Hammond v. Bailey and Alabama State Tenure Commission Court Opinion

    IIES

rewise appears tltat the trial
equitably divided the pup
ies. We find no abuge of
division of property. Nei-

or in the finding of incom-
iudgment b affirmed.

nd HOLMES, JJ., concur.

Monique NOBTI0N.

onique NORI\ON

Y.

n.L NORITON).

80-20&

Court of Alabama.

rb. 20, 1981.

he Court of Civil Appeals,
,%10).

ice.

D_NO OPINION.

J., and MADDOX, JONES
1., concur.

HAMMOND V. BAILEY
clt.rl AL.clv.AD" lea sc2d 25

Ala. 26

Franklin HAMDIOND

v.

Sam BNLEY et el.

and

AI./IBA"I[A STATE TENURE
COMTIISSION

Y.

The COUNTY BOARD OF EDUCATION
OF IIeKALB COIINTY, Alabama

Civ. %bA.
Court of Civil APPeals of Alabama.

Nov.5, 1980.

Rehearing Denied Dec. 10, 1980.

After Tenurc Commission rcversed de-

cision of county board of education suspend-

ing tenured teacher, teacher petitioned for
*rit of mandamus to rccover unpaid salary

and to be reinstst€d as tenured teacher in

accordance with order of Tenurc Commis-

sion. The board of education subsequently

filed seporatc suit for writ of mandamus

against Tenurc Commission, and the two

clses wene consolidated. The Circuit Court,

DeKalb County, Randall L' Cole, J., ruled in
favor of board and rcversed Tenure C,om-

mission, and teacher and Tenurc Commis'

sion appealed. The Court of Civil Appeals,

Srright, P. J., held that board acted in viola-

tion of teacher tenurc law by voting to
suspend tenured teacher without pay for
the remainder of school year and to rein-

stete him as a "prcbationary teacher" at
the beginning of the next Year'

Reversed and remanded.

Certiorari denied, Ala., 894 Sro.'fuJ n.

1. Schools c-f11(2,6)
Cnunty boad of education acted in vio

lation of teacher tenurc law by voting to
suspend tenured teacher without pay for
rcmainder of school year and to reinstat€
him as a "prcbationary teacher" at the be'
ginning of the next Year. Code 1975,

$S f6-%-l et eeq., w?H,ltsl?b9,t6-
?A-to.

2. Schoole c=137, 141(2)

The only two actions that may properly

be taken with reg'ard to the contmct of a
tenured teacher are to super:ede or cancel

such contract; the only suspension provided

under teacher tenure law is a suspension by

superintendent pending hearing on pno'

posed cancellation, and thene can be no re-
moval of continuing seruice status, or ten-

urc, other than by cancellation. Code 1975,

SS 16-%-1 et seq., 16-?A-3,16-l?A-9,16'
24-L0.

3. Schools c=lil,ll.9
Tenure, once obtained, will remain un'

less charges by board of education 8rc pnop

erly brought and sustained. Code 1975,

SS 16-%-l et seq., 16.9/l-8,16-24-9, 16-

?A-10.

{. Schoole F13:}.10, l3:l.ll
Legislative intent of tenurc law is to

establish two classes of teachers, those that
have earned continuing seruice st&tus and

arc therefore protected by pocedural and

due process safeguards and those that arc

probationary and not so protected. Code

1975, SS lU24-7 et seq., l6-?H.

5. Schools caf4f(5)
l[here a hearing which resulted in ten-

ured teacher's suspension was begun and

conducted as cancellation puceeding under

tenure law, appeal to Tenurc Crommission

was proper from judgment of that proceed-

ing. Code 1975, S 16-%-f0.

6. Schoole ef4f(6)
Fact that Tenure Commission did not

find action of board of education "arbitrari-
ly unjust" did not preclude Commission

from ordering tenured tcacher's rtinstste-
ment, as "arbitrarily unjust" action by

board of education is only one gnound for
rcversal by Tenure Commission, and boatd's

action could properly be rcvereed for not

being in compliance with teacher tenurc

law. Code 19?5, SS 1f%-9, l6-l?*n'

John Baker, Fort Payne, for appellant

Franklin Hammond.

i TEYTUISTISlsITIin*^^



26 Ala.

Charles A. Graddick, Atty. Gen., for Ala-

bama State Tenurc Commission.

W. M. Beck, Sr., Beck & Beck, Fort
Payne, for appellees.

WRIGHT, Presiding Judge.

