author: WISE, Justice.

text:
    EX PARTE Angela MCCLINTOCK et al.
    (In re: K.H., as parent and next friend of T.H., a minor; and T.H., as parent and next friend of K.W., a deceased minor v. Angela McClintock et al.)
    1160782
    Supreme Court of Alabama.
    December 1, 2017
    Steve Marshall, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua Lane and Kimberly J. Dobbs, asst. attys. gen., Department of Human Resources, for petitioners.
    G. Courtney French and Michael D. Petway of Fuston, Petway & French, LLP, Birmingham, for respondents.
   WISE, Justice.

Angela McClintock, Stephanie Streeter, and Christa Devaughn (hereinafter referred to collectively as "the petitioners"), all of whom are employees of the Jefferson County Department of Human Resources ("JCDHR") and defendants below, petitioned for a writ of mandamus requesting that this Court direct the Jefferson Circuit Court to enter a summary judgment in their favor based on State-agent immunity. We grant the petition and issue the writ.

Facts and Procedural History

On June 30, 2011, T.H. was charged with third-degree domestic violence when S.W., T.H.'s mother, filed charges against her for striking a sibling in the face. On December 21, 2011, T.H. gave birth to K.W. On December 23, 2011, while T.H. was still in the hospital, T.H.'s grandmother reported to JCDHR that she had concerns that T.H. would not be able to care for her new baby, that T.H. had left her father's home, and that T.H. had a history of running away. After conducting an investigation, JCDHR allowed T.H. to be discharged from the hospital to the home of K.M., T.H.'s second cousin.

On December 27, 2011, a social worker with JCDHR contacted K.M. to schedule a home visit. At that time, K.M. advised the social worker that T.H. had left with K.W. shortly after arriving at her house. She also indicated that she thought that T.H. and K.W. were living with K.W.'s father.

On December 29, 2011, K.H., T.H.'s father, filed a dependency complaint, seeking custody of K.W. In his complaint, he alleged:

"[T.H.] is a 15-year old who think[s] she is grown, she do[es] not want to follow rules. She is real disrespectful, t[o]ward me, and she do[es] not want to do anything I say. She is so out of control, and says I, can't tell her what to do, because she [is] grown; so that's why I need legal help, before she get[s] hurt or hurt[s] her baby. Also mother 15 gave birth to a baby boy on 12-21-2011 and ran away and left baby unattendent [sic]."

On January 4, 2012, K.H. filed a motion to dismiss the complaint, stating that he had "found [T.H.] and her infant baby boy and now have them in my care, and if for any reason she run[s] away, I am to contact Det. Thomas."

On January 20, 2012, Devaughn filed a dependency complaint as to T.H. and a request for a pickup order for K.W. She alleged that T.H., who was a minor, was not living with her custodian, K.H.; that K.H. was being investigated for abandonment; that T.H. had a history of running away; and that T.H. had not shown that she could responsibly care for K.W. K.W. was picked up and placed in the foster home of Dennis Gilmer on that same date.

K.W. died on February 24, 2012, while in foster care. At the time of K.W.'s death, McClintock was the director of JCDHR; Streeter was an assistant director of child welfare for JCDHR; and Devaughn was a child-abuse and neglect investigative worker for JCDHR.

On February 21, 2014, K.H. and T.H. filed a complaint in the Jefferson Circuit Court against the petitioners, Brandon Hardin, Dennis Gilmer, and JCDHR. They stated claims of wrongful death of a minor, negligence, wantonness, and negligent/wanton training and supervision. K.H. and T.H. alleged that the petitioners had negligently, wantonly, and/or recklessly removed K.W. from T.H.'s custody; that they had negligently, wantonly, and/or recklessly placed him in Gilmer's care; and that they had negligently, wantonly, and/or recklessly failed to properly train, instruct, and supervise Gilmer. They also alleged that Gilmer had negligently, wantonly, or recklessly allowed K.W. to be placed face-down on a sheet that was allegedly too large for the mattress in his crib and that, as a result, K.W. had suffered fatal injuries.

On August 29, 2016, the petitioners filed a motion for a summary judgment. They argued that they were entitled to immunity on several bases, including an assertion that they were entitled to State-agent immunity pursuant to Ex parte Cranman, 792 So.2d 392 (Ala. 2000). On March 9, 2017, K.H. and T.H. filed a motion in opposition to the petitioners' motion.

The trial court conducted a hearing on the motion for a summary judgment. On February 20, 2017, it denied the motion. This petition followed.

Standard of Review

" 'While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.' Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000). A writ of mandamus is an extraordinary remedy available only when there is: '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)."

Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003). Also,

"whether review of the denial of a summary-judgment motion is by a petition for a writ of mandamus or by permissive appeal, the appellate court's standard of review remains the same. If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is a material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment. Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000)."

Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002).

Discussion

The petitioners argue that the trial court erroneously denied their motion for a summary judgment. Specifically, they contend that they presented evidence indicating that they were "discharging duties imposed on a department or agency by statute, rule, or regulation" at the time of the actions challenged in this case. The petitioners also assert that K.H. and T.H. failed to satisfy their burden of establishing that one of the exceptions to State-agent immunity applies to this case. Therefore, the petitioners argue, they are entitled to State-agent immunity pursuant to Ex parte Cranman, supra.

In Ex parte Cranman, the rule governing State-agent immunity was restated as follows:

"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
"(1) formulating plans, policies, or designs; or
"(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
"(a) making administrative adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d) hiring, firing, transferring, assigning, or supervising personnel; or
"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
"(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; or
"(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.

"Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity

"(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
"(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."

792 So.2d at 405. Even though Cranman was a plurality decision, its restatement of the law as to State-agent immunity was later adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala. 2000). "Once it is determined that State-agent immunity applies, State-agent immunity is withheld upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Cranman, 792 So.2d at 405." Ex parte Bitel, 45 So.3d 1252, 1257-58 (Ala. 2010). Also,

"[t]his Court has established a 'burden-shifting' process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052 ; Ex parte Wood, 852 So.2d 705, 709 (Ala. 2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052 ; Wood, 852 So.2d at 709 ; Ex parte Davis, 721 So.2d 685, 689 (Ala. 1998). 'A State agent acts beyond authority and is therefore not immune when he or she "fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist." ' Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala. 2000) ).

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006).

"One of the ways in which a plaintiff can show that a State agent acted beyond his or her authority is by proffering evidence that the State agent failed ' "to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist." ' Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003) (quoting Ex parte Butts, 775 So.2d [173,] 178 [ (Ala. 2000) ] ).

Ex parte Kennedy, 992 So.3d 1276, 1282-83 (Ala. 2008).

The petitioners assert that they are entitled to State-agent immunity based on category (3) in Cranman-"discharging duties imposed on a department or agency by statute, rule, or regulation," 792 So.2d at 405. K.H. and T.H. do not refute this assertion in their response to this Court. We agree with the petitioners and hold that they satisfied their burden of establishing that they were entitled to State-agent immunity based on Ex parte Cranman.

Because the petitioners established that they were entitled to State-agent immunity, the burden then shifted to K.H. and T.H. to establish that " 'one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable.' " Ex parte City of Montgomery, 99 So.3d 282, 293 (Ala. 2012) (quoting Ex parte Kennedy, 992 So.2d at 1282 ). After the petitioners presented evidence showing that they would be entitled to State-agent immunity, K.H. and T.H. argued that the petitioners "acted beyond their authority and failed to discharge their duties pursuant to the mandatory rules and regulations of the Alabama Department of Human Resources which did not leave room for them to exercise any discretionary or professional judgment regarding the removal and placement of [K.W.]." Specifically, they contended that the petitioners violated the allegedly mandatory relative-placement policy of the Alabama Department of Human Resources ("DHR") and failed to ensure that Gilmer complied with the requirements set forth in DHR's "Minimum Standards for Foster Family Homes."

With regard to the relative-placement policy, K.H. and T.H. cited DHR's "Out-of-Home Care Policies and Procedures" guidelines for choosing the least restrictive setting for the placement of children. The portion of the guidelines upon which K.H. and T.H. rely states, in relevant part:

"When out-of-home care becomes necessary, children should be placed in the least restrictive setting. This means the most family-like setting that can provide the environment and services needed to serve the child's best interest and special needs. Relative placement should always be given first consideration after which foster family care, group home care, and institutional care, are to be considered in that order."

Although they cited the guidelines regarding relative placements and made general allegations that the petitioners failed to consider T.H.'s grandmother, G.C., and her father, K.H., as relative placements for K.W., K.H. and T.H. did not present any actual evidence to support those allegations.

Also, with regard to the foster-family-home policies, K.H. and T.H. cited to DHR's "Minimum Standards for Foster Family Homes" guidelines for physical care of children. The portions of the guidelines upon which they rely state:

"If infants will be placed in the home, the additional guidelines must be followed:
"(1) Clean, tight fitting crib sheets shall be provided as frequently as needed.
"(2) An infant shall sleep alone in a crib until age 18 months. It is strongly recommended the infant be placed on his or her side or back or as recommended by a pediatrician."

K.H. and T.H. asserted:

"Viewing the facts in the light most favorable to [K.H. and T.H.], a trier-of-fact could reasonably conclude that Defendants McClintock, Streeter and Devaughn allowed [K.W.] to be placed into a foster home without first properly training, instructing or supervising their staff and/or the foster care providers on the Minimum Standards for Foster Family Homes, which resulted in [K.W.] being placed face-down on a sheet too large for his crib's mattress, thereby posing the potential for suffocation."

