Opinion
2190685
01-08-2021
EX PARTE JEFFERSON COUNTY (In re: Cleophert Warren v. Jefferson County)
Allison Nichols Gault, asst. county atty., Birmingham, for petitioner. Lauren Holt Shine of Shine Law Firm, LLC, Birmingham, for respondent.
Allison Nichols Gault, asst. county atty., Birmingham, for petitioner.
Lauren Holt Shine of Shine Law Firm, LLC, Birmingham, for respondent.
THOMPSON, Presiding Judge.
Jefferson County ("the county") seeks review of a judgment of a three-judge panel of the Jefferson Circuit Court ("the circuit court"), which reversed a decision of the Jefferson County Personnel Board ("the board") terminating the employment of Cleophert Warren and rendered a judgment in favor of Warren.
The record indicates the following. Warren worked as a juvenile-detention officer at the Jefferson County Youth Detention Center ("the detention center") when his employment was terminated on July 21, 2016, for initiating "inappropriate contact" on social media with the mother of one of the juvenile detainees. Specifically, the action taken against Warren was based on violations of the board's rules and regulations, including Rule 12.2(c), addressing conduct unbecoming a classified employee; Rule 12.2(g), addressing incompetence or inefficiency; and Rule 12.2(p), addressing any other legitimate and nondiscriminatory reason that constitutes good cause for disciplinary action, is reasonably specific, is consistent with the rules, and is not motivated by any non-work-related preference or animus for or against any person. Warren received notice of the disciplinary action on July 21, 2016, and filed a timely appeal of that decision with the board on July 22, 2016. His attorney filed an amended appeal with the board on July 28, 2016.
An evidentiary hearing to consider Warren's appeal was held before a hearing officer on June 27, 2017. The county's primary evidence against Warren were printouts of a social-media conversation between someone identified as Warren and J.H., a detention-center resident's mother. The conversation reads:
"[Warren]: Hey I thought I recognized you, you can [sic] to my work yesterday.
"[J.H.]: Your work?
"[Warren]: Yeah. I'm a officer at the Youth Detention Center I saw you yesterday.
"[J.H.]: Oh ok.
"[Warren]: Do you remember? That's why I kept looking at you, Facebook kept suggesting you to me.
"[J.H.]: In between two doors?
"[Warren]: Yeah, that was me. When are you coming back up here?
"[J.H.]: Tomorrow.
"[Warren]: Ok, I won't be here. Who's your son?
"[J.H.]: [K.]
"[Warren]: [D.]?
"[J.H.]: Yes
"[Warren]: Oh sh** lol, he's in my unit.
"[J.H.]: I hope he's behaving.
"[Warren]: He's cool as f***.
"[J.H.]: He's a good kid just has a smart mouth sometimes.
"[Warren]: He's always cool with me. I wanted to holla at you yesterday, but I don't like people in my business. You single?
"[J.H.]: No I'm not single.
"[Warren]: Smh .... F***! ! ! ! LOL
"[J.H.]: Lol
"[Warren]: I'm digging you tho, you sexy af ... even though you was looking a lil rough yesterday lol. So is he your only kid?
"[J.H.]: No.
"[Warren]: How many do you have?
"[J.H.]: 3
"[Warren]: Me too, ps .... I won't tell your son we talking on FB, so don't mention it, cool?
"[J.H.]: Ok
"[Warren]: So where you from? And what do you do for a living?"
An audio recording of an interview between J.H. and Katrina Andrews, the interim director of the detention center, and Cornelius Washington, a supervisor at the detention center, was also presented during the hearing. J.H. could not be called as a witness at the hearing because she was killed in an automobile accident between the time of the events made the basis of the termination of Warren's employment and the hearing. Warren objected to the introduction of the audio recording on the ground that, because she was unavailable, J.H. could not be cross-examined. The hearing officer permitted the playing of the audio recording during the hearing.
Although the record indicates that the audio recording was included as an exhibit before the hearing officer and in the circuit court, it was not included in the record before this court. In his findings of fact, the hearing officer, Michael A. Anderson, stated that, during the interview, J.H., who was not giving sworn testimony during the interview, said that she received unsolicited contact from Warren through the social-media Web site Facebook.
