Alabama State Personnel Board v. Cheryl Hancock
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REL: 12/20/2013
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2013-2014
_________________________
2120091
_________________________
Alabama State Personnel Board
v.
Cheryl Hancock
_________________________
Cheryl Hancock
v.
Alabama State Personnel Board
Appeals from Montgomery Circuit Court
(CV-11-49)
MOORE, Judge.
This appeal arises from a judgment of the Montgomery
Circuit Court ("the trial court") reversing the decision of
2120091
the Alabama State Personnel Board ("the Personnel Board"),
which had affirmed the termination of the employment of Cheryl
Hancock, an employee of the Coffee County Department of Human
Resources ("the Coffee County DHR").
Hancock has filed a
conditional cross-appeal.
Procedural Background
Brandon Hardin, the director of the Coffee County DHR,
initially reprimanded Hancock in writing on October 11, 2007,
for alleged insubordination.
Hancock responded by sending a
rebuttal letter to Hardin on October 18, 2007; that letter
contained some remarks to which Hardin took offense.
On
October
to
22,
2007,
representatives
of
Hancock
a
made
certain
child-advocacy
statements
center
that
Hardin
considered to reflect negatively on the Coffee County DHR's
administration. Based on those remarks and statements, Hardin
issued to Hancock a letter dated November 9, 2007, charging
Hancock with disruptive conduct and insubordination.
initially
requested
a
hearing
on
the
Hancock
charges,
but
subsequently, on the advice of counsel, she agreed to waive
her hearing rights and to accept a 14-day suspension effective
January 9, 2008.
2
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On February 5, 2008, Hardin issued a letter to Hancock
charging her with improperly disclosing confidential files and
information
of
the
Coffee
County
DHR
to
a
third
party,
insubordination for having accused Hardin of conspiring to
terminate
personal
Hancock's
telephone
employment,
calls
inattentive to her job.
during
and
making
work
hours
unauthorized
so
as
to
be
On April 10, 2008, Hardin issued
another letter to Hancock charging her with abusing her sickleave and compensatory-time privileges and using work and
compensatory time to make excessive personal telephone calls.
On August 7, 2008, Hardin issued a third letter to Hancock
charging her with using abusive or threatening language,
disruptive conduct, and insubordination for informing two
coworkers that she could cause the termination of their
employment. Hancock began serving a mandatory leave on August
12, 2008. Finally, on August 13, 2008, Hardin issued a fourth
letter to Hancock charging her with having used further
abusive or threatening language toward a coworker, disruptive
conduct, and insubordination.
An independent hearing officer conducted disciplinary
hearings regarding the aforementioned charges on April 30,
3
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September 29, and October 7, 2008.
The hearing officer
determined that the Coffee County DHR had presented sufficient
evidence to warrant the termination of Hancock's employment.
Hardin issued a letter to Hancock, dated December 3, 2008,
notifying her that her employment had been terminated based on
the findings and recommendation of the hearing officer.
Hancock appealed to the Personnel Board on December 12,
2008.
The Personnel Board appointed an administrative law
judge to hear the appeal.
The administrative law judge ("the
ALJ") conducted evidentiary hearings over four days in June
and July 2009, during which 21 witnesses testified and the
parties submitted thousands of pages of exhibits.
On October
19, 2010, the ALJ issued a 41-page recommendation to the
Personnel Board.
The ALJ found that the evidence did not
sustain the charges of disclosing confidential files and
information, of making unauthorized personal telephone calls,
and of being inattentive to the job, but that sufficient
evidence
did
prove
that
Hancock
had
committed
acts
of
insubordination and disruptive conduct so as to justify her
dismissal.
The ALJ also concluded that, although it appeared
that Hancock had abused her sick-leave and compensatory-time
4
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privileges, it was unnecessary to decide that charge given the
findings
relating
conduct.
The Personnel Board adopted the recommendation of
the
ALJ
and
to
issued
her
its
insubordination
final
order
and
upholding
disruptive
Hancock's
dismissal on November 17, 2010.
On December 17, 2010, Hancock notified the Personnel
Board that she would appeal its order.
41-22-20(b) & (d).
See Ala. Code 1975, §
On January 18, 2011, Hancock sought
judicial review of the actions of the Personnel Board by
filing a complaint with the trial court.1
See § 41-22-20(d).
On July 27, 2011, the trial court entered a judgment reversing
the Personnel Board's decision and remanding the case to the
Personnel Board with instructions to reinstate Hancock to her
employment.
The Personnel Board appealed to this court; this
court reversed the trial court's judgment and remanded the
case for the trial court to enter a judgment stating its
reasons for reversing the Personnel Board's decision.
1
See
Pursuant to § 41-22-20(d), Hancock had 30 days, or until
January 16, 2011, to file her petition for judicial review;
however, because January 16 fell on a Sunday and the trial
court was closed due to a legal holiday on January 17, see
Rule 6(a), Ala. R. Civ. P., Hancock timely filed her petition
on January 18, 2011. See Ala. Code 1975, § 1-1-4.
5
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Alabama State Pers. Bd. v. Hancock, 93 So. 3d 143 (Ala. Civ.
App. 2012).
The trial court entered a revised judgment on
October 16, 2012, in accordance with this court's mandate.
The Personnel Board appealed from that judgment on October 26,
2012; however, because Hancock filed a postjudgment motion
with the trial court on November 15, 2012, the appeal was held
in abeyance pending a ruling on that motion.
See Parker v.
Parker, 946 So. 2d 480, 485 (Ala. Civ. App. 2006) (holding
that a notice of appeal is held in abeyance pending the
resolution of a timely filed postjudgment motion filed after
the notice of appeal was filed).
The trial court denied the
postjudgment motion on February 7, 2013; Hancock filed a
cross-appeal on March 21, 2013.2
2
Rule 4(a)(2), Ala. R. App. P. provides: "If a timely
notice of appeal is filed by a party, any other party may file
a notice of appeal within 14 days (2 weeks) of the date on
which the first notice of appeal was filed, or within the time
otherwise prescribed by this rule, whichever period last
expires." Hancock did not file her cross-appeal within 14
days of the date the Personnel Board filed its notice of
appeal, but she did file her cross-appeal within 42 days of
the date the judgment became final, so her cross-appeal is
timely.
See HealthSouth Corp. v. Brookwood Health Servs.,
Inc., 814 So. 2d 267 (Ala. Civ. App. 2000) (construing Rule
4(a)(2) as providing that a cross-appeal must be filed within
14 days of a timely notice of appeal, or within 42 days after
the trial court's judgment becomes final, whichever is later).
6
2120091
The ALJ's Findings
The ALJ recommended that Hancock be dismissed from her
employment
solely
on
the
charges
of
insubordination
and
disruptive conduct. The ALJ found that, since Hardin had been
appointed director of the Coffee County DHR in 2006, Hancock
had consistently undertaken "to demean and degrade Hardin in
a confrontational manner" and had "attempted to undermine his
authority in the office with other employees and those that
came in contact with [the Coffee County DHR]."
The first
instance of such conduct expressly mentioned by the ALJ
occurred in early October 2007.
