                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1999-CT-00262-SCT
LORNA SHIRD AND CARRIE CUMMINS
v.
MISSISSIPPI STATE DEPARTMENT OF MENTAL HEALTH
                                     ON WRIT OF CERTIORARI
DATE OF JUDGMENT:                                12/29/1998
TRIAL JUDGE:                                     HON. ERMEA JACKSON RUSSELL
COURT FROM WHICH APPEALED:                       HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                         GAIL S. AKIN
ATTORNEY FOR APPELLEE:                           MELISSA S. BARIA
NATURE OF THE CASE:                              CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                     REVERSED AND REMANDED - 04/12/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                  5/3/2001

     EN BANC.

     DIAZ, JUSTICE, FOR THE COURT:

¶1. The question presented in this appeal is whether state employees, improperly denied an opportunity to
be considered for promotion, are limited in remedy only to being considered for any new openings that
become available in the position in question. The Mississippi Employee Appeals Board announced this
limited remedy, and the Hinds County Circuit Court and the Court of Appeals found no reversible error in
the decision. This Court granted certiorari on this question, and after consideration, we reverse and remand
to the Employee Appeals Board with directions.

                                                     I.

¶2. The following facts are taken from the opinion of the Court of Appeals:

     This is an appeal from the Circuit Court of Hinds County sitting as an appellate court to review a
     decision of the Mississippi Employee Appeals Board, an administrative tribunal established to review
     public employee grievances from personnel actions taken within the various agencies of the State of
     Mississippi. The appellants are Lorna Shird and Carrie Cummins, both of whom were employed at
     the Hudspeth Regional Center in the position known as Associate Psychologist. Their grievance
     consisted of a complaint that the director of that institution, Dr. John Lipscomb, improperly limited
     their opportunity to advance to the next higher level of Psychologist I by hiring other less experienced
     and less qualified individuals as Associate Psychologists and shortly thereafter reclassifying those
     employees to Psychologist I without formally declaring a vacancy for the Psychologist I position and
     complying with State Personnel Board regulations that permit some measure of competition for such
     positions.
     In fact, Shird and Cummins prevailed on the merits before the Employee Appeals Board since the
     Board concluded that the director was, in fact, employing a subterfuge to circumvent the Personnel
     Board regulations for filling vacant Psychologist I positions. . . .

     In this case, the Employee Appeals Board concluded that Dr. Lipscomb was, in fact, filling
     Psychologist I positions but was doing so in a manner having the effect--whether it was his intent or
     not--of denying Shird, Cummins, and others similarly situated from being considered for those
     vacancies. Dr. Lipscomb was doing so, according to the Appeals Board, by purporting to fill an
     Associate Psychologist position at the same level as Shird and Cummins, but doing so with a firm
     prior commitment with the new employee that within a very short time that person would be
     reclassified as a Psychologist I.

     Shird and Cummins further complained that, when they confronted Dr. Lipscomb about his promoting
     others with less time on the job and whom they believed to be less qualified, Dr. Lipscomb informed
     them that they could not be considered for the Psychologist I position unless they were enrolled in a
     doctoral program and signed a contract that, if they ceased to pursue their doctoral degree, they
     would revert to the Associate Psychologist level. It was the position of Shird and Cummins that the
     minimum qualifications for Psychologist I were, by law, to be established by the State Personnel
     Board and that Dr. Lipscomb, in his capacity as director of Hudspeth, did not have the legal authority
     to require additional requirements of eligibility for the position. The Employee Appeals Board agreed
     with Shird and Cummins on this issue and concluded that their eligibility--to be distinguished from their
     entitlement--to serve in the position of Psychologist I must be determined solely by Personnel Board
     criteria not supplemented by Dr. Lipscomb's own additional requirements.

Shird v. Miss. State Dep't of Mental Health, No. 1999-CC-00262-COA ¶¶ 1-2, 3-4 (Miss. Ct. App.
Aug. 15, 2000). In addition, it was alleged at the hearing before the Employee Appeals Board (EAB) that
Dr. Lipscomb followed this practice because as a result of separate litigation, Lipscomb had been ordered
to offer an open Psychologist I position to one Verlon Williams. Shird and Cummins alleged that because of
this, Lipscomb instituted the hiring procedure in question to ensure that a Psychologist I position would
never be open to Verlon Williams, or anyone in their position.

¶3. Shird and Cummins argued that they were entitled to an immediate promotion to the position of
Psychologist I with back pay. The EAB hearing officer disagreed, finding instead that they "should be given
the consideration for that position [Psychologist I] because they meet the minimum requirement as set out
and established by the State Personnel Board, and not rejected because they did not meet the additional
and special requirement of Dr. Lipscomb." On appeal from the EAB hearing officer, the Employee Appeals
Board affirmed. On appeal, the Hinds County Circuit Court affirmed.

¶4. Cummins and Shird appealed from the circuit court judgment, and a divided Court of Appeals affirmed.
The Court of Appeals found, under its limited review of administrative agency decisions, that the remedy
granted by the Employee Appeals Board, while not as extensive as that sought by Cummins and Shird, was
within its discretion and did not amount to reversible error. The dissent found that the EAB decision
amounted to no remedy for Shird and Cummins.

