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THE NOTICE PROVISIONS OF THE

ALABAMA FAIR DISMISSAL AND TEACHER TENURE ACTS

By E. Frank Cornelius, Ph.D., J.D.1

Copyright © 2008 E. Frank Cornelius All Rights Reserved

Abstract

Bishop State Community College v. Archible, Nos. 2070379 and 2070670 (Ala. Civ.

App. 2008), is the first case in which an appellate court has sought to interpret the notice

provisions of the Fair Dismissal Act, Ala. Code § 36-26-100 et seq., following amendment of

those provisions in 2004. In Archible, the court may have gone beyond the plain language of

the notice provisions and engrafted onto the statute a “surrounding circumstances” test for

determining the sufficiency of an employer’s notice of intent to recommend termination of an

employee under Ala. Code § 36-26-103(a). Moreover, the “surrounding circumstances” test

may not pass muster under the federal due process requirements laid down by the Supreme

Court in Cleveland Board of Education v. Loudermill, particularly in a case involving moral

turpitude, in which the employee is threatened with a cutoff of pay without a prior evidentiary

hearing. The test could have a chilling effect on an employee’s constitutional and statutory

right to a pre-termination conference. Because the notice provisions of the Fair Dismissal Act

and the Teacher Tenure Act, Ala. Code § 16-24-1 et seq., are in pari materia, cases decided

under the notice provisions of one impact the other.

1
The author received his Ph.D. in mathematics from the University of Washington and his J.D. from the
University of Michigan. His publications are listed on his website, www.arbitrator.org, under About Us.
Table of Contents

I. THE CASES FROM WHICH THE ISSUES ARISE ……………………………… 3

II. THE PURPOSE OF THIS ARTICLE …………………………………………….... 3

III. THE STATUTORY NOTICE PROVISIONS ……………………………………... 4

IV. OUTLINE OF THE FDA TERMINATION PROCEDURE AS AMENDED ……... 7

V. THE EMPLOYEE ARCHIBLE’S FACTS ……………………………………….... 8

VI. THE EMPLOYEE SOLEYN’S FACTS ………………………………………….. 10

VII. THE ARCHIBLE COURT’S FAILURE TO STATE THE STATUTORY


STANDARD OF REVIEW ………………………………………………………. 11

VIII. THE ARCHIBLE COURT’S ASSESSMENT OF THE FDA’S AMENDED


NOTICE REQUIREMENTS ……………………………………………………... 22

IX. THE JUDICIALLY LEGISLATED “SURROUNDING CIRCUMSTANCES”


TEST ………………………………………………………………………………24

X. LOUDERMILL AND ALABAMA CASE LAW ………………………………… 30

XI. THE “SURROUNDING CIRCUMSTANCES” TEST IN A CASE INVOLVING


MORAL TURPITUDE …………………………………………………………... 37

XII. QUESTIONS LEFT UNANSWERED …………………………………………....43

A. The Burden and Standard of Proof ………………………………………….. 43

B. Two Bites at the Apple Under Alabama Case Law …………………………. 45

XIII. CONCLUSION …………………………………………………………………....48

2
I. The Cases from Which the Issues Arise

Bishop State Community College v. Archible2 is the first in a number of civil appeals

expected in numerous cases filed under Alabama’s Fair Dismissal Act (“Dismissal Act” or

“FDA”), Ala. Code § 36-26-100 et seq. These FDA cases arise out of alleged thefts of student

aid money from Bishop State Community College by over two dozen people;3 two of the

cases were before the court of civil appeals in Archible. In each of those two cases, the

respective hearing officer appointed pursuant to Ala. Code § 36-26-114(b) dismissed the case

on the ground that the college failed to satisfy the notice requirements of Ala. Code § 36-26-

103(a), which parallel those of the Teacher Tenure Act (“Tenure Act” or “TTA”), Ala. Code §

16-24-1 et seq. The notice provisions of both acts are set forth below.

II. The Purpose of This Article

Archible is the first case in which an Alabama appellate court has sought to interpret

the FDA’s notice provisions following their amendment in 2004. The purpose of this article is

to point out that the court may have gone beyond the plain language of those amended notice

provisions and engrafted onto the statute a “surrounding circumstances” test for determining

the sufficiency of an employer’s notice of intent to recommend termination of an employee

under Ala. Code § 36-26-103(a). Moreover, the “surrounding circumstances” test may not

pass muster under the federal due process requirements laid down by the Supreme Court in

2
___ So. 2d ___; 2008 Ala. Civ. App. LEXIS 682; 2008 WL 4683562.
3
http://www.al.com/birminghamnews/stories/index.ssf?/base/opinion/1224058647257490.xml&coll=2 (accessed
10/30/08). The author is the hearing officer in one of those cases, Phalo v. Bishop State Community College, 08-2
Lab. Arb. Awards (CCH) ¶ 4257, 108 LRP 26610 (Cornelius, Hrg. Off.) (motion to reinstate pay); 108 LRP
26608 (motion to reconsider); 08-2 Lab. Arb. Awards (CCH) ¶ 4258, 108 LRP 35680 (motion for stay). In that
capacity, the parties furnished him with opinions or orders from eleven others of these cases, including the two
under review by the Archible court, Archible and Bishop State Community College, FMCS No. 07-0497 (Serda
Hrg. Off. 2008); and Bishop State Community College and Alabama Education Association / James Soleyn,
FMCS No. 08-01166 (Williams Hrg. Off. 2008).

3
Cleveland Board of Education v. Loudermill,4 particularly in a case involving moral turpitude,

in which the employee is threatened with a cutoff of pay without a prior evidentiary hearing.

The test could have a chilling effect on an employee’s constitutional and statutory right to a

pre-termination conference. Because the notice provisions of the Dismissal and Tenure Acts

are in pari materia, cases decided under the notice provisions of one impact the other.5

Throughout this discussion, it is important to bear in mind that the notice provided

by Ala. Code § 36-26-103(a) is the employer’s “complaint” against the employee, and the

hearing to which an employee is entitled under § 36-26-104(a) is the employee’s “trial”

on the charges levied in the notice. The only statutorily mandated supplement to the

notice is an exchange of “documents supportive of, or in contravention to, the action, as

well as a list of witnesses to be called at such hearing,” under § 36-26-104(a). At stake in

an FDA proceeding is the employee’s livelihood. There is no judicial review as of right,

only a limited discretionary appeal to the court of civil appeals under § 36-26-104(b),

“when the court determines there are special and important reasons for granting the

appeal.”

III. The Statutory Notice Provisions

The provisions of the Dismissal Act specifying the grounds for termination of

employment and the requirements for the notice of the proposed termination are these:

Section 36-26-102

Nonprobationary status; causes for termination.

4
470 U.S. 532 (1985).
5
Indeed, the language of § 16-24-9(a) is virtually identical to that of § 36-26-103(a). “Although Alabama's
Teacher Tenure Act and Fair Dismissal Act are similar in language, purpose, and effect …,” Hardy v. Birmingham
Board of Education, 954 F.2d 1546, 1552 (11th Cir. 1992), not all of the corresponding provisions of the two acts
are to be construed in pari materia. Ex parte Athens State College, 795 So. 2d 709 (Ala. 2000) (§ 16-24-8 and §
36-26-102 have different purposes).

4
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.

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.

(b) … 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. …

The corresponding provisions of the Tenure Act are these:

Section 16-24-8

Cancellation of contracts - Grounds.

Cancellation of an employment contract with a teacher on continuing service status may


be made for incompetency, insubordination, neglect of duty, immorality, failure to
perform duties in a satisfactory manner, justifiable decrease in the number of teaching
positions or other good and just cause, but cancellation may not be made for political or
personal reasons.

Section 16-24-9

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Cancellation of contracts - Procedure; notice.

(a) An employment contract with a teacher on continuing service status may be cancelled
only in the following manner: The superintendent shall give written notice to the
employing board and the teacher of the superintendent's intention to recommend a
cancellation as provided in Section 16-24-8. Such notice shall state the reasons for the
proposed cancellation, shall contain a short and plain statement of the facts showing that
the cancellation is taken for one or more of the reasons listed in Section 16-24-8, and
shall state the time and place for the board's meeting on the proposed cancellation, which
meeting shall be held no less than 20 days and no more than 30 days after the receipt of
such notice by the teacher. The notice shall inform the teacher that in order to request a
conference with the board, the teacher shall 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 teacher, the teacher, or his or her representative, shall be
afforded the opportunity to speak to the board on matters relevant to such cancellation.
The teacher shall have the right to counsel and to have a court reporter record his or her
statement, both at the expense of the teacher. Thereafter, the board shall determine
whether such cancellation shall be effectuated.

***

The Tenure Act is by far the older statute, having been enacted in 1939 as Act No.

499, whereas the Dismissal Act was not passed until 1983 as Act No. 664. Cases decided

under the older are used to shed light on the newer. In Athens State College v. Ruth, 6 the

court of civil appeals commented:

To interpret the Fair Dismissal Act, the courts have referred to the Teacher Tenure Act
and to decisions applying that Act, in an effort to define and clarify the provisions of
the Fair Dismissal Act. See e.g., Ledbetter v. Jackson County Bd. of Educ., 508 So. 2d
244 (Ala. 1987); Ike v. Board of School Comm’rs of Mobile County, supra;
Uwakolam v. Huntsville City Bd. of Educ., 554 So. 2d 1036 (Ala. Civ. App. 1989);
Hughes v. Britnell, 554 So. 2d 1041 (Ala. Civ. App. 1989).7

The Archible court itself drew upon TTA cases in its discussion of the FDA.8

Both acts were amended in 2004, the TTA by Act No. 566 and the FDA by Act

No. 567. Prior to amendment by Section 1 of Act 2004-566, Ala. Code § 16-24-9 read in

6
795 So. 2d 703 (Ala. Civ. App. 1999); rev’d on other grounds, 795 So. 2d 709 (Ala. 2000).
7
Id. @ 706.
8
E.g., 2008 Ala. Civ. App. LEXIS 682 @ *12-13; 2008 WL 4683562 @ *5, citing State Tenure Commission v.
Jackson, 881 So. 2d 445 (Ala. Civ. App. 2003).

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pertinent part:

The employing board of education shall give notice in writing to the teacher
stating in detail the reasons for the proposed cancellation … .9 (Emphasis
supplied.)

Similarly, prior to amendment by Section 1 of Act 2004-567, Ala. Code § 36-26-103 read in

pertinent part:

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.10
(Emphasis supplied.)

Among the issues addressed by the court in Archible is the significance of the 2004 changes to

the FDA’s notice requirements.

IV. Outline of the FDA Termination Procedure as Amended

Before analyzing the Archible opinion in detail, it may be helpful to view an outline of

the procedure for terminating a nonprobationary employee under the Dismissal Act. In Bolton

v. Board of School Commissioners of Mobile County,11 the Alabama Supreme Court outlined

the pre-amendment procedure in six steps and went on to describe the FDA as “not a model of

legislative clarity”.12 After amendment, which failed to transform the statute into a model of

clarity, its procedure can be outlined with more detail in ten steps:

Step 1—The superintendent’s notice to the employing board and the employee of the
superintendent’s intention to recommend a termination of employment.13 § 36-26-
9
13 Michie’s Alabama Code 1975 (2001 replacement volume) @ 399.
10
19A Michie’s Alabama Code 1975 (2001 replacement volume) @ 315.
11
514 So. 2d 820 (Ala. 1987).
12
Id. @ 823-824.
13
The apparent discrepancy between the language of FDA § 36-26-103, which calls for a determination by
the “employing board”, and the practice of leaving all decision-making to the college president in a case
involving a junior college, is an issue not addressed in Archible. Presumably the practice arises under Ala.
Code § 16-60-111.7, which makes the president the employing official:
The president of each junior college and trade school shall appoint the faculty and staff of each
junior college and trade school according to qualifications prescribed by the board and such other
regulations which may be adopted by the board in accordance with Section 16-60-111.4.
The “board” in the statutory provision just quoted is the State Board of Education. Ala. Code § 16-60-110(1). Prior
to amendment, § 36-26-105 read in pertinent part:

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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 of the hearing officer’s decision to the court of
civil appeals. § 36-26-104(b)

The Archible case represents Step 10 with respect to two Bishop State employees, the

eponymous Archible and another employee named Soleyn.

