HALL v. AULT et al., 240 Ga. 585

Nichols, Chief Justice. Appellant was employed by the Department of Corrections as a security guard at a halfway house. The department prescribed a dress code for such employees which forbade the wearing of blue jeans on duty. Appellant was warned several times of violations of the dress code. After continued violations, he was discharged for insubordination. He appealed to the State Personnel Board and, after hearing, the board found in favor of the department.

The Fulton Superior Court and the Court of Appeals affirmed the findings of the State Personnel Board using as the standard of review the "any evidence rule.” Appellant contends the courts should have applied the "substantial evidence” test. This court granted certiorari to review the question of what standard of review should be applied by a superior court in an appeal from an administrative decision of the State Personnel Board.

The standard of review to be applied by the courts is set forth in Code Ann. § 40-2207.1 (m), which provides, inter alia: "The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact. The court may affirm the decision or order of the board or remand the case for further proceedings.

The court may reverse the decision or order of the board if substantial rights of the petitioner have been prejudiced because the board’s findings, inferences, conclusions, decisions or orders are:...

(4) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record .. .” (Emphasis supplied.) The language of Code Ann. § 40-2207.1 (

m) and Code Ann. § 3A-120 (

h) is identical in all material particulars and the Court of Appeals has twice before construed the clearly erroneous standard of the Administrative Procedure Act to be the same as the "any evidence rule.” Ga. Dept. of Human Resources v. Holland, 133 Ga. App. 616 (211 SE2d 635) (1974); Ga. Real Estate Commission v. Hooks, 139 Ga. App. 34 (227 SE2d 864) (1976).

This court in construing the "clearly erroneous” standard of the Civil Practice Act contained in Code Ann. § 81A-152 said: "Accordingly, assuming but not deciding that the findings of fact contended for by the appellants would have been authorized by the evidence presented on the trial, yet, where the facts found by the trial court were authorized by the evidence such findings will not be set aside.” Brook Forest Enterprises v. Paulding County, 231 Ga. 695 (203 SE2d 860) (1974).

The statute giving appellant a right to judicial review states, in part: "The court shall not substitute its judgment for that of the board as to the weight of the evidence on the questions of fact.” (Emphasis supplied.) Thus, the statute prevents a de novo determination of evidentiary questions leaving only a determination of whether the facts found by the board are supported by "any evidence.” The trial court did not err in confining its scope of review to the "any evidence” standard, and the judgment of the Court of Appeals is affirmed. Judgment affirmed. All the Justices concur, except Hall, J., who dissents.

Argued November 15, 1977 Decided January 24, 1978. Elizabeth Coleman Stroup, Richard K. Greenstein, Steven Gottlieb, for appellant. Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellees.