
    C. Robert MITCHELL v. Frank S. SKINNER, Jr., et al.
    1910063-CER.
    Supreme Court of Alabama.
    Aug. 28, 1992.
    
      F. Timothy McAbee of F. Timothy McA-bee, P.C. and J. Mark White of White, Dunn & Booker, Birmingham, for plaintiff.
    Macbeth Wagnon, Jr. and Walter J. Sears III of Bradley, Arant, Rose & White and Robert E. Parsons of Parsons, Lee & Juliano, P.C., Birmingham, for Frank S. Skinner, Jr., William Billingsley, David Bradley, Barbara McCollum, Richard Linn, Sheila Trimm, Jack H. Harrison and City of Hoover.
    Paul A. Miller of Lamar, Nelson & Miller, P.C., Birmingham, for Susanne Bray and Alex Farris.
    David R. Boyd of Balch & Bingham, Montgomery, for amicus curiae Alabama Ass’n of School Boards.
    C.C. Torbert, Jr. and Frank D. McPhillips of Maynard, Cooper, Frierson & Gale, P.C., Birmingham, for amicus curiae Hoover City Bd. of Educ.
   HOUSTON, Justice.

The United States District Court for the Northern District of Alabama, 796 F.Supp. 1464, certified the following questions of law to us:

“1. At the time his contract was terminated by the Hoover board of education on April 29, 1991, had C. Robert Mitchell, as superintendent, of the Hoover school system, attained ‘continuing service status’ as defined at Ala.Code [1975,] § 16-24-2?
“2. If [Dr.] Mitchell had attained ‘continuing service status’ on April 29, 1991, did he ‘abandon’ his tenure rights by entering into a contract on March 5, 1991, that contained a provision permitting the school board to unilaterally terminate his employment?
“3. Did [Dr. Mitchell] acquire a property interest in his employment under the provisions of Ala.Code § 16-12-1?
“4. If [Dr.] Mitchell had a property interest in his employment by virtue of Ala.Code § 16-12-1, did he relinquish that interest by entering into a contract on March 5, 1991, that contained a provision permitting the school board to unilaterally terminate his employment?”

The following statement of the case and pertinent facts was provided by the district court for our consideration:

“The plaintiff, C. Robert Mitchell, claims inter alia that he was, without due process of law, deprived of a property interest in his continued employment as superintendent of the school system of Hoover, Alabama, when the school board of that city exercised its right under a provision of his employment contract to unilaterally terminate his employment. Defendants are the mayor and other officials of the city of Hoover, members of its school board, and other private citizens. The action is before the court on motion of the defendants to dismiss for failure to state a claim upon which relief can be granted.
“The pertinent facts alleged by [Dr. Mitchell] and out of which this claim arises are:
“A. On October 5, 1987, the Hoover, Alabama, City Council created the Hoover City Board of Education in accord with the provisions of Ala.Code § 16-11-1 et seq.
“B. [Dr. Mitchell] was appointed to the position of superintendent of the Hoover, Alabama, school system and assumed the duties of that office on January 16, 1988.
“C. The Hoover school system operated its first school year beginning in the fall of 1988 and ending in the spring of 1989.
“D. On March 5, 1991, Mitchell and the Hoover school board entered into a second contract that superseded and replaced all previous agreements between them. The new contract covered the period of March 5, 1991, to March 4, 1996, and was subject to an automatic extension provision.
“E. During the period of more than three years that Mr. Mitchell served as Hoover school superintendent, there occurred numerous incidents, both public and private, of conflicts between [Dr. Mitchell] and the defendants.
“F. On April 29, 1991, the Hoover board of education exercised its rights under a unilateral termination provision of the March 6, 1991, contract to terminate Mr. Mitchell’s employment as the school superintendent.”

