Powell v. Board of Public Instruction of Levy County
| Decision Date | 18 December 1969 |
| Docket Number | No. L-199,L-199 |
| Citation | 229 So.2d 308 |
| Parties | C. Allen POWELL, Jr., Petitioner, v. The BOARD OF PUBLIC INSTRUCTION OF LEVY COUNTY, Florida, Respondent. |
| Court | Florida District Court of Appeals |
Clayton, Duncan, Johnston, Clayton & Quincey, Bronson, for petitioner.
Wilson & Wilson, Bronson, for respondent.
Petitioner seeks review by certiorari of an order rendered by respondent Board terminating his contract as a member of the instructional staff of the public school system of Levy County as authorized by Part II of the Administrative Procedure Act, Chapter 120, F.S.
On November 8, 1968, during the school year, petitioner was notified in writing by the County Superintendent of Public Instruction that he was suspended from his position as a teacher in the Levy County School System on the grounds of immorality. In such notice he was advised that if he so requested, a public hearing on the charges against him would be held by the respondent School Board on November 19, 1968, ten days hence. Petitioner requested a hearing on the charges against him but asked for and was granted a continuance of the hearing until December 19, 1968. On the day of the hearing petitioner was served with another notice in writing signed by the County Superintendent and directed both to petitioner and respondent charging petitioner with immoral conduct in three specified particulars. By such notice the respondent School Board was asked to sustain the charges so placed against petitioner and to terminate his contract of employment pursuant to the applicable provisions of law. Testimony was adduced before the respondent Board touching upon the charges against petitioner, after which a written communication was transmitted by the County Superintendent to the State Superintendent of Public Instruction advising that the respondent Board had sustained the charges of immoral conduct made against petitioner and had terminated his contract of employment with the County School Board. A copy of this communication was served by mail on petitioner's attorney. No final order was rendered by respondent containing findings of fact based upon the evidence adduced at the hearing, or specifying which of the several charges against petitioner were found to have been sustained.
By his brief petitioner contends that he was denied due process of law by respondent Board in two particulars, to wit: (1) the written charges placed against him by the County Superintendent were couched in general terms and were so vague, indefinite and uncertain as to preclude him from adequately preparing a defense; and, (2) he was not afforded ten days notice of the specific charges of misconduct made against him prior to the hearing as required by the statute. 1
With respect to the vagueness of the written charges served on petitioner, it is noted that they are couched in the general language of the statute and contain no specific facts on which such charges are based. Had petitioner moved the Board for an order requiring that he be furnished with a more definite statement of the facts underlying the charges placed against him, he would have been entitled to such information and it would have been error to have denied it. The record reveals, however, that no such motion was made by petitioner at any time during the course of the proceedings. After the board had offered its evidence in support of the charges against petitioner, and rested its case, petitioner was then fully aware of all of the specific facts on which the charges were based. Despite this, he made no request or motion for a continuance of the hearing to a future date in order that he might marshal his evidence, subpoena his witnesses, and adequately prepare his defenses to the charges with which he was faced. The right to the foregoing relief is granted either expressly or by necessary implication by the provisions of the Administrative Procedure Act. 2
With respect to petitioner's contention that he was denied ten days notice of the charges against him before being required to appear at the hearing before the School Board, the record reveals that almost one and one-half months had elapsed between the time when he was first notified of his suspension on the grounds of immorality and the time the hearing was actually held. It is true that written notice of the more specific charges against him was furnished on the day the hearing commenced, but no motion or request for a continuance of the hearing was made by petitioner on the ground that he was taken by surprise or that he had not had adequate time to prepare his defense. Had such a motion or request been made, he would have been entitled to an adjournment of the hearing and it would have been error to have denied such motion. Instead, petitioner fully participated in the proceedings before the Board, and after the witnesses in support of the charges against him had testified petitioner made no motion for an adjournment of the hearing to a future date in order to have time to adequately prepare his defense. On the contrary, petitioner took the stand and testified in his own behalf at the conclusion of which he announced to the Board:
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Jacker v. School Bd. of Dade County, 82-191
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