Jackson v. Geneva County Board of Education

REL:08/29/2014

Notice: This opinion is subject to formal revision before publication in the advance

sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,

Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)

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before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

SPECIAL TERM, 2014

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1130194

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Ex parte Monique Jackson

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CIVIL APPEALS

(In re: Monique Jackson

v.

Geneva County Board of Education et al.)

(Geneva Circuit Court, CV-12-900066;

Court of Civil Appeals, 2120549)

SHAW, Justice.

WRIT DENIED. NO OPINION.

Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan,

JJ., concur.

Shaw, J., concurs specially.

Moore, C.J., dissents.

1130194

SHAW, Justice (concurring specially).

I concur in denying the petition for certiorari review.

The petitioner, Monique Jackson, was a probationary

teacher employed by the Geneva County Board of Education ("the

Board"). Near the end of Jackson's third year of employment,

the Board opted to "nonrenew" her employment contract, and

Jackson was fired.

Jackson sued the Board, several members of the Board, and

the superintendent of the Geneva County school system

(hereinafter referred to collectively as "the defendants").

She alleged that she had been fired for impermissible

political and personal reasons. The trial court dismissed the

action, and Jackson appealed to the Court of Civil Appeals,

which affirmed the trial court's dismissal. Jackson v. Geneva

County Bd. of Educ., [Ms. 2120549, August 30, 2013] ___ So. 3d

___ (Ala. Civ. App. 2013). Jackson then sought certiorari

review of the Court of Civil Appeals' judgment.

Jackson's termination is governed by the Students First

Act of 2011, Act No. 2011–270, Ala. Acts 2011 ("the Act").

Section 4 of the Act, codified at Ala. Code 1975, § 16-24C-4,

provides how probationary teachers obtain tenure and how other

probationary employees obtain "nonprobationary status":

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"No action may be proposed or approved based

upon personal or political reasons on the part of

the employer, chief executive officer, or governing

board. A teacher shall attain tenure, and a

classified employee shall attain nonprobationary

status as follows:

"(1) ... [A] teacher ... shall attain

tenure upon the completion of three

complete, consecutive school years of

full-time employment as a teacher with the

same employer unless the governing board

approves and issues written notice of

termination to the teacher on or before the

last day of the teacher's third

consecutive, complete school year of

employment. ..."

Jackson contended on appeal in the Court of Civil

Appeals, and she contends in her certiorari petition to this

Court, that the broad language of § 16-24C-4 prohibiting the

consideration of "personal or political reasons" applies to

decisions regarding the termination of the employment of

probationary teachers. However, the Court of Civil Appeals

noted that different Code sections apply to the termination of

teachers' employment. Specifically, § 5 of the Act, now

codified at Ala. Code 1975, § 16-24C-5, governs the

termination of the employment of probationary teachers like

Jackson. That Code section states, in pertinent part:

"(c) Probationary teachers ... may be terminated

at the discretion of the employer upon the written

recommendation of the chief executive officer, a

majority vote of the governing board, and issuance

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of written notice of termination to the teacher on

or before the fifteenth day of June. ... Upon

issuance of such notice, the teacher may submit a

written statement to the chief executive officer and

the governing board explaining why such action

should not be taken. ...

"(d) The decision to terminate the employment of

any probationary employee shall be final ...."

(Emphasis added.)

The Court of Civil Appeals explained that the prohibition

in § 16-24C-4 on acting "based upon personal or political

reasons" refers to the granting of tenure, not the termination

of the employment of probationary teachers. In other words,

tenure is granted by mere passage of time, and it is not to be

granted based on personal or political reasons. Termination

of the employment of a probationary teacher, however, is

outside the scope of § 16-24C-4 and is instead within the

gambit of § 16-24C-5. The Court of Civil Appeals held:

"Looking to the plain language of the statute,

§ 16-24C-4(1) clearly states that a probationary

employee 'shall' attain tenured status 'upon the

completion of three complete, consecutive school

years of full-time employment as a teacher with the

same employer.' Thus, pursuant to the plain

language of the statute, tenured status is automatic

based upon the completion of working as a teacher

for a specific consecutive period and cannot be

attained based on 'political or personal reasons.'

Section 16-24C-4 is a general statute governing the

manner in which a probationary employee, depending

upon his or her classification, automatically

attains tenure. However, the Students First Act

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contains several other more specific statutes

detailing the procedure for termination of an

employee based upon his or her classification. It

is a well settled rule of statutory construction

that '[w]here statutes in pari materia are general

and specific, the more specific statute controls the

more general statute.' Crawford v. Springle, 631 So.