Again, although they cited the guidelines for care of children by foster families and made general allegations about the petitioners' actions and/or inactions, K.H. and T.H. did not present any evidence to support those allegations.

K.H. and T.H. did not present any evidence, much less substantial evidence, to create a genuine issue of material fact as to whether the petitioners " 'failed " 'to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist,' " ' " Ex parte City of Montgomery, 99 So.3d at 294 (quoting other cases), or acted willfully, maliciously, fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law. Because K.H. and T.H. did not demonstrate that one of the exceptions to State-agent immunity under Ex parte Cranman applies under the facts of this case, the petitioners are entitled to State-agent immunity. See Ex parte Jefferson Cty. Dep't of Human Res., 63 So.3d 621, 627 (Ala. 2010).

Conclusion

For the above-stated reasons, we conclude that the petitioners have established that they have a clear legal right to a summary judgment in their favor based on State-agent immunity under Ex parte Cranman. Accordingly, we grant the petition for a writ of mandamus and direct the trial court to vacate its order denying the petitioners' motion for a summary judgment and to enter a summary judgment for the petitioners.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Main, Bryan, and Sellers, JJ., concur.

Murdock, J., concurs in the result.

Parker and Shaw, JJ., dissent.

The third category of Cranman immunity applies to the discharge of duties imposed by statute, rule, or regulation, but only "insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner." Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000). By its terms, this condition does not appear to be applicable in this case. I do believe, however, that the actions for which the petitioners are allegedly liable involve the exercise by those individual petitioners of discretion in a quintessentially State function. I therefore concur in the result.

The decision in Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000), provides that State agents are immune from civil liability when the conduct made the basis of the claim against them is based upon the agents' "discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner." (Emphasis added.) Although the petition for the writ of mandamus indicates that the State agents in this case were exercising discretion or judgment and that they were discharging duties imposed by statutes, rules, or regulations, the petition does not convince me that those statutes, rules, or regulations prescribed "the manner for performing" those duties and that the petitioners were discharging those duties "in that manner." The petition does not demonstrate that the burden shifted to K.H. and T.H. to show that an exception to Ex parte Cranman applies; therefore, I respectfully dissent.

      It appears that the claims against Hardin, Gilmer, and JCDHR were dismissed.

      No party has provided a transcript of the hearing for this Court's review.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Clifford Goodman WRIGHT, administrator of the Estate of Mary Evelyn Wright, deceased v. CLEBURNE COUNTY HOSPITAL BOARD, INC., d/b/a Cleburne County Nursing Home, et al.
    1151317
    Supreme Court of Alabama.
    December 29, 2017
    Jeremy Knowles and Nancy Eady of Morris, Haynes, Wheeles, Knowles & Nelson, Birmingham, for appellant.
    Angela Cameron Smith and E. Travis Ramey of Burr & Forman LLP, Birmingham, for appellees.
    James W. Porter II and Richard Warren Kinney III of Porter, Porter & Hassinger, P.C., Birmingham, for amicus curiae Utilities Board of the City of Brent, in support of the appellee, Cleburne County Hospital Board.
    James E. Hill III and Candace B. Crenshaw of Hill, Hill & Gossett, P.C., Moody, for amicus curiae County Commission of St. Clair County, in support of the appellees.
    James E. Hill III and Candace B. Crenshaw of Hill, Hill & Gossett, P.C., Moody, for amici curiae City of Moody, City of Springville, City of Ashville, and City of Argo, in support of the appellees.
    Patrick L.W. Sefton and Robert E. Sasser of Sasser, Sefton & Brown, P.C., Montgomery, for amicus curiae Alabama Water and Wastewater Institute, in support of the appellees.
    Bernard Harwood of Rosen Harwood, P.A., Tuscaloosa, for amicus curiae Alabama League of Municipalities, in support of the appellees.
    William H. Webster of Webster, Henry, Lyons, Bradwell, Cohan & Speagle, P.C., Montgomery; Allen M. Estes of Balch & Bigham, LLP, Birmingham; and Mark D. Hess of Hand Arendall, LLC, Birmingham, for amicus curiae Alabama Defense Lawyers Association in support of the appellees.
    Kendrick E. Webb, Craig S. Dillard, and Jamie H. Kidd of Webb & Eley, P.C., Montgomery, for amicus curiae Association of County Commissions of Alabama, in support of the appellees.
   MURDOCK, Justice.

Pursuant to Rule 5, Ala. R. App. P., this Court granted Clifford Goodman Wright ("Wright"), the administrator of the estate of Mary Evelyn Wright, deceased, permission to appeal from an interlocutory order of the Cleburne Circuit Court ("the trial court"). In that order, the trial court ruled that the $100,000 cap on damages set out in § 11-93-2, Ala. Code 1975, applied to Wright's claims against three nurses-Dawn Reid, Phyllis Harris, and Tuwanda Worrills (hereinafter referred to collectively as "the nurses")-who were employees of the Cleburne County Hospital Board, Inc., d/b/a Cleburne County Nursing Home ("the Hospital Board"), at the times relevant to Wright's action. Section 11-93-2 governs "[t]he recovery of damages under any judgment against a [county or municipal] governmental entity." Because Wright sued the nurses seeking money damages in their individual capacities, the trial court erred in applying § 11-93-2 to Wright's claims. Accordingly, we reverse the trial court's judgment and remand the case.

Facts and Procedural History

In October 2013, Mary Evelyn Wright ("Mary") commenced a personal-injury action against "Cleburne County Hospital and Nursing Home, Inc." Mary asserted in her complaint that she had suffered injuries from a fall while she was a resident of a nursing home allegedly operated by the defendant ("the nursing home"). Mary died, allegedly from her injuries, the day after the complaint was filed. Wright was appointed the administrator of Mary's estate and was substituted as the plaintiff.

In response to the complaint, the Hospital Board filed an answer indicating that it operated the nursing home where the incident occurred and that it was the proper defendant in the action. Thereafter, Wright amended the complaint to correctly identify the Hospital Board as the defendant. Wright also amended the complaint to add the nurses as defendants and to assert wrongful-death claims against the nurses and the Hospital Board.

In the amended complaint, Wright alleged that the nurses provided health-care services to Mary while she was a resident of the nursing home, that the nurses negligently breached the applicable standard of care, and that those breaches proximately caused Mary's injuries and subsequent death. Specifically, Wright alleged that the nurses breached the standard of care by:

"(a) Negligently failing to provide adequate supervision to the nursing staff to aid Mary Evelyn Wright with ambulation when out of bed to prevent falls;
"(b) Negligently failing to provide appropriate nursing care in accordance with the [Hospital Board's] policy and procedure manual, the rules of the Alabama State Board of Health for facility, and the regulations of the U.S. Department of Health and Human Services, on care plans, fall risk assessments, and safety measures to prevent falls;
"(c) [F]ail[ing] to provide, assure, modify, and publish to nursing personnel nursing care plan revisions and modifications following the quarterly nursing review on 10/2/13 and the Interdisciplinary Care Plan Team meeting on 10/2/13 as the needs of Mary Evelyn Wright changed;
"(d) Negligently failing to implement and assure an adequate nursing care plan for Mary Evelyn Wright was followed by nursing personnel;
"(e) Negligently failing to add nursing interventions to protect Mary Evelyn Wright from falling since she had previously fallen in the facility on 9/28/13;
"(f) Negligently failing to properly assess Mary Evelyn Wright for the risk of falling;
"(g) Negligently failing to provide adequate safety measures to protect Mary Evelyn Wright from falling;
"(h) Negligently failing to provide appropriate assistance with ambulation and toileting;
"(i) Negligently failing to provide care, treatment, assessments and medication in accordance with the physicians' orders and standard nursing practice;
"(j) Negligently failing to maintain medical records which contained sufficient information to justify the diagnosis and treatment and to document the results, including documented evidence of assessments of the needs of Mary Evelyn Wright and establish appropriate plans of care, services, and treatment;
"(k) Negligently failing to appropriately monitor Mary Evelyn Wright and recognize signs and symptoms of a change in her health condition;
"(l ) Negligently failing to properly notify the family of Mary Evelyn Wright of a change in her health condition; [and]
"(m) Negligently failing to notify the attending physician of Mary Evelyn Wright of a change in her health condition."

Wright sued the nurses in their individual capacities. Wright also alleged that the nurses, at all relevant times, "were acting within the line and scope of their employment as the agent[s], servant[s], and/or employee[s] of [the Hospital Board]" and therefore that the Hospital Board was vicariously liable for the nurses' alleged acts and omissions.

The Hospital Board and the nurses sought an order from the trial court declaring that Wright's claims are subject to the damages cap of § 11-93-2, Ala. Code 1975, which provides:

"The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence. Recovery of damages under any judgment or judgments against a governmental entity shall be limited to $300,000.00 in the aggregate where more than two persons have claims or judgments on account of bodily injury or death arising out of any single occurrence. Recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for damage or loss of property arising out of any single occurrence. No governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth."

Thereafter, the trial court entered an order stating that "[t]he provisions of Ala. Code [1975,] § 11-93-2 [,] shall apply to ... all claims asserted against the [nurses] in the line and scope of their employment" and that "[a]ny judgment rendered against any of the [d]efendants will be subject to the provisions of Ala. Code [1975,] § 11-93-2." We granted Wright's request for permission to appeal from that order as to the individual-capacity claims against the nurses.