Mark Schofield, a juvenile-detention officer at the detention facility, testified at the hearing. He also provided a written statement as part of his job duties. Schofield testified that, on July 7, 2016, after J.H. had visited her son ("the resident") at the detention center, the resident was returning from that visit and appeared to be upset. Schofield said that he had a conversation with the resident, who told him he was angry because his mother had told the resident about messages Warren had sent to her on Facebook that were "personal and inappropriate." At the hearing, Schofield testified that the resident told him he believed that Warren was attempting to "get a date or hook up" with J.H. Schofield said that the resident told him that Warren and J.H. did not know each other. Schofield said that the resident explained to him that, earlier that week, Warren had woken up the resident to ask him his mother's name and how to spell it. According to Schofield, the resident said that he believed that Warren had used the information to contact J.H. and the resident felt guilty about having provided the information to Warren.
Warren told the hearing officer that he never sent a message to J.H. via Facebook or any other means. He said that if he had wanted to know the name of the resident's mother, he would have checked the "data sheets" at the detention center. Additionally, Warren said, the photograph associated with his purported Facebook account from which the messages to J.H. were sent was a 2010 mug shot of him, and he did not have access to that mug shot. He also pointed out that anyone could create a Facebook account, suggesting that someone else had created the account from which the messages were sent to J.H. Warren also said that a youth who was close to the resident had taken Warren's cell phone before the incident and that the cell phone was found in that youth's mattress. By having access to his cell phone, Warren said, the youth could have learned personal information about Warren and shared that information with others.
Cornelius Washington, a shift supervisor at the detention center who conducted the investigation into the communications sent to J.H., testified that he saw the communications on J.H.'s cell phone. Washington conceded that, during that investigation, he did not look at or inspect Warren's cell phone to see whether the communications were sent from that device. He also said that the Facebook page from which the communications originated was not reviewed in any way. The communications as they appeared on J.H.'s cell phone and the printouts from that phone were the basis for the claims against Warren. In his decision, the hearing officer stated that, based on the totality of the circumstances and facts, he believed that Warren had in fact made the communications with J.H. and that those communications were improper. The hearing officer opined that, had someone other than Warren sent the communications in an effort to have Warren blamed, "it seems quite logical that far more offensive statements and overtures would have been used to achieve this goal with greater certainty in the outcome." The hearing officer concluded that Warren's conduct amounted to a breach of public trust and "would certainly have placed [J.H.] in a position where she felt that if she did not entertain or ‘give in’ to advances by Warren" her son, "under Warren's authority, could suffer consequences." The hearing officer sustained the charges of conduct unbecoming a classified employee and of any other legitimate and nondiscriminatory reason that constituted good cause for disciplinary action against Warren. However, the hearing officer did not sustain the charge of incompetence or inefficiency. Based on his findings and conclusions, the hearing officer recommended that the termination of Warren's employment be sustained, and the board followed that recommendation.
Warren appealed the decision of the board to the circuit court, as permitted pursuant to § 22 of Act No. 248, Ala. Acts 1945, as amended. In addition to reviewing the record created before the hearing officer, the circuit court heard the arguments of the parties. We note that, initially, the county was not a party to the appeal to the circuit court; instead, the parties were Warren and the board.
See Act No. 562, Ala. Acts 1947, Act No. 927, Ala. Acts 1953, and Act No. 679 and Act No. 684, Ala. Acts 1977.
The circuit court entered an order on January 14, 2019, setting forth a summary of facts that included information not set forth in the hearing officer's factual findings and emphasizing different evidence. The circuit court found that Warren had never met J.H. before July 5, 2016, when she came to visit the resident. The circuit court stated that the board "contend[ed]" that Warren had "observed [J.H.] through glass doors in the hallway and decided he wanted to contact her. So, since Warren observed [J.H.] talk to one of the males he was supervising, he assumed it was her son, then asked the boy questions to get information about his mother."
The record indicates that there were numerous continuances between the time Warren appealed to the circuit court on August 17, 2017, and the time the circuit court heard the matter on December 13, 2018. During that time, two of the three members of the three-judge panel were replaced.
