        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-SA-00340-COA

THE MISSISSIPPI DEPARTMENT OF                                             APPELLANT
WILDLIFE, FISHERIES AND PARKS

v.

GAYLON BRADSHAW                                                             APPELLEE

DATE OF JUDGMENT:                         02/18/2015
TRIAL JUDGE:                              HON. EDDIE H. BOWEN
COURT FROM WHICH APPEALED:                SMITH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  WILLIAM DOUGLAS MANN JR.
                                          DOUGLAS DREW MALONE
ATTORNEY FOR APPELLEE:                    L. WESLEY BROADHEAD
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION:                  REVERSED AND REMANDED DECISION
                                          OF THE MISSISSIPPI EMPLOYEE
                                          APPEALS BOARD
DISPOSITION:                              REVERSED AND RENDERED - 06/28/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND WILSON, JJ.

       WILSON, J., FOR THE COURT:

¶1.    The Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) found that

conservation officer Gaylon Bradshaw sent harassing and sexually graphic text messages to

a female only a short time after he had been reprimanded and suspended without pay for

similar misconduct involving another female. Bradshaw eventually admitted to sending the

text messages, and MDWFP terminated him. Bradshaw exercised his right to appeal to the

Mississippi Employee Appeals Board (EAB), and the EAB ultimately upheld his dismissal.

Bradshaw then appealed to circuit court, the circuit court reversed the EAB’s decision, and
MDWFP appealed. For the reasons that follow, we conclude that Bradshaw’s termination

satisfied due process and that the EAB’s decision was supported by substantial evidence and

was neither arbitrary nor capricious. Because the circuit court erred by reversing the EAB’s

decision, we reverse and render the judgment of the circuit court.

                       FACTS AND PROCEDURAL HISTORY

¶2.    In May 2013, MDWFP received a complaint that a woman who had participated in

an MDWFP hunter education course was receiving harassing text messages from one or more

MDWFP employees. Corporal Ben McCurdy admitted that he was one of two MDWFP

employees who had sent the text messages. McCurdy sent the woman flirtatious text

messages after obtaining her phone number from a form that she completed for the hunter

education course. McCurdy told MDWFP investigators that Master Sergeant Gaylon

Bradshaw also sent text messages to the woman. McCurdy had asked Bradshaw to contact

the woman via text message to ask whether she was interested in McCurdy. Bradshaw

admitted that he anonymously sent the woman flirtatious and sexually suggestive text

messages. Some of the texts referred to the erotic novel/movie Fifty Shades of Grey.

Bradshaw also admitted that he sent the woman a picture of his bare torso. The woman did

not appreciate McCurdy’s and Bradshaw’s text messages. She considered them harassment

and filed a complaint with MDWFP.

¶3.    On June 19, 2013, MDWFP provided Bradshaw with a Notice of Pre-Disciplinary

Conference, which advised him:

       At a minimum, your actions constitute a Group Three Number 12 offense of,
       “unauthorized use or misuse of State property or records,” and may also


                                             2
       constitute a Group Three Number 18 offense of, “a breach of agency security
       or confidentiality,” inasmuch as the information contained on the Hunter
       Education materials is to be used for department business purposes only. Your
       actions also constitute a Group Three Number 11 offense of, “threatening or
       coercing employees, supervisors, or business invitees of a State agency or
       office, including stalking.” [emphasis added]. Finally, taken as a whole, your
       actions are also a Group Three Number 14 offense of, “an act or acts 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 could constitute negligence in regard to the agency’s duties
       to the public or to other State employees.”

The notice further advised Bradshaw that, pursuant to the Mississippi State Employee

Handbook, possible disciplinary action for Group Three offenses included a written

reprimand, suspension without pay, demotion, or even dismissal.

¶4.    Bradshaw’s pre-disciplinary conference was held as scheduled on July 8, 2013. On

July 11, 2013, Bradshaw acknowledged receipt of a Notice of Disciplinary Action, in which

MDWFP executive director Sam Polles found that Bradshaw was guilty of a Group Three

Number 14 offense. For the offense, Bradshaw received a written reprimand and a two-week

suspension without pay. Bradshaw did not exercise his right to grieve the disciplinary action.

