           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-SA-01011-COA

CHARLES D. EASLEY                                                         APPELLANT

v.

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM                                         APPELLEE

DATE OF JUDGMENT:                         06/02/2015
TRIAL JUDGE:                              HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
                                          FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  JEFFREY CARTER SMITH
                                          COURTNEY BRADFORD SMITH
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JANE L. MAPP
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION:                  AFFIRMED DECISION OF THE PUBLIC
                                          EMPLOYEES’ RETIREMENT SYSTEM’S
                                          BOARD OF TRUSTEES
DISPOSITION:                              AFFIRMED - 01/17/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND ISHEE, JJ.

       BARNES, J., FOR THE COURT:

¶1.    Charles D. Easley, a former Mississippi Supreme Court justice, requested Public

Employees’ Retirement System (PERS) benefits from 1986 through 2000 for work he

performed as a court-appointed attorney in the Lowndes County Chancery Court.1 Following

an administrative hearing before the PERS Board of Trustee’s Claims Committee, the Board



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        Justice Easley served as an associate justice on the Mississippi Supreme Court from
2000 to 2008.
denied the request for service credit, finding that Justice Easley was an independent

contractor and no employee-employer relationship had been established. He filed an appeal

with the Hinds County Circuit Court, First Judicial District, which affirmed the Board’s

decision. Finding no abuse of discretion in the Board’s denial of PERS benefits, we affirm

the judgment.

                        FACTS AND PROCEDURAL HISTORY

¶2.    From 1986 to 2000, Justice Easley served as a court-appointed attorney in Lowndes

County Chancery Court, representing indigent respondents in commitment proceedings. The

chancery court’s order appointing Justice Easley stated that he was “entitled to a monthly

salary of $450.00 . . . for services rendered to the Court and [his] respective indigent clients.”

It was noted in the order that this amount had been approved by the Lowndes County Board

of Supervisors. This document was the only evidence of his appointment. Justice Easley

maintained a private law practice during this period, and the chancery clerk assigned him

cases on an individual basis.

¶3.    After Justice Easley left the Mississippi Supreme Court in 2008, he contacted PERS

to inquire whether he was eligible for benefits during the period he served as a court-

appointed attorney (1986 through 2000). PERS had no record of his service during that

period and was unable to find any documentation from the Lowndes County Board of

Supervisors that Justice Easley had been hired as a county employee. His earnings were

reported on an Internal Revenue Service (IRS) Form 1099-MISC for the years 1986-1998.

But for unexplained reasons, in 1999 and 2000, Lowndes County classified Justice Easley



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as a part-time employee “not working 80 or more hours per month,” and his earnings were

reported on an IRS W-2 form for those two years. Although he admittedly received health-

insurance benefits through Lowndes County, the evidence was inconclusive who paid the

premiums. At the hearing, he testified that he was “not sure” if he had paid them.

Regardless, none of Justice Easley’s Lowndes County earnings were ever reported to PERS,

and he never contributed to the system.

¶4.    In a letter dated June 17, 2009, the executive director of PERS informed Justice

Easley that he was considered an independent contractor and, therefore, not eligible for

benefits. Justice Easley appealed the decision to the Board, and a hearing was held on

January 25, 2011. The Board subsequently determined that Justice Easley was not eligible

for PERS membership related to his appointment by the Lowndes County Chancery Court,

and it denied his request for service credit for those years. The Hinds County Circuit Court

affirmed the Board’s decision, and Justice Easley now appeals to this Court.

                                      DISCUSSION

       I.     Whether PERS’s decision to deny benefits was arbitrary and
              capricious.

¶5.    An administrative agency’s decision may not be overturned on appeal “unless the

agency’s decision is not supported by substantial evidence, is arbitrary or capricious, is

beyond the scope or power granted to the agency, or violates constitutional rights.” Vaughn

v. Pub. Emps’ Ret. Sys. of Miss., 182 So. 3d 433, 437 (¶4) (Miss. 2015) (citing Pub. Emps’

Ret. Sys. v. Porter, 763 So. 2d 845, 847-48 (¶8) (Miss. 2000)). Furthermore, “[t]here is a

rebuttable presumption in favor of a PERS ruling.” Pub. Emps’ Ret. Sys. v. Dishmon, 797


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So. 2d 888, 891 (¶9) (Miss. 2001) (citing Brinston v. Pub. Emps’ Ret. Sys., 706 So. 2d 258,

259 (¶6) (Miss. Ct. App. 1998)). Neither an appellate nor a trial court is “entitled to

substitute its own judgment for that of PERS, and it is impermissible for a reviewing court

to re-weigh the facts of the case.” Id. (citing Miss. Pub. Serv. Comm’n v. Merchs. Truck Line

Inc., 598 So. 2d 778, 782 (Miss. 1992)).

¶6.    As the circuit court noted in its order, Mississippi Code Annotated section 25-11-105

(a)(i) (Rev. 2010) provides:

       All persons who become employees in the state service after January 31, 1953,
       and whose wages are subject to payroll taxes and are lawfully reported on IRS
       Form W-2, except those specifically excluded, or as to whom election is
       provided in Articles 1 and 3, shall become members of the retirement system
       as a condition of their employment.

The evidence showed that Justice Easley received a 1099-MISC IRS form from 1986 to

1998, and he was classified as a “vendor.” Although he did receive an IRS W-2 form in

1999 and 2000, there was nothing to indicate his duties or classification had changed.

