
    Melvin HUTCHINSON v. ALABAMA INSTITUTE FOR DEAF AND BLIND, et al.
    Civ. 7511.
    Court of Civil Appeals of Alabama.
    May 16, 1990.
    Rehearing Denied June 27, 1990.
    Kenneth L. Thomas of Thomas, Means & Gillis, Montgomery, and Theron Stokes, Gen. Counsel, Alabama Educ. Ass’n, for appellant. .
    William F. Gardner, William K. Thomas and William H. Pryor, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees.
   PER CURIAM.

This is an appeal from an order of the Circuit Court of Talladega County granting the employer’s motion for summary judgment in an employee dismissal action.

Melvin Hutchinson (employee) was employed by the Alabama Institute for Deaf and Blind (employer) and was notified by letter dated May 4, 1988, of the proposed termination of his employment. A hearing was conducted on June 1, 1988, at which time the employee was informed that his employment was terminated as of that date. Pursuant to the Fair Dismissal Act, §§ 36-26-103 through -106, Ala.Code 1975, the employee’s attorney then timely notified the employer of the employee’s intent to appeal the termination and his request for a hearing on this matter.

On June 16, 1988, the employee contacted the employer regarding the selection of a review panel. On June 24, 1988, the employer notified the employee of the selection of an employer representative to serve on the panel. It further suggested that, in order to expedite the selection of a third, neutral panel member, the parties request that the probate judge submit the names of three qualified candidates. At this stage, thirty-seven days remained of the sixty days in which the hearing was required to be commenced. § 36-26-106, Ala. Code 1975.

In a letter dated July 6,1988, the employee requested that the probate judge take such action. At the time of this request, twenty-five of the sixty days remained.

The probate judge’s response was not made until July 27, 1988, and was not actually received by the employee until August 1, 1988, one day after the sixty-day time limitation expired.

The present appeal concerns the mandate of § 36-26-106, part of the Fair Dismissal Act, that any hearing regarding the contest of an employee’s termination must be held within sixty days following the determination of the employing board. The employee contends that, because such a hearing was not conducted within the sixty-day time frame contemplated by this Act, the statute requires that he be reinstated to his former position and be awarded back pay.

This provision of the Fair Dismissal Act has repeatedly been subject to judicial interpretation. In Bolton v. Board of School Commissioners of Mobile County, 514 So.2d 820 (Ala.1987), the supreme court noted the lack of clarity resulting from the legislative passage of this Act. Although, as this court has ruled, the Act mandates that the reviewing panel begin its hearing within sixty days of the decision announcing the employee’s termination, Washington v. Bessemer Board of Education, 547 So.2d 888 (Ala.Civ.App.1989), it contains no procedure to ensure that this time provision is complied with, nor does it establish any penalty in the event of noncompliance. Rather, courts, when faced with situations in which the time limitation has not been met, have attempted to give effect to the overall purpose of this Act by assessing fault for any resulting delay on a case-by-case basis. See Bolton, 514 So.2d 820; Birmingham Board of Education v. Holifield, [Ms.Civ. 7249, February 14, 1990] (Ala.Civ.App.1990); Washington, 547 So.2d 888.

Here, it is uncontested that a review hearing was not begun within sixty days of the employer’s decision of June 1, 1988, to terminate the employee. The Act provides that only the employee review panel has authority to establish a hearing date. Ala. Code 1975, § 36-26-106. The process of selecting a panel for reviewing the employee’s termination must be initiated by the employer. Holifield [Ms. Civ. 7249, February 14, 1990]; Washington, 547 So.2d 888. Furthermore, members of the review panel consist of individuals selected by the employer and the employee, and may include a neutral member selected by the employer and the employee from a list of qualified candidates submitted by the judge of probate. Ala.Code 1975, § 36-26-105. Therefore, the Act necessarily contemplates cooperation among the parties in expeditiously selecting the review panel.

It is undisputed that the delay in this instance was caused by the probate judge’s late response to the employee’s request. The statute, however, is uninstructive as to how the acquisition of the list is to be made within the time period designated. In other words, the statute is unclear as to who has the burden of notifying the probate judge of his responsibility to develop the list and assuring that his response will be made early enough within the sixty-day period that the hearing can begin.

In following the Washington-Holifield “who’s at fault” analysis, the trial court reasoned that the employee was at “fault” because he initiated the acquisition of the list from the probate judge and “never advised the judge that the parties were operating under a time limitation nor that there was any need for swift action.” With this rationale we cannot agree.

As noted previously, the statute is silent as to whose burden it is to acquire the list from the probate judge in a timely fashion. We do not think, however, that this burden should be placed on the employee — even in this instance, where the employee initiated the acquisition. We are of the opinion that the employer is in a better position to bear this responsibility, and, therefore, that the duty should lie with the employer.

