REL: 2/20/09
Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2008 -2009
_________________________
2070764
_________________________
Water and Wastewater Board of the City of Madison
v.
City of Athens
Appeal from Limestone Circuit Court
(CV-05-93)
THOMAS, Judge.
In December 2000, the City of Athens ("the City") hired
Shaun Chandler as a service installer for the City's waterdistribution system.
At the time Chandler was hired, he was
not yet certified as a Grade I Distribution System Operator
2070764
("Grade I operator").
In fact, when Chandler was hired, the
City intended to train Chandler for certification as a Grade
I operator.
Chandler was certified as a Grade I operator on
or about November 1, 2002, and he was promoted to the position
of construction technician later that month.
On December 3,
2003, Chandler resigned his position with the City and became
employed by the Water and Wastewater Board of the City of
Madison ("the Board") as a pipe fitter.
The City notified the Board by letter in March 2004 that
it claimed an entitlement to reimbursement under Ala. Code
1975, § 22-25-16, which permits the State, a municipality, a
municipal utility board, or a county to seek reimbursement for
the total amount that that entity expended to enable a water
operator or wastewater operator to become certified from
another
state, municipality, municipal
utility board,
or
county who employs that operator within 24 months of his or
her certification.
The statute reads, in its entirety:
"In those instances in which a water or
wastewater operator of any municipality, municipal
utility board, county, or the state is employed by
the State of Alabama, any county, municipality, or
another municipal utility board, within 24 months
after completing the certification requirements
mandated by this chapter, the total expense paid by
the water or wastewater operator's governmental
2
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employer to enable the operator to become certified,
including, but not limited to, salary paid during
training, transportation costs paid to the trainee
for travel to and from the training facility, room,
board, tuition, overtime paid to other employees who
fill in for the trainee during his or her absence,
and any other related training expenses, shall be
reimbursed to the municipality, municipal utility
board, county, or the state which paid for the
training. The municipality, municipal utility board,
county, or the state which paid for the training
shall submit an itemized sworn statement to the new
employer of the water or wastewater operator, as the
case may be, shall demand payment thereof, and may
enforce collection of the obligation through civil
remedies and procedures. The terms 'water operator'
and 'wastewater operator' shall have the same
meanings as in Section 22-25-1."
§ 22-25-16.
Although the City provided the required itemized
statement, the Board refused to pay the City.
On March 10, 2005, the City sued the Board, seeking a
judgment declaring that the City was entitled to reimbursement
from the Board for the expenses associated with Chandler's
training and certification as a Grade I operator, pursuant to
§ 22-25-16.
The City further sought reimbursement from the
Board of the $62,594.53 the City claimed it had expended in
training Chandler to be certified as a Grade I operator.
After answering the complaint, the Board sought a summary
judgment in May 2006, which was denied.
In January 2008, the
City moved for a summary judgment, which the Board opposed.
3
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After considering the materials submitted by both parties, the
trial court entered a summary judgment in favor of the City
and ordered the Board to reimburse the City $62,298.15.
The
Board appealed to the Alabama Supreme Court, which transferred
the appeal to this court, pursuant to Ala. Code 1975, § 12-27(6).
We review a summary judgment de novo; we apply the same
standard as was applied in the trial court.
A motion for a
summary judgment is to be granted when no genuine issue of
material fact exists and the moving party is entitled to a
judgment as a matter of law.
Rule 56(c)(3), Ala. R. Civ. P.
A party moving for a summary judgment must make a prima facie
showing "that there is no genuine issue as to any material
fact and that [it] is entitled to a judgment as a matter of
law."
Rule 56(c)(3); see Lee v. City of Gadsden, 592 So. 2d
1036, 1038 (Ala. 1992). If the movant meets this burden, "the
burden then shifts to the nonmovant to rebut the movant's
prima facie showing by 'substantial evidence.'"
2d at 1038 (footnote omitted).
Lee, 592 So.
"[S]ubstantial evidence is
evidence of such weight and quality that fair-minded persons
in the exercise of impartial judgment can reasonably infer the
4
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existence of the fact sought to be proved."
West v. Founders
Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989); see Ala. Code 1975, § 12-21-12(d).
Furthermore, when
reviewing a summary judgment, the appellate court must view
all the evidence in a light most favorable to the nonmovant
and must entertain all reasonable inferences from the evidence
that a jury would be entitled to draw. See Nationwide Prop. &
Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369, 372
(Ala. 2000); and Fuqua v. Ingersoll-Rand Co., 591 So. 2d 486,
487 (Ala. 1991).