Hardin testified before the
ALJ that he had anticipated that he would need to fill the
quality assurance ("QA") position of a retiring employee in
October 2007 and that Hancock had begun working with the
retiring employee in order to potentially transition from her
job as a social worker conducting child-abuse-and-neglect
investigations into the QA position.
However, at some point
in September 2007, Hardin's superiors informed him that the QA
position could not be filled.
According to Hardin, after he
informed Hancock of that development, she came into his office
on three different days questioning why he had made that
7
2120091
decision and, on one occasion, had stated that she "was going
to tell her daddy" on him.
Hardin further testified that
Hancock had also told him that he needed to stop disciplining
one of her coworkers, Dawn Mayberry, and that he was going to
be sorry for what he had done to Hancock.
On October 4, 2007, Hancock sent Hardin a letter in which
she expressed disappointment with Hardin's leadership, noted
that many people in the community did not believe that the
Coffee County DHR was performing its functions adequately,
questioned
another
why
Hardin
employee
she
was
mistreating
considered
to
her
be
and
rewarding
substandard,
and
informed Hardin that he was harming her emotional and physical
health by making her job unduly stressful.
Hardin responded
in writing on October 11, 2007, by officially reprimanding
Hancock for what he characterized as her unprofessional tone
and comments about him and her coworker, her unauthorized
critique
of
his
staffing
decisions,
her
disruptive
and
factually unsupported accusations that the community looked
negatively upon the Coffee County DHR, and her breach of
confidentiality regarding personnel matters.
Hardin ordered
Hancock to report to him the factual basis of any complaints
8
2120091
she had received about the Coffee County DHR and to submit to
the Employee Assistance Program in order to improve her
conduct
and
to
obtain
assistance
with
any
emotional
or
physical health problems she was experiencing.
On October 18, 2007, Hancock sent Hardin a rebuttal
letter in which she stated that Hardin had "badgered" her into
agreeing to take the QA position only to wrongfully give it to
another less-experienced employee, that she had not made any
unprofessional comments when inquiring as to the reason for
that decision, that Hardin was being unrealistic in asking her
not to field complaints from the community, that she had not
discussed personnel matters with anyone but Hardin, and that
she had been reprimanded without foundation.
Hancock,
"[w]ithout
meaning
any
disrespect
In that letter,
whatsoever
to
[Hardin] regarding his age or experience," noted that Hardin
had been less than nine years old when she had begun working
for the Coffee County DHR.
The ALJ found that the content of
Hancock's letters demonstrated Hancock's unwillingness to
submit to Hardin's authority and her disregard for Hardin's
leadership and implied a discriminatory attitude toward Hardin
based on his age and experience.
9
The ALJ further found that
2120091
Hancock's
remarks
were
disruptive,
disrespectful,
and
insubordinate.
On October 22, 2007, an employee of the Pike County Child
Advocacy Center asked Hancock whether the Coffee County DHR
would open a new case.
Hancock testified that she had simply
informed the employee that she was unsure whether a new file
could be opened because of the new rules that had been
implemented
by
the
Coffee
County
DHR
that
made
it
more
difficult to open cases. Hardin testified, on the other hand,
that Hancock had questioned whether the Coffee County DHR's
supervisors were making good decisions when deciding whether
to open a case and that he had charged Hancock at the time
with disrespecting the supervisors' judgments by expressing
doubt that a case would be opened.
The ALJ found that Hancock
had made "inappropriate statements" regarding her superiors at
that time.
Hardin issued a letter dated November 9, 2007, to Hancock
charging her with disruptive conduct and insubordination based
on the statements contained in her rebuttal letter and the
statements
made
by
Hancock
during
her
meeting
with
employee of the Pike County Child Advocacy Center.
10
the
The
2120091
parties scheduled a disciplinary hearing to take place on
January 9, 2008, but, on the hearing date, Hancock informed
the Coffee County DHR that she was waiving her right to
contest the charges and the parties agreed that Hancock would
be suspended for 14 days beginning January 10, 2008.
In a
letter dated January 9, 2008, Hardin advised Hancock that she
would be provided a corrective-action plan to follow in order
to improve her conduct and that a failure to comply with that
plan could result in further disciplinary action, including
termination of her employment.
The ALJ found that, on January 9, 2008, after agreeing to
the suspension and receiving the "cautionary" letter, Hancock
described, in a heated and angry tone, the events that had
transpired that day to a former colleague. Susie Landrum, one
of
Hancock's
coworkers
and
friends,
overheard
the
conversation, which had taken place in a hallway at the Coffee
County DHR offices. Landrum testified, credibly, according to
the ALJ, that Hancock had accused Hardin of conspiring to
terminate her employment.3
Hardin testified that, after
3
Hancock denied that she had made such a statement, and
the former colleague testified that she, not Hancock, had
actually used the word "conspiracy" during the conversation.
11
2120091
overhearing Landrum conveying Hancock's statements to another
employee, it was his understanding that Hancock had indicated
that Hardin was friends with the hearing officer and that
Hancock believed that Hardin and the hearing officer were
conspiring to end her employment.
Hardin testified that he
was not friends with the hearing officer.
On February 5,
2008, Hardin charged Hancock with insubordination as a result
of her statements.
The ALJ found that Hancock had "verbally
undermine[d]" Hardin on that occasion.
As noted above, Hardin issued a series of other charges
against Hancock on February 5 and April 10, 2008.
On April
30, 2008, a hearing officer conducted a preliminary meeting
with Hancock and representatives of the Coffee County DHR,
primarily to resolve pending discovery disputes; at the end of
that preliminary meeting, a full hearing on the merits was
continued to a later date.
Before a hearing on the merits
could take place, Hancock attended a pool party with several
coworkers over the Memorial Day weekend. While discussing the
pending hearing, Hancock informed two of her coworkers, Jo
Ruth English and Melissa Martin, that, although she believed
she could save her job, it would cost them their jobs, that
12
2120091
she could "throw them under the bus" and "have their jobs" if
she wanted to do so, but that she would not take that course
of action.
Both English and Martin testified before the ALJ
regarding those remarks, and both testified that they had been
unsettled by Hancock's statements.
Kellie Saunders, a supervisor with the Coffee County DHR,
testified that statements made by Hancock often had upset
Martin and that Martin had had a particularly strong reaction
to the conversation that had taken place at the pool party
over the Memorial Day weekend.
According to Saunders, as a
result of Hancock's statements, she often had had to comfort
Martin and to reassure her that her job was not in jeopardy.
When Saunders reported to Hardin the statements made by
Hancock at the pool party and the effect those statements had
had on Martin's and Saunders's ability to work, Hardin issued
a letter to Hancock dated August 7, 2008, in which he charged
Hancock
with
use
of
abusive
or
threatening
disruptive conduct, and insubordination.
language,
Saunders testified
that Hancock had confronted Martin with the charge letter and
had asked Martin to clarify that Hancock had not threatened
her job.
Martin reported to Saunders that the confrontation
13
2120091
had caused Martin to have a panic attack and that she had felt
nauseated for days thereafter.
Hancock
to
refrain
from
Although Hardin instructed
further
discussing
disciplinary
matters with Martin, Hancock continued to contact or to try to
contact Martin in such a manner that, according to the ALJ,
"could be clearly
interpreted as harassment and intimidation
of Martin since Martin would be a witness."
another
letter
to
Hancock
dated
August
13,
Hardin issued
2008,
again
charging her with use of abusive or threatening language,
disruptive conduct, and insubordination as a result of her
continued conduct toward Martin.
