IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-SA-00020-COA
CARL SMITH APPELLANT
v.
MISSISSIPPI DEPARTMENT OF PUBLIC APPELLEE SAFETY
DATE OF JUDGMENT: 12/15/2020 TRIAL JUDGE: HON. ISADORE W. PATRICK JR. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: DENNIS L. HORN LEIGH KATHRYN PAYNE HORN ATTORNEY FOR APPELLEE: MICHAEL ERIC BROWN NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 05/10/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.
McDONALD, J., FOR THE COURT:
¶1. Carl Smith (Carl) appeals the Hinds County Circuit Court’s judgment affirming the
Mississippi Employee Appeals Board’s (MEAB) decision that upheld Carl’s termination
from his position with the Mississippi Department of Public Safety (MDPS). Having
reviewed the record and arguments by the parties, we affirm the circuit court’s decision that
there was substantial evidence to support the termination.
Facts
¶2. Carl began working with the MDPS in 1999. By 2016, he had risen to the rank of
Master Sergeant with the Mississippi Bureau of Investigations (MBI), a division of the Mississippi Highway Safety Patrol (MHSP), which is a division of the MDPS. Carl was also
a major in the Army National Guard, which he joined in 1997 after serving in the Marines
from 1992 to 1997.
¶3. Carl married his wife, Kendyl, on August 12, 2014. They lived with her daughter (his
stepdaughter), P.D.,1 and their daughter, K.S., in Mississippi until May of 2016 when Carl
was detailed by the Guard to Arlington, Virginia. Carl left for Virginia, and Kendyl and the
children followed him shortly thereafter.
¶4. According to Carl, when he and Kendyl were dating, Kendyl told him about her prior
abuse of a medication, Adderall. After she assured him that she no longer had a drug-abuse
problem, they married. However, after their move to Virginia, Carl said he saw Kendyl
taking more than her prescribed dose of Adderall on several occasions. According to Carl,
she also tried to visit different doctors to secure more Adderall after her prescriptions ran
out.2
¶5. Kendyl became dissatisfied with their life in Virginia, and her mental state declined
due to her addiction to Adderall. After gaining employment at a bank and working for a day,
she and the children returned to Mississippi on October 13, 2016. Carl only learned that she
and the children had left when he returned from work that day.
¶6. The marriage deteriorated after this in spite of the parties’ attempts to reconcile.
Although Carl was in Virginia, he admitted that he had Kendyl followed in Mississippi and
1 To protect their privacy, the children will be referred to by their initials. 2 The record does not reflect the condition for which Kendyl was taking this medication.
2 discovered several instances of her infidelity with different men. At the time, Carl had both
a State-issued cell phone through the MBI and his personal cell phone with him. Carl
admitted that after learning of Kendyl’s infidelity, he called her and sent her multiple angry
texts from both his State-issued cell phone and his personal cell phone. He felt Kendyl was
misleading him because her unfaithfulness contradicted her words of love to him.
¶7. During this time, Carl sent Kendyl text messages from both phones and messages
through a messaging app. He also sent emails and posted items concerning her on Facebook.
The texts were full of expletives, demeaning language (“Idiot, you are the sorriest [expletive
deleted] human being I’ve ever [expletive deleted] met.” ) and veiled threats (“I’m filing
extortion charges against you . . . . I’m going to make sure everybody knows every immoral
and illegal thing you have ever done.”). Carl said that he hated her and her whole “[expletive
deleted]” family. In another text, he said that the MHSP could not do anything to him
because he was on his own phone and on military leave: “I don’t belong to them.”
Numerous times, Kendyl would not answer his calls, and the record contained pages of
numerous repetitive calls, reflecting the harassing nature of Carl’s communications. At one
point, Kendyl messaged Carl to take down the accusations against her that he had put on
Facebook, to which he responded that she should just kill herself and do their daughter a
favor before she is exposed to diseases. Despite her request, Carl continued to post on
Facebook that Kendyl had been unfaithful, saying, “she is working on number eight (that I
know of) for the year! Names available on request!”
¶8. On February 28, 2017, Carl sent an email to Kendyl’s father, Dwight Myrick; her
3 mother; and her sister in which he essentially expressed his frustration and anger with
Kendyl. In this email, he referred to several instances of Kendyl’s infidelity and accused her
of neglecting their child. He said that he had Kendyl followed and learned that she was
visiting areas associated with high drug trafficking.