On appeal, the Board makes three arguments for reversal.
The Board first argues that, based on Limestone County Water
and Sewer Authority v. City of Athens, 896 So. 2d 531 (Ala.
Civ. App. 2004), § 22-25-16 does not apply to it because it is
a public corporation, having been incorporated pursuant to
Ala. Code 1975, § 11-50-310 et seq.
Secondly, the Board
asserts that Chandler was not a water "operator" as that term
is defined in Ala. Code 1975, § 22-25-1.
Finally, the Board
argues that, if we conclude that it is subject to § 22-25-16
and that Chandler is a water operator as defined in § 22-25-1,
the City was not entitled to the amount that the trial court
5
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ordered reimbursed because of the specific language pertaining
to the training expenses to be reimbursed in § 22-25-16.
We
will consider each argument in turn.
I.
Whether § 22-25-16 Applies to the Board
The Board argues that it is not "the State of Alabama,
any county, municipality, or another municipal utility board,"
Board's brief at § 22-25-16, and, therefore, that the City may
not
seek
reimbursement
training expenses.
under
§
22-25-16
for
Chandler's
According to the Board, it is a public
corporation incorporated pursuant to § 11-50-310 et seq. and,
thus, is a distinct legal entity from the municipality it
serves. See Water Works Bd. of Leeds v. Huffstutler, 292 Ala.
669, 677, 299 So. 2d 268, 276 (1974) (adopting the order of
the trial court, which stated that a water board was "'an
entity
separate
and
independent
from
the
city
which
it
serves'"); City of Mobile v. Cochran, 276 Ala. 530, 532, 165
So. 2d 81, 83 (1964) (stating that a municipal corporation and
a public corporation like a water-works board are "distinct,
separate and independent corporations").
Because of its
independence and status as a public corporation, the Board
6
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contends, it cannot be considered to be within the class of
entities to which § 22-25-16 applies.
Although it is without question that the Board is not the
State or a county, the question whether it qualifies as a
municipality or municipal utility board is more challenging to
answer.
As our supreme court has recognized, "'[t]here has
been considerable confusion over the existence and legal
status of public corporation utilities, primarily because the
reported cases are inconsistent in their analysis.
It is
possible to find a public corporation utility case to support
almost any proposition....'"
Water Works & Sewer Bd. of
Talladega v. Consolidated Publ'g, Inc., 892 So. 2d 859, 862
(Ala. 2004) (quoting the amicus curiae brief of the State of
Alabama).
This is indeed the case.
The Board is a public corporation organized for the
purpose of operating a water system for the City of Madison.
See § 11-50-311 (explaining the procedure by which a public
corporation is created, including the filing of an application
with the governing body of the municipality and the adoption
of
a
resolution
municipality)
and §
approving
the
incorporation
by
the
11-50-312(a)(1) (indicating that the
7
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articles
of
incorporation
of
the
corporation
should
"indicat[e] the system or systems for the operation of which
the
corporation
is
organized
(e.g.,
'the
waterworks
and
electric board of the City (or Town) of ........,' or 'the
utilities board of the City (or Town) of .......'").
As
noted, the Board maintains that, as a public corporation that
is separate and independent from the municipality it serves,
it is not an agency of the municipality and is therefore not
required to reimburse the City pursuant to § 22-25-16 because
it does not fall into the class of entities to which that
statute applies, i.e., it is not a municipality or a municipal
utility board.
However, despite the language in cases like Huffstutler
and Cochran regarding the separate and independent nature of
public corporations, our supreme court has also long held
that, in at least some respects, a public corporation like the
Board is an agency of the municipality it serves, Cochran, 276
Ala. at 532, 165 So. 2d at 83; Jackson v. Hubbard, 256 Ala.
114, 120, 53 So. 2d 723, 728 (1951), or acts as an agent of
the municipality. Marshall Durbin & Co. v. Jasper Utils. Bd.,
437 So. 2d 1014, 1019 (Ala. 1983), overruled on other grounds
8
2070764
by Ex parte Waterjet Sys., Inc., 758 So. 2d 505, 511 (Ala.
1999).
In more recent cases, the supreme court has referred
to a public corporation like the Board as "an administrative
agency that performs city functions" and has noted that such
a public corporation "is so organized to perform its functions
as an agency of the City."
