
    Andrea LAWSON v. SHELBY COUNTY SHERIFF’S OFFICE.
    2050605.
    Court of Civil Appeals of Alabama.
    Jan. 5, 2007.
    
      Roderick Graham, Birmingham, for appellant.
    Albert L. Vreeland II and Brett Adair of Lehr Middlebrooks & Vreeland, P.C., Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

Andrea Lawson was employed by the Shelby County Sheriffs Office as a correctional officer. During her shift on February 25, 2005, Lawson was assigned to work in central control, which required her to monitor the cell blocks and other areas in the Shelby County jail via closed-circuit television and an intercom system. Lawson knew that two of her superior officers, Sergeant Keith English and Lieutenant Anderson were in the “Pod B” control room. When she saw the two officers on the television monitor, she depressed the necessary buttons on the control panel of the intercom system to allow her to hear their conversation, part of which involved Sgt. English’s commenting on her performance. Lawson reported her activities to Sheriff Chris Curry and Chief Deputy John Samaniego; she also lodged a complaint against Sgt. English at that time based on her allegation that he had discriminated against female correctional officers.

Sheriff Curry appointed Captain Mikul Smitherman to conduct an investigation of the allegations made by Lawson; Investigator Marty Bailey of the Internal Affairs Division assisted in the investigation. After the investigation was conducted, the complaint against Sgt. English was determined to be unfounded. Based on Lawson’s admission that she had used the jail intercom system to eavesdrop on her superior officers, which violated not only internal regulations of the sheriffs office but also state law prohibiting eavesdropping, see Ala.Code 1975, § 13A-11-31, Chief Deputy Samaniego recommended to Sheriff Curry that Lawson be dismissed. Sheriff Curry then dismissed Lawson.

Lawson appealed the termination of her employment to the Shelby County Law Enforcement Personnel Board (“LEPB”), which, after a hearing, rescinded the termination, reinstated Lawson subject to a 60-day suspension, and imposed an additional 5-day suspension based upon what it found to be statements made by Lawson at the hearing that contradicted the statements she had made during the internal investigation. In its order, the LEPB specifically found that Lawson had committed criminal eavesdropping. Sheriff Curry sought a rehearing with the LEPB, which upheld its order. He then appealed the LEPB’s decision to the circuit court, which reversed the decision of the LEPB and reinstated the termination. Lawson appeals that decision to this court.

The LEPB was created by Act 79-524, Ala. Acts 1979 (“the Act”), and it is governed by that Act, as amended. A dismissed, demoted, or suspended employee may appeal the disciplinary action to the LEPB. LEPB Rules and Regulations § 10.06. The LEPB is required to hold a hearing within 30 days of the employee’s notice of appeal and is to determine “whether or not the employee, by reason of his act or acts as charged and his record of service, merits retention in the service or should be dismissed or otherwise disciplined. ...” LEPB Rules and Regulations § 10.07(a) The Act itself permits the LEPB to “order [a dismissed employee] reinstated with back pay ..., or take or approve such disciplinary action as, in [its] judgment, is warranted by the evidence and under the law.” Act No. 79-524, § 16(b). Likewise, the LEPB’s regulations permit the LEPB to “rescind, modify, or increase the penalty imposed by the appointing authority as warranted by the facts at the hearing.” LEPB Rules and Regulations § 10.07(d). Any party aggrieved by the decision of the LEPB may seek review of the decision in the circuit court. LEPB Rules and Regulations § 10.07(f). The LEPB’s regulations further state that the circuit court is to “review questions of law and the question of whether or not the decision or order of the [LEPB] is supported by the substantial and legal evidence.” LEPB Rules and Regulations § 10.07(f).

The Sheriffs Office argues that the circuit court properly examined the LEPB’s order and determined, correctly, it says, that the order, and more specifically the LEPB’s reduction of the penalty imposed by the sheriff, was not supported by substantial evidence. Lawson disagrees with the Sheriffs Office, arguing instead that the circuit court was only permitted to determine whether, in setting an appropriate punishment, the LEPB acted within the applicable law. We agree with Lawson.

