Smith v. Elder , 174 Ga. App. 316 ( 1985 )

Banke, Chief Judge.

The appellant was terminated from her employment with the Department of Parks and Recreation of the City of Atlanta based on charges of insubordination, incompetence, and inefficiency. This decision was upheld by the Civil Service Board of the City of Atlanta, whereupon the appellant petitioned the Fulton County Superior Court for certiorari. Following a review of the administrative record, which included a verbatim transcript of the proceedings below, the superior court “denied” the petition, based on application of the “any evidence” standard. We granted a discretionary appeal in order to resolve an apparent conflict in our decisions regarding whether the “any evidence” standard, as opposed to the “substantial evidence” standard, is applicable in such cases. Held:

1. In a line of decisions going back many years, this court has consistently held that the denial of certiorari by a superior court will not be disturbed where there is at least some evidence supporting the judgment. See, e.g., Burley v. City of Atlanta, 14 Ga. App. 815 (82 SE 357) (1914); Cannon v. Macon Fire &c. Pension Bd., 137 Ga. App. 803, 804 (224 SE2d 851) (1976); Flacker v. Berr-Nash Corp., 157 Ga. App. 638, 639 (278 SE2d 180) (1981). The latter two cases were, however, decided without reference to Ga. L. 1961, pp. 190, 192, § 8 (OCGA § 5-4-12) (b); former Code Ann. § 19-402), which specifies that the scope of superior court review in certiorari cases shall include a determination “as to whether the judgment or ruling below was sustained by substantial evidence.” This standard was recently applied in Guntharp v. Cobb County, 168 Ga. App. 33, 35 (307 SE2d 925) (1983), albeit without overruling Flacker v. Berr-Nash Corp., supra, or Cannon v. Macon Fire &c. Pension Bd., supra, both of which were decided subsequent to the enactment of the 1961 statute and are clearly incompatible with it. We now overrule the earlier cases and affirm that the “substantial evidence” standard is the proper standard to be applied in appeals to superior court by application for certiorari.

2. Although the superior court did not apply the correct standard in reviewing the sufficiency of the evidence in the present case, we hold that the error was harmless as a matter of law, since our own review of the record convinces us that there was substantial evidence to support the decision of the civil service board.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, Sognier, and Benham, JJ., concur. Carley, J., concurs in Division 1 and in the judgment. Deen, P. J., and Beasley, J., concur in part and dissent in part.