¶9. Myrick contacted the MHSP to complain about the harassing text messages and emails
that Carl had sent to him and others, including Kendyl. Based on this complaint, on March
1, 2017, Major Jimmy Herzog from the MBI appointed Captain LeCarus D. Oliver to
investigate the allegations. Oliver met with Myrick to gather more information. Following
this meeting, Myrick forwarded Oliver the email Carl had sent to him in addition to several
of the texts between Carl and Kendyl.
¶10. Oliver also interviewed Krystle Goforth, a friend of Kendyl’s, who provided Oliver
with a text that she had received from Carl that was sent from his State-issued cell phone.
In it Carl accused her of helping Kendyl to engage in her illicit affairs. He detailed what his
investigator had learned, how some man picked Kendyl up at the library, and how she went
somewhere with this man until one in the morning. According to the message, Kendyl then
went to a drug neighborhood for an hour. Carl told Goforth that he was a criminal
investigator and that he intended to make sure that everyone who helped Kendyl “pays for
it.” He stated, “I will not rest until I find out everything that she has been doing. And if I
have to take you down in the process, so be it.” Goforth told Oliver that she felt threatened
by Carl.
¶11. Carl and Kendyl divorced in May 2017 while Carl was still in Virginia. However,
4 they continued to have contact thereafter, including texts from Carl that Kendyl felt were
harassing. Carl continued posting troublesome messages on social media directed toward
Kendyl.
¶12. On May 25, 2017, Kendyl filed charges against Carl in the Justice Court of Attala
County, Mississippi, for telephone harassment. The affidavit for these charges signed by
Kendyl stated that Carl “did wilfully and unlawfully by means of telecommunication make
obscene, lewd, harassing, and profane language with intent to abuse, threaten, and harass a
party to a telephone conversation from October 2016 to May 2017.”
¶13. Kendyl told Carl about the justice-court charges that she had filed while he was
driving to Mississippi to visit her and the children for the weekend. Prior to his arrival, Carl
talked to an investigator from the Attala County Sheriff’s Department who told him to go to
the sheriff’s department and that he would be allowed to bond out. But upon his arrival, Carl
was arrested and detained at the Leake County Jail for twenty-four hours.
¶14. After this, Carl texted Kendyl, threatening to file charges against her for keying his
truck if she did not drop the charges she had filed against him. He told her that she could
face a year in jail and have to pay back $5,500 in damages, “so just keep that in mind in case
you are thinking about not dropping the charges. I’m not wanting to hurt you in anyway, but
if you continue to try to hurt me in my career, then I will have to follow through with those
charges.” Kendyl filed additional charges against Carl for these harassing communications
as well.3
3 On October 4, 2017, an arrest warrant was issued for Carl by the Justice Court of Attala County for additional telephone harassment charges. However, Carl was not arrested
5 ¶15. Shortly after their divorce, Kendyl went to a rehabilitation center in Navarre, Florida,
for treatment of her Adderall addiction. During her three-week stay at the center, Carl filed
a petition in chancery court to obtain custody of his daughter. The petition was granted, and
Carl was awarded custody of K.S. in July 2017. After Carl obtained custody of K.S., he
brought her from Mississippi to live with him in Virginia.
¶16. After completing rehab, Kendyl returned to Mississippi. Although she still struggled
with her addiction issues upon her return, Kendyl said she managed to completely end this
habit by November 2017. The couple reconciled, and Kendyl returned to Virginia to live
with Carl.
¶17. Carl’s National Guard deployment ended on December 31, 2017, and the family
returned to Mississippi. Carl and Kendyl remarried on January 23, 2018. During their
remarriage, another child was born on November 13, 2018.
¶18. While the justice-court charges were pending, Oliver continued his investigation of
Myrick’s complaint. Carl was instructed to surrender his State-issued cell phone,4 from
which another MBI agent, Captain Carl P. Green, extracted data. Oliver confirmed that some
of the messages had been sent from Carl’s State-issued cell phone. He also learned that the
SIM card had been removed or exchanged with another SIM card at some point. MBI
personnel were not allowed to switch SIM cards in their State-issued phones. Carl later
for these additional charges. The record contains no information on the outcome of these charges. 4 The directive was issued by Anthony Schmidt from the MDPS Legal Division on January 3, 2018, ten months after the MBI began investigating Carl. Carl was also ordered to surrender his State-issued laptop.