This is a teacher tenure cas€'

Franklin Hammond \ras a teacher with

continuing sentice status (tenure) in the

DeKalb County school system. In January

1979 the County Board of Erlucation of
DeKalb County initiated cancellation prc-

ceedings against the teacher, charging him

with insubordination and neglect of duty'

The Board notified the teacher and a hear-

ing was begun pursuant to S 16-24-9, Code

of Alabama (19?5). Nineteen witnesses tes-

tified at this hearing and evidence rtsulting
in a rccord of over 330 pages was prrcduced'

After the hearing the Board, voting upon

each charge, found Hammond guilty' A
motion was made thereafter to cancel the

teacher's contract. The motion failed for
lack of a second. Another motion was

made to suspend the teacher for the te'
mainder of the l9?8-19O school year with-

out pay but to reinstate him the next year

as a-non-tenurtd or "probationary teacher"'

This motion passed by a vote of three to

two and was entered as the decision of the

Board.

The teacher appealed to the Alabama

State Tenure Commission. Aftcr hearing,

the Tenurc Commission rcvened the Board

and reinstatBd the teacher, holding the

Board's action "in violation of the teacher

tenurc law governing the cancellation prc'

cedure for a t€nuted teacher." The Board

failed to comply with the Tenurc Commir
sion's older. The teacher petitioned the

Circuit Court of DeKslb County for writ of
mandamus, to recover unpaid salary and to

be reinstst€d as a tenured teacher. Three

weeks later the Boad filed a separate suit

for writ of mandamus against the Tenurc

Commission. The two calleE wene consoli-

dated for trial.
The cirrcuit court denied the teacher's pe'

tition, nrling in favor of the Board and

rcversing the Tenure Commission' The

teacher and Tenurc CommisEion appealed to

this court.

The briefs of the parties present several

issues for our determination on appeal'

Viewing the record befort us we find it
inadvisable and unnecessary to decide the

fint issue prcaented, that is, whether the

Board's petition for writ of mandamus,

coming e-ighty-nine days aftcr the datc of
the TJnure Commission's oIder, is untimely'

The appellants cite the recent case of 'Ala'
bama-Stttc Tenurc Commission v. Burd of
*hrrlt hmmissionen of Mobile huntY,
3?8 So.zd 1142 (AlaCiv.App.1979), where

this court held that an unexplained delay of
ninety-two days is unrcasonable and barred

the ILard's mandamus pmceeding for lach-

es. We are asked to hold that the delay of

the Board in seeking rcview of the order of
the Tenune Commission for eighty'nine

days is also untimely and barred by laches'

Sre consider it unnecessary to decide that
issue in this case. lf,Ie must rcvene the

judgment of the circuit court and reinstate
ihe-order of the Tenurc CommisEion on

other grounds.

tU SIe consider the second issue to be

more determinative of the rights of the

parties to this appeal. That is, did the

Board act in violation of the teacher tenure

law by voting to suspend the teacher with-
out pay for the nemainder of the school year

and- to reinstate him as a "probationary
teacher" at the beginning of the next year?

There is no dispute that the teacher sus'

pended waa 8 tenured teacher. As such,

any act affecting the continuing service sta'
tui of the teacher would have to comply

with S 7*?;/-'1, et seq., Code of Alabama

(1fi5), our teacher tcnurc law. Section 16-

24--3 provides in aPPlicable Part:
The contract of emPloYment of anY

teacher who shall attain continuing ser-

vice status shall remain in full forrce and

effect unless supt*ded by a new con'

trrct, signed by both portiea, or a nelled
as plovided in section lG'Z+$ or lt24'
l0; . .. . (EmPhasis oum)

t2] This s€ction meanE exactly what it
says. The only two actions that may pnop

erly be taken with regard to the contrrst of

EX PARTE

a tenurcd teacher are to st

such contract. The onlY s

ed under the teacher tenul

sion bY the suPerintenden

ing on a ProPosed cancel}

C,ertain it is that therc cat

continuing service statu

than bY cancellation undc

[3,4] To strte the Prc1

tenure once obtained w

charges bY the board att
and sustained. There ir

tenure law for discussiot

The legislative intent of t
establish two classes of t
have earned continuing
are thereafter Protected
due prccess safegrrards r

prcbationary and not so

v. Blount buntY Board

So.2d ?51 (A1a.1fi6).
safeguards of the statutr
with in this case.

t5I The Board argue
er was only suspended, n

the Tenurc Crcmmisgior

were the case, the BoaI

tenured teachers after r

without cancelling their
the appeals pnrce$r Pro\
Such, of counrc, may no

visions for suspension ir
the tenure act notwitlx
ing which resulted in t
sion was begJun and con

tion proceeding under 1

perl to the Tenune Cor

fitm the judgment of

t61 Finally, the cin
the Tenure Commissior
set forth the prncedul
ted by the Board. TI
tach much significanu
Tenurc Commission dir
action "arbitrarily unj
bitrarily unjust" actior
one gmund for reverst
mission. The other r

the board is wherr
compliance with this c

39{ SOUTHEBN REFoRTE& 2d SERIESI

,I

I

1

I
i
*

!

