Opinion
No. 2020003.
Decided March 21, 2003.
Appeal from Mobile Circuit Court (CV-01-2490).
The City of Mobile ("the City") and the Mobile County Personnel Board ("the Board") appeal from the Mobile Circuit Court's judgment reversing the Board's decision suspending, for disciplinary reasons, Howell Roe Robertson from the Mobile Police Department for three days without pay. We reverse the trial court's judgment.
Robertson has been employed with the Mobile Police Department since 1988; he was a corporal at the time of the incident that gave rise to this action, but he customarily "filled in" as a sergeant approximately two or three nights each week to accommodate the precinct's scheduling requirements. On New Year's Eve, December 31, 2000, random gunfire occurred in parts of the City, beginning at 11:30 p.m., becoming heaviest at midnight, and continuing throughout the night. Robertson and Lt. Glen Brannan, the supervising officer at the Fourth Precinct, overheard the gunfire from their posts at the police station. Near midnight, Robertson and Brannan stepped outside the precinct building to listen to the gunshots; based on the sound of the gunfire, they were able to recognize the various types of weapons being discharged. Both Robertson and Brannan retreated under a metal awning to avoid potential injuries from falling projectiles. Because of the number of weapons being discharged and the many locations from which the weapons were being fired, the officers agreed that it would be futile to investigate the gunshots.
Two days later, on January 2, 2001, Robertson, who was off duty and at home, was contacted by Richard Lake, a newspaper reporter, and asked to comment on the New Year's Eve celebration. Robertson agreed to talk to the reporter, but he made it clear to Lake that he was speaking to the press in his capacity as president of the police union. A two-page article entitled "Mobile Police Kept Busy by New Year's Eve Salvo," was published on January 3, 2001, in which Robertson was quoted as follows:
"It was like Beirut out there. We were out there, we took shelter. We went under a steel roof. We could hear weapons fire all around us. Automatic fire, handguns, .22 rifles. You can tell the sound. And I've been shot at before, so I know."
Because of Robertson's published remarks, the City charged him with violating Mobile Police Department General Order Number 54.1, entitled "Public Information"; it also charged him with intentionally violating the Mobile Police Department's Rules of Conduct. Sgt. Christian Dorsey of the internal affairs unit of the Mobile Police Department was assigned to investigate the accuracy of Robertson's statements. After conducting an investigation, Dorsey determined that Robertson's statements to the press were inaccurate because the situation had not been as dangerous as Robertson had described it. In fact, in the Fourth Precinct on that New Year's Eve, no dispatcher had been requested to send an officer to investigate a complaint of gunfire, and no officer had responded to any complaints of gunfire. Maj. Curley Rogers of the Mobile Police Department conducted a hearing on the charges against Robertson, and, after receiving the evidence, Rogers recommended that Robertson be suspended for one day without pay for making a misleading or inaccurate statement to the press. The City adopted Rogers's recommendation.
Robertson timely appealed his suspension to the Board for a de novo hearing. On May 22, 2001, a hearing was conducted. At the hearing, Sgt. Dorsey testified that General Order Number 54.1 — the police department's policy regarding disseminating police information to the public — provided that a selected departmental official called a "public-information officer" would monitor all information released to the press. The Board entered a judgment on June 5, 2001, that increased Robertson's suspension from one to three days. The Board found that Robertson had violated General Order Number 54.1 by releasing information to the public without clearing the information through the chief of police of the Mobile Police Department or the public-information officer. Robertson appealed the Board's judgment to the Mobile Circuit Court (hereinafter "the trial court").
The parties submitted trial briefs and argued their positions to the trial court; on August 30, 2002, the trial court entered a judgment in which it reversed the Board's decision and directed the City to remunerate Robertson for the three days it had suspended him. In its lengthy judgment, the trial court reasoned that the Mobile Police Department, in suspending Robertson from the force for violating General Order Number 54.1, had infringed upon Robertson's right to freedom of speech. The City and the Board appealed.
The City and the Board claim that the trial court erred to reversal by exceeding its jurisdiction in deciding the issues presented to it on First Amendment grounds. Act No. 248, § 22, Ala. Acts 1945, as amended, provides that the decision of a personnel board "shall be final subject to appeal by either party to the circuit court to review questions of law and the question of whether or not the decision or order of the board is supported by the substantial and legal evidence." Our supreme court held in Ex parte Averyt, 487 So.2d 912 (Ala. 1986), that a circuit court's review of an appeal from a personnel board is limited to a review of the record made before the board and the legal questions presented thereby. The supreme court further held that a personnel board's jurisdiction did not include constitutional issues, and it stated that the only manner of raising a constitutional challenge was by invoking the general jurisdiction of the circuit court by way of a collateral action.Id. at 914. The present case is an appeal from the Board's decision; no collateral action has been filed.
Act No. 248, § 22, Ala. Acts 1945, was amended by Act No. 679, Ala. Acts 1977, and by Act No. 684, Ala. Acts 1977.
Robertson argues that because the rule he is alleged to have violated explicitly guarantees his individual constitutional rights, principles of procedural due process allow the circuit court to exercise jurisdiction over his constitutional challenge even though he has not filed a collateral action. The language in General Order Number 54.1 Robertson relies upon states:
"Police-related incidents and their results are always matters of continuing public concern. This department is committed to establishing a cooperative climate in which the news media may obtain information on matters of public concern in a manner that does not hamper police operations or threaten individual constitutional rights."
The above-quoted language is vague and ambiguous concerning the constitutional rights it seeks to protect. It is unclear what or whose constitutional rights the order seeks not to "threaten." We hold that, regardless of the actual intended effect of the language of the order, the reference to individual constitutional rights does not serve to confer jurisdiction upon the circuit court to decide constitutional questions on appeal from a personnel-board decision absent a collateral action.
Robertson cites Ex parte Averyt, supra, and City of Homewood v. Caffee, 400 So.2d 375 (Ala. 1981), as exceptions to the collateral-action requirement for circuit-court review of a constitutional challenge to a personnel-board decision. He claims that, because the order he allegedly violated is expressly intertwined with the concept of individual constitutional rights, his appeal presents another such example. We are not persuaded by his argument. As this court stated in Turner v. Mobile County Personnel Board, 689 So.2d 168 (Ala.Civ.App. 1997):
"We would note that in both Averyt and Caffee, Averyt and Caffee had instituted separate and distinct collateral suits in the circuit courts."
Our supreme court in Averyt clarified the rule regarding a circuit court's jurisdiction, stating that the collateral action Averyt had filed was the only avenue by which Averyt could invoke the general jurisdiction of the circuit court and present his constitutional issues for determination. Ex parte Averyt, 487 So.2d at 914.
However, if a litigant's right to appeal is governed by the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala. Code 1975, which gives a reviewing court broader jurisdiction than it usually has in reviewing administrative decisions, the circuit court has jurisdiction to consider constitutional issues on appeal and the failure to appeal from a panel decision will result in a waiver of all claims. Ex parte Smith, 683 So.2d 431 (Ala. 1996).
In its judgment, reversing the Board's decision, the trial court addressed only the constitutional argument raised by Robertson. That issue, however, was not properly before the court. A circuit court's review in a case of this type is limited to the record made before a personnel board and to questions of law presented, and that court must affirm a personnel board's decision if the record contains substantial supporting evidence. Mobile v. Seals, 471 So.2d 431 (Ala.Civ.App. 1985). Therefore, we must reverse the trial court's judgment and remand the case for that court to determine whether the Board's findings were supported by substantial evidence. Id.
REVERSED AND REMANDED.
Yates, P.J., and Crawley, Pittman, and Murdock, JJ., concur.