City of Montgomery v. Water Works
& Sanitary Sewer Bd. of Montgomery, 660 So. 2d 588, 594 (Ala.
1995).
Based
on
these
conclusions,
the
supreme
court
has
determined that the phrase "municipal board, committee, or
like body" used in Act No. 93-704, Ala. Acts 1993, encompassed
an entity like the Board in the present case, "irrespective of
the fact that the ... Board is a public corporation."
Montgomery, 660 So. 2d at 594.
City of
At issue in City of Montgomery
was whether the phrase "municipal board, committee, or like
body" in Act No. 93-704, which was applicable to Class 3
municipalities like the City of Montgomery, would include a
water and sewer board.
Id. at 590.
Act No. 93-704 permits a
Class 3 municipality to change the number of members of a
"municipal board, committee, or like body" to be equal with
the
number
of
members
on
the
9
governing
body
of
the
2070764
municipality.
Id.
The Water Works and Sanitary Sewer Board
of Montgomery sought, among other things, a judgment declaring
that Act No. 93-704 did not apply to it because it was a
public corporation and, therefore, independent from the City
of Montgomery.
contended
Id. at 593.
that,
because
The City of Montgomery, however,
the
board
was
appointed
by
the
governing body of the municipality, it should logically be
considered a "municipal board."
Id. at 592.
The supreme court considered persuasive the fact that the
language
used
by
the
legislature
in
Act
No.
93-704
–-
"municipal board, committee, or like body" -- was broad and
indicated its intent to legislate broadly.
Id. at 594.
As
noted above, the court commented that boards like the Water
Works
and
Sanitary
Sewer
Board
of
Montgomery
had
been
considered agencies of the municipalities they served and that
they were organized to perform functions as agencies of the
municipalities. Id. at 594. The court further noted that the
fact that an agency is organized as a corporation would not
impact
its
qualities
as
a
government
agency.
Id.
In
conclusion, the court stated that the language used in Act No.
93-704 compelled a conclusion that the legislature meant to
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include "any instrumentality by which a city performs its
governmental functions."
Id.
Thus, the court held that Act
No. 93-704 did permit the City of Montgomery to change the
number of members on the Water Works and Sanitary Sewer Board
of Montgomery.
Id.
The Board argues that the language in § 22-25-16 is not
as broad as the language in Act No. 93-704.
Although the
language in § 22-25-16 regarding the entities to which that
statute applies does not include a phrase indicating a broad
scope like the phrase "or like body" in Act No. 93-704, we
cannot agree that the failure of the legislature to include
that phrase or a similar phrase in § 22-25-16 is conclusive as
to whether the Board in the present case falls within the
ambit of § 22-25-16.
Likewise, the conclusion of this court in
Limestone
County Water & Sewer Authority does not conclusively resolve
the issue in favor of the Board.
Although we determined in
Limestone County Water & Sewer Authority that a county water
authority incorporated pursuant to Ala. Code 1975, § 11-88-1,
was not required to reimburse the City of Athens because § 2225-16 did not apply to the county water authority, we did so
11
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in large part because the county water authority, as a public
corporation, was not a part of the State.
Water & Sewer Auth., 896 So. 2d at 534.
Limestone County
The precise question
presented here –- whether the Board is a "municipal utility
board" as that term is used in § 22-25-16 -- was not answered
by Limestone County Water & Sewer Authority. Using the myriad
of
cases
reflecting
character
of
public
the
seemingly
corporations,
opposed
we
will
views
on
endeavor
the
to
determine whether the Board is a "municipal utility board"
and, therefore, falls within the purview of the § 22-25-16.
This task would be much easier if § 22-25-16, or for that
matter, any statute, defined the term "municipal utility
board."
However, no statute defines that term.
Instead, the
City argues that the Board is indeed a municipal utility board
based on certain language in one Alabama Supreme Court case,
Marshall Durbin & Co., 437 So. 2d at 1018, and the use of the
term in the title of H.B. 36, a 2001 bill proposing to amend
Ala. Code 1975, § 11-50-313.1
The Board argues that the use
1
Although § 11-50-313 was amended in 2001, it was not
amended by H.B. 36; instead, the legislature enacted Act. No.
2001-1094, Ala. Acts 2001, which originated as S.B. 6.
Notably, the title to Act. No. 2001-1094 does not contain the
term "municipal utility board."
12
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of the term "municipal utility board" in the title of H.B. 36
is an "inadvertent use" of the term and points out that the
language in § 11-50-313 refers to the entities created under
§ 11-50-310 et seq. consistently as "corporations."
