THOMAS, Judge.

Cedrick Webb, a tenured teacher, taught physical education and served as the head football coach at Bellingrath Junior High School ("Bellingrath") in Montgomery County. On May 4, 2006, three weeks before the end of the 2005-2006 school term, Webb was placed on administrative leave, with full pay and no loss of benefits, while Dr. Angela Mangum, the Bellingrath principal, and Jimmy Barker, the assistant superintendent for human resources at the Montgomery County Board of Education ("the Board"), investigated an incident that had occurred at school the day before, May 3, 2006, involving Webb and a seventh-grade student.

On January 26, 2007, Linda Robinson, the Board's secretary and interim superintendent, wrote Webb a letter informing him that she intended to recommend that the Board cancel his teaching contract on the grounds of insubordination, neglect of duty, failure to perform his duties in a satisfactory manner, and other good and just cause, as provided in § 16-24-8, Ala. Code 1975. Specifically, Robinson's letter stated that she proposed that Webb's contract be canceled for the following misconduct that the Board referred to as "Charge I":

In what the Board referred to as "Charge II," Robinson's letter listed 11 previous disciplinary actions that had been taken against Webb in the period between January 2002 and February 2006 that, Robinson said, "provide[d] additional supporting grounds for the recommendation to cancel [Webb's] contract as a teacher." The letter set out the previous disciplinary actions as follows:

On February 20, 2007, the Board voted to cancel Webb's employment contract. Webb filed a timely contest of the Board's decision, after which a hearing officer was selected pursuant to § 16-24-20(b), Ala. Code 1975. The hearing officer conducted a three-day hearing on July 25-27, 2007.

At the outset of the proceedings, Webb moved for a judgment as a matter of law, contending that the Board was prohibited from making the May 3, 2006, incident at Bellingrath a basis for canceling his teaching contract because, he said, the Board had failed to notify him of the proposed cancellation before the 2005-2006 school term ended, as, he alleged, § 16-24-12, Ala.Code 1975, requires. The hearing officer agreed with Webb's argument and concluded that the Board's proposal to make the May 3, 2006, incident a basis for canceling Webb's employment contract was legally impermissible because the Board's cancellation notice to Webb had been untimely.

The Board filed a motion in limine, arguing that Webb was not entitled to call witnesses and present documentary evidence in an attempt to "relitigate" his 11 previous disciplinary actions during the hearing. The hearing officer denied the Board's motion, holding that Webb would be permitted to deny the factual basis for, or to assert a defense to, the previous disciplinary actions by calling witnesses and submitting documentary evidence in support of his position.

In order to prove the misconduct alleged as Charge I, the Board presented the testimony of Dr. Mangum, the principal of Bellingrath; two seventh grade students at Bellingrath; and James Wright, another teacher and coach at Bellingrath. The evidence with respect to Charge I tended to show the following: On May 3, 2006, during a physical-education class, Webb heard that two male students, A and B, had been throwing rocks at a third student. Webb called the students over to him and asked the retract officer, Wright, to hold the students in retract until the end of the class period.1 Student B admitted that they had been throwing rocks. Student A protested, claiming that he had done nothing wrong, whereupon Webb advised Wright to watch student A because "he will try you." Student A approached Webb, and Webb said, "Just don't get in my personal space." The student continued towards Webb with a threatening posture, and Webb repeated, "Just don't get in my personal space." The student replied, "What, I ain't scared of you and I don't like you, anyway," or words to that effect. Webb testified that he took a sip of liquid from a cup, removed the lid from the cup, and tossed the liquid out, saying to the student, "This is what I think about that." Webb said that he tossed the liquid in the direction of the student and slightly to the student's side, but not on the student. Student A stated that Webb said, "This is what I think of you, m____f____," and tossed the liquid directly at him, soaking his pants below the knee. Student A called out to Wright, saying "[Y]ou see Coach Webb done throwed that water on me," before running to the principal's office, along with student B, and reporting to Dr. Mangum what had occurred. Dr. Mangum took statements from student A, student B, and Wright.

Student B's statement differed from student A's statement in that student B reported that, before Webb tossed the liquid, Webb said to student A, "I don't give a f____," and that then, as Webb tossed the liquid, Webb said to student A, "This is what I think about you." Wright's statement reported that Webb tossed the liquid in the direction of student A and said, "This is what I think about it."

Webb went to the office to explain the altercation to Dr. Mangum, but the bell signaling the next class rang and Webb decided to return to his class. He returned to the office after school, however, told Dr. Magnum that he had something to discuss with her, and, according to Webb, she replied, "There is nothing to discuss." Webb wrote out a statement describing the incident, placed it in the principal's box in the office, and left.

Wright testified at the hearing that there were about seven drops of liquid on student A's pants and shoes. Dr. Magnum testified that the student's pants were soaked. Dr. Magnum stated that she talked with both students when they first came to the office to report the incident. She also talked with Wright. Later, she asked all three individuals to write out statements describing the incident. She said that, in her discussion with Wright, Wright had said that Webb used the term "m____f_____" in speaking to student A, but in Wright's written statement there was no reference to that term. Dr. Magnum asked Wright about the discrepancy, stating that she had understood him to say that Webb had used the term "m____f_____" and inquiring whether Webb had, in fact, used that term. Wright answered, "Well, it could be," explaining that he had heard the term but that both student A and Webb had been talking at the same time and he could not be sure exactly who said what.

In order to prove the misconduct alleged as Charge II, subparagraphs 1-11, the Board presented the testimony of the two school principals who had been Webb's supervisors during the relevant periods, as well as the testimony of Board assistant superintendent Barker. Dr. Magnum, the principal at Bellingrath from 2004 through 2006, described her role in and investigation of the incidents set out as Charge II, subparagraphs 1-7, and she authenticated documentary evidence pertaining to those incidents. Sophia Johnson, the principal at T.S. Morris Elementary School in Montgomery County, described her role in and investigation of the incidents set out as Charge II, subparagraphs 8-11, and she authenticated documentary evidence pertaining to those incidents. The Board did not present the testimony of witnesses to substantiate many of the facts that gave rise to the 11 previous disciplinary actions but, instead, relied on the authentication by the two principals of the documentary evidence contained in Webb's personnel file.