2d 880, 882 (Ala. 1993).

"In this case, it is undisputed that Jackson was

a probationary teacher at the time of her

termination because she was 'a teacher who ha[d] not

attained tenure.' [Ala. Code 1975,] § 16-24C-3(8).

As noted previously, § 16-24C-5 provides the

specific provision regarding the termination of a

probationary teacher, such as Jackson, prior to his

or her attainment of tenured status. Section 16-

24C-5(c) states that a probationary teacher 'may be

terminated at the discretion of the employer.'

Thus, this provision explicitly allows an employer

to terminate a probationary teacher at his

discretion prior to the employee's attaining tenured

status without any prohibition that the termination

not be based on political or personal reasons.

Additionally, § 16-24C-5(d) goes on to state that

any discretionary termination of a probationary

teacher 'shall be final.'"

Jackson, ___ So. 3d at ___.

Although § 16-24-4 does mention a written notice of

termination, it is not specifying the procedure for

terminating a probationary teacher's employment and barring

the consideration of "personal or political reasons" for the

termination of that employment; instead, it is generally

discussing how tenure is obtained and mentioning the role of

a written termination notice as part of that process. It is

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§ 16-24-5--a completely different Code section and section of

the Act--that discusses the termination of the employment of

probationary employees, and it contains no explicit

prohibition on the consideration of personal or political

reasons for that termination.

To remove any doubt that the prohibition on the

consideration of "personal or political reasons" was

apparently purposefully omitted from the process for

terminating the employment of probationary teachers under §

16-24C-5, the Court of Civil Appeals contrasts it with § 6 of

the Act, codified at Ala. Code 1975, § 16-24C-6, which

provides for the termination of the employment of tenured

teachers and nonprobationary employees:

"In contrast, § 16-24C-6 provides the procedure

for termination of a tenured teacher or

nonprobationary classified employee and states, in

pertinent part:

"'(a) Tenured teachers and

nonprobationary classified employees may be

terminated at any time because of a

justifiable decrease in the number of

positions or for incompetency,

insubordination, neglect of duty,

immorality, failure to perform duties in a

satisfactory manner, or other good and just

cause, subject to the rights and procedures

hereinafter provided. However, a vote or

decision to approve a recommended

termination on the part of ... the

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governing board shall not be made for

political or personal reasons.'

"(Emphasis added.) Moreover, § 16-24C-6 goes on to

provide detailed procedures for an appeal of a

tenured teacher's or nonprobationary classified

employee's termination. Thus, we must conclude that

if the legislature had wished to state that

probationary teachers could not be terminated for

political or personal reasons in the language of §

16-24C-5, it knew how to do so because it clearly

included that language in § 16-24C-6."

Jackson, ___ So. 3d at ___. The Court of Civil Appeals

concluded:

"Accordingly, looking to the Students First Act

as a whole, as we must do, because § 16-24C-5 is the

specific provision that provides an employer

authority to terminate a probationary employee at

its discretion prior to the employee's attainment of

tenure and because the more specific statute

controls the more general statute under the rules of

statutory construction, we conclude that § 16-24C-4

does not control Jackson's termination under the

Students First Act and, thus, that the trial court

did not err in dismissing Jackson's complaint. See

Ex parte McCormick, 932 So. 2d 124, 132 (Ala. 2005)

('In any case involving statutory construction, our

inquiry begins with the language of the statute, and

if the meaning of the statutory language is plain,

our analysis ends there.'). Therefore, we affirm

the trial court's judgment."

Jackson, So. 3d at .

In sum, § 16-24C-4 controls how tenure is obtained and

explicitly prohibits the consideration of personal or

political reasons in granting tenure; § 16-24-6 controls how

a tenured teacher's employment is terminated and explicitly

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prohibits the consideration of personal or political reasons

for such termination; and § 16-24C-5 controls how a

probationary teacher's employment is terminated but contains

no language discussing the consideration of personal or

political reasons for such termination. Thus, there is no

portion of the applicable section of the Act--§ 5, codified at

§ 16-24C-5--that the Court of Civil Appeals has failed to

apply or give effect.

Because Jackson's complaint was premised on § 16-24C-4,

which, as noted above, does not apply to the termination of a

probationary employee's employment, I see nothing indicating

any "probability of merit" in Jackson's argument that the

Court of Civil Appeals erred in affirming the trial court's

dismissal of her action. Rule 39(f), Ala. R. App. P. With no

probability of merit, there are no "special and important

reasons" to grant the petition. Rule 39(a), Ala. R. App. P.

