This discretionary appeal from an arbitration decision entered by a hearing officer in accordance with Ala.Code 1975, § 16-24-10(a), concerns the proposed nonrenewal (termed a "partial cancellation") by the Board of School Commissioners of the Mobile County school district ("the Board") of the central-office employment of Gloria Glenn, a tenured teacher ("the teacher"), pursuant to the Board's system-wide reduction in force ("RIF"), and its corresponding efforts to retransfer her to a teaching position.
The record reveals that the teacher was first employed by the Board as an elementary-school teacher in 1980. Pursuant to Ala.Code 1975, § 16-24-2(a), the teacher attained continuing-service status, a status colloquially known as "tenure," as a teacher by virtue of her having been reemployed by the Board for three consecutive years in that role. After a six-year stint working for the Board as a "Title I facilitator" and a reading-intervention specialist, the teacher was employed by the Board on June 19, 2006, as a "school improvement specialist," a position that required her to be responsible for ensuring that particular schools are properly following federal guidelines applicable to educational subsidies received by the Board from the United States government. She was employed by the Board in that position during two academic years, 2006-07 and 2007-08.
In Ex parte Oden, 495 So.2d 664, 665 (Ala.1986), the Alabama Supreme Court made the following pertinent observations regarding tenure of teachers and other supervisory educational personnel:
The record reveals that in 2007 the Board determined that it would not be able to comply with a statutory requirement that it "develop a plan to establish
In early May 2008, two letters from the Board were hand delivered to the teacher. One of those letters, dated May 9, 2008, informed her that the Board's superintendent intended to recommend "partial cancellation" of her employment in the Board's central administration, citing, among other things, a "[j]ustifiable decrease in the number of certified support positions in Central Administration pursuant to implementation of [the RIF] by the Board . . . because of budgetary considerations." Although that letter used the term "partial cancellation," the letter further noted that the Board's action was "not a performance-based decision" and that it was made "because of budgetary consideration for the 2008-2009 school year which influences your current position" (emphasis added). The teacher was informed that she would be afforded a conference with the Board regarding that recommendation by making a request for such a conference within 15 days of receiving the letter. The second letter, dated May 6, 2008, informed the teacher that the Board, on May 5, 2008, had approved the superintendent's recommendation to transfer the teacher from her current position in central administration based upon a "[j]ustifiable decrease in the number of certified support positions . . . pursuant to implementation of reduction in force policy by [the Board] because of budgetary considerations." That letter informed the teacher that she would be afforded a hearing regarding the proposed transfer if she requested one within 15 days of receipt of the letter.
In separate filings, the teacher requested a hearing before the Board on her "mandatory transfer from [her] job as School Improvement Specialist" and on the "partial cancellation of employment." The Board held a hearing on June 2, 2008, after which the teacher was notified on June 9, 2008, that the Board had upheld the superintendent's recommendation that the teacher's employment contract be partially canceled (and, thus, that the teacher's transfer be upheld). The teacher was also notified that she could seek review of that decision by filing a written notice of appeal to a hearing officer. The teacher timely sought such review. After an evidentiary hearing, at which witnesses for the Board and the teacher testified and exhibits were admitted into evidence, the hearing officer issued a decision determining (a) that the Board had violated Ala. Code 1975, § 16-24-12, which pertains to automatic renewal of a teacher's employment for an ensuing school year "at the same salary" absent notice to the contrary before the end of the preceding school year; and (b) that the teacher had attained secondary tenure as a school improvement specialist on the day after the second anniversary of when she was hired as a school improvement specialist. Based upon those conclusions, the hearing officer purported to "den[y]" the proposed partial cancellation of the teacher's employment contract.