As noted above, the LEPB is required to hold a hearing at which it is to take evidence and determine, based on that evidence, whether the penalty imposed by the appointing authority should be “affirm[ed], rescind[ed], modified], or increas[ed].” LEPB Rules and Regulations § 10.07(d). In a similar case, we have held that such language in a personnel board’s regulations gave it the authority to order reinstatement of a dismissed employee and to impose a lesser punishment than that imposed by the appointing authority. Board of Water & Sewer Comm’rs of Mobile v. Smith, 591 So.2d 521, 522 (Ala.Civ.App.1991).

Judicial review of administrative decisions like those of the LEPB is generally governed by the enabling act that created the particular administrative body or by the regulations governing the particular administrative body. See, generally, Ex parte Smith, 394 So.2d 45, 48 (Ala.Civ.App.1981). Typically, the standard of review of administrative decisions requires that the circuit court uphold the administrative decision if it is supported by substantial and legal evidence. Ex parte Personnel Bd. of Jefferson County, 648 So.2d 593, 594 (Ala.Civ.App.1994), Board of Water & Sewer Comm’rs, 591 So.2d at 522, and Ex parte Smith, 394 So.2d at 47; see also LEPB Rules and Regulations § 10.07(f). This court has defined “substantial evidence” in the context of an administrative appeal as “relevant evidence that a reasonable mind would view as sufficient to support the determination.” Ex parte Personnel Bd. of Jefferson County, 648 So.2d at 594. When a circuit court’s judgment affirming or reversing the decision of an administrative body is appealed to this court, we apply the same standard of review to the administrative decision as was applied by the circuit court. Ex parte Personnel Bd. of Jefferson County, 648 So.2d at 594; see also City of Mobile v. Personnel Bd. for Mobile County, 57 Ala.App. 516, 518, 329 So.2d 570, 573 (Civ.1976) (noting that the circuit court and the appellate court are to apply the substantial-evidence test to the administrative body’s decision, not to the decision of the appointing authority).

The LEPB found, based on the evidence presented to it at the hearing on Lawson’s dismissal, that Lawson had violated the criminal-eavesdropping statute. It also found that she made statements at the hearing that contradicted statements she had made during the internal investigation. Lawson testified at the hearing before the LEPB that she used the intercom system to listen for activity in Pod B because she knew that Lt. Anderson had gone to Pod B some time earlier and had not yet returned. Thus, Lawson’s testimony suggested that she did not intend to eavesdrop on Sgt. English and Lt. Anderson’s conversation but instead happened upon it while performing her typical duties of monitoring the jail. However, after further questioning, Lawson admitted that she had stated in her interview during the internal investigation that she had first seen Sgt. English and Lt. Anderson together in the Pod B control room on the television monitor and then had purposefully decided, because she had heard that Sgt. English had been making disparaging remarks about her, to listen to their conversation. Other evidence adduced at the hearing established that Lawson was a good employee who met or exceeded expectations and that she had been selected to train other employees. Based on the evidence adduced at the hearing, the LEPB ordered that Lawson be reinstated, that she be punished by a two-month suspension, and that she serve an additional five-day suspension for her contradictory testimony before the LEPB.

Despite the arguments to the contrary by both parties, the LEPB’s findings are supported by substantial evidence and its order imposing a lesser penalty is due to be reinstated. The hearing revealed that Lawson had intentionally eavesdropped on her superiors via the jail’s intercom system, so the finding that Lawson violated the criminal-eavesdropping statute is well supported by the evidence. However, other evidence at the hearing established that Lawson had otherwise met or exceeded all expectations as an employee. The LEPB was invested with the authority to consider, based on the evidence concerning Lawson’s activities, the seriousness of the charged acts, and Lawson’s service record, whether, and to what extent, Lawson should be disciplined. Therefore, the LEPB’s decision to rescind Lawson’s dismissal and to instead impose a 60-day suspension for her improper activities is supported by a consideration of the acts she committed and her otherwise unblemished service record. As we have stated before, “[u]nder its limited standard of review, it was not up to the trial court to judge the wisdom of the decision of [the LEPB].” Board of Water & Sewer Comm’rs, 591 So.2d at 523. Because the circuit court did judge the wisdom of the LEPB’s decision when that decision was supported by substantial and legal evidence, we must reverse the circuit court’s judgment and remand the cause for the reinstatement of the order of the LEPB.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

MURDOCK, J., concurs specially, with writing.

THOMPSON, J., concurs in the result, with writing.

BRYAN, J., concurs in the result, without writing.

MURDOCK, Judge,

concurring specially.