The ALJ found that the above incidents "separately and
severally" justified Hancock's dismissal for insubordination
and disruptive conduct.
However, the ALJ found that the most
egregious misconduct committed by Hancock had occurred when
Hancock arranged for Doug Donaldson, the Chairman of the Board
of Directors of the Coffee County DHR and with whom Hancock
was engaging in a romantic relationship, to call a meeting of
the Board of Directors of the Coffee County DHR ("the Board")
in order to summarily terminate Hardin's employment.
The ALJ
concluded, based on the testimony of James Slaughter, the
14
2120091
Deputy
Commissioner
of
the
Alabama
Department
of
Human
Resources ("the Alabama DHR"), that Hardin was a state meritsystem employee whose employment could be terminated only by
following certain internal procedures of the Alabama DHR. The
ALJ concluded that Donaldson, based on his relationship with
Hancock
and
armed
with
"apparent
detailed
knowledge"
of
Hancock's conflicts with Hardin, had circumvented Alabama
DHR's procedures, of which Donaldson knew or should have
known, by calling executive sessions of the Board to consider
terminating Hardin's employment.
The ALJ further concluded
that, rather than follow the proper procedure for filing a
grievance against Hardin, Hancock had "used her relationship
with Donaldson to bully and harass Hardin."
The Trial Court's Findings
On remand from this court, the trial court set out in
detail its reasons for reversing the decision of the Personnel
Board.
The trial court took issue with the ALJ's findings
regarding
employment.
charged
by
misconduct
Donaldson's
attempts
to
terminate
Hardin's
The trial court found that Hancock had not been
Hardin
relating
or
to
discharged
by
Donaldson's
15
him
for
attempts
any
alleged
to terminate
2120091
Hardin's employment, that the record did not contain any
evidence indicating that Hancock had used her relationship
with Donaldson to provoke Donaldson's actions, and that, by
law, Hardin served at the pleasure of the Board and his
employment could be terminated by the Board without observing
state merit-system protocols, so Donaldson had acted within
his authority.
The trial court concluded that "the overwhelming evidence
reflects Hancock was fired for reasons other than merit." The
trial court found that Hardin had developed a conflict with
Donaldson before he had ever disciplined Hancock.
Hardin
testified that Donaldson had begun to try to insinuate himself
into the administration of the Coffee County DHR as early as
August 2007 when Donaldson had requested to be involved in
personnel interviews and had advised Hardin to, among other
things, promote Hancock.
At that time, Hardin had informed
Donaldson that his involvement was inappropriate and that
Hardin would arrange training for Donaldson as to his proper
role.
According to Hardin, Donaldson had responded that
Hardin would be sorry for his comments and that Donaldson knew
the local sheriff and would embarrass Hardin if Hardin did not
16
2120091
follow
Donaldson's
directives.
Hardin
testified
that
Donaldson and the other Board members received the referenced
training on September 11, 2007.
Sharon Ficquette, general
counsel for the Alabama DHR, provided that training.
The trial court found that Donaldson had attempted to
convene an executive session of the Board on November 6, 2007,
to
discuss
concerning
a
letter
Hardin.
of
The
complaint
evidence
that
he
shows
had
that
received
attorneys
representing Hancock and Mayberry sent a letter dated October
23, 2007, to Donaldson requesting that the Board investigate
Hancock's claim that Hardin was discriminating against her
because of her age and Mayberry's allegation that Hardin was
sexually harassing her and other female employees.
The trial
court found that, although Hardin was unaware of the nature of
the complaint against him, he knew that the Board would be
meeting to consider disciplinary action against him.
The
trial court also found that Ficquette had disrupted that
meeting.
The record reflects that, after Donaldson issued a
November
1,
2007,
memorandum
calling
for
the
executive
session, Ficquette contacted Donaldson via telephone and sent
Donaldson a November 6, 2007, letter explaining that Donaldson
17
2120091
had failed to comply with the Alabama Open Meetings Act.
See
Ala. Code 1975, § 36-25A-1 et seq. Ficquette then appeared at
the meeting to object to it taking place, which, Donaldson
testified, led to the meeting being canceled.
The trial court found that Donaldson had made a second
attempt to hold an executive session of the Board regarding
possible disciplinary action against Hardin on December 6,
2007.
The record indicates that, on November 29, 2007,
Donaldson sent a letter, via facsimile, to Hardin stating that
the Board would be meeting in executive session to discuss
Hardin's
general
reputation
and
character.
The
record
indicates that the Board members met on that date but that
Donaldson did not distribute the October 23, 2007, letter to
the other Board members or discuss the allegations made
against
Hardin.
Donaldson
testified
that
Ficquette
had
appeared at that session and, like every other session,
stopped it.
No action was taken against Hardin by the Board
after that session.
The
trial
court
found
that
Hardin
later
learned
of
Hancock's relationship with Donaldson as a result of a meeting
with Donaldson's ex-wife and daughter.
18
Thereafter, according
2120091
to the trial court, Hardin began to pursue the dismissal of
Hancock and the removal of Donaldson from the Board based on
a false accusation that Hancock had provided confidential
information to Donaldson.
The evidence in the record shows
that Donaldson's daughter contacted Hardin in mid-January 2008
after she had reviewed documents relating to her parents'
divorce.
Among those documents was Donaldson's deposition in
which Donaldson testified that, in discussions with Hancock,
"some employee issues have been brought up there.
I think –-
I personally think it would be confidential ...."
Donaldson
further testified that Hancock had brought him "DHR files."
Donaldson's daughter also reviewed telephone records showing
voluminous
calls
being
exchanged
between
Hancock
and
Donaldson. Donaldson's ex-wife testified that, when she asked
Donaldson why he talked so often with Hancock, Donaldson had
replied that she was giving him confidential information about
the Coffee County DHR.
Donaldson's ex-wife also testified
that Donaldson had told her that Hancock had brought him
"papers about DHR." After Hardin met with Donaldson's ex-wife
and daughter around early February 2008 and received the
aforementioned documents and information, Hardin asked for a
19
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full
investigation
and
charged
Hancock
confidential Coffee County DHR information.
with
disclosing
Hardin testified
that, upon receiving the charge, Hancock stated that she had
provided documents to Donaldson relating to a lawsuit that had
been filed by multiple employees of the Coffee County DHR.
Although the original hearing officer had sustained the charge
against Hancock, the ALJ concluded that the charge had not
been substantiated because the files that Hancock had taken to
Donaldson were not confidential records of the Coffee County
DHR, but private lawsuit records of employees of the Coffee
County DHR, and that Hancock had taken the files to Donaldson
without violating any express policy of the Coffee County DHR
and only after the former director of the Coffee County DHR
had informed the employees that the files could not be kept at
the offices of the Coffee County DHR.
The trial court found that Ficquette, acting on Hardin's
behalf, had threatened Donaldson with criminal prosecution for
receiving confidential files from Hancock unless he resigned
from the Board.
The evidence in the record reveals that, on
February 5, 2008, Ficquette, Slaughter, Donaldson, and Joe
Cassidy, Sr., the attorney for the Coffee County Commission,
20
2120091
met
at
the
county
commission's
office
in
New
Brockton.
