
    Jamie JONES v. ALABAMA STATE TENURE COMMISSION.
    2010726.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2003.
    Rehearing Denied Feb. 28, 2003.
    Certiorari Denied June 27, 2003 Alabama Supreme Court 1020972.
    Henry H. Caddell of Thiry & Caddell, Mobile, for appellant.
    Bob Sherling of Campbell, Duke & Sherling, Mobile, for appellee.
   CRAWLEY, Judge.

Jamie Jones appeals from the trial court’s denial of her petition for a writ of mandamus, which left a decision of the State Tenure Commission, approving her transfer, undisturbed. We reverse and remand.

On May 21, 2001, Jones, a guidance counselor at Theodore High School, received a hand-delivered letter from the superintendent of the Mobile County Public School System (hereinafter referred to as “the school system”) giving her notice that she had been recommended for a transfer. The letter stated that the Board of School Commissioners (hereinafter referred to as “the school board”) had approved a proposed change in her assignment on May 17, 2001, and that she had 15 days to file a written demand for a hearing if she chose to contest her proposed transfer. On May 29, 2001, the school system received written notice that Jones wished to contest her proposed transfer.

On June 2, 2001, Jones received a letter from the school system stating that the school board would conduct a hearing on her proposed transfer on June 12, 2001. The letter set out the witnesses the school system expected to call at the hearing and attached documentation that was expected to be offered into evidence. On June 11, 2001, the day before the scheduled hearing, counsel for the school system sent a facsimile transmission to Jones’s counsel; that facsimile stated:

“As we discussed on Friday, Mrs. Jones’ transfer hearing is set for Tuesday, June 12, 2001, at 4:00 p.m. The reason for the proposed transfer is ‘other good and just causes.’
“At the hearing I expect to call as a witness, Dr. Harold Dodge to testify to his recommendation for the transfer and to the [school board’s] action on that recommendation. Also, Mr. Larry Henderson, principal at Theodore High School, is expected to testify that in his opinion [ (1) ] the school would function more smoothly and efficiently without Mrs. Jones; [ (2) ] that she is disruptive among the faculty; [ (3) ] that she does not get along well with her co-workers; [ (Jf) ] that he is aware of one occasion when she left the campus during school hours and purchased beer at a nearby drug store; and [(5) ] that it ivould be in the best interest of the faculty at Theodore if Mrs. Jones ivere to be transferred.”

On June 12, 2001, the school board conducted a hearing and accepted the school system’s recommendation that Jones be transferred.

On June 22, 2001, Jones filed a notice of appeal to the State Tenure Commission, pursuant to § 16-24-7, Ala.Code 1975. On August 30, 2001, after conducting a hearing on Jones’s appeal, the State Tenure Commission affirmed the school board’s decision. On September 19, 2001, Jones filed a petition for a writ of mandamus with the trial court. Jones set out the basis for her petition, in pertinent part, as follows:

“9. The Tenure Commission’s decision to sustain the [s]chool [b]oard’s decision to transfer [Jones] was unjust and was not in compliance with the Alabama State Tenure Law in the following respects. Section 16-24-7 of the Tenure Law provides that ‘the action of the State Tenure Commission ... shall be based on the record of the proceedings before the said board and the evidence as recorded at such hearing.’ The Tenure Commission ignored the evidence which reasonably and substantially established that the [s]chool [b]oard failed to carry its burden to produce evidence to support the alleged reasons for transferring Jamie Jones. Instead, the Commission rendered a decision against the preponderance and the overwhelming weight of the evidence....”

On March 4, 2002, the trial court entered an order denying Jones’s petition for a writ of mandamus; that order stated, in pertinent part:

“On January 4, 2002, the court heard oral argument by attorneys for [Jones] and [the State Tenure Commission] and has now reviewed briefs submitted by the parties, as well as the record of proceedings before the [school board] and its review by the State Tenure Commission. After careful consideration of the said records, the briefs and argument of counsel, the court finds that the action of the State Tenure Commission in reviewing the ordered transfer of petitioner was in compliance with the provisions of law, including specifically Chapter 24 of Title 16, Code of Alabama 1975, and that such action was not unjust.”

