STATE OF ALABAMA

Fair Dismissal Act Hearing

[MP],
Employee,

v FMCS No. 08-00952

BISHOP STATE COMMUNITY COLLEGE,

Employer.
_______________________________________/

OPINION OF THE HEARING OFFICER

ON EMPLOYEE’S MOTION FOR STAY

May 30, 2008

For the Employee: For the Employer:

A. J. Cooper David M. O’Brien

Cooper Law, PC Jeffrey G. Miller
21 S Section Street Sirote & Permutt, PC
Fairhope, AL 36532 1 St. Louis Center, Suite 1000
Mobile, AL 36602
Raymond Bell, Jr.
Bell & Adams
182 St. Francis Street, Suite 300
Mobile, AL 36602
 I. The Procedural Posture Of The Case

On February 2, 2008, the undersigned was appointed as hearing officer in

this case under the Alabama Fair Dismissal Act (“FDA”), Ala Code §§ 36-26-

100 et seq., between Bishop State Community College (“Employer” or

“College”) and its employee, [MP] (“Employee”). On March 3, 2008,

Employee counsel served the Employee’s Motion to Reinstate Pay for Bishop’s

Failure to Provide Due Process (“Employee Motion”). On March 31, 2008, the

hearing officer issued the Opinion of the Hearing Officer on Employee’s

Motion to Reinstate Pay (“Opinion on Employee Motion” or simply “OEEM”).

The hearing officer granted the Employee Motion in part and denied it in

part, summarizing his orders and setting the schedule for the case as follows:

(I) The Employer forthwith shall put the Employee back on its payroll
with benefits and give her back pay for the period during which
her pay has been suspended.

(II) Within fifteen (15) days of the date of this opinion, the Employer
shall serve upon the Employee’s counsel and the hearing officer a
revised statement of the facts showing that the termination is taken
for one or more of the reasons listed in Section 36-26-102.

(III) Within fifteen (15) days of the date of this opinion, the Employee
shall serve upon the Employer and the hearing officer an itemized
list of her claims for reimbursement, and the parties then are to
attempt to negotiate a settlement of those claims.

(IV) The hearing is scheduled for June 2, 2008, unless the parties agree
otherwise.

(V) Unless the parties agree otherwise, on or before May 1, 2008, the

2
 parties shall submit to the hearing officer, with a copy to the
opposing party, documents supportive of, or in contravention to,
the action, as well as a list of witnesses to be called at such
hearing.

OEEM @ 22-23. On April 14, 2008, Employee counsel sent a letter to

Employer counsel, listing $29,932.57 in claims by the Employee for

reimbursement, largely for medical expenses incurred as a result of her loss of

insurance coverage.

On April 15, 2008, Employer counsel served a Motion to Reconsider

(“Employer Motion”), contending that the College’s “short and plain statement

of the facts”,

You committed financial improprieties in relation to the receiving of

financial aid, to falsifying your grade in a course, and to falsifying an
employee and dependent tuition waiver.

sufficed to satisfy the notice requirements of Ala Code § 36-26-103(a). The

College also contended that it cannot be required to reimburse the Employee for

the benefits that she has lost as a result of the suspension of her pay.

On May 1, 2008, the hearing officer issued the Opinion of the Hearing

Officer on Employer’s Motion To Reconsider (“OERM”), in which he ruled:

(a) The College’s Motion to Reconsider is DENIED.

(b) Unless the parties agree otherwise, if, within seven (7) days of the date of

this Opinion, the College has not complied with paragraphs (I) and (II) on

pages 22-23 of the Opinion of the Hearing Officer on Employee’s

3
 Motion to Reinstate Pay, dated March 31, 2008, the hearing officer will

entertain a motion by the Employee to dismiss the charges against her

with prejudice. Such motion must be accompanied by one or more

competent affidavits of individuals having personal knowledge of the

facts.

(c) In all other respects, the Opinion of the Hearing Officer on Employee’s

Motion To Reinstate Pay, dated March 31, 2008, remains in full force

and effect.

OERM @ 28-29.

II. The Employee’s Motion For A Stay

Having failed to receive the expected materials, on May 19, 2008, by

email the hearing officer requested a status report from counsel. Employee

counsel responded that a motion for a stay would be filed. The Employee’s

Motion To Stay Employment Termination Proceeding Pending Resolution of

Parallel Criminal Matters (“Motion for Stay”) is based upon the following

grounds:

1) Through her counsel of record, the employee hereby calls to the

attention of the Hearing Officer appointed pursuant to the Alabama
Tenure Law that Respondent, [MP] is the subject of criminal charges
directly related to the alleged grounds for termination of her
employment in the above styled case. The Clerk of the Mobile County
Circuit Court has advised that the cases of Ms. Woods and some 25
other employees are part of an ongoing investigation and have not yet
been presented to a grand jury.