¶5.    In October 2013, an acquaintance of Bradshaw’s wife filed a complaint with MDWFP

alleging that Bradshaw had sent her a lengthy series of harassing and sexually graphic text

messages beginning in May 2013 and continuing into October 2013. The text messages that

the woman received were anonymous, although the sender stated that he was someone that

she knew. Although the woman repeatedly asked the sender to stop texting her, the sender

repeatedly propositioned her in graphic terms and suggested that they exchange revealing

pictures of each other. One of the text messages also referenced Fifty Shades of Grey. The



                                              3
woman alleged that the sender eventually called her and told her that they had spoken

recently at a particular event and that his initials were “G.B.” The woman said that based on

this information she knew that the sender was Gaylon Bradshaw. In addition to filing a

complaint with MDWFP, she filed an affidavit charging Bradshaw with telephone

harassment, a misdemeanor. See Miss. Code Ann. § 97-29-45 (Rev. 2014). A justice court

case was opened, but the charge was later dropped for unspecified reasons.

¶6.    Upon receiving this new complaint, MDWFP immediately suspended Bradshaw

without pay based on “extraordinary circumstances.” See Mississippi State Employee

Handbook § 7.2. On October 23, 2013, MDWFP served Bradshaw with a Notice of Pre-

Disciplinary Conference, which charged a

       Group Three Number 13 offense of, “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
       a 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.”

Bradshaw was advised that the offense was “of the most serious nature” and could result in

a written reprimand, suspension without pay, demotion, or even dismissal.

¶7.    A pre-disciplinary conference was set for November 6, 2013, but was continued to

November 12, 2013, at Bradshaw’s request. At the conference, Bradshaw was represented

by legal counsel and signed a waiver of his Garrity1 rights. Bradshaw denied texting or

calling the complainant. According to Colonel Steve Adcock, MDWFP chief of law

enforcement, Bradshaw claimed that the complainant “had some issues” with his wife

       1
           Garrity v. New Jersey, 385 U.S. 493 (1967).

                                              4
because his wife knew that the complainant had engaged in an inappropriate relationship

with someone else. Bradshaw told the disciplinary panel that the complainant was probably

going to drop the criminal charge against him soon. According to Adcock, he and other

members of the panel believed that Bradshaw was lying and that he might also be holding

something “over [the complainant’s] head to make her drop the charges.”

¶8.    Subsequent to the pre-disciplinary conference, MDWFP directed Bradshaw to submit

to a polygraph examination. The agency has a policy requiring employees to submit to such

examinations when ordered to do so by the executive director as part of an internal agency

investigation. The policy states that the results of a polygraph test may not be used in

criminal proceedings but may be admissible in administrative and disciplinary proceedings

and related civil appeals. On November 21, 2013, Bradshaw took the polygraph test and

again denied sending any inappropriate text messages to the second complainant. The

polygraph examiner concluded that Bradshaw was not being truthful.2

¶9.    After Bradshaw learned of the results of the polygraph examination, he contacted

Adcock and requested a meeting with him. When they met, Bradshaw admitted to Adcock

that he sent the texts and that the complainant’s allegations were true. According to Adcock,

“[Bradshaw] basically confessed to the whole thing. He [also said] that his attorney . . . had

informed him that he needed to lie at the [pre-disciplinary conference] and that’s why he did

that.” Bradshaw told Adcock “[t]hat he was very sorry” and essentially pled to keep his job.



       2
         When MDWFP attempted to offer the report of the polygraph examiner into
evidence, the hearing officer sustained Bradshaw’s objection; however, the hearing officer
also noted that Adcock’s testimony as to the results of the examination was in evidence.

                                              5
According to Adcock, Bradshaw also confessed to Major Chris Harris.

¶10.   On February 5, 2014, MDWFP terminated Bradshaw. The executive director found:

       [Bradshaw’s] actions constitute[d] a Group Three Number 14 offense of, “an
       act or acts of conduct occurring on or off the job which are plainly related to
       job performance and are of such a nature that to continue [Bradshaw] in [his]
       assigned position could constitute negligence in regard to the agency’s duties
       to the public or other State employees.”