On April 15, 2002, Jones filed a notice of appeal to this court.

On appeal, Jones contends (1) that the school system failed to produce sufficient proof of the reasons it provided as grounds supporting her transfer, and (2) that the transfer should otherwise be rejected because, she says, (a) the school system’s position was based on hearsay evidence; (b) the transfer decision was based on political and personal reasons; and (c) the school board did not allow her to present testimony regarding the political and personal reasons for her transfer.

This court has stated the applicable standard of review as follows:

“Our scope of appellate review in a case such as this — an appeal from an order entered by the circuit court on appeal from an order by the State Tenure Commission — is the same as that of the circuit court. Alabama State Tenure Comm’n v. Conecuh County Bd. of Educ., 495 So.2d 1105 (Ala.Civ.App. 1985), cert. quashed, 495 So.2d 1108 (Ala.1986). The Commission’s decision will be upheld unless procedural requirements were not properly complied with or unless its decision is so contrary to the weight and preponderance of the evidence as to be unjust. County Bd. of Educ. of Shelby County v. Alabama State Tenure Comm’n, 892 So.2d 842 (Ala.Civ.App.1980), cert. denied, 392 So.2d 844 (Ala.1981).”

Coley v. Alabama State Tenure Comm’n, 766 So.2d 846, 847 (Ala.Civ.App.1999). Our supreme court has also observed:

“Because the Commission has the power to retry the case on the record and to reach its own conclusions of fact, Sumter County Bd. of Educ. v. Alabama State Tenure Comm’n, 352 So.2d 1133, 1135 (Ala.Civ.App.), aff'd as modified, 352 So.2d 1137 (Ala.1977), once the Commission makes a finding from the record, an appellate court must presume the Commission’s decision to be correct and overturn the decision only if it finds overwhelming evidence contrary to the decision.”

Ex parte Alabama State Tenure Comm’n, 595 So.2d 479, 481 (Ala.1991).

The specific ground provided by the school system as support for Jones’s transfer was “other good and just causes,” specifically including the school principal’s opinion that

“[ (1) ] the school would function more smoothly and efficiently without Mrs. Jones; [ (2) ] that she is disruptive among the faculty; [ (3) ] that she does not get along well with her co-workers; [ (4) ] that he is aware of one occasion when she left the campus during school hours and purchased beer at a nearby drug store; and [ (5) ] that it would be in the best interest of the faculty at Theodore if Mrs. Jones were to be transferred.”

During the hearing before the school board, Larry Henderson, the principal of Theodore High School, testified during his direct testimony, in pertinent part, as follows. Jeanie Curtis, also a guidance counselor, told him that she had observed Jones purchasing beer at a Rite Aid pharmacy during school hours. When Curtis observed her buying beer, Jones was signed out. When Curtis returned to the school’s campus, she reported what she had seen to Henderson. After he received this information, he asked for an investigation, and resource officers were assigned to investigate. After Curtis and Jones had returned to the school’s campus, Curtis also told him:

“Ms. Jones had came to her office, closed the door and told her that she didn’t know who she was messing with; that Ms. Jones said that she would get Ms. Curtis for it.”

He asked Curtis if she wanted to press charges against Jones, and she said that she did not.

Henderson had had no problems with Jones’s having confrontations with other faculty, and the school employees’ handbook did not prohibit Jones from leaving the school’s campus during school hours. While Henderson gave his opinion that he believed that Jones had an attitude problem that caused her working relationship with others to be less effective than it might otherwise be, he stated that no faculty member had complained to him about an inability to get along with Jones.

On cross-examination by Jones’s counsel, Henderson testified that Curtis had retired at the end of the school year, and he agreed that she and Jones would no longer be working together. He also stated that there was no policy against a faculty member’s purchasing- beer when the faculty member was signed out from the school during school hours. The school board inquired whether there was a policy against bringing alcohol onto the school’s campus; Henderson stated there was. However, counsel for Jones confirmed that Henderson had never contended that she had brought alcohol onto campus.