At the hearing, Webb admitted the misconduct underlying what the Board called Charge II, subparagraph 3, and Charge II, subparagraph 11. For the other nine previous disciplinary actions, Webb either denied the misconduct attributed to him, asserted that the principal had been motivated by personal animus in disciplining him, or claimed that other teachers had engaged in the same misconduct but had not been similarly disciplined.

On January 15, 2008, the hearing officer rendered a decision reversing the Board's cancellation of Webb's employment contract and reinstating Webb to his previous teaching position. The hearing officer determined that, although the May 3, 2006, incident described as "Charge I" could not constitute a ground for canceling Webb's teaching contract, it could trigger disciplinary action less severe than cancellation; accordingly, the hearing officer imposed upon Webb a 10-day suspension without pay for the misconduct described as "Charge I."

The hearing officer entered findings of fact and conclusions of law with respect to the previous disciplinary actions listed as Charge II, subparagraphs 1-11. He ruled that because Webb had admitted the misconduct made the basis of 2 prior disciplinary actions — those described as Charge II, subparagraph 3, and Charge II, subparagraph 11 — those charges would be upheld. The hearing officer concluded that because Webb had already received a 10-day suspension without pay for the incident described as Charge II, subparagraph 3, "no further penalty is warranted." The hearing officer determined, however, that the conduct made the basis of the disciplinary action listed as Charge II, subparagraph 11, warranted a more severe penalty than the written reprimand Webb had received in 2002; therefore, the hearing officer imposed a 10-day suspension as the appropriate penalty for the conduct made the basis of Charge II, subparagraph 11.

For the other nine previous disciplinary actions, the hearing officer held either (1) that Webb had presented evidence indicating that he was not guilty of the misconduct charged or (2) that Webb had been the victim of disparate discipline because other teachers who had engaged in the same misconduct had not been disciplined. Finally, the hearing officer ordered the Board to expunge those nine disciplinary actions from Webb's personnel file.

This court agreed to hear the Board's appeal with respect to the following issues that, the Board alleged, were "special and important reasons" for granting the appeal:

This court also agreed to hear Webb's cross-appeal, in which Webb argues that the hearing officer had no authority to impose upon him a greater punishment — a 10-day suspension without pay — for an incident that had taken place 5 years earlier than the punishment that had been imposed upon him at the time — a written reprimand. The Board concedes that Webb is entitled to prevail on the cross-appeal.

Standard of Review

Section 16-24-10(b), Ala.Code 1975, provides that "[t]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article." "The Court of Civil Appeals [has] the authority to reverse the decision of the hearing officer for failing to follow the applicable law, because the failure to follow the applicable law renders the hearing officer's decision arbitrary and capricious." Ex parte Wilson, 984 So.2d 1161, 1170 (Ala.2007).

Webb's Motion Challenging the Validity of the Board's Cancellation Notice

The event that precipitated the Board's decision to cancel Webb's employment contract occurred on May 3, 2006, three weeks before the end of the 2005-2006 school term. On May 4, 2006, Webb was placed on administrative leave with full pay and benefits pending an investigation of the May 3 incident. Webb was formally notified on January 26, 2007, during the succeeding school term, that the Board proposed to cancel his teaching contract. Webb remained on administrative leave, receiving full pay and benefits, at the time of the hearing in this case, July 25-27, 2007.

Relying on § 16-24-12, Ala.Code 1975, and Ex parte Jackson, 625 So.2d 425 (Ala. 1992), the hearing officer concluded that the Board's notice of cancellation was invalid because it had not been served on Webb before the end of the 2005-2006 school term. Section 16-24-12 provides, in pertinent part:

In Ex parte Jackson, the Mobile County Board of School Commissioners adopted, on March 14, 1990, a proposal to cancel the teaching contract of Lucy Jackson, a tenured teacher. The Board of Commissioners, however, did not notify Jackson of the proposed cancellation until August 1, 1990, two months after the end of the 1989-1990 school term. The Board of Commissioners voted to cancel Jackson's contract on August 20, 1990, and the Alabama State Tenure Commission affirmed the Board of Commissioners' decision. Jackson petitioned the Mobile Circuit Court to issue a writ of mandamus directing the Commission to set aside its order of cancellation. The circuit court denied the writ, and Jackson appealed to this court, which affirmed the circuit court's judgment on the authority of State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689 (1949) (holding that § 16-24-12 is inapplicable to tenured teachers). See Jackson v. Alabama State Tenure Comm'n, 625 So.2d 425 (Ala.Civ.App.1991).

The Alabama Supreme Court granted certiorari review, overruled Fairfield, decided that § 16-24-12 applies to both tenured and nontenured teachers, and reversed the judgment of this court, stating:

Ex parte Jackson, 625 So.2d at 430 (emphasis added). As the emphasized portion of the quote from Ex parte Jackson indicates, the supreme court's holding in that case is inapplicable to this case because the Board's proposal to cancel Webb's contract did not predate the end of the 2005-2006 school term. See also Morse v. Alabama State Tenure Comm'n, 705 So.2d 410, 412 (Ala.Civ.App. 1997) (stating that "the Board's action did not violate our supreme court's holding in Ex parte Jackson, because the proposal to cancel Morse's contract did not predate the end of the school term").

