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 TO REINSTATE PAY

March 31, 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 Nature Of The Proceeding

This case arises under the Alabama Fair Dismissal Act, Article 4 of

Chapter 26 of Title 36 of the Alabama Code, §§ 36-26-100 et seq. Before the

undersigned hearing officer, selected pursuant to § 36-26-114(b) from the roster

of arbitrators maintained by the Federal Mediation and Conciliation Service

(“FMCS”), is the Employee’s Motion to Reinstate Pay for Bishop’s Failure to

Provide Due Process (“Motion”), served March 3, 2008. The Response of

Bishop State Community College to Employee’s Motion to Reinstate Pay

(“Response”) was served March 26, 2008.

II. The Fair Dismissal Act, As Amended

The Fair Dismissal Act, as originally enacted by Alabama Acts 1983, No.

83-644, was criticized by the courts. See, e.g., Bolton v Board of School

Commissioners of Mobile County, 514 So 2d 820, 824 (Ala 1987) (“not a model

of legislative clarity”). In 2004, the Fair Dismissal Act was revised substantially

by Act 2004-567, an Act:

Relating to the Fair Dismissal Act; to streamline the contest and appeal
processes for employees; to provide that employees would have contests
of terminations, transfers, and suspensions heard by a hearing officer
from the United States Federal Mediation and Conciliation Service; and
to provide that the hearing officer’s decision in terminations and
suspensions for greater than seven days without pay could be appealed by
either party to the Court of Civil Appeals.1
1
http://arc-sos.state.al.us/PAC/SOSACPDF.001/A0003223.PDF @ 1.

2
 As amended, the Fair Dismissal Act reads in pertinent part:

Section 36-26-102

Nonprobationary status; causes for termination.

Upon the completing by the employee of said probationary period, said

employee shall be deemed employed on a nonprobationary status and said
employee's employment shall thereafter not be terminated except for failure
to perform his or her duties in a satisfactory manner, incompetency, neglect
of duty, insubordination, immorality, justifiable decrease in jobs in the
system, or other good and just causes; provided, however, such termination
of employment shall not be made for political or personal reasons on the part
of any party recommending or voting to approve said termination.

(Acts 1983, No. 83-644, p. 1004, §3.)

Section 36-26-103

Termination of employment - Procedure; notice.

(a) An employee on nonprobationary status may be terminated only in the

following manner: The superintendent shall give written notice to the
employing board and the employee of the superintendent's intention to
recommend a termination as provided in Section 36-26-102. Such notice
shall state the reasons for the proposed termination, shall contain a short and
plain statement of the facts showing that the termination is taken for one or
more of the reasons listed in Section 36-26-102, and shall state the time and
place for the board's meeting on the proposed termination, which meeting
shall be held no less than 20 days and no more than 30 days after the receipt
of such notice by the employee. The notice shall inform the employee that in
order to request a conference with the board, the employee must file a
written request with the superintendent within 15 days after the receipt of
such notice. At such conference, which shall be public or private at the
discretion of the employee, the employee, or his or her representative, shall
be afforded the opportunity to speak to the board on matters relevant to such
termination. The employee shall have the right to counsel and to have a
court reporter record his or her statement, both at the expense of the
employee. Thereafter, the board shall determine whether such termination
shall be effectuated.

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(b) Regardless of whether or not the employee elects to have a conference, if
the board votes to terminate the employee, the superintendent shall give
notice to the employee of the board's action by providing notice by personal
service, by the United States registered or certified mail with postage paid
thereon to the employee's last known address, or by private mail carrier for
overnight delivery, signature required, with postage paid thereon to the
employee's last known address within 10 days of the board's action. Such
notice shall be in writing and shall inform the employee of the right to
contest the action by filing with the superintendent a written notice of
contest of the action within 15 days of the receipt of the notice. Such contest
shall be taken by filing a written notice of contest with the superintendent
within 15 days after receipt of the notice of the decision of the employing
board. If the contest is not timely taken, the board's decision shall be final.
The employing board may suspend the employee with pay if the action is
taken. However, no pay shall be provided in cases involving moral turpitude.
If the board's action is overturned on appeal, pay shall be reinstated. No
termination shall be effected until the time for filing notice of contest has
expired and, if notice of contest is filed, not until the hearing officer has
issued an opinion.

(Acts 1983, No. 83-644, p. 1004, §4; Act 2004-567, §1.)

