shall give
notice to the employee of the board's action by providing notice by personal
service, by the United States registered or certified mail with postage paid
thereon to the employee's last known address, or by private mail carrier for
overnight delivery, signature required, with postage paid thereon to the
employee's last known address within 10 days of the board's action. Such
notice shall be in writing and shall inform the employee of the right to
contest the action by filing with the superintendent a written notice of
contest of the action within 15 days of the receipt of the notice. Such contest
shall be taken by filing a written notice of contest with the superintendent
within 15 days after receipt of the notice of the decision of the employing
board. If the contest is not timely taken, the board's decision shall be final.
The employing board may suspend the employee with pay if the action is
taken. However, no pay shall be provided in cases involving moral turpitude.
If the board's action is overturned on appeal, pay shall be reinstated. No
termination shall be effected until the time for filing notice of contest has
expired and, if notice of contest is filed, not until the hearing officer has
issued an opinion.

(Acts 1983, No. 83-644, p. 1004, §4; Act 2004-567, §1.)

Section 36-26-104

Termination of employment - Hearing officer; hearing; appeal.

(a) If notice of contest is filed pursuant to Section 36-26-103, the hearing

officer shall be selected as provided in subsection (b) of Section 36-26-114.
Upon selection, the hearing officer shall immediately cause notice to be
given to the parties of the date and time for a hearing, which date shall be no
less than 30 days and no more than 60 days following the appointment of the
hearing officer. The parties shall agree as to the location of the hearing and,
if the parties are unable to agree, the hearing officer shall determine the
location within the jurisdiction of the employing board. No less than 30 days
before such date, the parties shall submit to the hearing officer, with a copy
to the opposing party, documents supportive of, or in contravention to, the
action, as well as a list of witnesses to be called at such hearing; provided,
however, that such witness list or documentary submissions may be
amended at any time prior to five days before such hearing. The State
Department of Education shall bear the expense of having a court reporter

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present at such hearing. The hearing officer shall have power to administer
oaths and issue subpoenas to compel the attendance of witnesses and
production of papers necessary as evidence and/or information in connection
with the dispute or claim. If requested, the hearing officer shall issue
subpoenas for witnesses to testify at the hearing, under oath, either in
support of the charges or on behalf of the employee. The hearing officer
shall conduct a de novo hearing and shall render a decision based on the
evidence and/or information submitted to the hearing officer. The hearing
officer shall determine which of the following actions should be taken
relative to the employee: Termination of the employee, a suspension of the
employee, with or without pay, a reprimand, other disciplinary action, or no
action against the employee. The hearing officer shall render a written
decision, with findings of fact and conclusions of law, within 30 days after
its hearing. Expenses of the hearing officer shall be borne by the State
Department of Education.

(b) All appeals of a final decision of the hearing officer shall lie with the
Alabama Court of Civil Appeals. An appeal by either party shall be
perfected by filing a written notice of appeal with the Clerk of the Court of
Civil Appeals within 21 days after the receipt of the final written decision of
the hearing officer. Failure to file a timely notice of appeal shall render the
decision of the hearing officer final, in which case the employing board shall
take possession of the record of the hearing and shall maintain such record
for a period of three years. The Court of Civil Appeals shall have discretion
to refuse to hear appeals of final decisions of a hearing officer pursuant to
this article. Review by the Court of Civil Appeals pursuant to this article is
not a matter of right, but of judicial discretion, and an appeal may be granted
only when the court determines there are special and important reasons for
granting the appeal. Within 30 days after an appeal is granted, the hearing
officer shall transmit the record to the clerk, with the appealing party bearing
the costs associated with the preparation and transmission of the record and
transcript of the hearing. The decision of the hearing officer shall be
affirmed on appeal unless the Court of Civil Appeals finds the decision
arbitrary and capricious, in which case the court may order that the parties
conduct another hearing consistent with the procedures of this article.

(Acts 1983, No. 83-644, p. 1004, §5; Act 2004-567, §1.)

Because of the substantial changes wrought by Act 2004-567, cases

5
decided under the Fair Dismissal Act as originally enacted must be read with

care. The six-step procedure for terminating an employee, outlined in Bolton,

supra, 514 So 2d @ 823, has become a ten-step procedure:

Step 1—The superintendent’s notice to the employing board and the

employee of the superintendent's intention to recommend a termination. §
36-26-103(a)

Step 2—The employee’s optional request for a pre-termination

conference with the board. § 36-26-103(a)

Step 3—The optional pre-termination conference between the employee

and the board. § 36-26-103(a)

Step 4—The board’s determination to terminate the employee. § 36-26-

103(a)

Step 5—The superintendent’s notice to the employee of the board’s

action. § 36-26-103(b)

Step 6—The employee’s notice of contest to the superintendent. § 36-26-

103(b)

Step 7—The selection of a hearing officer. § 36-26-114(b)

Step 8—The proceeding before the hearing officer. § 36-26-104(a)

Step 9—The hearing officer’s decision. § 36-26-104(a)

Step 10—The discretionary appeal to the Court of Civil Appeals. § 36-

26-104(b)

Other differences in the Fair Dismissal Act as originally passed and as amended

will be noted as the case requires.

6
 III. Background

[MP] (“Employee”) was employed by Bishop State Community College

(“College” or “Employer”). In a letter to the Employee, dated August 1, 2007,

the College’s interim president wrote in pertinent part:

The purpose of this correspondence is to inform you (1) that I intend to

terminate your employment with Bishop State Community College
(Bishop State), and (2) that I intend to terminate your compensation on
the basis of moral turpitude in accordance with the Fair Dismissal Act.
This notice is provided in accordance with the requirements of Code of
Alabama (1975), § 36-26-103 (1975).

The termination of your employment with Bishop State is proposed for

the following reasons as authorized by Code of Alabama (1975), § 36-26-
102: failure to perform your duties in a satisfactory manner, immorality,
and/or other good and just causes. The facts which support my decision
to terminate your employment with Bishop State are as follows:

You committed financial improprieties in relation to the receiving

of financial aid, to falsifying your grade in a course, and to
falsifying an employee and dependent tuition waiver.

The Fair Dismissal Act requires that pay be provided to employees until a
hearing officer affirms the decision to terminate his or her employment,
except in cases involving moral turpitude. Ala. Code § 36-26-103(b).
Your conduct described above which forms the basis of my intent to
terminate your employment with Bishop State rises to the level of moral
turpitude. Therefore, I intend to terminate your compensation from
Bishop State. Motion Exhibit A; emphasis in original.

On November 8, 2007, following the pre-termination conference between

Employee and Employer, described in § 36-26-103(a) and held on August 29,

2007, the College’s interim president wrote the Employee:

7
 After much careful deliberation, you are hereby given notice of my
decision to terminate your employment and compensation from Bishop
State Community College (“Bishop State”) for the reasons set forth in my
August 1, 2007 letter to you.

Pursuant to the Fair Dismissal Act, Ala. Code §§ 36-26-100 et seq., you
have the right to contest my decision to terminate your employment by
filing, with me, a written notice of contest of my decision within fifteen
days after you receive this notice. If you do not contest the decision
within fifteen days after you receive this notice, my decision shall be
final. In the event a notice of contest is filed, a hearing officer shall be
selected as provided in subsection (b) of Code of Alabama § 36-26-114.
The contest shall be heard as provided in Code of Alabama § 36-26-104.

As I previously informed you in my letter to you dated August 1, 2007, I

believe that your actions which form the basis of my decision to
terminate your employment with Bishop State rise to the level of moral
turpitude. Therefore, your compensation from Bishop State will be
discontinued, effective as of the date of this letter.

Bishop State’s payroll records reflect that you currently have the
following non-tax items deducted from your paycheck each pay period:
… (9) PEEHIP2 ($194.00) … In addition, Bishop State currently pays
$775.00 each pay period for your PEEHIP insurance over and above your
$194.00 contribution each period. …

Therefore, if you wish to maintain your PEEHIP insurance coverage, you

will have to make arrangements to provide the necessary funds to Bishop
State so that this benefit can be maintained on your behalf while you
remain on unpaid administrative leave. … Motion Exhibit B; emphasis in
original.

The Employee timely contested the Employer’s decision, and the case is before

the hearing officer for a de novo hearing. Ala Code § 36-26-104(a).

2
Public Education Employees’ Health Insurance Plan, www.rsa.state.al.us/PEEHIP/peehip.htm.

8
 IV. Procedural Considerations

Neither the Fair Dismissal Act, nor the Alabama Arbitration Act (Ala

Code §§ 6-6-1—6-6-16), nor the Federal Arbitration Act (9 USC §§ 1 et seq.),

nor FMCS rules specify the procedures to be followed in hearings under the Fair

Dismissal Act. Inasmuch as the Employer is a state agency and thus bound by

the due process clauses of both the US and Alabama Constitutions, some

reasonable rules must apply. See generally the Alabama Supreme Court’s

discussion of due process requirements in City of Orange Beach v Duggan, 788

So 2d 146, 149-154 (Ala 2000), citing Cleveland Board of Education v

Loudermill, 470 US 532 (1985).

Moreover, the proceedings before the hearing officer afford an employee

the only opportunity for an evidentiary hearing that the employee will ever have,

as a discretionary appeal to the Alabama Court of Civil Appeals is the sole route

of redress from the hearing officer’s determination. Ala Code § 36-26-104(b)

(“The Court of Civil Appeals shall have discretion to refuse to hear appeals of

final decisions of a hearing officer pursuant to this article.”). Thus the need

exists for reasonable procedural rules.

The Alabama Rules of Civil Procedure (“ARCP”) state:

These rules are not applicable to any proceeding in which the

adjudication of the controversy is by any selected individual or
individuals … ARCP 81(b).

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In contrast the Federal Rules of Civil Procedure (“FRCP”), upon which the

Alabama Rules are based, Ex parte Christopher Deramus, 882 So 2d 875, 877

(Ala 2002), provide:

These rules, to the extent applicable, govern proceedings under the

following laws, except as these laws provide other procedures: … 9
U.S.C., relating to arbitration … FRCP 81(a)(6).

Despite the fact that application of the Alabama Rules to this case is not

mandatory, in the absence of specific direction as to the procedural rules to be

followed, the hearing officer nevertheless looks to those Rules and to the

Federal Rules for guidance, in an effort to ensure that both parties are afforded

due process, an issue specifically raised in the Employee’s Motion. As

discussed infra, several procedural issues arise in this case.

In her Motion:

(1) “The employee requests that the arbitrator [sic] issue an order
reinstating Ms. [P]’s pay until the charges against [P] are heard and
determined.”

(2) “The employee also requests that Bishop State reimburse Ms. [P]
for the medical expenses paid directly by Ms. [P] as a result of the
employer canceling her health insurance and such other normal
and reasonable costs incurred by Ms. [P] as the result of the
termination of her pay.”

