On rehearing the Tenure Commission contends that our opinion in this case is in conflict with the opinion of the Alabama Supreme Court in Smith v. Birmingham Board of Education,403 So.2d 226 (Ala. 1981).

The instant case is clearly distinguishable from Smith. In the case before us we are concerned with construction of § 16-24-7, Code (1981 Supp.), which gives a tenured "teacher" the right to appeal to the Commission. The purpose of the appeal is to allow a teacher on continuing service status to obtain a decision by the Commission as to whether his or her transfer was in compliance with the Tenure Act. The right to this hearing is absolute if appeal is taken within fifteen days.

In Smith v. Birmingham Board of Education, supra, the tenured "teacher" was denied a hearing before the local board to contest his transfer from a supervisor-position because he lacked tenure as a supervisor. The teacher apparently by-passed appeal to the Commission and filed suit in the circuit court. Construction of § 16-24-7 was therefore not an issue in the case.

This court recognizes that in absence of appropriate distinctions, we are bound by decisions of the supreme court, including Smith. However, with particular concern for continuity of statutory construction and in view of the numerous teacher tenure cases brought first for review to this court, we take this opportunity to comment upon the decision inSmith for whatever purpose it might serve. Smith states in effect the following: As Smith had not attained continuing service status (tenure) in the position of supervisor under §16-24-2 (b), though holding tenure under § 16-24-2 (a), he could be transferred or returned to an instructor position without the hearing requirements of § 16-24-6 being triggered.

We believe that construction does not comport with the language of §§ 16-24-5, -6, -7.

The Smith decision is stated to be founded upon the property interest granted a teacher under § 16-24-2. Such an interest is said to invoke the procedural safeguards of due process of the federal Constitution. If Smith had not attained tenure as a supervisor under § 16-24-2 (b), he had no such property interest and thus no right to a hearing upon transfer or demotion.

This court agrees that the Tenure Act grants to teachers a property interest which, when perfected, is entitled to constitutional due process protection. However, the right to minimum due process should not limit additional rights granted by the tenure law which may exceed minimum due *Page 880 process. We believe §§ 16-24-5, -6, -7 provide hearing rights to any "teacher" who has attained continuing service status under § 16-24-2 (a). Having once attained continuing service status as a "teacher," all of the hearing rights as to transfer provided by the Tenure Act become available. § 16-24-5. Section16-24-2 (b) states that promotion to principal or supervisor "shall in no way jeopardize the continuing service status of the teacher as an instructor". It therefore appears to follow that an instructor (teacher) with continuing service status, promoted to principal or supervisor, is entitled to a hearing when given notice of transfer or demotion. The matters to be heard are set out in § 16-24-5. Included therein would be the issue of whether the teacher had attained tenure as a principal or supervisor; i.e., was the transfer with loss of status?

We consider, therefore, that Smith having tenure as a "teacher" (instructor), though without property rights as a supervisor and thus no due process rights requiring a hearing upon his demotion, nevertheless had statutory rights to a hearing by the Board of Education upon notice of transfer and demotion. Our opinion in no way limits the authority of the Board to demote or transfer prior to attaining tenure as a supervisor as indicated in § 16-24-2 (b).

We respectfully state the above opinion so that if it chooses to do so, the supreme court may consider it at some future time.

APPLICATION FOR REHEARING OVERRULED. OPINION EXTENDED ON REHEARING.

HOLMES, J., concurs.

BRADLEY, J., concurs specially.

This is a teacher tenure case.

The record reveals the following: By letter of May 26, 1981, the Macon County Board of Education notified Florine Smith that she would be transferred from her position as Attendance Supervisor in the Central Office to a teaching position in the Vocational Education Program. Smith notified the Board of her intent to contest the transfer and requested a public hearing. On June 12, 1981, the Board informed Smith of the time and place of the hearing and of the reasons for the proposed transfer. After the hearing on June 22, 1981, the Board voted to approve the transfer. Smith appealed the Board's decision to the Alabama State Tenure Commission. On August 29, 1981, the Commission determined that it lacked jurisdiction stating in part:

[T]he Tenure Commission finds that Mrs. Smith had not attained continuing service status as an attendance supervisor in that she was not certified in that position by the State in compliance with Section 16-24-1, Code of Alabama, 1975.

The Tenure Commission, therefore, dismisses the appeal for lack of jurisdiction.

Smith petitioned the Circuit Court of Macon County for a writ of mandamus directing the Commission to accept jurisdiction over her appeal. On January 27, 1982, the circuit court denied the writ. Smith appeals to this court.

The only issue to be decided by this court is whether the Commission erred in refusing to exercise jurisdiction over Smith's appeal. Such refusal was based on a determination that Smith lacked tenure as a "supervisor." We note, however, that access to the Commission is dependent only upon Smith's attaining continuing service status as a "teacher." Once continuing service status is attained, a "teacher" is entitled to all the privileges and protections of the Alabama Teacher Tenure Law. Alabama State Tenure Commission v. Green,409 So.2d 850 (Ala.Civ.App. 1981). The term "teacher" is defined to include instructor, principal or supervisor. § 16-24-1, Code (1975).

The criteria for continuing service status for teachers is set forth in § 16-24-2 (a) Code (1975) which requires:

Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system the succeeding school year.

Smith testified before the Board that of the twenty-eight and one-half years she has been employed by the Macon County school system, seven were in the capacity of instructor in the field of home economics. Although the record on its face does not establish that Smith had gained tenure as a supervisor, the Commission concedes in brief that Smith is tenured as a "teacher." Her tenure as an instructor could not be lost by virtue of her subsequent promotion to "attendance supervisor."See § 16-24-2 (b), Code (1975). *Page 879

She was therefore entitled to appeal her proposed transfer to the Commission pursuant to § 16-24-7, Code (1981 Supp.). That section provides:

A teacher on continuing service status shall have the right to appeal within 15 days after the decision of the employing board to the state tenure commission, as hereinafter established, to obtain a decision by the commission as to whether such action was in compliance with this chapter and whether such action was taken for political or personal reasons and that such action was not arbitrarily unjust.

The Commission improperly denied jurisdiction over Smith's appeal. The circuit court's denial of mandamus is therefore due to be reversed and the matter be returned to the Tenure Commission for further consideration.

We pretermit the other issues raised in this appeal as they may properly be submitted for consideration by the Commission when it hears the cause on the merits. The judgment of the circuit court is reversed. It is directed that the mandate of the circuit court be issued to the Alabama State Tenure Commission directing it to proceed with the matter according to law.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.

I agree that Smith v. Birmingham Board of Education,403 So.2d 226 (Ala. 1981) is distinguishable from the case at bar, and I therefore concur in the decision to overrule the application for rehearing.