
    Ruthann B. HAYMES v. ALABAMA STATE TENURE COMMISSION.
    AV92000199.
    Court of Civil Appeals of Alabama.
    May 21, 1993.
    Rehearing Denied June 25, 1993.
    Certiorari Denied Aug. 27, 1993 Alabama Supreme Court 1921534.
    Charles H. Pullen of Watson, Gammons & Fees, P.C., Huntsville, and Gregory B. Stein of Stein & Brewster, Mobile, for appellant.
    John F. Porter III of Livingston, Porter & Paulk, P.C., Scottsboro, and Jean W. Brown, Asst. Atty. Gen., for appellee.
   L. CHARLES WRIGHT, Retired Appellate Judge.

On August 1, 1991, the Jackson County Board of Education voted to notify Ruthann Haymes of its intent to transfer her from Hollywood Elementary School to Bridgeport Elementary School. Haymes was notified by letter dated August 2, 1991. On August 5, 1991, she gave the Board notice of her intent to contest the transfer and requested a hearing. On August 7, 1991, the Board notified Haymes that a hearing would be held on August 14, 1991.

Following the scheduled hearing, during its open meeting, the Board voted to approve the transfer. The Board gave Haymes written notice, by hand delivery, on August 16, 1991. The school term began on August 16, 1991. On August 27, 1991, Haymes gave notice to the Alabama State Tenure Commission of her intent to appeal the Board’s order of transfer. On October 30, 1991, the Commission affirmed the Board’s order of transfer.

On December 2,1991, Haymes filed a petition for writ of mandamus in the Circuit Court of Jackson County. On October 30, 1992, the trial court denied Haymes’s petition. Haymes appeals.

Haymes does not question the justification for the transfer or the Board’s right to effect a transfer. The sole issue on appeal is whether the trial court erred in finding the transfer to be timely.

Section 16-24r-5, Code 1975, provides the following:

“Any teacher on continuing service status, upon the recommendation of the superintendent and the approval of the employing board of education, may be transferred for any succeeding year from one position, school or grade to another by being given written notice of such intention to transfer by the employing board....” (Emphasis added.)

Haymes insists that this statute requires the employing boards to complete and finalize a transfer before the beginning of classes for the fall term. She asserts that the case of Alabama State Tenure Commission and Velma Avery v. Board of Education of Jefferson County, 418 So.2d 111 (Ala.Civ.App. 1981), supports her position. The Board contends that under Avery and the statute, it is only the “notice of intent” to transfer which must be given prior to the beginning of classes for the fall term.

In resolving this issue, the trial court found the following:

“[S]he argues that the Jackson County Board of Education failed ‘... to complete its attempted transfer before the beginning of the school year....’ The case of Alabama State Tenure Commission and Velma Avery v. Board of Education of Jefferson County, 418 So. 2d 111 (Ala.Civ.App.1981), is not in point. In that case, the notice of the transfer was given the teacher three days after class began at the new school. The case does not stand for the proposition, as the teacher argues, that the transfer must be ‘completed’ before the beginning of the school year. § 16-24-5, Code [1975,] does not, so far as this court can determine, contemplate completing the hearing after demand by the teacher in making the decision, but only giving the notice of the intent to transfer before the beginning of the succeeding school year.”

We agree with the trial court’s interpretation of the statute and with its interpretation of Avery.

Haymes received the Board’s notice of intent prior to the beginning of the succeeding school year. That notice was timely. Accordingly, the judgment of the trial court is affirmed.

The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

ROBERTSON, P.J., concurs.

THIGPEN, J., concurs specially.

YATES, J., dissents.

THIGPEN, Judge,

concurring specially.

The dissent urges this court to adopt a definition of “succeeding year” as used in Ala.Code 1975, § 16-24-5, to mean “scholastic year” as defined in Ala.Code 1975, § 16-1-1(4), for purposes of giving notices of transfers to teachers. That section defines the “scholastic year” as one which begins on the first day of July and ends with the thirtieth day of June of each year.

I hasten to point out that most classroom teachers are hired on a nine-month contract basis and are generally hired for a “school year.” While there is no statutory definition of the term “school year,” Ala.Code 1975, § 16-8-30, specifies that the county boards of education “shall fix a uniform date each year for the opening of all schools in the county under its jurisdiction.”

A brief perusal of Title 16 reflects that the term “scholastic year” is used primarily to establish uniform reporting and financial guidelines for all school systems. For example, Ala.Code 1975, § 16-13-3, provides:

“Expenditures for teachers’ salaries for services rendered and for transportation for the scholastic year July 1 to June 30, inclusive, for any year and expenditures for fuel and school supplies to be consumed in the scholastic year July 1 to June 30, inclusive, for any year shall be paid from receipts for that fiscal year, October 1 to September 30, inclusive.”

Further, Ala.Code 1975, § 16-13-52(c), provides:

“In the event of natural disaster, epidemic or other occurrence that may cause pupil average daily attendance during the first four scholastic months of the school year to be abnormal and below usual and customary levels, the affected school board may petition the state superintendent of education to seek his approval of the use of an alternate four month reporting period during the same scholastic year.”

More recently, the legislature enacted Ala. Code 1975, § 16-3-18.5, compelling the state board of education to require that “school terms in the public schools of this state are not less than 176 actual teaching days for the 1992-93 scholastic year.”

Thus it would appear that the “school year” is established by the various boards of education throughout the state when they designate the day for the opening of school in accordance with Ala.Code 1975, § 16-8-30.