In its summary of the facts, the circuit court also recounted Warren's testimony that the photograph used to create the Facebook page from which the inappropriate communications originated was his mug shot from 2010 but that Warren had questioned how anyone could have obtained that photograph because it was a law-enforcement record. The circuit court stated that Warren had testified that anyone could create a Facebook account and that it takes only minutes to do so on a cell phone.
The circuit court then found:
"Prior to [J.H.]'s visit to the detention center, Warren's cell phone was wrongfully taken by the cousin of [J.H.]'s son who was also a youth resident at the same time as [J.H.]'s son. The young man slit the mattress he slept on and stuck the phone up in the mattress to hide it. Warren's personal information was on his phone and could have been easily sent to third parties. Finally, Warren contends that nobody ever requested or made an effort to research his cellular phone to determine if the messages came from his device or
looked at the email associated with the Facebook account that sent the messages to [J.H.]."
In its conclusions, the circuit court determined that, as a matter of law, the recording of the interview Andrews and Washington conducted with J.H. was not substantial legal evidence. The circuit court noted that J.H. was not under oath during the interview and that the recording did not begin as soon as the interview began. The circuit court stated that it was not clear how long J.H. spoke and what she said before Andrews began recording. The circuit court stated: "Generally, if one offers into evidence a recorded statement, it is the entire statement." The circuit court also pointed out that Warren's attorney had no way to cross-examine J.H., adding: "Cross-examination is important in any proceeding, and all the more so against an opponent's most important witness." Accordingly, the circuit court concluded, the recording of J.H.'s statement to Andrews and Washington was due to be stricken. Because J.H. was the sole source of the Facebook communications, the circuit court added, those communications were struck as well. The circuit court did not elaborate on that determination. The remaining evidence against Warren, the circuit court found, was not substantial legal evidence sufficient to sustain the termination of Warren's employment. "Simply put," the circuit court wrote, "no individual who testified could link Warren to the conduct he was charged [sic], other than by speculation and hearsay."
Based on its conclusions, the circuit court reversed the decision of the board and rendered a decision in favor of Warren. The circuit court remanded the matter to the board for the sole purpose of taking the actions necessary to reinstate Warren, if he desired, and to pay him the wages to which he would have been entitled "had he not been wrongfully terminated."
The board filed a motion to alter, amend, or vacate the order. The county then filed a motion to intervene. Litigation continued, and on December 20, 2019, the circuit court entered an order stating that the January 14, 2019, order was not a final judgment because the issue of backpay had not been determined. Therefore, the circuit court said, the board's motion to alter, amend, or vacate was premature, as was the county's motion to intervene, "as said motion seeks to join the [board's] motion to alter, amend, or vacate." However, the order continued, the county was permitted to intervene "for the limited purpose of determining the amount of lost wages" for Warren. The order also directed that Warren was to be reinstated on January 21, 2020. We observe that, on September 10, 2019, the presiding judge of the circuit court entered an order clarifying the status of this matter and stated that the circuit court would consider the board's motion to alter, amend, or vacate once a final judgment was entered.
On January 21, 2020, the county filed another motion to intervene so that it could move the circuit court to stay the reinstatement of Warren. In that motion, the county stated that it included and incorporated by reference the arguments made in support of its previous motion to intervene.
On January 29, 2020, the circuit court granted the county's motion to intervene and ordered the parties to file by February 14, 2020, a joint status report including a calculation of the amount of backpay owed to Warren, after which, the circuit court said, it would enter the appropriate orders. On May 28, 2020, the circuit court entered a final judgment in this matter awarding Warren $20,668 in backpay. The "defendant" was also ordered to pay Warren's attorney a fee of $5,040.
On June 10, 2020, the board filed a timely motion to alter, amend, or vacate. The county did not join in that motion, and it did not file its own postjudgment motion. Also on June 10, 2020, the county filed a notice of appeal to this court. The 42–day period for filing a notice of appeal began to run on September 8, 2020, the date that the last viable postjudgment motion, i.e., the board's postjudgment motion, was denied by operation of law. See Spina v. Causey, 403 So. 2d 199, 201 (Ala. 1981) ; see also Landers v. Landers, 812 So. 2d 1212, 1215 (Ala. Civ. App. 2001). That motion was denied by operation of law on September 8, 2020 – after the county had already filed its initial brief to this court. The board then had 42 days – until October 20, 2020, in which to seek review of the circuit court's judgment. This court asked the parties to submit letter briefs regarding the procedural posture of this matter and whether the board was seeking review of the circuit court's judgment. The board responded that its postjudgment motion had been denied by operation of law and that it was taking no further action in this matter. Thus, this court now considers the county's appeal.