6 admitted that he had taken the SIM card out of the State-issued phone to temporarily replace
it with Kendyl’s SIM card because her phone had not been working at the time. Carl did not
produce the laptop as ordered, saying that it was in his personal storage and that he had no
possession of it. However, the letter ordering Carl to produce the laptop specifically stated
that if he had a problem retrieving the laptop from storage to notify MDPS, and it would
assist Carl in obtaining it.
¶19. Oliver also obtained the justice-court charges and supporting materials (copies of the
texts and posts) and documents related to Carl’s arrest and conviction, along with the text
messages that Carl sent Kendyl following his arrest on those charges. Oliver prepared and
submitted a report of his investigation to his superiors.
¶20. On January 11, 2018, MBI sent Carl a “Notice Letter” with an attached “Narrative
Statement of Charges,” citing him for violating his duties as an employee. The letter notified
him of the date of a hearing at which the validity of the charges against him would be
determined. The “Narrative Statement of Charges” outlined four different Group III offenses
that MBI contended that Carl had violated. These offenses included:
1. Group III, #12. Unauthorized use or misuse of State property or records.
2. Group III, #13. An act or acts of conduct, including, but not limited to, the arrest or conviction for a felony or misdemeanor, occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or other State employees.
3. Group III, #14. An act or acts of conduct occurring on or off the job which are plainly related to job performance and are of such nature that
7 to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or other State employees.
4. Group III, #19. Willful violation of [Mississippi State Personnel Board (MSPB)] policies and procedures, including, but not limited to: creating or participating in discrimination in the workplace or a hostile work environment; refusing to cooperate and/or giving a false statement in an investigation of possible violation of MSPB policies and procedures.
The notice included a “Facts” section, which read:
In May of 2017, [Master Sergeant (MSGT)] Smith was charged and arrested for cyberstalking and telephone harassment by the Attala County Sheriffs Department. An internal Affairs investigation revealed that MSGT Smith sent some of these harassing messages from his State issued cell phone and possibly from his State issued laptop. In October, 2017, subsequent to his May, 2017 arrest, an arrest warrant was issued MSGT Smith for additional telephone harassment charges. MSGT Smith was served and arrested in early January, 2018 for these additional charges. The aforementioned criminal charges are pending against MSGT Smith for his continuing harassing behavior.
As part of MDPS’ investigation, on January 3, 2018, MSGT Smith was instructed to turn in his cellphone and laptop to his supervisor or Internal Affairs within five (5) days in effort to cooperate with their investigation or additional charges would be brought.
MSGT Smith failed to cooperate and has not turned in his laptop to this date. Based upon the above it is very evident MSGT Smith’s behavior constituted violations of MSPB Group #12, #13, #14, and #19 Offenses as referenced in the Narrative Statement of Charges.
¶21. Carl’s MHSP/MDPS hearing convened on February 21, 2018. There is no transcript
of this proceeding in the record, but after the hearing, the director of the MHSP entered a
“Special Order” terminating Carl. The order noted that Carl had been served with the
“Narrative Statement of Charge” and advised of his right to a disciplinary hearing, which
Carl elected to have. The order then stated:
8 At the conclusion of the hearing after all parties presented their case and witnesses, the Hearing Officer determined a founded basis for violation of MSPB Policy Group III #12, #13, and #14 offenses. After reviewing the facts and documentation as presented above I have determined that there is good cause for the following disciplinary decision, to wit:
• Your employment is terminated effective immediately.
The order included a notice to Carl of his right to appeal the termination decision to the
MEAB.
¶22. Carl filed his appeal to the MEAB on March 9, 2018. In it he requested full
reinstatement of his employment to the position he held at the time of the termination. On
August 7, 2018, the MEAB set the matter for hearing on October 24, 2018. Following this
notice, the MDPS submitted a witness list identifying those who would testify at the hearing.
These witnesses included Oliver, Captain Carl P. Green, Lieutenant Roger E. Moore, and
Master Sergeant Matthew P. Hale. At Carl’s request, the MEAB continued the hearing and
reset it for March 29, 2019.