Although the article pursuant to which the Board was
created -- Title 11, Chapter 50, Article 9 (§ 11-50-310 et
seq.) -- refers to the creation of public corporations and
uses the term "corporation" to refer to the entities created
pursuant to that article, we note that the statutes composing
the article seem to indicate that the public corporations
created thereby are, in fact, boards that provide utility
services
to
a
municipality.
Notably,
§
11-50-312(a)(1)
requires that the name of the public corporation "indicat[e]
the
system
or
systems
for
the
operation
of
which
the
corporation is organized," i.e., the wastewater board or the
water and gas board, and the examples listed in that section
show that the name of the corporation should include the term
"board"
and
specify
corporation serves.
the
Id.
particular
city
or
town
the
As already noted earlier in this
opinion, in order to incorporate, the public corporation must
secure
a
resolution
from
the
13
governing
body
of
the
2070764
municipality it intends to serve. § 11-50-311.
In addition,
any amendment to the certificate of incorporation of the
public corporation must also be approved by the municipality's
governing body via a resolution consenting to the proposed
amendment.
§ 11-50-312(b).
Despite the City's argument, we do not find the use of
the term "municipal utility board" by our supreme court in
Marshall Durbin & Co., 437 So. 2d at 1018, to be authority for
concluding that entities like the Board are "municipal utility
boards."
Although the City characterizes that opinion as
"acknowledging"
that
the
Jasper
Utilities
Board
was
a
municipal utility board, that characterization appears to be
a bit strong.
The supreme court did use the term "municipal
utility board" in explaining the arguments of the parties, but
it appears that the parties were not disputing whether the
Jasper Utilities Board was a municipal utility board; the
opinion does not go so far as to define that term, so the use
of that term in that opinion is of little help to us in
determining whether
the Board in the present case
is
a
"municipal utility board" as that term is used in § 22-25-16.
However, Marshall Durbin & Co. does indicate that a board in
14
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the position of the Board in the present case is an agent of
the municipality it serves, id. at 1019, and the opinion
further
notes
the
uniqueness
of
a
public
corporation
incorporated under § 11-50-310 et seq., including the fact
that the governing body of the municipality has some control
over those appointed to be members or directors of the board.
Id.
More recent cases considering the characterization of a
public corporation like the Board appear to focus on the role
of the public corporation created under § 11-50-310 et seq. –to serve the municipality that created it.
Consolidated
Publ'g, 892 So. 2d at 863.
"Public corporations were initially authorized
by the Legislature as a means for municipalities to
finance
improvements
to
their
utilities
infrastructure
without
running
afoul
of
constitutional and statutory debt limitations, as
well as to shield municipalities from the large
financial obligations that often accompany such
utilities projects. Coxe v. Water Works Bd. of
Birmingham, 288 Ala. 332, 337, 261 So. 2d 12, 15-16
(1972). Yet public corporations have typically
maintained
close
relationships
with
the
municipalities that create them."
Id. at 861.
The Consolidated Publishing court considered
whether the records of the Water Works and Sewer Board of the
City of Talladega ("the Talladega Board") were subject to Ala.
15
2070764
Code 1975, § 36-12-40, a part of the Open Records Act.
Id.
Like the Board in the present case, the Talladega Board was
organized under § 11-50-310 et seq.
Id.
The court focused
its analysis on whether the Talladega Board's employees were
officers or servants of a municipality.
Id. at 863.
The
court first noted that the Talladega Board's members were
appointed by the Talladega City Council.
Id.
The court
further noted that the Talladega Board "performs a municipal
function, namely, supplying water and sewer services to the
residents of Talladega."
Id.
The supreme court then stated
that, based on their performance of municipal functions,
public corporations "have long been held to be agencies of the
municipality they serve, regardless of their organizational
structure."
Id.
Based
on
its
determination
that
the
Talladega Board "has the qualities of an agency of the City of
Talladega," the court determined that the employees of the
Talladega Board were public employees.
Id.
Although the
court did not construe the term "municipal utility board" and
was not construing § 22-25-16, the court's view of public
corporations like the Board is enlightening.
16
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Finally, we note that the Court of Criminal Appeals has
held that the Prichard Water Works and Sewer Board ("the
Prichard Board") is a "utility board."
Langham v. State, 662
So. 2d 1201, 1205 (Ala. Crim. App. 1994).