(3) “The employee further requests that Bishop State be directed to

provide Ms. [P] with the statutorily mandated ‘short and plain
statement of the facts showing that the termination is taken for one
or more of the reasons listed in § 36-26-102’ at a meaningful time
before her matter is set for hearing.”

10
Motion @ 11; parsing and numbering by hearing officer.

While the Fair Dismissal Act does not provide for motions, since the

proceedings before the hearing officer are in lieu of an aggrieved employee’s

right to press claims in a court of law, it seems reasonable to afford the

employee a relatively full panoply of remedies in these alternative hearings.

Because ARCP 7(b)(1) and FRCP 7(b)(1) expressly authorize motion practice

and because the Employee might be harmed by the delay in hearing her case,3

the hearing officer will entertain her Motion.

V. A Short And Plain Statement Of The Facts

Ala Code § 36-26-103(a) provides that the notice of intention to

recommend termination “shall contain a short and plain statement of the facts

showing that the termination is taken for one or more of the reasons listed in

Section 36-26-102 …” (emphasis supplied). This language parallels that found

in ARCP 8(a)(1) and FRCP 8(a)(2) (“a short and plain statement of the claim

showing that the pleader is entitled to relief”). The Employee’s Motion hinges in

large part upon the meaning of the italicized portion of the statute.

Prior to amendment by Section 1 of Act 2004-567, Ala Code § 36-26-

103 read in pertinent part:

3
In an email dated March 12, 2008, Employee counsel asserted, “[M]y client was released from the hospital
today. She is under a great deal of stress due to her lack of health insurance.”
Although the Fair Dismissal Act ostensibly provides a relatively fast track to hearing, College counsel, in an
email March 5, 2008, stated, “As a practical matter, I have not participated in one of these proceedings (and I have
done a good many of them) that was completed within 60 days of the hearing officer's appointment.”

11
 The employing board of education shall give notice in writing to the
employee, stating in detail the reasons for the proposed termination, the
facts upon which such reasons are based, and giving notice of the
employee’s rights to a hearing as set out herein. 4 (Emphasis supplied.)

One of the stated purposes of Act 2004-567 was “to streamline the contest and

appeal processes for employees”. In particular, the facts-in-detail requirement

was reduced to “a short and plain statement of the facts”.

The length of the requisite statement of facts (“short”) clearly depends

upon context; a 6' player in the National Basketball Association is short,

whereas in comparison to the general population, he is not. Analogously, if the

alleged misconduct is simple, a brief statement suffices. However, if the

misconduct is complex, then several paragraphs may be required to state the

facts in an informative way. In any event, nothing prevents an employer from

furnishing an employee with a detailed statement of facts, and that may be the

more prudent policy, even under the amended statute.

The meaning of “plain” is easier to explicate: “conveying the meaning

clearly and simply; easily understood: plain talk.”5 In this legal context, “a …

plain statement of the facts” surely means one not consisting solely of

conclusory words, terms, or phrases. It is by these short and plain standards that

the Employer’s statement of facts must be judged.

4
http://arc-sos.state.al.us/PAC/SOSACPDF.001/A0003223.PDF @ 1.
5
"plain." Dictionary.com Unabridged (v 1.1). Random House, Inc. 29 Mar. 2008. <Dictionary.com
http://dictionary.reference.com/browse/plain>.

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 The only facts stated in the Employer’s notice to the Employee are these:

You committed financial improprieties in relation to the receiving of

financial aid, to falsifying your grade in a course, and to falsifying an
employee and dependent tuition waiver. Motion Exhibit A.

The alleged “financial improprieties” are not specified; there is no hint as to

when, where, or how they were committed; and their relationship to the

financial aid, course grade, and tuition waiver is not explained. The phrase

“financial improprieties” is general and conclusory without more, and

“falsifying” stands as a bare allegation sans supporting facts.

The amount of financial aid is not quantified; it could be de minimis. The

Employee may have taken numerous courses; the particular one at issue is not

identified. The erroneous grade may be the result of faulty memory or even a

typographical error, as may the mistakes regarding tuition waiver. The nexus

between the financial improprieties and aid, grade, and tuition may be so

tenuous as to preclude causation.

The Employer’s statement of facts concededly is “short”, but it is hardly

“plain”. Not even the hearing officer can tell from the Employer’s brief

description what the Employee supposedly did or why the Employer is

convinced of her culpability. The Employer’s Response provides little

additional information about events.

In truth, the Employer’s statement of facts may be far too short. In urging

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that the hearing officer act now upon the Motion, Employee counsel writes:

In its e-mail to the arbitrator [sic; the hearing officer was not appointed
until February 4, 2008] dated Wednesday, October 31, 2007, Bishop has
stated that relevant grand jury proceedings about [P], and 24 or so other
Bishop employees are not likely to be concluded until early 2008, after
which Bishop will “re-evaluate” [P]’s termination proposal. Motion @
10-11.

In seeming agreement, Employer counsel states:

Several other employees have been arrested and charged with Theft of
Property in connection with the Financial Aid fraud at Bishop State. At
this time Bishop State has taken steps to terminate the pay of other
employees on the basis of moral turpitude in the FDA appeals
proceedings involving these employees. Employer Response @ 4, fn 1.

If the Employee is accused of taking part in a larger conspiracy or scheme, then

that needs to be explained factually. As it stands, the Employer’s statement of

facts did not meet the standards of the Fair Dismissal Act.

The Employer insists that the Employee received sufficient information

to enable her and her counsel to prepare a defense:

[P] has been represented by counsel from the outset of these proceedings.
If [P] had any questions as to the reasons for her termination the same
could have been raised at the meeting with Dr. Lowe on August 29, 2007.
Response @ 12.

But the opportunity to ask questions at the pre-termination conference is not

what the statute provides (“the employee, or his or her representative, shall be

afforded the opportunity to speak to the board”), much less what it requires.

Rather, the Fair Dismissal Act requires written notice well in advance of the

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conference. The Employer describes the Act’s requirements in these words:

In the Fair Dismissal Act, the legislature has set detailed and exacting
requirements and procedures for the sole purpose of insuring that
employees such as [P] receive due process. Response @ 9; emphasis
supplied.

In this case, the Act’s standards were not met.

Were it not for the fact that the Employee requests a new statement of

facts, the hearing officer might be forced to make a no-action ruling from

among the remedies listed in Ala Code § 36-26-104(a):

The hearing officer shall determine which of the following actions should
be taken relative to the employee: Termination of the employee, a
suspension of the employee, with or without pay, a reprimand, other
disciplinary action, or no action against the employee.

However, the Employee does make such a request, which the hearing officer

treats as being in the nature of a motion for a more definite statement under

ARCP and FRCP 12(e), so as not to begin any disciplinary proceedings anew.

In Bolton, supra, the Alabama Supreme Court held:

As with any statute, “reasonableness” must be read into the provisions of

the “Fair Dismissal Act.” Despite the poor drafting and the resulting
inconsistencies, the Act was not intended to allow an employing school
board to maintain a termination proceeding for an indefinite length of
time by “beginning” the dismissal procedure through multiple re-votes
and re-notices. 514 So 2d @ 824.

While § -104 does not prescribe any specific time period within which
the Board must issue the decision to dismiss, after the employee has
either given notice of an intent to contest or has failed to give such a
notice by the 15th day, we hold that the Board's re-notice on the same
grounds was an abandonment of its original notice of intent to terminate.

15
 It is thus unnecessary to determine the time period within which the
Board could have acted following Bolton's first notice of intent to contest.
This would not prohibit the Board, of course, from initiating termination
proceedings against Bolton for failure to perform his duties in a
satisfactory manner, neglect of duty, insubordination, immorality, or
“other good and just causes” occurring after September 11, 1985. The
Board would be estopped to re-notice Bolton only for those acts or
omissions that had occurred prior to the meeting of the Board at which
the Board voted to give Bolton the notice of a proposed termination. Id.;
emphasis in original.

But for the Employee’s request for a more definite statement, Bolton

might dictate that the case against her be dismissed. See also Allen v Bessemer

State Technical College, 703 So 2d 383, 386 (Ala Civ App 1997), in which the

court ruled:

Because Allen timely requested but was never given a pretermination

hearing on his proposed dismissal, his termination was not in accord with
the Fair Dismissal Act. Allen is entitled to be reinstated with back pay
until a hearing before the employing entity is conducted and a decision is
made on his dismissal. (Emphasis supplied.)

Within fifteen (15) days of the date of this opinion, the Employer must

serve a revised statement of facts upon the Employee’s counsel and the hearing

officer. The Employer’s original notice of August 1, 2007 (Mot Ex A),

identifies both its chancellor and vice chancellor & general counsel as attorneys,

and the Employer retains outside counsel as well, so the task should be an easy

one.

IV. Moral Turpitude

The hearing officer agrees with the Employee’s argument that, without

16
first complying with the notice provisions of Ala Code § 36-26-103(a), the

Employer cannot invoke the provision of § 36-26-103(b) that mandates an

immediate suspension of pay “in cases involving moral turpitude”. Motion @

10-11. Inasmuch as the hearing officer has concluded that the Employer’s notice

was insufficient to authorize termination of the Employee, a fortiori it was

insufficient to make out a case of moral turpitude against her.

The College’s interim president admits:

The Fair Dismissal Act requires that pay be provided to employees until a
hearing officer affirms the decision to terminate his or her employment,
except in cases involving moral turpitude. Ala. Code § 36-26-103(b).
Mot Ex A; emphasis in original.

As no case of moral turpitude has been made, the language of § 36-26-104(a)

(“a suspension of the employee, with or without pay, … [or] other disciplinary

action”) is sufficiently flexible to authorize the hearing officer to make a final

award of back pay for improper suspension of pay, even if he ultimately should

uphold the Employee’s termination of employment.

There is no good reason to await the evidentiary hearing, as the

Employee undoubtedly is suffering from the deprivation of income and benefits.

An interim award is consistent with the purpose of the Fair Dismissal Act, as

articulated by the court in Gainous v Tibbets, 672 So 2d 800, 803 (Ala Civ App

1995):

The purpose of the FDA “is to provide non-teacher employees a fair and

17
 swift resolution of proposed employment terminations,” and the FDA
should be liberally construed to effectuate its purpose. Bolton v. Board of
School Commissioners of Mobile County, 514 So.2d 820, 824
(Ala.1987).

See also Saulsberry v Wilcox County Board of Education, 641 So 2d 283, 286

(Ala Civ App 1993).