Analysis

As this Court stated in Morrow v. Caldwell, 153 So.3d 764, 767 (Ala. 2014), an appeal under Rule 5, Ala. R. App. P.,

"presents a pure question of law. This Court has held: ' " " '[O]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court's review is de novo.' " Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala. 1999) (quoting Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997) ).' City of Prattville v. Corley, 892 So.2d 845, 847 (Ala. 2003)."

Invoking Rule 5(a), Ala. R. App. P., the trial court submitted four questions of law for this Court's consideration:

"1. Has the ruling in Ravi v. Coates, 662 So.2d 218 (Ala. 1995), that claims against governmental entity employees are not subject to the § 11-93-2 cap been overturned by the ruling in Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala. 1999) ?
"2. With respect to the cap, are the terms 'line and scope of employment' synonymous with 'official capacity'?
"3. Can governmental entity non-elected employees working within the line and scope of their employment be sued in their individual capacity as well as in their official capacity?
"4. Are nurses employed by a 'governmental entity' hospital protected by the § 11-93-2 cap in their individual capacities when their actions or omissions occurred while they were working within the line and scope of their employment?"

Questions 1 and 4 are answered by our holdings and analysis in the case of Ravi v. Coates, 662 So.2d 218 (Ala. 1995), about which the trial court inquires in question 1, and our more recent decisions in Suttles v. Roy, 75 So.3d 90, 98 (Ala. 2010), Morrow v. Caldwell, 153 So.3d 764 (Ala. 2014), and Alabama Municipal Insurance Corp. v. Allen, 164 So.3d 568, 574 (Ala. 2014). A response to questions 2 and 3 requires but an acknowledgment of basic principles of agency and employment law that serve as the well established framework for our discussions in these and countless other public-employee cases. We begin with a brief acknowledgment of those principles, before more specifically discussing how the referenced cases address the issues raised in questions 1 and 4.

It is axiomatic that an employee acting in the line and scope of his employment may, in the course of doing so, violate a duty owed by the employee individually to a specific third party (e.g., a driver on an errand for his employer owes an individual duty of care to third-party motorists whom he encounters on public roadways). If the employee breaches that duty, he may be sued in his individual capacity, even as his employer may simultaneously be vicariously liable under the doctrine of respondeat superior because the employee was acting within the line and scope of his employment when he committed the tort. Thus, in answer to questions 2 and 3, a government employee sued for a tortious act committed in the line and scope of his employment may, in an appropriate case (i.e., where the employee has breached a duty he owes individually to a third party), be sued individually. As will be evident in our discussions below of Ravi, Suttles, Morrow, and Allen, this principle is integral to the analysis in these public-employee cases.

And, of course, it is the plaintiff who is "the master of his complaint." It is the plaintiff who elects whether to frame his claim as one seeking recovery against a defendant in his official capacity or one seeking a recovery against the defendant in his individual capacity-or both. See, e.g., Ex parte Sundy, 164 So.3d 1089, 1093 (Ala. 2014). Whether the law recognizes a duty to the plaintiff on the part of the defendant in the capacity alleged by the plaintiff goes to the merit of the claim framed by the plaintiff. See note 2, supra. It is for the court to address the merit of the claim as framed by the plaintiff, not to reframe it.

We turn now to questions 1 and 4 as framed by the trial court. We first acknowledge the holding of Ravi v. Coates, 662 So.2d 218 (Ala. 1995), to which the trial court refers in question 1. The trial court in Ravi"granted the [county] hospital's motion to reduce the judgment against it to $100,000 pursuant to § 11-93-2, Ala. Code 1975, but denied the motion to do likewise for the [nurse-]employees of the hospital, Cathy Foxworthy and Wilma Vaughn." 662 So.2d at 223. On appeal, Foxworthy and Vaughn argued that the trial court erred by not applying the § 11-93-2 damages cap to the damages award against them. This Court rejected that argument, noting that, by its terms, § 11-93-2 applies to damages awards " 'against a governmental entity,' " as that term is defined in § 11-93-1(1), Ala. Code 1975. 662 So.2d at 223 (quoting § 11-93-2 ). The Court concluded that, "because § 11-93-2 does not apply to the employees of a governmental entity, the court properly refused to reduce the judgment against nurses Foxworthy and Vaughn." 662 So.2d at 223 (emphasis added).

The holding in Ravi is consistent with the fundamental principle that a government employee is liable, in his individual capacity, for torts committed against a third party to whom the employee individually owes a duty. Nothing in Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala. 1999), unsettles this fundamental principle. As observed in note 2, supra, the county commissioners and the county engineer in Smitherman owed no personal duties to the plaintiff in that case. Accordingly, this Court's analysis in Smitherman did not apply the damages cap of § 11-93-2 to the claims against those defendants in their individual capacities. There was no need to do so. Instead, the outright dismissal of those claims, upheld by this Court, was consistent with the fundamental principle that a government official or employee may be liable individually to a third party only if the official or employee owes a duty, individually, to that party.

On the other hand, the plaintiff's claims against the county commissioners and the county engineer in Smitherman, to the extent brought against those officials in their official capacities, did state otherwise cognizable claims for relief under Alabama law, and, therefore, the damages cap of § 11-93-2 was apposite to those claims. In so holding, this Court left no doubt that, in fact, claims against county officials or employees in their individual capacities and in their official capacities are in fact two separate things. Far from overruling Ravi, the Court's analysis in Smitherman distinguished-and reinforced-the holding in Ravi by explaining that a suit against a public official in his official capacity, as opposed to his individual capacity, is subject to the damages cap of § 11-93-2 :

"The plaintiffs and amicus Alabama Trial Lawyers Association argue that the cap statute should not apply to any entity except the county, citing Ravi v. Coates, 662 So.2d 218, 223 (Ala. 1995)....
"....
"The plaintiffs are correct in stating that in Ravi this Court held that the cap did not apply to nurses employed by a public hospital. However, in that case, this Court did not analyze the distinctions between claims against public employees in their individual capacities and those against public employees in their official capacities. That distinction is a key element in our analysis of this case."

746 So.2d at 1006 (emphasis added); id. at 1007 (holding that "claims against county commissioners and employees in their official capacity are, as a matter of law, claims against the county and are subject to the $100,000 cap contained in § 11-93-2").

And, to be clear, in Suttles v. Roy, 75 So.3d 90 (Ala. 2010), this Court observed that "nothing in ... Smitherman [ ] or § 11-93-2 allows" "this Court ... [to] consider the individual claim against Suttles as, in substance, an official-capacity claim subject to the cap of § 11-93-2," 75 So.3d at 98, and we further explained the distinction between individual-capacity and official-capacity claims in relation to the damages cap imposed by § 11-93-2 :

"Insofar as Roy's action seeks damages against Suttles in his official capacity, as noted in Smitherman, the cap of § 11-93-2 limits any recovery against Homewood and Suttles to $100,000. Suttles and Homewood thus contend that 'it makes no sense at all' for the claims against Suttles in his official capacity 'to be governed by the statutory damages cap' without the claims against him in his individual capacity also being subject to the cap. Homewood and Suttles's brief at 20. This distinction-'capping damages for claims against Suttles in his official capacity but not capping damages for claims asserted against him in his individual capacity'-however, is clearly provided by the cited authorities.
" Section 11-93-2 caps the damages one may recover 'against a governmental entity.' The policy of § 11-93-2 is to 'preserve' and 'protect[ ] the public coffers, for the benefit of all of the citizenry.... 'Benson[ v. City of Birmingham], 659 So. 2d [82] at 86-87 [ (Ala. 1995) ]. A claim against an employee in his or her individual capacity, however, does not seek to recover damages from the governmental entity. See Gamble v. Florida Dep't of Health & Rehabilitative Servs., 779 F.2d 1509, 1513 (11th Cir. 1986) ('Whether a state officer is being sued for damages in an official or an individual capacity is not mere semantics; the question is whether the plaintiff is reasonably seeking relief from the state coffers or from the individual's assets.' (quoted in Ex parte Troy Univ., 961 So.2d 105, 110 (Ala. 2006) )).
"Homewood and Suttles contend that at the time of Roy's injuries Suttles was acting in the line and scope of his employment and that there is no factual distinction between Roy's claims against Suttles in his official capacity and in his individual capacity. They thus argue that 'the inescapable conclusion is that it makes no sense at all' for damages sought against him in his official capacity to be capped, while damages sought against him in his individual capacity are not. However, no authority is cited or argument advanced demonstrating that this Court or the trial court can consider the individual claim against Suttles as, in substance, an official-capacity claim subject to the cap of § 11-93-2 ; further, nothing in Benson, Smitherman, or § 11-93-2 allows such a result."

75 So.3d at 97-98 (emphasis added). See also Alabama Mun. Ins. Corp. v. Allen, 164 So.3d 568, 574 (Ala. 2014) (explaining that, in Suttles, "[t]his Court stated that, although the statutory cap on recovery against 'a governmental entity' set forth in § 11-93-2 applied to a suit against a municipal employee in his official capacity, it did not apply to a suit against a municipal employee who is sued in his individual capacity" (emphasis added)).