It is apparent that the legislature had a specialized use for the term “scholastic year,” and it was not meant to be used for the term “succeeding school year” or “succeeding year” as used in Chapter 24 of Title 16. I am mindful of and sympathize with the necessity of notifying teachers of anticipated transfers within sufficient time for them to make necessary arrangements for other or different employment; however, in view of the fact that various school systems begin and end their school terms at different times, it is not practicable to require school systems to notify all teachers of possible transfers prior to July 1 of each year. In some instances that could be less than thirty days from the end of the prior school year. Unfortunately, without legislation establishing statewide uniformity defining a school year for purposes of teacher transfers, this court cannot graft upon a statute a meaning which the legislature did not intend. See Reed v. City of Montgomery, 341 So.2d 926 (Ala.1976). See also Alabama Industrial Bank v. State of Alabama ex rel. Avinger, 286 Ala. 59, 237 So.2d 108 (1970). Our opinion in Avery, supra, and the lead opinion in the case at bar, attempt to balance the equities between the rights of the affected teacher and the rights of school boards to allocate their teacher resources in accordance with the law.

YATES, Judge,

dissenting.

Because of the majority’s interpretation of Ala.Code 1975, § 16-24^5, and of Alabama State Tenure Commission and Velma Avery v. Board of Education of Jefferson County, 418 So.2d 111 (Ala.Civ.App.1981), writ quashed, Ex parte Board of Education of Jefferson County, 418 So.2d 113 (Ala.1982), I respectfully dissent.

In stating, as the majority does in this case, that teacher transfers are timely as long as the school board’s “notice of intent” to transfer is given to the teacher prior to the beginning of the succeeding school year, I am of the opinion that we are misconstruing Ala.Code 1975, § 16-24-5; in particular, the phrase “succeeding year.” In essence, we are stating that a teacher may be transferred if notice of such intent to transfer is given to that teacher prior to the beginning of classes, even if notice is given only one day prior to the date classes begin.

Apparently, this interpretation began in Avery, where this court stated:

“As provided in § 16-24-5, a tenured teacher may be transferred by the employing board for any ‘succeeding year.’ The question then is whether Avery was transferred for the ‘succeeding year.’ In order to answer the question we must know what the term ‘succeeding year’ means; and, in the absence of a statutory definition, we must fashion one.
“Based on these definitions we conclude that the term ‘succeeding year’ should be defined as meaning the next school year after the one in which the teacher was transferred.”

Id. 418 So.2d at 112.

The teacher in Avery was not notified of her transfer until 3 days after the beginning of classes for the 1979-80 school year. This court held, however, that the attempted transfer was for the current year, i.e. 1979-80, and not for the “succeeding year,” i.e., 1980-81. “We believe ... that the transfer was intended to be effective in the 1979-80 school year, but for this to be so, the transfer should have been made before the beginning of the 1979-80 school year. This was not done and, as a consequence, the purported transfer was invalid.” Id. at 112.

While Avery found that this court must fashion a definition of “succeeding year,” to me, the appropriate usage of § 16-24-5 would be to measure timeliness according to the “scholastic year,” noted in Ala.Code 1975, § 16-1-1(4). That section defines “scholastic year” as beginning “with the first day of July and end[ing] with the thirtieth day of June each year.” Although such a definition is drastically different from the application following Avery, I believe that using the “scholastic year” definition in the context of § 16-24-5 is the correct application. Despite the fact that § 16-1-1 is in a different chapter of the Code from § 16-24-5, § 16-1-1 nevertheless prefaces the entire Title 16. In fact, § 16-1-1 begins by stating, “For purposes of this title, the following words and phrases shall have the meanings respectively ascribed to them by this section.” (Emphasis added.) Conversely, the only definition contained in Chapter 24 is in § 16-24-1, where “teacher” is defined. No other definitions are contained which would supersede “scholastic year.”

Also, practicality suggests that the “scholastic year” definition should apply to § 16-24-5. Such a time frame would allow the teacher to contest the proposed transfer and, in the event of an unfavorable decision by the board, would allow the teacher time to prepare for such transfer.

There appears to be leeway for applying § 16-1-1 to teacher transfer cases. In Wright v. Marengo County Board of Education, 367 So.2d 501 (Ala.Civ.App.1979), certain teachers appealed their transfers and contended that notice must be given by “June 30, i.e., before the commencement of the succeeding school year.” Id. at 503. Judge Holmes in Wright did not address this issue, however, stating that notice was given on April 28, long before a possible June 30 deadline. Id. Furthermore, in Avery the supreme court quashed the writ of certiorari and stated, “this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion.” Ex parte Board of Education of Jefferson County, 418 So.2d 113 (Ala.1982). Quite possibly, the supreme court did not approve the implication that the beginning of classes was the deadline for notice of transfer.

A close review of the language in Avery indicates the focus was on defining “succeeding” in the phrase “succeeding year.” Without overruling Avery, I would clarify “succeeding year” to mean “the next school year after the one in which the teacher was transferred,” Avery, 418 So.2d at 112, but with the “school year” being measured from July 1 through June 30. This, I believe, would be a proper application of the law to this and future teacher transfer cases.

In this ease, since the Board’s notice of intent to transfer was not received by Haymes prior to the scholastic year for which the transfer was to be effective, I would hold that Haymes’s petition for the writ of mandamus was due to be granted. Accordingly, I respectfully dissent.  