                                                     II.

¶5. The applicable standard of review may be found in Tillmon v. Miss. State Dep't of Health, 749
So.2d 1017, 1020-21 (Miss. 1999):

      This Court generally accords great deference to the agency's interpretation of its own rules and
      statutes which govern its operation. Mississippi State Tax Comm'n v. Mask, 667 So.2d 1313, 1314
      (Miss.1995). An appeal from an administrative agency is a limited one. Mainstream Sav. & Loan
      Ass'n v. Washington Federal Sav. & Loan Ass'n, 325 So.2d 902, 903 (Miss.1976). In reviewing
      the decisions of administrative agencies, this Court will entertain the appeal only to determine: whether
      or not the order of the administrative agency (1) was unsupported by substantial evidence, (2) was
      arbitrary or capricious, (3) was beyond the power of administrative agency to make, or (4) violated
      some statutory or constitutional right of the complaining party. Id. at 903.

¶6. Tillmon presents a set of facts similar to this case. Tillmon, an employee of the State Department of
Health, was denied consideration for the position of Branch Director II due to the improper actions of his
division director in promoting another candidate. Tillmon utilized the grievance process offered through the
EAB. The EAB hearing officer found that though the division director had acted arbitrarily and capriciously,
the EAB did not have the authority to declare a vacancy for Tillmon or award back pay. Tillmon appealed
on the ground that a vacancy should have been declared in the Branch Director II position, and he should
have received the job and back pay. The full Employee Appeals Board affirmed, as did the circuit court.

¶7. This Court, after consideration of statutes involving the EAB and state personnel policies, found that "[t]
he ruling by EAB in the case sub judice has significantly reduced the effectiveness of the state system of
personnel administration." Tillmon, 749 So.2d at 1021. This Court further stated: "We cannot say that
Tillmon would have been promoted to the position, nor can we say that he would not have been promoted.
He should, however, along with the others listed on the Certificate of Eligibles, have been given a fair
chance at receiving the promotion." Id. at 1022. This Court further found:

      The Hearing Officer stated that "the grievance had merit and the Mississippi State Department of
      Health failed to follow the published rules and regulations in this instance having acted arbitrarily and
      capricious." He further stated that there was no vacancy and the EAB had no jurisdiction to declare a
      vacancy. On the contrary, Miss.Code Ann. § 25-9-131 states in pertinent part that:

      ... The employee appeals board may modify the action of the department, agency or institution
      but may not increase the severity of such action on the employee. Such appointing authority shall
      promptly comply with the order issued as a result of the appeal to the employee appeals board.

      Miss.Code Ann. § 25-9-131(1)(1999) (emphasis added). By the plain reading of the statute, it is
      easily inferred that the EAB has the authority to declare the position vacant. The Department argues
      that to remove Colomb would deprive him of his property interest in his employment. However,
      Colomb has no property interest in the position in which he is employed.

Tillmon, 749 So.2d at 1022.

¶8. Finally, this Court concluded:

      It is the job of the EAB to ensure that proper selection procedures are followed, and this was not
      done in this case. The EAB should have declared a vacancy and ordered the Department to comply
      with established procedures in filling the vacancy, whether or not it be with Tillmon. To do otherwise
      is to recognize a wrong, but then find, as did the EAB, that there is no remedy. We hold that the State
     Employment System must, and does, have a remedy for such a wrong as we find here. The remedy is
     to declare a vacancy. The circuit court erred as a matter of law in not so ruling.

Tillmon, 749 So.2d at 1023.

¶9. Carrie Cummins and Lorna Shird were improperly deprived of the chance to apply for the Psychologist
I position because (a) Dr. Lipscomb arbitrarily added qualifications for the job beyond those set by the
Personnel Board and (b) Dr. Lipscomb hired people as Associate Psychologists and then reclassified them
into the Psychologist I position. Whatever Dr. Lipscomb's purpose, the effect was that a Psychologist I
position would never be advertised or open to someone like Cummins and Shird. This Court's decision in
Tillmon is controlling in this appeal. The Court of Appeals erred in not reversing and remanding this case
to the EAB with directions to declare two vacancies at the Psychologist I position, as this Court did in
Tillmon, so that Cummins and Shird may properly be considered for the positions under the rules of the
State Personnel Board. For these reasons, the judgments of the Court of Appeals, the Hinds County Circuit
Court, and the Employee Appeals Board are reversed, and this case is remanded to the Employee Appeals
Board with directions that it enter a judgment declaring two Psychologist I positions vacant. No later than
thirty days after that judgment the Department of Mental Health shall fill the vacancies in the manner
prescribed by law, with proper consideration being given Cummins and Shird.

¶10. REVERSED AND REMANDED TO THE EMPLOYEE APPEALS BOARD.

     PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, MILLS, WALLER, COBB AND
     EASLEY, JJ., CONCUR.