V. The Employee Archible’s Facts14

The Step 1 notice was sent to Archible on August 1, 2007, in the form of a letter from

the (interim) college president. Among the permissible § 36-26-102 reasons for termination,

three were recited: “failure to perform your duties in a satisfactory manner, immorality, and/or

other good and just causes.” The factual basis for the proposed employment actions was:

You committed financial improprieties in relation to the awarding of financial aid and
scholarships.

An appeal of the decision of the employing board may be filed by the employee within 15 days of receipt
of the board’s decision by mailing a notice to the superintendent of education and/or president of the
junior/technical or community college or institution.
19A Michie’s Alabama Code 1975 (2001 replacement volume) @ 317. See also Jones v. Kennedy, 890 So. 2d
975, 977 n. 1 (Ala. 2004) (per curiam) (“Jones does not contest Dr. Kennedy's ability to serve as BSCC’s
‘employing board.’”).
14
From 2008 Ala. Civ. App. LEXIS 682 @ *3 - 8; 2008 WL 4683562 @ *1-3.

8
The letter also notified the employee that he had the right at Step 2 to request a pre-termination

conference with the president.

Although the FDA does not expressly require that any notice of intention to terminate

an employee’s pay on account of moral turpitude be given, such a requirement follows from

Loudermill, supra.15 The Archible court wrote:

The same due-process concerns that require sufficient notice of the reasons for
terminating the employment of an employee covered by the Fair Dismissal Act also
require sufficient notice of the reasons for terminating the employee’s pay on the basis
of moral turpitude. However, if the employer relies on the same facts to support the
termination of pay as those supporting its decision to terminate employment, neither
the statute nor due process requires the employer to submit a separate statement of
facts relating to the pay issue. The notice simply must meet the same constitutional
standard as outlined above.16

The president’s letter to Archible expressed the intention to terminate pay.

Archible failed at Step 2 to request a conference within the 15 days specified by § 36-

26-103(a) and as recited in the president’s August 1 letter, thereby skipping Step 3. On

September 10, 2007, the president wrote a Step 5 letter informing the employee of the

president’s Step 4 decision to terminate him and his pay. The Step 5 letter also informed the

employee of his right to contest his termination, a right which the employee exercised in Step

6. The parties proceeded to Step 7 and selected a hearing officer from a panel of arbitrators

furnished by the Federal Mediation and Conciliation Service (“FMCS”).

In an effort to preserve his Fifth Amendment right against self-incrimination, on

October 22, 2007, Archible filed a motion for a stay of the Step 8 hearing in his employment

case, until such time as the criminal matters involving him are resolved.17 With the college’s

acquiescence, the motion was granted. On November 11, 2007, Archible filed a motion to

15
For a discussion of the Loudermill requirements, see section X of this article.
16
2008 Ala. Civ. App. LEXIS 682 @ *16-17; 2008 WL 4683562 @ *6.
17
For the considerations involved in granting or denying such a motion for a stay, see Ex parte Rawls, 953 So. 2d
374 (Ala. 2006); Ex parte Antonucci, 917 So. 2d 825 (Ala. 2005); Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003).

9
reinstate his pay on the grounds that the college’s Step 1 notice failed to comply with the

requirements of § 36-26-103(a) and constitutional due process.

On January 4, 2008, the hearing officer issued a decision which the Archible court

summarized as follows:

[T]he hearing officer concluded that the notice provided by Bishop State was
insufficient to fairly apprise Archible of the factual basis for his termination. The
hearing officer ordered Bishop State to reinstate Archible with back pay and benefits
until such time as the termination process was reinitiated with an appropriate notice.18

In response to a request for clarification by the college, on January 22, 2008, the hearing

officer confirmed that he had finally adjudicated the case and ordered the employee’s

reinstatement, so that the case was ripe for appeal in Step 10.

VI. The Employee Soleyn’s Facts19

In May of 2007, employee Soleyn was placed on administrative leave on the basis of

criminal charges filed against him on May 8, 2007, by the Mobile County District Attorney.

FDA termination proceedings were initiated against Soleyn on August 1, 2007, via a Step 1

letter to him from the (interim) president of Bishop State. The letter to Soleyn was virtually

identical to the one sent to Archible on that same date, with the exception of a variation of the

alleged supporting facts:

You committed financial improprieties in relation to the receiving of financial aid and
scholarships.20

Unlike Archible, Soleyn made a Step 2 request for a pre-termination conference and

attended a Step 3 conference on August 30, 2007. Afterward, Soleyn received a Step 5 letter

dated November 8, 2007, informing him that his employment and pay had been terminated in

Step 4. He filed a Step 6 notice of contest, and a hearing officer was selected in Step 7. Soleyn

18
2008 Ala. Civ. App. LEXIS 682 @ *7-8; 2008 WL 4683562 @ *2.
19
From 2008 Ala. Civ. App. LEXIS 682 @ *8-10; 2008 WL 4683562 @ *3.
20
2008 Ala. Civ. App. LEXIS 682 @ *9; 2008 WL 4683562 @ *3.

10
filed a motion to dismiss or reinstate pay, in response to which the hearing officer adopted the

rulings and remedies of Archible’s hearing officer. The facts pertaining to Solyen and

Archible are examined more closely below.

VII. The Archible Court’s Failure To State the Statutory Standard of Review

Despite the very clear and simple “arbitrary and capricious” standard of review

explicitly set forth in § 36-26-104(b), the court referenced neither the statute nor the standard

and instead turned to Barngrover v. Medical Licensure Commission of Alabama21 for a

“mistake of law or erroneous application of law to facts” standard. Barngrover was a dental

licensure case in which the standard of review established by § 41-22-20(k) of the Alabama

Administrative Procedure Act (“APA”) is far more elaborate than that under the FDA.22

The Barngrover court set forth its standard of review in these words:

We initially note that

“our review of the Licensure Commission is mandated by § 41-22-20(k),


[Ala. Code 1975]. That section requires that, in examining the order of the
agency, that order is presumed to be prima facie just and reasonable. We
may not substitute our judgment for that of the agency as to the weight of
the evidence or question of fact, nor could the circuit court substitute its
judgment for that of the Commission.”

Evers v. Medical Licensure Comm’n, 523 So. 2d 414, 415 (Ala. Civ. App. 1987).
Generally, the “courts will pass only on questions of whether the administrative
agency has acted within its constitutional or statutory powers, whether its order or
determination is supported by substantial evidence, and whether its action is
reasonable and not arbitrary.” State Dep’t of Human Res. v. Funk, 651 So. 2d 12,
16 (Ala. Civ. App. 1994). “Additionally, this court reviews the trial court’s ruling
on the agency’s decision with no presumption of correctness, because the trial
court was in no better position to review the order of the agency than this court
is.” Id., at 16. The presumption of correctness does not attach to the hearing

21
852 So. 2d 147 (Ala. Civ. App. 2002); reh. denied.
22
Curiously, Barngrover does not stand for the proposition that a mistake of law or an erroneous application of
law to facts renders a decision “arbitrary and capricious”. Quite to the contrary, the standards for review of legal
rulings are set forth in APA §§ 41-22-20(k)(1)-(5), the last of which includes “other error of law”. “Arbitrary”
and “capricious” are not even mentioned until § 41-22-20(k)(7), in a section pertaining to the quality of the
decision-maker’s judgment.

11
officer’s conclusions of law; further, no presumption of correctness exists when a
hearing officer improperly applied the law to the facts. Id.23 (Emphasis supplied.)

The Archible court summarized the issue presented and the Barngrover standard

as follows:

The basic question before the court is whether the hearing officers erred in rescinding
the employees’ terminations on the ground that Bishop State had failed to provide the
employees proper notice of the factual bases for the termination of their employment
and their pay. In resolving that question, we review only the hearing officers’
conclusions of law and their application of law to the facts. As such, our standard of
review is de novo. Barngrover v. Medical Licensure Comm’n of Alabama, 852 So.2d
147, 152 (Ala.Civ.App.2002) (stating that the presumption of correctness typically
afforded a hearing officer’s decision in an administrative proceeding does not attach to
the hearing officer’s conclusions of law or to his or her improper application of the law
to the facts).24

Applying the Barngrover standard, the Archible court held:

Although we conclude that the hearing officers did not err in construing the notice
provision of § 36-26-103(a), we conclude that the hearing officers did err in applying
the law to the undisputed facts. Accordingly, we reverse the decisions entered by the
hearing officers and remand the cases for further proceedings consistent with this
opinion.25

Examination of Tenure Act cases decided by the Alabama Supreme Court under

the 2004 amendments supports the Archible court’s use of the “mistake of law or

erroneous application of law to facts” standard. Although the state’s high court has yet to

consider a case under the amended FDA, it has ruled in three cases under the amended TTA:

Ex parte Wilson,26 Peterson v. Lowndes County Board of Education,27 and Ex parte

Dunn.28 Inasmuch as Peterson concerned only a threshold issue of coverage under the

Tenure Act, it merits no further discussion here.

Application of the identical arbitrary and capricious standard from § 16-24-10(b) of


23
Id. @ 151-152.
24
2008 Ala. Civ. App. LEXIS 682 @ *10; 2008 WL 4683562 @ *3.
25
2008 Ala. Civ. App. LEXIS 682 @ *19; 2008 WL 4683562 @ *7.
26
984 So. 2d 1161 (Ala. 2007).
27
980 So. 2d 975 (Ala. 2007).
28
962 So. 2d 814 (Ala. 2007).

12
the TTA was before the court in Wilson, where the court wrote:

The Court of Civil Appeals does have the authority to reverse the decision of the
hearing officer for failing to follow the applicable law, because the failure to follow
the applicable law renders the hearing officer’s decision arbitrary and capricious.
The Court of Civil Appeals did not err in finding that the hearing was for the purpose
of “determining whether the Board improperly canceled” a teacher’s employment
contract; a hearing officer must apply Alabama teacher-tenure law to the facts to
determine whether the board improperly canceled the teacher’s contract. The new Act
gives guidance as to the issues for decision by the hearing officer. Issues that may be
considered include, but are not limited to: (1) Whether the evidence proves a ground
or grounds asserted for cancellation of the teacher’s contract; (2) Whether there are
any improper motives for cancellation under § 16-24-8, Ala Code 1975, such as
political or personal reasons; and (3) Whether cancellation of the teacher’s
employment contract or one of the other alternatives under § 16-24-10(a) is the
appropriate penalty based upon the law and the facts.29 (Citation omitted; emphasis
supplied.)

Interestingly, the court cited no prior authority for its ruling on the parameters of the arbitrary

and capricious standard.

The Wilson court seems to be saying that a TTA hearing officer must apply the correct

law (suggesting a mistake of law standard) and apply it correctly to the facts (suggesting an

erroneous application of law to facts standard). The court thus seems to be saying that

“arbitrary and capricious” includes “mistake of law or erroneous application of law to facts”,

at least insofar as a review of a hearing officer’s legal rulings is concerned. Inasmuch as the

appellate review provisions of the Dismissal Act are identical to those of the Tenure Act,

Wilson appears to support the Archible standard. Thus, although the Archible court may not

have referenced the statutory standard per se, it appears to have applied a standard subsumed

by the statute.

While Wilson supports Archible on the point that a mistake of law or erroneous

application of law to facts renders a hearing officer’s decision arbitrary and capricious, the

former evinces a strong disagreement among members of the court as to the meaning of
29
984 So. 2d @ 1170-1171.

