Section 16-24C-6


Published: 2015

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Section 16-24C-6

Section 16-24C-6Termination of employment - Gounds for termination; procedures; appeals.

(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 a president of a two-year educational institution operated under the authority and control of the Department of Postsecondary Education or the governing board shall not be made for political or personal reasons.



(b) The termination of a tenured teacher or nonprobationary classified employee who is not an employee of a two-year educational institution operated under the authority and control of the Department of Postsecondary Education shall be initiated by the recommendation of the chief executive officer in the form of a written notice of proposed termination to the employee. A tenured teacher or a nonprobationary classified employee who is employed by a two-year educational institution operated under the authority and control of the Department of Postsecondary Education may be terminated by the president of such institution upon the issuance of a written notice of proposed termination to the employee by the official of the institution who serves or functions as the senior personnel officer thereof. In either case, the 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 subsection (a), and shall be issued in conformity with subsection (k). The notice shall inform the employee, who is not an employee of a two-year educational institution operated under the authority and control of the Department of Postsecondary Education that, in order to request a hearing with the governing board, the employee must file a written request for such a hearing with the chief executive officer within 15 calendar days after issuance of the notice. Should the employee fail to timely file the request for hearing, the governing board shall vote on the recommended termination. Notice to employees of a two-year educational institution operated under the authority and control of the Department of Postsecondary Education, shall inform such employee that, in order to request a hearing with the president of such institution, the employee must file a written request for such a hearing with the president within 15 calendar days after issuance of the notice. Should the employee fail to timely file the request for hearing, the president of such institution shall act on the recommended termination and the president's decision shall be final. If the employee timely requests a hearing, the hearing shall be set by the employer not less than 30 and not more than 60 calendar days from the date written notice of the time, date, and place of the hearing is issued to the employee, but may be rescheduled by agreement or for good cause shown.



(c) At the hearing, the chief executive officer or, for a two-year educational institution operated under the authority and control of the Department of Postsecondary Education, the official of such institution who serves or functions as the senior personnel officer thereof, based solely on the information provided by the recommending senior supervisor, shall bear the burden of proof with regard to disputed issues of material fact. The employee or his or her representative shall be afforded the opportunity to present testimony, other evidence, and argument on matters relevant to the proposed termination and to cross-examine witnesses whose testimony is proffered in support of the proposed termination. The employee shall have the right to counsel at his or her expense. A court reporter shall record the proceedings at the expense of the State Department of Education or, if applicable, the two-year institution operated under the authority and control of the Department of Postsecondary Education. The hearing may be public or private at the election of the employee. The chief executive officer shall issue subpoenas compelling the appearance of witnesses on the employee's behalf upon the employee's timely request for issuance of such subpoenas and may issue subpoenas to any witness who the chief executive officer believes may have knowledge or evidence bearing on the issues presented for determination.



(d) Whether or not the employee requests a hearing before the governing board or the president of the two-year institution, the chief executive officer shall give written notice to the employee of the decision regarding the proposed termination within 10 calendar days after the vote of the board or the decision of the president. If the decision follows a hearing requested by the employee, the notice shall also inform the employee of the right to contest the decision by filing an appeal as provided in this chapter.



(e) An employee who is terminated following a hearing requested by the employee may obtain a review of an adverse decision by filing a written notice of appeal to the State Superintendent of Education within 15 days of receipt of the decision. For employees of a two-year educational institution under the authority of the Department of Postsecondary Education, such notice of appeal shall be submitted to the Department of Postsecondary Education within 15 days of the receipt of the decision. The State Superintendent of Education or the Department of Postsecondary Education shall refer the appeal to the Executive Director of the Alabama State Bar Association who shall obtain a panel of neutrals and administer the hearing officer selection process as is hereinafter provided. The notice of appeal shall state the grounds upon which it is based. A copy of the notice shall be simultaneously served by the employee on the chief executive officer of the employer or the president of the two-year institution under the authority and control of the Department of Postsecondary Education. Upon receiving notice of the employee’s appeal, the employer shall compile and file the record of administrative proceedings, including any hearing transcript, with the hearing officer within 20 days after its receipt of the notice of appeal unless the time is extended by the hearing officer for good cause shown. Except as hereinafter provided, the appeal shall be submitted to the hearing officer. The hearing officer shall hold a hearing. Deference is given to the decision of the employer. A final ruling, either affirming or reversing the decision of the employer, shall be rendered within five days after the hearing.



(f) If the decision of the president or the governing board is set aside by the hearing officer, the employee shall be reinstated and credited with any benefits due under applicable statutes, salary schedules, or compensation policies. Either party may appeal an adverse decision rendered by a hearing officer to the Alabama Court of Civil Appeals by filing a notice of appeal to the court in accordance with the Alabama Rules of Appellate Procedure.