¶23. Meanwhile, Kendyl tried to drop the May 2017 justice-court charges that she filed
against Carl. After Carl was found guilty of these charges in the Attala County Justice Court,
he appealed his conviction to the Attala County Circuit Court. On March 14, 2019, the
circuit court met with the parties and questioned Kendyl, who wanted the charges dismissed.
After determining that Kendyl’s decision was knowingly and intelligently made and that no
threats of physical violence had been made toward her, the circuit court dismissed the
charges against Carl. Thereafter, a formal order of dismissal was entered on April 12, 2019.
¶24. At the March 29, 2019 MEAB hearing, Oliver, Carl, and Kendyl testified to the facts
9 set out above, including the circuit court’s dismissal of the charges against Carl.
Additionally, Oliver testified that employees did occasionally use their State-issued phones
for personal calls but “not to break the law.” He further testified:
Q. All right. Let’s go to Group 3, number 14, where it says: “An act or act of conduct occurring on or off the job which are plainly related to job performance and are of such a nature that to continue, the employee in the assigned position would constitute negligence in regard to the Agency’s duties to the public or other state employees.” Did you conclude whether your investigation confirmed or denied that charge?
A. Confirm.
Q. And how was it confirmed?
A. Well, just by the nature of the text messages, the threats to Mr. Myrick and their family, the threat to Crystal Goforth.
Q. What is the difference between the threats that were made to Crystal Goforth versus the threats or messages that were sent to Kendyl Smith?
A. Kendyl was his wife. They were going through -- like I said, it appears that they were going through a rough patch in their relationship. And Crystal Goforth, she was just a citizen, and he used his State cell phone to threaten a citizen by telling her that he was a criminal investigator, and he wanted to make sure that she should pay for helping Kendyl conduct her whoring around.
Exhibits entered included the “Narrative Statement of Charges,” the special order terminating
Carl’s employment, the justice-court arrest warrant with Kendyl’s affidavit, Oliver’s
statement, messages sent from the State-issued phone, messages sent from other sources, the
email chain from Carl to Kendyl’s family, additional messages sent by Carl, the circuit court
order dismissing the harassment charges against Carl, and the directive requesting Carl to
surrender his State-issued cell phone and laptop. After the hearing, counsel for Carl
10 submitted a hearing memorandum to the MEAB on April 29, 2019.
¶25. The MEAB hearing officer issued an order on May 20, 2019. It pointed out that Carl
had been represented by counsel at the hearing before the MEAB and identified the three
Group III offenses used as the basis for Carl’s termination. The hearing officer recognized
that the genesis of events leading to Carl’s termination were arguments he had with his wife
via text and messages on social media such as Facebook. These formed the basis of the
charges of telephone harassment in justice court for which Carl was convicted. The hearing
officer said that it was “well settled law under the Mississippi State Personnel Board’s Policy
and Procedure Manual that state employees can be terminated for being charged, arrested or
convicted of misdemeanor or felony charges.” Although Carl was ultimately successful in
getting the underlying charges dismissed in his appeal to circuit court, the hearing officer said
the dismissal of the charges did not in any way affect the MDPS’s decision to terminate Carl
for the very serious improper Group III offenses: “The fact that he was charged with the
aforementioned crimes is enough to terminate [Carl].” The hearing officer further found:
[T]he fact remains that [Carl] did indeed engage in conduct during the course of his relationship with Kendyl Smith that led to his being charged with a number of very serious Group III offenses. No evidence was really presented at the hearing to refute the charges against Smith concerning the things he did while he was employed with DPS.
The hearing officer affirmed the MHSP’s decision and stated that Carl did indeed engage in
conduct that led to his being charged with a number of very serious Group III offenses.
¶26. Carl appealed the MEAB order to the Hinds County Circuit Court on June 14, 2019.
After briefing and argument, on December 11, 2020, the circuit court entered an order
11 affirming the decision of the MEAB, finding that substantial evidence “did exist” and was
“presented to support the decision of the [M]EAB.” Carl appealed from the circuit court
decision on January 4, 2021.