And, we repeat, "nothing in ... Smitherman [ ] or § 11-93-2 allows [the] result" that a court can convert a claim framed by the plaintiff as one against a governmental employee in his individual capacity into "an official-capacity claim" so as to make it "subject to the cap of § 11-93-2." 75 So.3d at 98. Again, official-capacity and individual-capacity claims are two distinctly different types of claims, and it is the plaintiff as "the master of his complaint" that decides whether to pursue one or the other-or both. If a plaintiff chooses to sue an official or employee in his official capacity, such a claim is treated as a claim against the "governmental entity" because it constitutes an attempt to reach the public coffers. As Suttles clearly states, the purpose of the § 11-93-2 damages cap is to protect public coffers; therefore, the cap would apply to that claim. Unlike official-capacity claims, however, individual-capacity claims seek to hold a government official or employee personally liable, i.e., such claims seek a monetary recovery against the individual that can be collected only from his personal assets. Section 11-93-2 simply is not applicable to such a claim.

Our conclusion is also consistent with our holding in Morrow v. Caldwell, 153 So.3d 764 (Ala. 2014), which addressed the application of the similar damages cap provided specifically to municipalities under § 11-47-190, Ala. Code 1975. In Morrow, Keandarick Russell, a minor, was electrocuted and died after he touched a fence surrounding air-conditioning equipment that had been inspected by Wayne Morrow, an electrical inspector for the City of Montgomery. Shameka Caldwell, as Russell's mother and next friend, filed a wrongful-death action against Morrow, in his individual capacity. 153 So.3d at 766.

"Morrow filed a motion asking the trial court for 'a judgment declaring the statutory limitations of liability of $100,000, pursuant to Ala. Code 1975, § 11-47-190, are applicable to Defendant Wayne Morrow in this case.' Caldwell filed a response to Morrow's request for a declaratory judgment in which she contended that the statutory cap on recovery set forth in § 11-47-190 for damages against a municipality would not apply to the claims in this case because the claims were brought against Morrow in his individual capacity and because she alleged that Morrow had acted recklessly, wantonly, or willfully."

153 So.3d at 767 (emphasis added).

After the trial court denied Morrow's motion, this Court granted Morrow's petition for a permissive appeal as to the following question: " 'Whether the claims against a municipal employee, sued in his individual capacity, are subject to the statutory cap of Ala. Code 1975, § 11-47-190, when those claims fall within the "willful or wanton" exception to the doctrine of State-agent immunity, under Ex parte Cranman, 792 So.2d 392 (Ala. 2000).' " 153 So.3d at 767.

On appeal, we noted that

"Morrow argues that the plain language of § 11-47-190 clearly dictates that the $100,000 statutory cap on recovery would apply to the claims against him even though he is being sued in his individual capacity and even though Caldwell is alleging that he acted recklessly, willfully, and wantonly. This Court has not yet addressed whether the statutory cap on recovery set forth in § 11-47-190 would apply to limit the liability of municipal employees sued in their individual capacity."

153 So.3d at 768 (emphasis added). We then proceeded to hold in Morrow that the damages cap at issue in that case, like the similar damages cap at issue in Ravi, was enacted for the protection of the public coffers and therefore applied to claims brought against governmental employees in their official capacities, but not individually. 153 So.3d at 771. See also Allen, 164 So.3d at 578 ("When § 11-47-190 is read as a whole, it is clear that the limitation on recovery in the second sentence is intended to protect the public coffers of the municipality, not to protect municipal employees from claims asserted against them in their individual capacity.").

Conclusion

A government employee sued for tortious acts he commits while acting in the line and scope of his employment may, in an appropriate case (i.e., where he has breached a duty he individually owes to a third party), be sued individually. Section 11-93-2 is not applicable to such a claim. Accordingly, we reverse the trial court's judgment stating that the claims against the nurses, in their individual capacities, are subject to the damages cap in § 11-93-2, and we remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Parker, Wise, and Bryan, JJ., concur.

Stuart, C.J., and Bolin, Shaw, and Main, JJ., concur in the result.

Sellers, J., dissents.

The trial court ruled that claims against the nurses-Dawn Reid, Phyllis Harris, and Tuwanda Worrills-based on allegedly negligent acts or omissions committed in the line and scope of their employment with the Cleburne County Hospital Board, Inc., are subject to the damages cap set out in § 11-93-2, Ala. Code 1975. Thus, it appears that the trial court concluded that such claims are, necessarily, claims against the nurses in their official capacities and are governed by the holding of Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala. 1999).

In arguing to the trial court that the claims asserted by Clifford Goodman Wright, administrator of the estate of Mary Evelyn Wright, deceased, against the nurses are claims against them in their official capacities, the nurses and the Hospital Board pointed to Alabama Municipal Insurance Corp. v. Allen, 164 So.3d 568 (Ala. 2014), an opinion issued almost 20 years after Ravi v. Coates, 662 So.2d 218 (Ala. 1995). In Allen, this Court considered whether a municipal police officer, who was "acting outside his employment" when he caused an automobile accident that injured two individuals, was entitled to rely on a damages cap. The police officer in Allen caused the accident while driving to work at an extreme rate of speed, and, after the accident, he tested positive for marijuana. 164 So.3d at 569. In considering an argument that the officer had not actually been sued in his individual capacity, this Court said:

"[The appellant] argues that [the police officer] was not actually sued in his 'individual capacity' because neither [of the plaintiffs'] complaints contain the phrase 'individual capacity.' Both complaints allege facts indicating that [the officer] was acting outside his employment as a police officer when the accident occurred. The language of the complaint as a whole is determinative of whether a municipal employee is being sued in his or her individual or official capacity."

164 So.3d at 579. The nurses and the Hospital Board in the present case argued to the trial court that the above-quoted portion of Allen suggests that a claim against a governmental employee alleging mere negligent acts or omissions committed while the employee was acting within the line and scope of his or her employment should be considered a claim against the employee in his or her official capacity. Specifically, the nurses and the Hospital Board argued:

"Based on the reasoning of the Alabama Supreme Court in the line of cases above [including Allen ], when one is sued in an 'individual capacity' he is being sued for acts committed outside the line and scope of his employment, [for] wanton, willful or intentional misconduct; whereas when sued in an official capacity, the individual was acting in the line and scope of his employment."

Thus, the nurses and the Hospital Board argued, Allen demonstrates that the claims against the nurses stemming from allegedly negligent acts and omissions committed while they were acting within the line and scope of their employment are claims against them in their official capacities. I note that Wright does not directly address the quoted portion of Allen in his initial brief on appeal. See Soutullo v. Mobile Cty., 58 So.3d 733, 739 (Ala. 2010) ("[T]he failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment ... results in an affirmance of that judgment.").

Wright relies on Morrow v. Caldwell, 153 So.3d 764 (Ala. 2014). In that case, a municipal employee who had performed an electrical inspection of a building was sued after a minor was electrocuted on the premises. Id. at 765-66. The trial court in Morrow denied the employee's request for a declaration that the damages cap set out in § 11-47-190, Ala. Code 1975, applied to the claims against him. Id. at 767. In affirming the trial court's judgment, this Court noted that the plaintiff alleged that the municipal employee acted recklessly, wantonly, maliciously, willfully, fraudulently, intentionally, in bad faith, beyond his authority, and under a mistaken interpretation of the law. Id. at 766. Thus, as in Allen, the employee's actions in Morrow significantly exceeded mere negligence committed while acting in the line and scope of employment. I do not read Morrow as holding that claims against employees of governmental entities alleging negligence committed while undisputedly acting within the line and scope of their duties as employees are not subject to the cap in § 11-93-2.

Wright relies heavily on Suttles v. Roy, 75 So.3d 90 (Ala. 2010). In that case, the Court held that the appellant, a municipal police officer, had not sufficiently supported his assertion on appeal that " 'it makes no sense at all' for the claims against [him] in his official capacity 'to be governed by the statutory damages cap' without the claims against him in his individual capacity also being subject to the cap." Id. at 98. The Court noted that the officer had not sufficiently developed an argument, or provided citations to authority, supporting his assertion that the trial court should have considered "the individual claim against [him] as, in substance, an official-capacity claim subject to the cap of § 11-93-2." Id. In a special concurrence on the denial of rehearing, Justice Shaw noted that the opinion on original submission had acknowledged "that no authority was cited for the proposition that § 11-93-2 capped any claims against [the officer] in his individual capacity at $100,000." Id. at 104. Thus, contrary to Wright's position in the present case, it appears that Suttles did not settle the issue.

I do not believe that Wright has demonstrated that the trial court erred in ruling that the claims against the nurses based on alleged negligent conduct committed within the line and scope of their employment are claims against them in their official capacities. Consequently, I would affirm the trial court's judgment.

      See generally Ex parte McInnis, 820 So.2d 795, 798-99 (Ala. 2001) (observing the well settled principle that an " 'agent who personally participates, albeit in his or her capacity as such agent, in a tort is personally liable for the tort' " (quoting Sieber v. Campbell, 810 So.2d 641, 645 (Ala. 2001) )); Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So.2d 774, 775 (Ala. 1986) ("In Alabama, the general rule is that officers or employees of a corporation are liable for torts in which they have personally participated, irrespective of whether they were acting in a corporate capacity."); Restatement (Third) of Agency § 7.01 cmt. b (2006) ("An agent whose conduct is tortious is subject to liability [personally] .... whether or not the agent acted ... within the scope of employment." "[This rule] is consistent with encouraging responsible conduct by individuals to impose individual liability on an agent for the agent's torts although the agent's conduct may also subject the principal to liability." (emphasis added)).