The executive director also found that Bradshaw had lied to his superiors at his initial pre-

disciplinary conference, in violation of MDWFP policy. The executive director emphasized

that Bradshaw’s conduct was “that much more egregious” because it was the second time in

the prior year that he had sent unwanted and sexually suggestive text messages to a female.

Accordingly, MDWFP terminated Bradshaw’s employment.

¶11.   Bradshaw appealed his termination to the EAB and requested reinstatement. A

hearing was held before an EAB hearing officer on April 14, 2014. Adcock and Bradshaw

were the only witnesses at the hearing. Adcock testified that the executive director’s decision

to terminate Bradshaw was consistent with the disciplinary panel’s recommendation. The

panel was especially concerned that Bradshaw’s actions reflected “a pattern” and that he had

resumed sending harassing text messages almost immediately after he had been disciplined

for doing so. Adcock emphasized that as a law enforcement officer, Bradshaw had “sworn

an oath to actually protect people against things like this.” In addition, Bradshaw lied about

his actions to his superiors. Adcock was also concerned that Bradshaw’s behavior could

result in liability for the agency.

¶12.   When Bradshaw testified, he denied that he sent any text messages to the second



                                              6
complainant. Bradshaw admitted that he previously confessed to Adcock, but he claimed

that his confession was a “lie” and only a misguided attempt to keep his job. Bradshaw

admitted that he sent text messages to the first complainant, but he claimed that he had no

knowledge of how McCurdy had obtained her cell phone number.

¶13.   On May 14, 2014, the hearing officer entered an order finding that “Bradshaw did not

receive due process” because he was terminated for an offense and conduct other than the

offense and conduct identified in his pre-disciplinary notice. Specifically, Bradshaw was

charged with a “Group III Number 13 offense” but was terminated for a “Group III Number

14 offense.” As set out above, the definitions of these offenses are identical except that the

definition of a Number 13 offense includes the additional language “including, but not

limited to, the arrest or conviction for a felony or misdemeanor.” MDWFP terminated

Bradshaw based on a Number 14 offense because the justice court charge was dropped after

the agency served Bradshaw with notice of the charges against him. In addition, the hearing

officer concluded that Bradshaw was unfairly disciplined for lying to his superiors because

he did not receive notice of possible discipline on that basis. Because the hearing officer

found that Bradshaw’s termination violated “due process,” he reversed the agency’s decision

and ordered Bradshaw reinstated with back pay.

¶14.   MDWFP requested review of the hearing officer’s decision by the en banc EAB. By

a 2–1 vote, the en banc EAB reversed the hearing officer’s order and upheld the agency’s

decision to terminate Bradshaw. The EAB agreed with the hearing officer that the agency

should not have terminated Bradshaw for being untruthful because he was not given notice



                                              7
that he might be disciplined on that basis. However, the EAB concluded that Bradshaw was

provided with due process and ample notice of possible discipline for sending harassing and

sexually graphic text messages. The EAB reasoned that the conduct for which Bradshaw was

terminated “was the same” as that described in his Notice of Pre-Disciplinary Conference.

The EAB also emphasized that the definition of a Number 13 offense is practically identical

to the definition of a Number 14 offense. Accordingly, the EAB found that the mere “fact

that a different number was used in Bradshaw’s . . . termination letter does not provide

Bradshaw relief and a ground to reverse his termination.”

¶15.   On the merits, the EAB found that Bradshaw failed to show that his termination was

improper. The EAB reasoned that Bradshaw could have been terminated for either a Number

13 offense or a Number 14 offense, as the definition of a Number 13 offense includes but is

not limited to conduct that results in an arrest or conviction. Even though the criminal charge

against him was dropped, Bradshaw still committed “an act or acts of conduct occurring on

or off the job which [were] plainly related to job performance and [were] of such a nature

that to continue [him] in [his] assigned position could constitute negligence in regard to the

agency’s duties to the public or other State employees.” The EAB reasoned that Bradshaw’s

conduct would impair his reputation as a law enforcement officer. The EAB also concluded

that Bradshaw’s conduct constituted a different crime, namely, attempted adultery in

violation of Mississippi Code Annotated section 97-29-1 (Rev. 2014), as both Bradshaw and

the complainant were married. The EAB reasoned that Bradshaw had also “solicited [the

complainant] to . . . violate” the same statute, and “as a sworn law enforcement officer of the