We first consider Warren's assertion that the county's appeal of the board's decision to this court is improper. Specifically, Warren argues that an appeal of a final order of a three-judge panel of the circuit court to this court is impermissible under the board's enabling act, which addresses, among other things, appeals from decisions of the board.
"Section 22 of [Act No. 248, Ala. Acts 1945, as amended,] provides that in appeals to the circuit court from adverse rulings of the Board, ‘there shall be no appeal to any appellate court of Alabama.’ " Ex parte Chambers, 137 So. 3d 912, 915 (Ala. Civ. App. 2013). " ‘ "[T]he proper method of reviewing circuit court decisions involving appeals from the Jefferson County Personnel Board is by common-law petition for writ of certiorari." ’ " Ex parte Jefferson Cnty. Sheriff's Dep't, 13 So. 3d 993, 995 (Ala. Civ. App. 2009) (quoting Ex parte City of Birmingham, 992 So. 2d 30, 32 (Ala. Civ. App. 2008), quoting in turn Ex parte Personnel Bd. of Jefferson Cnty., 513 So. 2d 1029, 1031 (Ala. Civ. App. 1987) ). This court is the proper forum for such a petition pursuant to § 12–3–10 and -11, Ala. Code 1975. See, e.g., Ex parte Dixon, 841 So. 2d 1273, 1277 (Ala. Civ. App. 2002) ; Ex parte Smith, 394 So. 2d 45, 47 (Ala. Civ. App. 1981) (holding that Court of Civil Appeals has jurisdiction over petitions for a writ of certiorari involving the orders of the board, which is an administrative agency).
Although the county filed a notice of appeal from the circuit court's decision, we will treat that appeal as a petition for the common-law writ of certiorari just as we have in previous cases. See City of Birmingham v. Jefferson Cnty. Pers. Bd., 468 So. 2d 181 (Ala. Civ. App. 1985) ; Holloway v. Personnel Bd. of Jefferson Cnty., 528 So. 2d 341, 342 (Ala. Civ. App. 1988). Furthermore,
Warren did not challenge the timeliness of the county's motion to intervene. Warren does not make any argument to this court regarding the effect, if any, the county's status as an intervenor for the limited purposes of determining the amount of lost wages Warren incurred or for seeking a stay of the order reinstating Warren has on the county's ability to challenge evidentiary decisions the circuit court made that are unrelated to those limited purposes. Because the parameters of the county's appearance in this case have not been made an issue, we will consider the issues it has raised to this court.
"[a]lthough petitions for extraordinary writs directed to circuit courts, such as
petitions for the writ of certiorari, are ordinarily governed by Rule 21, Ala. R. App. P., this court treats cases such as this one, in which review by this court has been sought of judgments of the Jefferson Circuit Court reviewing decisions of the Board, as appeals for purposes of preparing records and briefs, and the nature of this court's prior judgments in such cases reflects that treatment (i.e., we ‘affirm’ or ‘reverse’ the circuit court's judgment in such cases rather than ‘grant’ or ‘deny’ a petition for, or issue, a writ of certiorari). E.g., Ex parte City of Birmingham, 870 So. 2d 742, 747 (Ala. Civ. App. 2003). Our disposition in this case reflects our adherence to that custom."
Ex parte Chambers, 137 So. 3d at 916 n. 6.
The county asserts that substantial and legal evidence supported the board's decision to terminate the employment of Warren and that, therefore, the circuit court erred in not affirming the board's decision.
