A fired Mobile police officer is asking the Alabama Court of Civil Appeals to reconsider a ruling it issued earlier this year, and the court’s response could impact how a number of local public entities handle disciplinary proceedings for their employees going forward.
Fred Lawley was terminated by the Mobile Police Department in 2015 after an internal trial board found he’d committed four “major violations” in the line of duty. It was later revealed Lawley had allegedly removed $2,050 in cash from a safe at a convenience store while responding to a burglary and later was deceptive about it during an MPD polygraph exam.
Lawley was later indicted by a Mobile County grand jury and charged with theft of property based on evidence turned over to local prosecutors. However, none of Lawley’s alleged criminal conduct has been a factor in the two-year legal battle that has ensued over his termination. Instead, the city of Mobile has been trying to prove it didn’t violate Lawley’s right to “due process” when the MPD terminated him two years ago.
The Mobile County Personnel Board (MCPB) overturned his termination last year after finding the MPD violated Lawley’s right to due process and MCPB protocols by preventing him from being present when testimony against him was given at a pre-disciplinary hearing.
An appeal to Mobile County Circuit Judge Jay York yielded the same result, and the MPD was ordered to reinstate Lawley to his former position with back pay. However, after an appeal filed by the city of Mobile, the Alabama Court of Civil Appeals overturned York’s decision in March.
At the center of the case has been exactly what “due process” means for a merit system employee in Mobile County. A rule passed by the MCPB requires entities to afford employees they wish to terminate or suspend “due process in the form of a pre-disciplinary hearing, at which time the employee must be given the opportunity to respond” to the officials making the decision about their employment.
The city has maintained employees aren’t entitled to anything more than exactly what’s written in the rule — a hearing, 24-hours’ notice of the charges against them and an opportunity to respond to those charges — even if the personnel board disagrees.
However, Lawley’s attorney, Ronnie L. Williams, has argued because the personnel board overturned the termination, and others like it, Lawley should have been permitted to sit in on the entirety of his pre-disciplinary hearing, not just his testimony before the MPD trial board.
“If the trial board or ‘board of inquiry’ is receiving testimony outside the presence of the employee, which means the appointing authority is in investigative mode, then exactly when did the employee receive notice of the final charges and the support for them?” Williams wrote.
Previous cases addressing the same issue have described pre-termination hearings like Lawley’s as an “initial check against mistaken decisions” and post-termination hearings, like he went through before the MCPB, as the time to address all of a public employee’s concerns.
However, MCPB’s 2016 decision to reinstate Lawley to his former job was based on the board’s understanding of its own rules. This meant the appeals court had to decide whether MCPB has the authority to interpret its own rules. Their answer was … mostly.
Judge William C. Thompson authored the court’s unanimous decision on March 17, and even though it acknowledged MCPB can enact rules that carry “the force and effect of law” and carries “the authority to interpret [them],” he also wrote that their authority has limitations.
“There is no language in Rule 14.3 requiring the [MPD] to allow the employee to be present at a pre-disciplinary hearing while other witnesses are being questioned,” he concluded. “The board goes beyond merely interpreting the rule and, instead, adds a requirement to the rule that is not suggested in the existing language.”
Only a month removed from a unanimous decision, the appeals court isn’t likely to reconsider Lawley’s case — leaving an appeal to the Alabama Supreme Court as the former officer’s only recourse. However, for the city, a victory could settle an issue that’s come up repeatedly.
In the past few years, MCPB has voted to overturn terminations for the same reason in appeals brought by former MPD employees Jeffrey Whitaker in 2015 and Cassandra Matthews in 2013.
While Lawley’s case won’t affect those individuals directly, it could impact appeals brought by merit system employees in Mobile County in the future by setting a precedent for the way pre-disciplinary hearings are required to be conducted.
Members of the city’s legal staff and officials with MPD declined to comment on any of those cases on the record. Lawley has previously declined to be interviewed about his own appeal.
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