The Employee must be put back on the payroll with benefits and paid

back pay for the period during which her pay erroneously was suspended. As

was said in Ex parte Birmingham Board of Education, 601 So 2d 93, 97 (Ala

1992):

Rather, the clear implication of the provisions of the Act is that the
legislature intended that justice be accomplished by requiring an award of
“back pay” to the employee for the time from the Board's decision to
terminate her until the completion of the review process, if the review
panel determines that the initial decision of the Board was erroneous.
(According to the Board, without question, the review panel may order
back pay from the date of termination to the date of the review panel's
decision if the review panel finds that the Board's decision to terminate
was unwarranted or that the Board failed to comply with the Act. That is
correct.)

See also Allen, supra. A final adjudication of the Employee’s rights will be

made following the evidentiary hearing in this case.

The matter of reimbursement of the Employee for medical expenses and

other losses resulting from the Employer’s improper suspension of her pay is

too complicated to be resolved on motion. Indeed, the Employer asserts that

there is no authority for such an award:

18
 In her request for relief, [P] asks for reimbursement of medical expenses
incurred subsequent to Bishop States termination of her pay. No authority
exists under the Fair Dismissal Act for such relief. The clear language of
the Act (36-26-103(b)) provides that if the Hearing Officer disagrees with
the decision to terminate the employee’s pay, “pay shall be reinstated”. In
consequence, Bishop State respectfully submits that the Hearing Officer
is without authority to order reimbursement of medical expenses under
the Fair Dismissal Act. Response @ 13.

Although agreeing that the issue is not perfectly clear, to the hearing officer,

the better result appears to be to allow recovery in this contest.

Section 13 of Article 1 of the Alabama Constitution provides:

That all courts shall be open; and that every person, for any injury
done him, in his lands, goods, person, or reputation, shall have a
remedy by due process of law; and right and justice shall be
administered without sale, denial, or delay. (Emphasis supplied.)

If the Employee cannot be made whole in this proceeding, then presumably

she could sue for damages in court. Were she to do so, she might sue not

only the College, but also the officials involved in the suspension of her pay.

Thus, there is some protection for College officials in resolving her claims

here and now.

Moreover, “pay” is not defined in the statute; some courts have given the

term a broad interpretation. For example, in Borough of Beaver v Liston, 76 Pa

Commw 619, 623; 464 A2d 679, 681-682 (1983), the court explained:

"Pay" is a broad, general term lacking particular meaning and

encompassing myriad forms of remuneration paid in exchange for
services. Black's Law Dictionary 1016 (5th ed. 1979) defines the term as
embracing compensation, wages, salary, commissions and fees.

19
 Webster's Third New International Dictionary 1659 (1966) characterizes
"pay" as including wages, salary and remuneration and as "money paid in
addition to basic wages or salary." (Emphasis added.)

Under such a broad definition, “pay” could include the $775.00 that the College

should have contributed each pay period toward the Employee’s health

insurance (Mot Ex B), or her lost health benefits.

To the hearing officer, it would undermine the purposes of Act 2004-567

(“to streamline the contest and appeal processes”) and of the State Constitution

itself (“without … delay”) to require the Employee to institute a separate action

for reimbursement. Gainous, supra (“fair and swift”). The College asserts that

“[t]he Alabama Legislature has determined the rights due employees such as

[P]. It’s called the Fair Dismissal Act.” Response @ 9. If the Act is to be

inclusive of an employee’s rights and remedies, then it must be interpreted to

include the remedy which the Employee seeks here.

The hearing officer does not read the statutory language quoted in the

Response (“pay shall be reinstated”) as referring to him; rather, it refers to the

Court of Civil Appeals. As used in the Fair Dismissal Act, the proceeding

before the hearing officer is the “contest”. §§ 36-26-103(b) & 104(a). Any

“appeal” is to the Court of Civil Appeals. §§ 36-26-103(b) & 104(b). See also

Act 2004-567 (“contest and appeal”). The hearing officer’s authority is specified

in § 36-26-104(a), with sufficient breadth to encompass the power to make an

20
employee whole. As the College concedes:

The Alabama Fair Dismissal Act is a comprehensive legislative scheme

designed for the purpose of assuring due process to employees covered
by the act in connection with disciplinary decisions. Response @ 13;
emphasis supplied.

Within fifteen (15) days of the date of this opinion, the Employee is to

serve upon the Employer and the hearing officer an itemized list of her claims

for reimbursement, and the parties then are to attempt to negotiate a settlement

of those claims. All that remain unsettled at the time of the hearing are to be

addressed at the hearing. This ruling is without prejudice to the Employer to

raise and substantiate its argument anew at the hearing and in final briefs.

The issues surrounding “moral turpitude” effectively are moot at this

point, as the Employer will not have a second bite at the apple by suspending

the Employee’s pay on the basis of its revised statement of facts. Bolton, supra.

However, if the Employer wishes to reallege “moral turpitude” in its revised

statement, it is free to do so, but it should follow the guidance found in

Chapman v Gooden, 2007 Ala LEXIS 98, 2007 WL 1576103 (Ala). Although

Chapman was a voting rights case concerned with a “person convicted of a

felony involving moral turpitude”, its discussion of “moral turpitude” may be

the most extensive currently available.6

6
The Hon. Robert S. Vance, Jr., Jefferson County Circuit Judge, the trial judge, graciously emailed a copy of his
thoughtful opinion to the hearing officer, Gooden v Worley, No CV-2005-5778-RSV. Judge Vance deserves
enormous credit for effecting a reform of Alabama’s voter registration procedures, and his thorough analysis of

21
 The Employer must state facts which support an allegation of moral

turpitude; the interim president’s mere belief (“I believe”, Mot Ex B) will not

suffice. It might be wise to follow ARCP and FRCP 9(b), which require that

“[i]n alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake.” While the Fair Dismissal Act is

silent with respect to the standard of proof to be applied in the hearing, an

accusation of moral turpitude may require a higher standard. Elkouri & Elkouri,

How Arbitration Works (ABA/BNA 6th ed 2003) @ 951-952.

V. Summary And Scheduling

For all the foregoing reasons, the Employee’s Motion is granted in part

and denied in part. The hearing officer’s orders are summarized and the

schedule for the case is set as follows:

(I) The Employer forthwith shall put the Employee back on its payroll with

benefits and give her back pay for the period during which her pay has

been suspended.

(II) Within fifteen (15) days of the date of this opinion, the Employer shall

serve upon the Employee’s counsel and the hearing officer a revised

statement of the facts showing that the termination is taken for one or

more of the reasons listed in Section 36-26-102.

“moral turpitude” remains instructive.

22
(III) Within fifteen (15) days of the date of this opinion, the Employee shall

serve upon the Employer and the hearing officer an itemized list of her

claims for reimbursement, and the parties then are to attempt to negotiate

a settlement of those claims.

(IV) The hearing is scheduled for June 2, 2008, unless the parties agree

otherwise.

(V) Unless the parties agree otherwise, on or before May 1, 2008, the parties

shall submit to the hearing officer, with a copy to the opposing party,

documents supportive of, or in contravention to, the action, as well as a

list of witnesses to be called at such hearing.

The hearing officer’s findings of fact and conclusions of law are embodied in

this written opinion, although not expressly designated as such.

_____________/s/_____________
E. Frank Cornelius, PhD, JD
Hearing Officer
Dated March 31, 2008

23
 STATE OF ALABAMA
Fair Dismissal Act Hearing

[MP],
Employee,

v FMCS No. 08-00952

BISHOP STATE COMMUNITY COLLEGE,

Employer.
_______________________________________/

OPINION OF THE HEARING OFFICER

ON EMPLOYER’S MOTION TO RECONSIDER

May 1, 2008

For the Employee: For the Employer:

A. J. Cooper David M. O’Brien

Cooper Law, PC Jeffrey G. Miller
21 S Section Street Sirote & Permutt, PC
Fairhope, AL 36532 1 St. Louis Center, Suite 1000
Mobile, AL 36602
Raymond Bell, Jr.
Bell & Adams
182 St. Francis Street, Suite 300
Mobile, AL 36602

24
 I. The Procedural Posture Of The Case

On February 2, 2008, the undersigned was appointed as hearing officer in

this case under the Alabama Fair Dismissal Act (“FDA”), Ala Code §§ 36-26-

100 et seq., between Bishop State Community College (“Employer” or

“College”) and its employee, [MP] (“Employee”). On March 3, 2008,

Employee counsel served the Employee’s Motion to Reinstate Pay for Bishop’s

Failure to Provide Due Process (“Employee Motion”). On March 26, 2008,

Employer counsel served the Response of Bishop State Community College to

Employee’s Motion to Reinstate Pay (“Employer Response”). On March 31,

2008, the hearing officer issued the Opinion of the Hearing Officer on

Employee’s Motion to Reinstate Pay (“Opinion on Employee Motion” or

simply “OEEM”).7

The hearing officer granted the Employee Motion in part and denied it in

part, summarizing his orders and setting the schedule for the case as follows:

(VI) The Employer forthwith shall put the Employee back on its payroll
with benefits and give her back pay for the period during which
her pay has been suspended.

(VII) Within fifteen (15) days of the date of this opinion, the Employer
shall serve upon the Employee’s counsel and the hearing officer a
revised statement of the facts showing that the termination is taken
for one or more of the reasons listed in Section 36-26-102.

7
Proceedings were, therefore, commenced “no less than 30 days and no more than 60 days following the
appointment of the hearing officer,” as required by Ala Code § 36-26-104(a).

25
 (VIII) Within fifteen (15) days of the date of this opinion, the Employee
shall serve upon the Employer and the hearing officer an itemized
list of her claims for reimbursement, and the parties then are to
attempt to negotiate a settlement of those claims.

(IX) The hearing is scheduled for June 2, 2008, unless the parties agree
otherwise.

(X) Unless the parties agree otherwise, on or before May 1, 2008, the
parties shall submit to the hearing officer, with a copy to the
opposing party, documents supportive of, or in contravention to,
the action, as well as a list of witnesses to be called at such
hearing. OEEM @ 22-23.

On April 14, 2008, Employee counsel sent a letter to Employer counsel,

listing $29,932.57 in claims by the Employee for reimbursement, largely for

medical expenses incurred as a result of her loss of insurance coverage. On

April 15, 2008, Employer counsel served a Motion to Reconsider (“Employer

Motion”), contending that the College’s “short and plain statement of the facts”,

You committed financial improprieties in relation to the receiving of

financial aid, to falsifying your grade in a course, and to falsifying an
employee and dependent tuition waiver.

suffices to satisfy the notice requirements of Ala Code § 36-26-103(a). The

College also contends that it cannot be required to reimburse the Employee for

the benefits that she has lost as a result of the suspension of her pay. The

College has yet to put the Employee back on the payroll or pay her back pay, as

ordered by the hearing officer in his Opinion on Employee Motion.

