Veasey v. Board of Public Instruction, Palm Beach County

• Decision Date: 17 February 1971
• Docket Number: No. 70-943,70-943
• Citation: Veasey v. Board of Public Instruction, Palm Beach County, 247 So.2d 80 (Fla. App. 1971)
• Court: Florida District Court of Appeals
• Parties: Herman VEASEY, a minor, by and through his mother and next friend, Marie Veasey, Petitioner, v. BOARD OF PUBLIC INSTRUCTION, PALM BEACH COUNTY, Florida, Respondent.

Page 80

247 So.2d 80

Herman VEASEY, a minor, by and through his mother and next friend, Marie Veasey, Petitioner, v. BOARD OF PUBLIC INSTRUCTION, PALM BEACH COUNTY, Florida, Respondent.

No. 70-943.

District Court of Appeal of Florida, Fourth District.

Feb. 17, 1971.

Rehearing Denied April 23, 1971.

Brian Sherr and Louis G. Carres, Delray Beach, for petitioner.

James M. Gann, of Jackson & Jackson, Palm Beach, for respondent.

WALDEN, Judge.

This is a petition for writ of certiorari seeking review of a decision rendered by the Board of Public Instruction of Palm Beach County to expel a minor from the school system based on charges of misconduct.

Petitioner's Points One through Six are without merit. Point Seven contains merit, it being:

'Respondent Violated 'Due Process' And The Administrative Procedure Act In That The Final Order Of The Board Of Public Instruction Amounted To Nothing More Than A Verdict Of Guilty As Charged.'

The record reflects that the Board had been long suffering and conscientious in its dealings with this minor and his parent. However, it appears with reference to this point that, at most, the Board found the minor to have only 'been guilty of the misconduct as charged.' This is insufficient. Powell v. Board of Public Instruction of Levy County, Fla.App.1969, 229 So.2d 308. See also Polar Ice Cream & Creamery Company v. Andrews, Fla.App.1963, 155 So.2d 716, and Greyhound Lines, Inc., Southern Greyhound Lines Division v. Mayo, Fla.1968, 207 So.2d 1.

Certiorari is granted. The decision of the School Board expelling the minor petitioner is quashed and the case remanded with directions to enter a written order containing findings of fact based upon the evidence adduced, that is to say, without the necessity of taking further testimony, coupled with the Board's conclusion as to which charge or charges have been sustained, all in accord with the aforementioned authorities.

It is so ordered.

CROSS, C. J., and MAGER, J., concur.

UPON PETITION FOR REHEARING

WALDEN, Judge.

We are now officially advised for the first time that the composition of the Board has changed between the time the Board conducted the expulsion hearing and the time we granted certiorari and remanded with instructions to the Board to enter an order containing specific findings of fact. In other words, some of the present Board members were not members at the time of the evidentiary hearing and the resulting decision to expel the minor petitioner from the school system.

The critical reason for requiring an administrative agency to state their conclusions and orders with specificity is to facilitate judicial review. Such findings point the pathway down which the appellate court may travel in reviewing the essential facts to determine whether such facts justify the conclusion reached by the order. The findings must, of course, be related to the charges. Powell v. Board of Public Instruction of Levy County, Fla.App.1969, 229 So.2d 308; Polar Ice Cream & Creamery Company v. Andrews, Fla.App.1963, 155 So.2d 716 and Greyhound Lines, Inc., Southern Greyhound Lines Division v. Mayo, Fla.1968, 207 So.2d 1.

As reflected in our initial opinion, the only deficiency in the expulsion proceeding was the failure of the Board to couch its findings in detail. We supposed that the Board could review the record and simply supply the lack without the necessity of conducting a new hearing. We did not know of the change in the Board's make-up at the time of our decision.

Looking freshly and advisedly at the problem, we are satisfied that the members of the old Board are without power in the premises and their effort to reconvene themselves at the present time as the Board and enter an order pursuant to our mandate is a nullity, even though it were dated nunc pro tunc October 13, 1970, which is the date of the original hearing. 2 Am.Jur., Administrative Law, § 532.

Since the old Board is without power other avenues must be explored. Florida allows hearing examiners, F.S.1969, §§ 120.24 and 120.25, F.S.A. This mention is made only to record that our Administrative Procedure Act contemplates that persons other than those conducting the hearing may make ultimate decisions.

Courts that have considered the question are unanimous that evidence received from a hearing examiner may be used by the full Board in reaching their decision even if the Board did not actually hear the testimony. In other words, the Board could consider the evidence so adduced and the examiner's report. See 18 A.L.R.2d 606.

But what is the situation where there is a change in the personnel of the Board after the taking of evidence but before a decision is reached due to elections, illness, etc.? The courts are divided and Florida has not had occasion to consider the question. 18 A.L.R.2d 606, supra.

The leading case on this is Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288. That case held in effect that he who hears the evidence must decide the case. But what of cases of impossibility? If a board members dies before a...