Section 36-26-104

Termination of employment - Hearing officer; hearing; appeal.

(a) If notice of contest is filed pursuant to Section 36-26-103, the hearing

officer shall be selected as provided in subsection (b) of Section 36-26-114.
Upon selection, the hearing officer shall immediately cause notice to be
given to the parties of the date and time for a hearing, which date shall be no
less than 30 days and no more than 60 days following the appointment of the
hearing officer. The parties shall agree as to the location of the hearing and,
if the parties are unable to agree, the hearing officer shall determine the
location within the jurisdiction of the employing board. No less than 30 days
before such date, the 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; provided,
however, that such witness list or documentary submissions may be
amended at any time prior to five days before such hearing. The State
Department of Education shall bear the expense of having a court reporter

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present at such hearing. The hearing officer shall have power to administer
oaths and issue subpoenas to compel the attendance of witnesses and
production of papers necessary as evidence and/or information in connection
with the dispute or claim. If requested, the hearing officer shall issue
subpoenas for witnesses to testify at the hearing, under oath, either in
support of the charges or on behalf of the employee. The hearing officer
shall conduct a de novo hearing and shall render a decision based on the
evidence and/or information submitted to the hearing officer. The hearing
officer shall determine which of the following actions should be taken
relative to the employee: Termination of the employee, a suspension of the
employee, with or without pay, a reprimand, other disciplinary action, or no
action against the employee. The hearing officer shall render a written
decision, with findings of fact and conclusions of law, within 30 days after
its hearing. Expenses of the hearing officer shall be borne by the State
Department of Education.

(b) All appeals of a final decision of the hearing officer shall lie with the
Alabama Court of Civil Appeals. An appeal by either party shall be
perfected by filing a written notice of appeal with the Clerk of the Court of
Civil Appeals within 21 days after the receipt of the final written decision of
the hearing officer. Failure to file a timely notice of appeal shall render the
decision of the hearing officer final, in which case the employing board shall
take possession of the record of the hearing and shall maintain such record
for a period of three years. The Court of Civil Appeals shall have discretion
to refuse to hear appeals of final decisions of a hearing officer pursuant to
this article. Review by the Court of Civil Appeals pursuant to this article is
not a matter of right, but of judicial discretion, and an appeal may be granted
only when the court determines there are special and important reasons for
granting the appeal. Within 30 days after an appeal is granted, the hearing
officer shall transmit the record to the clerk, with the appealing party bearing
the costs associated with the preparation and transmission of the record and
transcript of the hearing. 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.

(Acts 1983, No. 83-644, p. 1004, §5; Act 2004-567, §1.)

Because of the substantial changes wrought by Act 2004-567, cases

5
decided under the Fair Dismissal Act as originally enacted must be read with

care. The six-step procedure for terminating an employee, outlined in Bolton,

supra, 514 So 2d @ 823, has become a ten-step procedure:

Step 1—The superintendent’s notice to the employing board and the

employee of the superintendent's intention to recommend a termination. §
36-26-103(a)

Step 2—The employee’s optional request for a pre-termination

conference with the board. § 36-26-103(a)

Step 3—The optional pre-termination conference between the employee

and the board. § 36-26-103(a)

Step 4—The board’s determination to terminate the employee. § 36-26-

103(a)

Step 5—The superintendent’s notice to the employee of the board’s

action. § 36-26-103(b)

Step 6—The employee’s notice of contest to the superintendent. § 36-26-

103(b)

Step 7—The selection of a hearing officer. § 36-26-114(b)

Step 8—The proceeding before the hearing officer. § 36-26-104(a)

Step 9—The hearing officer’s decision. § 36-26-104(a)

Step 10—The discretionary appeal to the Court of Civil Appeals. § 36-

26-104(b)

Other differences in the Fair Dismissal Act as originally passed and as amended

will be noted as the case requires.

6
 III. Background

[MP] (“Employee”) was employed by Bishop State Community College

(“College” or “Employer”). In a letter to the Employee, dated August 1, 2007,

the College’s interim president wrote in pertinent part:

The purpose of this correspondence is to inform you (1) that I intend to

terminate your employment with Bishop State Community College
(Bishop State), and (2) that I intend to terminate your compensation on
the basis of moral turpitude in accordance with the Fair Dismissal Act.
This notice is provided in accordance with the requirements of Code of
Alabama (1975), § 36-26-103 (1975).