Slaughter testified that the Alabama DHR had arranged the
meeting in order to induce Donaldson to resign.
Slaughter
testified that the Alabama DHR had wanted Donaldson to resign
because he had previously exceeded his authority by becoming
overly involved in the operations of the Coffee County DHR by
trying to tell Hardin how to do his job and because Donaldson
had, according to his deposition testimony from the divorce
case, received confidential Coffee County DHR files.
Cassidy
testified that very early in the meeting Ficquette informed
Donaldson that he had received confidential Coffee County DHR
files and that he should resign from the Board because it
violated the law for him to have those files. Cassidy further
testified that Ficquette had stated that she would also
consider
criminal
charges.
After
a
short
period
of
conversation, Donaldson then left the meeting.
The trial court found that, around the same time as the
February 5, 2008, meeting, attorneys for the Alabama DHR
issued "DHR subpoenas" to obtain personal cellular-telephone
records of Hancock and Donaldson.
The record reflects that,
on February 19, 2008, Felicia Brooks, the attorney for the
21
2120091
Alabama DHR who was assigned to Hancock's case, unilaterally
issued
subpoenas
for
Hancock's
and
Donaldson's
private
cellular-telephone records.4
The trial court found that DHR officials offered to "not
fire Hancock in exchange for Donaldson's resignation as County
Board chairman."
On April 24, 2008, Page Walley, who was at
the time the Commissioner of the Alabama DHR, met with Andrew
Hornsby, a former Commissioner of the Alabama DHR who was, at
the time, the Deputy Director of Finance who was representing
then Governor Bob Riley on the Board of Directors of the
Alabama DHR.
According to Hornsby, Commissioner Walley had
asked Hornsby, who knew Donaldson, to contact Donaldson in
advance of an upcoming April 30, 2008, predisciplinary hearing
involving
Hancock.
Hornsby
4
testified
that
he
met
with
Hancock filed an action seeking a judgment declaring that
her personal cellular-telephone records had been obtained
unlawfully through the issuance of a subpoena without
statutory authority. After that action was dismissed, this
court reversed the judgment of dismissal and remanded the case
for resolution of that issue. See Hancock v. Buckner, 50 So.
3d 1083 (Ala. Civ. App. 2010). Because, in this case, the ALJ
did not find any ground for disciplining Hancock due to her
telephone usage, the ALJ did not reach the question whether
the subpoenas had been unlawfully issued.
Hancock has
informed this court that the declaratory-judgment action
remains pending.
22
2120091
Ficquette to receive more information about the case. He also
testified
that,
between
his
meetings
with
Walley
and
Ficquette, he had received authorization to offer to settle
all the pending matters by transferring Hancock to another
county DHR office if Donaldson would agree to resign his
position as Chairman of the Board. On April 25, 2008, Hornsby
telephoned Donaldson. The transcript of Donaldson's recording
of that telephone conversation indicates that Hornsby, among
other things, stated that "they would be willing to hold up on
the firing [of Hancock] and transfer her elsewhere if you
would step down as County chair."
The
trial
court
found
that
"DHR
officials
[had]
threatened to embarrass Donaldson by publishing details of his
divorce" if Donaldson did not resign. Later in the transcript
of that telephone conversation Hornsby stated that "they have
a lot of allegations that apparently they are going to bring
out [at Hancock's predisciplinary hearing] -– involvements
down there and everything."
Hornsby also said: "They said
it's a lot of allegations about improper involvements with
people and your divorce comes up and everything else."
When
Donaldson questioned what his divorce had to do with Hancock's
23
2120091
job, Hornsby responded: "[T]hey have a lot of information they
are
going
to
present
[at
the
hearing]
that
could
embarrassment and could cause [Hancock] embarrassment.
likely going to get in the newspaper and all that."
cause
It's
Hornsby
told Donaldson that Commissioner Walley would prefer to settle
the matter amicably.
Hornsby later stated: "[T]hese matters
are going to get in the papers and the press covers the
meetings and things ...." Although Hornsby did not expect the
press to attend the hearing, Hornsby expressed his belief to
Donaldson that "they will be involved in due time.
always are at DHR."
They
After Donaldson accused officials of the
Alabama DHR of threatening him, Hornsby said: "I don't know –I don't know that -- I just -– they just said they hated to
see a lot of embarrassing news stories about everything and
going back to your divorce."
The record indicates that Donaldson did not agree to
resign his position following his telephone conversation with
Hornsby. The trial court found that "DHR officials" published
details about Donaldson's divorce after Donaldson refused to
resign his chairmanship.
Hancock's
preliminary
On April 30, 2008, at the start of
hearing,
24
Ficquette
introduced
into
2120091
evidence Donaldson's March 5, 2004, deposition, which was
taken during his divorce proceedings.
On September 29 and
October 7, 2008, at the continuation of the predisciplinary
hearing, the attorneys for the Coffee County DHR and Hancock
both questioned multiple witnesses at length regarding the
deposition excerpt in which Donaldson testified that he had
discussed "confidential" matters with Hancock and that Hancock
had delivered Coffee County DHR files to his office.
During
the September 29, 2008, hearing, Ficquette also introduced a
copy of the amended divorce complaint that had been filed in
the Coffee Circuit Court by Donaldson's ex-wife on March 3,
2004, and asked Donaldson if the reason he had been questioned
in his deposition about his interaction with Hancock was
because his ex-wife had alleged in her amended complaint that
Donaldson
had
Hancock.
Hancock, however, did not present any evidence
indicating
participated
that
any
DHR
in
an
adulterous
official
had
affair
publicized
with
any
information contained in Donaldson's deposition or the amended
complaint to the press or that the press had covered any part
of Hancock's predisciplinary hearing at the request of a DHR
official. When repeatedly asked about such matters during the
25
2120091
Personnel Board hearing, Donaldson could not point to any
information about his divorce that had appeared in a newspaper
article through the efforts of DHR's officials.
The trial court also found that Ficquette had disrupted
a third Board meeting in which Donaldson had "attempted to
discuss
firing."
concerns
which
could
have
resulted
in
Hardin's
The evidence indicates that, on August 12, 2008,
Donaldson sent a memorandum to members of the Board to notify
them of a special meeting scheduled for August 19, 2008, to
discuss the character and reputation of Hardin.
Donaldson
issued a letter, via facsimile, dated August 18, 2008, to
Hardin notifying him that the Board would be considering his
dismissal at the scheduled August 19, 2008, meeting based on
seven different charges that were apparently drafted by an
attorney
or
Association.
attorneys
for
the
Alabama
State
Employees'
The Alabama DHR took the position that the
meeting could not take place without violating the Open
Meetings Act.
informed
the
Ficquette attended the scheduled meeting and
Board
members
that
the
Board
was
meeting
illegally and urged the Board members to refrain from any
action until its regularly scheduled meeting in September.
26
2120091
Although Donaldson expressed his disagreement, he and the
other Board members ultimately left and the meeting did not
take place.
The trial court concluded that the actions taken by "DHR
officials" against Hancock were arbitrary and capricious and
were "taken for reasons other than merit."
