Miss. Bd. On Law Enforcement Officer Standards and Training v. Clark
| Docket Number: | 2006-SA-01119-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-28-2007 Opinion Author: LEE, P.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Civil service - Conduct unbecoming an officer - Evidence outside the record - Sufficiency of evidence Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 06-07-2006 Appealed from: Coahoma County Chancery Court Judge: William Willard Disposition: BOARD CANCELLED CLARK’S CERTIFICATION AS A LAW ENFORCEMENT OFFICER. CHANCELLOR REVERSED BOARD’S DECISION. Case Number: 2004-415 |
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| Party Name: | Attorney Name: | |||
| Appellant: | MISSISSIPPI BOARD ON LAW ENFORCEMENT
OFFICER STANDARDS AND TRAINING |
MICHAEL MCHENRY |
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| Appellee: | DARYL A. CLARK | W. ELLIS PITTMAN ROSHARWIN LEMOYNE WILLIAMS |
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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: | Civil service - Conduct unbecoming an officer - Evidence outside the record - Sufficiency of evidence |
| Summary of the Facts: | Daryl Clark served as a police officer with the Clarksdale Police Department. The Civil Service Commission Board decided that Clark would be suspended indefinitely without pay after he was accused of having dropped a bag of cocaine at the police station. Clark then applied for unemployment compensation. The Mississippi Employment Security Commission found that Clark was entitled to unemployment compensation benefits. Clark was indicted for possession of cocaine, tried, and acquitted. Following the criminal trial, the Law Enforcement Officer Standards and Training Board found by clear and convincing evidence from the surveillance footage and testimony that Clark engaged in conduct unbecoming an officer and cancelled and recalled Clark’s professional certificate. Clark appealed the Board’s decision to the chancery court which reversed the Board’s decision and reinstated Clark as a certified law enforcement officer in good standing with the State of Mississippi. The Board appeals. |
| Summary of Opinion Analysis: | Issue 1: Evidence outside the record The Board argues that the chancellor erroneously gave weight to the acquittal in the criminal trial and the awarding of unemployment benefits by the Commission in reaching his decision and went beyond the record when he asked the Board to investigate whether the police chief recommended the cancellation of Clark’s professional certificate. Section 45-6-11(7) states that “[p]rofessional certificates remain the property of the board, and the board reserves the right to . . . cancel and recall any certificate” upon certain occurrences. When the Board believes there is a reasonable basis for the cancellation or recalling of a certificate, section 45-6-11(8) requires that notice and opportunity for a hearing shall be provided. Thus, the Board was not bound by the Commission’s findings or the findings of the circuit court. Further, according to the testimony of the Clarksdale city attorney, the Commission made its findings without viewing the surveillance video. The Board believed a reasonable basis existed for cancelling or recalling the certificate and therefore properly proceeded with a hearing. The Board argues that the chancellor erroneously considered communications between the Board’s attorney and the police chief that took place the day that Clark was found not guilty of possession of a controlled substance by the circuit court. These communications were outside the record and were not proper for consideration by the chancery court. However, the communication was irrelevant in determining whether the Board had substantial evidence to support its decision. Issue 2: Sufficiency of evidence The Board argues that the chancellor substituted his own judgment for that of the Board and should be reversed. At the Board hearing, three witnesses testified that the surveillance video showed Clark leaving the restroom and apparently tossing something between his left and right hand as he walked down the hall. The three witnesses testified that seconds later, a small plastic bag appeared on the floor. The chancellor found fault with the testimony as to what was depicted in the recording, because none of the witnesses were present. Although the chancellor is correct that none of the witnesses were present at the time of the incident, their testimony was based upon the surveillance video. While it is true that the witnesses could not testify that the bag dropped contained cocaine, the contents of the bag that was picked up at the same spot the bag was dropped tested positive for cocaine. Therefore, sufficient evidence existed for the Board to draw the conclusion based on the testimony that Clark dropped the bag of cocaine. Another basis for the chancellor’s reversal of the Board’s decision was the reliability of the surveillance video. The testimony about the operation and accuracy of the surveillance system given by the salesman, who was also the president and security systems contractor of Access Technology Group, the installer of the surveillance system, was sufficient to verify its reliability. The decision of the chancellor is reversed for reinstatement of the decision of the Board. |
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