The Employee’s Response to College’s Motion to Reconsider was served

26
April 29, 2008, without exhibits. A revised version with exhibits (“Employee

Response”) was served May 1, 2008; the exhibits are cataloged infra.

It is important to bear in mind that the notice provided by Ala Code §

36-26-103(a) is the employer’s “complaint” against the employee, and the

hearing to which an employee is entitled under § 36-26-104(a) is the

employee’s “trial” on the charges set forth in the notice. The only statutorily

mandated supplement to the notice is the exchange of “documents

supportive of, or in contravention to, the action, as well as a list of witnesses

to be called at such hearing”, under § 36-26-104(a). At stake in these

proceedings is an employee’s livelihood.

Conspicuously absent from the Employer Motion is any judicial authority

in support of its position, despite the facts that the “short and plain” language of

the FDA is taken directly from the pleading standards of ARCP 8(a)(1), which

in turn is taken from FRCP 8(a)(2), and numerous cases have been decided

under those rules. OEEM @ 11. The same language is found also in § 16-24-

9(a) of the Teacher Tenure Act, Ala Code §§ 16-24-1 et seq., which parallels the

FDA, yet the College cites not a single court decision to buttresses its argument.

Because the College offers no compelling reason why the OEEM should be

changed, the Employer Motion is denied, as more particularly explained below.

27
 II. What The Constitution Requires

In Wilson v Madison County Board of Education, 2007 Ala LEXIS 236;

27 IER Cas (BNA) 228; 2007 WL 3238718, the Alabama Supreme Court held

that a hearing officer in a Teacher Tenure Act case “must apply Alabama law as

set forth in the new Act and court decisions interpreting the new Act and

provisions of the old Act that remain unchanged by the 2004 amendments.”

2007 Ala LEXIS @ *21.

While the instant case arises under the Fair Dismissal Act,

To interpret the Fair Dismissal Act, the courts have referred to the
Teacher Tenure Act and to decisions applying that Act, in an effort to
define and clarify the provisions of the Fair Dismissal Act. See e.g.,
Ledbetter v. Jackson County Bd. of Educ., 508 So. 2d 244 (Ala. 1987);
Ike v. Board of School Comm'rs of Mobile County, supra; Uwakolam v.
Huntsville City Bd. of Educ., 554 So. 2d 1036 (Ala. Civ. App. 1989);
Hughes v. Britnell, 554 So. 2d 1041 (Ala. Civ. App. 1989).

Athens State College v Ruth, 795 So 2d 703, 706 (Ala Civ App 1999). The

hearing officer therefore looks to Alabama law, including cases decided under

the Teacher Tenure Act. The US Constitution is, of course, an integral part of

Alabama law. Const, Art VI, Clause 2 (Supremacy Clause).

Frizzell v Autauga County Board of Education, 972 F Supp 564 (MD Ala

1997), was a due process case brought under 42 USC § 1983 and is cited by the

College in Employer Response @ 10. There the federal district court stated:

Defendants do not dispute that under the Alabama Teacher Tenure Act,
Ala. Code § 16-24 et seq., plaintiff has a property interest in his continued

28
 employment. See Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed.
2d 548, 92 S. Ct. 2701 (1972) (holding that state law determines
existence of property interest). In Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) the Supreme
Court held that an employee's property interest in continued employment
cannot be deprived without appropriate procedural safeguards. Id. at 541.

972 F Supp @ 565. In the instant case, the College does not dispute that the

Employee has a property interest in her continued pay and employment. Ala

Code § 36-26-102.

In accord that the minimum process due is that afforded by the US

Constitution is Wells v Dallas Independent School District, 793 F2d 679, 682

(5th Cir 1986), a case mentioned in the Employer Response @ 10:

A public employee with a property interest in his continued employment

is entitled under the Fourteenth Amendment to the following minimum
due process rights in connection with termination of his services: (1) to
be advised of the cause of the termination [or of the charges to be heard]
in sufficient detail to permit him to show any error that may exist; (2) to
be advised of [if he does not himself hear] the names and nature of the
testimony of the witnesses against him; (3) to be afforded a meaningful
opportunity to be heard in his own defense within a reasonable time and
(4) before a tribunal that possesses some expertise and an apparent
impartiality toward the charges. Levitt v. Univ. of Texas at El Paso, 759
F.2d 1224, 1228 (5th Cir. 1985). If a state or local government demands
that its officials afford a more elaborate process than the Constitution
requires, its demands alone cannot expand the boundaries of what
concerns us here: federal constitutional due process. Eguia v. Tompkins,
756 F.2d 1130, 1137 (5th Cir. 1985). See also Levitt v. Univ. of Texas,
supra, 759 F.2d at 1230.

Thus the threshold test is whether the College’s notice to the Employee, issued

pursuant to the “short and plain statement of the facts” requirement of Ala Code

29
§ 36-26-103(a), satisfies the notice requirements of the US Constitution. The

hearing officer again concludes that it does not.

There is ample case law describing what notice is and is not sufficient. In

OEEM @ 12, the hearing officer observed that “if the alleged misconduct is

simple, a brief statement suffices.” Birmingham Board of Education v Holifield,

604 So 2d 418 (Ala Civ App 1990), is an example of a simple case:

In September 1988, pursuant to the act, the employee received written

notice from the board of the proposed termination of his employment.
The grounds for the proposed termination were insubordination and good
and just cause. The letter further stated that the proposed action was
based upon the following conduct: "Possession of a gun at Pratt
Elementary School on July 19, 1988, in violation of School Board Policy
# 3131." 604 So 2d @ 418-419; emphasis supplied.

The single underlined statement clearly explained what the alleged act was

(“Possession of a gun”), where it was committed (“at Pratt Elementary

School”), when it was committed (“on July 19, 1988”), and why it was wrong

(“in violation of School Board Policy # 3131”). The College’s notice omits

virtually all such factual information.

Wells v Dallas Independent School District, 793 F2d 679 (5th Cir 1986),

mentioned in the Employer Response @ 10, is more complex:

We are persuaded that material issues of fact did exist as to whether

Wells received notice of the cause of his discharge in sufficient detail to
enable him to show any errors. Wells received a letter dated November
14, 1979, notifying him of the Administrative Council hearing. The letter
further provided:

30
 At the hearing the Administration will present evidence with
regard to the following matters and charges forming the basis of
your termination:

1. Negligence and misconduct in the management and supervision

of the activities and affairs of the department under your control.
2. Insubordination and disobedience in participating in the
execution of a management contract with the Foundation for
Quality Education in direct opposition and defiance of orders of
the General Superintendent.
3. Negligence and mismanagement by you in your agreement to
terms and conditions and execution of documents related to a
pledge of retainage by Maxwell Construction Company to the
Merchant's State Bank.
4. Approval by you and persons under your direct supervision and
control of payments for charges that you knew or should have
known were unreasonable and excessive on various construction
and repair jobs performed throughout the District.
5. Failure to ensure adequate job site supervision either by DISD
staff or outside architects and engineers under contract to the
District for such purposes.
6. Attempting, by intimidation or other means, to require
principals and other persons at various schools and job sites to
improperly and falsely approve work performed on facilities under
their control and supervision.
7. Failing to maintain adequate procedural and other safeguards as
to competitive bidding.
8. Abuse and misuse of the emergency contract procedures and
open purchase order procedures of the District by you and those
under your supervision and control.

Charges two and three were allegations of misdeeds in specific

circumstances, permitting Wells to prepare his defense. The other
charges, however, are vague and fail to set out the specific circumstances
of the claimed misdeeds. At the very least, these vague charges permit
conflicting inferences as to whether Wells received sufficient notice of
the charges against him. The entry of summary judgment was therefore in
error. 793 F2d @ 682-683; emphasis supplied.

In the instant case, the College’s notice contains none of the specificity found

31
charges 2 and 3 in Wells.

A model example of a notice under the FDA can be found in Perine v

Kennedy, 868 So 2d 1123, 1125-1126 (Ala Civ App 2003), a case involving the

College itself as the employing entity:

"This is to notify you that it is my intention to confirm your earlier

resignation/termination of employment with Bishop State Community
College, which was effective July 13, 2000. In the event that I decide
to confirm your earlier resignation/termination of employment, you
will receive another letter from me, specifying that I will be taking
such action.

"Your termination is based upon your unapproved absence from work

for more than three (3) consecutive workdays, as I stated in my letter
to you, dated August 1, 2000, a copy of which is enclosed. The
official records of the College indicate that you were absent from
work, without approval, from July 10, 2000, until August 1, 2000.
Due to your unapproved absences, the following State Board of
Education policy, regarding Abandonment of Position, is applicable to
your employment:

"Policy # 618.01, Section 1.2 -- Any employee who is absent

from work for three (3) consecutive workdays without approval
shall be considered to have abandoned the position and to have
resigned from the employing institution.

"Under the rules of the Alabama State Board of Education, you are
entitled, subject to the terms and conditions of the Fair Dismissal Act,
to appeal my decision should I determine that your termination … will
be imposed or confirmed. If you intend to appeal the termination, if
imposed or confirmed, you must notify me in writing within fifteen
(15) days of your receipt of this letter, of your intent to contest the
termination, if imposed or confirmed. If you do not intend to appeal
the termination, [if] imposed or confirmed, you need not respond to
this letter."

The notice stated the charge, the policy violated, the dates of violation, and the

32
evidence against the employee. In the instant case, the College’s notice is short

on evidentiary facts.

In City of Orange Beach v Duggan, 788 So 2d 146, 152 (Ala 2000), the

Alabama Supreme Court cited Cleveland Board of Education v Loudermill, 470

US 532 (1985), for the following proposition:

Therefore, the Supreme Court concluded that under federal procedural-

due-process law all that is required in a pretermination hearing is “oral or
written notice of the charges against [the employee], an explanation of
the employer’s evidence, and an opportunity [for the employee] to
present his side of the story. Id. at 546. (Emphasis supplied.)

The College’s notice to the Employee was devoid of any mention of its

evidence against her. Loudermill, 470 US @ 537 (“the value of presenting

evidence prior to dismissal”).

In the Employer Response @ 10, the College quotes two cases which

tend to undermine its position. The court in Fairfield Board of Education v

Acoff, 868 So 2d 1105 (Ala Civ App 2003), quoted from Wells v Dallas Indep

Sch Dist, 793 F2d 679, 683 (5th Cir 1986):

Any charged person is constitutionally entitled once to be told what he is

charged with and on what evidence … (Emphasis supplied.)

The College’s notice to the Employee said nothing about the evidence on which

the College relied to conclude that she was guilty.

