Laura Wilson petitions this court for a writ of mandamus in this case concerning the application of the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975.
In April 2005, the Madison County Board of Education ("the Board") terminated the employment of Wilson, a tenured teacher employed by the Board. Wilson contested her dismissal pursuant to § 16-24-9, Ala.Code 1975, and a hearing officer was selected to hear her case, pursuant to § 16-24-10(a), Ala.Code 1975. Following a hearing, the hearing officer issued a decision reinstating Wilson's employment. The Board filed a notice of appeal to this court, and we granted the appeal, pursuant to § 16-24-10(b), Ala.Code 1975.
A dispute arose between Wilson and the Board regarding whether the hearing officer who had originally conducted Wilson's hearing in 2005 should conduct Wilson's hearing on remand. Wilson contended that the original hearing officer should conduct the hearing on remand. The Board, however, contended that a new hearing officer should hold the hearing. Upon receiving the supreme court's judgment in Wilson II, the original hearing officer contacted Wilson and the Board and recommended dates for a new hearing. However, because the parties could not agree on who should conduct the hearing, no hearing was held. On December 13, 2007, the Board sent a letter to Wilson stating that her dismissal had become "final." In that letter, the Board cited Wilson's failure to "participate in the selection process for a new hearing officer in [her]... case."
On December 27, 2007, Wilson filed a "notice of direct appeal" with the chief administrative law judge ("the chief ALJ") of the office of administrative hearings in the office of the Alabama Attorney General. Wilson filed her notice of appeal purportedly under § 16-24-21(a), Ala.Code 1975, which provides: "A teacher who has attained continuing service status and has
On March 26, 2008, Wilson filed with this court a "Motion for Clarification of Order." In that motion, Wilson asked this court to clarify its decision in Wilson I to indicate whether, on remand, the original hearing officer should conduct the hearing or whether a new hearing officer should conduct the hearing. On April 22, 2008, this court, ex mero motu, issued an order placing the appeal in Wilson I on rehearing in order to consider Wilson's motion. However, on August 29, 2008, this court, with Judge Bryan filing a dissenting opinion, withdrew its order of April 22, 2008. Madison County Bd. of Educ. v. Wilson, 14 So.3d 157 (Ala.Civ.App.2008) ("Wilson III"). Wilson subsequently filed a petition for a writ of certiorari with the supreme court. On January 19, 2009, the supreme court denied the petition without opinion, with Justice Smith filing an opinion concurring specially and Chief Justice Cobb and Justice Murdock filing dissenting opinions. Ex parte Wilson, 14 So.3d 158 (Ala.2009) ("Wilson IV").
Following Wilson IV, Wilson, still seeking a hearing pursuant to this court's remand in Wilson I, attempted to have the original hearing officer conduct a hearing. According to both parties, the original hearing officer issued a letter on February 16, 2009, indicating that he would hold a hearing on Wilson's case on June 17, 2009. The Board contends that it did not receive notice of the February 17, 2009, letter until May 20, 2009, when it received from Wilson a list of anticipated witnesses and exhibits concerning the scheduled hearing.
Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).
The Teacher Tenure Act specifies the procedure for selecting a hearing officer immediately following a teacher's filing of a contest challenging that teacher's dismissal. Section 16-24-10(a), Ala.Code 1975, provides, in pertinent part: "If notice of contest is filed pursuant to Section 16-24-9[, which concerns the cancellation of teacher contracts,] the hearing officer shall be selected as provided in subsection (b) of Section 16-24-20." Section 16-24-20(b), Ala.Code 1975, provides, in pertinent part:
Section 16-24-10(b) addresses the procedure involved when this court reverses a hearing officer's decision: "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." Thus, when a hearing officer's decision is reversed and the case is remanded for "another hearing," the Teacher Tenure Act does not explicitly state whether that hearing should be held before the original hearing officer or before a new hearing officer. We now construe § 16-24-10(b) as directing remand to the original hearing officer when remand is necessary. "The cardinal rule in statutory construction is to give effect to the legislative intent as clearly expressed in the statute or as may be inferred from the language used as well as from the reason for the act." Ex parte Berryhill, 801 So.2d 7, 11 (Ala.2001) (emphasis omitted). The legislature, in amending the Teacher Tenure Act in 2004, intended "to streamline the contest and appeal processes for teachers." Title to Act No. 2004-566, Ala. Acts 2004. Remanding the case for a new hearing before the original hearing officer is consistent with this intention and would be judicially efficient, whereas holding a hearing before a new hearing officer unfamiliar with the case would undermine this intention.
If we were to construe the Teacher Tenure Act as requiring the selection of a new hearing officer in all remanded cases, that construction would seemingly require new evidentiary hearings to be held. Such a procedure would preclude the original hearing officer, in applicable cases, from merely applying the correct law to the facts with which that hearing officer is familiar. The more efficient and reasonable course is to simply remand the case to the original hearing officer. Moreover, remanding the case to the original hearing officer reflects the procedure typically used when a circuit court's judgment is reversed and the case is remanded to that circuit court. In those situations, the trial judge who originally presided over the case typically presides over the case on remand, as a matter of course.
This court's decision in Bishop State Community College v. Williams, 4 So.3d 1152
Although the original hearing officer in this case had the duty to hold a hearing on remand, a writ of mandamus directing the original hearing officer to hold the hearing would not be appropriate absent a showing that he refused to perform this duty. Ex parte Empire Fire & Marine, 720 So.2d at 894. As noted, the original hearing officer scheduled a hearing for June 17, 2009. On June 8, 2009, before the hearing was scheduled to be held, Wilson filed her petition for a writ of mandamus in this court. The materials before this court do not indicate, and Wilson does not assert, that the original hearing officer has refused to conduct a hearing. Accordingly, at this point in the proceedings and based on the materials before us, we cannot issue a writ of mandamus compelling the original hearing officer to conduct a hearing in Wilson's case. Id. Therefore, we deny the petition for a writ of mandamus.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
THOMPSON, P.J., concurs in the result only, with writing.
THOMPSON, Presiding Judge, concurring in the result only.
I conclude that Laura Wilson's petition for a writ of mandamus was not timely filed. The petition for a writ of mandamus seeks essentially the same relief Wilson sought in her March 26, 2008, "motion for clarification," which this court ultimately denied by order dated September 4, 2008. See Madison County Bd. of Educ. v. Wilson, 14 So.3d 157 (Ala.Civ.App.2008) ("Wilson III"). Our supreme court denied Wilson's petition for writ of certiorari with regard to this court's ruling in Wilson III. Ex parte Wilson, 14 So.3d 158 (Ala.2009) ("Wilson IV").
When, after remand, the dispute arose between the parties concerning whether a new hearing officer should be appointed, Wilson did not take an adversarial litigation position in opposition to the position taken by the Madison County Board of Education ("the Board"). Rather, Wilson filed a "motion for clarification" in this court, seeking advice from the appellate courts as to how to proceed. In this petition, Wilson seeks to compel the Board to take part in a hearing before the original hearing officer; she could have sought this relief in 2007 by filing a timely petition for a writ of mandamus shortly after the release of this court's opinion in Madison County Board of Education v. Wilson, 984 So.2d 1153
14 So.3d at 159 (Smith, J., concurring specially).
I conclude that Wilson did not file this petition for a writ of mandamus within a reasonable time and, therefore, that she failed to properly invoke the jurisdiction of this court. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003). Accordingly, for that reason, I concur in the result.