Barger v. Jefferson County Board of Education Court Opinion

    56 Ala. U9 SOTITHERN BEPORTEN.2d SERIES

{. Schools and Schml Dtstrlcts e"l4l(5)
Where teacher was given notice of

charges by letter and by personal serviee
and thereafter had full opportunity to pre-
pare his defense and be heard on the
charges, statute providing for the manner
and form of notice of proposed cancellation
of teacher's contract was satisfied. Code of
Ala., Tit. 52, S 359.

5. Schools end School Districts €l4l(5)
Where teacher had been given notice of

the charges against him and opportunity to
be heard but had not been informed that
board of education proposed cancelling his
contract, the cancellation was improper
even if the board could have been viewed as
ratifying the actions of the fint assistant
superintcndent. Code of AIa., Tit. 82,

s 359.

6. Schooh and School Dtstrtcb Ff44(2)
Cancellation of teacher's contract is the

sole prerogative of the employing board of
educstion.

7. Schoola and School Dtstrtctr cf4l(5)
Teacher who objected to hearing on the

ground of imprcper notice and absence of
action by the school board in initiating the
proceedings at every step did not waive his
rights under statute dealing with termind-
tion of tcaching employrnent. Code of Ala.,
Tit. 52, S 359.

Wtllle Lcc BROWN

v.

AI.ABAMA STATE TENURE
COMMISSION.

Civ. 1140.

Court of Civil Appeals of Alabama.

Aug. l?, 19?7.

Teacher whose employment contract
had been terminated sought mandamus to
require the State Tenure Commission to
reven€ its action sustaining the cancella-
tion of his contract. The Cirtuit Court,
Jefferson County, William A. Thompson, J.,
denied relief and teacher appealed. The
Court of Civil Appeals, Ilrright, P. J., held
that: (l) teacher had been given sufficient
notice of the charges against him and an
opportunity to be heard; but (2) teacher
had not been given sufficient notice that
the board of education was considering the
possibility of cancelling his employment
contract.

Reversed and remanded with di-
rcctions.

l. Mandamuc €187.9(3)
Board of education which did not ap

peal from judgment of the circuit court
which denied petition for writ of mandamus
directed to Stste Tenure Commission could
not ass€rt on teacher's appeal that it was
entitled to relief which it had sought in the
proceeding.

2. Mendamue e187.4
Issue which was not referred to in peti-

tion for mandamus presented to circuit
court could not be raised on appeal.

3. Schoola and School Dlatricts F14l(5)
Exact prcvisions of statute providing

for termination of contract of teacher need
not be followed so long as therc is in fsct
notice of specific charges and opportunity
for hearing as set forth by statutc. Code of
Ale., Tit. 52, S 359.

U. IV. Clemon, Adams, Baker & Clemon,
Birmingham, for appellant.

Donald B. Sweeney, Jr., Birmingham, for
appellee.

WRIGHT, Presiding Judge.

Willie Lee Bruwn, a teacher with continu-
ing se;vice status in the Jefferson County
School system appeals firm a denial of writ
of mandamus to the Alabama State Tenure
Commission by the circuit court of Jeffer-
son County. We rcverce and direct that the
writ of mandamus be issued.

tU Before discussion of the basic issue
of the appeal, we note that the Board of
Fxlucation srgues in its brief that it is enti-

BROWN '

tled to relief requested bY i

which was consolidatcd belou

the petition for writ of man

out reference to the merits (

we note that no aPPeal was

Board from the judgment. I
rcview here. Mutual Sav. I
Montgomery, 34? So2d 13Zl

A.B.R. 1691 (le?o.

tz] We note that Mr. Bm

en issue here the failure oj

provide a rePorter or comp(

pher to take and trsnscribe

the Board of Blucation n
dismissal. trre find no rcl
issue in the petition for man

ed below. It is ther.efore t

this appeal. McDuffie v. E
298, 315 So.2d 573 (1975).