13
“arbitrary and capricious”. In Wilson, the hearing officer had applied a “just cause for

termination” test drawn from labor-management arbitration and refused to uphold cancellation

of a teacher’s contract on the basis of that test. The majority ruled that the hearing officer was

guilty of failing to apply Alabama law and so declared that his decision was arbitrary and

capricious.30

Regarding the statutory standard, the chief judge penned a lengthy, vigorous, and

insightful dissent, in which he wrote in pertinent part:

… Of particular note in our review is the fact that the only standard to be applied is
whether the hearing officer’s determination is arbitrary and capricious. That is, unlike
many other legislative enactments that prescribe additional bases upon which a
decision of an agency or hearing officer may be reviewed, the statute that controls our
review in this case permits no other standard.31 … (Footnote omitted; emphasis in
original.)

The main opinion approves the rationale of the Court of Civil Appeals in
reversing the hearing officer’s determination and remanding the case for a new
hearing stating that the hearing officer failed to properly apply the law. Of course,
this is not the standard by which the Court of Civil Appeals was required to
review the hearing officer’s determination. The main opinion purports to cure that
defect by explicitly stating the implicit holding of the Court of Civil Appeals that
the hearing officer’s decision, based on the seven-part test for determining
whether there was just cause for the termination of Wilson’s employment, was
arbitrary and capricious. The opinion makes this assertion without benefit of a
discussion of case authority, applying a definition of the term “arbitrary and
capricious” to the hearing officer’s analysis … The legislature’s statutory plan for
reviewing the termination of the employment of tenured teachers leaves it to the
hearing officer to supply that meaning based upon procedures set out in §§ 16-24-
1 through 16-24-22, Ala. Code 1975.

The fundamental duty of this Court in applying § 16-24-10 is to give effect to the
intent of the legislature based upon the plain language of the statute. Perry v. City
of Birmingham, 906 So. 2d 174 (Ala. 2005); and Douglas v. King, 889 So. 2d 534
(Ala. 2004). The plain language of § 16-24-10 vests the hearing officer with the
authority to determine what constitutes good cause in light of the evidence
presented in each particular case. In this case, and under the applicable law, that
means that the hearing officer had the responsibility of determining whether the
Board’s proposal to terminate Wilson’s employment as a teacher was arbitrary,

30
984 So. 2d @ 1171.
31
Id. @ 1174.

14
irrational, unreasonable, or irrelevant to maintaining an efficient school system.
Moreover, in the context of our review it is the plain duty of the Court of Civil
Appeals and this Court under § 16-24-10 to affirm that decision unless it is
arbitrary and capricious. Neither this Court nor Court of Civil Appeals is
authorized to substitute a different standard, such as that the hearing officer
“misapplied the law.” …32 (Emphasis in original.)

Without citing Wilson or even mentioning the arbitrary and capricious standard of

review, much less discussing its meaning or application, the Archible court applied a “mistake

of law or erroneous application of law to facts” standard, which it borrowed from Barngrover,

supra, and concluded that “the hearing officers did err in applying the law to the undisputed

facts.”33 The court accordingly reversed the hearing officers’ decisions and remanded the

cases for further proceedings.

A rationale for the conclusion that the “arbitrary and capricious” standard of judicial

review in FDA and TTA cases should include scrutiny of a hearing officer’s conclusions of

law and applications of law to facts may be found in the distinction between a voluntary

arbitration and a compulsory statutory proceeding. In the voluntary case, the parties have

agreed to abide by the arbitrator’s findings of fact and conclusions of law, in order to resolve

their dispute.34 In the statutory case, however, there is no agreement; rather, the legislature has

mandated that the parties present their dispute to a hearing officer for resolution. In the

voluntary case, because the parties have agreed to accept the arbitrator’s interpretations and

applications of law, a court may review an arbitrator’s legal rulings for only “manifest

disregard of the law”.35 In the statutory case, by contrast, the parties have not agreed to accept

the hearing officer’s legal rulings, and so it is not unreasonable for a court to review them.
32
Id. @ 1175-1176.
33
2008 Ala. Civ. App. LEXIS 682 @ *19; 2008 WL 4683562 @ *7.
34
Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed. 2003) @ 489-490, quoting Burchell v. Mitchell,
58 U.S. 344 (1854).
35
Birmingham News Co. v. Horn, 901 So. 2d 27 (Ala. 2004). But see Hall Street Associates, L.L.C. v. Mattel,
Inc., 128 S. Ct. 1396 (2008) (rejecting the “manifest disregard of the law” ground in cases under the Federal
Arbitration Act, 9 U.S.C. § 1 et. seq., but leaving open the question of a different scope of review under state law).

15
Further support for the argument that review under the arbitrary and capricious

standard should include scrutiny of a hearing officer’s legal rulings can be found in the fact

that hearing officers selected from FMCS’ roster of arbitrators may come from all over the

country and so may not be thoroughly versed in Alabama law.36 Yet another consideration,

apparent from the Wilson court’s rejection of the importation of labor-management arbitration

principles into TTA decision-making, is that FMCS arbitrators, while preferably “experienced

in employment law”,37 may have expertise primarily in labor-management arbitrations in

which a collective bargaining agreement, not a state statute, is paramount. If, as the Wilson

court insists, hearing officers must correctly apply Alabama law, it may serve the goals of

uniformity and consistency for appellate courts to review their legal rulings.

To date, no definitive decision appears to have been issued on the deference to be

afforded a hearing officer’s factual findings under the FDA or TTA, as amended, although

there is every reason to believe that they will be held to the pre-amendment standard of

substantial evidence.38 In the post-amendment case of Bishop State Community College v.

Thomas,39 without expressly articulating a standard for reviewing a hearing officer’s findings

of fact, the court implicitly applied a substantial evidence test:

In this case, the hearing officer found that the college had satisfactorily proven
that Thomas had been convicted of a felony for leaving the scene of an accident
and that he had been impeached and removed from his position as a commissioner
of the Board. However, the hearing officer concluded that the college did not
prove that Thomas had been “overall ineffective” in performing his job duties.
Reciting the evaluations of Thomas’s work before his employment had been
terminated, the hearing officer concluded that Thomas, “irrespective of his off-
duty actions, was able to perform his duties in a proper manner.” Based on the
36
In the dozen cases with which the author is familiar, supra, n. 3, the hearing officers are from New York (1),
New Jersey (1), Maryland (1), Michigan (1), North Carolina (1), Texas (1), Florida (2), Georgia (1), and Alabama
(3).
37
TTA § 16-24-20(b); FDA § 36-24-114(b).
38
Ex Parte Wade, 957 So. 2d 477, 481-482 (Ala. 2006); Glass v. Anniston City Board of Education, 957 So. 2d
1143, 1149, 1151 (Ala. Civ. App. 2006).
39
__ So. 2d __; 2008 Ala. Civ. App. LEXIS 726; 2008 WL 4952458.

16
substantial evidence presented to the hearing officer supporting that determination,
and our deferential standard of review, we conclude that the hearing officer did not act
arbitrarily and capriciously in reaching the foregoing factual determinations.40
(Emphasis supplied.)

The substantial evidence rule, of course, has its basis in Ala. Code § 12-21-120,

which provides in pertinent part:

(a) In all civil actions brought in any court of the State of Alabama, proof by
substantial evidence shall be required to submit an issue of fact to the trier of the
facts. Proof by substantial evidence shall be required for purposes of testing the
sufficiency of the evidence to support an issue of fact in rulings by the court,
including without limitation, motions for summary judgment, motions for directed
verdict, motions for judgment notwithstanding the verdict, and other such motions
or pleadings respecting the sufficiency of evidence.

(b) The scintilla rule of evidence is hereby abolished in all civil actions in the
courts of the State of Alabama.

(c) With respect to any issue of fact for which a higher standard of proof is
required, whether by statute, or by rule or decision of the courts of the state,
substantial evidence shall not be sufficient to carry the burden of proof, and such
higher standard of proof shall be required with respect to such issue of fact.

(d) Substantial evidence shall mean evidence of such quality and weight that
reasonable and fair-minded persons in the exercise of impartial judgment might
reach different conclusions as to the existence of the fact sought to be proven. A
scintilla of evidence is insufficient to permit submission of an issue of fact to the
trier of facts.

As summarized by the supreme court in West v. Founders Life Assurance Co. of Florida,41

substantial evidence is “evidence of such weight and quality that fair-minded persons in the

exercise of impartial judgment can reasonably infer the existence of the fact sought to be

proved.”42

The Thomas court explained the amended Dismissal Act in some detail, with

particular attention to the functions of the hearing officer and to appellate review of his

40
2008 Ala. Civ. App. LEXIS 726 @ *20; 2008 WL 4952458 @ *6.
41
547 So. 2d 870 (Ala. 1989).
42
Id. @ 871.

17
decision:

The FDA provides that a covered nonprobationary employee, like Thomas, shall
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.”

§ 36-26-102, Ala. Code 1975. If an employee properly contests the termination of his
or her employment, see § 36-26-103(b), Ala. Code 1975 (setting out the procedure for
contesting a termination under the FDA), the employee is entitled to a de novo
hearing. § 36-26-104(a), Ala. Code 1975. Pursuant to the statutory charge, the hearing
officer should first decide whether the employer has “stated and proved proper
grounds for terminating an employee’s employment.” Bishop State Cmty. Coll. v.
Williams, [Ms. 2060926, Sept. 26, 2008] So. 2d , , 2008 Ala. Civ. App. LEXIS
592, *11 (Ala. Civ. App. 2008). If the hearing officer concludes that the employer has
met its initial burden, the hearing officer shall then decide whether the employer
dismissed the employee to further an improper motive, i.e., for personal or political
reasons. See Ex parte Wilson, 984 So. 2d 1161, 1171 (Ala. 2007) (construing the
Teacher Tenure Act, § 16-24-1 et seq., Ala. Code 1975). Finally, 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.” § 36-26-104(a), Ala. Code 1975.

In making those determinations, the hearing officer conducts a de novo hearing,


meaning the issue is tried “anew, afresh, or over again.” Alabama Pub. Serv.
Comm’n v. B&B Transp. & Limousine Serv., Inc., 397 So. 2d 120, 122 (Ala.
1981) (citing Slaughter v. Martin, 9 Ala. App. 285, 63 So. 689 (1913), and
Black’s Law Dictionary 483 (rev. 4th ed. 1968)). “A de novo hearing is not one at
which the evidence taken at a prior hearing is continued or incorporated, but is
one at which the entire evidence to be presented is heard anew or afresh.” Id. In
conducting the hearing, the hearing officer considers “the evidence and/or
information submitted to the hearing officer,” § 36-26-104(a), not only without
any presumption in favor of the decision reached by the employer, but as if no
prior determination had even been made. See Allen v. Bessemer State Tech. Coll.,
703 So. 2d 383, 386 (Ala. Civ. App. 1997). Because the hearing is de novo, the
hearing officer is not constrained by the evidence the employer considered, the
employer’s analysis of that evidence, or the employer’s conclusions derived
therefrom. See id.

Once the hearing officer makes his or her decision and reduces that decision to a

18
writing containing findings of facts and conclusions of law, see § 36-26-104(a),
Ala. Code 1975, the party aggrieved by that decision may petition this court to
review the decision, which petition may be granted only if this court “determines
there are special and important reasons for granting the appeal.” § 36-26-104(b),
Ala. Code 1975. “‘[T]he decision of the hearing officer shall be affirmed on
appeal unless the Court of Civil Appeals finds the decision arbitrary and
capricious . . . .’” Williams, So. 2d at , 2008 Ala. Civ. App. LEXIS 592 at *10
(quoting § 36-26-104(b), Ala. Code 1975).