¶27. On appeal, Carl argues the following issues:5
1. Whether his termination violated Employee Appeals Board Rule 9.3 and Carl’s procedural and substantive due-process rights;6
2. Whether interpersonal, unpublished communications between him and Kendyl can support cause for termination; and
3. Whether uncorroborated hearsay can support his termination.
Standard of Review
¶28. The scope of judicial review for administrative agency decisions is limited. The court
reviewing an agency decision must affirm if “the decision was (1) supported by substantial
evidence; (2) not arbitrary or capricious; (3) within the scope or power of the agency; and (4)
not a violation of the aggrieved party’s constitutional or statutory rights.” Miss. Dep’t of Pub.
Safety v. Smith, 243 So. 3d 172, 174 (¶9) (Miss. 2018) (quoting Ray v. Miss. Dep’t of Pub.
Safety, 172 So. 3d 182, 187 (¶15) (Miss. 2015)). The reviewing court may not substitute its
judgment for that of the agency or reweigh the facts of the case. Alston v. Miss. Dep’t of
Empt. Sec., 247 So. 3d 303, 308 (¶18) (Miss. Ct. App. 2017). “A rebuttable presumption
5 In the “Statement of Issues” portion of his brief, Carl lists eight issues, but he only argues three. Because Carl did not present any argument or authority for the other five, we will not address them. “Generally, a party’s failure to cite any authority in support of an argument precludes this Court from addressing that argument on appeal.” Hale v. State, 191 So. 3d 719, 724 n.1 (Miss. 2016). 6 Carl clarifies in his argument that the rule he claims was violated is a rule in the Mississippi State Personnel Policy and Procedures manual.
12 exists in favor of the action of an administrative agency, and the burden of proof is on the
party challenging an agency’s action.” Pub. Emps.’ Ret. Sys. v. Marquez, 774 So. 2d 421,
425 (¶11) (Miss. 2000). This Court applies the same standard of review as the circuit court.
Id. at 429 (¶32).
Discussion
I. Whether Carl’s termination violated Mississippi State Personnel Board Rule 9.3 and Carl’s substantive and procedural due-process rights.
¶29. Carl contends that his substantive and procedural due-process rights were violated
because he had no notice of the reasons the hearing officer ultimately relied upon for his
termination. Carl also contends that his rights under MSPB Rule 9.3 were violated. MDPS
counters that Carl was provided the necessary notice and due process under the law and rules.
A. Constitutional Substantive and Procedural Due Process
¶30. “An essential principle of due process is that a deprivation of life, liberty, or property
be preceded by notice and opportunity for hearing appropriate to the nature of the case.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). If a public employee has
a property right to continued employment, the State cannot deprive him or her of this
property without due process. Id. at 538. Thus, the Court is tasked with determining (1)
“whether the claimant possesses a constitutionally protected ‘life, liberty or property
interest,’” and if the claimant has such interest, (2) “‘what process is required’ before he may
be deprived of that interest.” Fisher v. Jackson Cnty. Sheriff’s Dep’t, 328 So. 3d 704, 714
(¶27) (Miss. Ct. App. 2021) (quoting Burleson v. Hancock Cnty. Sheriff’s Dep’t Civil Serv.
13 Comm’n, 872 So. 2d 43, 49 (¶16) (Miss. Ct. App. 2003)). In Ray v. Mississippi Department
of Public Safety, which dealt with the termination of a MSHP employee, the Mississippi
Supreme Court held that “agency actions must provide minimum procedural due process,
which requires (1) notice and (2) an opportunity to be heard.” Ray, 172 So. 3d at 190 (¶31).
¶31. “Notice is effective if the employee receives an oral or written explanation of the
charges against [him or] her.” Harris v. Miss.Valley State Univ., 873 So. 2d 970, 985 (¶40)
(Miss. 2004). The opportunity to be heard is satisfied if the employee is given a pre-
termination and post-termination hearing because these provide sufficient opportunities to
be heard before and after the property interest at stake is taken away. Ray, 172 So. 3d at 191
(¶32). In summary, when an employee is afforded adequate notice and an opportunity to be
heard, this is “sufficient to satisfy his procedural due process rights.” Id. at (¶33).
