§45-17A-82.09. Disciplinary action.

(a) The mayor or the head of the department may discipline any employee pursuant to this part and the rules and regulations adopted by the city council to implement this part. If a disciplinary action involves suspension without pay, demotion, or dismissal, the mayor shall submit a written notice of the proposed action to the board for regular status employees and to the city council for department heads and to the employee giving the reason or reasons for the proposed action. The notice shall state the reasons for the proposed disciplinary action of suspension without pay, demotion, or dismissal, shall contain a short and plain statement of the facts showing the reasons for the proposed disciplinary action, and shall inform the regular status employee that he or she has 10 days to request, in writing, a pre-disciplinary hearing before the mayor. If the regular status employee fails to request a pre-disciplinary hearing within 10 days from receiving notice, the right to any pre-disciplinary hearing shall be deemed waived. Regardless of whether or not the employee elects to have a pre-disciplinary hearing with the mayor, if the mayor decides to suspend without pay, demote, or dismiss the employee, the mayor shall give notice to the employee of the mayor's action by providing notice by personal service, by United States Postal Service registered or certified mail, with postage paid thereon, to the employee's last known address, or by private mail carrier for overnight delivery, signature required, with postage prepaid thereon to the employee's last known address. Such notice shall be in writing and shall inform the employee of the right to contest the mayor's action by filing with the board a written notice of contest, if the employee is not the head of a department, or with the city council, if the employee is the head of a department, within 10 days after receipt of the notice of the decision of the mayor. If the contest is not timely taken, the mayor's decision shall be final.

(b) No regular status employee may be suspended without pay, demoted, dismissed, or otherwise deprived of any right in his or her job unless he or she has been afforded the opportunity of a pre-disciplinary hearing before the mayor, in which he or she may hear the charges being brought against him or her, and offer statements in his or her defense prior to the action being taken.

(c) Charges may also be filed against any employee covered by this part by any non-employee and shall be submitted in writing to the mayor, setting forth succinctly the matters complained of, and sworn to before a person authorized to administer oaths. Upon receipt of the charges, the mayor, after due consideration and consultation with the head of the department, shall determine whether the charges merit investigation. If, in the judgment of the mayor, the charges warrant investigation, the mayor shall initiate action to have the charges investigated and the necessary disciplinary action taken. The action shall be taken pursuant to this part and the rules and regulations adopted to implement this part.

(d) All hearings before the board shall be recorded and transcribed. In all cases, the decision of the board shall be reduced to writing and entered in the record of the case. The board, in its decision, may uphold the action by the mayor, modify the action, set aside the action, or impose some other action determined by the evidence and pursuant to the law. The mayor may authorize the city attorney to appear and represent the interest of the city.

(e) The board and its specially authorized representatives shall have the power to administer oaths, take depositions, and certify official acts. If the board finds it necessary to compel the attendance of witnesses and production of papers necessary as evidence in connection with any hearing, investigation, or proceeding within the purview of this part, the board or its representatives may invoke the aid of the Circuit Court of Colbert County to produce testimony or evidence. Upon proper showing, the court shall issue a subpoena or order requiring the person to appear before the board or its representatives and produce all evidence and give all testimony relating to the matter in issue. The fees of witnesses for attendance and travel shall be the same as fees for witnesses in the circuit courts of this state and shall be paid from the treasury of the city.

(f) Any party, including the mayor and city council, aggrieved by a final decision of the board, shall be entitled to a review of the decision by the Circuit Court of Colbert County, by filing a petition in the court within 30 days after the final decision is rendered. The petition shall be accompanied by a security for the cost of the appeal as approved by the clerk of the court. Upon the filing of any petition and approval of the security, notice thereof shall be served upon the chair of the board or on the petitioner. The petition shall be heard by the court at the earliest practicable date. Review by the court shall be without a jury and confined to the record, including a transcript of the evidence. The court may, upon the terms and conditions it deems proper, at any time before the hearing of the petition, permit the taking of additional evidence before the board and allow modification of the findings and final decision of the board. The court, upon a hearing of the petition, shall have the power to affirm or reverse the decision of the board, and render a decision, or reverse and remand the matter to the board for further proceedings consistent with the judgment of the court. The court shall affirm the decision of the board unless it finds that the substantial rights of the petitioner have been prejudiced because the final decision of the board was any of the following:

(1) Unsupported by substantial evidence in the record submitted.

(2) In excess of the authority conferred by this part on the board.

(3) In violation of constitutional provisions.

(4) Arbitrary or capricious.

(5) Affected otherwise by substantial error or injustice.

(g) An appeal may be taken from any final judgment of the circuit court to the Court of Civil Appeals of Alabama or the Supreme Court of Alabama. The appeal shall be perfected as provided in the Alabama Rules of Appellate Procedure. The decision or order of the board shall not be superseded by any review or appeal, and the city shall not be obligated to pay the salary of any employee who is not working during the pending of any review or appeal.

(h) All cases pending before the board pursuant to prior legislative requirements on June 7, 2007, shall be transferred to the board established by this part and the proceedings shall be held before the board.

(Act 2007-309, p. 557, §10.)