In reaching this conclusion, we are aware that we have liberally construed the Act in favor of the employee. We find a liberal construction here to be necessary to serve (if not save) the legislative purpose and intent of the Act. We can reasonably state that nonteacher employees are the primary intended beneficiaries of the Act with the purpose being to expedite a “fair and swift resolution of proposed employment terminations.” Bolton, 514 So.2d at 824. The Act, therefore, should be liberally construed to effectuate its purpose in favor of those who constitute the class designated as primary beneficiaries.

Furthermore, in Bolton the supreme court stated that “ ‘reasonableness’ must be read into the provisions of the ‘Fair Dismissal Act.’ ” 514 So.2d at 824. In reasonably interpreting the Act to benefit the nonteacher employee beneficiaries, we find that once an employee timely files notice of his intention to contest the termination — and absent any “improper delay or improper tactics on his part,” Washington, 547 So.2d at 893 — the employer is obligated to reasonably and responsibly pursue to conclusion the process it has begun.

In conclusion we find the trial court erred in finding the employee responsible for the lapsed hearing. Instead, we find that the employer did not act reasonably and responsibly by failing to pursue the process it had begun, thereby abandoning its original intention to terminate the employee’s position. The employee is entitled to receive all back pay and to be returned to his job.

REVERSED AND REMANDED WITH DIRECTIONS.

INGRAM, P.J., and ROBERTSON, J., concur.

RUSSELL, J., dissents.

RUSSELL, Judge,

dissenting.

I must respectfully dissent from the majority opinion. The employee contends that, as a result of the failure of the employee review panel to conduct its hearing within sixty days following the decision of the employing board, he is entitled to be reinstated to his position and to be awarded back pay from the date of his termination.

As the majority recognized, § 36-26-106 does not, by its terms, delineate responsibility for securing a list of candidates from the probate judge when that procedure is used to select the review panel. Consequently, it is my opinion that this provision contemplates a cooperative effort by the employing board and the employee in expeditiously obtaining such a selection.

Rather than adhering to this court’s past practice of assessing fault for such delays on a case-by-case basis, see Birmingham Board of Education v. Holifield [Ms. Civ. 7249, February 14, 1991] (Ala.Civ.App.1990), the majority opinion seeks to fill in the legislative gaps existing in the Act by placing the sole and complete responsibility for securing a list of candidates on the employing board.

The Act neither dictates which party possesses such responsibility, nor does it contain mandatory time frames within which each party must operate. Rather, the Act “employs counterbalancing duties and responsibilities for the execution of the termination process.” Bolton v. Board of School Commissioners of Mobile County, 514 So.2d 820, 824 (Ala.1987). As a result, it is my opinion that this court must make a determination as to which party was at fault for causing the delay.

In the instant action, the employer expeditiously responded to the employee’s request of June 16, 1988, that the employer contact him regarding the selection of the review panel. On June 24, 1988, the employer notified the employee of the selection of an employer representative to serve on the panel.

The employer further suggested that, in order to expedite the selection of a third, neutral panel member, the parties request that the probate judge submit the names of three qualified candidates. At this stage, thirty-seven days remained of the sixty days in which the hearing was required to be commenced.

The employee, however, did not directly respond to the employer, but instead, in his letter dated July 6, 1988, initiated the next step in the appeal process by directly requesting of the probate judge that he take such action. At the time of this request, twenty-five of the sixty days remained.

It is important to note that, in his request, the employee failed to inform the probate judge of the circumstances necessitating an immediate response in order to select the third panel member and to set the hearing date within the time frame mandated by law. Furthermore, the record reveals that at no time prior to the expiration of the sixty-day time limitation did the employee inquire of the judge reasons for his delay in providing a list of names.

The probate judge responded directly to the employee by letter dated July 27, 1988, and such letter was not actually received by the employee until August 1, 1988, one day after the sixty-day time limitation expired. The employer, however, did not receive a copy of the judge’s response, but instead was informed by the employee’s letter of August 1, 1988, that the list had not been timely submitted. The employee concomitantly demanded that, as a result of the failure to conduct the hearing within the mandated time frame, he be reinstated to his former position.

It is my opinion that fault for the delay in commencing the hearing, in this instance, is not attributable to the employer. Rather, noncompliance with the Act is the fault of the employee who set in motion a necessary element in the process and then failed to ensure its completion. See Bolton, 514 So.2d 820 (Ala.1987).

As I have noted, at the time of the employee’s request of the probate judge, twenty-five days remained within the sixty-day limitation. This clearly afforded the employee ample time to secure the list of candidates for the third position on the review panel. Had the employee acted more diligently in communicating the urgency of his request, or later investigated the cause of delay, compliance with the time provision of the Act would have been ensured. As this court stated in Washington v. Bessemer Board of Education, the employee “should not benefit from any improper delay or improper tactics on his part.” Washington, 547 So.2d 888, 893 (Ala.Civ.App.1989).

In my opinion, the employee failed to act reasonably or responsibly when he failed to pursue the nomination process he had initiated by making such a request of the probate judge. Because I find that the mandate of § 36-26-106 was not complied with due to delay for which the employee is at fault, I have no alternative other than to dissent from the majority opinion reversing the trial court’s grant of summary judgment in favor of the employer.  