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MOORE, Chief Justice (dissenting).

Monique Jackson claims that the Geneva County Board of

Education ("the Board") denied her tenure as a schoolteacher

because she had supported the previous principal, whom the

Board had ousted. She filed a complaint seeking reinstatement,

tenure, and backpay, citing a section of the Code that

prohibits teacher firings for "personal or political reasons."

§ 16-24C-4, Ala. Code 1975. The trial court dismissed the

case, and the Court of Civil Appeals affirmed that dismissal.

This case presents a question of first impression as to

whether a nontenured teacher can be fired for personal or

political reasons. Because I believe that the Court of Civil

Appeals erred in affirming the dismissal of Jackson's case, I

would grant the petition for a writ of certiorari to explicate

the meaning of § 16-24C-4.

Analysis

The relevant portion of § 16-24C-4 reads as follows:

"No action may be proposed or approved based

upon personal or political reasons on the part of

the employer, chief executive officer, or governing

board. A teacher shall attain tenure ... as follows:

"(1) ... [A] teacher ... shall attain

tenure upon the completion of three

complete, consecutive school years of

full-time employment as a teacher with the

same employer unless the governing board

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approves and issues written notice of

termination to the teacher on or before the

last day of the teacher's third

consecutive, complete school year of

employment. ..."

Because a teacher automatically attains tenure after three

years of full-time employment without any need for action by

the governing board, the opening clause prohibiting actions

"based upon personal or political reasons" would be

meaningless if § 16-24C-4 addressed only the time for

attaining tenure. Section 16-24C-4 also states, however, that

tenure is automatic "unless the governing board approves and

issues written notice of termination to the teacher on or

before the last day of the teacher's third consecutive,

complete school year of employment." The phrase "approves and

issues written notice of termination" parallels the preceding

statement that "[n]o action shall be proposed or approved

based upon personal or political reasons ...." Thus, the Board

is prohibited from approving a written notice of termination

"based upon personal or political reasons" for the purpose of

denying a teacher tenure prior to completion of "the teacher's

third consecutive, complete school year of employment."

The Court of Civil Appeals, treating § 16-24C-4 as

establishing merely the time period for the automatic

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attainment of tenure, did not consider that the "personal or

political reasons" prohibition could apply to the termination

clause of § 16-24C-4. The Court of Civil Appeals further held

that the Code section applicable to Jackson's termination was

§ 16-24C-5, which provides that a probationary teacher, i.e.,

one who has not attained tenure, "may be terminated at the

discretion of the employer." Because § 16-24C-5 does not

contain a "personal or political reasons" limitation on the

termination decision, the Court of Civil Appeals upheld the

trial court's dismissal of Jackson's case.

The Court of Civil Appeals erred in holding that the

"personal or political reasons" prohibition of § 16-24C-4 did

not apply to the Board's decision to terminate Jackson's

employment. "'There is a presumption that every word,

sentence, or provision was intended for some useful purpose,

has some force and effect, and that some effect is to be given

to each, and also that no superfluous words or provisions were

used.'" Sheffield v. State, 708 So. 2d 899, 909 (Ala. Crim.

App. 1997) (quoting 82 C.J.S. Statutes § 316 (1953)). Contrary

to the canon of construction that every provision in a statute

is "intended for some useful purpose," the Court of Civil

Appeals' interpretation of § 16-24C-4 rendered the opening

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clause superfluous and of no effect. "The court must give

effect to each part of the statute, if possible, without doing

violence to some other portion of the statute." Sheffield, 708

So. 2d at 909.

Interpreting "every word, sentence, or provision" of §

16-24C-4 to be fully operative gives effect to the statute as

written without doing any violence to § 16-24C-5, which

provides general direction for the termination of the

employment of probationary teachers in contrast to the

specific application of § 16-24C-4 to the decision to

terminate the employment of a teacher who is on the brink of

tenure. The prohibition against terminating the employment of

a teacher for "political or personal reasons" for the purpose

of denying that teacher tenure is a significant statutory

protection that the Court of Civil Appeals, in my view,

erroneously invalidated.

Conclusion

Because I believe that the Court of Civil Appeals erred

in nullifying the "political or personal reasons" language in

§ 16-24C-4, I would grant the petition for a writ of

certiorari to address this question of first impression.

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