Lowndes County classified Justice Easley as a part-time employee “not working 80 or more

hours per month” for those two years. He admitted that he was “paid part time” at the

hearing, and he only worked when he “g[ot] a call that somebody needs [to be] committed”

and had no specific hours, but “was on call 24 hours a day.” Section 25-11-105(g) provides

that “[t]he [B]oard may, in its discretion, deny the right of membership in this system to any

class of employees whose compensation is only partly paid by the state or who are occupying

positions on a part-time or intermittent basis.” (Emphasis added).

¶7.    The PERS statute simply defines an employee as “any person legally occupying a



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position in the state service, and shall include the employees of the retirement system created

under this article.” Miss. Code Ann. § 25-11-103(l) (Supp. 2016). Our court has held: “In

determining whether an individual is an employee or an independent contractor, the central

issue is ‘whether the employer has the right to exercise control over the work of the

employee.’” Miss. Dep’t of Emp’t Sec. v. Harbin, 11 So. 3d 137, 140 (¶7) (Miss. Ct. App.

2009) (quoting Estate of Dulaney v. Miss. Emp’t Sec. Comm’n, 805 So. 2d 643, 646 (¶13)

(Miss. Ct. App. 2002)). Thus, “[a]n independent contractor is a person who contracts with

another to do something for him but who is not controlled by the other nor subject to the

other’s right to control with respect to his physical conduct in the performance of the

undertaking.” Chisolm v. Miss. Dep’t of Transp., 942 So. 2d 136, 141 (¶7) (Miss. 2006). As

the chancery court’s order stated, Justice Easley was “entitled” to a small monthly salary

from Lowndes County, and the record reflects he also received health and dental insurance

through the county. However, similar to a court-appointed public defender, the chancery

court assigned Justice Easley cases on an as-needed basis; he did not have any regular work

hours or an office at the courthouse. Lowndes County did not have control over Justice

Easley’s day-to-day work, and it was undisputed that he maintained a private law practice

during this period.

¶8.    As there was substantial evidence presented that supports the Board’s denial of

benefits, we find its decision to deny benefits was not arbitrary or capricious.

       II.    Whether PERS exceeded its authority, and violated Justice
              Easley’s constitutional rights, by restricting the powers of the
              chancery court.



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¶9.    Justice Easley argues that PERS’s ruling exceeds its authority, as the ruling effectively

limits or restricts the chancery court’s authority to appoint representation in commitment

proceedings. Under Mississippi Code Annotated section 41-21-67 (Supp. 2016), the

chancery court is authorized to appoint an attorney to represent a respondent who does not

have the services of an attorney in a commitment proceeding.

¶10.   The Board did comment in its findings that while the statute “contemplates the

appointment of indigent counsel on a case-by-case basis, . . . there appears to be no specific

authorization for the practice of appointing indigent counsel for a period of years.” However,

the Board did not make any findings that the chancery court’s authority to appoint indigent

counsel in commitment hearings was unauthorized or restricted. Rather, analogizing his

appointment to that of a court-appointed public defender, the Board merely concluded that

such an appointment did not constitute an employee-employer relationship qualifying Justice

Easley for benefits.

¶11.   Accordingly, we find no merit to this argument.

       III.   Whether the attorney general’s role in this case was improper and
              violated Justice Easley’s right to due process.

¶12.   A representative from the state’s attorney general’s office was the hearing officer in

this case. Justice Easley contends that the attorney general’s office should not have been

allowed “to investigate, prosecute, and act in a judicial or quasi-judicial capacity.” In Public

Employees’ Retirement System v. Stamps, 898 So. 2d 664, 677 (¶50) (Miss. 2005), the

Mississippi Supreme Court held: “The presumption exists that hearing officers act with

fairness and honesty.” (Citing Harrison Cty. Sch. Bd. v. Morreale, 538 So. 2d 1196, 1202


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(Miss. 1989)). “[T]o overcome this presumption, there must be a showing of personal or

financial interest on the part of the hearing officer, or evidence of misconduct.” Id. at 677-78

(¶50) (citing Dampier v. Lawrence Cty. Sch. Dist., 344 So. 2d 130, 132-33 (Miss. 1977)).

Justice Easley has offered no details as to how the participation of the attorney general’s

office at the hearing resulted in bias or partiality in the adjudication of the proceedings. He

summarily argues that the attorney general may not “sit in a judiciary capacity for an

administrative agency,” and “[t]here was no semblance of fairness where PERS was acting

as investigative and judicial bodies in the same circumstance.”

¶13.   However, the supreme court “has rejected the proposition that administrative agencies

cannot perform both investigative and adjudicative functions.” Id. at 678 (¶50) (quoting

Freeman v. Pub. Emps’ Ret. Sys. of Miss., 822 So. 2d 274, 281 (¶22) (Miss. 2002)). “The

combination in the same individual of nonadjudicative functions does not violate due

process, provided the claimant’s due process rights to a fair hearing before an impartial

adjudicator are otherwise protected.” Id. Additionally, in reference to an assistant attorney

general being a hearing officer, the supreme court has specifically noted that the office

“affords counsel to state agencies[,] and . . . [the supreme court] see[s] no conflict or

suggestion of unfairness in this arrangement.” United Cement Co. v. Safe Air for the Env’t

Inc., 558 So. 2d 840, 842 (Miss. 1990) (citing Frazier v. State ex rel. Pittman, 504 So. 2d

675, 691 (Miss. 1987)). Examining the record, we find no bias indicated in the hearing

officer’s actions in this case, and there is no basis for Justice Easley’s claim.

¶14. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE

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ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND
GREENLEE, JJ., CONCUR.     WILSON AND WESTBROOKS, JJ., NOT
PARTICIPATING.




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