In the present case, the hearing officer accepted Webb's argument that Ex parte Jackson stands for the proposition that a school board cannot cancel a tenured teacher's contract for misconduct that occurred in one school term unless it serves the teacher with notice of cancellation before the end of that school term. The hearing officer erred in reading Ex parte Jackson so broadly. Our supreme court clearly stated that Ex parte Jackson is limited to those situations in which a "school board's proposal to cancel a teacher's contract predates the end of the school term," 625 So.2d at 430, but its notice to the teacher comes after the end of the school term.

The incident that formed the basis for the Board's decision to cancel Webb's contract occurred only three weeks before the end of the 2005-2006 school term and was still being investigated as that term ended. Accordingly, at the end of the 2005-2006 term, the Board had not yet made a decision regarding the cancellation of Webb's teaching contract. That fact alone means that this case is not controlled by Ex parte Jackson.

"[W]ritten proof of contract non-renewal by the school board gives the teacher unequivocal notification that he will need to secure other employment after the school term ends." Johnson v. Selma Bd. of Educ., 356 So.2d 649, 651 (Ala.1978). The end-of-the-school-term notice requirement in § 16-24-12 acknowledges the practical reality that "the interim between school terms — during which most teaching positions are filled — is a crucial period for both the teacher and the school board," Ex parte Jackson, 625 So.2d at 428. The notice requirement of § 16-24-12 is based on the likelihood that a teacher who is "given notice only a day or two before the [succeeding] school term begins" will not be able to secure other employment in the teaching field. Estill v. Alabama State Tenure Comm'n, 650 So.2d 890, 892 (Ala. Civ.App.1994) (emphasis omitted). In this case, the Board apparently recognized that Webb's ability to seek other employment for the succeeding school term could be compromised if, after the 2005-2006 school term ended, it decided to cancel his contract and notified him of that decision. The Board, therefore, placed Webb on indefinite administrative leave with full pay and benefits — thereby maintaining the status quo — until it could reach a decision regarding Webb's continued employment.

The Board's Motion Seeking to Prevent the Relitigation of Webb's Previous Disciplinary Actions

The Board contends that the hearing officer exceeded the authority granted to him in § 16-24-20(c), Ala.Code 1975, by allowing Webb to reopen and relitigate 11 previous disciplinary actions and by entering new findings of fact and conclusions of law with respect to each of the 11 incidents. Section 16-24-20(c) provides:

Webb argues that, by characterizing his 11 previous disciplinary actions as subparts of "Charge II," the Board placed those disciplinary actions "at issue" and was thereby required to prove, for each charge, the factual truth of its allegations and the propriety of the penalty imposed.

We cannot accept Webb's argument that the Board's use of the term "Charge II" in its notice to Webb, and the listing of 11 previous disciplinary actions under the term "Charge II," means that the facts underlying those disciplinary actions were "at issue" in the hearing — if "at issue" implies that, like separate counts in an indictment, the facts underlying the prior disciplinary actions stood as naked allegations without any probative value until the Board proved their truth at the hearing. We do not believe that is what the legislature had in mind when it provided, in § 16-24-20(c), that "the hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years." Instead, we think that the legislature intended that a teacher's employment history, if considered at all by a hearing officer, be regarded as just that — past history, or historical fact — and, therefore, not open to a trial de novo, but available to be weighed either in support of or in mitigation of the penalty imposed by the Board.

We find support for our holding — that a teacher's employment history may be weighed as a factor either supporting or mitigating the penalty imposed by the Board — in the Alabama Supreme Court's decision in Ex parte Dunn, 962 So.2d 814 (Ala.2007). In Ex parte Dunn, the hearing officer determined that a teacher had been guilty of serious and egregious misconduct. In deciding whether the cancellation of the teacher's contract was the appropriate penalty, however, the hearing officer decided that the teacher's exemplary and unblemished employment record was a mitigating factor that made cancellation of his contract too severe a penalty. This court reversed, holding that the hearing officer's findings as to the severity of the teacher's misconduct were so inconsistent with his conclusion that canceling the teacher's contract was not the appropriate penalty as to make the hearing officer's decision arbitrary and capricious. Board of Sch. Comm'rs of Mobile County v. Dunn, 962 So.2d 805 (Ala.Civ.App.2006). The supreme court reversed, holding that this court had improperly substituted its judgment for that of the hearing officer. Quoting from that portion of the hearing officer's decision that explained how, and for what purpose, he had viewed the teacher's employment history, the court stated:

Ex parte Dunn, 962 So.2d at 821-22 (emphasis omitted; emphasis added). The supreme court concluded:

Ex parte Dunn, 962 So.2d at 823-24 (emphasis added).

We conclude that when the legislature provided in § 16-24-20(c) that "[t]estimony and exhibits shall be admitted into evidence at the discretion of the hearing officer," it meant to give the hearing officer the discretion to consider testimony and documentary evidence indicating the basis for the previous disciplinary action against the teacher as well as any contemporaneous response or defense that the teacher made to the disciplinary action. We also conclude that the legislature intended that such evidence would normally be limited to the materials contained in the teacher's personnel file. See § 16-22-14(b), Ala.Code 1975 (requiring city and county boards of education to establish and maintain a personnel file on each employee); § 16-22-14(c), Ala.Code 1975 (providing that "[t]he employee may answer or object in writing to any material in his or her file and the answer or objection shall be attached to the appropriate material"); § 16-22-14(e), Ala.Code 1975 (providing that "[s]tatements, reports, and comments relating to work performance, disciplinary action against the employee, suspension of the employee, or dismissal of the employee shall be reduced to writing and signed by a person reasonably competent to know the facts or make a judgment as to the accuracy of the subject information. Additional information related to the written materials previously placed in the personnel file may be attached to the material to clarify or amplify them as needed."); and § 16-22-14(g)(4), Ala.Code 1975 (providing that "[a]ny documents which may be lawfully contained in the personnel file of [a school-board] employee shall be made available to a lawfully authorized hearing officer or panel conducting an investigation into the competency or performance of the employee....").