      The Hospital Board and nurses' position in this case radically conflicts with these basic tenets. If that position were embraced, it would have major ramifications for heretofore settled law regarding the accountability of both public and private sector employees. The Hospital Board and nurses' position that all claims against individual governmental employees alleging negligent acts should be treated only as the "official" acts of their employer-merely because the acts were committed "in the line and scope of their employment"-would apply with equal force of logic to private-sector employment relationships and would unsettle centuries-old, bedrock principles of agency and employment law that allow injured parties not only to hold employers responsible for the acts of their employees occurring in the line and scope of employment, but also to separately hold the employees themselves personally liable for their tortious conduct when they have breached an individual duty to a third party.
      Of course, not every action of a public employee that is detrimental to a third party represents the breach of some duty owed by the employee individually to that third party. (That is, every case is not an "appropriate case" for imposing individual-capacity liability.) For example, in Ravi, this Court's decision not to apply the $100,000 damages cap to a larger judgment against two nurses employed by a county hospital was predicated on the understanding that those nurses did owe a duty in their individual capacities to the plaintiff as their patient. Conversely, in Smitherman, the Court's decision to apply the $100,000 damages cap was predicated in part on the notion that the action against the county commissioners and the county engineer alleged breaches of duties they owed to the public generally and not duties specifically owed by each of them personally to an individual plaintiff injured as a result of poor road conditions. See also, e.g., Alabama Dep't of Corr. v. Thompson, 855 So.2d 1016, 1025 (Ala. 2003) (holding that "state correctional officers owe a general duty to the public, not a duty to a specific person, to maintain custody of inmates," while acknowledging that an individual duty "to a specific person may arise ... from a special relationship ... or ... special circumstances").
      Obviously, the number of cases like Ravi in which an individual duty by a public employee, and thus an "individual-capacity" claim against the employee, are understood to exist is legion. Witness the hundreds of cases (i.e., both pre- and post-Ex parte Cranman, 792 So.2d 392 (Ala. 2000), dating back to 1901), which start with the premise of otherwise viable individual-capacity claims based on negligence committed by public employees or officials while acting within the line and scope of their official duties, but then proceed to apply nuanced standards, elements, and exceptions to determine which actions of which employees nonetheless qualify for complete "State-agent immunity." If there were no individual duty in such cases, and thus no otherwise viable individual-capacity claims, the appropriate remedy would have been simply to dismiss the individual-capacity claim against the employees for failure to state a claim upon which relief could be granted, see Rule 12(b)(6), Ala. R. Civ. P.; such defenses as immunity and statutory damages caps would be unnecessary and inapposite. Alternatively, if all such claims were bound to be treated simply as "official-capacity" claims, the whole of State-agent immunity law (comprising, as noted, hundreds of cases dating back over a century, and once discussed under the rubric of "discretionary-function immunity") would have been a wholly unnecessary exercise by this Court-§ 14 "sovereign immunity" simply would have applied in all such cases. See Ala. Const. 1901, § 14.

      As noted in the last paragraph of note 2, if the plaintiff, as the "master of his complaint," has framed a claim seeking monetary relief from a government official or employee only in his individual capacity, and if our law simply does not recognize a duty owed by the official or employee personally to the plaintiff, the appropriate result is simply the dismissal of the claim under Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief can be granted, rather than applying a damages cap our legislature has prescribed for an entirely different (i.e., official-capacity) type of claim.

      See also id. at 101-02 (opinion modified on denial of reh'g)(Shaw, J., concurring specially)(rejecting the idea that Smitherman held that a public officer or employee who is engaged in the performance of his official duties " 'acts only within his official capacity and is only subject to suit in his official capacity' " (quoting application for rehearing) and noting that "the per se rule [recognized in Smitherman ] barring an individual-capacity action against a county commissioner exists by virtue of the county commissioner's role as a part of the governing body of the county").

      The significance of recognizing that Morrow was sued based on allegedly "willful and wanton" conduct was that, if the plaintiff could prove her allegations, Morrow's conduct would not qualify for complete State-agent immunity (because it would fall within one of the two recognized exceptions to that immunity, see Ex parte Cranman, 792 So.2d at 405 ), thus necessitating an examination of whether that defendant could benefit in the alternative from the statutory damages cap at issue.

      See generally Morrow, 153 So.3d at 772-73 (Murdock, J., concurring specially) (surveying statutory predecessors to §§ 11-47-190 and -191, Ala. Code 1975, and cases interpreting §§ 11-47-190 and -191 and their predecessors, dating back to 1907, and noting the authority of the legislature to modify the common-law doctrine of county and municipal immunity).

      That said,
      "State-agent immunity, as developed extensively in our caselaw, will apply in most cases involving municipal law-enforcement officials, particularly when they are acting within the line and scope of their duties; it will apply in many cases to non-law-enforcement municipal employees. In addition, there may be instances in which ... the nature of the employee's obligations to his or her municipal employer do not in fact also create a duty on the part of an employee to the third party [plaintiff]. See generally, e.g., Morrow v. Caldwell, 153 So.3d at 771 (Murdock, J., concurring specially) ('[T]he question before us in this permissive appeal is limited to whether, if an employee of a municipality is personally liable for a tort he or she commits in the course of his or her employment by a municipality, that liability can exceed the $100,000 cap referenced in § 11-47-190. Any such liability, however, would of course depend as a threshold matter on the existence of a duty that was personal to the employee (not merely a duty of his or her employer) and that ran to the plaintiff (and not merely from the employee to his or her employer')."
      Allen, 164 So.3d at 581 (Murdock, J., concurring in the rationale in part and concurring in the result). No issue as to State-agent immunity is before us.

      The cap involved in Allen is set out in § 11-47-190, Ala. Code 1975, and applies to claims against municipalities. Although § 11-47-190 applies to municipalities and § 11-93-2 applies to "governmental entities," the parties and amici curiae consider precedent construing and applying § 11-47-190 instructive in the present case.


author: THOMAS, Judge.

text:
    ESCAMBIA COUNTY BOARD OF EDUCATION v. John LAMBERT
    2150548
    Court of Civil Appeals of Alabama.
    September 23, 2016 Certiorari Denied November 11, 2016
    Alabama Supreme Court 1160006
    Broox G. Garrett, Jr., and Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton, for appellant.
    Charles E. Johns, Jr., Brewton; and Sam Heldman of The Gardner Firm, Washington, D.C., Carl Johnson of Bishop, Colvin, Johnson & Kent, LLC, Birmingham, for amicus curiae Alabaman Association of School Boards, in support of the appellant, for appellee.
   THOMAS, Judge.

This is the second appeal to this court from the decision of a hearing officer regarding the decision of the Escambia County Board of Education ("the Board") to terminate the employment of John Lambert pursuant to the Students First Act ("the SFA"), Ala. Code 1975, § 16-24C-1 et seq.See Lambert v. Escambia Cty. Bd. of Educ., 199 So.3d 751 (Ala.Civ.App.2013) (" Lambert I").

The facts and early procedural history were set out in our earlier opinion:

"The record indicates the following. On May 11, 2012, a custodian at the school found a firearm in a case located inside a bag that was on top of Lambert's desk in his office, which was located in the band room on the school's campus. Lambert was employed by the Board as the part-time band director at the school at that time. It was undisputed that the band room and Lambert's office had both been locked and that the custodian had unlocked the doors to those rooms with the key the school had issued to her. The custodian contacted school personnel regarding her discovery of the firearm, who, in turn, contacted Scott Hammond, the school's principal. Hammond entered Lambert's office; he looked inside the bag placed on Lambert's desk and saw a case containing a firearm containing a fully loaded ammunition clip and an additional fully loaded ammunition clip. Hammond looked through the other contents of the bag and noticed that, in addition to the firearm and the two ammunition clips, it contained Lambert's checkbook and other personal effects. Lambert was not on campus on May 11, 2012, because he was with a group of band students on an overnight band trip to Atlanta; Lambert and the band students were set to arrive back on the school's campus late on May 12, 2012. Hammond placed the case containing the firearm and ammunition clips inside the pocket of his pants and traveled to his office, where he proceeded to lock the door and to telephone Randall Little, the interim superintendent of the Board at that time.
"Hammond testified that Little told him to bring the firearm and ammunition clips to the Board's central office, which he did. Hammond further testified that Little also requested that Hammond be present on May 12, 2012, to meet the buses returning from the overnight band trip so that he could speak with Lambert regarding the discovery of the firearm and ammunition clips in his office. Hammond testified that on May 12, 2012, he spoke with Lambert regarding the discovery of the firearm and ammunition clips, that Lambert confirmed that the firearm and ammunition clips were his, and that they set up a meeting to discuss the incident for May 14, 2012.
"On May 14, 2012, Lambert met with Hammond at the school's campus to discuss the discovery of his firearm on campus and the potential consequences. At this meeting, Lambert again confirmed that the discovered firearm and ammunition clips were his and that he had inadvertently left them inside his bag inside the locked office, inside the locked band room. He explained that he had forgotten that the firearm and ammunition clips were inside the bag when he brought the bag on the school's campus. Hammond informed Lambert that Board Policy Number 826 entitled 'Board Employees and Weapons' states: 'No employee, with the exception of any law enforcement personnel, will be in possession of an unauthorized weapon on any school premises, including school vehicles, or at any school-planned activity. Violation of this policy will result in suspension or dismissal of the employee.' He further gave Lambert a copy of Board Policy Number 826 and informed him that his options were to resign or to potentially be suspended or terminated from his employment due to his violation of Board Policy Number 826. Lambert testified that, although he knew that the school was a weapon-free campus, he was unaware of Board Policy Number 826 before May 14, 2012.
"Following his meeting with Hammond, Lambert hand-delivered his resignation on May 14, 2012. However, on May 15, 2012, Lambert rescinded his resignation. Subsequently, Little placed Lambert on administrative leave and mailed him a letter dated May 18, 2012, informing him that he had been placed on administrative leave. On June 1, 2012, Little sent Lambert a letter informing him that his recommendation to the Board was to terminate Lambert's employment and that Lambert had the right to ask for a hearing. See § 16-24C-6(b), Ala. Code 1975. Lambert requested a public hearing before the Board in a letter dated June 11, 2012. On July 23, 2012, the parties conducted a hearing before the Board. At the start of the hearing, the Board summarily denied Lambert's four motions to dismiss and his motion to suppress."