In employing the arbitrary-and-capricious standard of review, the legislature


intended this court to be “extremely deferential” to the hearing officer’s decision
in an FDA case. See Ex parte Dunn, 962 So. 2d 814, 816 (Ala. 2007) (construing
arbitrary-and-capricious standard of review mandated by Teacher Tenure Act). As
our supreme court has stated:

“[T]he reviewing court may not substitute its judgment for that of the hearing
officer. . . . [W]here ‘reasonable people could differ as to the wisdom of a
hearing officer’s decision[,] . . . the decision is not arbitrary.’. . .

“‘If the decision-maker has “‘examined the relevant data and articulated a
satisfactory explanation for its action, including a “rational connection
between the facts found and the choice made,”’” its decision is not arbitrary.
See Alabama Dep’t of Human Res. v. Dye, 921 So. 2d [421, 426 (Ala. Civ.
App. 2005)] (quoting Prometheus Radio Project v. FCC, 373 F.3d [372, 389
(3d Cir. 2004)] (quoting in turn Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168, 83 S. Ct. 239, 9 L. Ed. 2d 207 (1962))).’”

Ex parte Dunn, 962 So. 2d at 816-17 (quoting with approval, but reversing on other
grounds, Board of Sch. Comm’rs of Mobile County v. Dunn, 962 So. 2d 805, 809, 810
(Ala. Civ. App. 2006)). Pursuant to the arbitrary-and-capricious standard of review,
this court may “disagree with the wisdom of the decision, [but] we may not substitute
our judgment for that of the hearing officer.” Ex parte Dunn, 962 So. 2d at 823-24.43

Although the court in Dunn thoroughly examined the hearing officer’s factual

findings, the court concluded its opinion by focusing upon the officer’s rationale for his

decision:

In our opinion, the hearing officer’s decision is not arbitrary, because it is clear that he
examined all the facts, articulated a satisfactory explanation for his action, and stated a
rational connection between the facts and the discipline he imposed.

The Board argues that the “hearing officer ... was arbitrary and capricious in placing
too much emphasis on mitigating factors, considering the egregious nature of the
43
2008 Ala. Civ. App. LEXIS 726 @ *15-20; 2008 WL 4952458 @ *5-6.

19
misconduct itself.” Board's brief, at 24. However, it is the hearing officer’s
responsibility to weigh the evidence, and this Court may not substitute its judgment for
that of the hearing officer. The Act allowed the hearing officer to consider the
“mitigating factors” evident in Dunn’s employment history, both as a coach and as a
teacher. We will not second-guess his decision.44 (Emphasis supplied.)

“‘All appellate Gaul,’ says Professor Maurice Rosenberg, ‘is divided into three parts: review

of facts, review of law, and review of discretion.’”45 Dunn would seem to place most

importance on the third review, that of the hearing officer’s ultimate judgment.

In the pre-amendment FDA case of Glass v. Anniston City Board of Education,46 the

court of civil appeals described its review this way:

This court’s standard of review of the trial court’s judgment affirming the hearing
officer’s decision is as follows:

“‘In an FDA case that has been appealed to a circuit court, this court employs
the following standard of review:

“‘“In reviewing the decision of a hearing [officer], this court’s


standard of review is the same as that of the circuit court’s. Colbert
County Bd. of Educ. v. Johnson, 652 So. 2d 274 (Ala. Civ. App.
1994). Our review is limited to questions of whether there was
substantial evidence to support the [hearing officer’s] decision,
whether the [hearing officer’s] findings were contrary to the
uncontradicted evidence, and whether the [hearing officer] improperly
applied the law to the findings. Jefferson County Bd. of Educ. v.
Moore, 706 So. 2d 1147 (Ala. 1997).”

“‘Bessemer State Tech. Coll. v. Hosea-Studdard, 851 So. 2d 46, 51-52


(Ala. Civ. App. 2002).’”

Ex parte Wade, 957 So. 2d 477, 481, 2006 Ala. LEXIS 188 (Ala. 2006)(quoting
Combs v. Wade, 957 So. 2d 464, 471, 2005 Ala. Civ. App. LEXIS 367 (Ala. Civ.
App. 2005)). Furthermore,

“‘[a]s our supreme court stated in Ex parte Beverly Enterprises[-Alabama,


Inc.], 812 So. 2d [1189] at 1195 [(Ala. 2001)], “[w]hen reviewing the decision
of an administrative agency … an Alabama court will affirm only if the action

44
962 So. 2d @ 824.
45
Davis, Martha S., Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J. App. Prac. &
Process 47 @ 48.
46
957 So. 2d 1143, 1152 n. 5 (Ala. Civ. App. 2006).

20
and the stated basis for the action are correct.”’”

Ex parte Wade, 957 So. 2d at 482 (quoting Combs v. Wade, 957 So. 2d at 471.) 47
(Emphasis supplied.)

The Glass standard seems more in line with Dunn, as it requires only “substantial

evidence” to support the hearing officer’s ultimate decision. The officer’s findings simply may

not controvert uncontradicted evidence. In Ex parte Wade,48 the supreme court held that

misstatement of a single fact did not “vitiate[] the substantial evidence that supports the stated

basis for [the FDA panel’s] decision … .” The Glass court even applied the harmless error

rule when the hearing officer applied an outdated statutory provision, focusing instead upon

the correctness of his ultimate determination.49

There is an inherent tension, if not an inconsistency, between a rule which affords

great deference to a hearing officer’s findings of fact or ultimate decision and another rule

under which a reviewing court requires substantial evidence to support the findings or

decision.50 Presumably, if a hearing officer finds a fact or makes a decision, then he believes

that there is sufficient evidence to support it. If the court can overrule the officer because it

disagrees about the sufficiency of the evidence, then there is a danger that the court will

become the real judge of the facts and even of the final decision.51

If the legislature has indeed granted broad discretion to FDA and TTA hearing

officers, then under the “arbitrary and capricious” standard of review, the focus should be

upon evidence sufficient to support the hearing officer’s decision and not upon flyspecking

each and every finding of fact.


47
Id. @ 1148-1149.
48
957 So. 2d 477, 481-482 (Ala. 2006).
49
Id. @ 1151.
50
E.g., APA § 41-22-20(k) (“the court shall not substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact”) and § 41-22-20(k)(6) (“Clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole record”).
51
See, for example, the court of civil appeals’ rulings in Thomas and Wade, supra.

21
VIII. The Archible Court’s Assessment of the FDA’s Amended Notice Requirements

The court rejected the argument that the different phrasing of § 36-26-103 before (“in

detail the reasons for the proposed termination [and] the facts upon which such reasons are

based”) and after amendment (“the reasons for the proposed termination [and] a short and

plain statement of the facts”) evinced a legislative intent to make a substantive change in the

FDA’s notice provisions. Instead, the court downplayed the difference, citing Western Union

Telegraph Co. v. South & N. A. R. Co.52 and City of Pinson v. Utilities Board of the City of

Oneonta53 for the proposition that a substantive change in a statute is not to be presumed from

a mere change in statutory language. The court concluded:

[T]he difference in the language contained in the notice provision in the pre-2004
version of the Fair Dismissal Act and the current version of that act appears to be
merely semantical and not substantive.54

The court observed that the change to § 36-26-103 brought its language in line with

that of APA § 41-22-12(b)(4) (“[a] short and plain statement of the matters asserted”).55 By

finding no substantive change and thus implicitly retaining the FDA’s pre-amendment “in

detail” requirement, the court without further comment may have been attempting to narrow

what otherwise might be perceived as a significant gap between the process due an employee

under the FDA, and derivatively the TTA, and that due an aggrieved party under the APA. For

example, the remainder of § 41-22-12(b)(4) calls for detail:

If the agency or other party is unable to state the matters in detail at the time the notice
is served, the initial notice may be limited to a statement of the issues involved.
Thereafter, upon application, a more definite and detailed statement shall be
furnished. (Emphasis supplied.)

In addition, the APA provides for discovery, through which a party also can obtain detailed

52
62 So. 788, 794 (Ala. 1913).
53
986 So. 2d 367, 373 (Ala. 2007).
54
2008 Ala. Civ. App. LEXIS 682 @ *14; 2008 WL 4683562 @ *5.
55
2008 Ala. Civ. App. LEXIS 682 @ *12; 2008 WL 4683562 @ *5.

22
information:

In a contested case, on motion of a party, the presiding officer conducting the hearing
may issue subpoenas, discovery orders related to relevant matters, and protective
orders in accordance with the rules of civil procedure.56

In contrast, discovery is not explicitly mentioned in either the FDA or the TTA. There

is provision in § 36-26-104(a) and § 16-24-10(a) for an exchange of documents and witness

lists prior to hearing, but the extent of the hearing officer’s authority under either act to compel

pre-hearing discovery is uncertain, as the acts provide only:

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.57

Thus, if an employee under the FDA or TTA is to have protections closer to those provided by

the APA, it was necessary for the court to find no relaxing of the FDA’s notice requirements.

The court, undoubtedly by design, did not make note of the most obvious similarities

to familiar pleading standards, namely the likenesses to the language of Alabama Rule of Civil

Procedure 8(a)(1) and to that of Federal Rule of Civil Procedure 8(a)(2) (“a short and plain

statement of the claim showing that the pleader is entitled to relief”).58 The rules of civil

procedure, of course, provide for a motion for a more definite statement59 and discovery.

Though there is a wealth of potentially enlightening case law interpreting “a short and plain

statement” as used in those rules, presumably the court wanted to allow a lack of pleading

formality in FDA proceedings. Thus, instead of referencing established procedural rules, the

56
Ala. Code § 41-22-12(c).
57
Section 36-26-104(a). The language of § 16-24-10(a) is identical save for the last word, which is “teacher” in
the TTA.
58
The Alabama rules are modeled after the federal ones. Ex parte Deramus, 882 So. 2d 875, 877 (Ala. 2002).
59
Fed. R. Civ. P. 12(e); Ala. R. Civ. P. 12(e).

23
court cited the out-of-state cases of Lucero v. Mathews60 and Raskey v. Department of

Registration & Education,61 the latter standing for the proposition that “charges in an

administrative hearing do not have to be drawn with the same precision as judicial

pleadings.”62

From the foregoing discussion, it definitely appears that the Archible court’s analysis

of the amended § 36-26-103 notice requirements favors employees, as it continues to require

some degree of detail. What is most curious is that, after concluding that there has been no

substantive change in the notice requirements, the court proceeded to rule that both Archible

and Soleyn were given sufficient information about the charges against them, even though the

formal, written, § 36-26-103 notices, standing alone, would not pass muster either before or

after the 2004 statutory amendments.

IX. The Judicially Legislated “Surrounding Circumstances” Test

Although the Archible court’s application of the standard of review can be justified on

the basis of cases decided by the Alabama Supreme Court, its application of the FDA’s notice

requirements is difficult, if not impossible, to justify. In its ruling on the sufficiency of notice

to both Archible and Solyen, the court appears to have ignored the fundamental rule of

statutory construction—namely, that if the statutory language is clear, then no rule of

construction is necessary. This rule was recited by the chief judge in his Wilson dissent:

“‘Words used in a statute must be given their natural, plain, ordinary, and
commonly understood meaning, and where plain language is used a court is
bound to interpret that language to mean exactly what it says. If the language of
the statute is unambiguous, then there is no room for judicial construction and the
clearly expressed intent of the legislature must be given effect.’” Blue Cross &
60
901 P.2d 1115 (Wyo. 1995).
61
410 N.E.2d 69, 75 (Ill. App. 1980).
62
2008 Ala. Civ. App. LEXIS 682 @ *13-14; 2008 WL 4683562 @ *5. Missing from so many discussions is a
realization that a nonprobationary employee’s protected interest in his job may be his most valuable property right,
yet his rights in property far less valuable cannot be taken from him without the procedural safeguards afforded by
the rules of civil procedure.

