PITTMAN, Judge.
Eddie Chambers ("the employee"), a worker employed by the public-works department of the City of Birmingham ("the
The Board, which was created pursuant to Act No. 248, Ala. Acts 1945 (hereinafter referred to, as amended, as "the Act"
Section 22 of the Act further provides that "[t]he decision of the Board based upon all proceedings before the Board shall be final subject to appeal by either party to the Circuit Court," i.e., the Jefferson Circuit Court, "to review questions of law and the question of whether or not the decision or order of the Board is
(Emphasis added.) The employee in this case, acting through counsel, sent a letter to the Board's personnel director on September 26, 2011, six days after the issuance by the Board of the September 20, 2011, order, giving notice of appeal from that order. The employee did not file anything in the circuit court until October 5, 2011, 15 days after the Board's order was issued, at which time he filed a "petition for judicial review" naming the City and the Board as defendants and in which he sought to invoke the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala.Code 1975.
The Board thereafter filed a motion to dismiss the employee's appeal as untimely, noting that the employee had filed no papers with the circuit court until after 10 days had passed after the issuance of its order. The Board cited as authority mandating dismissal of the appeal one of its regulatory provisions, Rule 12.13(b) ("the Rule"), which provides that an appeal of a disciplinary determination of the Board
(Emphasis added.) Although Section 22 of the Act provides that appeals from disciplinary orders of the Board are to be "assign[ed] ... to three Circuit Judges of said Circuit who shall jointly review the record of the hearing before the Personnel Board," the Board's motion was set for a hearing before a single judge acting as the chair, or presiding judge, of the three-judge panel. After considering the Board's motion relying upon the Rule, the employee's objection relying upon the Act, and the Board's reply, the presiding judge unilaterally
The employee filed a notice of appeal to this court. However, Section 22 of the Act 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." Nevertheless, as we noted in Ex parte Dixon, 841 So.2d 1273 (Ala.Civ.App.2002), a party aggrieved by a circuit-court decision in such a matter is not without a remedy in the appellate courts; he or she may file a petition for a writ of certiorari in this court, as to which the appropriate standard of review limits this court to "`a review of whether the circuit court properly applied the law,'" "`whether the decision
The employee contends, among other things, that the Rule is contrary to the Act in the field of perfection of an appeal from an order of the Board and that, to the extent of the conflict arising therefrom, the Act must prevail such that his appeal should be deemed timely. We agree. Whereas the Act states that an appeal from a determination by the Board in an employee-disciplinary matter is "perfected" by means of the employee's filing of a notice of appeal with the Board's personnel director within 10 days of the issuance of the Board's order, the Rule states that such an appeal is "perfected" only by filing such a statement both with the director and with the clerk of the circuit court. To the extent that the Board, by adoption of a regulation that purports to amend a duly enacted statute, has sought to impose a further prerequisite upon parties to disciplinary proceedings before the Board before their appeals may be deemed perfected, the Board has done so in the absence of authority.
Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45, 47 (Ala.1995) (citations omitted; quoting Ex parte City of Florence, 417 So.2d 191, 193-94 (Ala. 1982), quoting in turn Manhattan Gen. Equip. Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528 (1936)).
Because the circuit court has, in this case, enforced the Rule to bar an appeal that, according to the Act, was properly perfected by the employee, we conclude that that court has erred. We therefore reverse the judgment under review
REVERSED AND REMANDED.
THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.