The Langham court
was examining whether members of the Prichard Board were
public officials under the state ethics laws.
So. 2d at 1203.
Langham, 662
As part of its analysis, the court considered
a former version of § 36-25-1(11), which had defined "public
official" to include "members of ... utility boards."
The
court concluded, therefore, that the members of the Prichard
Board were public officials subject to the state ethics laws,
stating:
"After examining the 'original' definition of
'public official,' we hold that the Prichard Water
Works and Sewer Board, regardless of whether it is
a creature of incorporation or whether it was
established by city ordinance, is a 'utility board'
and, thus, subject to the state ethics law.
"Because both enactments, § 11-50-310 et seq.
and § 11-50-340 et seq., are codified within the
'public utilities' Chapter of the Alabama Code, and
because the legislature clearly expressed its intent
that 'utility boards' be subject to the ethics law,
no error occurred here."
Id. at 1205.
17
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Although we agree that the Board is a public corporation
and although we cannot escape the conclusion that it is a
corporation
separate
and
independent
from
the
municipal
corporation that is the City of Madison, our analysis of the
caselaw leads us to conclude that the Board is a "municipal
utility board" as that term is used in § 22-25-16.
The Board
was incorporated under § 11-50-310 et seq., which required it
to be created by a resolution of the governing body of the
City of Madison.
Its purpose, as revealed by its full name –-
the Water and Wastewater Board of the City of Madison –- is to
provide a water and wastewater system for the City of Madison.
Because our caselaw has long held that public corporations
like the Board are "agencies of the municipality they serve,
regardless of their organizational structure," Consolidated
Publ'g, 892 So. 2d at 863, we agree with the City and the
trial court that the Board is subject to § 22-25-16.
II.
Whether Chandler Is an Operator as Defined in § 22-25-1
The Board next challenges the application of § 22-25-16
to it because, it argues, Chandler is not an "operator" as
defined
in
"operator"
§
22-25-1.
as
"[t]he
Section
person
18
on
22-25-1(4)
defines
duty
has
who
an
direct
2070764
responsibility for the operation of a water treatment plant,
water
distribution
system,
public
wastewater
collection
system, or wastewater treatment plant." The Board argues that
this definition was intended to apply only to those employees
employed in a supervisory capacity. The City, however, argues
that the statutory definition does not require that Chandler
be considered a supervisor, only that he have the ability to
be responsible for the operation of the water-distribution
system, which, the City says, his Grade I operator certificate
permits him to do at those times when he is "on call" or when
he is the most senior person on his crew.
To further bolster its argument that Chandler is not an
"operator" under § 22-25-1, the Board quotes Ala. Admin. Code
(Dep't of Envtl. Mgmt.), Rule 335-10-1-.02, which gives a more
comprehensive definition of an "operator":
"(h) 'Operator' means the person on duty who has
direct responsibility for the operation of a water
treatment plant, water distribution system, public
wastewater collection system or wastewater treatment
plant. A person shall be deemed to have direct
responsibility for the operation of a water
treatment plant, water distribution system or
wastewater treatment plant if he in fact supervises
or directs the operation of a water treatment plant,
water distribution system or wastewater treatment
plant, or makes process control decisions."
19
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Although the Board does not include the definition of "process
control decision" in its brief, we find that definition to be
pertinent to the decision whether Chandler is, in fact, an
operator so as to require the Board to pay the City for the
cost of his certification.
"(k) Process control decision means a decision
regarding the daily operational activities of a
water system or wastewater system that will directly
impact the quality and/or quantity of drinking water
or treated wastewater."
Rule 335-10-1-.02.
The parties do not dispute the fact that Chandler was
not, at any time during his employment, a supervisor in the
ordinary sense, i.e., he did not supervise other employees.
The deposition testimony of John Stockton and the deposition
testimony of Howard Hopkins offered in support of the City's
motion for a summary judgment explained the process by which
an employee working in the City's water-distribution system
becomes
certified
as
a Grade I operator.
According to
Stockton, the manager of Water Services for the City, each
person employed by the City to work in its water-distribution
system is hired with the expectation that they will complete
the training necessary to become a Grade I operator.
20
Without
2070764
a Grade I operator certification, Stockton explained, an
employee of the City working in its water-distribution system
cannot "function in any kind of useful responsible position."
Before an employee is certified, he or she can work with a
crew; however, Stockton explained, he or she cannot "operate
the system" without the supervision of a certified coworker.