Pursuant to the 2004 amendments to the Teacher Tenure Act, see Act. No. 2004-566, Ala. Acts 2004 (effective July 1, 2004), a tenured teacher is entitled to contest and have a hearing officer review, among other things, a "minor suspension," i.e., a suspension without pay of seven days or less. See §§ 16-24-17 through -19, Ala.Code 1975. Section 16-24-19 provides that review of a minor suspension by the hearing officer proceeds as follows:

If the legislature determined that a teacher is not entitled to a full-fledged trial for a current contested minor suspension but is, instead, entitled to have a hearing officer review the matter only on "written submissions" of the parties, we cannot imagine that the legislature intended to provide, in § 16-24-20(c), for a trial de novo of past disciplinary actions.

We hold that § 16-24-20(c) does not authorize a trial de novo of a teacher's previous disciplinary actions. Nor does it allow a teacher to offer an explanation of or to assert a defense to a previous disciplinary action that, the record demonstrates, the teacher did not offer or assert at the time he or she was originally disciplined. Our view that § 16-24-20(c) authorizes the hearing officer to consider a teacher's previous disciplinary actions as a matter of historical fact, tempered only by the hearing officer's ability to consider any contemporaneous response or defense that the teacher originally asserted to the disciplinary action, is rooted in considerations of fundamental fairness and quasi-judicial/administrative economy. We do not accept the Board's argument that principles of collateral estoppel would prevent a teacher from attacking his previous disciplinary actions. Nevertheless, we believe that basic notions of fundamental fairness counsel against permitting a teacher to mount a challenge to a previous disciplinary action that had been resolved months or years earlier if the teacher did not challenge the discipline at the time it was imposed, or if he or she originally challenged the discipline on a ground other than the ground he or she proposes to assert to the hearing officer. Any other procedure would inevitably result in the situation that has presented itself in this case — a lengthy and protracted hearing and a voluminous administrative record filled with evidence that, if relevant at all, could have and should have been raised by the teacher at the time the previous disciplinary action was imposed.

The record indicates that for most of the previous disciplinary actions listed as Charge II, subparagraphs 1-11, Webb failed to respond or to assert a defense to the discipline at the time it was imposed. We begin with the earliest of Webb's previous disciplinary actions, those imposed upon Webb in 2002 by Principal Sophia Johnson at T.S. Morris Elementary School, and work forward to the most recent disciplinary actions, those imposed upon Webb between 2004 and 2006 by Principal Angela Magnum at Bellingrath.

Charge II, subparagraph 11: Webb admitted that he had answered Johnson by saying, "Yo." He received a written reprimand. The hearing officer made the following finding:

The Board concedes, and we hold, that the hearing officer erred by imposing on Webb a greater penalty than he had received in 2002. Nothing in the Teacher Tenure Act gives a hearing officer the authority to increase the punishment that was imposed upon a teacher in a prior disciplinary action.

Charge II, subparagraph 10: At the hearing, Webb denied that he had entered the T.S. Morris Elementary School building through a side door that teachers were not authorized to use. He also presented evidence indicating that other teachers had entered through the side door and had not been disciplined. The record clearly demonstrates that Webb did not respond or otherwise defend against this charge at the time it was made in 2002. On cross-examination of Webb by the Board's attorney, the following occurred:

The hearing officer erred by allowing Webb to assert at the hearing defenses to the disciplinary action made the subject of Charge II, subparagraph 10, that he did not assert when the previous disciplinary action was imposed upon him. The hearing officer also erred by ordering the Board to expunge the disciplinary action from Webb's personnel file.

Charge II, subparagraph 9: Webb admitted that he had failed to respond to the principal's reprimand letter concerning his having left students unsupervised on February 26, 2002. The hearing officer, therefore, erred by allowing Webb to assert a defense to Charge II, subparagraph 9, and erred by ordering the Board to expunge the disciplinary action from Webb's personnel file.

Charge II, subparagraph 8: At the hearing, Webb denied that he had failed to follow Johnson's directive to have cars in the bus lane moved and denied that he had responded to Johnson in a loud, disrespectful, and unprofessional manner. Webb testified that Johnson had spoken to him in a shrill and demeaning manner. Webb also presented a parent witness who corroborated his version of the events on February 25, 2002. On cross-examination, Webb acknowledged that he had received a reprimand letter from Johnson stating the charges against him and informing him that he had a right to respond. He admitted that he had "never responded." The hearing officer, therefore, erred by allowing Webb to present evidence with respect to Charge II, subparagraph 8, at the hearing and erred by ordering the Board to expunge the disciplinary action from Webb's personnel file.

Charge II, subparagraph 7: Webb testified that Dr. Magnum's memorandums to him indicating that he had failed to post attendance records, to complete failure reports, and to complete lesson plans were "reminders," not reprimands, so he did not respond to them. At the hearing, Webb's defense to the charge that he had failed to satisfy the recording and posting requirements was that five physical-education teachers shared the same computer on which the records were required to be reported, that sometimes the computer was "down," and that other teachers who had failed to file timely reports had not been disciplined. To that end, Webb introduced a folder six inches thick containing other teachers' lesson plans and the dates they had been submitted.

With respect to the foregoing charges, the hearing officer found:

The Board introduced a computer printout indicating that Webb had many students who were failing but that Webb had filed a report stating that he had "no failures." Webb responded in writing to the charge that he had filed a false failure report, explaining that, at the time the failure reports were due, his grade book indicated that he had no students failing but that he had not had time to input the grades into the computer. The record demonstrates that Webb requested and was given an extension for filing his failure report but that he failed to meet the extended deadline.

