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ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2007-2008

2070068

Ex parte City of Birmingham
PETITION FOR WRIT OF CERTIORARI
TO THE JEFFERSON CIRCUIT COURT
(In re: Nathan Dale Holmes
v.
City of Birmingham)
(Jefferson Circuit Court, CV-06-6606)

PER CURIAM.
The City of Birmingham ("the City") petitioned this court

for a writ of certiorari to review whether the Jefferson
Circuit Court erred in vacating an order of the Personnel
Board of Jefferson County ("the Board") upholding the City's
decision to terminate the employment of Nathan Dale Holmes.
We affirm the judgment of the circuit court.

In December 2004, the City terminated the employment of
Holmes, who had worked for the City as a firefighter. Holmes
appealed the termination to the Board, which appointed a
hearing officer to conduct a hearing. Following the hearing,
the hearing officer issued a report finding that the City had
failed to substantiate the charges against Holmes and
recommending that the City reinstate Holmes's employment.

Following the issuance of the hearing officer's report,
the Board heard the parties' closing arguments at a hearing on
July 7, 2006. At the conclusion of that hearing, the parties
agreed to give the Board 30 additional days to make its
decision. On November 7, 2006, the Board issued an order
rejecting the hearing officer's report and sustaining the
decision to terminate Holmes's employment. On November 15,
2006, the Board issued an amended order reaching that same
result. Holmes appealed the Board's order to a three-judge

panel of the circuit court. On August 9, 2007, the circuit
court entered a judgment vacating the Board's order and
ordering the City to reinstate Holmes's employment.

Following the denial of its postjudgment motion, the City
petitioned this court for a writ of certiorari. "[T]he proper
method of reviewing circuit court decisions involving appeals
from the Jefferson County Personnel Board is by common-law
petition for writ of certiorari." Ex parte Personnel Bd. of
Jefferson County, 513 So. 2d 1029, 1031 (Ala. Civ. App. 1987).
"Review of the writ of certiorari in this court is limited to
a consideration of the proper application of the law by the
circuit court and whether that court's decision is supported
by the legal evidence." Copeland v. Personnel Bd. of
Jefferson County, 498 So. 2d 854, 855 (Ala. Civ. App. 1986).

In vacating the Board's order, the circuit court relied
on Rule 12.6 of the Board's rules and regulations, which
provides, in pertinent part:

"The Board, at the first regular or special
meeting following the hearing [before the hearing
officer], shall consider the Hearing Officer's
Report and Recommendation, and modify, alter, set
aside or affirm said report and certify its findings
to the Appointing Authority who shall forthwith put
the same into effect. If the Board fails to act
within 30 days after receipt of the Hearing

Officer's Report and Recommendation, the Report and
Recommendation shall become the order of the Board."
(Emphasis added.) The Board issued its order more than 30
days after the Board received the hearing officer's report and
after the expiration of any extensions of time agreed to by
the parties. The circuit court concluded that the Board
lacked the authority to issue its order because the Board had
failed to timely issue that order in compliance with the 30

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