Preview:

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CC-00437 COA MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY v. CECILIA KAZERY APPELLANT APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED: 3/11/96 HON. L. BRELAND HILBURN, JR. HINDS COUNTY CIRCUIT COURT JAMES E. YOUNGER JR. MICHAEL BOLAND CIVIL - STATE BOARDS AND AGENCIES REVERSED EAB ORDER SUSPENDING KAZERY WITHOUT PAY FOR 5 DAYS REVERSED - 12/16/97

2/4/98

BEFORE THOMAS, P.J., HERRING, AND HINKEBEIN, JJ. HINKEBEIN, J., FOR THE COURT: During October of 1992, Cecilia Kazery, a trooper with the Mississippi Highway Safety Patrol, was suspended for five days without pay for her confessed on-duty sexual liaisons with a fellow trooper holding a position supervisory to her own. Following the Department of Public Safety (DPS) Personnel Review Board's finding that the charges against her were founded, Kazery appealed the action to the Mississippi Employee Appeals Board (EAB), as provided by Section 25-9-131 of the Mississippi Code (Rev. 1991). Thereafter, EAB Chief Hearing Officer William H. Smith, III opined that Kazery had failed to meet her burden to show that the suspension was extreme or without merit. From this opinion and order, Kazery requested a review of her case by the full EAB. The full Board granted Kazery's request for review but found that the order entered by Officer Smith was proper. Subsequently, Kazery petitioned the Circuit Court of Hinds County for judicial review of the order of the EAB.

Initially, the circuit court remanded for "specific" factual findings illustrating the basis upon which Kazery was disciplined. The EAB responded by characterizing Kazery's conduct as a "clear violation, " finding "her admitted actions to be not only a breach of conduct, but also a possible risk to the persons and property she is duty bound to serve and protect." Finally, on March 11, 1996, the Honorable L. Breland Hilburn, Jr. reversed, finding an insufficient "factual basis within the record" to support the disciplinary action taken against Kazery. Feeling aggrieved by this decision, DPS raises the following issue on appeal: I. WHETHER THE EAB'S DECISION TO UPHOLD THE FIVE DAY SUSPENSION OF KAZERY IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

Finding merit in DPS's assertion, we reverse. FACTS During September 1992, Kazery sought assistance from her immediate supervisor with what she viewed to be a potentially dangerous situation. As she explained, she had been engaged in an intimate relationship with a fellow trooper, (then) Captain Jimmy Dees, for some two and one-half years. While the pairing had initially been consensual, matters had deteriorated in recent months after Kazery attempted to end the relationship, citing Dees refusal to leave his wife. Despite her protests, Dees continued to visit and telephone in an effort to win back her affection. With time, his advances became more frightening for Kazery. His uninvited appearances at her home were marked by physical violence and his intrusive calls contained threats to take his own life as well as hers. Moreover, he frequently warned Kazery against endangering her career by angering a wellconnected, ranking officer in a supervisory position such as himself. Upon hearing her concerns, Kazery's supervisor sympathetically assured her that he would assist by bringing Dees' behavior to the attention of the department's Internal Affairs Division. However, when the two subsequently discussed the matter with an Internal Affairs officer, Kazery divulged additional details of the formerly consensual liaisons that brought into question her own professional judgment. According to the officer's later testimony before the EAB, "She said, 'Well, what will happen to me? I know I've done wrong. I've been with him on duty.'" As Kazery herself subsequently confirmed before the board, to avoid alerting Dees' wife, the two would frequently meet in secret along the less traveled portions of Jackson-area highways and either return together to her home or have sexual relations in one of their official vehicles. Most disturbingly, the activity took place while both were on duty, with the radio dispatcher unaware of their whereabouts in the event of an emergency. Despite her supervisor's professed satisfaction with Kazery's professional performance, DPS accused her of violating its personnel regulations. Specifically, Kazery was charged under General Order 23/01,III,B,3,k which prohibits "acts of conduct 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 to other state employees." Pursuant to that allegation, Kazery was disciplined as previously described.

I. WHETHER THE EAB'S DECISION TO UPHOLD THE FIVE DAY SUSPENSION OF KAZERY IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

DPS first alleges that a review of the record reveals error in the circuit court's expressed determination. Specifically, DPS contends that, contrary to the circuit court's decision, the EAB's final order clearly sets forth the factual basis for its finding Kazery's conduct to be in violation of the rule. The department then continues, arguing that had the desired "specific finding" not been included within the EAB's opinion, the circuit court employed an incorrect standard of review in arriving at its decision to reverse. In response, Kazery claims that because neither the enumerated provision nor any other rule applies directly to the facts of the case, she was not afforded constitutionally required meaningful notice. We agree with DPS. With regard to questions of fact, there is a rebuttable presumption in favor of an administrative agency's finding. Board of Law Enforcement Officers Standards and Training v. Butler, 672 So. 2d 1196, 1199 (Miss. 1996) (citations omitted). Appellate review is not an appropriate forum for determining whether the action of the agency is best fitted to the situation at hand. Id. (citing Miss. Comm'n on Entl. Quality v. Chicksaw County Bd. of Supervisors, 621 So. 2d 1211, 1215 (Miss. 1993); California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So. 2d 120 (1946). Therefore, the decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency's scope or powers, or violated the constitutional or statutory rights of the aggrieved party. Id.; Mississippi Code Annotated

Download Mississippi Department of Public Safety v. Cecilia Kazery.pdf

Mississippi Law