According
to
Stockton,
certification
as
a
Grade
I
operator permits an employee to:
"Operate the system.
Perform what we call
operating the system. The critical operative word is
'breaching' the system. A potable water system is
pressurized and it is protected by that pressure.
...
"....
"The system is pressurized. Every time you open
a valve, open the spigot in your house, you breach
the system. You can do that because we are not
accountable after it goes through the meter into
your house. But until it passes through that meter,
we are accountable for what goes on and the State
requires us to have certified operators on that
system to breach it. ... [I]f they are closing or
opening a valve for any reason, if they are working
on a leak, if they are making a tap, if they are
replacing a meter they are breaching the system."
Stockton further explained the change in an employee's status
after the employee's certification as a Grade I operator,
stating that the employee is then able to be "on call" to
21
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handle, without supervision, any after-hours emergencies that
might occur.
As Stockton explained:
"[W]e have someone in responsible charge 24 hours a
day, 366 [sic] days a year. [A certified Grade I
operator] can join that group of people [that can be
'on call' or on 'standby'] because prior to
certification, he comes in every day, he gets in the
truck and goes out with his leader and he does what
he is told to do."
The
deposition
testimony
of
Hopkins,
who
is
the
superintendent of the City's water-distribution system, was
similar
to
Stockton's
testimony.
He
testified
that
an
employee was not permitted to "breach the system" unless the
employee was certified as a Grade I operator.
He further
explained that, after Chandler's certification, during the
times
that
Chandler
was
"on
call,"
Chandler
would
be
considered the operator of the water-distribution system.
The evidence indicates that, in order to breach the water
system, an employee must be a certified Grade I operator.
Chandler
was
supervision
permitted
because
certification.
The
he
to
breach
had
the
acquired
responsibility
of
system
the
making
without
necessary
decisions
regarding after-hours emergencies that would require breaching
the system fell to Chandler on those days when he was "on
22
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call."
Those
decisions."
type
of
decisions
are
"process
control
Rule 335-10-1-.02(k) ("a decision regarding the
daily operational activities of a water system or wastewater
system that will directly impact the quality and/or quantity
of drinking water or treated wastewater").
We conclude,
therefore, that Chandler was an "operator" under § 22-25-1(4)
and Ala. Admin. Code, Rule 335-10-1-.02(h).
III. Whether the Board Must Reimburse All the Expenses
Associated with Chandler's Grade I Operator Certification
The Board's final argument concerns the scope of the
reimbursement permitted under § 22-25-16.
According to the
Board, that statute requires reimbursement of only those
expenses related to formal or classroom training provided by
the City during Chandler's certification process, or, at most,
$938.74.
The Board bases its position, in part, on what we
perceive to be a rather disingenuous argument regarding the
2002 amendment to § 22-25-16.
The version of § 22-25-16 in effect before the 2002
amendment read as follows:
"In those instances in which a water or
wastewater operator of any municipality, municipal
utility board, county, or the state is employed by
the State of Alabama, any county, municipality, or
another municipal utility board, within 24 months
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after completing the certification requirements
mandated by this chapter, the total expense paid by
the water or wastewater operator's governmental
employer to enable the operator to become certified,
including salary paid during training, shall be
reimbursed to the municipality, municipal utility
board, county, or the state which paid for the
training. The municipality, municipal utility board,
county, or the state which paid for the training
shall submit an itemized sworn statement to the new
employer of the water or wastewater operator, as the
case may be, shall demand payment thereof, and may
enforce collection of the obligation through civil
remedies and procedures. The terms 'water operator'
and 'wastewater operator' shall have the same
meanings as in Section 22-25-1."
(Emphasis added.)
The 2002 amendment to § 22-25-16 added the words "but not
limited to" before the phrase "salary paid during training"
and added "transportation costs paid to the trainee for travel
to and from the training facility, room, board, tuition,
overtime paid to other employees who fill in for the trainee
during his or her absence, and any other related training
expenses" after that phrase.
Based on those changes, the
Board inexplicably argues that the legislature intended to
restrict the expenses to be reimbursed under § 22-25-16 to
only those expenses related to "specific formal training
outside the regular course of employment."
35-36.
Board's brief at
We cannot understand how insertion of the phrase "but
24
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not limited to" can be construed to limit the amount of
reimbursement to only those items in the statute that follow
that phrase.
See, e.g., McCulloch v. State Dep't of Human
Res., 536 So. 2d 68, 70 (Ala. Civ. App. 1988) (referring to
the legislature's provision of a "nonexclusive list" in Ala.
