Stephanie Wingfield v. City of Dothan and City of Dothan Personnel Board (Appeal from Houston Circuit Court: CV-22-58).

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,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________
CL-2023-0202
_________________________
Stephanie Wingfield
v.
City of Dothan and City of Dothan Personnel Board
Appeal from Houston Circuit Court
(CV-22-58)
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.
CL-2023-0202
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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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
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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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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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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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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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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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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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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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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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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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