The only issue PrnPerlY
whether exact compliance '

provisions of Title 52, S 351

bama (19a0) (Recomp.1958)
lorc a subsequent cancellatir
of &lucation may be susta

The provisions of S 351

rubmits wene not followed

'The employing board ol
give notice in writing to t

ing in detail the ieasons
cencellation and naming
rnd place at which the 1

pear before the board to
tice, which date shall n

twenty nor more than t
the seryice of such notic
by United States regis
port8ge prepaid thereon,
last known address, such
inform the teacher thet
hct esid cancellation t
lile with the board at lea
to the date the matter i
uotice ol an inEntion t
It ir conectly stated by

F o* provisions of S

lred by the Board of
lollowing is a summary
tbhh this appeal aroae.



Id SERIES

r end School Diatrictr
e teacher *r" gir"r';r'J":l
Y..l"tt.e.-"1_d by pereonal **;
{t"-r h"d full opportunity to pri
defense and be heard ; t:iatute. providing for the manner
rf notice of pmpoeed cancellation
e_contnact wae sstisfied. C"d;;;
i2, s 8sg.

end School Digtricts

t1{* \* *, r,,",;,1l:i
, 
1gpiTt him. and opportunity f

lut had not been info"mea ifrai
Cucation pnrposed canceiling ils;he cancellation wasb"&d;rd;;ffi"[*[T
re actions of the firet a&sistant
lent. Code of ,lta., tit. li,

lnd School Dlshicts el4lr|(2)
rtion of teacherh contract is the
rtive of the employing boad;i

md School Dlgtricts etll(E)
who objected to hearing on the

mproper notice and absence of
e echool board in initiating the
at every stcp did not waive his

- 
statut€ dealing with termina-

ing employrnent. Code of Ala.,
;9.

-

non, Adams, Baker & Clemon,
for appellant.

Sweeney, Jr., Birmingham, for

Presiding Judge.

3rcwn, a teacher with continu-
atus in the Jefferson Cnunty
appeals firm a denial of wrii'to the Alabama State Tenure

y the circuit court of Jeffer-
ile reverse and direct that the
amtre be iseued.

discuesion of the basic iesue
, we note that the Board of
ues in its brief that it is enti-

BROWN v. AII\BAMA STATE TENIIRE COM'N Ala 57
Cltc r+ AlrclvtOp, taC Sord !O

.,-4 to relief requested by it in an action The letter which initially began the pro-

lii"f, *"r consolidatcd below for trial with ceedinga against Mr. Brown was datcd

l. ,,etition for writ of mandamus. With- March 26, 1975. It was from the first as-

Li Lr"."r* to the merits of that matter, sistant superintendent suspending Brown

].'r"," that no appeal was taken by the from all duties as a teacher, charging him

X;;;"; the judgrnent. There can be no with acts which caueed the suspension and

5;1;;. fiutiA Sav. Life Ins. h. v. informing him that he could request a hear-

1'":;;;;;, ti S", 1BZI (Ala.l9?T), tl ing before the first assistant superintendent

iii.3."i;;i'<rr?il--- ffi'tr;ffi1:"*',ffi;trf't:
IZI We note that Mr. Brown presents as son County' Brcwn requested a hearing

.rt"i|r" i""" tf," failure of the Board to and by registcred letter of April 2, 1975, he

orovide a reporter or competent stenogra- was informed that the hearing would be

il;t take and t "nr"ri#ii";;;il;y 
held beforc the Boad of Fxlucation on April

ffi';* "f E<lucation ;;il;fffi 10 at 8:30 A'M' He was sdvised of his

il;fo, w". ri,a-no-'"]"*n."'to ti"i i:f[: :ltlr"Jff]}'il*fi'T# :l*J],i
bue in thepetition to:-T"1u^l1tlYt Fo, ,or" resson the hearing of April-l0
ed below' It is thettfole not an issue on

rhir appeal. McDuffie';. ;;;;,ilil was not held' but a meeting occurred on

zes, Br5 so.zd b?B (rsd;. 
L'wr*" 