The trial court
also concluded that the Personnel Board had acted arbitrarily
and capriciously by sanctioning Hancock for insubordination
"while giving a pass to manipulative behavior of
Hardin and his attorney ... which enabled Hardin to
block three meetings spanning over a period often
months to consider his own misconduct (i.e.,
recklessly accusing the County Board chairman of
receiving confidential DHR files, acting in concert
to leverage the County Board chairman's resignation,
disrupting three county board meetings to prevent
discussion of his own conduct, publishing a
salacious pleading of the County Board chairman's
divorce for no reason other than to carry out a
threat to embarrass)."
Because the trial court concluded that Hancock had been
discharged for unlawful reasons, the trial court refused to
address the charges of insubordination and disruptive conduct
that had been made against Hancock "other than to note that
they were protected speech and the grounds were otherwise
without merit."
27
2120091
Issues on Appeal
In its appeal, the Personnel Board asserts that the trial
court usurped its fact-finding role by reweighing the evidence
and entering new findings of fact that were either unsupported
by the evidence, contrary to the factual findings of the ALJ
who actually heard the testimony, or irrelevant to the core
inquiry of whether Hancock had committed the actions charged.
Furthermore, the Personnel Board argues that the trial court
misapplied the law when it held that Hancock could not be
terminated for exercising her freedom of speech.
Standard of Review
"This court reviews a trial court's judgment
regarding the decision of an administrative agency
'without any presumption of its correctness, since
[the trial] court was in no better position to
review the [agency's decision] than' this court.
State Health Planning & Res. Dev. Admin. v.
Rivendell of Alabama, Inc., 469 So. 2d 613, 614
(Ala.
Civ.
App.
1985).
Under
the
Alabama
Administrative Procedure Act ('AAPA'), § 41-22-1 et
seq., Ala. Code 1975, which governs judicial review
of agency decisions,
"'[e]xcept where judicial review is by
trial de novo, the agency order shall be
taken as prima facie just and reasonable
and the court shall not substitute its
judgment for that of the agency as to the
weight of the evidence on questions of
fact, except where otherwise authorized by
statute. The court may affirm the agency
28
2120091
action or remand the case to the agency for
taking additional testimony and evidence or
for further proceedings. The court may
reverse or modify the decision or grant
other appropriate relief from the agency
action, equitable or legal, including
declaratory relief, if the court finds that
the agency action is due to be set aside or
modified under standards set forth in
appeal or review statutes applicable to
that agency or if substantial rights of the
petitioner have been prejudiced because the
agency action is any one or more of the
following:
"'(1) In violation of constitutional
or statutory provisions;
"'(2) In excess of
authority of the agency;
the
statutory
"'(3) In violation of any pertinent
agency rule;
"'(4) Made upon unlawful procedure;
"'(5) Affected by other error of law;
"'(6) Clearly erroneous in view of the
reliable,
probative,
and
substantial
evidence on the whole record; or
"'(7)
capricious,
discretion
exercise of
Unreasonable, arbitrary, or
or characterized by an abuse of
or
a
clearly
unwarranted
discretion.'
"§ 41-22-20(k), Ala. Code 1975 .... In reviewing the
decision of a state administrative agency, '[t]he
special competence of the agency lends great weight
to its decision, and that decision must be affirmed,
unless it is arbitrary and capricious or not made in
29
2120091
compliance with applicable law.' Alabama Renal Stone
Inst., Inc. v. Alabama Statewide Health Coordinating
Council, 628 So. 2d 821, 823 (Ala. Civ. App. 1993).
... Neither this court nor the trial court may
substitute
its
judgment
for
that
of
the
administrative agency. Alabama Renal Stone Inst.,
Inc. v. Alabama Statewide Health Coordinating
Council, 628 So. 2d 821, 823 (Ala. Civ. App. 1993).
'This holds true even in cases where the testimony
is generalized, the evidence is meager, and
reasonable minds might differ as to the correct
result.' Health Care Auth. of Huntsville v. State
Health Planning Agency, 549 So. 2d 973, 975 (Ala.
Civ. App. 1989)."
Colonial Mgmt. Grp., L.P. v. State Health Planning & Dev.
Agency, 853 So. 2d 972, 974-75 (Ala. Civ. App. 2002) (emphasis
omitted).
Discussion
We begin our analysis by agreeing with the trial court's
finding that the ALJ erred by affirming Hancock's dismissal on
the ground that she had used her relationship with Donaldson
to have him call meetings of the Board to consider terminating
Hardin's employment.
Section 36-26-27(a), Ala. Code 1975,
provides, in pertinent part, that "[a]n appointing authority
may dismiss a classified employee whenever he considers the
good of the service will be served thereby, for reasons which
shall be stated in writing, served on the affected employee
...."
(Emphasis added.)
The reasons for dismissal must be
30
2120091
expressed to the employee in terms "specific enough to apprise
the
employee
of
the
allegations
against
him
[or
her]."
Johnston v. State Pers. Bd. of Alabama, 447 So. 2d 752, 756
(Ala. Civ. App. 1983).
In this case, Hardin notified Hancock
that her employment was being terminated on multiple grounds,
which he explained in fairly specific factual detail, but
Hardin never asserted that Hancock was being dismissed for
instigating adverse employment actions by Donaldson against
Hardin,
whether
through
her
personal
relationship
with
Donaldson or otherwise.
We reject any argument asserted by the Personnel Board
that Hancock received adequate notice of the charge during her
predisciplinary hearing in 2008.
Section 36-26-27 plainly
requires the appointing authority to deliver in writing to the
employee all reasons for dismissal.
In the letters issued by
Hardin to Hancock throughout 2008, Hardin charged Hancock with
various
misconduct
that
he
warned
could
result
in
her
dismissal, but he did not actually dismiss Hancock until
December 3, 2008, after the completion of the predisciplinary
hearing.
In the December 3, 2008 letter, which is the only
writing that satisfies § 36-26-27, Hardin, well aware of the
31
2120091
evidence presented at the predisciplinary hearing, informed
Hancock that her employment had been terminated only for the
conduct outlined in his previous charge letters.
If Hardin
had terminated Hancock's employment for any additional reason,
he did not present that reason to her in the December 3, 2008,
dismissal letter.
"This court has held that, in reviewing an employee's
dismissal, the Personnel Board is only to determine if the
reasons stated for the dismissal are sustained by the evidence
presented at the hearing." Alabama Alcoholic Beverage Control
Bd. v. Malone, 495 So. 2d 1137, 1138 (Ala. Civ. App. 1986)
(citing Hilyer v. Blackwell, 377 So. 2d 1090 (Ala. Civ. App.
1979)) (emphasis added).
In this case, the Personnel Board
could review the evidence only to determine if it supported
the reasons for discharging Hancock asserted by Hardin in the
December 3, 2008, letter. Because, in that letter, Hardin did
not state that he had discharged Hancock due, even in part, to
Donaldson's actions against him, the Personnel Board did not
have the authority to find that Hardin was warranted in
32
2120091
discharging Hancock on that additional ground.5
By adopting
the findings of the ALJ to that effect, the Personnel Board
acted beyond its statutory authority.
See § 41-22-20(k)(2).
Nevertheless, the ALJ and, by adoption of the ALJ's
recommendation, the Personnel Board, found that the evidence
sustained
the
charges
of
insubordination
and
disruptive
conduct for which Hardin actually had been discharged.