                                              8
State of Mississippi,” Bradshaw had a duty to “enforce the law, not solicit its violation.”

¶16.   Bradshaw appealed the EAB’s decision to the Smith County Circuit Court. In his

notice of appeal, Bradshaw alleged that MDWFP improperly terminated him for committing

a Number 14 offense when he received notice of only a Number 13 offense. He also alleged

that the EAB’s decision was “without justification,” “arbitrary and capricious,” and “against

all evidence.” Bradshaw’s brief in the circuit court focused solely on his claim that he was

denied “due process” because he was terminated for a different offense number than the one

cited in his pre-disciplinary notice. Bradshaw relied exclusively on this Court’s then-

recent—and since-reversed—decision in Ray v. Mississippi Department of Public Safety, 172

So. 3d 199 (Miss. Ct. App. 2014) (Ray I), rev’d , 172 So. 3d 182 (Miss. 2015) (Ray II).3

¶17.   On February 18, 2015, the circuit court entered a final judgment reversing the decision

of the EAB. The circuit court stated that “[w]hile MDWFP argues that Bradshaw did admit

his actions to his supervisors after he took a polygraph test,” there was “no other testimony,

other than Colonel Adcock, to verify his admission.” The court found “nothing in the record

to suggest [that Bradshaw] admitted to sending the text messages.” The circuit court also

rejected the EAB’s conclusion that Bradshaw’s conduct negatively affected his reputation

as a law enforcement officer. The court reasoned that under the EAB’s “rationale, any public

official charged with a crime by another would automatically be unfit to perform their duties



       3
        In Ray I, this Court held that a highway patrolman’s due process rights were violated
because the agency and the EAB relied in part on evidence that he had written twenty or
more invalid traffic tickets, whereas the pre-disciplinary charges against him involved stops
of only four specific motorists. See Ray I, 172 So. 3d at 206-08 (¶¶24-36). The Supreme
Court disagreed and reversed. See Ray II, 172 So. 3d at 187-91 (¶¶17-34).

                                              9
simply because they were charged.” Finally, the circuit court found that the EAB’s reliance

on the statute criminalizing adultery was “irrelevant” and “inappropriate.” For these reasons,

the court concluded that the EAB’s decision “was not based on substantial evidence, violated

Bradshaw’s procedural due process rights, and was arbitrary and capricious.” MDWFP

timely appealed the circuit court’s decision. MDWFP argues that the circuit court’s decision

should be reversed, the EAB’s decision should be affirmed, and Bradshaw’s termination

should be upheld.

                               STANDARD OF REVIEW

¶18.   A state agency’s personnel decisions are entitled to a “presumption of correctness.”

Miss. Dep’t of Corr. v. Smith, 883 So. 2d 124, 126 (¶1) (Miss. Ct. App. 2004). “The statute

and administrative regulations [governing appeals to the EAB] clearly place the burden of

persuasion on the aggrieved employee to demonstrate that the reasons given [for his

termination] are not true.” Miss. Dep’t of Corr. v. McClee, 677 So. 2d 732, 735 (Miss.

1996). “This is not mere semantics. Under our scheme, in a nutshell, ties go to the

[agency/employer].” Id. The EAB is not authorized to reinstate the employee unless the

employee carries his burdens of proof and persuasion “that the reasons stated in the notice

of dismissal are not true or are not sufficient grounds for the action taken.” Bynum v. Miss.

Dep’t of Educ., 906 So. 2d 81, 90 (¶14) (Miss. Ct. App. 2004).

¶19.   If an employee seeks judicial review of an adverse decision of the EAB, “[t]he

reviewing court must affirm the [EAB] decision if the decision was (1) supported by

substantial evidence; (2) not arbitrary or capricious; (3) within the scope or power of the



                                             10
agency; and (4) not a violation of the aggrieved party’s constitutional or statutory rights.”