Lambert I, 199 So.3d at 754.

At the hearing before the Board, Lambert presented testimony of several witnesses who indicated that he was of good character and who stated that they would prefer not to see Lambert lose his position as a part-time band director as a result of his inadvertent violation of Board Policy Number 826. Lambert I, 199 So.3d at ----. In addition, Randall Little, the interim superintendent of the Board at that time, testified at the hearing that " 'one of the utmost responsibilities of the Escambia County Board of Education ... is to make sure that our campuses are safe and secure for our students and, of course, our personnel.' " Id. at 754. Little further explained that he had "decided to make a recommendation for termination instead of suspension for these reasons":

" 'The first reason is that we do not hold all of our students-which unfortunately this board, over the years that I have been employed by this district, has had to make very difficult decisions. We have held our students to be accountable and responsible to our campuses when it comes to weapons. We do have-it is promulgated. All of our campuses and school functions, et cetera, are weapons free, and our students are held accountable.
" 'Our employees are also-should be held accountable as well, particularly when they bring a loaded weapon on campus. This weapon, when found, was fully loaded. Not only was it fully loaded, it had a second clip that was fully loaded, and it was brought on school campus by ... Lambert and left on school campus by ... Lambert. This created unfortunately a very unsafe environment. Fortunately, in our case, no harm came, but it did create the environment to put people in harm's way on our campus. And, of course, thank goodness that nothing did come in harm's way, but if it had it would definitely be unfortunate-we'd be having a different hearing today.
" 'And also, as superintendent of education, I am bound by the law, by Administrative Code to take full action and full responsibility for said actions. And I cannot turn and sweep this under the carpet. I must take serious action, even though how unfortunate it may be.' "

Id. at 755.

Lambert timely sought review of the Board's decision by a hearing officer as provided in Ala. Code 1975, § 16-24C-6(e). Id. The hearing officer affirmed the decision of the Board, albeit after stating that " 'it is the opinion of this Hearing Office[r] that a lesser penalty than termination should have been imposed. However, the Students First Act of 2011 provide[s] that the Hearing Officer may affirm or reverse the decision of the Board only, no modification is authorized.' " Lambert I, 199 So.3d at 756. Lambert appealed the hearing officer's decision to this court, which affirmed the hearing officer's decision to affirm the decision of the Board, after concluding that the hearing officer had been required to apply the arbitrary-and-capricious standard of review to the decision of the Board and had satisfied that requirement by affording "deference" to the Board's decision. Id. at ----.

Lambert sought certiorari review of this court's decision, and the supreme court, in a plurality decision, reversed this court's decision and ordered this court to remand the matter to the hearing officer so that he could apply the arbitrary-and-capricious standard of review to the Board's decision. Ex parte Lambert, 199 So.3d 761, ---- (Ala.2015). Although a majority of the supreme court agreed that the arbitrary-and-capricious standard was the appropriate standard for the hearing officer to apply to his review of the Board's decision, three members of the court opined that the remand to the hearing officer was unnecessary because, as a matter of law, the Board's decision could not be considered arbitrary and capricious. Ex parte Lambert, 199 So.3d at 769-70 (Shaw, J., concurring in part and dissenting in part, joined by Stuart and Bolin, JJ.).

As instructed, this court remanded the matter to the hearing officer. Lambert v. Escambia Cty. Bd. of Educ., 199 So.3d 772 (Ala.Civ.App.2016) (" Lambert II"). On March 11, 2016, the hearing officer entered the following order on remand:

"This matter has been remanded to the Hearing Officer by the Alabama Supreme Court through the Alabama Court of Civil Appeals to ' "review the sanction imposed against [John] Lambert under the arbitrary-and-capricious standard of review as that standard of review is articulated in" Ex Parte Lambert, 199 So.3d 761 (Ala.2016).' [ Lambert II, 199 So.3d at 772.]
"The pertinent facts are set out in the Supreme Court's opinion referenced above. Simply put, Lambert was a tenured teacher-band director at Flomaton High School. On the morning of May 11, 2012, Lambert and the band were to depart for a band contest in Atlanta. Before getting on the bus, Lambert put a small bag containing personal items on a desk in his office. Lambert testified that he forgot his loaded .380 automatic pistol was in the bottom of the bag. Lambert's office and the band room were locked. Lambert had a permit for the pistol.
"During Lambert's absence, the school custodian 'discovered' (how did this happen?) the gun and reported it to the principal.
"The School Board had adopted Policy No. 826, which provides: 'No employee, with the exception of any law enforcement personnel, will be in possession of an unauthorized weapon on any school premises, including school vehicles, or at any school planned activity. Violation of this policy provision will result in the suspension or dismissal of the employee.'
"The School Board Superintendent informed Lambert that he was going to recommend to the School Board that Lambert's employment be terminated.
"Lambert requested a hearing before the Board, which was held on July 23, 2012. The Board terminated Lambert's employment by a vote of six to one. The Board found that Lambert violated Policy No. 826, but neither referenced Lambert's excellent character and prior employment history nor explained its decision to terminate rather than suspend.
"As provided by the [SFA] (section 16-24C-l et seq.), Lambert appealed the Board's decision to this Hearing Officer. This Hearing Officer affirmed the Board's decision, opining that he (the Hearing Officer) felt that a lesser penalty should have been imposed, but that the [SFA] provided only that the Hearing Officer affirm or reverse the Board's decision only; no modification was authorized.
"Lambert appealed that ruling to the Alabama Court of Civil Appeals and that Court affirmed. Lambert then filed for certiorari with the Alabama Supreme Court which was granted.
"The Supreme Court ruled that the School Board is the finder of fact under the SFA and the Hearing Officer functions as an appellate tribunal subject to further appellate review by the Court of Civil Appeals.
"The Supreme Court further held that the deference a reviewing body must afford the decision of the fact-finder is the equivalent of the arbitrary-and-capricious standard which is 'extremely' deferential. Further 'where reasonable people could differ as to the wisdom of the [fact-finder's] decision, the decision is not arbitrary.' [ Ex parte Lambert, 199 So.3d at 767.] Also, 'if the decision-maker has examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made, its decision is not arbitrary.' [ Ex parte Lambert, 199 So.3d at 767.]
"Going further the Supreme Court said when a Hearing Officer chooses a penalty option other than the termination voted for by a Board of Education, the Hearing officer has reversed the decision of the Board.
"The Court further held 'under the arbitrary-and-capricious standard of review, if a Hearing Officer determines that the sanction imposed by an employer is arbitrary and capricious, the Hearing Officer may remand the matter with instructions to the employer to impose a lesser penalty.' [ Ex parte Lambert, 199 So.3d at 769.]
"Webster's Collegiate Dictionary defines 'caprice' as a 'sudden, compulsive and seemingly unmotivated notion or action' and 'arbitrary' is 'not restrained or limited in the exercise of power.'
"To determine whether the Board's decision to terminate Lambert's employment was arbitrary and capricious, this Hearing Officer must examine the following:
"1) The rule or policy of the Board violated.
"2) The purpose of the rule or policy.
"3) The act or omission of the employee.
"4) The culpability of the employee.
"5) The injury or damage caused.
"6) The history, character and reputation of the employee.
"7) The penalty authorized and the penalty imposed.
"1) The Board's Policy No. 826 cited above prohibits any employee from possessing an unauthorized weapon on school premises. Certainly Lambert's loaded .380 Kel-Tec automatic pistol is an unauthorized weapon. See section 13A-1-2(6), Code of Alabama. The violation of the policy was not disputed.
"2) The purpose of the policy, obviously, is to protect the school students and employees and prevent injury or damage to them.
"3) The act or omission was the bringing onto school premises the unauthorized weapon by Lambert.
"4) The culpability of Lambert should be closely examined and should have been closely examined by the Board.
"Lambert testified that he forgot the pistol was in his bag. No evidence was produced to the contrary. Thus, there was no intent to violate the policy.
"Lambert had a permit for the pistol.
"The pistol was in a zippered bag inside another zippered bag.
"The pistol could not be seen from the outside.
"Although the pistol was loaded, there was no round in the chamber.
"The bag was in Lambert's locked office inside the locked band room. Only Lambert, the principal and the custodian had keys.
"5) No injury or damage resulted from the violation.
"6) Lambert served 27 years in the U.S. Army. During the course of his army and teaching career, he was never charged with neglect of duty, insubordination or failure to perform duties in a satisfactory manner. He was never disciplined before this incident and many witnesses testified to his excellent character and reputation.
"7) The penalty prescribed by this policy was suspension or termination. However, the maximum penalty for a student for bringing a weapon onto school campus is expulsion for one calendar year.
"The Board did not explain its reasoning in its decision to impose termination rather than suspension."