"When conducting certiorari review of a decision of a circuit court panel under § 22 of the Board's enabling act, this court has stated the standard of review as follows:
" ‘ "Under the appropriate standard of review for cases before this court on certiorari, this court is limited to a review of whether the circuit court properly applied the law and whether the decision is supported by any legal evidence." Ex parte Jackson, 733 So. 2d [456,] 457 [(Ala. Civ. App. 1999)]. Our supreme court has also held that in addition to the foregoing, the trial court must review the record to ensure that there had been no violation of a party's fundamental rights. Evans v. City of Huntsville, [580 So. 2d 1323 (Ala. 1991) ]. The scope of appellate review of administrative actions is narrow; therefore, "[t]he determination of the weight and credibility of the evidence presented is solely within the province of the Board." Ex parte Personnel Bd. of Jefferson County, 440 So. 2d [1106,] 1109 [(Ala. Civ. App. 1983)].’
" Ex parte Dixon, 841 So. 2d 1273, 1278 (Ala. Civ. App. 2002). See also Ex parte Jackson, 733 So. 2d 456, 457–58 (Ala. Civ. App. 1999) ; Ex parte Cooper Green Hosp., 519 So. 2d 1352, 1353 (Ala. Civ. App. 1987) ; and Ex parte Smith, 394 So. 2d 45, 48 (Ala. Civ. App. 1981). Additionally, this court has stated:
" ‘The Personnel Board acts as the trier of facts and has the duty to reach a determination regarding conflicting testimony. City of Mobile v. Mills, 500 So. 2d 20 (Ala. Civ. App. 1986). When the Board utilizes a hearing officer, his finding of facts is presumed to be correct. Coleman v. Alabama Alcoholic Beverage Control Board, 465 So. 2d 1158 (Ala. Civ. App. 1985).’
" Ex parte Cooper Green Hosp., 519 So. 2d at 1353."
Ex parte City of Birmingham, 7 So. 3d 363, 367–68 (Ala. Civ. App. 2008).
The county's primary contention is that the circuit court erred in determining that the audio recording of the interview with J.H. did not constitute substantial legal evidence because, it found, J.H. had not been placed under oath, the recording began after J.H. had begun talking, and Warren's attorney had no way to cross-examine J.H. As noted earlier, the circuit court struck the audio recording for those reasons. It then concluded that, because J.H. was the "sole source" of the Facebook communications, those communications were due to be stricken as well. The county contends that the audio recording was admissible under an exception to the general rule precluding hearsay, pursuant to Rule 804(a)(4), Ala. R. Evid., because J.H. was deceased at the time of the hearing. Additionally, the county asserts that the recording was admissible because it was not offered solely for the truth of the matter asserted but "to provide context as to what precipitated the underlying allegations against Warren, to show that the complaint against Warren was, in fact, made by [J.H.], and for the benefit of hearing [J.H.'s] complaint in her own words."
As mentioned, a copy of the audio recording is not included in the record before this court, and this court has been unable to obtain a copy despite efforts to do so. Accordingly, this court holds that, because we cannot hear the actual content of the audio recording of the interview with J.H., we cannot conduct a meaningful review of the propriety of the circuit court's decision to strike the recording.
" ‘It is the appellant's duty to check the record and to ensure that a complete record is presented on appeal. Tarver v. State, 940 So. 2d 312, 316 (Ala. Crim. App. 2004).’ Alabama Dep't of Pub. Safety v. Barbour, 5 So. 3d 601, 606 n. 1 (Ala. Civ. App. 2008). ‘An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal.’ Martin v. Martin, 656 So. 2d 846, 848 (Ala. Civ. App. 1995)."
Brady v. State Pilotage Comm'n, 208 So. 3d 1136, 1141 (Ala. Civ. App. 2015). Accordingly, we cannot say that the circuit court erred in striking the audio recording of the interview with J.H.
The county also challenges the circuit court's decision to strike from the record the Facebook communications that served as the basis for the action taken against Warren, asserting that J.H. was not the sole source of those communications. As mentioned, in the judgment, the circuit court first struck the audio recording, then wrote: "As such, since [J.H.] is the source of the Facebook communications, they are due to be struck as well."
"It is an established rule of evidence that, to admit any document into evidence over objection, the party offering the evidence must show that the document is genuine or authentic." Hampton v. Bruno's, Inc., 646 So. 2d 597, 599 (Ala. 1994). Rule 901(a), Ala. R. Evid., provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Authentication may be established by testimony from a witness with knowledge "that a matter is what it is claimed to be." Rule 901(b)(1).