A policy argument can be made that some degree of deference should be given by a personnel board to a sheriffs decision regarding disciplinary actions against employees of the sheriffs office. Because the legislature has not seen fit to require the Shelby County Law Enforcement Personnel Board (“the LEPB”) to give deference to such decisions by the sheriff of Shelby County, but instead has given it the authority to revisit those decisions on a de novo basis, and because substantial evidence exists to support the LEPB’s decision in the case now before us, I am compelled to concur in the main opinion.

I also write separately to record my disagreement with Judge Thompson’s conclusion in his special writing that the severity of the employee’s discipline was not within the purview of the circuit court because Act No. 79-524, Ala. Acts 1979, as amended by Act No. 2003-265, Ala. Acts 2003, confínes that court’s review to “ ‘questions of law.’ ” 961 So.2d at 165 (Thompson, J., concurring in the result). As a general rule, the very nature of a court acting in an appellate capacity is that its authority is always limited to “questions of law.” Generally, “[t]he role of appellate courts is limited to deciding questions of law.” Hinds v. Hinds, 887 So.2d 267, 272 n. 2 (Ala.Civ.App.2003). Whether the lower tribunal applied the correct legal standard is a question of law. Equally so is the question whether the lower tribunal abused its discretion in making' its factual findings. If the court acting in an appellate capacity determines that the record does not contain substantial evidence tending to prove a given fact (i.e., evidence from which the lower tribunal reasonably could have found that fact to be true), then it is as a matter of law that the factual finding cannot be upheld. “ ‘[AJppellate courts ... review the factfin-der’s determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law.’ Hinds v. Hinds, 887 So.2d at 272 n. 2 (quoting Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So.2d 1040, 1041 (Ala.1985)). Likewise, when a court takes up the question whether a lower tribunal’s factual findings are against the great weight of the evidence, it is determining whether, as a matter of law, those factual findings can be upheld.

The same is true of appellate review of a discipline, penalty, or punishment imposed by a lower tribunal. It is within the purview of a court acting in an appellate capacity to determine whether the lower tribunal abused its discretion in imposing a discipline or punishment, and whether the lower tribunal acted outside its discretion in doing so is no less a question of law than whether it acted outside its discretion in its fact-finding. Cf. Ex parte Alabama Board of Nursing, 835 So.2d 1010, 1013 (Ala.2001) (upholding a decision by the Alabama Board of Nursing as to an appropriate discipline on the grounds that the choice of discipline “was supported by substantial evidence [and] ... was reasonable”); id. at 1016 (Harwood, J., concurring specially) (explaining that the Alabama Board of Nursing’s decision as to the appropriate discipline was entitled to judicial affirmance based on its consideration of whether the Board’s decision was “clearly erroneous or unreasonable, arbitrary, or capricious, or was characterized by an abuse of discretion or was a clearly unwarranted exercise of discretion”); and Eley v. Medical Licensure Comm’n of Alabama, 904 So.2d 269, 287 (Ala.Civ.App.2003) (holding that judicial review of the Medical Licensure Commission’s choice of an appropriate sanction may consider whether that sanction was “excessive and disproportionate to the wrong ... committed” and reviewing decisions from other states to like effect).

I do not read the opinion of this court in Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285 (1973), or in the other cases cited by Judge Thompson, as foreclosing a reversal by a circuit court of a disciplinary decision by a personnel board when that decision constitutes an abüse of discretion and therefore can be said to be erroneous as a matter of law. The statute construed in Grant expressly provided that “ ‘if upon ... appeal the Court finds that the ruling, order or action appealed from is unlawful or unreasonable within the meaning of this Act it shall have power to vacate or modify the same.’ ” 50 Ala.App. at 689, 282 So.2d at 289 (emphasis added). By its terms, therefore, the statute at issue in that case expressly provided for review not just of factual decisions by the personnel board, but also of the personnel board’s “ruling, order or action” for “unlawful[ness] or unreasonableness].

A portion of the Grant opinion quoted in Judge Thompson’s special writing states that

“the discretionary actions of the Board, to wit, the extent or severity of the punishment, are not to be disturbed by the circuit court on review, but if the findings of fact are supported by substantial evidence, such findings shall be upheld. and the conclusions or order from such findings shall be upheld un less unlawful or unreasonable within the meaning of the act.