24
Blue Shield of Alabama, Inc. v. Nielsen, 714 So. 2d 293, 296 (Ala. 1998)(quoting
IMED Corp. v. System Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)).
See also State v. Lupo, 984 So. 2d 395, 2007 Ala. LEXIS 220 (Ala. 2007).63

Section 36-26-103(a) plainly states that the reasons and supporting facts for the

termination are to be spelled out in the Step 1 notice itself.

The court’s holding with respect to Archible merely repeated information from the

Step 1 letter and then asserted that the notice was sufficient based upon the “surrounding

circumstances”:

In appeal number 2070379, Bishop State notified Archible in its August 1, 2007, letter
that it intended to terminate his employment for several of the statutory grounds
contained in § 36-26-102: “failure to perform your duties in a satisfactory manner,
immorality, and/or other good and just causes.” Bishop State also informed Archible
that it intended to terminate his pay for his acts of moral turpitude. Bishop State further
advised Archible of the factual basis for the grounds asserted: “financial improprieties
relating to the awarding of financial aid and scholarships.” From that information,
Archible was able to discern that the grounds for termination of his employment and
his pay directly related to criminal charges pending against him and that his testimony
in defending the grounds for termination could incriminate him. Based on the content
of the notice and the surrounding circumstances, it is apparent that Bishop State
provided Archible sufficient information of the misconduct and moral turpitude it
intended to prove so as to enable Archible to defend against those charges.64
(Emphasis supplied.)

The court did not explain just what the “surrounding circumstances” were. The only

circumstance, other than the notice itself, which the court mentioned was the fact that Archible

had filed a motion for a stay, in which he asserted that “criminal charges ‘directly related to

the alleged grounds for termination of his employment in the above styled case’ were pending

against him and 25 other Bishop State employees but that those charges had not yet been

presented to a grand jury.”65 Notice of the criminal charges came not from the employer, upon

which the duty of giving notice is clearly placed by the plain language of the statute, but from

63
984 So. 2d @ 1178 n. 7.
64
2008 Ala. Civ. App. LEXIS 682 @ *17-18; 2008 WL 4683562 @ *6.
65
Id. @ *6; @ *2.

25
a third party, the district attorney.

Neither the college, nor the hearing officer, nor the court explained precisely what the

criminal charges against Archible are. Indeed, it is unclear if there is any specification

anywhere in the record of the hearing or the appellate proceeding. The hearing officer said

only:

On October 22, 2007, the employee filed a motion to Stay the Employment
Termination Proceeding Pending Resolution of Parallel Criminal Matters (which
matters were directly related to the alleged grounds for termination)66 (Emphasis
supplied.)

Solyen similarly had knowledge imputed to him by the appellate court, which he

supposedly obtained not from his employer but from the Mobile County District Attorney:

Unlike Archible, Soleyn attended the pre-termination conference offered by Bishop


State on August 30, 2007. At that conference, Soleyn’s attorney complained that
Soleyn had not been provided sufficient notice of the specific acts of financial
impropriety Bishop State was relying upon to terminate Soleyn's employment and his
pay. Bishop State's attorney responded essentially that Soleyn had criminal charges
pending against him for financial improprieties committed at Bishop State and that his
employment and pay were being terminated for the same acts for which he had been
criminally charged.67 (Emphasis supplied.)

There is no suggestion that the employer conducted its own independent investigation into the

charges made against either employee; instead, it merely relied upon the criminal charges filed

by the district attorney.

The hearing officer described the exchange at the pre-termination conference in these

words:

A conference was held on August 30, 2007, attended by Soleyn, his attorney L. Daniel
Mims, Dr. Lowe [Bishop State’s interim president], and David O’Brien and Jeff
Miller, attorneys for Bishop State. During the conference Mims contended, “Mr.
Solyen’s due process rights have not been met because he’s not been told by Bishop
State what it is specifically that he has done which supports his termination or supports

66
RULING – On Grievant’s Motion to Reinstate His Pay, January 4, 2008, @ 4, Archible and Bishop State
Community College, FMCS No. 07-04797 (Serda Hrg. Off.).
67
2008 Ala. Civ. App. LEXIS 682 @ *9; 2008 WL 4683562 @ *3.

26
a conclusion that he’s done something that rises to the level of moral turpitude.”
(Transcript P. 9) O’Brien responded, “Well, Danny, the substance of the plain
statement of facts which we believe has been provided, the same acts that are
referenced there are the acts that arise out of the criminal charges that have been made
against your client.” Mims stated, “Well, how do we know that, David? You didn’t tell
us that in the letter.” O’Brien responded, “Well, I think the letter in and of itself
references the same conduct that he has been arrested for.” (Transcript P. 10-11)68
(Emphasis supplied.)

After Soleyn’s experience with “surrounding circumstances”, in a case of deficient notice,

there would seem to be a disincentive for an employee to request a pre-termination

conference, to avoid being charged with knowledge of additional information conveyed to

him during the conference.

Because of the differing standards of proof in criminal cases and administrative

proceedings, the criminal charges against the Archible employees may have been more

narrowly drawn than the college’s charges of job misconduct. Moreover, job misconduct

sufficient to get an employee fired under § 36-26-102 may not be criminal, so that the college

president may have had acts in mind in addition to those upon which the district attorney

based his charges. Unless and until the employees or their attorneys were told explicitly that

the charges in the notices referred to the criminal charges, and to those charges only, and that

the charges in the notices were based upon the same facts as the criminal charges, there was

no way that the employees or their attorneys could know exactly what they were up against.

The Fourteenth Amendment requires not mere notice but “effective notice”,69

“appropriate to the nature of the case”.70 “[T]he timing and content of the notice and the nature

of the hearing will depend on appropriate accommodation of the competing interests

68
Ruling on Employee’s Motion To Dismiss or in the Alternative To Reinstate Pay, March 25, 2008, @ 2-3,
Bishop State Community College and Alabama Education Association / James Soleyn, FMCS No. 08-01166
(Williams Hrg. Off.).
69
Loudermill, 470 U.S. @ 543 n. 8, citing Goss v. Lopez, 419 U.S. 565, 583 (1975). See also Loudermill, 470
U.S. @ 551-552 (“meaningful notice”, “fair notice”) (BRENNEN, J., concurring in part and dissenting in part).
70
Loudermill, 470 U.S. @ 542, citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

27
involved.”71 It is unclear how notice that the facts supporting the proposed termination of

employment are the same as those supporting the criminal charges, provided orally for the first

time at the pre-termination conference, is “appropriate to the nature of the case”, in which the

employee’s pay and livelihood are at stake. Such short notice would not seem to be “effective”

in enabling the employee’s attorney to prepare his client’s defense. Within the time frame

specified in § 36-26-103(a), an attorney should have 20-30 days to prepare. Notice given at the

conference hardly accommodates the employee’s interest in having effective assistance of

counsel there.

In State Tenure Commission v. Page,72 decided under the Tenure Act, the court of

civil appeals, without reference to Loudermill, listed among the four requirements for due

process, a requirement that notice be provided a “reasonable time” in advance of a pre-

termination conference:

“(a) He [must] be advised of the cause or causes for his termination in sufficient
detail to fairly enable him to show any error that may exist;
“(b) He [must] be advised of the names and the nature of the testimony of
witnesses against him;
“(c) At a reasonable time after such advice, he must be accorded a meaningful
opportunity to be heard in his own defense; and
“(d) That hearing should be before a tribunal that both possesses some academic
expertise and has an apparent impartiality toward the charges.”73 (Citation
omitted; emphasis supplied.)

The authority for the requirement of advance notice in Page can be traced to the Fifth

Circuit case of Ferguson v. Thomas,74 in which the court described the pre-termination

conference thusly:

71
Goss v. Lopez, 419 U.S. 565, 579 (1975), citing Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961); and
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
72
777 So. 2d 126 (Ala. Civ. App. 2000).
73
Id. @ 131.
74
430 F.2d 852 (5th Cir. 1970); reh. denied. Page quoting James v. Board of School Comm’rs of Mobile
County, Ala., 484 F. Supp. 705, 715 (S.D. Ala. 1979), quoting Stewart v. Bailey, 556 F.2d 281, 285 (5th Cir.
1977), quoting Ferguson, 430 F.2d @ 856.

28
The President of Prairie View College, Dr. A. I. Thomas, called Dr. Ferguson to
his office and, in the presence of a number of administrative and faculty personnel
and two students he had gathered for the occasion, he served upon Dr. Ferguson a
document containing fifteen “guidelines” relating to performance of his duties as
an instructor. No copy of this document had been served on Dr. Ferguson before
he reached the meeting. After allowing him to read it and to make a brief
objection, the meeting was dismissed. A sixteenth point in the “guidelines” placed
Dr. Ferguson on temporary probation for the balance of his contract teaching
period. The “guidelines” were specifically applicable to Dr. Ferguson and were
not applicable to any other instructor at the college.75

The Fifth Circuit stated that, because the guidelines were not served upon the employee

until his arrival at the meeting, “this fell short of according him a reasonable opportunity to

voice his dissent and opposition.”76 In Archible, that was Soleyn’s problem precisely.

The pertinent language of FDA § 36-26-103(a) is unmistakably clear—the purpose of

the pre-termination conference is to afford the employee or the employee’s attorney the

opportunity to present the employee’s side of the story to the employer:

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. (Emphasis supplied.)

Manifestly, the statute does not say that the purpose of the conference is to afford the

employer the opportunity to correct deficiencies in its Step 1 statutory notice.

There is no basis in the plain language of either the Dismissal Act or the Tenure Act

for a “surrounding circumstances” test to bolster an otherwise insufficient initial notice,

particularly when one of the circumstances is a delay until the pre-termination conference in

informing the employee of the details of the employer’s charges against him, and another is

the fact that the details come not from the employer itself but from a third party. In every case

in which an accused employee is actually guilty of misconduct, the employee probably knows

75
430 F.2d @ 854-855.
76
Id. @ 857.

29
what transpired better than anyone, yet the employee’s own knowledge is no substitute for the

statutorily and constitutionally required notice of the specific charges from the employer.

X. Loudermill and Alabama Case Law

The Supreme Court summarized the Loudermill principles as follows:

An essential principle of due process is that a deprivation of life, liberty, or property


“be preceded by notice and opportunity for hearing appropriate to the nature of the
case.” … We have described “the root requirement” of the Due Process Clause as
being “that an individual be given an opportunity for a hearing before he is deprived of
any significant property interest.” … This principle requires “some kind of a hearing”
prior to the discharge of an employee who has a constitutionally protected property
interest in his employment. … As we pointed out last Term, this rule has been settled
for some time now. … Even decisions finding no constitutional violation in
termination procedures have relied on the existence of some pretermination
opportunity to respond. For example, in Arnett six Justices found constitutional
minima satisfied where the employee had access to the material upon which the
charge was based and could respond orally and in writing and present rebuttal
affidavits. …77 (Citations and footnote omitted; emphasis in original.)

These principles have been applied by numerous state and federal courts in Alabama. Selected

cases are examined in this section.

The degree of detail which the Constitution requires depends, of course, upon the

complexity of the charges. Birmingham Board of Education v. Holifield78 is an example of a

simple pre-amendment FDA case in which a single sentence sufficed to substantiate the

charges:

In September 1988, pursuant to the act, the employee received written notice from the
board of the proposed termination of his employment. The grounds for the proposed
termination were insubordination and good and just cause. The letter further stated that
the proposed action was based upon the following conduct: “Possession of a gun at
Pratt Elementary School on July 19, 1988, in violation of School Board Policy #
3131.”79 (Emphasis supplied.)

The single italicized statement clearly explained what the alleged act was (“Possession of a

77
470 U.S. @ 542.
78
604 So. 2d 418 (Ala. Civ. App. 1990).
79
Id. @ 418-419.

30
gun”), where it was committed (“at Pratt Elementary School”), when it was committed (“on

July 19, 1988”), and why it was wrong (“in violation of School Board Policy # 3131”). The

employer’s notices in Archible omitted virtually all such factual information—no what, no

when, no where, no why.