Similarly, in Frizzell v Autauga County, 972 F Supp 564, 565 (MD Ala

1997), Employer Response @ 10, the employee was informed of the charges

33
and evidence against him:

Here, the record is clear that Plaintiff received notice of the charges
against him, the names of the witnesses the board expected to call and
copies of the documents which the board intended to rely upon to support
its proposed cancellation. This is all the process Plaintiff is due under the
Federal Constitution. (Emphasis supplied; footnote omitted.)

Here the College neither provided the Employee with any documentation nor

described its evidence against her so that she and her attorney could prepare for

the pretermination conference.

The Eleventh Circuit succinctly summarized the due process

requirements in the public employment case of Clemons v Dougherty County,

Georgia, 684 F2d 1365, 1374 (11th Cir 1982):

Due process required, at least, that Clemons be advised of the charges

against him in sufficient detail fairly to enable him to show any error that
might exist, and that he be heard by an impartial tribunal. (Emphasis in
original.)

An employee and her attorney are entitled to know the evidence that they have

to counter, else they will be unable to prepare their defense. In the instant case,

the College did not notify the Employee or her counsel of the charges in

sufficient detail or refer to any evidence against her.

III. The College’s Efforts To Supplement The Notice

In OEEM @ 13, the hearing officer remarked:

The Employer’s statement of facts concededly is “short”, but it is

hardly “plain”. Not even the hearing officer can tell from the
Employer’s brief description what the Employee supposedly did or

34
 why the Employer is convinced of her culpability. The Employer’s
Response provides little additional information about events.

The Employer Motion @ 6-7 finally furnishes some putative factual

information about the College’s charges against the Employee, adduced at a

preliminary criminal hearing on August 8, 2007:

At the hearing, the State’s witness testified that Ms. [P] was being
charged with theft by deception for $1,450 in Pell Grant funds in the
Spring of 2005 and for $3,500 in Pell Grant funds in the 2005/2006
academic year. Specifically, the State’s witness testified that Ms. [P]
took a sociology class, SOC247, in Spring 2005 and received an
incomplete grade. After receiving this incomplete grade, she would
have been required to refund the Pell Grant funds but she did not do
so. Instead, she changed her grade from an incomplete to an “A.” As a
result, she was able to keep the Pell Grant funds. With respect to the
funds received in the 2005/2006 academic year, Ms. [P] represented to
Bishop State that she had a stepdaughter named Shevonda Archible
and that Ms. Archible was one of her dependents. Dependents of
Bishop State employees are eligible for tuition waivers. However, it
turns out that Ms. Archible is not Ms. [P]’s stepdaughter, and they are
not related at all. This ultimately allowed Ms. Archible to improperly
receive a Pell Grant award in 2005/2006 in the amount of
approximately $3,500.

This is precisely the type of factual information that the College was

required to provide in its notice to the Employee.8 The College appears to

confuse “a short and plain statement of the facts” with “a short and plain

statement of the allegations”, the latter of which is neither constitutionally

nor statutorily sufficient.

The College urges that the Employee and her counsel had ample

8
The hearing officer passes no judgment as to the truth or falsity of the “facts” stated; they await proof.

35
knowledge of the facts:

Further, Ms. [P] and her counsel were informed at the pre-termination
due process conference on August 29, 2007, that the specific facts
supporting the decision to terminate Ms. [P]’s employment and her
compensation on the basis of moral turpitude are the same as the facts
involved in her parallel criminal case. Prior to the pre-termination due
process conference, Ms. [P]’s preliminary hearing in her criminal case
was held on August 8, 2007. Ms. [P] and her counsel were present at
that hearing, and her counsel cross-examined the State’s witness
thoroughly. A copy of the transcript from Ms. [P]’s preliminary
criminal hearing is attached hereto as Exhibit “M.” Employer Motion
@ 6; footnotes omitted.

Unfortunately for the College, this is not what the Constitution and the

FDA require. It undoubtedly is true that a person who commits a crime has

actual knowledge of all aspects of the crime, but the accused’s own

knowledge is no substitute for the government’s notice of charges. The

purpose of the notice under Ala Code § 36-26-103(a) is to enable the

employee or her attorney “to speak to the board on matters relevant to such

termination.”

Without adequate advance notice of the charges, neither employee nor

attorney has a reasonable opportunity to prepare a rebuttal. The College

presents no evidence that, in advance of the pretermination conference, the

Employee or her counsel ever were told “that the specific facts supporting

the decision to terminate Ms. [P]’s employment and her compensation on the

basis of moral turpitude are the same as the facts involved in her parallel

36
criminal case.”

IV. The Scope Of An FDA Proceeding And The Remedies Available

In OEEM @ 18-21, the hearing officer explained why he believes that

the Employee is entitled to present her claims for reimbursement in this

proceeding. In the Employer Motion, the College makes no effort to rebut the

hearing officer’s reasoning, particularly his observation that “pay” is a flexible

term. In Employee Response @ 6, counsel point out that the College itself used

the more inclusive term “compensation” in its letters to the Employee.

Employer Response, Exhibits B & C. The College also uses that same broader

term throughout the Employer Response and the Employer Motion.

Board of School Commissioners of Mobile County v Dunn, 962 So 2d

814 (Ala 2007), decided under the Teacher Tenure Act, is instructive as to the

authority of a hearing officer to fashion an appropriate remedy:

The responsibilities of the hearing officer are found in § 16-24-10(a):

"The hearing officer shall conduct a de novo hearing and shall

render a decision based on the evidence and/or information
submitted to the hearing officer. The hearing officer shall
determine which of the following actions should be taken relative
to the employee: Cancellation of the employment contract, a
suspension of the employee, with or without pay, a reprimand,
other disciplinary action, or no action against the employee. The
hearing officer shall render a written decision, with findings of fact
and conclusions of law, within 30 days after its hearing."

An ore tenus hearing was held on April 7, 2005. On April 30, 2005, the
hearing officer rendered his written decision. The hearing officer found

37
 beyond question "that the Board ha[d] reasonably and substantially
proven that Dunn engaged in serious misconduct, as set forth in the five
charges made in the superintendent's recommendations to the Board."
However, the hearing officer did not cancel Dunn's employment contract.
Instead, he ordered that Dunn be barred from any coaching position for
four years, that he be suspended without pay for 30 days, and that he
apologize to his players orally and to each of their parents or guardians in
writing. Dunn's employment as a science teacher was not terminated.
962 So 2d @ 815-816; footnote omitted.

Section 16-24-10(a) gives the hearing officer the authority to determine

the appropriate disciplinary action. In exercising this authority, "the
hearing officer may consider the employment history of the teacher,
including, but not limited to, matters occurring in previous years." § 16-
24-20(c). In this case, the hearing officer's decision clearly reflects his
careful consideration of Dunn's entire "employment history," including
the good as well as the indefensible. Only after doing so did the
experienced hearing officer determine what he considered to be the
appropriate sanction for Dunn's misconduct. Although we may disagree
with the wisdom of the decision, we may not substitute our judgment for
that of the hearing officer. In our opinion, the hearing officer's decision is
not arbitrary, because it is clear that he examined all the facts, articulated
a satisfactory explanation for his action, and stated a rational connection
between the facts and the discipline he imposed. 962 So 2d @ 823-824.

Thus a hearing officer has broad discretion in fashioning an appropriate remedy.

In Coaker v Washington County Board of Education, 646 So 2d 38 (Ala

Civ App 1993), a suit brought by an employee covered by the FDA, the court

noted the employee’s receipt of compensation for medical expenses:

On August 19, 1991, Coaker filed a motion for preliminary injunction

to prohibit his termination. The trial court conducted ore tenus
proceedings on Coaker's motion on October 9 and November 20,
1991. Meanwhile, on November 6, 1991, Coaker accepted a
settlement payment from the State Board of Adjustment in the amount
of $12,171.43, representing a compensation of $11,701.44 for 34
weeks of lost wages beginning on January 26, 1990, and a

38
 compensation of $469.99 for uninsured medical expenses following
his shoulder injury.

In the present case, the Board concedes that Coaker negotiated for
light duty assignments as part of the settlement. He accepted a
settlement agreement containing a provision that he receive only light
duty, but he did not receive light duty. As a result, he not only lost the
opportunity to sue the Board for its failure to hold a hearing before
transferring him to a job with lower pay, but he also had to endure
heavier duty assignments. It is undisputed that these assignments
caused Coaker to suffer further injuries.

Accordingly, this case is reversed and the cause remanded with

instructions to issue a writ of mandamus directing the Board to (1)
reinstate Coaker to his original position and salary as of November 17,
1987, with adjustments for increases in the cost of living and other
nondiscretionary pay raises; (2) cease further efforts to illegally
transfer Coaker; (3) compensate Coaker with backpay plus interest
and adjustments for increased cost of living and nondiscretionary pay
raises, from November 17, 1987, less the $11,701.44 that Coaker
received for 34 weeks of lost wages from the State Board of
Adjustment; and (4) award any other equitable relief to which Coaker
may be entitled.

Although interest, cost-of-living adjustments, and “any other equitable relief

to which [the employee] may be entitled” are not mentioned in the FDA, the

court had no difficulty awarding them.

The hearing officer repeats his admonition in OEEM @ 19, that the

College, by resisting resolution of the Employee’s claims in this proceeding, is

taking a risky position. If the Employee is forced to go to court to press her

claims, she very well may bring a due process suit under 42 USC § 1983,

against the College and its officials. According to Young v McLeod, 841 So 2d

39
245 (Ala Civ App 2001), the College officials would not have immunity, even if

suit were filed in State court:

In its first opinion, this court dealt with the appeals of two instructors at
Wallace State Community College, John McLeod and Barbara Dinkins,
who had both sued the college and its then president, Dr. Larry Beaty.
Ms. Dinkins settled her claim with the college and is now deceased. The
college has a new president, Dr. Linda Young, who has been substituted
for former President Beaty. 841 So 2d @ 247, fn 1.

"In general, § 14 prohibits the State and its agencies from being made
defendants in any court. Alabama State Docks v. Saxon, 631 So. 2d 943
(Ala. 1994). This protection from suit also applies to officers or agents of
the State who are sued in their official capacities or individually, when
the action is, in effect, one against the State. Mitchell v. Davis, 598 So. 2d
801 (Ala. 1992); Phillips v. Thomas, 555 So. 2d 81 (Ala. 1989).
However, the immunity from suit conferred by § 14 is not absolute. A
state officer is not immune from suit when he or she has acted under a
mistaken interpretation of the law, when the lawsuit is to compel the
performance of a legal duty or ministerial act, or where the lawsuit is
brought under the Declaratory Judgment Acts." 841 So 2d @ 248;
emphasis supplied.