#,,t;'il,lr"L:'il1"5:' 
Brown and coun-

The only issue ploperly before us is At the meeting of May 8, there was given
rhether exact compli"lT_Iitl lne ylt-ce to counsel for Brown a-packet of informa-
plovisions of Title 52, $ 859, Code of -Ala- tion documenting the charges originally
Lma (1940) (Recomp.1958) L t"qI{ t made by the lettcr of Marc}i ZO. Counsel
fore a subsequent cancellation by the Board complained of lack of opportunity to exam-
of Education may be sustained. ine the contents of the packet. After con-

The provisions of g 85g which Brown sultation, the Board continued the hearing

rubmitg werc not followed ane as follows: to a later time to be agreed upon'

"The employing board of education shall The hearing was subsequently held on

give notiL L *rltlng to the teacher stat- June 26, 1975. There was preliminary dis-

Ing in detail the ieasons for the proposed cussion between counsel. Counsel for

ca-ncellation and naming the exact time Brcwn inquired if the letter of March 26

and place at which the teacher may 8P constitut€d the notice to Brcwn required by

pear before the board to answer oid n*. $ 859. The response was that it did in part

iice, which date shall not be less than and was supplemented by the documenta-

twenty nor mone *"i ifrirt, days after tion delivered to Brown personally on May

the service of such *tt;; ti""te".t "t 
8 and by the notice given at the prcvious

by United States registcred mail with continued hearing' C'ounsel for Brown

postsge prepaid th"J;;;;ii-t"""r,"it ststed that he had been given full notice of

last known address, such notice shall also the charges' underst'od them and had been

inform the teacher that in order to con- given opportunity !o.pr€pare to defend'

tcst said cancellation the teacher must However' he insisted that the charges and

file with the board atjea,t il;;; il;; *rils:ti# :lLxi*?,t,H;T
to the date the matter is Bet for hearing
notice or an inentioii . In,Irii-"* ;:t'#rX,mfln$irf""*,:lr^Jrfi1
It is correctly statcd by Mr. Brown that Brcwn. Brcwn appealed to the Teacher

the exact provisions of S 859 were not fol- Tenurc Commission. The Oommission ne-

lowed by the Board of Education. The vereed the action of the Board for failure of
following ie a summary of events out of the Board to send up the complete rpcord of
rbich ttris appeal arose. ttre proceedings before it.



58 Als.

Immediatcly after the action of the Com-

mission, the superintendent sent Mr. Brown

by registered mail, with 8 copy to hie attor'
ney, notice of suspension and another hear'

ing by the Board of the original charges.

The letter was dated October D,1975 and

the hearing before the Board was to be

October 30. That date was later changed

to November 20 by letter to counsel for
Brcwn. The hearing was held on Novem-

ber 20, l9?5 with each of the witnesses for
the Board stating on oath that their testi-

mony as transcriH from the fint hearing

was true and correct. They were present

and available for cross-examination. Addi-

tional testimony and exhibits were intro-
duced and the Board again cancelled the

contract of Mr. Brcwn as of March 26, 19?5'

Brcwn again aPPealed to the Tenure

Commission. On January 7, 19?6, the Com-

mission sustained the action of the Board,

finding that the Board had sufficiently

complied with Title 52, S 359.

t31 Responding now to the issue

prcsented, we do not hold that the exact

provisions of S 369 as to the msnner and

iorm of notice of the proposed cancellation

have to be followed. It is evident that the

purpose of prescribing a particular m-an-ner

of giring notice with the provision of time

for setting a hearing is to ensurc due proc'

ess. That is, notice of the specific charges

brought together with adequatc opportuni-

ty for preparation for a hearing. We do

mn tnat there must be, in fact, notie of
specific charges, and opportunity for hear-

ing not less than that provided by S 359.

tll In this case, though the letter of
March 26, 19?5 was not in compliance with

S 859 in morc then one respect, it did begin

the events which ultimately culminatcd in

the hearings. Even Mn Brown admits thst
he was given notice of chargel by letter and

by penonal s€rvice and that thereafter he

ma fuU opportunity to prepare a delense

and be heard on those charges. Sre believe

that is all that is necessary so far as form is

concerned.