Relying on Ex parte Oden, 495 So.2d 664 (Ala.1986), and Ex parte Weaver, 559 So.2d 178 (Ala.1989), Mitchell contends that he acquired continuing service status as a “supervisor” under Ala.Code 1975, §§ 16-24-1 and 16-24-2(a). He argues that the termination of his contract constituted a violation of his due process rights guaranteed under the Fourteenth Amendment to the United States Constitution. The defendants contend that a city school superintendent is not a “supervisor” within the meaning of § 16-24-1 and, thus, that Dr. Mitchell did not acquire continuing service status under § 16-24-2(a). They argue, instead, that Ala.Code 1975, § 16-12-1, determines Dr. Mitchell’s rights in this case.

Section 16-24-1 defines “teacher”:

“The term ‘teacher,’ as employed in this chapter, is deemed to mean and in-elude all persons regularly certified by the teacher certificating authority of the state of Alabama who may be employed as instructors, principals, or supervisors in the public elementary and high schools of the state of Alabama and persons employed as instructors, principals, or supervisors in the Alabama institute for deaf and blind, Alabama industrial school for boys, Alabama industrial school for girls, and Alabama industrial school at Mt. Meigs.”

Section 16-24-2(a) provides:

“Any teacher in the public schools who shall meet the following requirements shall attain continuing service status: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system the succeeding school year.”

As we noted in Ex parte Oden, and later in Ex parte Weaver, nowhere in the “Education” title of the Code does the legislature define “supervisor.” In construing the word “supervisor” in Ex parte Oden, at 666-67, we held that “the loose, general, and undefined use of the term [‘supervisor’] in the Code” required that a general definition of “supervisor” should apply, i.e., we held that the term “supervisor” should be defined as one who “coordinated, directs], and inspects] continuously and at firsthand the accomplishment of: [one who] oversee[s] with the powers of direction and decision the implementation of one’s own or another’s intentions: [one who] superintend[s].” We further held in Ex parte Oden that, for purposes of the teacher tenure law, this general definition fit the job description for Oden’s position of supervisor of transportation.

In Ex parte Weaver, this Court granted the writ of certiorari to review the holding of the Court of Civil Appeals that Weaver, a tenured teacher, had neglected her duty as a teacher by becoming the superintendent of the school system in which she had served as a teacher for more than 20 years, so that her employment contract as a teacher could be canceled. We reversed that holding. Although the result we reached in Ex parte Weaver was correct, we did not intend to hold that the legislature had extended the protections of the teacher tenure law to a superintendent of a school system, and such a holding was not necessary for a resolution of that case. We adhere to the view that if a teacher has served as an instructor and has attained continuing service status and thereafter is elected or appointed as a superintendent in the school system in which he or she has attained such status, then that teacher cannot be denied a job as an instructor on the sole ground that he or she had neglected his or her duty as an instructor by serving as superintendent of the school system. The opinion in Ex parte Weaver was overwritten and some of the dicta are wrong, misleading, and due to be overruled, especially this overly broad statement that appears on page 183:

“Based on the foregoing, we hold that the general definition of ‘teacher’ in § 16-24-1 ... includes a county superintendent of education.”

Neither Ex parte Oden nor Ex parte Weaver is authority for the position advocated by Dr. Mitchell in this case. To the contrary, Ala.Code 1975, §§ 16-23-1 (first enacted as part of the 1927 School Code, dealing with the certification of public school employees) and 16-25-1 (enacted September 15, 1939, dealing with the Teachers’ Retirement System), make an obvious distinction between a "superintendent” and a “supervisor”; and Ala.Code 1975, § 16-24-1, which was enacted September 21, 1939, within six days of the enactment of § 16-25-1, does not expressly include a school “superintendent” within the definition of “teacher” for the purposes of the tenure law. Contrary to the dicta in Ex parte Weaver at 181, the wording of these sections provides a clear indication that the legislature did not intend to include a school “superintendent” within the general definition of “supervisor” for purposes of the tenure law. Our conclusion in this regard is further supported by the legislature’s enactment of § 16-12-1, which deals specifically with the appointment, compensation, and removal of city school superintendents:

“The city board of education shall appoint a city superintendent of schools to hold office at the pleasure of the board. The city superintendent of schools shall receive such compensation as the city board of education shall direct. The city board of education may remove the city superintendent of schools for incompetency, immorality, misconduct in office, willful neglect of duty or when, in the opinion of the board, the best interests of the schools require it.”