Ray II, 172 So. 3d at 187 (¶15); accord Miss. Code Ann. § 25-9-132(2) (Rev. 2010). The

Supreme “Court has held that ‘substantial evidence means evidence which . . . affords a

substantial basis of fact from which the fact in issue can be reasonably inferred.’” Ray II,

172 So. 3d at 187 (¶16) (quoting State Oil & Gas Bd. v. Miss. Mineral & Royalty Owners

Ass’n, 258 So. 2d 767, 779 (Miss. 1971)) (brackets omitted). “Substantial evidence exists

so long as there is evidence that a reasonable mind might accept as sufficient to support a

conclusion.” Id. “The reviewing court is not authorized to substitute its judgment for that

of the [EAB] where there is substantial (that is, more than a scintilla of) evidence to support

the finding.” Id. (quoting Miss. Pub. Serv. Comm’n v. Merchants Truck Line Inc., 598 So.

2d 778, 782 (Miss. 1992)) (brackets omitted). “Moreover, ‘there is a rebuttable presumption

in favor of the agency decision and the burden of proof is on the party challenging that

decision.’” Id. (quoting Montalvo v. Miss. State. Bd. of Med. Licensure, 671 So. 2d 53, 56

(Miss. 1996)) (brackets omitted). The reviewing court also must bear in mind that “[t]he

EAB ‘is the trier of fact as well as the judge of the witnesses’ credibility.’” Id. at 188 (¶20)

(quoting Bynum, 906 So. 2d at 90 (¶14)). On appeal from a circuit court’s decision

concerning an agency action, this Court applies the same standard of review as the circuit

court. Pub. Emps’ Ret. Sys. v. Marquez, 774 So. 2d 421, 429 (¶32) (Miss. 2000).

                                         ANALYSIS

¶20.   The basic issues in this appeal are whether the MDWFP’s termination of Bradshaw

satisfied procedural due process and whether the EAB’s decision upholding the termination



                                              11
was either not supported by substantial evidence or was arbitrary and capricious. We address

these issues in turn.

       I.       Whether Bradshaw Was Denied Due Process

¶21.   We first address the question whether Bradshaw was denied due process because he

was terminated for a different offense number than the one identified in his Notice of Pre-

Disciplinary Conference. Pursuant to Mississippi Code Annotated section 25-9-127(1)

(Supp. 2015):

       No employee . . . who is subject to the rules and regulations prescribed by the
       state personnel system may be dismissed . . . except for inefficiency or other
       good cause, and after written notice and hearing within the . . . agency . . . as
       shall be specified in the rules and regulations of the State Personnel Board
       complying with due process of law . . . .

The rules and regulations of the State Personnel Board provide as follows:

       All permanent State Service employees . . . are entitled to procedural due
       process of law prior to any employment action to dismiss or otherwise
       adversely affect their compensation or employment status. The process which
       is due to each State Service employee is written notice of a proposed
       disciplinary action which states with sufficient particularity what charges or
       allegations are being made concerning the employee, the proposed discipline
       which may be taken, and the opportunity for a conference with the appointing
       authority or designated representative allowing the employee to respond and
       present a defense to the allegations prior to final action by the appointing
       authority. The written notice shall be presented to the employee at least seven
       (7) working days prior to the conference. The employee may also respond in
       writing to the allegations contained in the written notice.

State Employee Handbook § 7.3 (emphasis added). The same regulation further states:

       The written notice presented to an employee prior to a conference must list all
       of the reason(s) for the appointing authority’s consideration of the adverse
       action, and the written notice of the appointing authority’s final decision to
       take adverse action must restate all of the reason(s) for the action. The
       reason(s) listed in these notices shall be specific by setting forth the particular


                                               12
       group offense(s) violated and the charge(s) or ground(s) upon which the
       disciplinary action is predicated. The reason(s) listed in these notices will be
       the only reason(s) to be addressed throughout the appeals process.

Id. § 7.3(A) (emphasis added).