A former faculty member and a current faculty member of Theodore High School also testified at the hearing. Both testified that they had not witnessed any incidents between Jones and other faculty or heard her make threats to any other faculty. Both stated that she was not disruptive and that she was professional and friendly. Jones also testified that she did not think that she was disruptive.

In Tipton v. Board of Education of Blount County, 276 Ala. 571, 575, 165 So.2d 120, 124 (1964), our supreme court reversed a decision to cancel a teacher’s contract concluding that “some of the evidence was too remote, while the remainder was insufficient, both in law and fact, to justify the action that was taken; and that none of the charges were proven by reasonable and substantial testimony. The evidence was vague, general, inconclusive, flimsy, and much of it conclusions and hearsay.” After a review of the evidence presented at the hearing we conclude, mindful of the presumption in favor of the State Tenure Commission’s decision, that the evidence presented by the school system was similarly insufficient to justify Jones’s transfer.

Henderson’s testimony failed to sufficiently prove that the school would function more smoothly and efficiently without Jones; that she was disruptive among the faculty; that she did not get along well with her co-workers; or that it was in the best interest of the faculty at Theodore if she was transferred. His testimony was based in large part on a single, isolated incident based upon what was reported to him by Curtis, who was not present at the hearing, and who would not be counseling at the school the following year. He could not state that any other faculty members had complained about Jones or that Jones had had confrontations with other faculty. Two other faculty members testified at the hearing that Jones was professional and not disruptive. Further, the offered ground for the transfer — that Henderson knew that Jones had left the school’s campus to purchase beer after signing out— was not a violation of school policy.

Accordingly, we reverse the judgment of the trial court and remand the cause for the trial court to enter an order reversing the State Tenure Commission’s decision.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON, J., concur.

PITTMAN and MURDOCK, JJ., dissent.

PITTMAN, Judge,

dissenting.

By statute, the action of the State Tenure Commission in upholding Jamie Jones’s transfer by the Mobile County Board of School Commissioners is “final and conclusive” unless it is “unjust.” Ala. Code 1975, § 16-24-38. Although Jones was authorized to seek mandamus review in the circuit court of the decision of the State Tenure Commission, that review was “ ‘limited to two determinations, first, whether the Tenure Commission’s action was made in compliance with the provisions of the chapter, and second, whether th[at] action was unjust.’ ” Ex parte Alabama State Tenure Comm’n, 555 So.2d 1071, 1072 (Ala.1989) (quoting Sumter County Bd. of Educ. v. Alabama State Tenure Comm’n, 352 So.2d 1137, 1138 (Ala.1977)). As our Supreme Court has stated, “the decision of the Commission should not be reversed unless the overwhelming weight of the evidence dictates otherwise.” Ex parte Alabama State Tenure Comm’n, 555 So.2d at 1073 (emphasis added). That standard of review applies not only in the circuit court, but also in this court. See Alabama State Tenure Comm’n v. Singleton, 475 So.2d 185, 186 (Ala.Civ.App.1984).

As this court aptly noted in State Tenure Commission v. Pike County Board of Education, 349 So.2d 1173 (Ala.Civ.App. 1977), “[t]he statutory duty to administer and supervise the public schools in a county is charged to the county board of education,” and “[t]he setting of educational policy and the conduct and management of the schools is the responsibility of the county board of education.” 349 So.2d at 1175. Those responsibilities necessarily include personnel decisions, such as whether to retain a tenured teacher at a particular school or to transfer the teacher to another school where his or her employment would be more suitable. To that end, § 16-24-5, Ala.Code 1975, provides, in pertinent part, that any continuing-service teacher, “upon the recommendation of the superintendent and the approval of the employing board of education, may be transferred for any succeeding year from one ... school ... to another” by written notice.