4
2) One or more of the other persons under charges is an essential
witness in Ms. [P] employment case.

3) Undersigned Counsel has consulted with the attorneys for some of

the other charged persons whom Ms. [P] will call as witnesses in his
employment case. Those attorneys have advised that Ms. [P] and the
other witnesses are advised not to testify unless, or until all of their
criminal matters have been resolved.

4) While the undersigned believes that Ms. [P] will be absolved of any
and all criminal wrongdoing in connection with this matter,
nevertheless the parallel criminal proceedings will make it impossible
for her to be heard and/or receive due process unless the above
employment case is stayed, pending resolution of the criminal matters.

In a reply email, College counsel wrote:

If the basis for Ms. [P]'s forthcoming motion to stay is that the facts
involved in her parallel criminal case are the same as the facts
involved in this termination proceeding, then Bishop State certainly
recognizes Ms. [P]'s rights under the Fifth Amendment and will not
oppose her motion to stay this termination proceeding. If the basis to
continue is for some other reason, then we would like to have an
opportunity to respond accordingly.

However, neither will Bishop State join in the request to stay this
termination proceeding. The College would strongly prefer that this
proceeding move forward as expeditiously as possible, as it is
incredibly expensive for the College to maintain Ms. [P] and other
employees who are also currently facing criminal charges on the
payroll pending the completion of their criminal cases.

The Mobile County District Attorney's Office has not yet presented
Ms. [P]'s case or any of the other similar cases to the grand jury,
though we understand that the DA's Office is taking steps to do that in
the near future. If indictments are issued, then the criminal cases will
take about a year or so to complete, we are told. So, we are probably
looking at having Ms. [P]'s case stayed, if an indictment is issued
against her by the grand jury, until at least the middle of 2009.

5
 III. Applicable Law

In Ex parte Ebbers, 871 So 2d 776 (Ala 2003), the Alabama Supreme

Court undertook an extensive restatement of the law in Alabama regarding the

ability of a party to stay a civil proceeding on Fifth Amendment grounds. The

court noted eight factors that might properly enter into the weighing and

balancing analysis of the parties’ interests:

“1. The interest of the plaintiff in proceeding expeditiously with the civil
litigation, or any particular aspect of it, and the potential prejudice to the
plaintiff of a delay in the progress of that litigation.

“2. The private interest of the defendant and the burden that any
particular aspect of the proceedings may impose on the defendant.

“3. The extent to which the defendant’s Fifth Amendment rights are
implicated/the extent to which the issues in the criminal case overlap
those in the civil case.

“4. The convenience of the court in the management of its cases, and the
efficient use of judicial resources.

“5. The interest of persons not parties to the civil litigation.

“6. The interest of the public in the pending civil and criminal litigation.

“7. The status of the criminal case, including whether the party moving
for the stay has been indicted.

“8. The timing of the motion to stay.”

“871 So. 2d at 789-90 (citations omitted). These factors often partially overlap,

and not all of the factors are applicable in every case. 871 So. 2d at 790.” Ex

parte Antonucci, 917 So 2d 825, 825-829 (Ala 2005). See also Ex parte Rawls,

6
953 So 2d 374 (Ala 2006). For purposes of the interests analysis, the College is

in the position of plaintiff and the Employee is in the position of defendant.

IV. Interests Analysis

In OEEM, the hearing officer ordered the Employee’s pay and benefits

restored. Further, he ruled that the College would not have a second opportunity

to suspend the Employee’s pay on account of moral turpitude. OEEM @ 21.

However, at the time, he was not aware that the Employee would seek a stay in

these proceedings, which could extend well into next year. Indeed, although the

criminal investigation had been ongoing for two years in August of 2007,1 the

case against the Employee has yet to be presented to a grand jury. Thus, any

stay could be lengthy. Indeed, the Employee may not even be indicted. In the

meantime, as things now stand, the College, a public institution, must continue

paying the Employee’s salary and benefits indefinitely.