Based on the above and his consideration of the testimony and documentary evidence presented to the Board, the hearing officer concluded:

"It is apparent that the Board did not consider, or insufficiently considered, the following in making its decision to terminate rather than suspend:
"A. No intent by Lambert to violate the policy.
"B. Minimal danger to students and employees. The pistol was in a zippered bag inside another zippered bag inside Lambert's locked office inside a locked band room with only Lambert, the principal and the custodian having keys. Band members were away from the school premises.
"C. No injury or damage resulted from the violation.
"D. Lambert's excellent work history, character and reputation.
"E. The maximum penalty a student could receive for the same violation being a one year expulsion.
"THE RULING of this Hearing Officer is that the Board's penalty of termination was and is arbitrary and capricious as that standard was articulated by the Supreme Court.
"THEREFORE the Board's decision to terminate Lambert's employment is reversed, and this matter is remanded to the Board to impose a penalty of suspension not exceeding one year; such suspension to run from Lambert's original date of termination."

The Board timely appealed from the hearing officer's decision. In its appellate brief, the Board argues that the hearing officer erred in concluding that the Board acted arbitrarily and capriciously in terminating Lambert's employment and that the hearing officer acted outside his authority under the SFA in remanding the matter with the instruction that the Board impose a suspension of one year or less on Lambert. More specifically, the Board challenges the hearing officer's understanding and application of the arbitrary-and-capricious standard in light of what it construes as the hearing officer's substitution of his judgment for that of the Board regarding the appropriate penalty for the admitted violation of Board Policy Number 826. The Alabama Association of School Boards, appearing as amicus curiae in support of the Board, argues that the hearing officer has misapplied the arbitrary-and-capricious standard and that the hearing officer "put aside [the deference due the Board's decision] in favor of an analytical framework of his own choosing."

In response, Lambert argues that the hearing officer complied fully with the remand instructions set out by our supreme court in Ex parte Lambert. He points out that the plurality opinion indicated that a hearing officer is entitled to reverse a school board's decision and to remand for imposition of a lesser penalty. See Ex parte Lambert, 199 So.3d at 769 ("[I]f a hearing officer determines that the sanction imposed by an employer is arbitrary and capricious, the hearing officer may remand the matter with instructions to the employer to impose a lesser penalty."). Thus, Lambert posits, the hearing officer is entitled to judge whether the penalty imposed is arbitrary and capricious, which, according to Lambert, allows the hearing officer to determine if the penalty is too harsh for the infraction committed. Furthermore, Lambert argues, the Board failed to articulate a reason for choosing to impose termination as a sanction as opposed to the lesser permitted punishment of suspension, thus supporting the conclusion that the Board's imposition of termination of Lambert's employment as a penalty was, in fact, arbitrary and capricious under the facts.

The appropriate appellate standard of review was set out in Ex parte Lambert, 199 So.3d at 765 :

" '[I]t is well established that where the issues involve only the application of law to undisputed facts appellate review is de novo. See, e.g., State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 810 (Ala.2005). This has been held to be true where a hearing officer's decision is otherwise subject to more limited review. Ex parte Wilbanks Health Care Servs., 986 So.2d 422, 425 (Ala.2007) ("Review of the hearing officer's conclusions of law or application of the law to the facts is de novo."); Barngrover v. Medical Licensure Comm'n of Alabama, 852 So.2d 147, 152 (Ala.Civ.App.2002) ("The presumption of correctness does not attach to the hearing officer's conclusions of law; further, no presumption of correctness exists when a hearing officer improperly applied the law to the facts.").'
" Ex parte Soleyn, 33 So.3d 584, 587 (Ala.2009). See also Huntsville City Bd. of Educ. v. Stranahan, 130 So.3d 204, 206 (Ala.Civ.App.2013) ('We note that the facts pertaining to this issue are undisputed, and, therefore, the argument involves whether the hearing officers properly applied the law to the undisputed facts. Accordingly, this court reviews this issue de novo.'). We are not required to resolve any factual disputes in order to answer the questions of law presented in this case. Our review is therefore de novo."

The plurality decision in Ex parte Lambert explained that

"the arbitrary-and-capricious standard of review applicable to appellate courts reviewing decisions under the [former Teacher Tenure Act, Ala. Code 1975, § 16-24-1 et seq. (repealed),] and the [former Fair Dismissal Act, Ala. Code 1975, § 36-26-100 et seq. (repealed),] now applies to hearing officers' review of employers' decisions under the SFA. The SFA provides that '[a] final ruling, either affirming or reversing the employer, shall be rendered' by the hearing officer. § 16-24C-6(e). 'When a hearing officer chooses [a penalty] option other than the cancellation voted for by a board of education, the hearing officer has "reversed the decision" of the board.' Ex parte Wilson, 984 So.2d 1161, 1166 ([Ala.]2007). The Court of Civil Appeals correctly recognized in its decision below that '[i]mplicit in giving the hearing officer the authority to reverse a Board's decision is the power to remand the action.' Lambert, 199 So.3d at 768-69. "Under the arbitrary-and-capricious standard of review, if a hearing officer determines that the sanction imposed by an employer is arbitrary and capricious, the hearing officer may remand the matter with instructions to the employer to impose a lesser penalty."

199 So.3d at 769. Our supreme court instructed this court to reverse the hearing officer's decision and to remand the matter to the hearing officer "with instructions [that the hearing officer] review the sanction imposed against Lambert under the arbitrary-and-capricious standard of review as that standard is articulated in this opinion." Id. at 769. The Board and Lambert have differing opinions of the definition of the arbitrary-and-capricious standard articulated in Ex parte Lambert.

To be certain, the plurality opinion recognized repeatedly that, historically, the arbitrary-and-capricious standard has been treated as being "extremely deferential" to the decision of the fact-finding body, which, under the SFA, is the Board. Id. Furthermore, the plurality opinion noted that, " '[p]ursuant to the arbitrary-and-capricious standard of review, [the reviewing body] may "disagree with the wisdom of the decision[ ] [but] ... may not substitute [its] judgment for that of the [fact-finder]." ' " Ex parte Lambert, 199 So.3d at 767 (quoting Bishop State Cmty. Coll. v. Thomas, 13 So.3d 978, 986 (Ala.Civ.App.2008), quoting in turn Ex parte Dunn, 962 So.2d 814, 823-24 (Ala.2007) ). In addition, we note that the plurality opinion quoted with approval this court's reasoning for applying the arbitrary-and-capricious standard to an appeal from a hearing officer under the SFA in a case involving the termination of a teacher's employment by the Huntsville City Board of Education:

" '[T]he legislature has specifically stated that it intended for the SFA to "[r]estor[e] primary authority and responsibility for maintaining a competent educational workforce" to school boards, § 16-24C-2(2), [Ala. Code 1975,] and further stated that its objective was to "[e]liminat[e] costly, cumbersome, and counterproductive legal challenges to routine personnel decisions by simplifying administrative adjudication and review of contested personnel decisions." § 16-24C-2(5)[, Ala. Code 1975 ]. Because we have applied the arbitrary and capricious standard to teacher-termination appeals arising under the SFA based on its historical application in the fact-finder's decisions in teacher-termination cases, see [ Chilton Cty. Bd. of Educ. v.] Cahalane, 117 So.3d [363,] 366 [ (Ala.Civ.App.2012) ] (collecting cases), and because of what we perceive to be the legislature's intent that personnel decisions of school boards be given deference to support the legislature's stated objective in the SFA of placing control over maintaining a competent teaching force with those boards, we reject [the teacher's] contention that the declaration in the SFA that the decision of a school board be given deference indicates that the legislature desired that a less deferential standard of review than "arbitrary and capricious" govern a hearing officer's review of an appeal from a school board's decision.' "

Ex parte Lambert, 199 So.3d at 768 (quoting Huntsville City Bd. of Educ. v. Jacobs, 194 So.3d 929, 939 (Ala.Civ.App.2014) ).