The Facebook communications that the circuit court struck formed the basis of the board's decision to terminate Warren's employment. However, Warren denied having sent the communications. The evidence is undisputed that Warren's cell phone, from which the communications apparently originated, had been taken and hidden in the mattress of a youth being held in the detention facility who was a relative of the resident. The photograph of Warren on the Facebook page from which the communications originated was a mug shot taken of Warren about ten years earlier. Washington, the shift supervisor who investigated the incident, testified that he did not look at Warren's cell phone to determine whether that device had been used to send the communications. Thus, no witness could provide proof that the printouts at issue were actually Facebook communications that Warren had sent to J.H., as required for their admissibility. Rule 901(a). As the circuit court found, "no individual who testified could link Warren to the conduct he was charged [sic], other than by speculation and hearsay."
Although it is true that Alabama's appellate courts have consistently held that the board is not bound by the technical rules of evidence, see, e.g., Ex parte Morris, 263 Ala. 664, 666-68, 83 So. 2d 717, 719-20 (1955) ; and Ex parte City of Birmingham, 870 So. 2d 742, 746–47 (Ala. Civ. App. 2003), in North Alabama Motor Express, Inc. v. Rookis, 244 Ala. 137, 140, 12 So. 2d 183, 186, (1943) (quoting 42 Am. Jur. 652 et seq., § 128), cited in Morris, our supreme court offered this caveat: " ‘There must be some evidence which is competent and legal, as treated by the usual rules for the producing evidence in any legal proceeding to sustain the finding. If founded only on hearsay or other improper evidence, the decision will not be sustained.’ " (Emphasis added.) As the circuit court found, because the only link between Warren and the Facebook communications was based on hearsay and speculation, we conclude that that court correctly determined that the board's decision to uphold the termination of Warren's employment was not supported by legal evidence.
The county also argues that the circuit court erred in awarding Warren an attorney fee.
" ‘[I]t is well settled that " ‘Alabama follows the "American rule." ’ " ’ Jones v. Regions Bank, 25 So. 3d 427, 441 (Ala. 2009) (quoting City of Bessemer v. McClain, 957 So. 2d 1061, 1078 (Ala.2006), quoting in turn Battle v. City of Birmingham, 656 So. 2d 344, 347 (Ala. 1995) ). The American rule generally provides that a prevailing party in litigation is not entitled to an award of attorney fees unless those fees are provided for by statute or by contract or if they are otherwise justified for certain equitable reasons. Classroomdirect.com, LLC v. Draphix, LLC, 992 So. 2d 692, 710 (Ala. 2008)."
Guardian Builders, LLC v. Uselton, 154 So. 3d 964, 970 (Ala. 2014) ; see also Keeling v. Keeling, 145 So. 3d 763, 771 (Ala. Civ. App. 2014).
In his appellate brief, Warren states that § 22 of the board's enabling act provides that "attorney's fees ‘shall be taxed against the unsuccessful party.’ " The county asserts that the enabling act does not provide for an award of an attorney fee. Section 22 states: "The cost of said appeal [to the circuit court] shall be taxed against the unsuccessful party." (Emphasis added.) Costs are not synonymous with attorney fees.
"[C]ourt costs are distinguishable from attorney fees. See White Springs Agric. Chems., Inc. v. Glawson Invs. Corp., 660 F. 3d 1277, 1282 (11th Cir. 2011) (recognizing that a general demand for costs does not encompass a request for attorney fees). The American rule applied in Alabama generally prohibits a losing party from being ordered to pay the attorney fees incurred by the prevailing party, but the American rule does not prohibit an award of court costs to the prevailing party. In practice, such awards are commonplace and specifically authorized by Rule 54(d), Ala. R. Civ. P., which provides that, ‘[e]xcept when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.’ "
Guardian Builders, LLC, 154 So. 3d at 973.
Because no contract or statute authorizes an award of an attorney fee to Warren, we agree with the county that the circuit court erred in ordering it to pay such a fee. Therefore, that portion of the circuit court's judgment awarding Warren an attorney fee is reversed.
For the reasons set forth above, that portion of the judgment of the circuit court awarding Warren an attorney fee is reversed. The remainder of the judgment is affirmed. The cause is remanded to the circuit court for the entry of a judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Moore, Donaldson, Edwards, and Hanson, JJ., concur.