Key v. Alabama State Tenure Commission Court Opinion

    f Erlucation's motion
tcd appeal oncerning

plaintiffe appeal from
der and judgment of
ssing plaintiffs action
dy, Superintendent of
rd of &lucation. The
r dismissing plaintiff'a
,oted that the incident
s of plaintiffs action
er ?A, 1979, and that
amend her complaint
a fictitious defendant

cember 16,1980. The
also notes that the
Cody was known to

ithe ststut€ of limita-

ra v. Librty Mutual
892 So2d 8B (Ala
ds thst because her
,tes a cause of action
parties, her amend-

ly for a fictitious de-
:es back to the filing
lhat were tme, plain-
rld tlren come within
of limitations pre

i 6-H9, through the
n of Rule 15(c), A.R
: with plaintiffs con-
ictitious party provi-
l.C.P., is intcnded to
lhe anea of
erc neither the name
,f the defendant is
re caus€ of action is
ty liable is not, and
d to get senrice of
ty against whom the
ion, or there js need
e of property.

tdsden,85g So2d 861
vlkes v. Librty Mu-
ry, at 805.

rubmits that the only
I euggeating Cody'a
rvided when the Bir-
&lucation answercd
rmgatories. In one

Gloria R. I(EY
.v.

AII\BAMA STITP TENTIRE COMIIflS'

SION; Ih. Paul R Hubberl ex officio
Cheirman, Alebame State Tenure C'om'

miesion' et aL

Clv. 2684.

Crcurt of Civil APPeals of Alabama'

SePt. 9, 1981'

Rehearing Denied OcL 14, 1981'

Former teacher petitioned for writ of

mandamus directing State Tenure Crcmmis'

3. Schools F133.8

Purpose of time periods listed in the

Tenurc Act is to insurc spedy dieposition

of teacher tenure casles. Code 1975'

ss 16-%-10, 16_%-10(b).

{. Congtitutional l^aw e}78.5(4)

Schoole 0=13:1.8

A purpose of tenure act is to insurc a

full and fair hearing beforc discharge and

due prncess also dictat€s that teacher have

full irearing. Code 19?5, SS 16-%-10, 16-

%-1(b); U.S.C.A.Const.Amend' 14'

6. Schoole c=l1f(5)
In cerLain circumstances, the Tenure

C,ommission ehould be allowed to grant rca-

sonable extensions of time periods pre

scribed in Tenure Act to boarde of educa-

tion and also to teachen. Code 1975'

xEY v. ^*r#^mr':HBncoMltilssloN 
Ala' 133

of its answers, the Birmingham Board of sion to set sside decision affirming cancella-

Erlucation stst€d thot i;;;;;rsible for tion of teacher's contraet on ground that

ilr" **, *.aition, and maintcnance of the time extensions granted board of education

iii" JJr,r"r, ptainiiff *". irlo."a. witit violated the Tenure Act' The Circuit

oi" *""r, of receiving the answer, plaintiff Court, Henry C'ounty' Jerry M' white' J-'

;;gil; amend hei complaint td -su-tst5 denied the petition a1! the teacher appeal-

t tJ tlav for one of the fictitious defend- ed' The Court of Civil Appeals' Bradley'-J''

ants. plaintiff argues that these facts ex- held that Tenurc Commission was justified

.t* rro lateness in utinging Cody into her in extending the time provided by the Ten-

*tioo. In effect, she claims she did not ure Act for board of education to file a copy

il;; 
" 

cause of action existed against cody of record of teacher's tprmination hearing

;a the time she filed her complaint' and in extending deadline for conducting

Recently this court ststed that where the hearing, when the board had two cases at

identityof a party is known at the time suit the s;e time, and the extensions did not

is filed, but whene the cause of action prejudice teschers right and hearing held

against such defendant is unknown, Rule was fair.
g(i), e.n.C.p., does not allow a relation

il"il ;-tt; 
"riginal 

filirc;f the complainl Affirmed'

where the statute of limitations has mn
Minton v. Whi*nant, 402 So'21 971 (Ala'

1981). We, thercforc, find plaintiff's argu- l. Statutes elSl(l)
ment to be without merit' In intcrpreting a statute' court must

In view of our holding, we pretermit dis- consider intent of legislature in enacting

cussion of the other issues raised by this the statut€'

appeal. The judgment of the circuit court

is affirmed. 2' Statutes e227

AFFIRMED. Use of word "shall" in ststute should

not be construed as mandatory if intent of

TORBERT, C. J., and FAULKNER, AL legisloture shows that term is mercly direc-

MON and EMBRY, JJ., concur' tory'



lil4 Ala {O7 SOUTHERN RMORTER, 2d SERIES

SS rC%-10, 1t24-1(b); U.S.C.AConst
Amend. 14.

