State-Agent Immunity – Sexual Abuse of Student – Mandamus Procedure

Ex parte Wilcox County Board of Education, et al., [Ms. 1200775, June 10, 2022] __ So. 3d __ (Ala. 2022). In a per curiam opinion, the Court (Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur; Shaw, J., concurs in the result in part and dissents in part) grants in part and denies in part petitions for writs of mandamus filed by the Wilcox County Board of Education and members of the Board. Student, Jane Doe, was sexually abused by James Thomas, then principal of Wilcox Central High School. Doe asserted negligence and wantonness claims against the Board and the Board members, contending that those defendants had knowledge of previous instances of similar misconduct by Thomas but failed to properly investigate or report it. Ms. **3-4. “Doe also asserted claims of negligent or wanton hiring, training, and/or retention of Thomas against the Board and the Board members.” Ms. *4.

The Court reiterates that it “has long recognized that county boards of education are considered agencies of the State entitled to § 14 immunity and that they are, therefore, immune from tort claims like the kind asserted against the Board by Doe,” and also holds “the Board members are immune from suit in their official capacities.” Ms. **10-11.

As to the individual capacity claims, the Court first determines that “Doe’s claims against the Board members [relating to hiring, firing, transferring, assigning, or supervising of Thomas] implicate core discretionary functions granted to the Board….” Ms. *13. Citing evidence that Doe submitted that certain Board members were motivated by financial ties to Thomas to ignore his inappropriate sexual behavior with female students, the Court concludes that the Board members failed to establish a clear legal right to a summary judgment based on State-agent immunity on the individual capacity claims. Ms. *22.

Eli Mack, a former vice-president of the PTA, submitted key evidence supporting Doe’s allegations that Board members acted with malice or in bad faith in continuing to employ Thomas with knowledge of his misconduct. The Court notes that the Board members moved to strike the Mack affidavit on various grounds but that

“The trial court ... did not rule on the motion to strike, and we must, therefore, assume that Mack’s testimony was considered by the trial court. See, e.g., Fogarty v. Southworth, 953 So. 2d 1225, 1233 (Ala. 2006). Furthermore, in the petition for a writ of mandamus to this Court, the Board members have not raised the issue of the admissibility of Mack’s affidavit testimony. Therefore, we may not consider that issue. Crews v. National Boat Owners Ass’n Marine Ins. Agency, Inc., 46 So. 3d 933, 942 (Ala. 2010). The Board members’ attempt to raise this issue in their reply brief comes too late. See Ex parte Riley, 464 So. 2d 92, 94 (Ala. 1985) (“[I]t has long been the law in Alabama that failure to argue an issue in [an initial] brief to an appellate court is tantamount to the waiver of that issue on appeal.”).

Ms.*19, n. 9.

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