With respect to the remaining misconduct outlined in Charge II, subparagraph 7, misconduct for which Dr. Magnum sent Webb a "Letter of Concern" — that Webb had failed to attend a Friday-night function for teachers, to sign in as required, and to obtain permission before leaving campus — Webb testified that he had informed Dr. Magnum that he had a second job on Friday nights, that he had never failed to sign in, and that he did not know that he needed permission to leave the campus during his planning period. The hearing officer made no findings with respect to those charges.

In determining how much weight to give to this previous disciplinary action in light of Webb's overall employment history, the hearing officer was entitled to have considered Webb's defense to the reprimand for filing a false failure report — the only misconduct listed in Charge II, subparagraph 7, for which the record demonstrates that Webb offered a contemporaneous defense. The hearing officer had no authority to order the Board to expunge the disciplinary action from Webb's personnel file.

Charge II, subparagraph 6: Webb testified that he did not respond to the charge that he had left students in his care unattended and unsupervised on December 3, 2004, because, he said, he had never received a letter reprimanding him for that misconduct. Dr. Magnum testified that when she entered the gymnasium on December 3, 2004, Webb and Maurice Buckhanna, another teacher and Coach at Bellingrath, were in the gymnasium office with the door almost completely closed and there was no way they could have been able to see the students sitting on the bleachers in the gymnasium. Dr. Magnum read a letter of reprimand at the hearing and stated that she had sent the letter to Webb.

At the hearing, Webb denied that students were left unattended and unsupervised. He explained that he was in the gymnasium office writing office referrals for two unruly students and that Buckhanna was standing in the office doorway watching the other students seated on the bleachers in the gymnasium when Dr. Magnum walked into the gymnasium and inquired why no one was supervising the students in the gymnasium. Webb testified that Buckhanna was not disciplined.

The hearing officer made the following findings:

The hearing officer's findings do not mention Webb's assertion that he never received Dr. Magnum's letter of reprimand, but we conclude that the hearing officer would have been entitled to weigh that assertion in determining the gravity of this disciplinary action in light of Webb's overall employment history. The hearing officer was not, however, authorized to order the Board to expunge the disciplinary action from Webb's personnel file.

Charge II, subparagraph 5: During a 2-month period in the fall of 2004, Dr. Magnum received 12 different student complaints alleging that Webb had used profane and degrading language in reference to students. The complaints stated, among other things, that Webb had called one student a "sissy" and another student a "n____" (a racial slur); that Webb had demanded that a student "get [his] a___ out [of Webb's class]" or "get the f____ out of [Webb's] face"; that Webb had asked a student to "hold on and let [him] cuss these m____f____s out"; that Webb had told a female student that she wore clothes that were "too tight," that she was "trash," and that she should "get her b____ a___" out of his office.

Webb did not respond to the written reprimand he received from Dr. Magnum with respect to those complaints. Dr. Magnum wrote an administrative summary of the complaints and sent it to Barker at the Board's office. In January 2005, Webb had a conference with Barker during which he denied making the objectionable statements and "offered explanations in defense" of the allegations. On February 18, 2005, Barker wrote the following letter to Webb:

At the hearing, Webb stated that all the student complainants were "discipline problems" and that many had been sent to detention or to the alternative school on multiple occasions. He maintained that the students had asserted baseless complaints against him in an attempt to evade punishment for causing discipline problems in Webb's presence, and, ultimately, he said, none of the students were punished for their own misconduct after they complained to Dr. Magnum about Webb's conduct. To establish that defense, Webb presented reams of documents detailing the disciplinary records of the 12 students. In addition, Webb claimed that Dr. Magnum had failed to properly investigate the student complaints because, he said, Dr. Magnum had not interviewed other teachers who were present during the incidents in question and who could have substantiated Webb's version of the incidents. Dr. Magnum testified that she did not know of any other teachers who had been present and who could have provided information with respect to the student complaints. Webb presented several adult witnesses who corroborated his testimony. The hearing officer found:

Because Webb did not file a written response to the complaints lodged against him, this court cannot know what "explanations in defense of the allegations" Webb offered to Barker. We conclude that the hearing officer exceeded the limits of his discretion by allowing Webb to mount an all-out attack on this previous disciplinary action by calling witnesses and presenting reams of documentary evidence at a hearing three years after the imposition of the disciplinary action. The hearing officer also erred by ordering the Board to expunge this disciplinary action from Webb's personnel file.

Charge II, subparagraph 4: Webb received a written reprimand and a 5-day suspension without pay based on a complaint by a female student that, on May 11, 2005, when the student reported to Webb that another student was bothering her, Webb told the female student to "bring [her] big, black a___ up here." When the female student approached Webb, he told her that she was "stanky" and needed to take a bath. Dr. Magnum testified that she investigated the complaint by interviewing three other students who were present during the incident, all of whom substantiated the complaint.

At the hearing, Webb denied that he had made the statements attributed to him. He testified that Howard Garner, another teacher and Coach at Bellingrath, had been present during the incident, and he stated that no one had asked for Garner's version of the events. Webb said that the day after the incident he had a conversation with assistant superintendent Barker at the Board's office, during which he told Barker that Dr. Magnum had not interviewed Garner, and he claimed that Garner would corroborate Webb's story.

Garner testified at the hearing that he was present during the May 11, 2005 incident. He stated that Webb had instructed the female student to sit down, and that she became defiant, but that Webb did not curse her or speak to her in an unprofessional manner. Garner testified at the hearing that he thought it was odd that Dr. Magnum had never interviewed him about the incident.

At the hearing, Webb testified that he had decided it would "do no good" to write a written response to the charge of misconduct because, he believed, Dr. Magnum and Barker had already decided that he was guilty. On cross-examination of Webb by the Board's attorney, the following occurred:

The hearing officer made the following findings with respect to the disciplinary action listed as Charge II, subparagraph 4:

For the 5-day suspension without pay that Webb received, Webb had not only the right to respond to the charges against him, but also the right to request a conference with the Board, see § 16-24-17, Ala. Code 1975, to have counsel present, to have a court reporter record any statement he might make to the Board at the conference, to contest his suspension, and to obtain review of the suspension by a hearing officer, see § 16-24-18, Ala.Code 1975.