Wells v. Dallas Independent School District,80 a due process case brought by a

discharged school administrator, was quoted by the Alabama Court of Civil Appeals in

Fairfield Board of Education v. Acoff.81 The Wells court explained the minimum process due

under the U.S. Constitution:

A public employee with a property interest in his continued employment is entitled


under the Fourteenth Amendment to the following minimum due process rights in
connection with termination of his services: (1) to be advised of the cause of the
termination [or of the charges to be heard] in sufficient detail to permit him to show
any error that may exist; (2) to be advised of [if he does not himself hear] the names
and nature of the testimony of the witnesses against him; (3) to be afforded a
meaningful opportunity to be heard in his own defense within a reasonable time and
(4) before a tribunal that possesses some expertise and an apparent impartiality toward
the charges. …82 (Brackets in original; citation omitted; emphasis supplied.)

The college’s notices to the Archible employees would seem to fall far short of the Wells

standards.

The charges in Wells were more numerous and complex than in Holifield and in such a

case may require a more detailed notice:

We are persuaded that material issues of fact did exist as to whether Wells received
notice of the cause of his discharge in sufficient detail to enable him to show any
errors. Wells received a letter dated November 14, 1979, notifying him of the
Administrative Council hearing. The letter further provided:

At the hearing the Administration will present evidence with regard to the
following matters and charges forming the basis of your termination:
1. Negligence and misconduct in the management and supervision of the
activities and affairs of the department under your control.

80
793 F.2d 679 (5th Cir. 1986).
81
868 So. 2d 1105 (Ala. Civ. App. 2003).
82
Id. @ 682.

31
2. Insubordination and disobedience in participating in the execution of a
management contract with the Foundation for Quality Education in direct
opposition and defiance of orders of the General Superintendent.
3. Negligence and mismanagement by you in your agreement to terms and
conditions and execution of documents related to a pledge of retainage by
Maxwell Construction Company to the Merchant's State Bank.
4. Approval by you and persons under your direct supervision and control of
payments for charges that you knew or should have known were unreasonable
and excessive on various construction and repair jobs performed throughout
the District.
5. Failure to ensure adequate job site supervision either by DISD staff or
outside architects and engineers under contract to the District for such
purposes.
6. Attempting, by intimidation or other means, to require principals and other
persons at various schools and job sites to improperly and falsely approve
work performed on facilities under their control and supervision.
7. Failing to maintain adequate procedural and other safeguards as to
competitive bidding.
8. Abuse and misuse of the emergency contract procedures and open purchase
order procedures of the District by you and those under your supervision and
control.

Charges two and three were allegations of misdeeds in specific circumstances,


permitting Wells to prepare his defense. The other charges, however, are vague and
fail to set out the specific circumstances of the claimed misdeeds. At the very least,
these vague charges permit conflicting inferences as to whether Wells received
sufficient notice of the charges against him. The entry of summary judgment was
therefore in error.83 (Emphasis supplied.)

If there were factual issues regarding the sufficiency of the Wells notice, then surely such

issues were present in Archible, yet in the latter, the appellate court resolved them by

imputation, instead of remanding for factual determinations.

A model example of a notice under the FDA can be found in Perine v. Kennedy,84 a

case involving Bishop State Community College itself as the employing entity:

“This is to notify you that it is my intention to confirm your earlier


resignation/termination of employment with Bishop State Community College,
which was effective July 13, 2000. In the event that I decide to confirm your
earlier resignation/termination of employment, you will receive another letter
from me, specifying that I will be taking such action.

83
793 F.2d @ 682-683.
84
868 So. 2d 1123 (Ala. Civ. App. 2003).

32
“Your termination is based upon your unapproved absence from work for more
than three (3) consecutive workdays, as I stated in my letter to you, dated August
1, 2000, a copy of which is enclosed. The official records of the College indicate
that you were absent from work, without approval, from July 10, 2000, until
August 1, 2000. Due to your unapproved absences, the following State Board of
Education policy, regarding Abandonment of Position, is applicable to your
employment:

“Policy # 618.01, Section 1.2 -- Any employee who is absent from work
for three (3) consecutive workdays without approval shall be considered to
have abandoned the position and to have resigned from the employing
institution.

“Under the rules of the Alabama State Board of Education, you are entitled,
subject to the terms and conditions of the Fair Dismissal Act, to appeal my
decision should I determine that your termination … will be imposed or
confirmed. If you intend to appeal the termination, if imposed or confirmed, you
must notify me in writing within fifteen (15) days of your receipt of this letter, of
your intent to contest the termination, if imposed or confirmed. If you do not
intend to appeal the termination, [if] imposed or confirmed, you need not respond
to this letter.”85 (Emphasis supplied.)

The notice stated the charge, the policy violated, the dates of violation, and the evidence

against the employee. The employees in Archible received far less formal notice from the

same employer.

Present in Loudermill, in the cases cited therein, and in the Alabama cases discussed in

this section is a concern that an employee be provided with information about the employer’s

evidence, prior to termination. To be “effective”, the employee needs the information before

the pre-termination conference, so that he can prepare a rebuttal. The Supreme Court

addressed the evidence requirement in these words:

The tenured public employee is entitled to oral or written notice of the charges against
him, an explanation of the employer’s evidence, and an opportunity to present his side
of the story. See Arnett v. Kennedy, 416 U.S., at 170-171 (opinion of POWELL, J.);
id., at 195-196 (opinion of WHITE, J.); see also Goss v. Lopez, 419 U.S., at 581.86
(Emphasis supplied.)

85
Id. @ 1125-1126.
86
Loudermill, 470 U.S. @ 546.

33
Conspicuously absent from both the Dismissal Act and the Tenure Act is any

requirement for the employer to provide the employee with an explanation of the employer’s

evidence in advance or during the course of the pre-termination conference. The notices to the

Archible employees, the opinions of the hearing officers under review, and the opinion of the

appellate court itself are devoid of any mention of the employer’s evidence, so that there is no

reason to believe the employer revealed its evidence to either employee.

Even in those due process cases in which the Supreme Court found no constitutional

violation, the court found some pre-termination opportunity to review evidence and respond;

hence its reference in Loudermill87 to Arnett v. Kennedy,88 a case involving discharge of a

nonprobationary federal employee. The employee Kennedy was advised of his right, under

regulations promulgated by the Civil Service Commission and his employing agency, to reply

to the charges orally and in writing, and to submit affidavits to the agency’s regional director.

He was also advised that the material on which the notice was based was available for his

inspection in the regional office, and that a copy of the material was attached to the notice of

proposed adverse action.89 Nothing, not even a copy of the criminal charges, was attached to

the notices in Archible.

Similarly, in Mathews v. Eldridge,90cited throughout Loudermill, the government

afforded the individual substantial protections before deciding to terminate his social security

disability benefits. It advised the recipient that the benefits might be terminated, summarized

the evidence as to why the termination might be effected, and informed the recipient that he or

87
Id. @ 542.
88
416 U.S. 134 (1974). In Loudermill, the court rejected the “bitter with the sweet” approach of Arnett. 470 U.S.
@ 541.
89
416 U.S. @ 137.
90
424 U.S. 319 (1976).

34
she had a right to respond in writing and submit additional evidence.91 Despite the

overwhelming evidence from the case law that a person must be afforded some information

about the evidence against him before he can be deprived of a constitutionally protected right,

the Archible employees were told nothing by their employer about the evidence against them.

In City of Orange Beach v. Duggan,92 the Alabama Supreme Court paraphrased the

Loudermill quote set forth above:

Therefore, the Supreme Court concluded that under federal procedural-due-process


law all that is required in a pretermination hearing is “oral or written notice of the
charges against [the employee], an explanation of the employer’s evidence, and an
opportunity [for the employee] to present his side of the story.”93 (Brackets in
original; citation omitted; emphasis supplied.)

The notices to the employees in Archible were devoid of any mention of the employer’s

evidence against them, and there is no indication in the hearing officer’s or the court’s opinion

that the employer’s evidence was revealed to Soleyn at his pre-termination conference.

Frizzell v. Autauga County Board of Education94 was a due process case brought

under 42 U.S.C. § 1983, in which the federal district court stated:

Defendants do not dispute that under the Alabama Teacher Tenure Act, Ala. Code §
16-24 et seq., plaintiff has a property interest in his continued employment. See Board
of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)
(holding that state law determines existence of property interest). In Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) the
Supreme Court held that an employee’s property interest in continued employment
cannot be deprived without appropriate procedural safeguards. Id. at 541.95

The employee was informed of the charges and evidence against him:

Here, the record is clear that Plaintiff received notice of the charges against him, the
names of the witnesses the board expected to call and copies of the documents which
the board intended to rely upon to support its proposed cancellation. This is all the

91
Id. @ 337-38.
92
788 So. 2d 146 (Ala. 2000).
93
Id. @ 152.
94
972 F. Supp. 564 (M.D. Ala. 1997).
95
Id. @ 565.

35
process Plaintiff is due under the Federal Constitution.96 (Footnote omitted; emphasis
supplied.)

A nonprobationary employee covered by the Dismissal Act or Tenure Act has the

requisite property interest by virtue of the “just cause” provisions of § 36-26-102 and § 16-24-

8. Both employees in Archible were nonprobationary, as was the employee in Frizzell.

However, unlike Frizzell, there is no mention in Archible of the employer furnishing any

document to either employee.

Acoff, supra, was a pre-amendment TTA case in which the notice letter sent to the

teacher was supplemented with two appendices; one appendix alleged 18 specific deficiencies

in the teacher’s performance and the other appendix identified 8 potential witnesses who

might be called to testify before the employing board to describe facts in support of the

proposed termination of the teacher’s employment contract. The court quoted from Wells,

supra:

Any charged person is constitutionally entitled once to be told what he is charged with
and on what evidence … .97 (Emphasis supplied.)

In Archible, the college’s notices to the employees said nothing about the evidence on which

the college relied in concluding that they probably were guilty.

From an examination of Loudermill and cases embodying its principles, there appears

to be a very real question as to whether the Archible employees received notice in sufficient

detail to satisfy minimum federal constitutional requirements. At best they had crucial

“notice” and “facts” from their criminal cases imputed to them by the appellate court, not by

their hearing officers who were solely responsible for fact finding. There is little doubt that the

employees were not given information about their employer’s evidence against them.

96
Id.
97
868 So. 2d @ 1109, quoting 793 F.2d @ 683.

36
Although the Archible court paid lip service to Loudermill,98 the court does not appear to have

embraced the case’s constitutional principles.

XI. The “Surrounding Circumstances” Test in a Case Involving Moral Turpitude

In “cases involving moral turpitude,” detail in the Step 1 notice is crucial both to the

employee’s defense and to the constitutional sufficiency of the notice, because the employee

faces prompt termination of his pay without the safeguard of an evidentiary hearing. Stripped

of his pay, he may be unable to afford an attorney to defend him at the Step 8 evidentiary

hearing, so that his “right to counsel” effectively is rendered nugatory.

Neither the Dismissal Act nor the Tenure Act defines “moral turpitude”. Case law fails

to provide a definition. In Jordan v. De George,99 a deportation case, the dissenters, including

Justice Felix Frankfurter, conceded over half century ago:

What the Government seeks, and what the Court cannot give, is a basic definition
of “moral turpitude” to guide administrators and lower courts.100

A functional definition remains elusive.

