Burleson v. Hancock County Sheriff's Dep't, et al. COUNTY SHERIFF STEVE GARBER AND FORMER HANCOCK COUNTY SHERIFF RONALD PETERSON
| Docket Number: | 2002-CC-00411-COA Linked Case(s): 2002-CT-00411-SCT ; 2002-CC-00411-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-18-2003 Opinion Author: Myers, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Employee termination - Demotion - Pre-termination hearing - Due process - Post-termination hearing - Double jeopardy - Length of time before decision - Open Meetings Act - Sufficiency of evidence - Arbitrary and capricious decision - Findings of fact Judge(s) Concurring: Bridges, Thomas, Lee and Chandler, JJ. Dissenting Author : Southwick, P.J. Dissent Joined By : McMillin, C.J., and Griffis, J. Concurs in Result Only: King, P.J., and Irving, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 02-21-2002 Appealed from: Hancock County Circuit Court Judge: Robert H. Walker Disposition: AFFIRMED COMMISSION FINDING APPROVING TERMINATION OF CIVIL SERVANT. |
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| Party Name: | Attorney Name: | |||
| Appellant: | George E. Burleson |
JAMES BAILEY HALLIDAY |
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| Appellee: | Hancock County Sheriff's Department Civil Service Commission, Hancock County Sheriff Steve Garber and Former Hancock County Sheriff Ronald Peterson | ALBERT LIONEL NECAISE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Employee termination - Demotion - Pre-termination hearing - Due process - Post-termination hearing - Double jeopardy - Length of time before decision - Open Meetings Act - Sufficiency of evidence - Arbitrary and capricious decision - Findings of fact |
| Summary of the Facts: | George Burleson was terminated from the Hancock County Sheriff's Department because of the insurance risk he posed which stemmed from two separate lawsuits filed against the sheriff's department based upon actions of Burleson. Burleson filed a written complaint with the Hancock County Sheriff's Department’s Civil Service Commission. The Commission approved the termination, and Burleson appealed to circuit court which affirmed the decision. Burleson appeals. |
| Summary of Opinion Analysis: | Issue 1: Demotion Prior to his termination, Burleson was transferred to patrol. Although Burleson never complained of the transfer until his termination, he now argues that this was a demotion and not a transfer. The Civil Service Rules and Regulations Rule 1.3 allows for only ten days from date of incident to request a hearing. Because Burleson failed to properly raise the issue within the required time, the Commission did not have to consider the issue. The technical definition of a demotion according to the Civil Service Rules and Regulations Rule 3.2.11 is a reduction to a class having a lower maximum rate of pay. There is no evidence that Burleson actually received a lower rate of pay. Issue 2: Pre-termination hearing The sheriff's decision whether or not to grant a pre-termination hearing is discretionary. Burleson argues that federal law requires a pre-termination hearing for civil employees. When a procedural due process claim is raised, the court must decide whether a protected life, liberty or property interest exists and determine what process is required in the situation. Here, Burleson’s property interest in his employment was created by sections 21-31-21 and 21-31-23, which provide that civil service employees cannot be discharged except for cause. With regard to the process required, Burleson was given written notification of termination and the actions he could take if he disagreed with the termination. Therefore, there was no due process violation. Issue 3: Post-termination hearing Burleson was not informed of any action the Commission was taking until forty-eight days after his written request for a post-termination hearing, and he argues he should have been given a hearing within twenty days pursuant to Civil Service Rules and Regulations Rule 1.3. While it was important to Burleson to have a quick decision, it was also important that a proper investigation be conducted by the Commission. Burleson failed to press the issue of having a hearing within twenty days of his request, and even if he had, the Commission is allowed the flexibility to properly investigate the matter. Issue 4: Double jeopardy Burleson argues that the transfer was a demotion and because the demotion was for the same reason as his termination, good cause was lacking for the termination. Since Burleson failed to press the issue of his demotion until he was terminated, he was transferred and not demoted. Issue 5: Length of time before decision Burleson argues that because it took over a year for the Commission to reach a decision, his due process rights were violated. Not only were some of the delays agreed to by Burleson's attorney, but the Commission is afforded the opportunity to conduct a thorough investigation. Issue 6: Open Meetings Act Burleson argues that the Commission was in violation of the Open Meetings Act, because he was not given notice of meetings the Commission had with members of the Sheriff’s Office and because he was not given an opportunity to cross-examine the opposition. The Open Meetings Act declares a policy that public business be performed in an open and public manner. The Commission investigated Burleson's termination by first meeting with the parties individually. The Commission also allowed a hearing in which all parties were present and testimony was presented by both sides. While the investigative process of the Commission in interviewing the parties separately is questionable, it is not a violation of the Open Meetings Act because of the later hearing. Issue 7: Sufficiency of evidence Burleson argues that the Commission lacked substantial evidence to uphold his termination. Civil Service Rules and Regulation 15.1.1 provides that a civil servant may be removed for any omission or commission tending to injure the public services. Although Burleson claims that he was not a named defendant in one of the two lawsuits against the sheriff's department, testimony showed that he was the reason the sheriff's department was sued. A loss of insurance for the sheriff's department is an injury to public services. Issue 8: Arbitrary and capricious judgment Burleson argues that the decision of the Commission was arbitrary and capricious. The sheriff acted in the best interest of the sheriff's department and the county, and the Commission was correct in upholding the termination. Burleson also argues that the decision of the Commission is null because the commissioners were serving beyond their appointed terms. Although Burleson is precluded from raising this issue for the first time on appeal, public officials can serve after the expiration of their term until they are replaced. Issue 9: Findings of fact Burleson argues that the Commission's order failed to set forth any findings of fact or conclusions of law. The Commission entered an amended order that found as fact that Burleson’s conduct in his official capacity, more particularly in two incidents that ultimately led to suits being brought against the sheriff’s department, constituted inattention to duty and incompetence and that the continued employment of Burleson by the department raised a substantial risk that the department would be unable to renew its existing liability insurance coverage, which would have the potential to substantially hamper the department in the performance of its duties. These findings of fact were sufficient to constitute grounds for Burleson’s discharge. |
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