There are but two statutory limitations upon a school board’s transfer authority set forth in § 16-24-5: (1) a transfer “shall be without loss of status or violation of contract,” and (2) a transfer “may not be for political or personal reasons ” (emphasis added). We note that the bar against transfers based upon personal or political reasons parallels that in § 16-24-8 pertaining to cancellation of employment contracts of tenured teachers. In 1973, our Supreme Court, in construing the statutory predecessors of § 16-24-5 and § 16-24-8 on certiorari review of a judgment of this court reviewing the cancellation of a tenured teacher’s contract, spoke at length to the meaning of “political” and “personal” reasons:

“We think the political reasons the Legislature had in mind ... were that no tenured teacher could be transferred or discharged on the ground that the teacher did not belong to the same political party that a majority of the board members belonged, or that the teacher had voted for a political opponent of the board, or that the teacher had or had not professed a political preference in any political race, or that the teacher had become a candidate for public office, or for any similar political activity we have not specifically mentioned. In short, the Board cannot indirectly punish a teacher for that teacher’s political activity or that teacher’s refraining from political activity.
“It is common knowledge that whenever anyone on the public payroll is involuntarily transferred to another job or discharged, or even when charges are preferred, the inevitable response is that the reason is ‘politics.’ And the claim of politics becomes more shrill when the hirer and firer is a body of elected officials and that body has to take its action by a majority vote.
“Under our statutes, no tenured teacher can be transferred or discharged without a majority vote of the Board of Education, and that holding cannot be affirmed or rejected by the Tenure Commission except by majority vote. But those mere facts do not make either body’s action political in the sense it is used in the statute.
“We think the word ‘personal’ as used in the tenure statute denotes a personal bias, prejudice, or antipathy on the part of one or more of the Board members toward the teacher; and when it influences a Board member’s vote when that member is exercising a quasi-judicial function in voting on a transfer or cancellation. Personal is in contrast with judicial; it characterizes an attitude of extrajudicial origin.
“The Court of Civil Appeals quoted at length from State v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689 [ (1949) ], to support its holding that a tenured teacher cannot have his contract cancelled by the Board if the Superintendent of Education has political or personal reasons for wanting the teacher’s contract cancelled, but no evidence is listed that the Board acted for those reasons. We do not think the Fairfield case so holds. In that case, the teacher sought to show that the Superintendent had a personal dislike for her and refused to let her take a test when he had permitted other teachers to take it at a subsequent date from the date originally set. The Superintendent also refused to answer questions which could have shown bias or prejudice against the teacher. This court held that the hearing ‘served the purpose of enabling the board of education to hear both sides of the case’ and that the teacher was enti-tied to have the Superintendent answer these questions. ‘His answers thereto could have materially affected the final decision of the board of education.’ (Emphasis supplied [in Marshall County Bd. of Educ.]) But the teacher was prevented from presenting evidence tending to show that the proceedings to cancel her contract, which was cancelled because of insubordination, were motivated by personal reasons. Certainly, she should have been permitted to show, if she could, the personal feeling of the Superintendent toward her. But unless she could show a carry-over of that dislike to the members of the board, she would not be able to attribute political or personal reasons to the board, the only people who could cancel her contract for insubordination.
“We cannot agree with petitioner that the words in the last clause of [what is now § 16-24-8], ‘but cancellation may not be made for political or personal reasons[,]’ are meaningless surplusage. We have tried to show that the Legislature put them there for a purpose, and they should be considered and applied, but ... they are not so dominantly important as to nullify all Board actions.
“We think the Legislature intended that no teacher should be transferred or have his contract cancelled if his transfer either was grounded exclusively or primarily on political or personal reasons.”

Marshall County Bd. of Educ. v. State Tenure Comm’n, 291 Ala. 281, 286-87, 280 So.2d 130, 133-35 (1973) (second emphasis added).