The termination of your employment with Bishop State is proposed for

the following reasons as authorized by Code of Alabama (1975), § 36-26-
102: failure to perform your duties in a satisfactory manner, immorality,
and/or other good and just causes. The facts which support my decision
to terminate your employment with Bishop State are as follows:

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.

The Fair Dismissal Act requires that pay be provided to employees until a
hearing officer affirms the decision to terminate his or her employment,
except in cases involving moral turpitude. Ala. Code § 36-26-103(b).
Your conduct described above which forms the basis of my intent to
terminate your employment with Bishop State rises to the level of moral
turpitude. Therefore, I intend to terminate your compensation from
Bishop State. Motion Exhibit A; emphasis in original.

On November 8, 2007, following the pre-termination conference between

Employee and Employer, described in § 36-26-103(a) and held on August 29,

2007, the College’s interim president wrote the Employee:

7
 After much careful deliberation, you are hereby given notice of my
decision to terminate your employment and compensation from Bishop
State Community College (“Bishop State”) for the reasons set forth in my
August 1, 2007 letter to you.

Pursuant to the Fair Dismissal Act, Ala. Code §§ 36-26-100 et seq., you
have the right to contest my decision to terminate your employment by
filing, with me, a written notice of contest of my decision within fifteen
days after you receive this notice. If you do not contest the decision
within fifteen days after you receive this notice, my decision shall be
final. In the event a notice of contest is filed, a hearing officer shall be
selected as provided in subsection (b) of Code of Alabama § 36-26-114.
The contest shall be heard as provided in Code of Alabama § 36-26-104.

As I previously informed you in my letter to you dated August 1, 2007, I

believe that your actions which form the basis of my decision to
terminate your employment with Bishop State rise to the level of moral
turpitude. Therefore, your compensation from Bishop State will be
discontinued, effective as of the date of this letter.

Bishop State’s payroll records reflect that you currently have the
following non-tax items deducted from your paycheck each pay period:
… (9) PEEHIP2 ($194.00) … In addition, Bishop State currently pays
$775.00 each pay period for your PEEHIP insurance over and above your
$194.00 contribution each period. …

Therefore, if you wish to maintain your PEEHIP insurance coverage, you

will have to make arrangements to provide the necessary funds to Bishop
State so that this benefit can be maintained on your behalf while you
remain on unpaid administrative leave. … Motion Exhibit B; emphasis in
original.

The Employee timely contested the Employer’s decision, and the case is before

the hearing officer for a de novo hearing. Ala Code § 36-26-104(a).

2
Public Education Employees’ Health Insurance Plan, www.rsa.state.al.us/PEEHIP/peehip.htm.

8
 IV. Procedural Considerations

Neither the Fair Dismissal Act, nor the Alabama Arbitration Act (Ala

Code §§ 6-6-1—6-6-16), nor the Federal Arbitration Act (9 USC §§ 1 et seq.),

nor FMCS rules specify the procedures to be followed in hearings under the Fair

Dismissal Act. Inasmuch as the Employer is a state agency and thus bound by

the due process clauses of both the US and Alabama Constitutions, some

reasonable rules must apply. See generally the Alabama Supreme Court’s

discussion of due process requirements in City of Orange Beach v Duggan, 788

So 2d 146, 149-154 (Ala 2000), citing Cleveland Board of Education v

Loudermill, 470 US 532 (1985).

Moreover, the proceedings before the hearing officer afford an employee

the only opportunity for an evidentiary hearing that the employee will ever have,

as a discretionary appeal to the Alabama Court of Civil Appeals is the sole route

of redress from the hearing officer’s determination. Ala Code § 36-26-104(b)

(“The Court of Civil Appeals shall have discretion to refuse to hear appeals of

final decisions of a hearing officer pursuant to this article.”). Thus the need

exists for reasonable procedural rules.

The Alabama Rules of Civil Procedure (“ARCP”) state:

These rules are not applicable to any proceeding in which the

adjudication of the controversy is by any selected individual or
individuals … ARCP 81(b).

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In contrast the Federal Rules of Civil Procedure (“FRCP”), upon which the

Alabama Rules are based, Ex parte Christopher Deramus, 882 So 2d 875, 877

(Ala 2002), provide:

These rules, to the extent applicable, govern proceedings under the

following laws, except as these laws provide other procedures: … 9
U.S.C., relating to arbitration … FRCP 81(a)(6).