The
ALJ
and
further
disruptive
found
conduct
Hancock's dismissal.
that
each
act
"separately
of
and
insubordination
severally"
warranted
We find no error in that regard.
The ALJ heard conflicting evidence as to whether Hancock
had accused Hardin of conspiring against her in order to
terminate
her
employment.
The
ALJ
determined
that
a
preponderance of the evidence indicated that Hancock had made
that accusation. Based on the appropriate standard of review,
see Health Care Auth. of Huntsville v. State Health Planning
Agency, supra, that finding cannot be disturbed. The ALJ also
5
Because we conclude that the Personnel Board erred in
upholding the dismissal on grounds not asserted in the
December 3, 2008, notice-of-termination letter, we find no
need to separately determine whether the Personnel Board
committed legal error in finding that Hardin, as a county
director, could not be discharged without following state
merit-system procedures.
33
2120091
found that sufficient evidence proved that Hancock had told
Martin and English that she could "have their jobs" and that
Hancock
had
discussing
violated
her
Hardin's
disciplinary
directive
matters
with
to
refrain
Martin,
from
thereby
disrupting the office.
Our review of the evidence in the
record
those
discloses
erroneous.
that
findings
are
not
clearly
See § 41-22-20(k)(2).
Rule 670-x-19-.01(1)(b)2., Ala. Admin. Code (State Pers.
Bd.),
provides
that
employees
of
state
agencies
may
be
discharged for even one act of insubordination, which is
defined
as
"[f]ailure
to
follow
an
order;
disobedience;
failure to submit to authority as shown by demeanor or words
...."
(Emphasis
added.)
Rule
670-x-19-.01(1)(a)7.,
Ala.
Admin. Code (State Pers. Bd.), provides that "[d]isruptive
conduct of any sort" can result in disciplinary actions in
increasing severity, up to and including, termination of
employment.
a
lesser
The Personnel Board could have elected to impose
punishment
than
termination
of
employment,
see
Alabama State Pers. Bd. v. Hardeman, 893 So. 2d 1173 (Ala.
Civ. App. 2004), but we cannot conclude that the Personnel
Board acted unreasonably, arbitrarily and capriciously, or
34
2120091
clearly outside its discretion in ruling otherwise.
41-22-20(k)(7).
See §
Thus, we find no legal basis for the trial
court's conclusion that the charges against Hancock were
"without merit."
We also disagree with the trial court's finding that
Hancock merely engaged in "protected speech."
In Ex parte
Smith, 683 So. 2d 431 (Ala. 1996), our supreme court held that
a party aggrieved by an administrative determination affirming
his or her dismissal may appeal to the appropriate circuit
court for consideration of whether the dismissal violated
constitutional provisions, see § 41-22-20(k)(1), including the
First Amendment to the United States Constitution.
"In reviewing a claim that an employee has been
terminated for exercising the right to free speech,
an appellate court must make an independent
examination of the whole record, in order to ensure
that the judgment of an administrative review panel
does not constitute a forbidden intrusion on the
field of free expression. Bose Corp. v. Consumers
Union, 466 U.S. 485, 499, 104 S.Ct. 1949, 1958–59,
80 L.Ed.2d 502 (1984). This is a rule of Federal
constitutional law, reflecting the conviction that
judges must exercise independent review in order to
preserve these liberties, and this rule is binding
upon state appellate courts. Bose Corp., 466 U.S. at
510, 104 S.Ct. at 1964-65.
Therefore, a circuit
court, acting in an appellate capacity, would be
required to make a de novo review of any First
Amendment claims raised by the terminated employee.
Thus, there is an appropriate procedure for an
35
2120091
employee to follow in order to ensure that his or
her constitutional claims are reviewed by a jurist
possessing the requisite legal competence."
683 So. 3d at 436.
In her complaint filed with the trial
court, Hancock generally pleaded that the Personnel Board had
acted in violation of constitutional provisions in affirming
her dismissal.
Assuming, without deciding, that Hancock sufficiently
raised the First Amendment issue in her complaint, the trial
court had to determine "'the threshold legal question of
whether the employee's speech may be "fairly characterized as
constituting speech on a matter of public concern."'" Ford v.
Jefferson Cnty., 904 So. 2d 300, 307 (Ala. Civ. App. 2004)
(quoting Brochu v. City of Riviera Beach, 304 F.3d 1144, 1157
(11th Cir. 2002), quoting in turn Rankin v. McPherson, 483
U.S. 378, 384 (1987), quoting in turn Connick v. Myers, 461
U.S. 138, 146 (1983)).
Whether certain statements may be
fairly characterized as speech constituting a matter of public
concern "'involves an examination of the content, form, and
context of the speech.'"
Ford, 904 So. 2d at 307 (quoting
Brochu, 304 F.3d at 1157, citing in turn Rankin, 483 U.S. at
384-85).
"Our Supreme Court has held that '[w]hether speech
36
2120091
is protected is an issue of law, reviewable de novo on
appeal.' Roberts v. Joiner, 590 So. 2d 195 (Ala. 1991), cert.
denied, 504 U.S. 956, 112 S.Ct. 2302, 119 L.Ed.2d 225 (1992)."
Smith v. State Dep't of Pub. Safety, 716 So. 2d 693, 696 (Ala.
Civ. App. 1998).
In this case, Hardin discharged Hancock for (1) saying
that Hardin was conspiring to terminate her employment, (2)
saying that she could have English's and Martin's jobs, and
(3)
discussing the preceding statement with Martin after
being instructed not to do so.
Looking purely at the content
of those statements, none of them concerned matters of public
concern, which "generally include 'any matter of political,
social, or other concern to the community....'" Ford, 904 So.
2d at 308 (quoting Connick, 461 U.S. at 146).
statements
centered
on
Hancock's
Rather, all the
private
concern
of
maintaining her employment and her personal welfare. The form
and the context of the statements also indicate their private
nature because they were all allegedly made by Hancock to
coworkers
or
predisciplinary
employment.
former
coworkers
hearings
Speech
by
following
regarding
public
37
or
Hancock's
employees
preceding
particular
may
not
be
2120091
characterized as speech of public concern "'when it is clear
that such speech deals with individual personnel disputes and
grievances and that the information would be of no relevance
to the public's evaluation of the performance of governmental
agencies.'"
Long v. Water Works & Sewer Bd. of Gadsden, 487
So. 2d 931, 934 (Ala. Civ. App. 1986) (quoting McKinley v.
City of Eloy, 705 F.2d 1110 (9th Cir. 1983)).
Hancock's
statements could not be construed as the speech of "a citizen
upon matters of public concern," Connick, 461 U.S. at 147, but
could be considered only as the speech of an employee "upon
matters of only personal interest."
Id.
In such cases as the
one at bar, the First Amendment does not abridge the "wide
degree of deference ... given to the employer's judgment and
to the employer's concerns about employee insubordination,
discipline, and harmony among coworkers." Long, 487 So. 2d at
934.
Thus, the trial court erred in concluding that Hancock
had been dismissed wrongfully for engaging in "protected
speech."
Finally,
we
address
the
trial
court's
finding
that
Hancock had been discharged for reasons other than merit.
