BD. ON LAW ENFORCE. OFFICER STANDARDS & TRAINING v. Rushing

752 So. 2d 1085, 1999 Miss. App. LEXIS 576, 1999 WL 733234
CourtCourt of Appeals of Mississippi
DecidedSeptember 21, 1999
Docket97-CA-00632-COA
StatusPublished
Cited by7 cases

This text of 752 So. 2d 1085 (BD. ON LAW ENFORCE. OFFICER STANDARDS & TRAINING v. Rushing) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BD. ON LAW ENFORCE. OFFICER STANDARDS & TRAINING v. Rushing, 752 So. 2d 1085, 1999 Miss. App. LEXIS 576, 1999 WL 733234 (Mich. Ct. App. 1999).

Opinion

752 So.2d 1085 (1999)

BOARD ON LAW ENFORCEMENT OFFICER STANDARDS AND TRAINING, Appellant,
v.
Bobby Ray RUSHING, Appellee.

No. 97-CA-00632-COA.

Court of Appeals of Mississippi.

September 21, 1999.
Rehearing Denied November 16, 1999.
Certiorari Denied February 17, 2000.

*1086 Davis C. Scott, Jr., Jackson, Attorney for Appellant.

James K. Dukes, Hattiesburg, Attorney for Appellee.

BEFORE McMILLIN, C.J., BRIDGES, AND PAYNE, JJ.

McMILLIN, C.J., for the Court:

¶ 1. The Court is called upon in this case to determine the effect of a post-guiltyplea dismissal of criminal charges under Section 99-15-26 of the Mississippi Code on the former criminal defendant's right to resume duties as a certified law enforcement *1087 officer. The Mississippi Board on Law Enforcement Officer Standards and Training, statutorily charged with administering the State's law enforcement certification program, revoked Bobby Ray Rustling's certificate upon learning that he had entered a guilty plea to an indictment for embezzlement, even though the criminal proceeding had been finally dismissed without a formal adjudication of guilt upon Rushing's successful completion of the conditions imposed upon him under Section 99-15-26 of the Mississippi Code. On appeal, the Chancery Court of Jefferson Davis County overturned the agency's decision as being arbitrary and capricious and ordered reissuance of the certificate. The Board has appealed that ruling to this Court. We reverse the decision of the chancellor, thereby reinstating the cancellation of Rushing's certificate.

I.

Facts

¶ 2. It is undisputed that Rushing was indicted in 1992 for embezzlement by a grand jury in the Circuit Court of Marion County and that, at the time of his indictment, he was a deputy sheriff for Jefferson Davis County. There is also evidence in the record that, at approximately the same time, Rushing was indicted in Jefferson Davis County on three counts of assisting county prisoners to escape from confinement. On the day Rushing's trial was set to begin on the embezzlement charge in Marion County, he entered a plea of guilty. In exchange for that guilty plea, the prosecution announced its agreement to enter a nolle prosequi in the Jefferson Davis County cases and recommended that the trial court withhold formal acceptance of the guilty plea pending Rushing's successful completion of certain requirements imposed by the court. According to the State's recommendation, if Rushing successfully completed the conditions, the cause would be dismissed without a formal adjudication of guilt as permitted by Section 99-15-26 of the Mississippi Code. The trial court accepted the prosecution's recommendation and entered an order imposing certain conditions on Rushing to have two years' duration. It is undisputed that Rushing met all of the requirements of the order, and, after expiration of the two year period, the trial court entered a "Final Order of Nonadjudication and Dismissal" in which it finally dismissed the criminal proceeding.

¶ 3. The transcript of the proceeding where Rushing tendered his plea of guilty to the court indicates that the State's proof would have shown that Rushing, acting in concert with another deputy sheriff, obtained a firearm that was the property of the county and pawned it for $250. Some two months after the rifle was pawned, Rushing redeemed the firearm by repaying the amount advanced by the pawn shop together with all fees due and returned the weapon to the sheriff's department. Despite Rushing's subsequent activities in retrieving and returning the firearm, it was the State's position, not disputed by the defense, that the original act of improperly taking possession of the firearm and pawning it was an act sufficiently adverse to the county's ownership rights in the property to constitute an act of embezzlement.

¶ 4. During the two year period covered by the trial court's order, Rushing did not attempt to work in a law enforcement position; however, upon entry of the order finally dismissing the criminal proceeding, Rushing sought to renew his certification as a law enforcement officer since he had been offered a position as chief deputy for the Jefferson Davis County Sheriff. As a part of the application for recertification, Rushing revealed the previous embezzlement proceeding. The state agency charged with administering the law enforcement officers' certification program, the Board on Law Enforcement Officer Standards and Training, was apparently unaware before that time of the matter. The agency initiated a proceeding to inquire as to whether, instead of recertifying *1088 Rushing, the appropriate action of the agency might be to withdraw the certificate.

¶ 5. As required by the applicable statute, the Board conducted a hearing on the matter. Rushing appeared with counsel and was offered the opportunity to be heard. Rushing's case in favor of continuing his certification consisted primarily of (a) a number of letters from various officials and leaders in the community attesting to Rushing's general good character and his abilities as a law enforcement officer, (b) testimony from the present sheriff of Jefferson Davis County indicating his opinion, largely unexplained, that the embezzlement charge was not well-founded and suggesting that Rushing had merely been the victim of a political dispute, and (c) Rushing's own testimony that he was not, in fact, guilty of embezzlement but had entered a plea because he was out of money to further defend himself and because the on-going proceedings were causing pain to his family. The Board, after permitting Rushing this opportunity to be heard, voted to withdraw his certification as an eligible law enforcement officer.

¶ 6. Rushing appealed that decision to the Chancery Court of Jefferson Davis County. The chancellor concluded that the Board's decision was not supported by substantial evidence because, according to the chancellor's findings, the Board placed undue reliance on the accusations of Rushing's participation in the jail escapes to revoke his certification—charges that were never substantiated because of the entry of nolle prosequi by the State in those prosecutions. The chancellor further suggested that the Board "ignored the pleas of a State Senator, members of Boards of Supervisors, high school principals, Sheriffs, and a Justice Court Judge who attested to Bobby Ray Rushing's character and ability to carry out the duties of a law enforcement officer ..." and concluded that the "[f]ailure to consider these testimonials render[ed] the Board's decision arbitrary and capricious." Based on those conclusions, the chancellor reversed the decision of the Board. The Board then perfected an appeal of that decision to this Court.

II.

The Scope of Review on Appeal

¶ 7. It is a fundamental proposition of law that, when the legislature places regulatory authority for some aspect of the operation of government in an administrative agency, that agency necessarily has substantial discretion in the manner in which it fulfills its mission. Board of Law Enforcement Officers Standards and Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). Even though, as an ultimate safeguard against abuses of that discretion, the law preserves the right of judicial review of an action of an administrative agency, that right of review is severely limited. Id.

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Bluebook (online)
752 So. 2d 1085, 1999 Miss. App. LEXIS 576, 1999 WL 733234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bd-on-law-enforce-officer-standards-training-v-rushing-missctapp-1999.