Despite the fact that application of the Alabama Rules to this case is not

mandatory, in the absence of specific direction as to the procedural rules to be

followed, the hearing officer nevertheless looks to those Rules and to the

Federal Rules for guidance, in an effort to ensure that both parties are afforded

due process, an issue specifically raised in the Employee’s Motion. As

discussed infra, several procedural issues arise in this case.

In her Motion:

(1) “The employee requests that the arbitrator [sic] issue an order
reinstating Ms. [P]’s pay until the charges against [P] are heard and
determined.”

(2) “The employee also requests that Bishop State reimburse Ms. [P]
for the medical expenses paid directly by Ms. [P] as a result of the
employer canceling her health insurance and such other normal
and reasonable costs incurred by Ms. [P] as the result of the
termination of her pay.”

(3) “The employee further requests that Bishop State be directed to

provide Ms. [P] with the statutorily mandated ‘short and plain
statement of the facts showing that the termination is taken for one
or more of the reasons listed in § 36-26-102’ at a meaningful time
before her matter is set for hearing.”

10
Motion @ 11; parsing and numbering by hearing officer.

While the Fair Dismissal Act does not provide for motions, since the

proceedings before the hearing officer are in lieu of an aggrieved employee’s

right to press claims in a court of law, it seems reasonable to afford the

employee a relatively full panoply of remedies in these alternative hearings.

Because ARCP 7(b)(1) and FRCP 7(b)(1) expressly authorize motion practice

and because the Employee might be harmed by the delay in hearing her case,3

the hearing officer will entertain her Motion.

V. A Short And Plain Statement Of The Facts

Ala Code § 36-26-103(a) provides that the notice of intention to

recommend termination “shall contain a short and plain statement of the facts

showing that the termination is taken for one or more of the reasons listed in

Section 36-26-102 …” (emphasis supplied). This language parallels that found

in ARCP 8(a)(1) and FRCP 8(a)(2) (“a short and plain statement of the claim

showing that the pleader is entitled to relief”). The Employee’s Motion hinges in

large part upon the meaning of the italicized portion of the statute.

Prior to amendment by Section 1 of Act 2004-567, Ala Code § 36-26-

103 read in pertinent part:

3
In an email dated March 12, 2008, Employee counsel asserted, “[M]y client was released from the hospital
today. She is under a great deal of stress due to her lack of health insurance.”
Although the Fair Dismissal Act ostensibly provides a relatively fast track to hearing, College counsel, in an
email March 5, 2008, stated, “As a practical matter, I have not participated in one of these proceedings (and I have
done a good many of them) that was completed within 60 days of the hearing officer's appointment.”

11
 The employing board of education shall give notice in writing to the
employee, stating in detail the reasons for the proposed termination, the
facts upon which such reasons are based, and giving notice of the
employee’s rights to a hearing as set out herein. 4 (Emphasis supplied.)

One of the stated purposes of Act 2004-567 was “to streamline the contest and

appeal processes for employees”. In particular, the facts-in-detail requirement

was reduced to “a short and plain statement of the facts”.

The length of the requisite statement of facts (“short”) clearly depends

upon context; a 6' player in the National Basketball Association is short,

whereas in comparison to the general population, he is not. Analogously, if the

alleged misconduct is simple, a brief statement suffices. However, if the

misconduct is complex, then several paragraphs may be required to state the

facts in an informative way. In any event, nothing prevents an employer from

furnishing an employee with a detailed statement of facts, and that may be the

more prudent policy, even under the amended statute.

The meaning of “plain” is easier to explicate: “conveying the meaning

clearly and simply; easily understood: plain talk.”5 In this legal context, “a …

plain statement of the facts” surely means one not consisting solely of

conclusory words, terms, or phrases. It is by these short and plain standards that

the Employer’s statement of facts must be judged.

4
http://arc-sos.state.al.us/PAC/SOSACPDF.001/A0003223.PDF @ 1.
5
"plain." Dictionary.com Unabridged (v 1.1). Random House, Inc. 29 Mar. 2008. <Dictionary.com
http://dictionary.reference.com/browse/plain>.

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 The only facts stated in the Employer’s notice to the Employee are these:

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. Motion Exhibit A.

The alleged “financial improprieties” are not specified; there is no hint as to

when, where, or how they were committed; and their relationship to the

financial aid, course grade, and tuition waiver is not explained. The phrase

“financial improprieties” is general and conclusory without more, and

“falsifying” stands as a bare allegation sans supporting facts.