¶32. Substantive due process guarantees that an individual’s liberty is not infringed upon
by “certain government actions regardless of the fairness of procedures used to implement
them.” Harris, 873 So. 2d at 984 (¶36) (quoting Hall v. Bd. of Trustees of State Insts. of
Higher Learning, 712 So. 2d 312, 318 (¶24) (Miss. 1998)). A plaintiff claiming that his
substantive due-process rights have been violated must be able to show that the deprivation
of their “property [or liberty] interest was arbitrary or not reasonably related to a legitimate
governmental interest” in order to recover. Id. at (¶37) (quoting Hall, 712 So. 2d at 319
(¶26)). Essentially, in making the decision to deprive an individual of his protected property
interest, public officials must “exercise judgment in a nonarbitrary manner.” Id. at 985 (¶37)
(citing Bluitt v. Houston Indep. Sch. Dist., 236 F. Supp. 2d 703, 731 (S.D. Tex. 2002)).
14 B. Due-process Rights under MSPB Rule 9.3
¶33. The due-process afforded to state employees under MSPB Rule 9.3 is similar to the
due-process rights under the constitution. An employee who is dismissed or adversely
affected must be provided written notice and a fundamentally fair hearing in accordance with
the “rules and regulations of the State Personnel Board complying with due process of law.”
Miss. Code Ann. § 25-9-127(1) (Rev. 2018). The MSPB’s Policy and Procedures manual
requires the pre-hearing and post-hearing written notices to include the reason(s) for the
proposed and final disciplinary action. Miss. State Pers. Bd. Pol’y & Proc. Manual, R. 9.3A
(2019). The manual also requires that these notices “be specific by setting forth the
particular group offense(s) violated and the charge(s) or ground(s) upon which the
disciplinary action is predicated.” Id. It additionally mandates that the employee be given
an opportunity to respond to these notices and that notice must be “presented to the employee
at least seven (7) working days prior to the conference.” Id. at R. 9.3. Finally, the reason(s)
listed in the notices should be the only one(s) addressed “throughout the entire appeals
process.” Id. at R. 9.3A.
C. Carl’s Alleged Due-process Violations
¶34. Applying these rules and precedents, we find that Carl’s due-process rights were not
violated. Carl was personally given a notice letter on January 11, 2018, by Lieutenant Roger
Moore of the MBI. The notice letter formally notified Carl of the personnel policy violations
the agency contended he had committed. The “Narrative Statement of Charges” identified
the particular group offense violated and a factual statement of the conduct that supported
15 the alleged violations. Carl was informed in the notice letter that a disciplinary hearing had
been scheduled for February 6, 2018, to determine the validity of the charges filed against
him. This written notice was presented to Carl “at least seven (7) working days prior” to the
disciplinary hearing and thereby gave Carl adequate time to respond. Although there is no
transcript of the pre-termination hearing on the record, there are several references in the
MEAB hearing transcript showing that Carl was represented by counsel at the MHSP hearing
and that he was given the opportunity to testify and present witnesses. Carl was given a
second opportunity to prove his case before the MEAB, where again he was represented by
counsel and given an opportunity to be heard and present witnesses. Thus, Carl was afforded
adequate procedural due process of law.
¶35. Carl’s only due-process-violation argument concerns the substance of the notice he
was given. He claims that it contained only two underlying facts to support the offenses
charged, namely, that he had criminal charges pending for alleged telephone harassment and
that he failed to turn in his cell phone or laptop. However, the “Facts” portion of the
“Narrative Statement of Charges” said that the offending conduct was not that Carl had
criminal charges pending, but that he had been arrested and charged with cyberstalking and
telephone harassment, which is a Group III #13 offense. The “Facts” also said that “an
Internal Affairs investigation revealed that MSGT Smith sent some of these harassing
messages from his state issued cell phone and possibly from his state issued laptop.” This
fact supported the Group III #12 offense of unauthorized use or misuse of State property or
records. So Carl was also given notice of a charge of misuse of his State-issued cell phone.
16 While the “Narrative Statement of Charges” did not directly link each of the Group offenses
set out with the facts specifically, or particularly, the factual statement nevertheless provided
a factual basis for each offense listed.