Webb not only failed to file any written response to the disciplinary complaint, but also failed to contest the disciplinary action or to request review by a hearing officer pursuant to §§ 16-24-17 and -18. Under the circumstances, the hearing officer erred by allowing Webb to assert a defense at the hearing. The hearing officer also erred by ordering the Board to expunge this disciplinary action from Webb's personnel file.

Charge II, subparagraph 3: Webb admitted the misconduct that formed the basis for this disciplinary action. Webb telephoned the mother of a male student who was having problems with other students and requested that the mother come in for a conference to discuss her son's problems. When she arrived, Webb said, "I called you up because I don't want no b___s___ coming on me." The mother reported Webb's comment, and Webb received a 10-day suspension without pay and agreed to attend a workshop on "Managing Your Emotions Under Pressure." On November 8, 2005, assistant superintendent Barker wrote Webb a reprimand letter stating that "[f]ailure on your behalf to maintain exemplary professional conduct during your continued employment with the Montgomery Public Schools will result in a recommendation of termination of [your] contract from this office to the Superintendent."

The hearing officer made the following finding:

Charge II, subparagraph 2: Webb received a written reprimand for failing to allow tardy students access to his classroom until they had received a pass from the principal's office, in violation of school-board policy. At the hearing, Webb testified that he thought he had been following the policy. He presented the testimony of three other teachers who stated that they understood the policy the same way. The hearing officer found:

The hearing officer erred in determining that Webb had not violated the policy. The record contains a copy of the Bellingrath faculty handbook with the following tardy policy adopted by the Board:

The hearing officer also erred in ordering the Board to expunge this disciplinary action from Webb's personnel file.

Charge II, subparagraph 1: Webb was given a written reprimand for failing to report that a student had broken his leg in Webb's fifth-period class. Dr. Magnum testified that the school policy requires a teacher to notify the principal's office immediately if a student suffers a major injury, and, she said, Webb did not report the injury until the following day. Webb filed with both Dr. Magnum and assistant superintendent Barker a written response to the reprimand letter he received. Webb testified at trial that he had orally reported the injury the same day the student was hurt; he stated that he had also completed a form entitled "Personal Injury Report Notice" and placed the form in the principal's box. Dr. Magnum claimed that she did not receive the form, so Webb filled out another form the following day.

The Bellingrath faculty handbook does not specify when a student's injury must be reported. Therefore, the hearing officer correctly determined that Webb did not commit a breach of the policy. Although the hearing officer would have been authorized to disregard this disciplinary action in determining what weight to give to Webb's overall employment history, he had no authority to order the Board to expunge the disciplinary action from Webb's personnel file.

The Hearing Officer's Disposition of Charge I

The hearing officer first determined that Charge I — the May 3, 2006, incident in which Webb was alleged to have cursed a male student and tossed a liquid at him — could not constitute a basis for the cancellation of Webb's teaching contract because, the hearing officer decided, the Board did not provide Webb with timely notice of its proposal to cancel his contract. As we have previously discussed, that determination was erroneous. The hearing officer next concluded that, although Charge I could not constitute a ground for canceling Webb's teaching contract, it could constitute a basis for disciplinary action less severe than cancellation. Therefore, the hearing officer addressed the merits of Charge I and decided the disputed issues of fact with respect to Webb's conduct on May 3, 2006, as § 16-24-10(a) authorizes a hearing officer to do.3 The hearing officer made the following findings of fact:

Finally, applying the law as set out in § 16-24-10(a)5 to the facts, the hearing officer determined that the appropriate disciplinary action for the misconduct described in Charge I was a 10-day suspension without pay.

Because the hearing officer "denied," or set aside, all but 2 of the 11 previous disciplinary actions and ordered that those disciplinary actions be expunged from Webb's personnel file, it may be that the hearing officer did not consider that Webb's employment history weighed heavily in determining the appropriate disciplinary action that should have been imposed with respect to Charge I. Therefore, because this court has reversed the hearing officer's initial determination that Charge I cannot provide the basis for canceling Webb's contract and holds that Charge I can trigger the cancellation of Webb's employment contract, and because this court has reversed the hearing officer's "denial" and expungement order with respect to 9 of the 11 previous disciplinary actions in Webb's employment history, and because this court holds that all 11 of the previous disciplinary actions may be considered as factors bearing upon the appropriate disciplinary action that should be taken against Webb, we remand the cause to the hearing officer with instructions to reconsider the appropriate action that should be taken against Webb in light of the principles outlined in this opinion.

Summary

This court agreed to hear the Board's appeal with respect to the following issues that, the Board alleged, were "special and important reasons" for granting the appeal:

We also agreed to hear Webb's cross-appeal, presenting the issue whether the hearing officer had the authority to impose upon Webb a greater punishment — a 10-day suspension without pay — for an incident that had taken place 5 years earlier than the punishment that had been imposed upon him at the time — a written reprimand. The Board conceded that Webb is entitled to prevail on the cross-appeal.

With respect to all three issues on which this court agreed to hear the Board's appeal, and with respect to Webb's cross-appeal, we hold that the hearing officer's rulings were erroneous. We reverse the hearing officer's order directing that Webb be reinstated to his previous position and remand the cause with instructions to reconsider the appropriate action that should be taken against Webb in light of the principles outlined herein.

APPEAL — REVERSED AND REMANDED.

CROSS-APPEAL — REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, J., concur.

BRYAN, J., concurs in the result, without writing.

MOORE, J., concurs in the result only, without writing.

On Application for Rehearing

THOMAS, Judge.

APPLICATION OVERRULED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

MOORE, J., concurs in part and dissents in part, with writing.