This section and § 16-12-3, which declares that “[t]he city superintendent of schools shall be the chief executive officer of the city board of education,” indicate that the legislature intended for city school boards to have greater flexibility in choosing their respective superintendents than the law would allow if a city school superintendent could attain continuing service status under the teacher tenure law.

After carefully reviewing the briefs filed in this case, as well as §§ 16-12-1,16-12-3, 16-23-1, 16-24-1, and 16-25-1, we hold that Dr. Mitchell did not attain continuing service status and that his rights were limited by his contract with the board.

For the foregoing reasons, we answer certified questions No. 1 and No. 3 in the negative. Questions No. 2 and No. 4, thus, are moot.

QUESTIONS ANSWERED.

HORNSBY, C.J., and SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur.

ADAMS, J., dissents.

ADAMS, Justice

(dissenting).

I respectfully dissent. The majority holds that a city superintendent of schools is not a “supervisor” within the meaning given that term in the Teacher Tenure Act, Ala.Code 1975, §§ 16-24-1 to -38, and, consequently, cannot acquire continuing service status under that Act. In order to do so, it is necessary to overrule Ex parte Weaver, 559 So.2d 178 (Ala.1989), an opinion less than four years old. The majority, however, does not acknowledge this result, stating, instead, that it is merely editing “some of the dicta” in Weaver. Specifically, the majority states:

“The opinion in Ex parte Weaver was overwritten and some of the dicta are wrong, misleading, and due to be overruled, especially this overly broad statement that appears on page 183:
“ ‘Based on the foregoing, we hold that the general definition of “teacher” in § 16-24-1 ... includes a county superintendent of education.’ ”

(Emphasis added.) Not only does the majority mischaracterize an express holding as “dictum,” but ignores the fact that Weaver also contained an alternative holding — one, which, as the following remarks point out, bears an even greater significance to this case.

In Ex parte Oden, 495 So.2d 664 (Ala.1986), we considered whether a tenured principal had, by resigning his office to take a position as a supervisor of transportation, forfeited the incidents of tenure he had acquired in his former position. After discussing the conspicuous absence of a definition of the term “supervisor” in the “ ‘Education’ title of the Code,” id. at 666, we cited two definitions of that term. First, “to supervise,” we stated, is “ ‘to coordinate, direct, and inspect continuously and at first hand the accomplishment of: oversee with the powers of direction and decision the implementation of one’s own or another’s intentions: superintend.’ ” Id. (quoting Webster’s Third New International Dictionary (1971)). Second, we said, a “supervisor” is “ ‘one that supervises a person, group, department, organization, or operation: as ... an officer of a school system who assists and supervises teachers in curriculum planning and methods of instruction or in the teaching of a special subject (supervisor of music) (art supervisor).’ ” Id.

Finding “[njothing in the Code” to suggest “that the legislature used the term [‘supervisor’ in §§ 16-24-1 and -2] in the limited or technical sense of the example last quoted,” we reasoned that “the loose, general, and undefined use of the term in the Code require[d] that the general definition of ‘supervisor’ should apply” to the position of a supervisor of transportation. Ex parte Oden, 495 So.2d at 667. (Emphasis added.) Consequently, we held that the instructor who had acquired tenure pursuant to the “limited and technical” definition as a principal, did not forfeit the incidents of tenure by resigning that position and assuming another position as a transportation supervisor, which position was subject to the “general definition.”

Implicit in our holding was the suggestion that if the transportation position had fit the “limited or technical” definition of supervisor, Oden could have acquired the incidents of tenure by virtue of that position suo jure. This suggestion subsequently formed the basis of a holding in Ex parte Weaver.

