Judge Threatens to Involve Presidents in Suit

On the same day that Roy Johnson pleaded guilty to 15 counts involving bribery, conspiracy, money laundering, witness tampering, obstruction and fraud related to his tenure as chancellor of the 2-year college system, Judge Johnny Hardwick in a separate case ordered the Alabama Board of Education to continue use of a practice allowing legislators to use flex-time to serve in the legislature.

Helen Hammons gives Parlor readers a first-hand account of the proceedings in Hardwick’s courtroom.

---

The ongoing war over whether or not legislators will be allowed to continue to work for the two-year college system and in the Legislature at the same time had another skirmish in Montgomery County Circuit Court on Monday when attorneys for legislators Blaine Galliher, Terry Spicer, Laura Hall and other plaintiffs and attorneys for Governor Bob Riley, Chancellor Bradley Byrne and the state Board of Education locked horns with each other.

Circuit Judge Johnny Hardwick gave both sides a hard time and even threatened to bring the college presidents into the suit during a heated exchange with defense lawyer Stephen Fitts about unpaid leave requests supposedly submitted to college presidents.

In the end, Hardwick issued a verbal order enjoining the chancellor and the Board from implementing the flextime policy temporarily until he could rule further on the merits of the case. Although at one point he told attorneys it didn’t matter much what he did, he knew this was going beyond his courtroom. Hardwick said he just didn’t want higher courts sending anything back to him saying there wasn’t a good evidentiary record.

Hardwick at one point seemed to leave little doubt he would enter a more permanent injunction, good until the case is concluded at whatever level.

“I am entering, make no mistake about it, a preliminary injunction, enjoining this new, well I don’t know that it’s new so I don’t want to use that phrase, 609.04 and preserving what I understand was the policy prior to that. Then we’ll get to all this other stuff separate from that….I do know that I’m going to preserve the status quo. I advised you guys to do that and for whatever reason you advised your clients not to do it.”

“I will still give you an opportunity to get your clients on their own to preserve the status quo without me entering a preliminary injunction. I really don’t like enjoining state officials, but, if I have to, I will. I always try to invite them, so that’s up to you all.”

In all likelihood, the judge will issue a written order after proposed orders are submitted.

What is the Status Quo?

There was a lot of debate over what the status quo was previous to the implementation of the Board’s new policies. Hardwick issued his temporary verbal injunction Monday based on what he considered the practice of the system had been, despite the fact there was no written Board policy on the flextime issue before the current policy. The judge reverted to a November 2002 memo by then-chancellor Roy Johnson.

“I’m holding a policy that says ‘This policy has been discussed with the state Board and each college should adopt policies to adhere to this policy.’ Now does it say anything in here where the Board adopted this?” asked Hardwick.

Plaintiff’s lawyer Bobby Segall: No sir. No sir. But what the evidence is, is that before that letter and memo in 2002 and afterwards, up until the time of the adoption of these [current] policies, as a matter of practice and as a matter of that statement from the Chancellor on a continuing basis legislators were working flextime during the session and this is more evidence of that judge.”

Judge Hardwick: “So this was not a policy?”

Segall: “I think it’s a policy and a practice.”

Hardwick: “There can’t be a policy until the Board does something .”

Defense Lawyer Stephen Fitts “Your Honor, it’s not a Board policy.”

Segall: “It was the policy in postsecondary education.”

Hardwick: “Do y’all concede that?”

Fitts : “It’s a memorandum from the chancellor to the college presidents. It looks to me like it asks them to adopt policies.”

Hardwick: “It says should adopt, it didn’t say may adopt.”

Segall: “And judge they all approved flextime. Every one of them approved flextime so that would be pretty good evidence.

Hardwick: “Now this is pretty much the same as what they’re doing now. What’s the difference?”

Segall: “The difference is that you cannot now use flextime at all, period, to attend to your legislative duties or any other activities during what they call normal work hours, even though they don’t define what normal work hours are. So the effect now is there is no flextime. And here’s another judge, exhibit 2 to the stipulation. They say there was no policy. Well here is Chancellor Byrne purporting to maintain the status quo while these policies were subject to preclearance.”

“And he says after they’ve used up their leave time they can work flextime. Now why would he say that if there was no board policy in existence prior to that. I know Chancellor Byrne wouldn’t do something contrary to a Board policy. And here’s Chancellor Byrne saying it, that after they exhaust leave time they can use flextime, the old policy. That’s Chancellor Byrne saying that.”

Hardwick: “Well it seems to me it was in effect in 2002.”

Fitts: “The January 31, 2008 memorandum from Chancellor Byrne, I don’t read it as saying there was a Board policy.”

Hardwick: “Well, I’m just saying your client is doing the same thing in 2008 that was done in 2002.”

Fitts : “My client offers an important clarification that the leave time must be exhausted before a flexible schedule can even be requested…”

Segall: “We say everyone in the Legislature was granted approval with the knowledge of the Chancellor, with the knowledge of the Board of Education, with the knowledge of the Governor. They all knew that these legislators were working a flextime schedule during the session. They all knew. Not one of them has offered not one iota of evidence that they didn’t agree to it. None of them.”

