Rel: December 8, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
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ALABAMA COURT OF CIVIL APPEALS

CL-2023-0202
_________________________

Stephanie Wingfield

v.

City of Dothan and City of Dothan Personnel Board

Appeal from Houston Circuit Court

FRIDY, Judge.

Stephanie Wingfield appeals from a judgment of the Houston

Circuit Court ("the circuit court") upholding a decision of the City of

Dothan Personnel Board ("the board") to terminate her employment with

the City of Dothan ("the city"). For the reasons discussed herein, we

reverse the judgment.

Background

Wingfield served as a recreation-program coordinator in the city's

Department of Leisure Services ("leisure services"). In that job, Wingfield

was responsible for the management of the food programs that leisure

services operated, including the Child and Adult Care Food Program.

According to the disciplinary-action form that initiated the proceedings

against Wingfield, on May 16, 2022, the city received a complaint

regarding the bid process for the award of the city's summer feeding

program, which provided meals to underprivileged children. Although

Wingfield, who supervised the summer feeding program, was not

involved in the bid process, the complaint led leisure services and the

city's Department of Finance ("finance") to investigate the management

and operation of the program.

After the investigation, leisure services and finance determined

that Wingfield had engaged in negligent and willfully improper conduct,

including providing incorrect information and untimely submitting

paperwork to the employees under her supervision, which prevented

them from adhering to the rules and regulations governing the feeding

program. The disciplinary-action form stated that the incorrect

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information was knowingly used for submission of incorrect reports to

the State of Alabama for monetary reimbursement. The form also stated

that Wingfield had engaged in the knowing and deliberate submission of

forms indicating the monthly meal and snack totals to the state for

reimbursement without true and accurate supporting documentation

and that she had made false statements to her supervisors, city

commissioners, and the city manager that the food program was being

operated according to its rules. The form stated that Wingfield had

allowed employees under her supervision to fail to adhere to required

"custody control" measures repeatedly, had failed to hold employees

accountable for their noncompliance with program rules, and had failed

to provide the required management and operational oversight of the

city's food programs.

Leisure services and finance claimed that Wingfield had committed

two "major offenses" that could cause financial loss to the city and that

she had acted negligently in carrying out her assigned duties and

responsibilities. The departments also claimed that she had committed

two "intolerable offenses" based on what they said was the deliberate

falsification of records and/or personal misrepresentation of statements

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made to her supervisor, officials, the public, or relevant city boards. No

criminal charges were levied against Wingfield; instead, the alleged

violations cited were administrative in nature.

On June 17, 2022, Wingfield was served with notice of a

determination hearing and possible disciplinary action. On June 21,

2022, a determination hearing was held before a hearing officer, at which

time Wingfield was given the opportunity to respond to the violations set

forth in the disciplinary-action form. The next day, June 22, 2022,

Wingfield received a written decision from the hearing officer finding

that she had committed the violations as specified, and her employment

was immediately terminated. Wingfield appealed the hearing officer's

decision to the board, which held an evidentiary hearing on July 27, 2022.

During the hearing, the city's finance director, Romona Marcus,

testified that leisure services had a contract pursuant to which a business

called Breakfast at Tammie's ("Tammie's") was to prepare meals and

snacks for the city's "At-Risk Afterschool Program" (“the after-school food

program”). Alison Hall, the director of leisure services, testified that

Wingfield was responsible for the management and operation of that

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program. She said that Wingfield received training from the State

Department of Education on operating the program.

Under the after-school food program, Marcus said, the city

delivered Tammie's meals to city-owned distribution centers where site

supervisors would accept them. The meals were distributed to children

and teens who qualified or who lived in neighborhoods that qualified for

free or reduced-priced lunches in the school system.

Marcus testified that the United States Department of Agriculture

provided the funding for the after-school food program, passing money

down to the states, which, in turn, passed the money to the organizations

that ran after-school programs. To operate its program, Marcus said, the

city received $2.1 million in 2021 and $1.1 million for part of 2022. In

2021, Marcus said, Tammie's billed leisure services $1.5 million for

370,000 meals.

Marcus explained that Tammie's billed leisure services monthly for

the meals it had prepared the previous month. Wingfield, as manager of

the after-school food program, was responsible for deciding how many

meals to order and for ordering those meals. Marcus and Hall testified

that Wingfield certified the invoices from Tammie's. Hall said that, as a

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department head, she was required to sign the invoices before the state

could reimburse the city for the cost of the meals. She said that she signed

the invoices based on Wingfield's certification that they were correct.