The amount of financial aid is not quantified; it could be de minimis. The

Employee may have taken numerous courses; the particular one at issue is not

identified. The erroneous grade may be the result of faulty memory or even a

typographical error, as may the mistakes regarding tuition waiver. The nexus

between the financial improprieties and aid, grade, and tuition may be so

tenuous as to preclude causation.

The Employer’s statement of facts concededly is “short”, but it is hardly

“plain”. Not even the hearing officer can tell from the Employer’s brief

description what the Employee supposedly did or why the Employer is

convinced of her culpability. The Employer’s Response provides little

additional information about events.

In truth, the Employer’s statement of facts may be far too short. In urging

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that the hearing officer act now upon the Motion, Employee counsel writes:

In its e-mail to the arbitrator [sic; the hearing officer was not appointed
until February 4, 2008] dated Wednesday, October 31, 2007, Bishop has
stated that relevant grand jury proceedings about [P], and 24 or so other
Bishop employees are not likely to be concluded until early 2008, after
which Bishop will “re-evaluate” [P]’s termination proposal. Motion @
10-11.

In seeming agreement, Employer counsel states:

Several other employees have been arrested and charged with Theft of
Property in connection with the Financial Aid fraud at Bishop State. At
this time Bishop State has taken steps to terminate the pay of other
employees on the basis of moral turpitude in the FDA appeals
proceedings involving these employees. Employer Response @ 4, fn 1.

If the Employee is accused of taking part in a larger conspiracy or scheme, then

that needs to be explained factually. As it stands, the Employer’s statement of

facts did not meet the standards of the Fair Dismissal Act.

The Employer insists that the Employee received sufficient information

to enable her and her counsel to prepare a defense:

[P] has been represented by counsel from the outset of these proceedings.
If [P] had any questions as to the reasons for her termination the same
could have been raised at the meeting with Dr. Lowe on August 29, 2007.
Response @ 12.

But the opportunity to ask questions at the pre-termination conference is not

what the statute provides (“the employee, or his or her representative, shall be

afforded the opportunity to speak to the board”), much less what it requires.

Rather, the Fair Dismissal Act requires written notice well in advance of the

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conference. The Employer describes the Act’s requirements in these words:

In the Fair Dismissal Act, the legislature has set detailed and exacting
requirements and procedures for the sole purpose of insuring that
employees such as [P] receive due process. Response @ 9; emphasis
supplied.

In this case, the Act’s standards were not met.

Were it not for the fact that the Employee requests a new statement of

facts, the hearing officer might be forced to make a no-action ruling from

among the remedies listed in Ala Code § 36-26-104(a):

The hearing officer shall determine which of the following actions should
be taken relative to the employee: Termination of the employee, a
suspension of the employee, with or without pay, a reprimand, other
disciplinary action, or no action against the employee.

However, the Employee does make such a request, which the hearing officer

treats as being in the nature of a motion for a more definite statement under

ARCP and FRCP 12(e), so as not to begin any disciplinary proceedings anew.

In Bolton, supra, the Alabama Supreme Court held:

As with any statute, “reasonableness” must be read into the provisions of

the “Fair Dismissal Act.” Despite the poor drafting and the resulting
inconsistencies, the Act was not intended to allow an employing school
board to maintain a termination proceeding for an indefinite length of
time by “beginning” the dismissal procedure through multiple re-votes
and re-notices. 514 So 2d @ 824.

While § -104 does not prescribe any specific time period within which
the Board must issue the decision to dismiss, after the employee has
either given notice of an intent to contest or has failed to give such a
notice by the 15th day, we hold that the Board's re-notice on the same
grounds was an abandonment of its original notice of intent to terminate.

15
 It is thus unnecessary to determine the time period within which the
Board could have acted following Bolton's first notice of intent to contest.
This would not prohibit the Board, of course, from initiating termination
proceedings against Bolton for failure to perform his duties in a
satisfactory manner, neglect of duty, insubordination, immorality, or
“other good and just causes” occurring after September 11, 1985. The
Board would be estopped to re-notice Bolton only for those acts or
omissions that had occurred prior to the meeting of the Board at which
the Board voted to give Bolton the notice of a proposed termination. Id.;
emphasis in original.