The Board sought review of the hearing officer's decision pursuant to Ala.Code 1975, § 16-24-10(b). After receiving submissions from the parties, we determined that the Board's appeal presented "special and important reasons" that warranted appellate review under that statute, and we directed the parties to submit briefs in advance of the submission of the case for decision. Upon review of the full record
As we have noted, at the time the teacher was employed as a school improvement specialist on June 19, 2006, she had earned tenure as a teacher. Under previous Alabama cases, the teacher's "promotion" to the specialist position, which would appear to fall within the expansive construction of the term "supervisor" espoused by the Alabama Supreme Court in Ex parte Oden, 495 So.2d at 666-67, arguably started the three-year employment period after which the teacher would properly have been deemed "tenured" as a "supervisor," but that promotion did not affect her rights to a hearing with respect to a transfer from her supervisory position with the Board's central administration back to a teaching position in one of the Board's schools. See Ala.Code 1975, § 16-24-5 et seq. As we stated in Smith v. Alabama State Tenure Commission, 430 So.2d 877, 879-80 (Ala.Civ.App.1982), aff'd, 430 So.2d 880 (Ala.1983):
Thus, in this case, the Board was not entitled under the Teacher Tenure Act to simply terminate the teacher's current employment and reassign the teacher unilaterally to a teaching position; rather, it was required to afford the teacher the right to a pre-transfer hearing before doing so. We note, however, that although the teacher's hearing rights are properly referable to the provisions of the Teacher Tenure Act pertaining to transfers, there is also authority for the proposition that a prospective change in the employment conditions of a person entitled to tenure as either a teacher or a supervisor under § 16-24-2 amounts to a "partial cancellation" of that person's employment contract. See Mason v. Huntsville City Bd. of Educ., 591 So.2d 860, 862 (Ala.Civ.App. 1991) (in which an administrator's decision to direct a tenured principal to work an extra month as a summer-school coordinator was deemed reviewable as either a transfer or a partial cancellation of a former employment contract). Further, there is also Alabama authority for the proposition that even a nonrenewal of a nontenured educator's employment may
It appears that, based upon the existence of those parallel lines of legal authority and the prospect that not affording the teacher a full hearing on the termination of her central-office employment pursuant to the RIF would be deemed a denial of due process, the Board wished to accomplish its RIF as it applied to the teacher without denying any rights the teacher might have had to a hearing; therefore, it proceeded in parallel fashion to treat the RIF as it applied to the teacher as both a transfer and a partial cancellation. As the hearing officer noted in his order, however, the Board need not have done so: the proposed "partial cancellation" was expressly stated to be effective for the 2008-09 school year, indicating a planned nonrenewal of the teacher's school-improvement-specialist employment rather than a proposed mid-year termination thereof. That said, we note that, under Alabama law, "proceedings of school boards are usually kept by those not versed in the law and are more or less informal in character, and should not be given a narrow and technical construction"; further, "the records and proceedings of such boards . . . should be construed in such manner as to give effect to the manifest intention of the members." Holcombe v. County Bd. of Educ. of Marion County, 242 Ala. 20, 23, 4 So.2d 503, 506 (1941).
Nonetheless, that the Board elected (although erroneously) to treat the RIF as it applied to the teacher as a "partial cancellation" was, to the hearing officer, crucial: he opined that "[i]t makes little sense to provide tenured rights to a non-tenured employee and allow that employee to contest a contract cancellation when tenure for the position did not even exist." To the contrary, the Board's effort to effectuate the RIF by moving the teacher from the central office back to a classroom position was unquestionably an action that triggered the right to a pre-transfer hearing upon request under the legal principles we have set forth.
That the Board elected to use two different forms of notice to inform the teacher of her rights under the Teacher Tenure Act to a hearing (and, subsequently, of her rights to administrative review by the hearing officer) is in no way indicative of an intent to confer a second level of tenure upon the teacher, and the hearing officer, by effectively conferring such tenure by applying a virtual estoppel doctrine against the Board, acted outside the scope of the Teacher Tenure Act. See Madison County Bd. of Educ. v. Wilson, 984 So.2d 1153, 1160 (Ala.Civ.App.2006) (hearing officer in teacher-tenure case may not deviate from existing Alabama law), aff'd, 984 So.2d 1161 (Ala.2007). Rather, because the teacher was statutorily entitled to a hearing only as to the proposed transfer, and not the nonrenewal, the hearing officer's proper scope of review under the Teacher Tenure Act was to determine "whether the evidence was insufficient for the board to take the action, whether such action was taken for political or personal reasons, or whether such action was arbitrarily unjust." Ala.Code 1975, § 16-24-7. The hearing officer concluded that the Board had adduced substantial evidence demonstrating that its RIF as it applied to the teacher was neither politically motivated nor arbitrary, and there is no real dispute that the Board had valid reasons for seeking to transfer the teacher from her central-office position.
In summary, in effectuating notice of its RIF as it applied to the teacher for the 2008-09 school year before the end of the 2007-08 school year, the Board substantially complied with the provisions of the Teacher Tenure Act that applied to the teacher's particular employment situation, i.e., having attained tenured status as a teacher but not as a supervisor. The notices sent to the teacher clearly afforded her the precise transfer-review remedies permitted under the Teacher Tenure Act to those teachers who have yet to attain second-level tenure, although the notices did not perfectly observe the distinction between "partial cancellation" and nonrenewal. We conclude that the hearing officer erroneously adopted a "narrow and technical construction" of the Board's notices in concluding that affording the teacher a right to a review hearing in these circumstances amounted to a conferring of second-level tenure by estoppel. The decision of the hearing officer is therefore reversed, and the cause is remanded for the entry of an order allowing the Board to effectuate forthwith the transfer of the teacher from her central-office position.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and THOMAS, J., concur.
BRYAN and MOORE, JJ., concur in the result, without writings.