¶22.   Bradshaw contends that he was denied due process of law because MDWFP dismissed

him for a Group Three Number 14 offense after giving him notice of potential discipline for

a Group Three Number 13 offense. We disagree, as Bradshaw’s notice provided him with

ample notice of the conduct and the nature of the charge for which he faced discipline.

¶23.   As discussed above, the definition of a Number 14 offense is nearly identical to a

Number 13 offense. In fact, we can discern no substantive difference between the two. All

Group Three offenses are considered “of the most serious nature.” Id. § 7.1. The definitions

of Number 13 offenses and Number 14 offenses both encompass any “act or 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.” Id. The only

difference between them is that the definition of a Number 13 offense includes the following

additional language after the word “conduct”: “including, but not limited to, the arrest or

conviction for a felony or misdemeanor.” Id. Thus, the plain language of the two definitions

encompasses the same conduct. The definition of a Number 13 offense is “not limited to”

arrests or convictions and thus logically includes some conduct that does not result in an

arrest or conviction. Likewise, a Number 14 offense includes any conduct that is “plainly

related to job performance and . . . of such a nature that to continue the employee in the



                                             13
position could constitute negligence in regard to the agency’s duties”—regardless of whether

the conduct results in arrest or conviction. It appears that the latter offense—without the

including-but-not-limited-to language—was added to the Employee Handbook in 2013, but

the reasons why are not clear. In any event, the two offenses are functionally equivalent and

are only worded slightly differently.

¶24.   The Supreme “Court has held that agency actions must provide minimum procedural

due process, which requires (1) notice and (2) an opportunity to be heard.” Ray II, 172 So.

3d at 190-91 (¶31). Given the functional equivalence of the two offenses involved, we agree

with the EAB that Bradshaw was given fair notice of the nature of the disciplinary charges

against him and afforded all process he was due. Moreover, even if the dismissal’s citation

to a different offense number was “error,” the statute authorizing judicial review of

Bradshaw’s claim specifically provides that “[n]o relief shall be granted based upon the

court’s finding of harmless error by the [EAB] in complying with the procedural

requirements of Section[] 25-9-127,” supra. Miss. Code Ann. § 25-9-132(3). Any technical

error in this case was harmless because Bradshaw had clear notice of the conduct and the

nature of the charges for which he was subject to discipline. Therefore, Bradshaw’s claim

that he was denied due process is without merit.

       II.    Whether the EAB’s Decision Was Not Supported by Substantial
              Evidence or Was Arbitrary and Capricious

¶25.   We next address Bradshaw’s contention that the EAB’s decision is not supported by

substantial evidence or was arbitrary and capricious. It was Bradshaw’s burden to persuade

the EAB that the reasons for his dismissal were “not true or . . . not sufficient grounds for the


                                               14
action taken.” Miss. Code Ann. § 25-9-127(1). This required Bradshaw to rebut the

“presumption of correctness” afforded MDWFP’s decision. Smith, 883 So. 2d at 126 (¶1).

The EAB determined that Bradshaw failed to do so. The only questions for this Court are

whether that decision by the EAB was supported by substantial evidence and whether it was

arbitrary or capricious. For the reasons discussed below, we conclude that the EAB’s

decision must be affirmed.

¶26.   As a basis for our decision, we do not rely on the EAB’s conclusion that Bradshaw

was subject to termination for attempting to violate or soliciting a violation of the criminal

prohibition on adultery. “There is, in fact, no general crime of adultery.” Saunders v. Alford,

607 So. 2d 1214, 1219 (Miss. 1992). Except in certain limited situations inapplicable here,

“our state prohibits only unlawful ‘cohabitation’ in ‘adultery or fornication.’” Id. (quoting

Miss Code Ann. § 97-29-1). “[U]nlawful cohabitation . . . requires a showing of more than

a single act of adultery. There must be at least an ‘habitual concubinage or laying together.’”

Id. (quoting Cutrer v. State, 154 Miss. 80, 121 So. 106 (1929); Granberry v. State, 61 Miss.

440 (1884)). The evidence did not establish that Bradshaw was attempting to cohabit with

the second complainant. Nor are we prepared to say that a law enforcement officer’s

unsuccessful attempt at adultery is, without more, grounds for termination.