6. Schoolr €l{l(5)
Tenure Commission was justified in ex-

tending time prnvided by Tenure Act for
boad of education to file copy of reeord of
teacher's termination hearing and in ex-
tcnding deadline for conducting hearing,
when the board had two cases at the same
time and extensions did not prejudice teach-
er's right and hearing held was fair. Code
1975, SS [O-?/-L0, 16-%-10(b).

7. Schools cf4l(5)
Tenure Commission can extend time

prescribed for hearing under Tenure Act
wher.e necessary to insurc full and adequate
hearing, as long as there is not undue delay.
Code 1975, SS 16-%-10, 16-%-10(b); U.S.
C.AConstAmend. 14.

time limits for different portions of the
appeal prooess. Specifically, the statute
provides that the board siafl deliver a rec-
ord of the teacher's hearing to both the
Commission and the teacher no later than
twenty days after the day upon which the
hearing took place. Furthermorc, the Com-
mission sia/I hold a hearing within forty
days after the decision of the Board. The
rule proniulgated by the Commission as to
the time period for filing the record with
the Commission follows the statute specifi-
cally. In this case the termination hearing
was held on June 17, 1980. Twenty days
from this hearing was July ?, 1980, and the
fortieth day was July 28, 1980.

On July 1, 1980 the Board requested that
the Commission granl a seven day exten-
sion beyond July 7, 1980 in which to file its
copy of the record of Key's termination
hearing. The rneason given for the exten-
sion rcquest was the fact that two appeals
against the Board werc pending at the
same time. Key's attorney objected to the
granting of an extension. It was not until
July 9, 1980, two days after the Board's
record should have been filed, that the
Commission granted a seven day extension.
On the same day the Commission also ex-
tended its deadline for conducting a hearing
beyond the forty day period. The Board
filed a partial copy of the rccord within the
seven day period, but failed to submit a
copy of its decision and findings until July
18, 1980, claiming the omission was inadver-
tent. The Commission affirmed the Board's
decision while denying Key's timely motion
to strike the Board's rccord.

On October l, 1980 Key petitioned the
Circuit Court of Henry County for a writ of
mandamus directing the Commission to set
aside its decision. Key contended that the
extcnsion of time granted by the Commis-
sion violated the express rcquirements of
S lG.%-10, Code 1975. The cincuit court
denied the petition and Key appealed to this
court.

The major issue to be decided is whether
the Commission had the authority to extend
the time p€riods contained in g fG-%-f0.
The Commission contends that the use of

Winn S. L Faulk, Dothan, for appellant.

Charles trr. Woodham, Sp. Asst. Atty.
Gen., of Halstead, Whiddon & Woodham,
Abbeville, Charles A. Graddick, Atty. C,en.,
and Linda C. Breland, AssL Atty. Gen., for
appelleea

BRADLEY, Judge.

this is a teacher tenure case.

In 19?6 Gloria Key was employed by the
Henry County Board of Fxlucation as a
kinderyarten teacher. In May 1980 she was
notified that her contract was to be termi-
nated at the end of the school year. The
neason given for the contrzct cancellation
was Key's failure to achieve parity with her
peers in the area of verbal and writing
skills. On June 17, 1980 the Board held a
hearing to consider the charges made
against her. After the hearing Key was
notified by the Board that her contmct was
cancelled on the ground of incompetence.
Key appealed to the State Tenure Commis-
sion (hereaftcr Commission) by filing wrih
ten notice as provided by S 1&-2-10, Code
lvls.

Section lF%-10(b) provides a tenured
teacher the right to appeal a contract can-
cellation. The statute provides specified

rEY

the word "shall" in I
only to be dircctory
The Commission also t
tensions should be allo'
ty can show necessity 1

of time. '[re aglee v

and affirm the judgmr

tU In this ease,8!r
tory interpretation, w
intent of the legislatr
statute. Morgan C,out
tion v. Alabama pubt,
Authoity,362 So2d 8t
v. Pennsylvania Thrcs.
Mutual Casualty Insa
444,92 So.zd [ (1957).
case is very clear in ih
cedes every pmvision w
The word shall is normr
mandatory, but in some
to be merely directory.

121 It has been held
sion relates only to for
directory. Mobile hun
utive hmmittn v. Mt
754 (Alat9?81 Bcrrrd o
fetwn hunty v. Sta14,
239 (1980). In the Mo
wa1 also stated that le1
trols over the use ofttnlgyrt' or .,must.r S
Stah-, m AIa. 414. l*
dlnissd, en^ denid,:
47, 19 LEd2d 6 (196C
word',shall,,' therefore,

}ry$ * mandatory if
te&8hturc shows that I
dircctory.