MOORE, Judge, concurring in part and dissenting in part.

I concur in the majority's decision to overrule Cedric Webb's application for rehearing to the extent the application requests the court to vacate or amend that portion of its opinion on original submission discussing the hearing officer's ruling granting Webb's motion for a judgment as a matter of law. However, I respectfully dissent as to the majority's decision to overrule the application for rehearing in its entirety because I believe the court should vacate that portion of its opinion on original submission pertaining to the hearing officer's rulings regarding the evidence relating to Webb's employment history.1

In his brief to this court, and again in his application for rehearing, Webb argues that the court should not have addressed the hearing officer's ruling that Webb's contract of employment could not be canceled for conduct occurring before the 2006-2007 school year. Webb basically maintains that the hearing officer entered a judgment as a matter of law in favor of Webb on this issue based on alternative grounds: (1) that Alabama law precludes a county board of education from canceling the contract of a tenured teacher based on misconduct occurring in a prior school term and (2) that the conduct for which Webb was charged did not warrant cancellation of his teaching contract. See generally Kellis v. Estate of Schnatz, 983 So.2d 408, 412-13 (Ala.Civ.App.2007) (holding that when trial court found two alternate, independent, and sufficient grounds for voiding real-estate contract, this court would not review alleged error regarding first ground when trial court's judgment could be affirmed on second ground, which appellant did not address). Webb argues that the second ground is sufficiently independent of the first ground so that any error the hearing officer may have committed in granting his motion for a judgment as a matter of law based on the first ground is "purely academic."

After closely reviewing the final decision of the hearing officer, I believe the court correctly determined that the hearing officer assessed Webb with 2 10-day suspensions only after concluding that, as a matter of law, Webb's teaching contract could not be canceled during the 2006-2007 school term for alleged misconduct occurring in prior school terms. Contrary to Webb's argument, the hearing officer did not make any factual determination, express or implied, that Webb's conduct did not warrant cancellation of his teaching contract. Hence, the question whether the hearing officer correctly granted Webb's motion for a judgment as a matter of law based solely on the first ground was squarely presented to this court.

Section 16-24-8, Ala.Code 1975, which sets out the grounds upon which the employment contract of a tenured teacher may be canceled, provides:

Section 16-24-8 does not contain any temporal limitation that would preclude a school board from canceling the employment contract of a tenured teacher for causes arising in a prior school term. If the legislature had intended that the employment contract of a tenured teacher could be canceled only for misconduct or other causes occurring during a current school term, it certainly could have used language to that effect. See Ex parte Jackson, 614 So.2d 405, 407 (Ala.1993) (stating that the legislature knows how to draft a statute to reach a particular end and that "[t]he judiciary will not add that which the Legislature chose to omit").

Section 16-24-12, Ala.Code 1975, provides, in pertinent part:

That statute merely provides that a teacher is deemed reemployed for the following school year unless notified before the end of the present school term that his or her contract will not be renewed. See generally Boone v. Birmingham Bd. of Educ., 45 So.3d 757 (Ala.Civ.App.2008). The plain language of § 16-24-12 does not in any manner address whether a school board may cancel a teacher's employment contract in one school term for conduct occurring in a prior school term, much less preclude such a cancellation. See University of South Alabama Hosps. v. Blackmon, 987 So.2d 1138, 1142 (Ala.Civ.App. 2007) ("[W]hen `the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.' Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).").

Any suggestion that § 16-24-12 prevents a board of education from canceling the employment contract of a tenured teacher beyond the end of the school term in which the cause arose comes not from the language of the applicable statutes, but from statements in caselaw. In State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689 (1949), the Board of Education of Fairfield instituted a policy in February 1947 requiring its teachers to take a mental-ability test. When presented with the test without notice in March 1947, Maenetta Steele, a tenured teacher, merely signed her name and returned the test without answering any of the questions. The superintendent testified that he had given Steele an opportunity to retake the test but that she had refused. 252 Ala. at 259, 40 So.2d at 693. Based on those refusals, the board canceled Steele's contract of employment for insubordination in June 1947. 252 Ala. at 256, 40 So.2d at 691.

On appeal to our supreme court, Steele argued, among other points, that the decision to cancel her contract of employment was void because she was not notified of the cancellation until after the end of the 1946-1947 school term, in violation of § 360, Title 52, Ala.Code 1940,2 the predecessor to § 16-24-12. Id. In addressing that contention, the court considered the issue to be whether § 360 applied to tenured teachers whose employment contracts had been canceled in accordance with statutory procedural requirements. 252 Ala. at 257-58, 40 So.2d at 692. The court then stated:

252 Ala. at 258, 40 So.2d at 692-93 (emphasis added).

In Jackson v. Alabama State Tenure Commission, 625 So.2d 425 (Ala.Civ.App. 1991), this court rejected the appeal by a tenured teacher who claimed that the cancellation of her employment contract violated § 16-24-12. This court stated: "In Fairfield, the supreme court determined that the notice provisions of § 16-24-12, [Ala.] Code 1975, do not apply to tenured teachers, and until the supreme court overrules its holding in Fairfield, we must follow its mandate. Richardson v. State Tenure Commission, 585 So.2d 49 (Ala. Civ.App.1991)." 625 So.2d at 425.

