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IN THE COURT OF APPEALS 06/18/96 OF THE STATE OF MISSISSIPPI
NO. 94-CC-00449 COA JAMES T. STUART APPELLANT v. THE CIVIL SERVICE COMMISSION OF THE CITY OF HATTIESBURG, MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. RICHARD WAYNE MCKENZIE COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: WILLIAM L. DUCKER ATTORNEY FOR APPELLEE: JERRY A. EVANS NATURE OF THE CASE: ADMINISTRATIVE LAW - EMPLOYEE'S APPEAL FROM CIVIL SERVICE COMMISSION DECISION WHICH AFFIRMED EMPLOYER'S DEMOTION OF EMPLOYEE TRIAL COURT DISPOSITION: AFFIRMED CIVIL SERVICE COMMISSION'S DECISION

BEFORE FRAISER, C.J., COLEMAN, AND SOUTHWICK, JJ. COLEMAN, J., FOR THE COURT: James T. Stuart (Stuart), a veteran of nineteen years and eight months service with the Hattiesburg

Fire Department (Department), was serving a one-year probation period pursuant to his promotion from the rank of lieutenant to the rank of district captain in the Department, when he was demoted to the rank of lieutenant in the Department for his conduct while he was attending the National Fire Academy (Academy) in Emmitsburg, Maryland, on July 28, 1992. The Hattiesburg Civil Service Commission (Commission) affirmed Stuart's demotion in rank; and Stuart then appealed to the Forrest County Circuit Court, which affirmed the Commission's decision. Stuart then appealed from the Forrest County Circuit Court to Mississippi's appellate courts. We affirm the circuit court's decision. I. Facts Stuart was enrolled in the major command and control course which was being taught at the Academy in July, 1992. The Academy is under the control of the United States Fire Administration, which in turn is a part of the Federal Emergency Management Agency. On the afternoon of July 28, 1992, while he was participating in a classroom discussion on estimating the number of personnel required for aggressive control of an interior fire, Stuart commented that he "used to be able to do estimates easier, but now I have to use no good niggers and women to fight a fire." Twenty-six men, all of the Caucasian race, constituted the class to which Stuart made the foregoing comment. Three employees of the Academy were in the classroom when Stuart misspoke in this fashion. They were Edward McDonald, the class instructor; Walter B. Satterfield, Education Specialist for the Academy, who was seated at a table in the rear of the classroom with Robert Murgallis, Adjunct Instructor for the Academy. All three of these employees of the Academy submitted written memoranda to higher officials of the Academy in which they recounted their respective versions of what Stuart said. As a result of their reports, Albert G. Kirchner, Jr., the Academy Superintendent sent Stuart a Memorandum dated July 30, 1992 in which he advised Stuart that he had decided to: 1. Terminate your enrollment in the Command and Control of Fire Department Major Operations course upon receipt of this memorandum. 2. Terminate your campus lodging and visitation privileges at 6 p.m. today; 3. Bar admission to National Fire Academy resident courses for three years, and; 4. Deny payment of your stipend.

Superintendent Kirchner then advised Stuart: This decision may be appealed in writing within five working days to the Administrator of the United States Fire Administration. His decision is final. Your sponsoring agency will be notified by letter of this action.

Kirchner concluded his memorandum to Stuart by asking him to contact Student Services "as soon as

possible to arrange transportation to the airport, if needed." After Stuart returned to Hattiesburg, he met with that city's Fire Chief, George L. Herrington, and Assistant Fire Chief James Cody on August 3, 1992. The chief and assistant chief advised Stuart that they would investigate Stuart's dismissal from the Academy, and they afforded Stuart an opportunity to present his version of the events at the Academy on July 28, 1992. Fifteen days later, on August 18, 1992, Fire Chief Herrington and Assistant Fire Chief Cody again met with Stuart for a predisciplinary action conference; and on August 21, 1992, Fire Chief Herrington wrote Stuart to give him official notice that he had been demoted from the probationary position of district captain to lieutenant in the Hattiesburg Fire Department for violation of that city's Civil Service Rule No. 16. Chief Herrington wrote in his letter to Stuart: I hereby make the following written accusations against you: Violation of Civil Service Rule #16 (F) Wantonly offensive conduct or language toward the public or fellow officers or employees. (L) Conduct unbecoming to an officer or employee of the City either while on or off duty. On Tuesday afternoon of July 28, 1992, while attending the Command and Control of Fire Department Major Operations Course at the National Fire Academy, you made offensive racial and gender remarks before the personnel present in the class.

On the same day, the Mayor of Hattiesburg, J. Ed. Morgan, wrote Stuart to confirm his demotion in rank which Fire Chief Herrington had imposed. On September 30, 1992, the Commission for the City of Hattiesburg entered an order which affirmed the City's demotion of Stuart from district captain to lieutenant pursuant to a hearing which it had conducted the day before. The Commission had stated in the record at the close of the hearing on the previous day: This Commission unanimously upholds the decision of the mayor and fire chief concerning the demotion of James T. Stuart and express that this disciplinary action was not made for political or religious reasons and was made in good faith for cause.

Stuart next appealed to the Circuit Court of Forrest County, and that court affirmed the Civil Service Commission's decision to sustain the City's demotion of Stuart. Stuart has appealed from the Forrest County Circuit Court to the Mississippi Supreme Court, which assigned the appeal to this Court. II. Discussion and Resolution of Stuart's Issues Stuart's brief contains the following three issues on which he pins his hopes for our reversing the

circuit court's affirmance of the Civil Service Commission's decision to sustain the City of Hattiesburg's demotion of Stuart. They are: Proposition I: That the actions of the Mayor and Fire Chief in demoting appellant and as upheld by the Civil Service Commission of the City of Hattiesburg were arbitrary and capricious and politically motivated.

Proposition II:

That appellant's constitutional right of freedom of free speech has been violated. Proposition III:

That appellant's constitutional right to due process and equal protection under the law were violated by the Superintendent of the National Fire Academy and again by the City of Hattiesburg.

A. Proposition I. We first consider Stuart's Proposition I. Stuart is covered by the civil service system which Sections 21-31-1 et seq. of the Mississippi Code of 1972 have created. Section 21-31-21 provides that "[t]he tenure of everyone holding office, place, position or employment under the provisions of

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