The hearing officer does not consider this a reasonable result. The very

reason that he set a hearing date of June 2, 2008, was to protect the College

financially in the event that it ultimately could prove its case against the

Employee. Delay now seems to favor the Employee overwhelmingly. She easily

could have informed the hearing officer that she was seeking a stay in her

original motion. Obviously her counsel has brought motions for stays in some of

1
Exhibit M, OERM @ 26.

7
the related cases, as the Employee’s motion bears a number from another case.2

Had she been forthcoming, the hearing officer would have ruled differently on

the issue of moral turpitude.

Cost to the public undoubtedly was a consideration of the Alabama

Legislature when it revised the Fair Dismissal Act, which now requires that,

except in cases involving moral turpitude, an employee must be paid until the

hearing officer renders a decision. Ala Code § 36-26-103(b). By putting these

cases on a relatively fast track (OEEM @ 11, fn 3), the Legislature was

attempting to limit the cost to the public.

Assuming that the College has followed the hearing officer’s directive

regarding back pay, the Employee has been paid from August 1, 2007, the date

of the College’s notice of charges, through the present, a period far longer than

the time contemplated by the Legislature in the Fair Dismissal Act:

§ Maximum 30 days under § 36-26-103(a) for the notice of charges

and board meeting
§ Approximately 25 days under § 36-26-103(b) for the notice of
board action and the employee’s notice of contest
§ Approximately 17 days under § 36-26-114(b) to choose a hearing
officer
§ Maximum 90 days under § 36-26-104(a) for hearing and decision

Although these times are not exact, they do indicate that the Legislature

anticipated that these proceedings should not take much more than 6 months

2
See Exhibits K & L, OERM @ 26, and Exhibit E, OERM @ 27.

8
from start to finish.

The Employee does not make a strong case for a stay. Her motion is not

supported by any affidavit. She does not identify the persons whom she will call

as witnesses nor cite any case granting a stay because non-party witnesses might

assert Fifth Amendment rights. Moreover, the Employee does not explain why

witnesses would take the Fifth when asked questions about her. No case cited

involves a situation in which an employer was forced to pay the party seeking a

stay for the duration of the stay.

The case law is concerned primarily with discovery, and the only

discovery in these proceedings is the exchange of “documents supportive of, or

in contravention to, the action,” under § 36-26-104(a). Surely the Employee

would refrain from turning over incriminating documents. A further

consideration is that, even if she is tried and found not guilty in a criminal case,

the verdict would not be res judicata in her employment case because of the

differing standards of proof. Cf. OERM @ 19-25. At some point, she is going to

have a Fair Dismissal Act hearing.

The College has adopted as its revised statement of facts Paragraph 15 of

its motion for reconsideration, the bulk of which was set forth in OERM @ 12:

At the hearing, the State’s witness testified that Ms. [P] was being
charged with theft by deception for $1,450 in Pell Grant funds in the
Spring of 2005 and for $3,500 in Pell Grant funds in the 2005/2006
academic year. Specifically, the State’s witness testified that Ms. [P]

9
 took a sociology class, SOC247, in Spring 2005 and received an
incomplete grade. After receiving this incomplete grade, she would
have been required to refund the Pell Grant funds but she did not do
so. Instead, she changed her grade from an incomplete to an “A.” As a
result, she was able to keep the Pell Grant funds. With respect to the
funds received in the 2005/2006 academic year, Ms. [P] represented to
Bishop State that she had a stepdaughter named Shevonda Archible
and that Ms. Archible was one of her dependents. Dependents of
Bishop State employees are eligible for tuition waivers. However, it
turns out that Ms. Archible is not Ms. [P]’s stepdaughter, and they are
not related at all. This ultimately allowed Ms. Archible to improperly
receive a Pell Grant award in 2005/2006 in the amount of
approximately $3,500.

These allegations are extremely serious and certainly make out a case

“involving moral turpitude” and, but for the hearing officer’s earlier ruling,

would require that the Employee’s pay be halted.

In an effort to give effect to the Legislature’s intent and to balance the

interest of the College in conserving public money and the Employee’s

interest in her Fifth Amendment rights, the hearing officer is offering the

Employee a choice:

(I) Either proceed promptly with a Fair Dismissal Act hearing at which

she certainly will be entitled to assert her Fifth Amendment rights, or

(II) Chose a stay of these proceedings but give up pay and benefits

because the case involves moral turpitude.

Employee counsel should make the choice known within a week, in a

letter to College counsel and the hearing officer. If the choice is to proceed

10
with a Fair Dismissal Act hearing, the parties should exchange documents

and witness lists forthwith and select a hearing date in early July, other than

July 14.

Dated May 30, 2008 ____________________________

E. Frank Cornelius, PhD, JD
Hearing Officer

11