In
proceedings before the Personnel Board, Hancock argued that
38
2120091
Hardin
was
pursuing
her
dismissal
solely
to
extort
a
resignation from Donaldson and not for a merit-based reason.6
The ALJ did not expressly address Hancock's contentions, but
it did find that Hardin had sufficient grounds for terminating
Hancock's
employment,
thus
at
least
impliedly
rejecting
Hancock's position. Upon review, the trial court was charged,
as we are, with determining whether some evidence sustains the
findings of the Personnel Board, not with determining whether
the weight of the evidence supports a different determination.
See Colonial Mgmt. Group, L.P., supra.
The trial court
misapplied the standard of review by accepting Hancock's
version of the context surrounding her dismissal when the
conflicting evidence in the case reasonably could have been
resolved by the ALJ contrary to that version.
Although in April 2008 Hornsby telephoned Donaldson and
stated that the Alabama DHR would transfer Hancock rather than
pursue her dismissal if Donaldson resigned, that offer hardly
constitutes indisputable evidence of an extortion conspiracy.
6
In a separate action, Hancock sought to enjoin Hardin
from discharging her on those same grounds, but this court
held that the action had been properly dismissed based on the
exhaustion-of-remedies doctrine. See Hancock v. Buckner, 50
So. 3d at 1090.
39
2120091
The circumstances show that, at the time of the offer, the
Alabama
DHR
had
evidence
indicating
that
Donaldson
had
exceeded his authority in his dealings with Hardin, see §
38-2-8 (vesting "[a]ll administrative and executive duties and
responsibilities" exclusively in county director, not county
chair), and in calling successive meetings in violation of the
Open Meetings Act regarding improper accusations made against
Hardin.7
testimony
Ficquette had also reviewed Donaldson's deposition
upon
which
she
could
have
readily
formed
a
good-faith belief that Donaldson had received confidential
Coffee County DHR information and documents, possibly in
violation
of
statutes
carrying
criminal
penalties.
The
Alabama DHR thus had good reason to request Donaldson's
resignation.
7
Evidence in the record supports the ALJ's finding that
Hancock and Mayberry did not formally file any complaints
against Hardin in accordance with the procedures set out in
their employee handbooks. Slaughter testified: "My employee,
Ms. Wells, who supervises the county director, has not been
made aware of any improper activity by Mr. Hardin. She has not
seen and heard -– in review of matters, has not told me that
she has seen anything." When asked if DHR had investigated
the allegation, Slaughter stated: "No. It depends on what you
call 'investigation.' I know that Ms. Wells reviewed the
matter with Mr. Hardin and others, and there has not been any
proper charges brought against Mr. Hardin. So, I would assume
that our review of the matter did not warrant further
investigation."
40
2120091
Hornsby testified that, when he was commissioner, he had
sometimes
successfully
defused
personnel
problems
by
transferring an employee from one county office to another.
Hornsby recalled that he either suggested or agreed with
Ficquette and Walley on April 24, 2008, that he should ask
Donaldson if he would resign if the Alabama DHR agreed not to
terminate Hancock's employment, but merely to transfer her to
another office. The ALJ could have reasonably concluded that,
in making the offer, Hornsby had not threatened that the
Alabama DHR would publicize salacious details of Donaldson's
divorce,
but
had
noted,
as
a
further
consideration
for
Donaldson, only that Donaldson's relationship with Hancock
would inevitably surface in the scheduled predisciplinary
hearings, which would be newsworthy.
At any rate, nothing in
the evidence indicates that, before Hornsby, Ficquette, and
Walley reached the decision to make the offer on April 24,
2008, Hardin had been pursuing Hancock's dismissal solely as
a pretext to coerce Donaldson into resigning.
Rather, the evidence shows that, after Hancock had agreed
to a 14-day suspension on January 9, 2008, Hardin overheard
that Hancock had accused him of conspiring against her.
41
Days
2120091
or weeks later, Hardin received an unsolicited telephone call
from Donaldson's daughter indicating that she had recently
discovered information about Hancock from reviewing documents
in her parents' divorce files.8
The evidence supports a
finding that, after meeting with Donaldson's ex-wife and
daughter and reviewing the documents they supplied, Hardin
formed
a
good-faith
belief
that
Hancock
had
disclosed
confidential information and files to Donaldson9 and that she
was talking with Donaldson excessively over the telephone
during
work
infractions
hours.
on
Hardin
February
5,
charged
2008,
Hancock
and
with
those
scheduled
a
predisciplinary hearing to investigate those charges even
though the law does not require such a hearing.
Hancock
presented no evidence indicating that Hardin had fabricated
those
charges
resignation.
as
a
method
of
extorting
Donaldson's
Hancock also did not present any evidence
indicating that Hardin had participated in any way in the
8
The trial court specifically found that Hardin did not
even know of the relationship between Hancock and Donaldson
until he was informed of it by Donaldson's daughter and exwife.
9
At that time, Hardin could not have known that, years
later, his charge would be proven false.
42
2120091
decision by the Alabama DHR to contact Donaldson and request
his resignation either in February or April 2008.
From
that
evidence,
the
ALJ
reasonably
could
have
determined that Hardin was pursuing the dismissal of Hancock
solely for the reasons stated in the charge letters and not as
a pretext to obtain a resignation from Donaldson, which the
Alabama DHR was independently seeking.
To reach a conclusion
that Hardin had dismissed Hancock for reasons other than
merit, the trial court either had to make certain findings of
fact that were unsupported by any evidence in the record or to
reweigh the evidence in the record to accept Hancock's point
of view.
Section 41-22-20 does not authorize an appellate
court to substitute its own findings of fact for those of the
Personnel Board.
at 823.
Alabama Renal Stone Inst., Inc., 628 So. 2d
Thus, we conclude that the trial court committed
reversible error in reaching its judgment.
The Cross-Appeal
Hancock filed a conditional cross-appeal in the event
this court reversed the judgment of the trial court.
In her
cross-appeal, Hancock maintains that the trial court erred
"because it allowed the Personnel Board to manipulate the
43
2120091
judicial review process by withholding material portions of
the
administrative
record
from
the
reviewing
courts,"
allegedly in violation of § 41-22-20(g).
The record shows that Hancock appealed the Personnel
Board's determination on January 18, 2011. According to § 4122-20(g), the Personnel Board generally had 30 days from the
date of the receipt of the notice of appeal to transmit the
entire administrative record to the trial court. However, the
Personnel Board could obtain permission from the trial court
to shorten the record of the proceedings under review by
stipulation
of
the
parties.
On
February
22,
2011,
the
Personnel Board moved for a stipulation on the record seeking
to
exclude
Donaldson
"DHR
had
Exhibit
obtained
16,"
from
which
contained
Hancock.
The
the
files
trial
court
conducted hearings on the motion on March 9 and May 16, 2011.
Thereafter, the parties exchanged correspondence and proposed
stipulations, but did not reach an agreement.
On July 22,
2011, the Personnel Board filed a motion requesting that the
trial court rule on the February 22, 2011, motion.
court
entered
its
judgment
the
next
day
The trial
reversing
the
Personnel Board's decision without ruling on the stipulation
44
2120091
motion. After this court remanded the case, Hancock moved the
trial court, on August 16, 2012, to order the Personnel Board
to file a complete administrative record, arguing that the
Personnel Board had failed or refused to file 11 exhibits
other than "DHR Exhibit 16."