¶36. The MEAB order affirming Carl’s termination contained a summary of the facts that
led to Carl’s termination and noted that Carl was unable to present any evidence to refute the
charges against him set forth in the “Narrative Statement of Charges.” The MEAB heard
testimony and was presented documents to review. It is the MEAB decision that we examine
to determine whether it was supported by substantial evidence. Bynum v. Miss. Dep’t of
Educ., 906 So. 2d 81, 91 (¶17) (Miss. Ct. App. 2004). “Because it is the decision of the EAB
that is under appellate review, if that decision is supported by substantial evidence, we may
not interfere even if, viewed another way, the evidence would have provided substantial
support for the opposite outcome.” Id. A review of the MEAB hearing transcript and
exhibits substantiates the MEAB’s findings. Oliver’s investigation revealed proof that Carl
used his State-issued phone to make several of the harassing text messages, which were
entered into evidence. These included Carl’s threats to a third party, Goforth, using his
position as an investigator. The text messages indisputably proved this, and Carl did not
deny any of his behavior. In addition, documents showed Carl had been arrested for making
these harassing calls. Carl did not dispute this, although he pointed out that on appeal, the
charges were dismissed.
¶37. Carl cites Bynum, supra, to support his due-process notice argument, but Bynum is
factually distinguishable in many respects and is not applicable to this case. In Bynum, this
17 Court held that Bynum was not afforded proper notice of one of the grounds for her
termination because she first received notice of the challenged ground in her termination
letter. Id. at 105 (¶85). Thus, she had no opportunity to raise a defense prior to her
termination. Id. Here Carl was given notice of all the reasons relied on for his termination
before his pre-termination hearing, and both that hearing officer and the MEAB hearing
officer found merit to most of them.
¶38. Carl also argues that the facts about his arrest, which supports the Group III #13 and
#14 offenses, have been rendered moot because the charges against him in justice court were
later dismissed by the circuit court. However, the Group III #13 offense is not limited to
convictions for acts or conduct constituting a felony or misdemeanor. According to MDPS
policies, discipline for Group III offenses can be based on merely being arrested for such
crimes. Carl did not argue that termination for a single arrest violated his due-process rights;
he only argued that the ultimate dismissal of the charges absolved him. Moreover, Carl was
terminated for more than just his arrest. He misused his State-issued cell phone to threaten
his wife and others, which is a significant violation of MDPS policy.
¶39. Carl also argues that because the hearing officer dismissed the MDPS Group III #19
offense, failing to cooperate in an investigation when he did not produce his laptop, he
should not have been terminated. But this argument is irrelevant because our examination
focuses on whether the record substantially supports the reasons that the MEAB did find
justified his termination, not those that were dismissed.
¶40. In light of the preceding, we find that Carl’s procedural due-process rights of notice
18 and an opportunity to be heard were adequately protected. Moreover, as discussed below,
Carl’s termination for just cause was supported by substantial evidence and thus was not
arbitrary. Consequently, there was no violation of Carl’s substantive due-process rights.
II. Whether interpersonal, unpublished communications between Carl and Kendyl can support cause for termination.
¶41. Carl next argues that there was no good cause for his termination, claiming that
“interpersonal, unpublished communications” between him and his wife could not, and did
not, support his termination. MDPS responds that there was ample evidence, including these
communications and other conduct that constituted good cause for Carl’s termination and
that Carl failed to meet his burden of rebutting the evidence presented against him.
¶42. Any department, agency, or institution that dismisses a state employee is required to
show that the dismissal was a result of inefficiency on the employee’s part or was based on
other good cause. Miss. Code Ann. § 25-9-127(1). Good-cause determination is guided by
the particular facts and circumstances of each case and is found to exist upon a finding of
substantial evidence. Ray, 172 So. 3d at 187 (¶¶15-16). Our role is to determine whether
there was “substantial (that is, more than a scintilla of) evidence” for the MEAB hearing
officer to conclude that there was good cause for Carl’s termination. Id. at (¶16). Substantial
evidence is evidence that “affords a substantial basis of fact from which the fact in issue can
be reasonably inferred.” Id. (quoting State Oil & Gas Bd. v. Miss. Mineral & Royalty
Owners Ass’n, 258 So. 2d 767, 769 (Miss. 1971)).
¶43. This Court has upheld termination for good cause in numerous cases after reviewing
the record and finding the termination substantially supported by the evidence. See Ray,
19 supra (holding good cause existed for the termination of a highway patrol employee for
falsifying or writing invalid tickets to increase his ticket activity); Miss. Bureau of Narcotics
v. Stacy, 817 So. 2d 523, 528 (¶¶16, 18) (Miss. 2002) (holding that there was substantial
evidence to support the good-cause termination of an employee after an altercation with his
in-laws that resulted in a conviction for simple assault); Wilburn v. Miss. Highway Safety
Patrol, 795 So. 2d 575, 578 (¶15) (Miss. Ct. App. 2001) (affirming the termination of a
highway patrol employee for falsifying records and writing additional false citations for
drivers that resulted in unpaid fines when he neglected to seek dismissal of these fake
citations). In other cases, after a similar review the appellate court has reversed an MEAB
finding if not supported by the record. See Richards v. Miss. Dep’t of Pub. Safety, 318 So.