Code 1975, § 26-18-7, which contains the phrase "may consider,
but not be limited to").
is,
in
fact,
contrary
The Board's proposed interpretation
to
the
principles
of
statutory
construction, which require us to give each word in a statute
its
"natural,
meaning."
plain,
ordinary,
and
commonly
understood
Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n
of Tuscaloosa County, 589 So. 2d 687, 689 (Ala. 1991).
Be that as it may, we can certainly understand the
remainder of the Board's argument –- that it should not be
required to pay Chandler's salary, including all applicable
taxes, from December 2000 to November 2002, the two years
immediately preceding his certification as a Grade I operator.
The City, however, contends that the language of § 22-25-16
clearly mandates payment of the "total expense" it incurred to
"enable" Chandler to become certified over the two-year period
during which he trained on-the-job before his certification.
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The phrase "salary paid during training" is capable of either
construction urged by the parties; however, we are required,
as best we can, "to ascertain the intent of the legislature as
expressed and to effectuate that intent."
Comm'n, 589 So. 2d at 689.
Tuscaloosa County
To determine the legislative
intent behind a statute, a court may consider "the language
used, the reason and necessity for the act, and the purpose
sought to be obtained by its passage."
Id.
The act that was initially codified as § 22-25-16, Act
No. 96-626, Ala. Acts 1996, contains little in the way of
explanation of the impetus behind the act other than that it
its purpose is to provide reimbursement of "training costs."
The title to Act No. 96-626 reads:
"To amend Section 36-21-7, Code of Alabama 1975,
relating to the reimbursement of mandated training
costs when one governmental entity employs certain
employees from another governmental entity within a
certain period, and to provide similar requirements
for the reimbursement of training expenses for
certain governmental employees."
Section 36-21-7, to which Act No. 96-626 refers, was
apparently the first of the reimbursement statutes; it was
enacted in 1980 by Act No. 80-729, Ala. Acts 1980, to provide
for the reimbursement to the original employing entity of
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expenses associated with training a law-enforcement officer
when the officer was employed by a different municipality or
county or by the State after completing his or her training
requirements.
hoping
to
We have reviewed the title to Act No. 80-729,
glean
additional
information
regarding
the
legislative intent behind the acts requiring reimbursement of
training expenses; it reads, in pertinent part: "To require
reimbursement to the municipality, county and state which
expended public funds for the training of law enforcement
officers if such officers are employed by another state,
county
or
completion
municipal
of
the
agency
training."
within
twelve
Thus,
the
months
focus
after
of
the
reimbursement acts appears to be to replace public funds
expended by one entity when another entity reaps the benefits
of the employee's training.
The title to the 2002 act amending § 22-25-16, Act No.
2002-424, Ala. Acts 2002, contains wording similar to the
wording in the title to Act No. 96-626, while also noting that
the amendment intended "to further provide what expenses are
reimbursable."
We can reason from the language used in the
titles to all three acts that the legislature recognized that
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training, whether it be of law-enforcement officers or water
operators, required the original employing entity to invest a
significant amount of time and money in an employee as he or
she trained to become certified or qualified for his or her
position.
Thus, by enacting § 22-25-16 the legislature
appears to have intended to provide reimbursement of that
significant
expense
to
the
training
employer
on
those
occasions when a water operator moves to another specified
employer within 24 months of his or her certification.
The key portion of the statute requires reimbursement of
the following:
"the total expense paid by the water or wastewater
operator's governmental employer to enable the
operator to become certified, including, but not
limited
to,
salary
paid
during
training,
transportation costs paid to the trainee for travel
to and from the training facility, room, board,
tuition, overtime paid to other employees who fill
in for the trainee during his or her absence, and
any other related training expenses."
§ 22-25-16.
The City relies on the following emphasized
portions of the statute: "the total expense paid by the water
... operator's governmental employer to enable the operator to
become certified, including, but not limited to ...."
Based
on those emphasized portions, the City reasons that the "total
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expense ... to enable the operator to become certified" would
include every single expense, including the salary of the
employee
while
certification.
the
employee
was
seeking
his
or
her
In making its argument that the operator's
salary is part of the amount that is to be reimbursed under §
22-25-16, the City relies in large part on the regulations
that require an operator to have "at least twelve months
working experience" in a water system before he or she can
submit an application for certification as an operator.
Ala.