Despite the fact that Chapman v. Gooden101 is 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 from Alabama courts. Also instructive is the

unpublished opinion of the trial court in that case.102 There is no mention in Chapman of

98
2008 Ala. Civ. App. LEXIS 682 @ *14; 2008 WL 4683562 @ *5.
99
341 U.S. 223 (1951).
100
Id. @ 233 (JACKSON, J., dissenting)
101
974 So. 2d 972 (Ala. 2007).
102
The Hon. Robert S. Vance, Jr., Jefferson County Circuit Judge, graciously emailed a copy of his thoughtful
opinion to the author, 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 “moral turpitude”
remains enlightening. He was concerned that “moral turpitude” means too many different things to too many
different people. The lack of legislative guidance and definitional inconsistency that he observed in the voting
rights context are sure to be seen in the FDA and TTA contexts as well. Consider, for example, “immorality” as a
ground for terminating a teacher under § 36-26-102 or § 16-24-8 and apply its meaning to (i) an unmarried teacher
who has consensual sex with unmarried adult; (ii) an unmarried teacher who has consensual sex with a colleague’s
spouse; (iii) an unmarried teacher who has consensual sex with an unmarried, adult student; and (iv) an unmarried

37
“financial improprieties”, with which the Archible employees were charged,103 but theft and

conspiracy to commit fraud are mentioned as having been held to rise to the level of moral

turpitude, whatever that may be.104

The notices to the Archible employees contained no definition of moral turpitude and

no explanation as to why their conduct merited that characterization. There is not even any

indication in the notices, or in the opinions of the hearing officers, or in the appellate court’s

opinion of the amount of money involved and no indication of whether the crimes alleged are

misdemeanors or felonies. The court made no effort to define moral turpitude and instead

merely imputed to the employees from the “surrounding circumstances” knowledge of their

moral turpitude sufficient to enable them to defend against the immediate termination of their

pay.

There is constitutional concern for employees charged with stigmatizing misconduct.

In the college teacher case of Board of Regents v. Roth,105 the Supreme Court cautioned:

The State, in declining to rehire the respondent, did not make any charge against him
that might seriously damage his standing and associations in his community. It did not
base the nonrenewal of his contract on a charge, for example, that he had been guilty
of dishonesty, or immorality. Had it done so, this would be a different case. For
“where a person’s good name, reputation, honor, or integrity is at stake because of
what the government is doing to him, notice and an opportunity to be heard are
essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437. Wieman v. Updegraff, 344
U.S. 183, 191; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123;
United States v. Lovett, 328 U.S. 303, 316-317; Peters v. Hobby, 349 U.S. 331, 352
(DOUGLAS, J., concurring). See Cafeteria Workers v. McElroy, 367 U.S. 886, 898.
In such a case, due process would accord an opportunity to refute the charge before
University officials. In the present case, however, there is no suggestion whatever that
the respondent’s “good name, reputation, honor, or integrity” is at stake.106 (Footnote

teacher who has “consensual” sex with an unmarried, underage student. There is no litmus test as to who is guilty
of immorality or whose pay must be halted without an evidentiary hearing, on account of “moral turpitude”.
103
But see Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 640 n. 4 (1989)
(MARSHALL, J., dissenting); and Ex parte Alabama Farmers Cooperative, Inc., 911 So. 2d 696, 701 (Ala.
2004), in which that phrase is used without particular meaning.
104
974 So. 2d @ 977.
105
408 U.S. 564 (1972).
106
Id. @ 573.

38
omitted.)

Because an employee’s “good name, reputation, honor, or integrity” is put at stake by a charge

of “moral turpitude”, even a probationary employee so charged is entitled to a hearing to

defend himself.107

In labor-management arbitrations, employers charging employees with criminal or

other stigmatizing misconduct may be held to a standard of proof higher than the usual

preponderance of the evidence.108 Under both the Federal and Alabama Rules of Civil

Procedure, while an ordinary claim requires only a short and plain statement, “fraud” must be

pleaded with particularly.109 In Archible, the court said only that due process concerns require

sufficient notice of the reasons for terminating the employee's pay on the basis of moral

turpitude and that those reasons may be supported by the same facts as are used to support

termination of employment. The court required no additional degree of specificity of moral

turpitude.

In an FDA case involving moral turpitude, the employee faces an immediate cutoff of

his pay as soon as the employing board or college president determines to discharge him.

107
Some publication is required. Bishop v. Wood, 426 U.S. 341, 348-349 (1976).
108
Hill & Sinicropi, Evidence in Arbitration (BNA 2nd ed. 1987) @ 33-36; Elkouri & Elkouri, How Arbitration
Works (ABA/BNA 6th ed. 2003) @ 950-952, 2008 Supplement @ 345-347. After the Alabama Supreme Court
rejected application of labor-management decisional principles in the TTA case of Wilson, supra, care must be
taken in drawing upon those principles. Here, however, there are federal constitutional grounds for affording
employees additional protection against stigmatizing charges.
109
Rule 9(b). The Committee Comments on 1973 Adoption explain:
Subdivision (b). This subdivision is identical with federal Rule 9(b) and similar state rules. It is a
qualification of the generalized pleading permitted by Rule 8(a). But this special requirement as to fraud
and mistake does not require every element in such actions to be stated with particularity. It simply
commands the pleader to use more than generalized or conclusory statements to set out the fraud
complained of. The pleading must show time, place and the contents or substance of the false
representations, the fact misrepresented, and an identification of what has been obtained. (Emphasis
supplied.)
23 Michie’s Alabama Code 1975 (2003 Replacement Volume) @ 73. See also Case Notes, id. @ 78-79, and 2007
Cumulative Supplement @ 23. The Archible court noted that the Alabama Rules of Civil Procedure by the express
terms of Rule 81(b) do not apply to proceedings such as those under the FDA or TTA. 2008 Ala. Civ. App. LEXIS
682 @ *2 n. 1; 2008 WL 4683562 @ *1 n. 1. However, it would seem reasonable to look to established
procedural rules for guidance in such proceedings.

39
Before his pay is halted, such an employee is afforded only a Step 1 notice and the opportunity

for a Step 3 pre-termination conference with the board or president. The Dismissal Act says

nothing about any opportunity to present witness testimony or other evidence or to cross-

examine the employer’s witnesses prior to the cutoff of pay. The employee’s predicament is

exacerbated if he first learns the factual details of the employer’s charges at the conference

itself.

The obvious strategy for an aggrieved employee whose pay is stopped on allegations

of moral turpitude is to bring a preliminary motion, as did the employees in Archible.

However, no hearing officer is chosen until Step 7, after the pre-termination conference. Even

if the schedule laid out in the FDA is followed rigorously, it could take four months or more

from the date of the conference before the hearing officer renders a decision.110 If the

employer responds with a “surrounding circumstances” argument, factual issues may be

raised, which require a hearing for resolution. As a result, the “surrounding circumstances”

test could complicate FDA proceedings, although the act’s purpose supposedly “‘is to provide

… employees a fair and swift resolution of proposed employment terminations,’ and the FDA

should be liberally construed to effectuate its purpose.”111 (Emphasis supplied.)

The Supreme Court long has been solicitous about cutting off a person’s means of

support. In Loudermill, the court recalled:

We have frequently recognized the severity of depriving a person of the means of


livelihood.112

As examples of its solicitude, the court offered Goldberg v. Kelly113 and Sniadach v. Family

110
In Soleyn’s case, the elapsed time was almost 7 months (August 30, 2007 until March 25, 2008). 2008 Ala.
Civ. App. LEXIS 682 @ *9; 2008 WL 4683562 @ *3.
111
Bolton, supra, 514 So. 2d @ 824.
112
470 U.S. @ 543.
113
397 U.S. 254 (1970). Goldberg is cited in Archible, 2008 Ala. Civ. App. LEXIS 682 @ *14; 2008 WL
4683562 @ *5.

40
Finance Corp.,114 among others.

In Goldberg, notwithstanding the fact that (i) the procedures used by the

commissioner in terminating welfare benefits required notice of termination and a review by a

local welfare official, (ii) allowed a recipient to make a written statement to demonstrate why

benefits should not be terminated, and (iii) further allowed a fair hearing after termination, the

court concluded that only a pre-termination hearing sufficed to meet constitutional due process

standards. The high court distinguished the case from others in which no pre-termination

hearing is required by quoting the district court:

“… By hypothesis, a welfare recipient is destitute, without funds or assets. . . . Suffice


it to say that to cut off a welfare recipient in the face of . . . ‘brutal need’ without a
prior hearing of some sort is unconscionable, unless overwhelming considerations
justify it.” Kelly v. Wyman, 294 F. Supp. 893, 899, 900 (1968).115

In Sniadach, the court on due process grounds struck down a Wisconsin

prejudgment garnishment procedure which authorized a garnishee defendant’s wages to

be frozen at a 50% level, though the defendant was entitled to a full trial on the merits in

the main suit. The high court observed:

A prejudgment garnishment of the Wisconsin type is a taking which may impose


tremendous hardship on wage earners with families to support. 116

There is little reason to believe that the impact of a pre-hearing termination of pay will have

much less of an impact on an employee under the FDA or TTA than on those aggrieved

persons in Goldberg or Sniadach, particularly under current economic conditions.

Justice Marshall argued eloquently in Loudermill that an employee’s wages should not

be suspended without an evidentiary hearing, but was unable to persuade the majority. He

reasoned:

114
395 U.S. 337 (1969).
115
397 U.S. @ 261.
116
Id. @ 348.

41
I write separately, however, to reaffirm my belief that public employees who may
be discharged only for cause are entitled, under the Due Process Clause of the
Fourteenth Amendment, to more than respondents sought in this case. I continue
to believe that before the decision is made to terminate an employee's wages, the
employee is entitled to an opportunity to test the strength of the evidence “by
confronting and cross-examining adverse witnesses and by presenting witnesses
on his own behalf, whenever there are substantial disputes in testimonial
evidence,” Arnett v. Kennedy, 416 U.S. 134, 214 (1974) (MARSHALL, J.,
dissenting). Because the Court suggests that even in this situation due process
requires no more than notice and an opportunity to be heard before wages are cut
off, I am not able to join the Court's opinion in its entirety.

To my mind, the disruption caused by a loss of wages may be so devastating to an


employee that, whenever there are substantial disputes about the evidence,
additional predeprivation procedures are necessary to minimize the risk of an
erroneous termination. That is, I place significantly greater weight than does the
Court on the public employee's substantial interest in the accuracy of the
pretermination proceeding. After wage termination, the employee often must wait
months before his case is finally resolved, during which time he is without wages
from his public employment. By limiting the procedures due prior to termination
of wages, the Court accepts an impermissibly high risk that a wrongfully
discharged employee will be subjected to this often lengthy wait for vindication,
and to the attendant and often traumatic disruptions to his personal and economic
life.

Considerable amounts of time may pass between the termination of wages and the
decision in a post-termination evidentiary hearing -- indeed, in this case nine
months passed before Loudermill received a decision from his postdeprivation
hearing. During this period the employee is left in limbo, deprived of his
livelihood and of wages on which he may well depend for basic sustenance. In
that time, his ability to secure another job might be hindered, either because of the
nature of the charges against him, or because of the prospect that he will return to
his prior public employment if permitted. Similarly, his access to unemployment
benefits might seriously be constrained, because many States deny unemployment
compensation to workers discharged for cause.117 Absent an interim source of
wages, the employee might be unable to meet his basic, fixed costs, such as food,
rent or mortgage payments. He would be forced to spend his savings, if he had
any, and to convert his possessions to cash before becoming eligible for public
assistance. Even in that instance

“[the] substitution of a meager welfare grant for a regular paycheck may


bring with it painful and irremediable personal as well as financial

117
See Ala. Code 25-4-78(3), Discharge for Misconduct. The author has replaced Justice Marshall’s footnoted
reference to U.S. Dept. of Labor, Comparison of State Unemployment Insurance Laws §§ 425, 435 (1984), 470
U.S. @ 549, with the citation to Alabama’s unemployment compensation statute, which does deny benefits to
those terminated for misconduct, including “a dishonest or criminal act committed in connection with his work”.