.The other contention of Mr. Brcwn rc'
lates to subgtsnc€ rather than form.

349 SOUTHERN REFORf,ER,2d SEBIES

t51 Section 359 requires that "the em-

ployrng board of education shall give notice

in writing to the teacher [ofl the proposed

eancellation . ," Counsel for Mr.
Brown from the first hearing through the

last very carefully but conspicuously,

brought out that there was no action taken

by the Board of Education of Jefferson

County proposing cancellation of the con-

tract of Brown. He even subpoenaed the

minutes of the Board to show the absence

of any consideration of action against

Brown by the Board. To argue that the

Board ratified the act of the first assistant

superintendent, fails to meet the statutory
requirement. The requirement of pne-no-

tice exercise of its authority by the Board is

clear. The intent of the legislature is made

evident when it is known that prior to Act
7?3, Acts of Alabama 1953, S 357 stated:

"[B]efore the consideration by the em-
ploying board of education, of the cancel-

lation of any such contract, such teacher

shall be notified in writing . ."
Act 690, Acts of Alabama 1951' Pages
1191-92.

t6l As previously quotcd, S 359 now re-

quires notice be given by the employing

board of the proposed cancellation. The

cancellation of a teacher's contract is the

sole prerogative of the employing board of
education. It may be said it is the superin-

tendent who prtposes cancellation. That is
probably the usual case. However, the

Uoara aoe" not have to accept the proposal.

Only the board may determine that cause

exists for cancellation and that notice to the

teacher shall be given and a hearing there-

on held. Such consideration and determina-

tion should be recorded in the minutes of
the board.

To say that the Board in this crse did
hold a hearing and determine cancellation

via the fint hearing does not satisfy the

requirement of subsequent consideration,

decigion and notice of the second hearing.

It was admittBd that the superintendent,

Dr. Hall, immediately notified Brown ol the

second hearing without any consultation

with the Boad. He even set the time,

place, date and the format for the hearing.

this appears presumptuous to say the least.

It was said in Bogld,
C,ounty v. Baugh,Z4l A

8n, 8?5 (1941) as follo
"The authorities ar

an act done in behaU
authority is by positir
cy declared to be ille
act is not subject to

t7] We recognize tl
tems are largely run
and administrative pere
education usually follon
tions. However, the le1

certain nondelegable d

bilities upon the boards
began $ 359 with the
direction:

"An employment co
er on continuing ser
cancelled only in the
(Our emphasis.)

It was said in ffrrrit
County Bd. of Educ, ?5
83 (1948) that the prov
mandatory and jurisdic
indicated that waiver is
ever, there is no eviden,
case. C,ounsel objected
the ground of improper
of action by the Boan
proceedings at every t
therc was a fair hearinl
due prncess is not enoug
charges were fully sup
dence is not enough. Tc
the statute be followed i
ty ia not enough. The
Neither the superintenr
County Board of Exlucr
may change that law. I
the law for many yean
are very simple and eg
Board of &lucation, its c

tendent should have beeit Had they complied
would not be required t
ment of the circuit cou
rl:erse the judgment o
musion and direct the ,

to- rcverse the judgmer
Utlucation for failure to



TIES

l59 rtquires that ,,the em-
I education shall give notice
e teacher [ofj the pnoposed
. . ." Counsel for Mr.

r fint hearing through the
efully but conspicuously,
I there w8a no action taken
rf Education of Jefferson
rg caneellation of the con-

