Calhoun Community College v. Hudson

200 So. 3d 1175, 2015 Ala. Civ. App. LEXIS 264, 2015 WL 7356423
CourtCourt of Civil Appeals of Alabama
DecidedNovember 20, 2015
Docket2140858
StatusPublished
Cited by1 cases

This text of 200 So. 3d 1175 (Calhoun Community College v. Hudson) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calhoun Community College v. Hudson, 200 So. 3d 1175, 2015 Ala. Civ. App. LEXIS 264, 2015 WL 7356423 (Ala. Ct. App. 2015).

Opinion

THOMPSON, Presiding Judge.

Calhoun Community College (“Calhoun”) appeals from a decision of a hearing officer determining that Calhoun’s president, Dr. Marilyn Beck, improperly denied Timothy Hudson’s request for subpoenas in connection with a hearing in which Hudson challenged a proposed change in his status and salary at Calhoun. The hearing' officer determined that, in denying Hudson’s request to have certain subpoenas issued, Dr. Beck acted arbitrarily and capriciously and'“violated any semblance of due process.” The hearing officer then concluded that Hudson should retain his previous status and salary, overturning Dr. Beck’s decision approving the proposed changes. .

The record indicates the following. Before December 2013, Calhoun operated two parallel programs that served the inmates housed at the Limestone Correctional Facility (“thé prison”). One program was the adult-literacy program, which received state funding; the other was the adult-education program, which received federal funding. The federal money cannot be used to fund the adult-literacy program.

The Alabama State Board of Education had approved two salary schedules that are pertinent to this appeal. The D-l salary schedule (“the D-l schedule”), applied to all public two-year community- and technical-college counselors, librarians, and full-time instructors who were not adult-education instructors. Instructors in the adult-literacy program at issue were paid pursuant to the D-l schedule. Hudson was hired in 2007 to work as a full-time adult-literacy instructor; therefore, he was paid pursuant to the D-l schedule. The D-3 salary schedule (“the D-3 schedule”) applied to all full-time adult-education instructors at public two-year community and technical colleges. Based on the salary schedules, Hudson earned more money under the D-l schedule than he would have earned under the D-3 schedule.

In December 2013, Calhoun decided to end the adult-literacy program because it was duplicative of the adult-education program and because state funding did not cover Calhoun’s expenses for the programs it offered at the prison. Alicia Taylor, vice president for instruction and student success at Calhoun, testified that in the three academic years preceding Calhoun’s decision to close the adult-literacy program, there was an annual deficit of “a little less than $175,000.” Hudson was the only full-time instructor for the adult-literacy program, and Calhoun employed five part-time instructors for the adult-literacy program. Taylor said that, by ending the adult-literacy program, Calhoun would save approximately $130,000 annually.

With the closure of the adult-literacy program, the employment of the five part-time instructors was terminated. However, on August 25, 2014, Calhoun offered [1177]*1177Hudson the opportunity to transfer to a position as an instructor for the adult-education program. Taylor testified that Hudson’s lack of the required academic credentials limited the programs for which he was qualified to teach, but he was qualified to teach in the adult-education program. If Hudson did not accept the offer of the transfer, Taylor said, Calhoun’s only option would have been to terminate his employment as well.

As authorized under the Students First Act (“the SFA”), § 16-24C-1 et seq., Aa. Code 1975, Hudson requested a hearing on Calhoun’s intent to transfer. In a letter dated October 14, 2014, Calhoun notified Hudson that the hearing was scheduled for November 19, 2014. Athough the letter is not contained in the record on appeal, Hudson does not dispute that it stated that any requests for subpoenas should be made on or before November 7, 2014. It is further undisputed that Hudson did not request the issuance of any subpoenas by the deadline.

On November 17, 2014, two days before the hearing was to take place, Hudson’s attorney asked that the hearing be rescheduled because, she said, she had a scheduling conflict. The hearing was rescheduled for December 1,2014.

On November 21, Hudson, for the first time, requested that Dr. Beck issue a number of subpoenas. Calhoun moved to quash the subpoenas on the ground that Hudson’s request was untimely under the schedule Dr. Beck had established. On November 26, 2014, Dr. Beck granted Calhoun’s motion and refused to issue the requested subpoenas.

The hearing was held on December 1, 2014, as scheduled. Ater the hearing, Dr. Beck entered a decision allowing Hudson’s transfer to the adult-education program to go forward. Hudson appealed Dr. Beck’s decision to the hearing officer, who was selected in accordance with the SFA. On June 10, 2015,- the hearing officer reversed Dr. Beck’s decision, concluding that, in denying Hudson’s request to issue subpoenas, Dr. Beck had deprived Hudson of his right to due process. The hearing officer further concluded that Hudson should retain his status as an adult-literacy instructor (a position which no longer existed) and the higher salary accompanying that position. Calhoun appealed the hearing officer’s decision to this court, pursuant to the SFA. •

Calhoun contends that the hearing officer erred in reversing Dr. Beck’s decision allowing Calhoun to transfer Hudson to the adult-education program based on the hearing officer’s determination that Dr. Beck had erred in refusing to issue the subpoenas that Hudson requested. As part of this assertion, Calhoun states that Hudson failed to preserve for the hearing officer’s review the issue of whether Dr. Beck properly refused to issue the requested subpoenas. Specifically, Calhoun says that because Hudson failed to make a proffer of the evidence he expected his potential witnesses to provide, this issue was not preserved. However, our research has revealed no statute or caselaw requiring a party to make a proffer of anticipated evidence when seeking the issuance of a subpoena from a court or other tribunal. Calhoun cites two opinions- in support of its position, Thompson v. Patton, 6 So.3d 1129, 1138 (Ala.2008), and Gallant v. Gallant, 184 So.3d 387 (Ala.Civ.App.2014). Neither of those opinions, however, involves the refusal of a tribunal to issue a subpoena. Instead, the cited authority addresses whether an appellate court can reverse a trial court’s decision to exclude evidence if the party seeking to introduce the evidence fails to make an offer of proof as to what that evidence would be. Accordingly, Thompson and Gallant are not applicable.

[1178]*1178We turn now to. the merits of the issue regarding whether Dr. Beck properly refused to issue the requested subpoenas. We first note that § 16-24C-7(f), Ala.Code 1975, allows Hudson to challenge the involuntary transfer. That section provides:

“A tenured teacher or nonprobationary classified employee may be involuntarily transferred to another position that provides for a lower rate or amount of pay or a shorter term of employment, subject to the following terms-and conditions: The notice of proposed transfer and subsequent proceedings, except for use of the term transfer, shall conform and be subject to the' substantive and procedural standards and requirements that apply to termination of nonproba-tionary employees under Section 16-24C-6, [Ala.Code 1975,] and to appeals therefrom. No vote or decision on such transfers shall be made for political or personal reasons.

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Bluebook (online)
200 So. 3d 1175, 2015 Ala. Civ. App. LEXIS 264, 2015 WL 7356423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calhoun-community-college-v-hudson-alacivapp-2015.