 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Creel v. District Board of Trustees of Brevard Community College6/8/2001
right to continued employment. For that to have been an issue properly before the ALJ, Creel would have had to have notice that that issue was before the ALJ for determination. See Smith v. Unemployment Appeals Comm'n, 751 So. 2d 639, 640 (Fla. 1st DCA 1999) ("Due process requires that the claimant receive proper notice of the issues to be heard or expressly waive such notice; otherwise the claimant is deprived of a fair hearing.").
Additionally, while the Board is correct that Creel did not have a property interest in his job after the contractual year expired (assuming he had a contract), the testimony by the Director of Human Resources for Brevard Community College was that if Creel had not lost his license, Creel would have continued in his employment at the college. This testimony is in line with the undisputed evidence that Brevard Community College had an unwritten policy of not terminating employees for DUI convictions. Thus, once the ALJ determined that termination of employment for the six-month loss of the license was too harsh, the only evidence before the ALJ was that Creel would in fact have been employed after the end of the contract period.
Pursuant to section 120.68(7)(c), this court is required to remand to the agency or set aside the agency's action when " he fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." That is the case here. By addressing whether Creel had a reasonable expectation of continued employment without that issue being noticed or otherwise raised or argued at the hearing, the ALJ deprived Creel of procedural due process. Thus, we set aside that portion of the Board's order terminating Creel's employment after June 1999, as it was based upon the ALJ's improper determination of that issue. We otherwise affirm the remainder of the order finding that suspension would be the appropriate sanction.
AFFIRMED in part; REVERSED in part.
PLEUS and ORFINGER, R. B., JJ., concur.
Page 1 2 Florida DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|