But for the Employee’s request for a more definite statement, Bolton

might dictate that the case against her be dismissed. See also Allen v Bessemer

State Technical College, 703 So 2d 383, 386 (Ala Civ App 1997), in which the

court ruled:

Because Allen timely requested but was never given a pretermination

hearing on his proposed dismissal, his termination was not in accord with
the Fair Dismissal Act. Allen is entitled to be reinstated with back pay
until a hearing before the employing entity is conducted and a decision is
made on his dismissal. (Emphasis supplied.)

Within fifteen (15) days of the date of this opinion, the Employer must

serve a revised statement of facts upon the Employee’s counsel and the hearing

officer. The Employer’s original notice of August 1, 2007 (Mot Ex A),

identifies both its chancellor and vice chancellor & general counsel as attorneys,

and the Employer retains outside counsel as well, so the task should be an easy

one.

IV. Moral Turpitude

The hearing officer agrees with the Employee’s argument that, without

16
first complying with the notice provisions of Ala Code § 36-26-103(a), the

Employer cannot invoke the provision of § 36-26-103(b) that mandates an

immediate suspension of pay “in cases involving moral turpitude”. Motion @

10-11. Inasmuch as the hearing officer has concluded that the Employer’s notice

was insufficient to authorize termination of the Employee, a fortiori it was

insufficient to make out a case of moral turpitude against her.

The College’s interim president admits:

The Fair Dismissal Act requires that pay be provided to employees until a
hearing officer affirms the decision to terminate his or her employment,
except in cases involving moral turpitude. Ala. Code § 36-26-103(b).
Mot Ex A; emphasis in original.

As no case of moral turpitude has been made, the language of § 36-26-104(a)

(“a suspension of the employee, with or without pay, … [or] other disciplinary

action”) is sufficiently flexible to authorize the hearing officer to make a final

award of back pay for improper suspension of pay, even if he ultimately should

uphold the Employee’s termination of employment.

There is no good reason to await the evidentiary hearing, as the

Employee undoubtedly is suffering from the deprivation of income and benefits.

An interim award is consistent with the purpose of the Fair Dismissal Act, as

articulated by the court in Gainous v Tibbets, 672 So 2d 800, 803 (Ala Civ App

1995):

The purpose of the FDA “is to provide non-teacher employees a fair and

17
 swift resolution of proposed employment terminations,” and the FDA
should be liberally construed to effectuate its purpose. Bolton v. Board of
School Commissioners of Mobile County, 514 So.2d 820, 824
(Ala.1987).

See also Saulsberry v Wilcox County Board of Education, 641 So 2d 283, 286

(Ala Civ App 1993).

The Employee must be put back on the payroll with benefits and paid

back pay for the period during which her pay erroneously was suspended. As

was said in Ex parte Birmingham Board of Education, 601 So 2d 93, 97 (Ala

1992):

Rather, the clear implication of the provisions of the Act is that the
legislature intended that justice be accomplished by requiring an award of
“back pay” to the employee for the time from the Board's decision to
terminate her until the completion of the review process, if the review
panel determines that the initial decision of the Board was erroneous.
(According to the Board, without question, the review panel may order
back pay from the date of termination to the date of the review panel's
decision if the review panel finds that the Board's decision to terminate
was unwarranted or that the Board failed to comply with the Act. That is
correct.)

See also Allen, supra. A final adjudication of the Employee’s rights will be

made following the evidentiary hearing in this case.

The matter of reimbursement of the Employee for medical expenses and

other losses resulting from the Employer’s improper suspension of her pay is

too complicated to be resolved on motion. Indeed, the Employer asserts that

there is no authority for such an award:

18
 In her request for relief, [P] asks for reimbursement of medical expenses
incurred subsequent to Bishop States termination of her pay. No authority
exists under the Fair Dismissal Act for such relief. The clear language of
the Act (36-26-103(b)) provides that if the Hearing Officer disagrees with
the decision to terminate the employee’s pay, “pay shall be reinstated”. In
consequence, Bishop State respectfully submits that the Hearing Officer
is without authority to order reimbursement of medical expenses under
the Fair Dismissal Act. Response @ 13.

Although agreeing that the issue is not perfectly clear, to the hearing officer,

the better result appears to be to allow recovery in this contest.

Section 13 of Article 1 of the Alabama Constitution provides:

That all courts shall be open; and that every person, for any injury
done him, in his lands, goods, person, or reputation, shall have a
remedy by due process of law; and right and justice shall be
administered without sale, denial, or delay. (Emphasis supplied.)

If the Employee cannot be made whole in this proceeding, then presumably

she could sue for damages in court. Were she to do so, she might sue not

only the College, but also the officials involved in the suspension of her pay.