Marcus testified that she participated in a review and examination

of the management of the after-school food program at the city manager's

request. As part of her investigation, Marcus said, she interviewed site

supervisors and city employees about the information contained in the

various records that the program kept regarding the number of meals

ordered, delivered, and served, how and when those records were

completed, and who instructed them about how to keep the records. She

acknowledged that "a lot of the information" to which she testified was

what other people had told her and that she did not have any direct

experience working in the food programs.

At the hearing before the board, Marcus was shown a March 1,

2022, invoice from Tammie's, billing leisure services $34,580 for 38,200

snacks provided during February 2022. The invoice included a

breakdown showing which of seven distribution centers received the

snacks. Marcus said that the city did not own two of those centers and

that city employees did not work at those centers. Marcus said that she

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reviewed the March 2022 invoice for snacks and determined that about

27,400 of the snacks -- about 65% -- did not go where the invoice

indicated. A separate invoice indicated that the same number of meals

(as opposed to snacks) were also prepared that month. Tammie's billed

the leisure services $127,680 for the February meals. Marcus said that

she looked at invoices for other months and found that they also did not

correctly reflect where the meals and snacks were taken. Marcus

estimated that the city was paying approximately $105,000 per month

for meals and snacks that did not go where the invoices indicated. Marcus

said that the other documents reflecting the after-school food program's

operations in February 2022 that were explained at the hearing before

the board were representative of the documents she examined for other

months, as well.

Marcus testified that the city would pay the bills from Tammie's

and then the city would bill the state for the number of meals served. The

forms the city used to request the reimbursement indicated which sites

served the meals. She said that Wingfield prepared the reimbursement

requests, which reflected that the meals were served at the same sites

shown on the invoices from Tammie's. She further testified that the

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reimbursement documents she reviewed showed that all the meals went

to the sites; however, she added, only about 35% of the meals actually

went to those sites. Marcus noted that the records for the two distribution

sites that the city did not own were correct.

Marcus said that when the COVID-19 pandemic began in March

2020, children could not come to the city's distribution sites to get meals,

but, she said, the city was permitted to deliver meals to the children on

routes in specific neighborhoods. She explained that city employees

operated two vans that would pick up the meals from Tammie's and

deliver them to children along the neighborhood routes. Tammie's also

operated a van, she said. The drivers were supposed to keep records,

Marcus said, but they did not. Marcus testified that the records that were

turned in were not correct and that the people who were to keep the

records along the routes "all stated that Ms. Wingfield told them how" to

complete the forms they were to fill out daily.

Marcus testified that, like the route drivers, site supervisors were

supposed to keep daily records of the meals they received. Marcus said

that she talked with site supervisors who told her they did not keep up

with the forms daily and, instead, completed the forms the way Wingfield

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CL-2023-0202

told them to. For example, Marcus said, the supervisor at one site told

her that the daily forms were normally not filled in until mid- to late

month, when, Marcus said, the supervisor learned from Wingfield what

numbers she was to use to fill in for the number of meals delivered.

Marcus testified that, according to her interview with a supervisor

from one of the sites, the same method was used for the monthly reports

the site supervisors were to complete. For example, the monthly report

for February 2022 indicates that 8,797 meals were delivered to a specific

site. Marcus said that she determined that the actual number of meals

delivered to that site was 1,900. Marcus testified that the supervisor for

that site told her that Wingfield would provide the site supervisor with

the numbers she was to record on the monthly forms.

All meal-distribution sites were required to complete a daily record

form showing the name of the person who received each meal. Marcus

said that Wingfield put the names on the forms provided to the

distribution sites. An "X" was placed by the name if that person was

served, and an "A" was placed by the name if the person was absent. At

the same site she had previously discussed, Marcus said, the forms were

not filled out daily. There were 100 children served at that site, Marcus

9
CL-2023-0202

said, and the form for February 2022 indicated, that meals were served

for nineteen days, for a total of 1,900 meals. However, the invoice for that

month indicated that the city was billed for 8,797 meals for that site.

Marcus said that the supervisor at that particular site told her that she

was not able to complete the forms daily because she did not receive the

forms in time to do so. The supervisor told Marcus that she would receive

the forms with the names of who was to receive a meal mid- to late month,

and that Wingfield gave her those forms. When the supervisor received

the forms, the children's names were already on it, but the names were

not necessarily of the same children who had received the meals.

When the after-school food program was operating during the

COVID-19 pandemic, Marcus said, the city employees who delivered the

meals along the neighborhood routes were to complete the same types of

daily forms showing the names of the children who received meals on

their routes. However, Marcus said, those employees also received their

forms late and the names of children were already filled in. The people

handing out the meals on the routes did not know who was receiving the

meals, but on Wingfield's instructions, they would put "X"s by a number

of names equal to the number of meals that Wingfield told them to enter

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CL-2023-0202

on the forms. Marcus said that she determined that there would be meals

left over and that the route drivers told her that, on Wingfield's

instructions, they did not return those meals to Tammie's. Marcus said

that the drivers told her they would either drive an alternate route to

hand out the remaining meals, take the meals home for themselves, or

sometimes throw away the meals. Marcus said that, during the

pandemic, the two meal-distribution centers that city employees did not

operate did not distribute any of their meals using the neighborhood

routes.