(g) The hearing officer assigned to review appeals hereunder shall be selected from a panel of neutrals comprised of five retired Alabama judges, excluding judges of probate, whose names appear on an official alternative dispute resolution roster maintained by the Alabama Bar Association. Members of the panel shall be identified by the Executive Director of the Alabama State Bar Association on a random and rotating basis and provided to the chief executive officer or the president of the two-year institution under the authority and control of the Department of Postsecondary Education. Upon receiving the names of the panel members, the parties may select the hearing officer from among the names provided or from any other source by agreement. Failing such agreement, the parties shall select the hearing officer by a process of alternating strikes in which the employee shall be provided the first strike and the employer the last strike. The hearing officer selection process shall be completed within 10 calendar days of receipt by the parties of the panel of potential hearing officers. The hearing officer shall not have a personal or professional interest that would conflict with his or her ability to render an objective decision. The hearing officer shall be paid for services rendered hereunder according to criteria, and at the prevailing rate, established by the State Department of Education under the supervision of the State Superintendent of Education and the Chancellor of the Department of Postsecondary Education from funds appropriated for such purposes by the Legislature. All hearing officers must agree to abide by all timelines provided in this section.



(h) The following additional terms, conditions, and limitations apply to terminations and appeals therefrom:



(1) In considering termination recommendations made by the chief executive officer, the governing board acts in an independent and quasi-judicial capacity, and nothing in this chapter shall be construed to prevent the governing board from imposing a lesser sanction than that recommended by the chief executive officer or to preclude a negotiated resolution by the president or the governing board of matters, issues, and disputes arising under this chapter. In considering termination recommendations made by the senior personnel officer of a two-year college under the authority of the Department of Postsecondary Education, the president of the two-year college acts in an independent and quasi-judicial capacity, and nothing in this chapter shall be construed to prevent the president of the two-year college from imposing a lesser sanction than that recommended by the senior personnel officer or to preclude a negotiated resolution by the president of matters, issues, and disputes arising under this chapter.



(2) Reductions in or modifications to employee compensation or benefits or of the length of the work or school year are not terminations or transfers for purposes of this chapter or otherwise subject to challenge or review under this chapter, provided that the action is all of the following:



a. Prospective in effect.



b. Based on the recommendation of the president of a two-year educational institution alone or the chief executive officer and formal approval of the governing board.



c. Applied to similarly situated employees within the two-year college, agency, or system, or within designated operating divisions, departments, or employment classifications therein.



(3) Layoffs or other personnel actions that are unavoidable reductions in the workforce beyond normal attrition due to decreased student enrollment or shortage of revenues as specified in Section 16-1-33, are not subject to challenge or review under this chapter.



(i) An employee may be suspended for cause with or without pay on the written recommendation of the president of a two-year educational institution alone or the chief executive officer and the approval of the governing board. The suspension of a tenured teacher or a nonprobationary employee for no more than 20 work days without pay is not a termination of employment that is subject to review under this chapter. Adequate notice of the reason or reasons for the proposed suspension and an opportunity to present evidence and argument, either in person or in writing, to the president of a two-year educational institution or to the governing board with respect to the proposed action shall be afforded the employee before the imposition of the suspension. Suspensions of tenured teachers or nonprobationary classified employees without pay in excess of 20 work days are subject to the notice, hearing, and review requirements and procedures that apply to terminations of tenured teachers and nonprobationary classified employees under this chapter.



(j) Employees shall not be permitted to delay, defer, or defeat the initiation or pursuit of any termination or other employment action initiated under authority of this chapter based upon the pendency or threatened initiation of criminal proceedings arising out of the facts, circumstances, or subject matter of the employment action. The appearance or testimony of an employee in a proceeding authorized under this chapter shall not cause the employee to waive, forfeit, or relinquish any right against self-incrimination, and no such testimony shall be admitted in any court of this state in a criminal proceeding in which the right applies upon the timely objection of the employee thereto.



(k) Unless otherwise provided, notice for all purposes under this chapter shall be given by United States mail, certified delivery, by private mail carrier for next business day delivery, or by physical delivery to the employee or the last known address of the employee. Notice by certified mail or private mail carrier shall be deemed received by the employee and complete for purposes of this chapter two business days after the notice is deposited for certified delivery in the United States mail or placed with a private mail carrier for next business day delivery. The employer has the burden of producing evidence that service was affected in the manner permitted by this chapter, but the employee has the burden of proving that such service was not properly made.



(l) In any proceeding for which review is provided hereunder, the employer shall arrange for a transcript and record of proceedings conducted before the president of a two-year educational institution or the governing board to be made and maintained by a qualified court reporter for use in connection with such review. All fees and costs associated with making and transcribing the record shall be paid or reimbursed by the State Department of Education or, if applicable, the two-year institution operated under the authority and control of the Department of Postsecondary Education in accordance with such reasonable rules, regulations, and procedures as may be established for such purpose by the departments.



(m) Unless otherwise specified by the president of a two-year educational institution or the governing board, a decision to terminate the employee or suspend the employee without pay shall be effective immediately, except that a tenured teacher or a nonprobationary classified employee shall continue to receive pay and benefits until a final ruling by the hearing officer or 75 calendar days, whichever occurs first from the date of the employer termination decision unless the termination is based on an act of moral turpitude, immorality, abandonment of job, incarceration, or neglect of duty. If the decision of the president of a two-year educational institution or the governing board is set aside and the employee is reinstated, the employee shall receive back pay and other relief as provided in subsection (f).



(n) The repealer provisions of Act 2011-270 notwithstanding, and except as expressly provided otherwise in this chapter, the terms and phrases used in subsection (a) to identify the reasons on which termination may be based and in subsection (f) to describe the standards by which decisions of the employer are to be reviewed by hearing officers shall be deemed to carry the meanings traditionally accorded the terms and phrases by the appellate courts of this state under prior law.

(Act 2011-270, p. 494, §§6, 14.)