50 Ala.App. at 689, 282 So.2d at 289 (emphasis added). I read the first clause of this passage (“the discretionary actions of the Board ... are not to be disturbed by the circuit court on review”), particularly when read in context with the latter, emphasized clause, as merely a loose restatement of the general principle that a court acting in an appellate capacity may not substitute its judgment for that of the lower tribunal as to matters assigned to the discretion of the lower tribunal. In other words, I do not read this passage as meaning anything more than what the Grant court said in its very next statement: “Under Act No. 470, Local Acts of Alabama 1989, this circuit court should not make a determination of the wisdom and propriety of the action of the Board,” 50 Ala.App. at 689, 282 So.2d at 289, or what the Grant court subsequently noted in an effort to explain its opinion: “ ‘It is not within the power of the court reviewing the record to supplant the judgment of the Board with its own as to the extent or severity of the punishment.’ ” Grant, 50 Ala.App. at 690, 282 So.2d at 290 (quoting Edmondson v. Tuscaloosa County, 48 Ala.App. 372, 377, 265 So.2d 154, 159 (Civ.1972)).

The Grant court continued its analysis with statements that further corroborate the notion that a circuit court, acting in an appellate capacity, does not act beyond its authority by assessing whether a personnel board’s disciplinary decision was unwarranted or unreasonable. First, the Grant court examined whether the evidence supported certain factual findings upon which the personnel board had made its decision as to the punishment to be imposed in that case; it concluded that some of those findings were supported by the evidence and that others were not. Grant, 50 Ala.App. at 690, 282 So.2d at 290. Then, on the strength of those findings that it deemed to be supported by sufficient evidence, the court asked:

“Was the reduction of the penalty imposed unwarranted or unreasonable under the law as the circuit court so found? We think not.
“... If [the Board’s] discretionary judgment is supported by substantial evidence, there is no authority in the circuit court upon review to supplant such judgment with its own.
“Here, as seen from above, there is substantial evidence upon which the Board may be warranted in modifying or altering the penalty imposed by the appointing authority.
“As our Presiding Judge Wright stated in Edmondson v. Tuscaloosa County, [48 Ala.App. 372, 265 So.2d 154 (Aa.Civ.App.1972) ]:
“ ‘It is not within the power of the court reviewing the record to supplant the judgment of the Board with its own as to the extent or severity of the punishment.’ [48 Ala.App. at 377, 265 So.2d at 159.]
“In this instance, it appears the court has done just that, and the conclusion that the Board’s order was unwarranted is not correct.”

Grant, 50 Ala.App. at 690, 282 So.2d at 290.

It was the circuit court’s function in the present case to ask the same question that the Grant court asked: “Was the reduction of the penalty imposed unwarranted or unreasonable?” Just as in Grant, I believe there was “substantial evidence upon which the [LEPB was] warranted in modifying or altering the penalty imposed by the [hiring] authority” and that it cannot be said as a matter of law that the LEPB’s “reduction of the penalty [was] unwarranted or unreasonable.”

THOMPSON, Judge,

concurring in the result.

In Act No. 79-524, Ala. Acts 1979, which is the enabling act for the Shelby County Law Enforcement Personnel Board (“LEPB”), § 16 states, in part:

“The county sheriff or any supervisory employee to whom the sheriff has delegated such disciplinary powers may remove, discharge, suspend or demote any subordinate employee of the sheriffs office ....
“If any aggrieved employee is suspended for more than one day, removed, discharged, or demoted, he shall be entitled to a board hearing on such disciplinary action, upon written demand thereon within ten days of such action....
“.... Upon a hearing, the board may order said employee reinstated with back pay from the time of such action to the date of reinstatement, or take or approve such disciplinary action as, in their judgment, is warranted by the evidence and under the law.”

Act No. 2003-265, Ala. Acts 2003, amends § 19 of the enabling act to state:

“An employee or appointing authority aggrieved by a decision of the board on the original hearing shall be entitled to a rehearing of the issue before the board.... If, on rehearing, the employee or appointing authority is aggrieved by the board’s decision such employee or appointing authority may appeal such decision to the Circuit Court of Shelby County.... Review by the court shall be without a jury and confined to the record, and to a determination of the questions of law presented.”

(Emphasis added.)