In Weaver, we considered whether a tenured instructor had, by her election to, and service in, the position of county superintendent of education, forfeited the incidents of tenure acquired in her former position. As in Oden, we discussed the absence of a definition of the term “supervisor” in the “ ‘Education’ title of the Code,” Ex parte Weaver, 559 So.2d at 181, and, contrary to what the majority says today, held that Weaver was able to maintain her continuing service status while serving as county superintendent of education, because, in that position, she fit “the general definition of ‘supervisor.’ ” Id. at 182 (emphasis added).

More significantly, however, we expressly declared that our holding regarding the superintendent’s status did not rest solely on the conclusion that Weaver fit the general definition of supervisor, but, alternatively, on the determination that she fit the “ ‘limited and technical’ definition of ‘supervisor’ given in Oden.” Ex parte Weaver, 559 So.2d at 182 n. 1. In that connection, we stated:

“Chapter 9, entitled ‘County Superintendents of Education,’ § 16-9-1, provides a description of a superintendent’s duties:
“ ‘There shall be a county superintendent of education in each county of this state who shall act as the chief executive officer of the county board of education and who shall also be secretary of the county board of education. ...’
“Section 16-9-2(a) provides that the superintendent of education shall be ‘a person of recognized ability as a school administrator’ holding a ‘certificate in administration and supervision.’ (Emphasis added [in Weaver].)
“Among other duties, the superintendent of education must prepare for approval by the county board of education rules governing admission requirements to junior and senior high schools (§ 16-9-19); prescribe courses of study for the county schools (§ 16-9-21); prepare rules for the grading and standardization of the county schools (§ 16-9-22); and visit the schools, observe the management, and give suggestions for the improvement of the schools (§ 16-9-26).”

Ex parte Weaver, 559 So.2d at 182. This alternative holding effectively entitled a transferee fitting the “limited and technical” definition of “supervisor” to the incidents of tenure by virtue of employment in the position to which she transferred. Unlike the majority opinion in the present case, which characterizes the operative language of Weaver as “dicta,” the import of Weaver appears to have been fully comprehended by the defendants in the present case, who, in order to avoid the result the Weaver holdings obviously require in this case, urged us to overrule Weaver. The result in this case simply cannot be reconciled with Weaver by finetuning the language of that case. The inconsistency is basic and fundamental — a fact the majority opinion ignores.

When I concurred in Weaver, I both understood, and intended, the opinion’s obvious consequences, unlike the majority, which now states that “we did not intend to hold that the legislature had extended the protections of the teacher tenure law to a superintendent.” 603 So.2d at 1026. When I concurred in Weaver, I did not believe — as the majority states — “that the legislature intended for ... school boards to have greater flexibility in choosing their respective superintendents than the law would allow if a city school superintendent could attain continuing service status,” nor I am convinced of that proposition by the arguments in this case.

On the contrary, the overriding purpose of the Teacher Tenure Act was to “free” the affected personnel, “at least to a measurable extent, from the ‘vicissitudes of politics,’ ” Dickey v. McClammy, 452 So.2d 1315, 1317 (Ala.1984) (quoting Board of Educ. v. Baugh, 240 Ala. 391, 395, 199 So. 822, 825 (1941)); hence, the proviso in § 16-24-8 expressly prohibiting contract cancellation “for political or personal reasons” (emphasis added). Indeed, there is every reason to assume that the legislature intended to insulate those school officials whose decisions are most difficult and far-reaching, and, consequently, the most politically divisive, from the capricious “vicissitudes of politics.” To these high-level decision makers, the Teacher Tenure Act’s stated objectives apply with the greatest cogency. Because I believe that the majority fails to deal adequately and forthrightly with this Court’s holdings in Weaver and misperceives the intent of the legislature, I must respectfully dissent. 
      
      . Section 16-27-1, found in the chapter regulating "transportation of pupils,” provides in pertinent part:
      "The state board of education shall prescribe rules and regulations:
      "(1) Requiring all local boards of education which provide transportation services for pupils going to and from public elementary and secondary schools of Alabama ... to employ a competent supervisor or manager of such transportation services_”
      See Ex parte Oden, 495 So.2d at 666 (quoting § 16-21-1 and emphasizing the word “supervisor").
     