42
dislocations. A child’s education may be interrupted, a family’s home lost,
a person’s relationship with his friends and even his family may be
irrevocably affected. The costs of being forced, even temporarily, onto the
welfare rolls because of a wrongful discharge from tenured Government
employment cannot be so easily discounted,” id., at 221.118

If the state of Alabama continues to apply a “surrounding circumstances” test to halt

the pay of an employee accused of moral turpitude under the Dismissal or Tenure Act, then

circumstances may be present in which the Constitution requires a pre-termination evidentiary

hearing to explore those circumstances and arrive at an informed finding that the accused was

in fact aware of the employer’s charges against him and their factual underpinnings. Archible

itself may be just such a case.

XII. Questions Left Unanswered

Appellant Bishop State, in a letter to the court of civil appeals in support of its request

to appeal,119 raised two important issues that the court did not address in its Archible opinion:

A. Whether an employer that terminates an employee for moral turpitude is held to a

heightened standard of proof .

B. Whether an employer that issues an insufficient notice of intent to terminate may

thereafter issue a sufficient notice based upon the same conduct.

XII.A. The Burden and Standard of Proof

Neither the burden of proof (i.e., the risk of non-persuasion) nor the standard of proof

(i.e., the quantum of proof—either a preponderance of the evidence, clear and convincing

evidence, or proof beyond a reasonable doubt) is mentioned anywhere in the Dismissal Act or

the Tenure Act. The burden of proof in a public employment case does not have federal

118
470 U.S. @ 548-550 (MARSHALL, J., concurring in part and concurring in the judgment).
119
Letter to court clerk from employer counsel, dated January 25, 2008.

43
constitutional dimensions and may be placed on the employee.120 Most commonly, the burden

is placed upon the employer; that certainly is the rule in labor-management discharge

arbitrations,121 in which the usual standard of proof is a preponderance of the evidence.122

Not surprisingly, the burden of proof in the usual FDA case has been placed on the

employer in Bishop State Community College v. Williams123 and Thomas, supra,124 but

without mention of the standard of proof. The same burden then holds under the TTA.

Dunson v. Alabama State Tenure Commission, a pre-amendment Tenure Act case, suggests a

preponderance standard.125 By symmetry, the same standard holds under the FDA.

In Dunn, supra, decided under the TTA, the hearing officer found “‘that the Board

ha[d] reasonably and substantially proven that Dunn engaged in serious misconduct’.”126

While the hearing officer implicitly placed the burden of proof on the employer, there is no

reason to believe that he required more than a preponderance of the evidence, the prevailing

standard in civil cases; his comment undoubtedly referred only to the balance of the evidence

presented on behalf of the employer. Inasmuch as the provisions for an evidentiary hearing are

the same under both the FDA and the TTA and the employer is required to provide reasons for

its actions under the FDA, it is reasonable to conclude that the burden in the usual case is on

the employer to substantiate those actions, and to do so by a preponderance of the evidence.

120
Lavine v. Milne, 424 U.S. 577, 585 (1976) (“Where the burden of proof lies on a given issue is, of course,
rarely without consequence and frequently may be dispositive to the outcome of the litigation or application. …
Outside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not
an issue of federal constitutional moment.” (Footnote omitted.)). See Peace v. Employment Security Commission
of North Carolina, 507 S.E.2d 272, 281 (N.C. 1998) (citing Lavine and placing the burden of proof upon the
employee). The Peach decision was overturned legislatively by N.C.G.A. Session Law 2000-190, § 13.
121
Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed. 2003) @ 349, 949, 2008 Supplement @ 344;
Hill & Sinicropi, Evidence in Arbitration (BNA 2nd ed. 1987) @ 39-41.
122
Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed. 2003) @ 950, 2008 Supplement @ 344.
123
__ So. 2d __; 2008 Ala. Civ. App. LEXIS 592, *11; 2008 WL 4368392, *4.
124
2008 Ala. Civ. App. LEXIS 726 @ *16-17; 2008 WL 4952458 @ *5.
125
653 So. 2d 995, 997 (Ala. Civ. App. 1994) (“The Commission’s decision will not be reversed … unless its
judgment is contrary to the preponderance and weight of the evidence so as to be unjust.”).
126
962 So. 2d @ 815.

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As to a heightened standard of proof in an FDA or TTA hearing involving moral

turpitude, no court has addressed the issue even indirectly. As a result, until some Alabama

court rules otherwise, it would not seem to be “arbitrary and capricious” for a hearing officer

to impose a heightened standard on the employer, particularly since the Supreme Court

requires a hearing in a public employment case in which an employee is accused of

stigmatizing misconduct. In fact, holding an employer to a higher standard of proof might

serve to mollify objections to Archible’s “surrounding circumstances” test.

Any issue of improper motive, i.e., termination or cancellation “for political or

personal reasons” under § 16-24-8 or § 36-26-102, is in the nature of an affirmative defense

wherein the employee admits some misconduct but insists that he is being singled out for

punishment unfairly. The employee must raise the defense and presumably must bear the

burden of proof under the usual standard. Wilson, supra.127

XII.B. Two Bites at the Apple Under Alabama Case Law

In ruling on Archible’s motion to reinstate his pay, the hearing officer wrote:

Assuming the Employer still believes that a basis exists for termination of the
Grievant, a new notice of termination needs to be initiated by the Employer, which
meets the requirements of the Act, as interpreted in this Ruling.128

Without comment, the Archible court simply referenced the hearing officer’s ruling about an

appropriate notice.129

The hearing officer in employee Soleyn’s case followed suit:

Since the ruling in the Archible case is controlling in the present case, so also is the
remedy. Employee Soleyn must be reinstated upon receipt of this Ruling with all pay,
benefits and other appropriate matters, as were in effect at the time of his termination,

127
984 So. 2d @ 1171 & n. 5, 1171-1172 (STUART, J., concurring specially), 1172-1173 (LYONS, J.,
concurring in part and concurring in the result).
128
RULING – On Grievant’s Motion to Reinstate His Pay, January 4, 2008, @ 14, Archible and Bishop State
Community College, FMCS No. 07-04797 (Serda Hrg. Off.).
129
2008 Ala. Civ. App. LEXIS 682 @ *8; 2008 WL 4683562 @ *2.

45
such action to be retroactive to the date of termination and continuing until such time
as the required procedure is reinitiated and the “notice of termination” is reissued. If
the Employer elects to begin termination proceedings against Soleyn again, a new
notice of termination should be prepared by the Employer that meets the requirements
of the FDA as interpreted by Arbitrator Serda’s ruling of January 4, 2008.130

As the employer itself posed in Archible, there is some question under Alabama case law as to

whether an employer may take a second bite at the apple. The issue may, of course, be moot in

Archible itself, as the appellate court found the notices sufficient and remanded for further

proceedings.

The issue appears to have arisen in Bolton, supra, when the employing board issued

two identical notices of intent to terminate and failed to follow through on either occasion. The

employee filed suit for a writ of mandamus or injunction, seeking to prohibit the board from

proceeding to terminate his employment. His request ultimately was denied by the trial court,

and he appealed to the Alabama Supreme Court, which stated the issue in this manner:

Essentially, Bolton contends that the Board’s notice of its intention to terminate
his employment contract and its subsequent failure to follow the statutorily
prescribed procedures operate as a bar to the Board’s authority to re-notice Bolton
of the proposed termination on the same grounds as previously alleged. We
agree.131

The court expressed its holding thusly:

[W]e hold that the Board’s re-notice on the same grounds was an abandonment of its
original notice of intent to terminate. 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

130
Ruling on Employee’s Motion To Dismiss or in the Alternative To Reinstate Pay, March 25, 2008, @ 8-9,
Bishop State Community College and Alabama Education Association / James Soleyn, FMCS No. 08-01166
(Williams Hrg. Off.).
131
514 So. 2d @ 823.

46
termination [i.e., the September 11 meeting].132

The employer in Archible, of course, sent only one notice to each employee and did not fail to

act upon either.

In Jones v. Kennedy,133 another case originating with Bishop State Community

College, the reason proffered for terminating the employee was immoral conduct. Her

employment was terminated following an audit-investigation and a preliminary hearing

regarding missing cash from the campus bookstore. The employee, as the clerk of the

bookstore, was responsible for the cash. The employee sought relief in the trial court, which

that court denied in a summary judgment.

On appeal, the Alabama Supreme Court stated:

The entire theory of recovery Jones relies on is that the hearing of her appeal by the
employee-review panel was not held within the 60-day period set out in § 36-26-106,
Ala. Code 1975, thus denying Jones her rights under the FDA. If Jones is correct,
Jones’s remedy would include reinstatement to her former position, with full backpay,
and the reinstatement of her benefits.134

The high court noted the trial court’s skepticism about allowing the employee to prevail

because of a procedural defect:

The trial court also quoted Woodham v. Alabama Aviation & Technical College, 537
So. 2d 934, 936 (Ala. Civ. App. 1988): “A law should never be interpreted so as to
reach an illogical or unreasonable result.” The trial judge obviously considered Jones’s
automatic reinstatement with backpay and benefits, simply because a hearing had not
been held within the 60-day period, to be an “illogical and unreasonable result.”135

After discussing most of the case law on the subject and finding the employer primarily at

fault for delay in the FDA proceedings, the supreme court reversed the summary judgment

and remanded for further proceedings consistent with its opinion.

132
Id. @ 824.
133
890 So. 2d 975 (Ala. 2004) (per curiam).
134
Id. @ 979.
135
Id. @ 980.

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In Woodham v. Alabama Aviation & Technical College,136 cited by the trial court in

Jones, the court of civil appeals took a more flexible approach to a case of multiple notices,

when the reason for termination was the elimination of the employee’s position. The court

distinguished Bolton as follows:

In the case before us, the only stated ground for the employee’s dismissal was …
a justifiable decrease in jobs in the system. In this mandamus proceeding the
employee properly does not aver, argue, or contest the existence of a justifiable
decrease in jobs in the system. … That ground for this employee’s termination is
a continuing happenstance or result inasmuch as the closing of the cafeteria
existed just as much in October as in August. That ground is considerably
different from an act or omission of an employee which occurred at an earlier date
or over an earlier period of time. The estoppel or bar of Bolton can reasonably and
logically be applied only to statutory grounds for a dismissal which were
committed by the employee. We are of the opinion that neither the legislature nor
the supreme court intend for the Bolton principle to apply as a bar where the
ground is a justifiable decrease of jobs in the system. A law should never be
interpreted so as to reach an illogical or unreasonable result. Such a result would
occur in this proceeding if we determined as a matter of law under Bolton that the
college would have to retain its cafeteria manager when the college is no longer
operating a cafeteria.

Bolton does not stand for the proposition that an employee cannot be re-noticed
and terminated. Unlike the case sub judice, there was no termination of the
employment of Mr. Bolton.137 (Emphasis in original.)

Despite the Alabama Supreme Court’s treatment of the alleged misconduct and

procedural error in Jones, it is difficult to believe that an employer may not correct a

defect in a termination notice, especially if the employee has engaged in egregious

behavior. No court has yet ruled that an employer may not. Perhaps Bolton should not be

applied in a procrustean manner; the Woodham rationale may yield a more sensible

result.

XIII. Conclusion

From the foregoing considerations, it appears that the Archible court may have made a

136
537 So. 2d 934 (Ala. Civ. App. 1988), reh. overruled.
137
Id. @ 936.

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much criticized statute worse by engrafting a “surrounding circumstances” test onto its notice

provisions. Unless that test is narrowly restricted to cases in which an employee has been

charged with a crime by the government, its use could turn virtually any Dismissal or Tenure

Act case into a contest of “What did the employee know, and when did he know it?”

Employers may be less conscientious in drafting termination notices, because the test provides

them with a fall-back position. The prospect of the test’s application surely will have a chilling

effect on an employee’s constitutional and statutory right to request a pre-termination

conference, because of the risk of being charged with notice of information conveyed there.

For these reasons, Archible needs to be limited, distinguished, overruled, or reversed.

49