Thus, there is some protection for College officials in resolving her claims

here and now.

Moreover, “pay” is not defined in the statute; some courts have given the

term a broad interpretation. For example, in Borough of Beaver v Liston, 76 Pa

Commw 619, 623; 464 A2d 679, 681-682 (1983), the court explained:

"Pay" is a broad, general term lacking particular meaning and

encompassing myriad forms of remuneration paid in exchange for
services. Black's Law Dictionary 1016 (5th ed. 1979) defines the term as
embracing compensation, wages, salary, commissions and fees.

19
 Webster's Third New International Dictionary 1659 (1966) characterizes
"pay" as including wages, salary and remuneration and as "money paid in
addition to basic wages or salary." (Emphasis added.)

Under such a broad definition, “pay” could include the $775.00 that the College

should have contributed each pay period toward the Employee’s health

insurance (Mot Ex B), or her lost health benefits.

To the hearing officer, it would undermine the purposes of Act 2004-567

(“to streamline the contest and appeal processes”) and of the State Constitution

itself (“without … delay”) to require the Employee to institute a separate action

for reimbursement. Gainous, supra (“fair and swift”). The College asserts that

“[t]he Alabama Legislature has determined the rights due employees such as

[P]. It’s called the Fair Dismissal Act.” Response @ 9. If the Act is to be

inclusive of an employee’s rights and remedies, then it must be interpreted to

include the remedy which the Employee seeks here.

The hearing officer does not read the statutory language quoted in the

Response (“pay shall be reinstated”) as referring to him; rather, it refers to the

Court of Civil Appeals. As used in the Fair Dismissal Act, the proceeding

before the hearing officer is the “contest”. §§ 36-26-103(b) & 104(a). Any

“appeal” is to the Court of Civil Appeals. §§ 36-26-103(b) & 104(b). See also

Act 2004-567 (“contest and appeal”). The hearing officer’s authority is specified

in § 36-26-104(a), with sufficient breadth to encompass the power to make an

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employee whole. As the College concedes:

The Alabama Fair Dismissal Act is a comprehensive legislative scheme

designed for the purpose of assuring due process to employees covered
by the act in connection with disciplinary decisions. Response @ 13;
emphasis supplied.

Within fifteen (15) days of the date of this opinion, the Employee is to

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. All that remain unsettled at the time of the hearing are to be

addressed at the hearing. This ruling is without prejudice to the Employer to

raise and substantiate its argument anew at the hearing and in final briefs.

The issues surrounding “moral turpitude” effectively are moot at this

point, as the Employer will not have a second bite at the apple by suspending

the Employee’s pay on the basis of its revised statement of facts. Bolton, supra.

However, if the Employer wishes to reallege “moral turpitude” in its revised

statement, it is free to do so, but it should follow the guidance found in

Chapman v Gooden, 2007 Ala LEXIS 98, 2007 WL 1576103 (Ala). Although

Chapman was a voting rights case concerned with a “person convicted of a

felony involving moral turpitude”, its discussion of “moral turpitude” may be

the most extensive currently available.6

6
The Hon. Robert S. Vance, Jr., Jefferson County Circuit Judge, the trial judge, graciously emailed a copy of his
thoughtful opinion to the hearing officer, Gooden v Worley, No CV-2005-5778-RSV. Judge Vance deserves
enormous credit for effecting a reform of Alabama’s voter registration procedures, and his thorough analysis of

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 The Employer must state facts which support an allegation of moral

turpitude; the interim president’s mere belief (“I believe”, Mot Ex B) will not

suffice. It might be wise to follow ARCP and FRCP 9(b), which require that

“[i]n alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake.” While the Fair Dismissal Act is

silent with respect to the standard of proof to be applied in the hearing, an

accusation of moral turpitude may require a higher standard. Elkouri & Elkouri,

How Arbitration Works (ABA/BNA 6th ed 2003) @ 951-952.

V. Summary And Scheduling

For all the foregoing reasons, the Employee’s Motion is granted in part

and denied in part. The hearing officer’s orders are summarized and the

schedule for the case is set 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.

“moral turpitude” remains instructive.

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(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 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.

The hearing officer’s findings of fact and conclusions of law are embodied in

this written opinion, although not expressly designated as such.

_____________/s/_____________
E. Frank Cornelius, PhD, JD
Hearing Officer
Dated March 31, 2008

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