Although a school board’s discretion to transfer a continuing-service teacher or to cancel his or her contract is limited in both cases by the bar against “political or personal reasons,” it must be remembered that a transfer is not a permanent severance of employment. Unlike cancellation, which “is permissible only for specific offenses,” a transfer does not require a statutory cause; the Legislature, in enacting § 16-24-5, “intended to prohibit transfer of teachers for personal or political reasons of the transferring authority or arbitrarily without basis for exercise of administrative discretion.” DeCarlo v. Tarrant City Bd. of Educ., 52 Ala.App. 220, 223, 291 So.2d 155, 158 (Civ.App.1974).

The Board’s stated rationale for transferring Jones from Theodore High School was that she was disruptive among faculty members, she did not get along with her co-workers, and she left the school during school hours to purchase beer at a nearby drugstore. The evidentiary record made before the school board and transmitted to the Tenure Commission indicates that a Theodore High School faculty member, Jeanie Curtis, witnessed Jones as she made a purchase of two or three “packages” of beer at a drugstore eight blocks from Theodore High School, but then left the beer at the drugstore sales counter. According to Curtis’s written statement, when Jones became aware that Curtis had informed school administrators of the unusual circumstances of Jones’s beer purchase, Jones angrily confronted Curtis in Curtis’s office, saying “[y]ou need to understand that what I do during school time and afterwards is none of your business and you better stay out of mine! Don’t you ever include my name as part of your vocabulary again.” Jones also told Curtis “you can be assured I’ll get you long before you get me,” and repeatedly said “[i]f you’ve got a problem with what I do, I’ll meet you somewhere after school off campus!” After an investigation of the incident, the principal of Theodore High School recommended Jones’s transfer, stating that “[w]hile it is a practice to occasionally allow teachers to leave campus during their planning time,” he felt that Jones had abused the privilege by buying beer in the vicinity of the school during school hours.

Although the record reveals that Curtis no longer works at Theodore High School, Jones’s behavior toward Curtis evidenced by the documentary evidence before the school board and the State Tenure Commission could reasonably be said to be hostile and confrontational. The school board could properly have inferred that if Jones had threatened Curtis, she might do the same to another teacher in the future; the school board also could reasonably have concluded that Jones’s continued service at Theodore High School could ultimately damage relationships among members of its faculty. The school board’s decision to transfer Jones is not “subject to review as to its wisdom or necessity, but only as to whether it was made for personal or political reasons, or whether it was so unsupported in fact or reason as to be arbitrary and capricious.” Pike County Bd. of Educ., 349 So.2d at 1175.

The central question is this: bearing in mind the applicable standard of review, did the State Tenure Commission err in determining that the school board did not transfer Jones to another school based upon political, personal, or arbitrary and capricious reasons instead of the reasons given by the school board? Based upon the evidence I have set forth above, I cannot agree with the main opinion that the State Tenure Commission erred. I therefore respectfully dissent from the reversal of the trial court’s judgment upholding the decision of the State Tenure Commission. 
      
      . The letter also stated:
      “Your proposed reassignment and the reasons for the proposed transfer of assignment were provided to you in the First Notice, provided in accordance with Code of Ala. 1975, § 16-24-5 and hand-delivered to you. A copy of that notice is attached hereto and incorporated by reference. Reasons for the proposed transfer were provided in the earlier § 16-24-5 notice rather tilan delayed until now in an effort to provide you with as much information about the proposed transfer as possible, to enable you to make a more informed decision regarding the proposed reassignment.”
      However, a review of the “First Notice,” the hand-delivered letter Jones received on May 21, 2001, shows that no reasons were provided in that letter to support the proposed transfer.
     
      
      . Curtis had declined to testify and was not present at the hearing.
     
      
      . Henderson also stated other problems he had with Jones, such as tardiness and an inability to use time efficiently. However, these problems were not stated as grounds in support of the transfer and Jones's counsel objected to this testimony on that ground.
     
      
      . Administrative boards such as the school board and the State Tenure Commission "are not restricted to a consideration of evidence which would be legal in a court of law and may consider evidence of probative force even though it may be hearsay or otherwise illegal." Estes v. Board of Funeral Serv., 409 So.2d 803, 804 (Ala.1982).
     