In addition to the discrepancies already described, Marcus said that

the documents she reviewed indicated that meals were claimed for the

same children at different sites. Absences reported for the children at the

sites did not match the absences for the children on the meal records, she

said, and the number of daily absences at the sites and for the meals did

not match. Marcus said that there were also meals and snacks that were

claimed on lines on the forms where no children's names were listed. She

said that one of the site supervisors reported that she had told Wingfield

that too many meals were being delivered to her site but that Wingfield

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CL-2023-0202

did not subsequently modify the number of meals that were being sent to

that site.

No testimony was presented regarding a possible reason for why

Wingfield provided incorrect figures and information for the after-school

food program records. For example, there was no evidence that Wingfield

was receiving any type of personal gain as a result of the incorrect

records. While Wingfield's attorney was cross-examining Marcus

regarding the information in the records, the attorney for the city advised

the board that a motive for Wingfield's actions had not been discerned

and to attribute a motive to her would be based on speculation.

Marcus testified that Wingfield's mismanagement of the after-

school food program was required to be disclosed in the city's annual

audit, which would likely result in the city’s being listed as a "high-risk

auditee" in its comprehensive annual financial report. That report is sent

to every agency that supplies the city with federal money and grants, not

just the agency that provides money for the after-school food program.

Marcus said that Wingfield's mismanagement had "a potential to affect

federal funding citywide for several years." She also said that, because

the records for the after-school food program were not accurate, there was

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CL-2023-0202

a potential that the city would have to repay the state a portion of the

money the city received to operate the program.

Marcus reported her findings to Hall, who confirmed them with the

city employees who were involved with the after-school food program.

Hall said that the grounds for her decision to terminate Wingfield's

employment included Wingfield's incorrect completion of the paperwork

that the program required, her failure to adequately train the employees

that participated in the program, and her failure to provide them with

what they needed to complete their tasks.

Wingfield did not testify before the board, nor did she present any

witnesses on her behalf. Her personnel record was admitted into evidence

at the hearing.

On August 31, 2022, the board voted unanimously to uphold the

decision to terminate Wingfield's employment. Wingfield appealed to the

circuit court. On October 24, 2022, the circuit court entered an order

stating that, in accordance with § 45-35A-51.32, Ala. Code 1975, its

review of the board's order would not be de novo; rather, the circuit court

stated that it would review the board's order based on the evidence

contained in the transcript of the board's proceedings. The circuit court

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CL-2023-0202

called on the parties to brief whether the appeal to the circuit court was

proper and timely, whether there was sufficient legal evidence, i.e.,

substantial legal evidence, to support the board's order, and whether the

board's order was unlawful and unreasonable.

On November 7, 2022, Wingfield filed what she said was a "motion

to alter, amend, or vacate" the "judgment" of October 24, 2022, in which

she asserted that the board's order upholding the decision to terminate

her employment should receive de novo review in the circuit court. The

circuit court denied that motion on November 7, 2022. The parties

submitted their briefs to the circuit court, which held oral argument on

February 21, 2023.

On March 3, 2023, the circuit court entered a judgment finding that

the board's decision was supported by substantial legal evidence and that

the city had "properly afforded due process" to Wingfield throughout the

termination proceedings. Therefore, the circuit court concluded, the

board's decision of August 31, 2022, upholding the city's decision to

terminate Wingfield's employment was itself due to be affirmed.

Wingfield appealed to this court on March 30, 2023.

Analysis

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CL-2023-0202

Wingfield raises four arguments on appeal, but one of those

arguments is dispositive. Wingfield contends that the circuit court erred

in finding that substantial evidence supported the board's decision to

uphold the termination of her employment. She asserts that, if the

hearsay testimony presented during the board's hearing is not

considered, there was insufficient legal evidence to support the circuit

court's judgment affirming the board's decision to uphold the termination

of her employment. Wingfield specifically contends that the evidence of

her alleged misconduct consisted of Marcus’s and Hall’s testimony as to

what others had told them, which, she argues was hearsay. Wingfield

asserts that Marcus and Hall had no personal knowledge of her alleged

misconduct.