-tBI The purpose of tlr
ed in the act is to insur
uon of tcacher tenurc c

?uoty Board of Ettuc
f-t1te ?enure &lmmisli
(AIaCiv.App.t9Z8). It
that extcnsions of time
adequately perfom the
LY tt statute arre neoeEstte Board and the teact
hesring. In the preaent rtwo cases at the same



S

ferent portions of the
pecifically, the ststute
lard giall deliver a rec-
's hearing to both the
: teacher no later than
he day upon which the
Furthermorc, the C.om-
r hearing within forty
ion of the Board. The
t the C,ommission as to
filing the record with

ows the statute specifi-
,he termination hearing
?, 1980. Twenty days
as July 7, 1980, and the
y 28, 1980.

e Board rrequested that
nt a seven day exten-
t980 in which to file its
of Key's termination

n given for the exten-
r fact that two appeals
were pending at the
Itorney objected to the
Bion. It was not until
lays after the Board's
been filed, that the

a seven day extension.
e Commission also ex-
rr condueting a hearing

'y 
perid. The Board

f the record within the
ut failed to submit a
rnd findings until July
romission was inadver-
n affirmed the Board's
g Key's timely motion
rccord.

l0 Key petitioned the
y County for a writ of
the Commission to set
ey contended that the
rnted by the Commis-
press rcquirements of
75. The cirruit court
d Key appealed to this

be decided is whether
he authority to extend
tained in g 16-%-10.
pnds that tlre use of

the word "shall" in the ststute is meant

only to be directory and not mandatory.

The Commission also believes that such ex-

tensions should be allowed when either par-

ty can show necessity for such an extension

of time. We agree with the Commission

and affirm the judgment.

tU In this cBSe, as in all cases of ststu-

tory interpretation, we must consider the
intent of the legislaturc in enacting the
statute. Morgan C;ounty Board of Muca-
tion v. Alabama Public School & Ciollep
Authortty,362 So2d 850 (Ala.19?81; Drake

v. Pennsylvania Thrcshermen & Farmerc'

Mutual Czsualty Insurance C,o., 26 Alu
4&.,92 So.2d 11 (195?)' The statute in this
case is very clear in its provisions. It pre-

cedes every pmvision with the word "shall."
The word shall is normally considered to be

mandatory, but in some cases has been held

to be merely directory.

t21 It has been held that wherne a pruvi-

sion rclates only to form or manner, it is

directory. Mobile hunty fupublican Exec-

utive Committre v. Mandeville, 363 So.Zt

?54 (Ala.19?81; Board of Fiucation of Jef'
fenon County v. Statn, W l,Jra. ?0, 131 So.

239 (1930). In the Mobile County case it
was also stated that legislative intent con-

trnols over the use of the words "shall,"

"may,t' or ttmust.tt ,See also Morgan v,

Stata, m Ala. 414, 194 So.zd 8?f, aPPal
dismissed, cert. denid,389 U.S. 7, 88 S.Ct.

4?, 19 LEd.zd 6 (1967). The use of the

word "shall," thercfore, should not be con-

strued as mandatory if the intent of the

legislature shows that the term is merely

directory.

t3] The purpose of the time periods list-
ed in the act is to insurc b spedy disposi-

tion of teacher tenurc cases. Washinglnn

C,ounty Boad of Eiueation v. Alabama

State Tenurc C,ommission,364 So.Zt 8t!8

(Ala.Civ.App.19?8). It is clear, however,

that extensions of time within which to
adequately perform the functions required

by the statute are neoesslsry to insut€ both

the Board and the teacher a full and fair
hearing. In the present case the Board had

two cas€s at the same time. It surclY

Ala. f35

would have been extremely difficult for the

Board to be able to prepare all of the neces'

sary documents and submit them on time.

Surely the legislature did not intend for the

time limits to be so strictly construed as to
preclude Bome neasonable extension where

an undue burden would be placed on the
Board or the teacher. Moteover, we do not
find the Tenurc C,ommission's promulgated

rule to be contrary to the above assessment

of S 16-%-10.

Appellant relies heavily on Washingtnn

Caunty Board of Education, supra. That

case, however, is clearly distinguishable

from the present case because in that case

the Washington County Board of Education

failed to rcquest an extBnsion of time until
after the statutory period had run. In the
present case the Board made a timely re-

quest for an extension, even though the

Crcmmission failed to rule on the nequest

until after the time period had run.

lll Another pul?ose of the act is to
insure the teacher a full and fair hearing.