However, the plurality opinion in Ex parte Lambert also contains this explanation of the term "arbitrary": " ' "If the decision-maker has ' "examined the relevant data and articulated a satisfactory explanation for its action, including a 'rational connection between the facts found and the choice made,' " ' its decision is not arbitrary." ' " Id. at 767 (quoting Ex parte Dunn, 962 So.2d at 816-17 ). As noted in Ex parte Lambert, Ex parte Dunn was construing the former Teacher Tenure Act ("the TTA"), Ala. Code 1975, § 16-24-1 et seq. (repealed), which required the hearing officer considering an employment decision of a school system to "render a written decision, with findings of fact and conclusions of law ....," see Ala. Code 1975, former § 16-24-10(a), which was then reviewed under the arbitrary-and-capricious standard by this court. Ex parte Dunn, 962 So.2d at 816 (quoting Ala. Code 1975, former § 16-24-10(b), and explaining 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....' "). The SFA does not impose a similar requirement of providing a detailed written decision on the Board but, instead, requires only that the Board "give written notice to the employee of the decision regarding the proposed termination." Ala. Code 1975, § 16-24C-6(d). Our supreme court has clearly indicated disfavor with an attempt to engraft upon a statute the requirement of providing a written finding. See, e.g., Ex parte Fann, 810 So.2d 631, 633-36 (Ala.2001) (rejecting this court's engrafting of a requirement of providing a written finding regarding whether domestic or family abuse occurred onto Ala. Code 1975, § 30-3-130 et seq. ); Ex parte Byars, 794 So.2d 345, 349 (Ala.2001) (concluding that a trial court is not required to state its reasons for awarding or rejecting joint custody and stating that "[w]e must conclude that if the Legislature had intended to require the trial court to state its reasons ..., it would have done so"). Thus, we cannot conclude that the inclusion of the explanation of the term "arbitrary" from Ex parte Dunn in any way engrafts onto the SFA a requirement that the Board "articulate a satisfactory explanation" for its decision to discharge an employee. Accordingly, we cannot agree with Lambert that the Board's failure to articulate its reason for choosing to terminate his employment as opposed to merely suspending him is, itself, a sufficient basis for the hearing officer's conclusion that the Board's decision was arbitrary and capricious.

We now turn to the hearing officer's conclusion that the Board "did not consider, or insufficiently considered," certain facts in making its decision to terminate Lambert's employment. Lambert argues that the hearing officer is entitled to consider the various facts and circumstances and to consider whether the Board adequately considered those facts and circumstances when deciding what penalty to impose for Lambert's violation of Board policy. Lambert insists that the Board's policy, which permits a sanction of termination or suspension, must be understood as allowing for a varying degree of punishment along that spectrum based on the seriousness of the offense and the employee's employment record. Although that might be true, Lambert has not explained to our satisfaction how the hearing officer, who serves as a layer of appellate review, as opposed to the Board, which is the fact-finder, is given the discretion to adjust the penalty as circumstances warrant.

The hearing officer states in support of his order reversing the Board's decision that the Board either failed to consider or "insufficiently considered" facts like the unintentional nature of the violation, the lack of any actual harm to any student, Lambert's otherwise exemplary record, and the corresponding student policy and the punishment for its violation. Those facts were sufficiently argued to the Board. Willie Grissett, the president of the Board, stated the following on the record before the Board entered executive session to discuss and consider the appropriate penalty for Lambert's violation of Board Policy Number 826:

"This concludes the hearing, and the Board will now convene into executive session to consider what action, if any, should be taken, and enter such order as it deems lawful and appropriate. If the Board feels that any or all of the reasons given by the superintendent for the proposed termination are supported by the evidence presented and that these reasons are sufficient, it may act accordingly. If the Board feels that termination is not appropriate under the facts presented, it may order a lesser punishment or no punishment at all."

The record therefore reflects that the Board did consider all arguments presented to it and that, as it began its deliberations, it was aware that it could choose whatever punishment it deemed appropriate. In addition, Grissett clearly stated that the Board could consider the reasons for termination advanced by the superintendent, which are quoted earlier in this opinion. Thus, we cannot agree that the record reflects that the Board failed to consider any factor the hearing officer found to be appropriate.

The hearing officer's belief that his finding that the Board had "insufficiently considered" the facts and circumstances he found to be relevant could serve as a basis for a determination that the Board's decision was arbitrary and capricious, and that the Board's decision should therefore be reversed, runs counter to the principle that even if a hearing officer "disagree[s] with the wisdom of the decision, [he] may not substitute [his] judgment for that of the [Board]." Ex parte Dunn, 962 So.2d at 823-24. The appellate courts of this state have long explained that "where 'reasonable people could differ as to the wisdom of [the Board's] decision[,] ... the decision is not arbitrary.' " Ex parte Dunn, 962 So.2d at 816 (quoting Board of Sch. Comm'rs of Mobile Cty. v. Dunn, 962 So.2d 805, 809 (Ala.Civ.App.2006) ). These principles undergird the extremely deferential review permitted under the arbitrary-and-capricious standard.

Little, the interim superintendent, explained his reasons for recommending termination of Lambert's employment: the extreme danger posed by a loaded firearm and the need to hold any violator-student or employee-accountable under the applicable zero-tolerance weapons policy. As Justice Shaw noted in his special writing in Ex parte Lambert, the mere fact that the presence of a loaded gun on campus created a dangerous condition could have negated in the minds of the Board members the very facts and circumstances that the hearing officer determined should have been given more weight. As we have held before, the SFA requires deference to the personnel decisions of school boards in order to support the legislature's stated objective of placing control over maintaining a competent teaching force with those boards. See Jacobs, 194 So.3d at 939. To allow the hearing officer to determine that the Board did not give sufficient weight to facts and circumstances that, in the hearing officer's opinion, are more weighty than other facts and circumstances involved in the consideration of the appropriate sanction to be imposed by a school board for the violation of its policies undermines the purpose and intent of the SFA and upends the traditional notions regarding the application of the arbitrary-and-capricious standard. Permitting the hearing officer's conclusion that certain facts and circumstances should be given more weight than the fact of the violation itself to supplant the Board's decision to impose termination of employment for the violation of Board Policy Number 826 allows the hearing officer to substitute his judgment for that of the Board based on the hearing officer's disagreement with the wisdom of the Board's decision. Thus, we cannot agree that the hearing officer's decision is properly supported by his determination that the Board did not give sufficient consideration to what the hearing officer has determined are mitigating facts and circumstances supporting a lesser penalty.

Our supreme court mandated that the hearing officer apply the traditional arbitrary-and-capricious standard to the decision of the Board. Ex parte Lambert, 199 So.3d at 768 ("The SFA explicitly directs us to apply 'meanings traditionally accorded the terms and phrases by the appellate courts of this state under prior law,' [Ala. Code 1975,] § 16-24C-6(n), in determining the applicable standard of review."). The arbitrary-and-capricious standard is " ' "extremely deferential," ' " prohibiting the reviewing hearing officer from substituting his judgment for that of the Board. Id. at 767 (quoting Ex parte Dunn, 962 So.2d at 816 (emphasis omitted)). Put another way, " '[w]here "reasonable people could differ as to the wisdom of [the Board's] decision[,] ... the decision is not arbitrary." ' " Id. (quoting Ex parte Dunn, 962 So.2d at 816 ). Traditional definitions of the terms "arbitrary" and "capricious" indicate that few decisions will be found to violate the standard.

" 'A decision is not arbitrary where there is a reasonable justification for the decision or where the determination is founded upon adequate principles or fixed standards.' Sexton v. Tuscaloosa County Civil Serv. Bd., 426 So.2d 432, 435 (Ala.Civ.App.1983). ' " ' "[A] decision is capricious if it is so unreasonable as to 'shock the sense of justice and indicate lack of fair and careful consideration.' " ' " ' Alabama Dep't of Human Res. v. Dye, 921 So.2d 421, 427 (Ala.Civ.App.2005) (quoting Westring v. James, 71 Wis.2d 462, 476-77, 238 N.W.2d 695, 702-03 (1976), quoting in turn Scharping v. Johnson, 32 Wis.2d 383, 390, 145 N.W.2d 691, 695 (1966) )."

Alabama Dep't of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 386 (Ala.Civ.App.2008).

We agree with the Board that the hearing officer failed to properly apply the extremely deferential arbitrary-and-capricious standard of review to the Board's decision. Instead, the hearing officer determined that the Board had not provided reasons for its decision and that it therefore must have failed to consider, or insufficiently considered, certain facts and circumstances the hearing officer found to weigh in favor of suspension as opposed to termination of Lambert's employment. The Board, not the hearing officer, is the entity charged with making factual determinations and with determining the appropriate penalty for violations of its own policies. The hearing officer may reverse the decision of the Board and remand the matter for the entry of a lesser punishment only if the Board's decision is arbitrary or capricious. Ex parte Lambert, 199 So.3d at ----. The hearing officer's stated bases for his conclusion that the Board's decision was arbitrary and capricious do not support that conclusion, and we therefore reverse the decision of the hearing officer and remand this cause for the entry of an order upholding the Board's decision.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman and Donaldson, JJ., concur.

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

      Two members of the court opined that the appropriate standard to be applied to the review of the Board's decision was a standard "similar to the 'clearly erroneous' standard of review." Ex parte Lambert, 199 So.3d at 771 (Bryan, J., concurring in part and dissenting in part, joined by Wise, J.). Those justices concurred to reverse the hearing officer's decision and to remand of the cause to the hearing officer, but they would have instructed the hearing officer to apply what they believe is the appropriate standard of review.

      Our conclusion appears to be bolstered by Justice Shaw's special writing, which was joined by Justices Stuart and Bolin, in which Justice Shaw considered the conclusions the Board could have drawn in making its decision and noted that he could "see no lack of a 'rational connection' between the offense in this case and the Board's choice." Ex parte Lambert, 199 So.3d at 770 (Shaw, J., concurring in part and dissenting in part). Thus, to the extent that Ex parte Lambert might be read to impose a requirement that the Board provide a written explanation of its decision to discharge an employee, only four justices appear to have joined in any such implied holding.

      Because we have resolved the appeal in favor of the Board, we pretermit consideration of the other issues raised in its appellate brief.