Schaefer v. Clark, 41490

• Decision Date: 10 November 1965
• Docket Number: Nos. 1,No. 41490,3,2,41490,s. 1
• Citation: 112 Ga.App. 806,146 S.E.2d 318
• Parties: Mrs. Bruce SCHAEFER, Director, v. Mrs. Margaret S. CLARK
• Court: Georgia Court of Appeals

Page 318

146 S.E.2d 318

112 Ga.App. 806

Mrs. Bruce SCHAEFER, Director, v. Mrs. Margaret S. CLARK.

No. 41490.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 10, 1965.

Rehearing Denied Dec. 1, 1965.

Syllabus by the Court

A notice of discharge to an employee of a state agency may be amended to make specific the grounds of discharge but until the notice is sufficiently specific the discharge cannot be effective.

Defendant in error, in State employee, received a notice of dismissal on May 5, 1964, dated May 4, 1964, informing her of her dismissal from employment, effective May 20, 1964. The employee filed an appeal with the State Personnel Board on May 12, 1964, and a hearing was set thereon for August 12, 1964. The day before the hearing the employee moved to dismiss the charges and set aside the dismissal on the grounds that the letter of dismissal was too vague, indefinite and uncertain to comply with the requirements of Rule 12.400 of the Rules and Regulations of the State Personnel Board. The hearing was Continued until September 16, 1964. On August 20, 1964, plaintiff in error filed an amendment to the original letter of dismissal of May 4, 1964, to which amendment the employee made a motion to strike on the grounds that the original letter of dismissal was not amendable. At the hearing on September 16, 1964, the State Personnel Board ruled that the original letter of dismissal was not amendable and upheld the appeal of the employee on the grounds of legal insufficiency of the original letter of dismissal. The plaintiff in error concedes that the original letter of dismissal was legally insufficient and upon certiorari to Fulton Superior Court assigned error on the ruling disallowing the amendment to the original letter of dismissal. The superior court affirmed the decision of the State Personnel Board. The case is now before this court to review that decision.

Arthur K. Bolton, Atty. Gen., Alfred L. Evans, Jr., Asst. Atty. Gen., Atlanta, for plaintiff in error.

Hansell, Post, Brandon & Dorsey, Bates Block, W. Rhett Tanner, Atlanta, for defendant in error.

EBERHARDT, Judge.

Rule 12.400 of the Rules and Regulations of the State Personnel Board provides: 'The appointing Authority, upon notice in writing to an employee stating specific reasons therefor, may dismiss any employee for cause as herein defined. The Appointing Authority shall send a copy of the notice to the Director. For the purpose of these rules, 'cause' for dismissal shall be (1) negligence or (2) insufficiency in performing the duties of the position held, (3) unfitness to perform assigned duties, (4) insubordination, (5) misconduct reflecting discredit on the Department, or (6) political activity in violation of Section 3.100.'

A notice of dismissal under this Rule, forming the basis of an administrative proceeding, is amendable. A ruling to the contrary would have the effect of exacting much higher and stricter standards in pleadings before administrative bodies than is the case in the superior and other trial courts of this State, wherein the right of amendment has been said to be 'as broad as the plan of salvation.' There the pleading may be amended 'at any stage of the cause' before verdict. Code § 81-1301. The reason for this was made clear by Chief Justice Bleckley in Ellison v. Georgia R. Co., 87 Ga. 691, 696(2, 3), 13 S.E. 809, 810. The right of amendment, he asserted, 'is a resource against waste,' and 'is comprehended in the frank recognition of two things, both of which are made manifest by actual experience. The first is that, in the practice of any art, it is generally better to preserve what has been done, improving it, and taking some benefit from it, than to throw it away, and begin over. The second is that, in the practice of any art, save by the most finished and accomplished experts, many errors and mistakes will be committed; some by reason of ignorance or other incompetency; some by reason of haste or carelessness; and some by reason of inherent difficulty and uncertainty as to what is exactly the right thing to do, the right manner of doing it, or the right materials to be used.' How much greater application this has to the proceedings in an administrative agency, operated by laymen, than to courts where the practitioners are skilled in the law and the niceties of its requirements!

It is recognized generally by authorities on administrative law. 'The key to pleading in the administrative process is adequate opportunity to prepare. When an original notice or pleading is inadequate, it is normally supplemented by informal communication, by formal amendment, by a bill of particulars, by prehearing conferences, or by ample continuances at the hearing. And the question on review is not the adequacy of the original notice or pleading but is the fairness of the whole procedure.' Davis on Administrative Law (1951) § 80, pp. 279-280. To the same effect, see 2 Am.Jur.2d 71, Administrative Law, § 244; 73 C.J.S. Public Administrative Bodies and Procedure § 120, p. 439. The Supreme Court of Kansas expressed it this way: 'It is now well established that technical rules of pleadings such as govern civil or criminal actions are not applicable to applications or pleadings filed with an administrative agency * * * (citations) and liberality is to be indulged as to their form and substance.' Community of Woodston v. State Corp. Commission, 186 Kan. 747, 353 P.2d 206, 210. Thus, the policy in this matter is recognized as being more liberal than in the courts--not less liberal.

Reliance upon Scott v Undercofler, 108 Ga.App. 460, 133 S.E.2d 444 is misplaced. No question of amendment was raised or in any wise involved in that case and it can not be construed as authority that pleadings or proceedings before administrative bodies in Georgia are not amendable. What it did hold was that an employee's discharge could not be effective without specific and adequate notice of the cause for dismissal.

To hold that there is imposed upon the lay head of an administrative agency a stricter account and a keener knowledge of the niceties and requirements of pleading than is possessed by those who are skilled in the law and permitted to practice in the courts is untenable. This appears more dramatically in light of the current simplifying of court practice and procedure. No harm can result if we hold the proceeding to be amendable. The employee is still entitled to and must get adequate opportunity to prepare her defense. If the information needed is not timely supplied, either in the original notice or in amendment thereto, she is entitled to a reasonable continuance, the denial of which would amount to an abuse of discretion.

It should be pointed out, however, that since this is an administrative proceeding technicalities attendant upon the rules of pleading in courts of law are not to be imposed. Thus, the parties are not to be concerned with the matter of whether there was 'enough to amend by' in the original notice, or of whether the amendment 'relates back' to the time of giving it. As has been pointed out, it is settled under the rule of Scott v Undercofler, supra, that the employee is entitled to have specificity as to the grounds of discharge before it can become effective. In the posture here the original notice being concededly lacking, the employee's discharge cannot be effective until the defect is supplied by amendment. When the employer tendered an amendment it became the duty of the State Personnel Board to determine whether it was sufficient. If so, and the discharge were upheld after hearing on the merits it would be effective from the date of the tender of the amendment supplying specificity.

There are, of course, instances when the employee, being fully apprized of the facts, is not concerned with specificity in the notice. Thus, if no request for details is made and no appeal is entered within the time for making appeal, the discharge becomes final. The employee may first request details before determining whether to enter an appeal, or he may enter an appeal and then make the request or demand prior to a hearing on the merits, no procedural rules prescribing otherwise. It must follow that if he elects to go to a hearing on the merits without having made the request or demand there is a waiver of any further specificity in the notice.

If the employer deems the original notice to be sufficient he may stand on it without amending until there has been some adjudication of its insufficiency, either by the Merit Board or the courts.

But until the notice, whether in its original form or as amended, is fufficient in...