On certiorari review, the supreme court, in Ex parte Jackson, 625 So.2d 425 (Ala. 1992), overruled Fairfield. In Ex parte Jackson, the Mobile County Board of Education adopted a proposal to cancel Lucy Jackson's teaching contract on March 14, 1990; however, the board did not notify Jackson of the proposed cancellation until August 1, 1990, and it did not vote to cancel her contract until August 20, 1990. 625 So.2d at 426. Jackson argued that the board should have notified her of its decision to cancel her contract before the end of the 1989-1990 school term so she could try to find another job for the 1990-1991 school term, in keeping with the purposes of § 16-24-12. 625 So.2d at 427. After concluding that the Fairfield court had misconstrued the statute, 625 So.2d at 428-29, and that § 16-24-12 was intended to prevent hardship to teachers resulting from undue delays in notifying them of a proposed contract cancellation, 625 So.2d at 429, the court held that § 16-24-12 applies equally to tenured teachers and probationary teachers alike. 625 So.2d at 430. The court then stated:

625 So.2d at 430.

In Morse v. Alabama State Tenure Commission, 705 So.2d 410 (Ala.Civ.App. 1997), the Tuscaloosa County Board of Education voted on August 23, 1995, to cancel the employment contract of Lonnie Morse, a tenured teacher. 705 So.2d at 410. Approximately one week before the end of the 1994-1995 school term, Morse was informed that it appeared that her position as a supervisor employed in the board's central office would be abolished. 705 So.2d at 411. On June 12, 1995, after the end of the 1994-1995 school term, the board voted to abolish Morse's position. Thereafter, the superintendent offered Morse employment as a teacher and informed Morse that she would recommend the cancellation of her employment contract if Morse failed to accept the offer. Morse did not respond to the offer, having previously informed the superintendent on two occasions that she would not return to work as a teacher. Id. On July 14, 1995, the superintendent recommended to the board that Morse's contract be canceled. After a hearing on August 17, 1995, the board canceled Morse's contract. 705 So.2d at 412.

On appeal to this court, Morse argued that the cancellation of her contract violated Ex parte Jackson because, she said, she did not receive notice of the proposed cancellation of her contract until July 17, 1995, well after the end of the 1994-1995 school term. 705 So.2d at 412. After quoting the excerpt from Ex parte Jackson set out above, this court held that "the Board's action did not violate our supreme court's holding in Ex parte Jackson, because the proposal to cancel Morse's contract did not predate the end of the school term." 705 So.2d at 412. This court determined that the proposal to cancel Morse's contract was not made until July 14, 1995, after Morse had declined to be reassigned to a teaching position. 705 So.2d at 413.

Fairfield, Ex parte Jackson, and Morse do not stand for the proposition that an employing board of education cannot cancel the employment contract of a tenured teacher for causes arising during a prior school term. In Fairfield, the supreme court specifically held that the predecessor statute to § 16-24-12 did not apply to tenured teachers, reasoning that, if it did, an employing board of education could only cancel the employment contract of a tenured teacher at the times specified in the statute. 252 Ala. at 258, 40 So.2d at 693. That statement regarding what the court considered to be a hypothetical situation obviously was not essential to its holding because the Fairfield court did not have to decide the effect of the statute on the contracts of tenured teachers. Accordingly, that statement must be considered "obiter dictum," "[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)." Black's Law Dictionary 1102 (8th ed. 2004).

In Ex parte Jackson, the supreme court did not hold that a school board could not propose to cancel the contract of a tenured teacher based on misconduct or other good and just causes occurring or arising in a prior school term. It simply held that, once the board proposes to cancel a teacher's contract during a school term, it must notify the teacher of that proposal before the end of the school term. 625 So.2d at 430. Morse merely held that, if good cause arises to cancel the contract of a tenured teacher in the summer following the end of a school term, the board may cancel the contract of the teacher before the start of the next school term.

From my review of applicable caselaw, I cannot find any case directly addressing the question whether the employment contract of a tenured teacher may be canceled in one school term for misconduct occurring in a prior school term. Based on the language of § 16-24-8, I believe that it can, at least insofar as that misconduct comes within the grounds set out in that statute. I cannot conceive that the legislature intended that a school board is barred from canceling the employment contract of a tenured teacher for cause simply because that cause arose in a prior school term. That view does not render § 16-24-12 inoperative, however. Once a school board proposes cancellation of the employment contract of a tenured teacher based on a cause or causes arising in prior school terms, in order to comply with § 16-24-12 and Ex parte Jackson, the board must notify the teacher of the proposed cancellation before the end of the school year in which the proposal was first made. Otherwise, the teacher will be deemed reemployed for the succeeding year.

In this case, the hearing officer found that Webb had committed a punishable act of misconduct on May 3, 2006. The record contains no evidence indicating, and the hearing officer's final decision contains no finding, that the Board had proposed to cancel Webb's contract before the end of the 2005-2006 school term. Rather, the record discloses that the school term expired three weeks after the May 3, 2006, incident, at which time the matter was still under investigation and Webb remained on administrative leave with full pay and benefits. The hearing officer also found that Linda Robinson, the interim superintendent for the Board, had notified Webb of her intent to recommend the cancellation of his contract on January 26, 2007. The Board approved that recommendation on February 20, 2007. Based on the evidence and the findings of the hearing officer, I find that the Board fully complied with § 16-24-12.

The hearing officer erred in deciding that Webb's teaching contract could not be canceled in the 2006-2007 school term for misconduct committed in the 2005-2006 school term. That error is reversible because it probably affected the outcome of the case. As explained earlier, the hearing officer suspended Webb only after concluding that his employment contract could not be lawfully canceled. For the reasons stated above, I agree that the case should be remanded for the hearing officer to reconsider whether Webb's employment contract should be canceled; therefore, I concur to overrule Webb's application for rehearing as to this issue.

I would, however, grant the application as to the other issue Webb has raised in his application for rehearing—whether the hearing officer erred in allowing Webb to "relitigate" his prior disciplinary actions. The hearing officer may decide that Webb's employment contract should be canceled based solely on the May 3, 2006, incident. If so, the Board would not be aggrieved by the ruling allowing Webb to present evidence regarding the prior disciplinary actions. Hence, I find the discussion regarding that ruling in this court's opinion on original submission to be unnecessary. For that reason, I would grant Webb's application for rehearing as to that issue and I would vacate that portion of the opinion on original submission discussing that issue.