Fitts: “It’s been our position if flextime was available without a policy that was in compliance with Ethics Commission opinion we would agree with that.”

Hardwick: “My order would trump the Ethics Commision… opinion. So I’m enjoining this new policy and until we resolve this case we’re going to do… the status quo, that will be my order. Your client and anyone acting in concert are prohibited from implementing this policy…I’m going to say it simply, okay. We’re going to go back to doing it the way it was before this new policy was put in place. How simple is that?… That’s all we’re doing. We’re not getting down to whether y’all are right or whether y’all are wrong. The only thing I’m doing is slowing the train down on the tracks… I’m just doing it temporarily; then, we’ll get to these other issues. But I think that we should do this temporarily so that these folks will know what their status is to operate so their constituents won’t be disenfranchised… As I understand it the college presidents were free to grant flextime, is that right?”

Fitts: “We don’t agree with that your honor.”

The Question over Unpaid Leave, Hiding behind Skirts?

An interesting interchange took place over a policy not even in question under the pending lawsuit, except in its tangential relationship to flextime. That policy is the longstanding policy on the use of unpaid leave. The discussion took place as part of the broader discussion over what harm, if any, was being suffered by legislators currently.

“You’re saying they have not been harmed by unpaid leave because nobody’s been denied unpaid leave,” said Judge Hardwick.

Fitts had previously told the judge, “Some of the plaintiffs have submitted affidavits that they have made requests, submitted written requests to the college presidents for unpaid leave.”

“Is that fair for them to submit and not hear anything back? For instance is there anything in the policy that says the decision made has to be made within x number of hours or days?” asked Judge Hardwick.

Fitts responded, “There’s certainly not been affidavits that anyone’s followed up with a college president.”

The judge then asked,“I’m just saying if somebody submits one, going back to my need to go back to Washington state in a hurry, I submit my request and I never hear anything back, what am I supposed to do?”

Fitts then told the judge that the president should approve or disapprove and that employees could request the presidents make a decision. “Does it contain a period of time?” Hardwick wanted to know.

Fitts responded, “It doesn’t contain a period of time.” Hardwick then offered what in a courtroom is a strong suggestion, “Do they need to change it?” Fitts said, “No judge, I think they’re just fine. That policy frankly has not been challenged.”

Hardwick wanted to hear plaintiff’s attorney Bobby Segall on the issue, “ We have not challenged 611 on its face. What they are administering is causing irreparable harm relative to the policy granting the only avenue left for us has been taken away, flextime,” said Segall.

Fitts told the judge requests went to the president and “for whatever reason they didn’t move.” The judge wanted to know how long the requests had been sitting and Fitts told the judge he would have to look at the affidavit, “some of them not very long.”

Hardwick: “[Unpaid] leave requests, those requests are supposed to go to the chancellor, I mean what did they do with them?

Fitts: “I don’t know, judge. …At any event these requests to the presidents had not made their way for whatever reason it is from the college presidents approving a request or even denying a request…” (interruption by judge)

Hardwick: “What happens if I made a request of the president and they didn’t send it to the chancellor?”

Fitts : “I’m sorry judge.”

Hardwick: “If I made a request from my president and cc’d the chancellor what would happen?”

Fitts: “The policy is clear that requests to be submitted for the chancellor’s approval have to be a written request from the president with a statement that the leave would not hamper the normal operations of the institution.”

Hardwick: “If this is the case and I let the chancellor know, do you think the chancellor would call the president up and say hey what about this leave? You got the information up there you want to pass it on to me.”

Fitts: “I’m not the chancellor, I can’t answer that.”

Hardwick: “What I’m just trying to say is what is there in the policy to keep the president from sitting on these?”

Fitts: “Judge the policy (interruption by judge)

Hardwick: “Does it”

Fitts: The policies don’t have a time trigger.”

Hardwick: “Right.”

Fitts: “But there certainly is no doubt that the requests have to go through the normal channels.”

At one point, when challenged on the issue, the judge threatened to bring the college presidents into the lawsuit.

Fitts: “The presidents are not a party to this suit, I think that’s another point your honor should consider to the extent that you order these presidents (heated interruption by judge)

Hardwick: “I’ll make the presidents a party right now!”

Fitts: “I’m just trying to say judge”

Hardwick: “Let’s bring them in. You want them in?”

Fitts : “No judge. Absolutely not”

Hardwick: “…but I need them if you’re going to hide behind their skirt.”

Fitts: “Judge it’s not a question about hiding behind anything… The board wanted to enact a policy on the board level, prior to that, there was not evidence of any policy being enacted at the board level.”

Hardwick: “But it seems like to me under the rules… You’re telling me the chancellor’s not going to do anything until he hears from the president. He may not ever hear from the president.”

Fitts: “I’m telling you judge that there’s insufficient evidence of where that is in that process.”

Hardwick: “I’m satisfied with what you’ve said.”

There was a lot more interesting discussion for lawyer junkies about the Alabama Administrative Procedures Act and whether or not it applies to the Board when it oversees the Department of Postsecondary Education. Good arguments but dry reading, so for now we’ll leave it here. As usual what goes on in court raises more questions than answers.