3d 1150, 1153 (¶2) (Miss. Ct. App. 2020) (reversing the MEAB’s finding that there was no
substantial evidence to support a highway patrol employee’s termination for allegedly
reporting to work while under the influence of controlled substances).
¶44. Here, Carl argues that unpublished communications between him and his wife cannot
constitute cause for termination. But he cites no authority for the exclusion of private
interspousal communications as grounds for termination, especially when it is repeated and
done with the use of a State-issued phone. Rather, Carl argues that the MDPS had no policy
against the use of foul language outside the work place. As support, he cites an
unemployment-benefits case where this Court held that the defendant’s use of foul language
against another worker did not amount to misconduct because his conduct was an “isolated
incident of poor judgment.” SkyHawke Techs. LLC v. Miss. Dep’t of Empl. Sec., 110 So. 3d
20 327, 331 (¶14) (Miss. Ct. App. 2012). However, the facts in SkyHawke are clearly
distinguishable from the facts of this case. In SkyHawke, the defendant used his personal
phone to send a coworker “vulgar text messages” in retaliation after a coworker “called him
an obscene name.” Id. at 329 (¶2). In holding that there was insufficient proof of
misconduct, the Court noted the defendant’s testimony that he was “unaware of any policy
against the use of foul language,” that this was a single isolated incident, and that the rule
was not “fairly and consistently enforced.” Id. at 331 (¶14). In this case, Carl sent multiple
harassing text messages to his wife and others, often using his State-issued phone, in direct
violation of MDPS policy. It was not an isolated incident but continued for months,
upsetting not only his wife but his family and friends. Clearly, SkyHawke is inapplicable.
¶45. Moreover, phone calls and texts formed the basis for one of the reasons for Carl’s
termination—his arrest for misdemeanor telephonic harassment. For the undisputed fact of
his arrest, and the undisputed proof of Carl’s misuse of his State-issued cell phone in making
the calls and sending the texts, the MDPS terminated him. The later dismissal of the
telephone harassment charges in no way erased the fact that Carl had been arrested for these
charges and that he had misused his State-issued cell phone.
¶46. After a review of the record, we find that there was substantial evidence to support
the MEAB’s finding that there was good cause for Carl’s termination. Hence, the MEAB’s
decision to affirm MDPS’s action was not arbitrary and capricious.
III. Whether uncorroborated hearsay can support Carl’s termination.
¶47. Carl argues that the record consists of uncorroborated hearsay and refers to Oliver’s
21 testimony about conversations with Kendyl in which she said she was afraid of Carl. The
hearing officer did not include this testimony or Kendyl’s alleged fear of Carl as a basis for
Carl’s termination. To the contrary, the record contains the numerous texts and emails that
Carl admitted he sent. These constitute nonhearsay evidence that supports the MEAB’s
findings. Moreover, Carl made no objection during the MEAB hearing to the admission of
Oliver’s testimony concerning Kendyl’s communications to him. Consequently, Carl waived
his right to challenge it now on appeal. See Carr v. State, 873 So. 2d 991, 1004 (¶35) (Miss.
2004) (stating that counsel must object to any evidence in order to preserve his challenge on
appeal). Therefore, Carl’s argument concerning the MEAB’s alleged reliance on
uncorroborated hearsay to affirm his termination is without merit.
Conclusion
¶48. Because Carl was provided notice of the charges against him and an opportunity to
be heard on those charges, we find no merit to Carl’s claim of violations of his procedural
due process. Nor was there any violation of Carl’s substantive due-process rights or rights
under MSPB Rule 9.3 because the MEAB’s decision of just cause for the termination was
supported by substantial evidence and was not arbitrary. Carl’s claims that he was terminated
because of communications with his wife and that the MEAB decision was based on
uncorroborated hearsay are also without merit. Therefore, we affirm the circuit court’s
decision.
¶49. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ.,
22 CONCUR.