The Sheriffs Office and the LEPB have no disagreement as to the factual findings regarding Lawson’s actions. The LEPB did not disagree with the Sheriffs Office’s finding that Lawson committed criminal eavesdropping. In fact, the circuit court agreed with the LEPB’s findings with regard to the evidence. Rather the Sheriffs Office disagrees with the severity of the punishment imposed by the LEPB. However, the severity of the punishment is not within the purview of the trial court’s or this court’s review. In Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285 (Civ.1973), this court reviewed a decision of the Mobile County Personnel Board to set aside the dismissal of a county employee. There, the regulations of the Mobile County Personnel Board were similar to those in this case, stating that the Board “ ‘may rescind, modify, alter or affirm the penalty imposed by the appointing authority, or may impose such additional or different penalty as may be warranted by the evidence adduced at the hearing.’ ” Grant v. City of Mobile, 50 Ala.App. at 688, 282 So.2d at 288. The enabling act for the Mobile County Personnel Board also stated:

“ ‘Any person directly interested may, within five days, appeal to the Circuit Court of Mobile County from any order of said Board.... Findings of fact of said Board contained in such transcript if supported by substantial evidence adduced before said Board or before its Personnel Director after hearing and upon notice to the interested party or parties and after affording such parties an opportunity to be heard, shall be conclusive on such appeal.... If upon such appeal the Court finds that the ruling, order or action appealed from is unlawful or unreasonable within the meaning of this Act it shall have power to vacate or modify the same.’ ”

Grant v. City of Mobile, 50 Ala.App. at 689, 282 So.2d at 289 (quoting Act No. 470, Ala. Local Acts 1939, § XXXIV).

In construing the Mobile Circuit Court’s power to review the decisions of the Mobile County Personnel Board, this court stated that

“section [XXXIV] makes clear that the discretionary actions of the Board, to wit, the extent or severity of the punishment are not to be disturbed by the circuit court on review, but if the findings of fact are supported by substantial evidence, such findings shall be upheld and the conclusions or order from such findings shall be upheld unless unlawful or unreasonable within the meaning of the act.”

Grant v. City of Mobile, 50 Ala.App. at 689, 282 So.2d at 289 (emphasis added). See also City of Mobile v. Robertson, 897 So.2d 1156, 1159 (Ala.Civ.App.2004)(“The trial court is not permitted to judge the wisdom of the decision of the Board.”); Mobile County Personnel Bd. v. City of Mobile, 833 So.2d 641, 642 (Ala.Civ.App.2002)(confirming the standard used in Grant v. City of Mobile, supra); and Williams v. City of Dothan Pers. Bd., 579 So.2d 1350, 1353 (Ala.Civ.App.1990)(eoncluding that, under provisions similar to those in this case, “the appropriate standard of review in appeals of this nature is whether the board properly applied the law involved and whether the ruling is supported by any legal evidence”).

I find that the same rules apply to the decision of the LEPB, namely that neither the trial court nor this court may review the decision reached by the LEPB regarding the severity of the punishment given to Lawson. Here, because the Sheriffs Office does not challenge the factual findings made by the LEPB but only the severity of the punishment, I concur in the result on the basis that the trial court cannot review the severity of the punishment imposed by the LEPB. 
      
      . Section 13A-11-31 reads:
      “(a) A person commits the crime of criminal eavesdropping if he intentionally uses any device to eavesdrop, whether or not he is present at the time.
      "(b) Criminal eavesdropping is a Class A misdemeanor.”
     
      
      . This would not be the case, of course, when the law authorizes a de novo or other specialized review of a lower tribunal's decision. That is not the case here.
     
      
      . Deciding questions of law is " 'the very essence of the appellate court's role.’ ” Kathleen L. Coles, Mixed Up Questions of Fact and Law: Illinois Standards of Appellate Review in Civil Cases Following the 1997 Amendment to Supreme Court Rule 341, 28 S. III. U.LJ. 13, 19 (Fall 2003) (quoting Patrick W. Brennan, Standards of Appellate Review, 33 Def. L.J. 377, 407 (1984)).
     
      
      . Judge Thompson also quotes City of Mobile v. Robertson, 897 So.2d 1156, 1159 (Ala.Civ.App.2004), as stating that "[t]he trial court is not permitted to judge the wisdom of the decision of the Board.” That statement has no different import, however, than do the statements from Grant last-quoted in the text.
     