Due process dictates that the teacher have a

full hearing. ln Wright v. Boatd of School

Commissionen of Mobile C,ounty,3g4 So.Zt

62 (Ala.Civ.App.l981), we upheld the right
of the Commission to adhere to the strict
time limitation. In that case, however, we

indicated that in certain circumstances an

extension might be granted by the Commis-

sion although we specifically stated that we

would not adhere to a "substantial compli-

ance" doctrine. Due process, however, is
not abrogated where no showing of preju-

dice is made and where the teacher is af'
forded a full and fair hearing without un'
due delay.

t5l The purpose of the Tenure Act ie
clearly to afford the teacher every opportu-

nity to have a complete hearing, and obvi-

ously the statute is meant to protect the

teacher. However, we feel that in certain

circumstances the C,ommission should be al-

lowed to grant rcasonable extensions of
time to not only a board of education but

also to the teacher.

[6, ?J In the case at bar t]ris court finds

that such exigent circumstances wene

KEY v. ALABAMA STATE TENLIRE COMMISSION
Cltc.$ AlLClvtPP. aoT So.2d lls



136 Ala

prtsent so as to justify the Commission
granting an extension. The Board made
the rcquest for an extension in a timely
manner. Further, the delay in filing some

of the pap€F due to an inadvertent emor
surely was not sufficient to prejudice Key's
rights. Finally, the Commission can extend
the time for the hearing for a reasonable
period where necessary to insurc a full and

adequate hearing. The teacher has not
shown that these extensions in any way
prejudiced her rights. There is also no

showing that the hearing was unfair. In
these cases then it is clear that the legisla-
ture did not intend to unduly burden the
Commission, but wantcd only to insure a

speedy hearing. As long as therc is not an

undue delay in the hearing, the Commission
has authority to grant reasonable exten-
sions of time to either party. We therefore
conclude that the Commission properly ex-
ercised its authority in this case. As a

rcsult the judgment of the cirncuit court is
affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

Barbera AARON

v.

AIIIBAITIA STATE TENT.'RE
COMMISSION, et el.

Civ. 2837.

Court of Civil Appeals of Alabama

Nov. 4, 1981.

Proceeding was instituted on petition
for mandamus following decision of the
State Tenure Commission to sustain cancel-
lation of teacher's contract by school board.
The Circuit Court, Baldwin C,ounty, Telfair
J. Mashburn, J., denied petition, and teach-

407 SOUTITERT{ REPORTEN, 2d SERIES

er appealed. The Court of Civil Appeals,

Holmes, J., held that: (1) action of the
school board in canceling physical education

teacher's contract was neither arbitrarily
unjust nor for political or personal nea{nns

given evidence that the teacher was insub
ordinate by wilfully refusing tp follow the
reasonable rules and regulations of the di-
rector of physical education, by refusing to
follow grading prncedures, by engaging in
several heated discussions with the director,
and by blatantly refusing to submit to the
dircctor's authority, and (2) evidence that
individual was specifically hired to be the
director of physical education and that the
entire physical education faculty, except the
subject teacher, understood that the indi-
vidual was in charge of the department was

sufficient to show that the individual to
whom the teacher was allegedly insubordi.
nate did have supervisory authority over
the teacher.

Affirmed.

l. Schools e14l(5)
Conclusions and judgments of the State

Tenurc Commission in a teacher termina-
tion case will not be reversed on review as

being unjust unless it is against the prepon-

derance of the evidence and the overwhelm-
ing weight of the evidence. Code 1975,

s 16-%-38.

2. Schoolg c=137
Action of the school board in canceling

physical education teacher's contract was

neither arbitrarily unjust nor for political or
personal nearxlns given evidence that the
teacher was insubordinate by wilfully re-
fusing to follow the reasonable rules and

regulations of the director of physical edu-

cation, by refusing to follow grading proce-

dures, by engaging in several heated discus.

sions with the director, and by blatantly
refusing to submit to the director's authori-
ty. Code 19i5, S 16-24-38.

3. Schools c=137

Incompetency in context of cancella-

tion of a teacher's contract is a term which
may be used to mean disqualification, ina-

bility, or incapacity.
38.

4. Schools c-Ul(5)
Evidence that ind

ly hired to be the dirc<
tion and that the enti
faculty, except the su

stood that the individ
the department was sr

the individual to wh
allqedly insubordinat
sory authority over thr

$ 16-%-38.

5. Schools 6l:18
A school bosrd is

consider evidence of
proceeding to cancel
even though it might I

court of law. Code l!
6. Schoolr elilS

Receipt by schm
conceraing teacher's r
ployment compensatio
ing to cancel tcachert
less wherc other com,
evidence was admittcr
nation that teacher w
incompetenL Code 1g

Gregory B. Stein o1

& Stein, Mobile, for a;

Norborne C. Stone,
Granade & Crosby, Ba
lees.

HOLMES, Judge.
ThiE is a teacher tel
firc teacher, Barbar

teen years in the Ba
eystem. For the oast
Physical education at
Iligh &troot

On September g, 19[
ty BoarU of Fxlucatior
of the propaed cancelllte teacher contest€d
hearing before the Bor
to cancel the teacher'g