Schaefer v. Clark

146 S.E.2d 318, 112 Ga. App. 806, 1965 Ga. App. LEXIS 839

• Court: Court of Appeals of Georgia
• Decided: November 10, 1965
• Docket: 41490
• Status: Published

Opinions

Eberharbt, 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 SE 809). 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 CJS 439, Public Administrative Bodies and Procedure, § 120. 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 . . . [cititions] and liberality is to be indulged as to their form and substance.” Community of Woodston v. State Corp. Commission, 186 Kan. 747 (353 P2d 206). 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 SE2d 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.

Since this is an administrative proceeding, technicalities attendant upon the rules of pleading in courts of law are not to be imposed, and 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, 108 Ga. App. 460, 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 sufficient in specificity as to the grounds on which the employee is discharged, the liability of the employer for the payment of the employee’s- salary continues.

Judgment reversed.

Felton, C. J., Nichols, P. J., Bell, P. J., Jordan, Hall and Deen, JJ., concur. Frankum and Pannell, JJ., dissent.