Punitive damages and attorney’s fees may be recovered under § 1983, in

addition to actual damages, and a jury trial is available for the asking. The

hearing officer is of the opinion that it is better for both parties to settle all

claims arising out of the Employee’s proposed termination in this single

proceeding. Indeed, it would be anomalous for the Employer to be able to

terminate the Employee’s pay under the FDA but for the Employee to be unable

to obtain compensation for wrongful termination, under that same statute. The

Employee’s claims for reimbursement are certainly “matters relevant to such

40
termination” within the meaning of FDA § 36-26-103(a).

The College continues to insist that “appeal” in Ala Code § 36-26-103(b)

refers to the proceeding before the hearing officer. Employer Motion @ 7-8. In

Wilson v Madison County Board of Education, 2007 Ala LEXIS 236, *10; 27

IER Cas (BNA) 228; 2007 WL 3238718, the Alabama Supreme Court wrote in

dicta:

Wilson objects to the Court of Civil Appeals' use of the word "appeal"
with reference to a teacher's right to "contest the board's decision" at a
hearing before a hearing officer. Although the word "contest" might be
more precise, the action taken is an "appeal" in the general sense of
subjecting the board's decision to review by the hearing officer. Further,
the Court of Civil Appeals recognized that the hearing was de novo when
it used the language "after receiving ore tenus and documentary
evidence" in its opinion. ___ So. 2d at ___, 2006 Ala. Civ. App. LEXIS
496 at *2.

The court did not have before it the precise meaning of “appeal”, as does the

hearing officer.

Interpreting “appeal” to refer to the hearing officer would do violence to

the broad authority granted him under Ala Code § 36-26-104(b):

The hearing officer shall determine which of the following actions should
be taken relative to the employee: Termination of the employee, a
suspension of the employee, with or without pay, a reprimand, other
disciplinary action, or no action against the employee.

In a case in which an employer wrongfully terminates an employee’s pay for

alleged moral turpitude, the hearing officer nevertheless may determine that the

employee is deserving of a suspension without pay and may assess the

41
employee’s lost pay as punishment, much as a criminal court utilizes time

served.

Under the FDA, the Court of Appeals’ only authority is to review the

hearing officer’s decision under an arbitrary and capricious standard and order a

new hearing if warranted. Ala Code § 36-26-104(b). If the appellate court

overturns a board’s action of terminating an employee’s pay for moral turpitude,

then the FDA provides that “pay shall be reinstated.” Ala Code § 36-26-103(b).

For these reasons, the hearing officer does not accept the College’s argument.

The Employee’s claims for reimbursement beg for settlement. If they are

not resolved before the hearing, it will be protracted, as the claims will have to

be analyzed in light of the medical insurance contract, which may call for

deductibles or copays. In the meantime, the parties are in a position to negotiate

settlements with service providers for the amounts that the providers would

have received under the insurance contract, which may be substantially less than

the Employee was charged. Therefore, the hearing officer reiterates his directive

for the parties to meet and attempt to achieve a settlement. If he finds that either

party has failed to negotiate in good faith, then that fact will be factored heavily

into his final decision.

V. The Burden And Standard Of Proof

The FDA is silent on the burden (the risk of non-persuasion) and standard

42
(beyond a reasonable doubt, clear and convincing, or more probable than not) of

proof to be applied in these cases. Both of these issues are presented in the

instant case. Peace v Employment Security Commission of North Carolina, 349

NC 315, 327-329; 507 SE 2d 272, 281-281 (1998), contains an excellent

discussion of these issues in a public employment case:

The United States Supreme Court has never indicated that procedural due
process requires a particular allocation of the burden of proof among
parties in a civil matter. The Supreme Court has, however, addressed the
determination of the appropriate standard of proof, recognizing that the
determination of an appropriate standard of proof must reflect the value
society places on the individual interest sought to be protected. Santosky,
455 U.S. at 754-55, 71 L. Ed. 2d at 607. The Santosky Court utilized the
Mathews-Eldridge balancing test to determine the appropriate standard of
proof in a case involving the termination of parental rights, reaffirming
the Mathews-Eldridge test as the benchmark for procedural due process
compliance. Id.

In addition to the Mathews-Eldridge analysis, we must also consider

applicable North Carolina law addressing the allocation of the burden of
proof. The North Carolina Constitution, like the United States
Constitution, does not compel the allocation of the burden of proof to
either party in a "just cause" employment termination controversy.
Furthermore, the North Carolina General Assembly has not specifically
addressed the proper allocation of the burden of proof in "just cause"
termination cases. The State Personnel Commission likewise has not
dictated a specific allocation of the burden of proof pursuant to its rule-
making authority found in N.C.G.S. §§ 126-4(6), (7a), (9), (11) and 126-
26.

In the absence of state constitutional or statutory direction, the

appropriate burden of proof must be "judicially allocated on
considerations of policy, fairness and common sense." 1 Kenneth S.
Broun, Brandis & Broun on North Carolina Evidence § 37 (4th ed.
1993). Two general rules guide the allocation of the burden of proof
outside the criminal context: (1) the burden rests on the party who asserts

43
 the affirmative, in substance rather than form; and (2) the burden rests on
the party with peculiar knowledge of the facts and circumstances. Id. The
North Carolina courts have generally allocated the burden of proof in any
dispute on the party attempting to show the existence of a claim or cause
of action, and if proof of his claim includes proof of negative allegations,
it is incumbent on him to do so. Johnson v. Johnson, 229 N.C. 541, 544,
50 S.E.2d 569, 572 (1948).

Applying these general principles to the case sub judice, it is clear that an
employee terminated pursuant to the "just cause" provision of N.C.G.S. §
126-35 should bear the burden of proof in an action contesting the
validity of that termination. Petitioner, the terminated employee, is the
party attempting to alter the status quo. The burden should appropriately
rest upon the employee who brings the action, even if the proof of that
position requires the demonstration of the absence of certain events or
causes. Neither party in a "just cause" termination dispute has peculiar
knowledge not available to the opposing party. A terminated employee
may readily utilize the procedures outlined in chapter 126 and section
1A-1 of the North Carolina General Statutes, as well as title 26 of the
North Carolina Administrative Code, to obtain any and all necessary
information to establish and advocate his or her position.

Cf. Ala Administrative Code § 670-x-5-.08 (Hearing Procedure), which,

although more detailed than the FDA, still does not shed much light on the

questions presented here.

There is a suggestion in Wilson v Madison County Board of Education,

2007 Ala LEXIS 236; 27 IER Cas (BNA) 228; 2007 WL 3238718, that the

burden is on the employer to justify its reasons for terminating an employee in a

Teacher Tenure Act case:

The new Act gives guidance as to the issues for decision by the hearing
officer. Issues that may be considered include, but are not limited to: (1)
Whether the evidence proves a ground or grounds asserted for
cancellation of the teacher's contract; (2) Whether there are any improper

44
 motives for cancellation5 under § 16-24-8, Ala Code 1975, such as
political or personal reasons; and (3) Whether cancellation of the
teacher's employment contract or one of the other alternatives under § 16-
24-10(a) is the appropriate penalty based upon the law and the facts.

5 The existence of an improper motive for termination, a political or personal reason, is in the nature of a
defense. The teacher asserting such a motive must place the motive "at issue" by specifically pleading the
facts alleged to establish an improper motive.

2007 Ala LEXIS @ *22-23.

Issue (1) is the type of issue in which the burden of proof devolves upon

the employer. That is certainly true in arbitration over a discharge under a

collective bargaining agreement. Elkouri & Elkouri, How Arbitration Works

(ABA/BNA 6th ed 2003) @ 349, 949; Hill & Sinicropi, Evidence in Arbitration

(BNA 2nd ed 1987) @ 39-41. In Board of School Commissioners of Mobile

County v Dunn, 962 So 2d 814, 815 (Ala 2007), decided under the Teacher

Tenure Act, the hearing officer found “‘that the Board ha[d] reasonably and

substantially proven that Dunn engaged in serious misconduct’.” Inasmuch as

the employer is required to provide reasons for its actions under the FDA, it is

reasonable to conclude that the burden is on the employer to substantiate those

actions at the hearing.

The court’s discussion of a defense in footnote 5 of Wilson also is

germane to the instant case. In Employer Motion @ 8, the College asserts that

the Employee could have continued her insurance coverage by paying the

premiums herself. That assertion is in the nature of an affirmative defense of

45
failure to mitigate damages. Elkouri & Elkouri, How Arbitration Works

(ABA/BNA 6th ed 2003) @ 1224-1228. Again, following Wilson, the burden of

proof should be on the employer, the party asserting the defense. In the instant

case, the College must prove that the Employee had a duty and the financial

capacity to pay the insurance premiums despite having her pay suspended.9

More difficult than the burden of proof is the issue of the proper standard

of proof. At least four times in the Employer Motion, the College accuses the

Employee of fraud:

(1) The undersigned is counsel for Bishop State in numerous of these FDA
cases, many of which arise out of the same massive financial aid,
scholarship, and academic fraud scheme out of which this case arises.
Employer Motion @ 1; emphasis supplied.

(2) We included as Exhibits “E” and “F” orders from two different hearing
officers in separate, though very similar termination cases. While these
cases do not arise from the fraud scheme out of which the others,
including the case against Ms. [P], arise, we included these orders here to
highlight the fact that there has been virtually no arbitral consistency in
these termination cases. Employer Motion @ 4, fn 3; emphasis supplied.

In another FDA termination case involving a Bishop State employee that

arises out of the same massive fraud scheme out of which the case
against Ms. [P] arises, the hearing officer determined that Bishop
State did not provide the employee, Angelo Archible, with specific
enough facts to satisfy the FDA’ “short and plain statement of facts”
requirement, despite the fact that Mr. Archible was provided with the
same quantum of facts that were provided to all of the other
employees, including Ms. [P]. Employer Motion @ 5; emphasis
supplied.

9
But see Alabama Department of Mental Health and Mental Retardation v Alabama State Personnel
Department, 863 So 2d 1118 (2003). Query, whether there is a duty to mitigate under Alabama law.

46
The purpose of the preliminary hearing was to determine whether there was
probable cause for the case to be presented to the grand jury. The
Judge determined that probable cause existed and bound the case over
to the grand jury. We understand that the District Attorney’s office is
preparing this and several other cases related to the fraud scheme at
Bishop State for presentation to the grand jury at this time. Employer
Motion @ 6, fn 4; emphasis supplied.

As the hearing officer pointed out in OEEM @ 14, if the College is

charging the Employee with being part of a “fraud scheme”, then it is incumbent

upon the College to state facts that support the charge. To date, the College has

stated none regarding any such scheme. Furthermore, the hearing officer also

pointed out that, to the extent that ARCP and FRCP 9(b) provide guidance,

fraud must be stated with particularity. OEEM @ 22. The Committee

Comments on 1973 Adoption explain:

Subdivision (b). This subdivision is identical with federal Rule 9(b) and
similar state rules. It is a qualification of the generalized pleading
permitted by Rule 8(a). But this special requirement as to fraud and
mistake does not require every element in such actions to be stated with
particularity. It simply commands the pleader to use more than
generalized or conclusory statements to set out the fraud complained of.
The pleading must show time, place and the contents or substance of the
false representations, the fact misrepresented, and an identification of
what has been obtained.

