Lemoine v. Department of Mental Health, Retardation and Hospitals

• Decision Date: 10 June 1974
• Docket Number: No. 1981-M,1981-M
• Citation: 320 A.2d 611,113 R.I. 285
• Parties: Patricia LEMOINE v. DEPARTMENT OF MENTAL HEALTH, RETARDATION AND HOSPITALS. P.
• Court: Rhode Island Supreme Court

Page 611

320 A.2d 611

113 R.I. 285

Patricia LEMOINE v. DEPARTMENT OF MENTAL HEALTH, RETARDATION AND HOSPITALS.

No. 1981-M.P.

Supreme Court of Rhode Island.

June 10, 1974.

Berberian & Tanenbaum, Aram K. Berberian, Cranston, for petitioner.

Richard J. Israel, Atty. Gen., Dorothy A. Carr, Sp. Asst. Atty. Gen., for respondent.

OPINION

PAOLINO, Justice.

Prior to March 13, 1970, the petitioner was employed by the State of Rhode Island at the Dr. Joseph H. Ladd School as a recreation leader in the Department of Health, Division of Mental Retardation (now the Department of Mental Health, Retardation and Hospitals). She received a letter, dated March 13, 1970, from Dr. John G. Smith, Superintendent of the Ladd School, notifying her that her services were being terminated as of that date 'for the good of the service-excessive absenteeism and tardiness.' The 'Termination Notice' is also signed by Dr. Smith.

The petitioner filed an appeal to the Personnel Appeal Board of the State of Rhode Island. At the hearing before the board evidence was presented indicating that petitioner had been absent and tardy on numerous occasions. The petitioner testified on her own behalf and attempted to explain her absences and tardiness. She also challenged Dr. Smith's authority to discharge her. The board affirmed the action of Dr. Smith and also found that he had authority to terminate petitioner's employment. Accordingly the board denied and dismissed her appeal.

The petitioner, being aggrieved by the board's action, sought judicial review of that action by filing a complaint in the Superior Court under G.L. 1956 (1969 Reenactment) § 42-35-15 of the Administrative Procedures Act. She based the complaint in substance on the grounds that (1) there was no competent evidence to support the finding of excessive absenteeism and tardiness, and (2) Dr. Smith lacked the authority to discharge her.

The Superior Court justice who heard the case affirmed the board's finding with respect to petitioner's excessive absenteeism and tardiness. However, he concluded that on the basis of the evidence before him he could not resolve the question of Dr. Smith's authority to discharge petitioner. The trial justice referred expressly to Dr. Smith's testimony that when he took the action against petitioner he was under the impression he had the authority to do so, but that now he was not sure whether or not he had the authority. The trial justice went on to say that as he examined the transcript, there did not seem to be any evidence upon which a finding that Dr. Smith either had the authority or did not have the authority could be made. He said that there was a complete failure of evidence on this point, that though he was not prepared to hold as a matter of law that Dr. Smith did not have such authority, by the same token he did not feel as a matter of law that the board had such evidence before it to determine that Dr. Smith did have such authority. In the circumstances he concluded that the only appropriate action was to remand the matter to the board with a request that it resolve the question of Dr. Smith's authority by taking further evidence. He thereupon remanded the case to the Personnel Appeal Board for that purpose. A judgment incorporating his decision was entered in the office of the clerk of the Superior Court.

The petitioner thereupon filed the instant petition for certiorari under § 42-35-16 of the Administrative Procedures Act to review the action of the trial justice. She challenges the trial justice's action on two grounds.

I

The petitioner's first found is that the evidence of her absenteeism and tardiness is insufficient to establish that they were excessive. This argument is without merit.

Section 42-35-15(g) provides, in part, that the Superior Court '* * * shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.' In passing on petitioner's appeal the trial justice, being cognizant of his duties and the scope of his review under this action, examined the record to determine whether or not the board's finding on the question of excessive absenteeism and tardiness was supported by competent evidence. He found that it was and affirmed.

The scope of our review is controlled by § 42-35-16. It may be well to point out here, as we did in Smith v. Zoning Board of Review, 111 R.I. 359, 367, 302 A.2d 776, 780 (1973), that the writ of certiorari brings up the record of the lower court for inspection and review on questions of law only, and any ground for reversal must be found on the face of the record. On certiorari this court does not weigh evidence, but merely examines the record to determine whether there is any legal evidence or reasonable inference therefrom to support the findings of the tribunal whose decision is being reviewed. Thus, we examine the record to determine whether or not there is any competent evidence to support the trial justice's findings sustaining the board's findings on the question of excessive absenteeism and tardiness and, also, to determine whether or not the trial justice applied the correct law to such findings. Smith v. Zoning Board of Review, supra. There is competent evidence in the record to support the trial justice's findings and therefore we do not disturb them.

The petitioner next contends that the trial justice has no authority under the Administrative Procedures Act to remand the case to the board for the taking of additional testimony on the question of Dr. Smith's authority to discharge petitioner.

The authority of the Superior Court to remand under the Administrative Procedures Act is governed by the provisions of §§ 42-35-15(e) and 42-35-15(g).

Section 42-35-15(e) reads as follows:

'If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings or decisions with the reviewing court.'

Section 42-35-15(g) reads as follows:

'The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the...