¶27.   We next address the circuit court’s conclusion that there was insufficient evidence that

Bradshaw sent text messages to the second complainant. As noted above, the circuit court

stated that “[w]hile MDWFP argues that Bradshaw did admit his actions to his supervisors

after he took a polygraph test,” there was “no other testimony, other than Colonel Adcock,



                                              15
to verify his admission.” The circuit court also stated that there was “nothing in the record

to suggest [that Bradshaw] admitted to sending the text messages.” However, before the

EAB hearing officer, Bradshaw acknowledged that he had previously admitted to Adcock

that he sent the text messages—although he claimed the admission was a “lie” that he told

only in an attempt to save his job. “[R]ecanted or not,” Bradshaw’s prior admission that he

sent the text messages is “direct evidence” that he sent the text messages. States v. State, 88

So. 3d 749, 757 (¶34) (Miss. 2012). It is also sufficient evidence to support the EAB’s

factual finding that Bradshaw sent the text messages. The EAB—not the circuit court or this

Court—“is the trier of fact as well as the judge of the witnesses’ credibility.” Bynum, 906

So. 2d at 90 (¶14). Accordingly, it was for the EAB to decide whether to believe Bradshaw’s

confession or his subsequent recantation.

¶28.   Finally, we affirm the EAB’s ruling that Bradshaw’s misconduct was “sufficient

grounds for the action taken.” Miss. Code Ann. § 25-9-127(1). The EAB found that

Bradshaw committed “an act or acts of conduct . . . on or off the job [that were] plainly

related to job performance and [were] of such nature that to continue [Bradshaw] in [his]

assigned position could constitute negligence in regard to [MDWFP’s] duties to the public

or to other State employees.” State Employee Handbook § 7.1. We affirm this finding

because it is supported by substantial evidence, and it is neither arbitrary nor capricious.

¶29.   Only four months earlier, MDWFP had disciplined Bradshaw for sending unwanted

and inappropriate text messages to a female whose cell phone number had been obtained

from hunter education paperwork. Bradshaw thus intentionally harassed a member of the



                                              16
core constituency that MDWFP has a duty to serve. His conduct was “plainly related to job

performance.” MDWFP found that, despite being reprimanded and suspended for his

actions, Bradshaw continued to engage in similar and, indeed, more aggressive misconduct.

Although Bradshaw’s contact with the second complainant was not work-related, the EAB’s

decision to uphold his termination was neither arbitrary nor capricious. Bradshaw had

already shown that his continued employment “could constitute negligence in regard to

[MDWFP’s] duties to the public or to other State employees.” Id. MDWFP’s and the EAB’s

finding that he continued to engage in such misconduct undeterred supports their further

conclusion that Bradshaw was an unacceptable risk to the public and the agency. Moreover,

MDWFP and the EAB reasonably concluded that Bradshaw’s pattern of misconduct was

inconsistent with his duties and impaired his reputation as a sworn law enforcement officer.

See Miss. Bureau of Narcotics v. Stacy, 817 So. 2d 523, 525-28 (¶¶2-18) (Miss. 2002)

(affirming the EAB’s decision upholding the termination of a narcotics agent based on his

simple assault on his wife’s parents); Miss. Dep’t of Corr. v. Corley, 769 So. 2d 866, 869-70

(¶¶19-20) (Miss. Ct. App. 2000) (holding that agency permissibly terminated law

enforcement officer based on his possession and use of marijuana). Accordingly, in light of

the factual findings of MDWFP and the EAB, we conclude that the EAB’s decision is

supported by substantial evidence, is neither arbitrary nor capricious, and must be affirmed.

                                     CONCLUSION

¶30.   Bradshaw was provided sufficient notice and due process in his disciplinary

proceeding, and the EAB’s decision upholding his termination was supported by substantial



                                             17
evidence and was neither arbitrary nor capricious. Accordingly, the circuit court’s judgment

is reversed and rendered, and the decision of the EAB is affirmed in full.

¶31. THE JUDGMENT OF THE SMITH COUNTY CIRCUIT COURT IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLEE.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
JAMES AND GREENLEE, JJ., CONCUR.




                                            18