He even subpoenaed the
Board to show the absenee
rration of action qgainst
]oard. To argue that the
re act of the first assistant
fails to meet the statutory
he rcquirement of pre-no.
Ls authority by the Board is
t of the legislature is made
is known that prior to Act
rbama 1953, S 35? stat€d:
e consideration by the em-
of education, of the cancel-
ruch contract, auch teacher
ed in writing . .,'
of Alabama 1951, pages

usly quoted, g 859 now re-
given by the employing

oposed cancellation. The
teacher's contract is the

of the employing board of
y be said it is the superin-
loses cancellation. That is
ual case. However, the
lve to accept the proposal.
nay determine that cause
rtion and that notice to the
Jiven and a hearing there-
Eideration and determina-
corded in the minutee of

e Board in thie case did
nd determine cancellation
ring does not satisfy the
lubsequent consideration,
p of the eecond hearing.
that the euperintendent,
tely notified Brown of the
vithout any consultation

He even set the time,
e format for the hearing.
rmptuous to aay the least.

McWILI,IAMS V. McWIIIIAMS
ctttr., AL.CfvIDD,tat Sord !c

It was said in Boe,rt of Ecluc. of Manhall REVERSED
Caunty v. Baugh,240 AIa.891,895, 199 So. DIRECTIONS.
8n,825 (1941) as followe:

Ala. bg

AND REMANDED WITH

and HOLMES, U., ooncur."The authorities are to the effect that BMDLEY
an act done in behalf of another without
authority is by positive law or public poli-
cy declared to be illegal and void. Such

act is not subject to ratification."

t71 IVe recognize that the school sys-

tems are largely run by superintendents
and administr8tive personnel and boards of
education usually follow their recommenda-
tions. However, the legislature has placed

certain nondelegable duties and responsi-
bilities upon the boards. It did so when it
began S 859 with the following explicit
direction:

"An employment contract with a teach-
er on continuing service etatus may be

caneelled only in the following manner".
(Our emphasis.)

It was said in Whittinglan v. Barbour
County Bil. of Educ., %0 Ala. 692, 86 Sozd
83 (1948) that the provisions of S 859 are

mandatory and jurisdictional. It is ther€
indicated that waiver is not poesible. How-
ever, there is no evidence of waiver in this
case. C,ounsel objected to the hearing on
the ground of improper notice and absence

of action by the Board in initiating the
proceedings at every step. To aay that
there was a fair hearing and observance of
due process is not enough. To say that the
charges were fully supportcd by the evi-
dence is not enough. To say that to require
the statute be followed ig a mere tcchnicali-
ty is not enough. The ststute is the law.
Neither the superintendent, the Jeffenon
County Board of Fxlucation nor this court
may change that law. The statut€ has been

the law for many years. Its requirements
are very simple and easy to follow. The
Board of Exlucation, its eounsel and superin-
tendent should have been fully eognizant of
it. Had they complied with it this court
would not be required to reverse the judg-
ment of the circuit court, and direct it to
nevene the judgment of the Tenure Com-
mission and direct the Tenure Cnmmission
to reverse the judgment of the Board of
Education for failure to comply with $ 859.

D'onald E. McWIIIIAMS

Y.

Shirley Ann McMLLIAMS.

Civ. 1142.

Court of Civil Appeals of Alabama.

Aug.17,197?.

Husband and wife institut€d divorce
proceedings. The Circuit Court, Mobile
County, Michael E. Zoghby, J., entered final
decree of divorce which ordered eale of, and
division of proceeds of, jointly owned prcp
erty and husband appealed. The Court of
Civil Appeals, Wright, P. J., held that or-
dering of the sale and division of proceeds

did not constiQute giving of alimony to wife.

Affirmed.

l. New Tliel e3
Motion for rchearing must depend

upon prior entened judgment or order.

2. Appeal end Error e"170(2)

C,onstitutional question will usually not
be considered when raised for first time on
appeal.

3. Divorce ts238
Proof of adultery does not prohibit dis-

crctionary award of alimony and aupport to
wife in divorce case.

l. IXvorce eZll
Ordering sale of, and diviaion of pro-

ceeda of, jointly owned property did not
constitute glving of alimony to wife.