overruled on other grounds, Ex parte Birmingham Bd. of Educ. , 601 So.2d 93 (Ala. 1992)
How later courts described this case
- overruled on other grounds, Ex parte Birmingham Bd. of Educ. , 601 So.2d 93 (Ala. 1992)
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Ex Parte Birmingham Bd. of Educ., 601 So. 2d 93 (1992)
This case is therefore unlikeWashington v. Bessemer Board of Educ., 547 So.2d 888 (Ala.Civ.App. 1989), overruled on other grounds, Ex parte BirminghamBoard of Educ., 601 So.2d 93 (1992), where the appellate process was triggered but not expeditiously completed.
The opinion
I respectfully dissent.
It appears to me that the basis of the majority opinion is that § 36-26-105 (2) requires the Board to select the first member of the review panel. With this conclusion, however, I disagree.
The statute in part states:
"Upon receipt of the request, the employing board and the employee may (1) mutually agree upon a person to hear the employee's appeal or (2) select a panel of three persons, one selected by the employing board, and another selected by the employee and a third agreed upon by the two parties listed hereinabove which shall constitute an employee review panel to hear the employee's appeal."
Ala. Code (1975), § 36-26-105 (emphasis added).
The above language does not specifically designate who shall go first in the selection *Page 894
process in question, and to conclude that it should be the Board, in my opinion, is overreaching, particularly in view of the result reached by so concluding. If the legislature had intended for the Board to go first, it could have easily said so. In fact, in another part of the statute concerning another selection process, the legislature specifically designated who should "strike the first name."
Therefore, I find the majority's conclusion that the Board is to select first not to be the required interpretation of § 36-26-105 (2) of the statute. In view of the above, the basis of the majority's conclusion is not correct, and reversal for the reason stated is not warranted. For this reason, I must dissent from the majority opinion.