Admin. Code (Dep't of Envtl. Mgmt.), Rule 335-10-1-.08(a).
Thus, the City reasons, the salary paid to an employee who is
seeking certification is part of the expense paid to enable
that employee to become certified.
The Board, however, counters with the above-described
argument that the legislature intended to restrict the amount
subject to reimbursement by adding to the term "salary paid
during training" the other items enumerated in the amended
statute: "transportation costs paid to the trainee for travel
to and from the training facility, room, board, tuition,
overtime paid to other employees who fill in for the trainee
during his or her absence, and any other related training
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expenses."
Those terms and the language used in § 22-25-16,
contends the Board, indicate that the amount of reimbursement
should be related to actual formal or classroom training away
from
the
job
site,
which
both
parties
approximately 45 hours in this case.
agree
amount
to
The Board also argues
that, had the legislature intended that all compensation paid
to an employee be reimbursed, it could have used language to
that effect in § 22-25-16.
However, in our view, the language in § 22-25-16 is not
so limited as to require reimbursement of only those expenses
related to formal or classroom training, because the statute
also includes as reimbursable the "total expense paid by the
... employer to enable the operator to become certified ...."
We must give effect to all the language used within the
statute.
Ex parte Uniroyal Tire Co., 779 So. 2d 227, 236
(Ala. 2000) (quoting Sheffield v. State, 708 So. 2d 899, 909
(Ala. Crim. App. 1997)) ("'"There is a presumption that every
word, sentence, or provision [of a statute] 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."'").
30
In addition, we note
2070764
that, as the City argues, the legislature could well have used
more specific and limiting language in § 22-25-16 had it
intended that only salary and training expenses attributable
to actual formal or classroom training be reimbursed.
We note that neither party refers in its argument to the
definition of the term "trainee," which appears in § 22-251(6). That section defines "trainee" as "[t]he person on duty
who has direct responsibility for the operation of a water
treatment plant, water distribution system, public wastewater
collection
system,
or
wastewater
treatment
plant
and
is
serving in a training capacity for a maximum of one year
without
a
certificate."
(Emphasis
added.)
This
section
appears consistent with the language used in Ala. Admin. Code,
Rule 335-10-1-.08(a), which requires an employee to have 12
months of on-the-job experience before he or she can seek
certification as an operator.
Section 22-25-1(6), then,
appears to limit the time an employee may be a trainee, i.e.,
perform the functions of an operator without certification, to
a 12-month period.
Section 22-25-16 allows reimbursement for the expenses
related to training an employee to become an operator; that
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2070764
statute refers to the training of the employee and uses the
term "trainee" when describing certain items paid to the
employee
that
are
reimbursable
expenses.
Based
on
our
consideration of the definition of "trainee" in § 22-25-1(6)
and the language of § 22-25-16, see Ex parte Jackson, 614 So.
2d 405, 406 (Ala. 1993) (quoting McCausland v. Tide-Mayflower
Moving
&
Storage,
499
So.
2d
1378,
1382
(Ala.
1986)
("Subsections of a statute are in pari materia and 'should be
construed together to ascertain the meaning and intent of
each.'"), a logical
reading of § 22-25-16 leads
to
the
conclusion that reimbursement of the operator's salary and
related training expenses under § 22-25-16 is restricted to
the
period
of
one
year,
considered a trainee.
during
which
the
employee
is
We have concluded therefore that,
pursuant to § 22-25-16, the City is due to be reimbursed
Chandler's salary and training expenses for only one year of
the two years that he was employed by the City before his
certification as a Grade I operator –- i.e., only for the
period during which he was a trainee. Accordingly, we reverse
the summary
judgment
insofar as it orders
reimburse the City $62,298.15.
32
the Board to
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IV. Conclusion
In conclusion, we have determined that the Board is a
municipal utility board and that Chandler is an operator under
§ 22-25-1(4).
Therefore, the Board is subject to § 22-25-16
and is required
to reimburse the
City for
its expenses
relating to Chandler's training and certification.
We affirm
the trial court's judgment insofar as it reached the same
conclusion. However, because the language of § 22-25-16, when
read in conjunction with § 22-25-1(6), does not support the
City's argument that the Board is required to reimburse it for
two years of Chandler's salary, we must reverse the summary
judgment
awarding
the
City
$62,298.15
on
its
claim
for
reimbursement under § 22-25-16.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Thompson, P.J., and Pittman, Bryan, and Moore, JJ.,
concur.
33