Section § 45-35A-51.32, part of the Civil Service Act of Dothan, §

45-35A-51 et seq., Ala. Code 1975, which governs judicial review of

decisions of the board, provides that "[t]he findings of fact by the board,

duly set forth in the transcript, if supported by substantial evidence

adduced before the board, after notice to the interested party or parties

and after affording such parties an opportunity to be heard, shall be

conclusive on any appeal." Hearsay evidence of probative force may be

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CL-2023-0202

considered in an administrative hearing. Estes v. Board of Funeral Serv.,

409 So. 2d 803 (Ala. 1982). "Nonetheless, there must be sufficient legal

evidence to support the order of an administrative board. If founded only

on hearsay or other improper evidence, the decision of a board cannot be

sustained." Id. at 804. See also Alabama State Pers. Bd. v. Palmore, 277

So. 3d 977, 983 (Ala. Civ. App. 2018) (explaining that an administrative

board may consider probative hearsay evidence, but the board's decision

cannot be based solely on such evidence).

During his cross-examination of Marcus and Hall, Wingfield's

attorney asked whether they had personal knowledge of the information

to which they testified. Marcus, who worked in the finance department,

testified that she had interviewed site supervisors, route drivers, and

other employees to obtain information regarding how the after-school

food program's records had been compiled, who instructed the employees

on keeping those records, and other facts that had led to the charges

against Wingfield. Hall testified that she had confirmed Marcus's

findings through those employees. Thus, it appears from the record that

the testimony that supported the city's termination of Wingfield's

employment -- that she had knowingly used incorrect information in the

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CL-2023-0202

completion of forms required for the city to be reimbursed for meals and

snacks purchased through the program, that she had provided the

employees under her supervision with incorrect information, and that

she had failed to provide them with the information and documents they

needed to do their jobs properly -- was based solely on information that

Marcus and Hall had learned from others.

In contrast, the only testimony Marcus and Hall gave that appears

to have been based on their personal knowledge concerned the way the

after-school food program was funded, Wingfield's duties and

responsibilities, and the ramifications of the incorrect information

contained in the records that the program required. None of that

testimony demonstrated that Wingfield had engaged in any improper or

wrongful conduct.

As for the documentary evidence the city submitted, we conclude

that, without the explanations from the employees about the timeliness

of their receipt of the forms they were to fill out, the way Wingfield

instructed them to complete the forms, and how those forms were

actually completed, none of those documents, on their faces, are sufficient

to support the charges against Wingfield. Even if they were sufficient to

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support the charges, those documents likewise constitute hearsay

evidence, as they appear largely to be out-of-court recordings of

information with no testimony offered to demonstrate their admissibility.

See, e.g., Rule 803(6), Ala. R. Evid. (providing, as an exception to hearsay,

records of regularly conducted business activity when those records

reflect information made by a person with knowledge, kept in the course

of regularly conducted business activity, and if it was the regular practice

of the business activity to make such records).

The city argues that Wingfield did not object to Marcus’s and Hall's

testimony on the ground that their testimony constituted hearsay or was

based on hearsay. In so arguing, the city misconstrues Wingfield's

contention and the applicable law. As noted above, hearsay evidence is,

in fact, admissible at a board hearing, and a board is permitted to

consider such evidence in deciding an administrative matter before it.

However, as Wingfield argues and as this court has previously stated, to

sustain a board's determination, that determination must be based on

sufficient legal evidence, not just evidence that is hearsay or is otherwise

improper. See Estes, 409 So. 2d at 804. Thus, the error here is not that

the board considered hearsay evidence, the error is that only evidence

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CL-2023-0202

supporting the board's determination was either hearsay or was based on

hearsay.

In this respect, the board's reliance on Ex parte Williamson, 907 So.

2d 407 (Ala. 2004), is misplaced. In Williamson, the Alabama

Department of Public Health sought to revoke the license of an assisted-

living facility -- a process governed by the rules of evidence for contested

cases, as set forth in § 41-22-13, Ala. Code 1975, part of the Alabama

Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala. Code

1975. Our supreme court held that, under § 41-22-13(1), "it is plain that

the rules of evidence concerning the necessity for an objection to preserve

error are applicable in this case." 907 So. 2d at 415. Unlike in Williamson,

this case is governed by the Civil Service Act of Dothan, not the AAPA,

and the Civil Service Act of Dothan does not contain a similar provision

regarding the preservation of error and the consideration of hearsay

testimony on judicial review of the board's decisions. Indeed, as noted

above, the admission of hearsay evidence by the board did not constitute

error. Rather, the board's decision was in error because it was based

solely on hearsay evidence.

Conclusion

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Because the board's order is founded only on hearsay evidence,

there is insufficient legal evidence to support the board's decision, and it

cannot be sustained. Estes 409 So. 2d at 804. Therefore, the judgment of

the circuit court is due to be reversed and the cause remanded for entry

of a judgment consistent with this opinion.

REVERSED AND REMANDED.

Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.

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