On August 22, 2012, the trial
court denied the motion without explanation.
The trial court
subsequently revised its judgment to state its reasons for
reversing the Personnel Board's determination on October 16,
2012.
Hancock generally argues that this court cannot review
the determination of the Personnel Board without the complete
administrative
record.
However,
Hancock
specifically
complains about only a limited number of missing exhibits.
The first, Hancock's Exhibit 3, is described as an audio
recording made by Donaldson during his February 5, 2008,
meeting with Ficquette, Slaughter, and Cassidy.
Hancock
maintains that, in the audio recording, Ficquette made a
threat
against
Donaldson
dismissed without merit.
Cassidy
and
Donaldson
that
proves
that
Hancock
was
However, Hancock questioned both
about
the
alleged threat against Donaldson.
45
meeting
and
Ficquette's
Ficquette did not testify
2120091
to dispute their recollection of the conversation.
Thus, the
ALJ was not asked to resolve any conflicts in the evidence as
to the substance of that conversation, and the audio recording
would have merely duplicated the testimony of the witnesses.
Hence, Hancock has not shown that exclusion of the audio
recording has prejudiced her substantial rights. See Rule 45,
Ala. R. App. P.; and § 41-22-20.
Hancock also complains that the Personnel Board failed to
transmit "DHR Exhibit 17," an audio recording of an executive
session of the Board, which appears to have taken place on
December 6, 2007.
that
Hardin
Hancock asserts that the recording shows
became
aware
that
Donaldson
was
pursuing
disciplinary action against him and that Hardin, "aided and
abetted" by Ficquette, immediately thereafter falsely accused
Donaldson
of
receiving
However,
the
although
Hardin
record
did
confidential
files
contains
evidence
not
the
know
from
Hancock.
indicating
exact
nature
that,
of
the
complaints against him, Hardin was aware that Donaldson was
attempting to take some adverse employment action against him
as
early
as
November
1,
2007,
when
Donaldson
issued
a
memorandum calling for a Board meeting to take place on
46
2120091
November 6, 2007.
To the extent the audio recording would
have been used to prove that Hardin had learned of Donaldson's
actions, the recording would only duplicate other evidence
showing that Hardin actually knew of the matter a month
earlier.
The evidence also is undisputed that Ficquette did
not accuse Donaldson of receiving confidential DHR files until
February 5, 2008, two months later. Hence, Hancock has failed
to show how exclusion of the audio recording has impaired her
substantial rights.
See Rule 45, Ala. R. App. P.; and § 41-
22-20.
Hancock notes that the Personnel Board did not transmit
her exhibits numbered 26 and 27.
Exhibit 26 is an index to
the lawsuit that produced the files Hancock delivered to
Donaldson.
That index would show only that Hancock did not
disclose confidential files to Hardin, which the Personnel
Board found and which finding is not attacked on appeal.
Hancock does not describe the contents of Exhibit 27, but the
record indicates that the exhibit consisted of records already
marked as DHR Exhibit 8, reflecting photographs of items
inventoried by an investigator who searched Hancock's desk in
January 2008.
In both cases, the failure to include the
47
2120091
missing exhibit does not impair Hancock's substantial rights.
See Rule 45, Ala. R. App. P.; and § 41-22-20.
The missing "DHR exhibits" include number 11, which the
record reflects is a court order concerning the issuance of
subpoenas by the Alabama DHR.
Exhibit number 12 consists of
a reprimand provided to Mayberry dated September 10, 2007.
Exhibit
number
13
is
a
document
refreshing
Donaldson's
recollection as to the date of his telephone conversation with
Hornsby.
Exhibit numbers 14 and 15 are e-mails concerning
discovery
exchanged
between
counsel.
Exhibit
number
16
consists of the lawsuit files that Hancock delivered to
Donaldson, which were the subject of the Personnel Board's
stipulation
motion.
Exhibit
number
18
contains
several
documents relating to medical leave Hancock took in 2007.
Exhibit number 19 is a copy of an administrative regulation
designating county directors as custodians of the records of
their county department of human resources.
Hancock has not
explained how those omitted records adversely affected her
appeal rights or hinder this court's review.
The foregoing
descriptions show the missing documents generally do not
relate to the substantive issues raised by the parties, and,
48
2120091
in any case, the contents of most of them are adequately
described in the record.
As such, Hancock cannot articulate
how their omission has impaired her substantial rights.
See
Rule 45, Ala. R. App. P; and § 41-22-20.
We further note that Hancock did not raise the issue of
the missing exhibits, other than DHR's Exhibit number 16, to
the trial court until August 2012 after the case had been
remanded from this court back to the trial court, almost 18
months after she filed her petition for judicial review. That
delay reinforces this court's conclusion that the missing
exhibits did not handicap Hancock's ability to fully present
her case to the trial court or to this court.
Like this
court, the trial court obviously was able to ascertain the
exact nature of the evidence before the Personnel Board and
determined that the record did not need to be supplemented to
include the redundant or unnecessary exhibits.
Although we
disagree with the trial court's factual conclusions, we do not
do so based on a lack of understanding of the evidence due to
an incomplete record.
Finally, Hancock notes that the Personnel Board did not
provide this court transcripts of the hearings before the
49
2120091
trial court.
The record indicates that the trial court
conducted hearings on several occasions, but the record does
not indicate that the trial court conducted any evidentiary
hearings.
Generally speaking, upon judicial review of a
decision of an administrative agency, the reviewing court is
limited to the administrative record and may not make a new
evidentiary record.
(1973).
See Camp v. Pitts, 411 U.S. 138, 142
A court must consider de novo the content, form, and
context of speech claimed to be protected, see Roberts, supra,
but nothing in the record or the briefs submitted to this
court indicates that the trial court conducted an evidentiary
hearing for that purpose.
judgment
indicates
that
To the contrary, the revised
the
trial
court
based
its
determination exclusively on its review of the administrative
record.
Because
Hancock
has
failed
to
prove
that
the
appellate record is missing a transcript of any additional
evidence considered by the trial court, this case does not
fall within the rule that we must presume that an omitted
transcript supports the lower court's findings.
Smith v. Smith, 565 So. 2d 72 (Ala. 1990).
50
See, e.g.,
2120091
Conclusion
For the foregoing reasons, we reverse the judgment of the
trial
court
Personnel
insofar
Board
as
it reversed
upholding
the
the
decision
termination
of
of
the
Hancock's
employment based on her acts of insubordination and disruptive
conduct.
We affirm the judgment insofar as it reversed the
Personnel
Board's
decision
upholding
the
termination
of
Hancock's employment on the basis that Hancock instigated
adverse employment actions by Donaldson against Hardin and
insofar as it denied Hancock's motion to require the Personnel
Board to submit a complete administrative record.
We remand
the case to the trial court and direct it to affirm the
decision of the Personnel Board insofar as it upheld the
termination of Hancock's employment based on her acts of
insubordination and disruptive conduct.
APPEAL
–-
AFFIRMED
IN
PART;
REVERSED
IN
PART;
AND
REMANDED WITH INSTRUCTIONS.
CROSS-APPEAL –- AFFIRMED.
Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ.,
concur.
51
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