23 Michie’s Alabama Code (2003 Replacement Volume) @ 73. See also Case

Notes, id. @ 78-79, and 2007 Cumulative Supplement @ 23.

In addition to having to allege fraud with some particularity, it is

generally held that a higher standard of proof is required to sustain an allegation

47
of fraud or other criminal misconduct or conduct involving moral turpitude. Hill

& Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987) @ 33-36; Elkouri &

Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003) @ 950-952.

Historically, the hearing officer has applied a clear and convincing evidence

standard in such cases. See, e.g., IBT Local 391 and Johnson Controls, 03-1

ARB ¶ 3467, 31 LAIS 292 (Arb 2003) (unemployment compensation fraud

alleged); SEIU Local 79 and United Methodist Retirement Communities, 32

LAIS 270 (Arb 2004) (consorting on job with prostitute alleged).

VI. Other Cases And Extraneous Material

In support of the Employer Motion, the College submitted the following

material, primarily from other cases before hearing officers; the sequence below

follows the College’s exhibit labels:

A. Pre-Hearing Order, dated July 15, 2007, from Bishop State Community
College and Charlotte Powe, FMCS No. 07-01405 (Potter, Hrg Off)
B. Order, issued June 11, 2007, from Bishop State Community College and
Emma Perkins, FMCS No. 07-01406 (Gutman, Hrg Off)10
C. Order, dated June 12, 2007, from Bishop State Community College and
Marlene A. French, FMCS No. 07-01051 (Goldie, Hrg Off)
D. Decision on Employee’s Motion to Dismiss Termination or in the
Alternative to Reinstate Pay, dated August 17, 2007, from Bishop State
10
In footnote 1 on page 3 of his Order, Mr. Gutman explains, without citation to authority, the apparent
discrepancy between the language of FDA § 36-26-103, which calls for a determination by “the employing
board”, and the practice of leaving all decision-making to the college president in a case involving a junior
college, an issue not addressed by either party in the instant case. Presumably the practice arises under Ala
Code § 16-60-111.7, which make the president the employing official:

The president of each junior college and trade school shall appoint the faculty and staff of each
junior college and trade school according to qualifications prescribed by the board and such other
regulations which may be adopted by the board in accordance with Section 16-60-111.4.

48
 Community College and Elston Turner, FMCS No. 07-02606
(Bendixsen, Hrg Off)
E. Order Denying Employee’s Motion to Reinstate Compensation Pending
the Hearing and Decision in This Matter, dated January 28, 2008, from
Bishop State Community College and Henry R. Douglas, FMCS No. 08-
00835 (Odom, Hrg Off)
F. Opinion and Award on Motion to Reinstate Pay, dated January 28, 2008,
from Bishop State Community College and Herman Packer, FMCS No.
08-00834 (Feinstein, Hrg Off)
G. Letter order, dated January 9, 2008, from Bishop State Community
College and Jacqueline Williams, FMCS No. 07-00953 (Donovan, Hrg
Off)
H. Letter, dated August 1, 2007, to Jacqueline Williams, from James Lowe,
Jr.
I. Letter re Motion To Reconsider, dated March 30, 2008, from Bishop
State Community College and Zulieka Boykin Frazier, FMCS No. 08-
00951 (Tanksley, Hrg Off)
J. Letter, dated August 1, 2007, to Zulieka Boykin Frazier, from James
Lowe, Jr.
K. Grant of appeal and stay, dated February 26, 2008, in Alabama Court of
Civil Appeals No. 2070379, from Bishop State Community College and
Angelo Archible, FMCS No. 07-04797 (Serda, Hrg Off)
L. Letter brief, dated January 25, 2008, to Clerk of Alabama Court of Civil
Appeals, from Jeffrey G. Miller, from Bishop State Community College
and Angelo Archible, FMCS No. 07-04797 (Serda, Hrg Off)
M. Pages 1-3, 223-274 & 298 of transcript made August 8, 2007, from State
of Alabama v [MP], Mobile County District Court No. 07-4913
(McMaken, J)

Accompanying the Employee Response were these exhibits, labeled

below as they are in the Employee Response:

A. Record of Employee’s arrest from Mobile County Sheriffs Office

B. Decision on Employee’s Motion to Dismiss Termination or in the
Alternative to Reinstate Pay, dated August 17, 2007, from Bishop State
Community College and Elston Turner, FMCS No. 07-02606
(Bendixsen, Hrg Off)
C. Order, dated June 12, 2007, from Bishop State Community College and
Marlene A. French, FMCS No. 07-01051 (Goldie, Hrg Off)

49
D. Opinion and Order of Officer, dated December 19, 2007, from Bishop
State Community College v Elma Thomas, FMCS No. 07-04798
(Shriftman, Hrg Off)
E. Ruling – On Grievant’s Motion to Reinstate His Pay, dated January 4,
2008, from Bishop State Community College and Angelo Archible,
FMCS No. 07-04797 (Serda, Hrg Off)
F. Order, issued June 11, 2007, from Bishop State Community College and
Emma Perkins, FMCS No. 07-01406 (Gutman, Hrg Off)
G. Ruling on Employee’s Motion to Dismiss or in the Alternative to
Reinstate Pay, dated March 25, 2008, from Bishop State Community
College and Alabama Education Association / James Soleyn, FMCS No.
08-01166 (Williams, Hrg Off)

The hearing officer did read all of the materials submitted to him but sees little

value in critiquing them, inasmuch as he has detailed his reasons for his rulings

in the case before him.

In Employee Response @ 2, counsel seek to interject Alabama politics

into these proceedings:

Mrs. [P]’s case arises out of the political shenanigans of the Republican
Governor of Alabama, Richard Riley; a then Republican State Senator,
and now Chancellor of the Junior College System, Bradley Byrne, whom
the Governor would like to succeed him; and a determined effort to
embarrass and remove a twenty year veteran Democratic State
Representative, Yvonne Kennedy, who served as the President of the
College some two decades and is the Chair of a powerful committee in
the legislature. These efforts were also part of an attempt to wrest control
of the Democratic dominated legislature. These politicians were joined
by a John Tyson, conservative Democrat, and the District Attorney of
Mobile County, who had just lost a close and heated campaign for
Attorney General. The Republican he lost to just happened to be the guest
of honor at $500.00 a person fundraiser at the home of the Dean of
Academic Affairs at the College, who was also a principle target of the
investigation.

50
 The hearing officer is weary of politics—the interminable presidential

campaign; cases reeking of small-town politics, Police Officers Association of

Michigan and County of Leelanau, Michigan and Its Sheriff, 07-2 ARB ¶ 3926

(Arb 2007), supplemental opinion, 07-2 ARB ¶ 3927; the assignations and

prevarications of Detroit’s mayor, about whom Jay Leno quipped, “He’s scored

more times than the Detroit Tigers.”—and does not wish hear any more. The

hearing will be restricted to evidence about the Employee’s actions and the

College’s efforts to terminate her employment.

VII. Conclusion

For all the foregoing reasons:

(a) The College’s Motion to Reconsider is DENIED.

(b) Unless the parties agree otherwise, if, within seven (7) days of the date of

this Opinion, the College has not complied with paragraphs (I) and (II) on

pages 22-23 of the Opinion of the Hearing Officer on Employee’s

Motion to Reinstate Pay, dated March 31, 2008, the hearing officer will

entertain a motion by the Employee to dismiss the charges against her

with prejudice. Such motion must be accompanied by one or more

competent affidavits of individuals having personal knowledge of the

facts.

(c) In all other respects, the Opinion of the Hearing Officer on Employee’s

51
 Motion To Reinstate Pay, dated March 31, 2008, remains in full force

and effect.

The hearing officer’s findings of fact and conclusions of law are embodied in

this written opinion, although not expressly designated as such.

Dated May 1, 2008 ____________________________

E. Frank Cornelius, PhD, JD
Hearing Officer

52
 STATE OF ALABAMA
Fair Dismissal Act Hearing

[MP],
Employee,

v FMCS No. 08-00952

BISHOP STATE COMMUNITY COLLEGE,

Employer.
_______________________________________/

OPINION OF THE HEARING OFFICER

ON EMPLOYEE’S MOTION FOR STAY

May 30, 2008

For the Employee: For the Employer:

A. J. Cooper David M. O’Brien

Cooper Law, PC Jeffrey G. Miller
21 S Section Street Sirote & Permutt, PC
Fairhope, AL 36532 1 St. Louis Center, Suite 1000
Mobile, AL 36602
Raymond Bell, Jr.
Bell & Adams
182 St. Francis Street, Suite 300
Mobile, AL 36602

53
 I. The Procedural Posture Of The Case

On February 2, 2008, the undersigned was appointed as hearing officer in

this case under the Alabama Fair Dismissal Act (“FDA”), Ala Code §§ 36-26-

100 et seq., between Bishop State Community College (“Employer” or

“College”) and its employee, [MP] (“Employee”). On March 3, 2008,

Employee counsel served the Employee’s Motion to Reinstate Pay for Bishop’s

Failure to Provide Due Process (“Employee Motion”). On March 31, 2008, the

hearing officer issued the Opinion of the Hearing Officer on Employee’s

Motion to Reinstate Pay (“Opinion on Employee Motion” or simply “OEEM”).

The hearing officer granted the Employee Motion in part and denied it in

part, summarizing his orders and setting the schedule for the case as follows:

(XI) The Employer forthwith shall put the Employee back on its payroll
with benefits and give her back pay for the period during which
her pay has been suspended.

(XII) Within fifteen (15) days of the date of this opinion, the Employer
shall serve upon the Employee’s counsel and the hearing officer a
revised statement of the facts showing that the termination is taken
for one or more of the reasons listed in Section 36-26-102.

(XIII) Within fifteen (15) days of the date of this opinion, the Employee
shall serve upon the Employer and the hearing officer an itemized
list of her claims for reimbursement, and the parties then are to
attempt to negotiate a settlement of those claims.

(XIV) The hearing is scheduled for June 2, 2008, unless the parties agree
otherwise.

(XV) Unless the parties agree otherwise, on or before May 1, 2008, the

54
 parties shall submit to the hearing officer, with a copy to the
opposing party, documents supportive of, or in contravention to,
the action, as well as a list of witnesses to be called at such
hearing.

OEEM @ 22-23. On April 14, 2008, Employee counsel sent a letter to

Employer counsel, listing $29,932.57 in claims by the Employee for

reimbursement, largely for medical expenses incurred as a result of her loss of

insurance coverage.