t

i
tt

t
i
t
t



,BIES

nurc Commission appealed to

t the parties prcrent geverst
, determination on appeal.
ecod before uE we find it
I unneoeasary to decide the
cnted, thst is, whether the
n for writ of mandamus,
nine days after the date oi
rmirsion's order, ir untimely.
cite the rccent care of Ali-
wrc hmmision v. Bonrd of
sionea of Mobile bunty,
| (Ala0ivlpp.tg?9), where
hat an unexptained delay of
is unrcasonable and bsrcd

damus proceeding for lach-
cd to hold that the delay of
rking review of the order of
rmmisEion for eighty-nine
mely and bsred by laches.
unnecessary to decide that
!e. We must rpvene the
circuit ourt and reinstate
rc Tenure C,ommisgion on

ler the seoond irsue to be
live of the righto of the
rppeal. That fu, did the
rtion of the teacher tenurre
suspend the tcacher with-
rmainder of the school year
him as a "ptbationary

ryinning of the next year?
pute tlnt the tcacher sus-
rnurcd teacher. As ruch,
tlre oontinuing aervie at8-
r would have to oomply
et req., Code of Alabama
r tenurc law. Section lF
pplicable part:
of employment of any

ell attain eontinuing eer-
rcmein in full force and

tplded by a new oon-
both partiea, or a nelled
ection 16-2-9 or lf-l24-
nrir oun)
r meanE exactly what it
o actioru that may prup
rcgard to the ontmct of

a tenurcd teacher are to supensede or cancel

such contract. The only suspension provid-

ed under the teacher tenure law is a suspen-

sion by the superintendent pending I !9aI-
ing on a proposed cancellation' S 16-%-9'

Celrtsin if is ltrat therc can be no removal of

continuing service status (tenure) other

than by cancellation under the statute'

[3,4] To state the proposition succinctly,

tenure, once obtained will nemain, unless

charges by the board are properly brought

and 
-sustained. Therc is no basis in the

tenure law for discussion to the contrary'

The legislative intent of the tenure law is to

estsblish two classes of teachers, those that

have earned continuing sen'ice status and

are thereaftcr protected by procedural and

due prncess safeguards and those that are

probationary and not so protected ' Futnr
v. Blount i,ounty Boatd of fulucation,B40

So.2d ?51 (A1a.1976). Those procedural

safeguards of the statute were not complied

with in this case.

t5] The Board srgues that as the teach-

er was only suspended, no right of appeal to

the Tenurl Commission accrued' If such

were the case, the Board could auspend all

tenured teachers after cancellation hearing

without cancelling their contracts and avoid

the appeals prlooess provided by $ 1&-%-f0'

Suctr, of coutte, may not be permitted, pro-

visions for suspension in statutes other than

the tenurc act notwithstanding' The hear-

ing which resulted in the teacher's suspen-

siJn was begun and conducted as a cancella-

tion proceeding under the tenure law' Ap
peal to the Tenurc Crcmmission was proper

irom the judgment of that proceeding'

t6l Finally, the cirtuit court found that

the ienure (Smmission did not specifically

set forth the procedural violation commit-

ted by the Board. The court seems to at-

tach much significance to the fact that the

Tenurc Commission did not find the Boatd's

action "arbitrarily unjust." However, "ar-
bitrarily unjust" action by the Board is-only

one ground for rcversal by the Tenure Com-

mission. The other ground for rcversing

the boad is wherc its action ie not "in
compliance with this chapter." S 1f%-10'

EX PARTE DeKALB CTY. BD' OF ED' OF DeKALB CTY' Ala' 27
Clt.es'Ah.t9l Sp'3d27

The Tenure Commission found, and prcper-

ly so, that the action of the Board was not

i-n compliance with the teacher tenurc law

because of a violation of the cancellation

procedure set out in $ 16-%-9' The case of

Marshalt buntY Boart of klucation v'

Statn Tenurc hmmission,29l Ala %L,m
So.zd 130 (19?3), has no application to this

case.

For the neasons set forth above, the order

of the circuit court must be revened and

the order of the Tenure Commission rcin-

stat€d.

REVERSED AND REMANDED.

BBADLEY and HOLMES, JJ', ooncur'

Ex Partc: The DeI(AI8 COUNIY
BOARD OF EDUCATION OF

DeI(ALB COUNIT, Alabana'

(Re Franklin HAMMOND

v.

Sam BAILEY et el'

and

AIJ\BAMA STATE TENURE
COMMISSION

v.

The COTINTY BOARD OF EDUCATION

OF DeKALB COUNTY, Alebame)'

80-201.

Supreme Court of Alabama'

Feb. 20, 1981.

Certiorari to the Court of Civil Appeals,

894 So.zd % (Civ. 242q-Al'
MADDOX, Justice.

WRIT DENIED-NO OPINION.