On April 15, 2008, Employer counsel served a Motion to Reconsider

(“Employer Motion”), contending that the College’s “short and plain statement

of the facts”,

You committed financial improprieties in relation to the receiving of

financial aid, to falsifying your grade in a course, and to falsifying an
employee and dependent tuition waiver.

sufficed to satisfy the notice requirements of Ala Code § 36-26-103(a). The

College also contended that it cannot be required to reimburse the Employee for

the benefits that she has lost as a result of the suspension of her pay.

On May 1, 2008, the hearing officer issued the Opinion of the Hearing

Officer on Employer’s Motion To Reconsider (“OERM”), in which he ruled:

(d) The College’s Motion to Reconsider is DENIED.

(e) Unless the parties agree otherwise, if, within seven (7) days of the date of

this Opinion, the College has not complied with paragraphs (I) and (II) on

pages 22-23 of the Opinion of the Hearing Officer on Employee’s

55
 Motion to Reinstate Pay, dated March 31, 2008, the hearing officer will

entertain a motion by the Employee to dismiss the charges against her

with prejudice. Such motion must be accompanied by one or more

competent affidavits of individuals having personal knowledge of the

facts.

(f) In all other respects, the Opinion of the Hearing Officer on Employee’s

Motion To Reinstate Pay, dated March 31, 2008, remains in full force

and effect.

OERM @ 28-29.

II. The Employee’s Motion For A Stay

Having failed to receive the expected materials, on May 19, 2008, by

email the hearing officer requested a status report from counsel. Employee

counsel responded that a motion for a stay would be filed. The Employee’s

Motion To Stay Employment Termination Proceeding Pending Resolution of

Parallel Criminal Matters (“Motion for Stay”) is based upon the following

grounds:

1) Through her counsel of record, the employee hereby calls to the

attention of the Hearing Officer appointed pursuant to the Alabama
Tenure Law that Respondent, [MP] is the subject of criminal charges
directly related to the alleged grounds for termination of her
employment in the above styled case. The Clerk of the Mobile County
Circuit Court has advised that the cases of Ms. Woods and some 25
other employees are part of an ongoing investigation and have not yet
been presented to a grand jury.

56
2) One or more of the other persons under charges is an essential
witness in Ms. [P] employment case.

3) Undersigned Counsel has consulted with the attorneys for some of

the other charged persons whom Ms. [P] will call as witnesses in his
employment case. Those attorneys have advised that Ms. [P] and the
other witnesses are advised not to testify unless, or until all of their
criminal matters have been resolved.

4) While the undersigned believes that Ms. [P] will be absolved of any
and all criminal wrongdoing in connection with this matter,
nevertheless the parallel criminal proceedings will make it impossible
for her to be heard and/or receive due process unless the above
employment case is stayed, pending resolution of the criminal matters.

In a reply email, College counsel wrote:

If the basis for Ms. [P]'s forthcoming motion to stay is that the facts
involved in her parallel criminal case are the same as the facts
involved in this termination proceeding, then Bishop State certainly
recognizes Ms. [P]'s rights under the Fifth Amendment and will not
oppose her motion to stay this termination proceeding. If the basis to
continue is for some other reason, then we would like to have an
opportunity to respond accordingly.

However, neither will Bishop State join in the request to stay this
termination proceeding. The College would strongly prefer that this
proceeding move forward as expeditiously as possible, as it is
incredibly expensive for the College to maintain Ms. [P] and other
employees who are also currently facing criminal charges on the
payroll pending the completion of their criminal cases.

The Mobile County District Attorney's Office has not yet presented
Ms. [P]'s case or any of the other similar cases to the grand jury,
though we understand that the DA's Office is taking steps to do that in
the near future. If indictments are issued, then the criminal cases will
take about a year or so to complete, we are told. So, we are probably
looking at having Ms. [P]'s case stayed, if an indictment is issued
against her by the grand jury, until at least the middle of 2009.

57
 III. Applicable Law

In Ex parte Ebbers, 871 So 2d 776 (Ala 2003), the Alabama Supreme

Court undertook an extensive restatement of the law in Alabama regarding the

ability of a party to stay a civil proceeding on Fifth Amendment grounds. The

court noted eight factors that might properly enter into the weighing and

balancing analysis of the parties’ interests:

“1. The interest of the plaintiff in proceeding expeditiously with the civil
litigation, or any particular aspect of it, and the potential prejudice to the
plaintiff of a delay in the progress of that litigation.

“2. The private interest of the defendant and the burden that any
particular aspect of the proceedings may impose on the defendant.

“3. The extent to which the defendant’s Fifth Amendment rights are
implicated/the extent to which the issues in the criminal case overlap
those in the civil case.

“4. The convenience of the court in the management of its cases, and the
efficient use of judicial resources.

“5. The interest of persons not parties to the civil litigation.

“6. The interest of the public in the pending civil and criminal litigation.

“7. The status of the criminal case, including whether the party moving
for the stay has been indicted.

“8. The timing of the motion to stay.”

“871 So. 2d at 789-90 (citations omitted). These factors often partially overlap,

and not all of the factors are applicable in every case. 871 So. 2d at 790.” Ex

parte Antonucci, 917 So 2d 825, 825-829 (Ala 2005). See also Ex parte Rawls,

58
953 So 2d 374 (Ala 2006). For purposes of the interests analysis, the College is

in the position of plaintiff and the Employee is in the position of defendant.

IV. Interests Analysis

In OEEM, the hearing officer ordered the Employee’s pay and benefits

restored. Further, he ruled that the College would not have a second opportunity

to suspend the Employee’s pay on account of moral turpitude. OEEM @ 21.

However, at the time, he was not aware that the Employee would seek a stay in

these proceedings, which could extend well into next year. Indeed, although the

criminal investigation had been ongoing for two years in August of 2007,11 the

case against the Employee has yet to be presented to a grand jury. Thus, any

stay could be lengthy. Indeed, the Employee may not even be indicted. In the

meantime, as things now stand, the College, a public institution, must continue

paying the Employee’s salary and benefits indefinitely.

The hearing officer does not consider this a reasonable result. The very

reason that he set a hearing date of June 2, 2008, was to protect the College

financially in the event that it ultimately could prove its case against the

Employee. Delay now seems to favor the Employee overwhelmingly. She easily

could have informed the hearing officer that she was seeking a stay in her

original motion. Obviously her counsel has brought motions for stays in some of

11
Exhibit M, OERM @ 26.

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the related cases, as the Employee’s motion bears a number from another case.12

Had she been forthcoming, the hearing officer would have ruled differently on

the issue of moral turpitude.

Cost to the public undoubtedly was a consideration of the Alabama

Legislature when it revised the Fair Dismissal Act, which now requires that,

except in cases involving moral turpitude, an employee must be paid until the

hearing officer renders a decision. Ala Code § 36-26-103(b). By putting these

cases on a relatively fast track (OEEM @ 11, fn 3), the Legislature was

attempting to limit the cost to the public.

Assuming that the College has followed the hearing officer’s directive

regarding back pay, the Employee has been paid from August 1, 2007, the date

of the College’s notice of charges, through the present, a period far longer than

the time contemplated by the Legislature in the Fair Dismissal Act:

▪ Maximum 30 days under § 36-26-103(a) for the notice of charges

and board meeting
▪ Approximately 25 days under § 36-26-103(b) for the notice of
board action and the employee’s notice of contest
▪ Approximately 17 days under § 36-26-114(b) to choose a hearing
officer
▪ Maximum 90 days under § 36-26-104(a) for hearing and decision

Although these times are not exact, they do indicate that the Legislature

anticipated that these proceedings should not take much more than 6 months

12
See Exhibits K & L, OERM @ 26, and Exhibit E, OERM @ 27.

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from start to finish.

The Employee does not make a strong case for a stay. Her motion is not

supported by any affidavit. She does not identify the persons whom she will call

as witnesses nor cite any case granting a stay because non-party witnesses might

assert Fifth Amendment rights. Moreover, the Employee does not explain why

witnesses would take the Fifth when asked questions about her. No case cited

involves a situation in which an employer was forced to pay the party seeking a

stay for the duration of the stay.

The case law is concerned primarily with discovery, and the only

discovery in these proceedings is the exchange of “documents supportive of, or

in contravention to, the action,” under § 36-26-104(a). Surely the Employee

would refrain from turning over incriminating documents. A further

consideration is that, even if she is tried and found not guilty in a criminal case,

the verdict would not be res judicata in her employment case because of the

differing standards of proof. Cf. OERM @ 19-25. At some point, she is going to

have a Fair Dismissal Act hearing.

The College has adopted as its revised statement of facts Paragraph 15 of

its motion for reconsideration, the bulk of which was set forth in OERM @ 12:

At the hearing, the State’s witness testified that Ms. [P] was being
charged with theft by deception for $1,450 in Pell Grant funds in the
Spring of 2005 and for $3,500 in Pell Grant funds in the 2005/2006
academic year. Specifically, the State’s witness testified that Ms. [P]

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 took a sociology class, SOC247, in Spring 2005 and received an
incomplete grade. After receiving this incomplete grade, she would
have been required to refund the Pell Grant funds but she did not do
so. Instead, she changed her grade from an incomplete to an “A.” As a
result, she was able to keep the Pell Grant funds. With respect to the
funds received in the 2005/2006 academic year, Ms. [P] represented to
Bishop State that she had a stepdaughter named Shevonda Archible
and that Ms. Archible was one of her dependents. Dependents of
Bishop State employees are eligible for tuition waivers. However, it
turns out that Ms. Archible is not Ms. [P]’s stepdaughter, and they are
not related at all. This ultimately allowed Ms. Archible to improperly
receive a Pell Grant award in 2005/2006 in the amount of
approximately $3,500.

These allegations are extremely serious and certainly make out a case

“involving moral turpitude” and, but for the hearing officer’s earlier ruling,

would require that the Employee’s pay be halted.

In an effort to give effect to the Legislature’s intent and to balance the

interest of the College in conserving public money and the Employee’s

interest in her Fifth Amendment rights, the hearing officer is offering the

Employee a choice:

(I) Either proceed promptly with a Fair Dismissal Act hearing at which

she certainly will be entitled to assert her Fifth Amendment rights, or

(II) Chose a stay of these proceedings but give up pay and benefits

because the case involves moral turpitude.

Employee counsel should make the choice known within a week, in a

letter to College counsel and the hearing officer. If the choice is to proceed

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with a Fair Dismissal Act hearing, the parties should exchange documents

and witness lists forthwith and select a hearing date in early July, other than

July 14.

Dated May 30, 2008 ____________________________

E. Frank Cornelius, PhD, JD
Hearing Officer

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