                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-CC-01551-SCT
COAHOMA COUNTY, MISSISSIPPI
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND JACQUELINE D.
WALLACE

DATE OF JUDGMENT:                                 08/27/1999
TRIAL JUDGE:                                      HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                        COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           TOM T. ROSS, JR.
ATTORNEY FOR APPELLEES:                           ALBERT B. WHITE
NATURE OF THE CASE:                               CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                      AFFIRMED - 05/04/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   5/25/2000



      BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

      SMITH, JUSTICE, FOR THE COURT:


¶1. Coahoma County, Mississippi appeals to this Court from a judgment of the Circuit Court of Coahoma
County, which affirmed the award by the Board of Review of the Mississippi Employment Security
Commission (Commission) of unemployment compensation benefits to Jacqueline D. Wallace. Wallace was
discharged from her with the county employment due to alleged misconduct. After careful review, we find
that Wallace's actions did not rise to the level of misconduct pursuant to Miss. Code Ann. § 71-5-513
(Supp. 1999). We affirm the circuit court.

                                                   FACTS

¶2. Jacqueline D. Wallace ("Wallace") was employed as the main control officer at the Coahoma County
Sheriff's Department jail for approximately 2 years. Her last day of work was on November 10, 1998,
when she was suspended pending an investigation into an inmate complaint of sexual harassment. As main
control operator, she was responsible for monitoring activities of all jail surveillance cameras to detect any
unusual activities or equipment malfunction and reporting it to the supervisor. She was also required to
complete an incident report detailing any problems on her shift. Wallace worked from 11:00 p.m. until 7:00
a.m. on October 21, 1998, October 22, 1998, October 28, 1998, and November 5, 1998. No reports of
unusual activities were reported during these shifts. However, the inmates complained the harassment
occurred on these shifts. The surveillance tapes were reviewed, and they showed the booking area camera
was covered approximately thirty-one minutes on October 23, 1998, and the camera for the same area
was again covered approximately twelve minutes on October 29, 1998.
¶3. Wallace denied being aware of the tampering with the cameras, but admitted that she sometimes left the
monitors ten or fifteen minutes to go to the restroom which was located in her immediate work area. On
November 17, 1998, Wallace was discharged for putting the safety of the inmates and employees in
jeopardy because she did not report another employee for covering up a monitoring camera.

¶4. Wallace applied with the Commission for unemployment compensation benefits, and the Commission's
claims examiner denied the claim. Wallace appealed the claims examiner's decision to the Appeals Referee
of the Commission. The Appeals Referee entered a written decision finding Wallace was discharged for
neglect of her duties and that willful misconduct had been shown. Wallace appealed this decision to the
Board of Review which found that Wallace did not willfully and deliberately violate any rule of the employer
and that she performed her work to the best of her ability. The disqualification for benefits was canceled.
On the county's subsequent appeal, the circuit court affirmed the decision of the Board of Review.
Coahoma County, aggrieved by the circuit court's judgment, appeals to this Court and assigns the following
issue as error:

                                     STATEMENT OF THE ISSUE

     I. WHETHER THE CIRCUIT COURT ERRED IN FINDING THAT THE BOARD OF
     REVIEW'S DECISION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS
     NOT ARBITRARY NOR CAPRICIOUS.

                                       STANDARD OF REVIEW

¶5. This Court has clearly set forth the standard of review of an Employment Security Commission ruling:

     Judicial review of an Employment Security Commission ruling is limited to determination of whether
     the decision is supported by substantial evidence.... This Court must review the record to determine
     whether there is substantial evidence to support the Board of Review's findings of fact, and further,
     whether, as a matter of law, the employee's actions constituted misconduct disqualifying him from
     eligibility for unemployment compensation benefits....

     Miss. Code Ann. § 71-5-513 (A)(1)(b) (Rev. 1989) provides that an individual may be disqualified
     for unemployment benefits if he was discharged "for misconduct connected with his work." The
     employer has the burden of showing by "substantial, clear, and convincing evidence" that the former
     employee's conduct warrants disqualification from eligibility for benefits...

City of Clarksdale v. Mississippi Employment Sec. Comm'n, 699 So. 2d 578,580 (Miss. 1997)
(quoting Foster v. Mississippi Employment Sec. Comm'n, 632 So. 2d 926, 927 (Miss. 1994)). Further,
judicial review of a decision of the Board of Review is also governed by Miss. Code Ann. § 71-5-
531(1995) which reads in pertinent part as follows:

     In any judicial proceedings under this section, the findings of the board of review as to the facts, if
     supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said
     court shall be confined to questions of law. Miss.Code Ann. § 71-5-531 (1995)....

City of Clarksdale, 699 So. 2d at 581.

                                      DISCUSSION OF THE LAW
     I. WHETHER THE DECISION OF THE CIRCUIT COURT AFFIRMING THE
     MISSISSIPPI EMPLOYMENT SECURITY COMMISSION WAS SUPPORTED BY
     SUBSTANTIAL EVIDENCE AND WAS NOT ARBITRARY NOR CAPRICIOUS.

¶6. The threshold question is whether the charges against Wallace constituted misconduct under the law,
and whether the findings and decision of the Board of Review were supported by substantial evidence.
Miss. Code Ann. § 71-5-513 (Supp.1999) states in pertinent part:

     A. An individual shall be disqualified for benefits: (1)(b) For the week, or fraction thereof, which
     immediately follows the day on which he was discharged for misconduct connected with his work, if
     so found by the commission, and for each week thereafter until he has earned remuneration for
     personal services performed for an employer, as in this chapter defined, equal to not less than eight
     (8) times his weekly benefit amount, as determined in each case.

¶7. This Court has said there is no dearth of Mississippi case law with respect to what is required to prove
misconduct. Young v. Mississippi Employment Sec. Comm'n, No. 1998-SA-01318-SCT, 1999 WL
1042923, at *2 (Miss. Nov. 18, 1999).

     [T]he meaning of the term "misconduct," as used in the unemployment compensation statute, was
     conduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate
     violations or disregard of standards of behavior which the employer has the right to expect from his
     employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest
     culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the
     employer's interest or of the employee's duties and obligations to his employer, came within the term.
     Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or
     incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in
     judgment or discretion were not considered "misconduct" within the meaning of the statute.

Id. (emphasis added) (quoting City of Clarksdale, 699 So. 2d at 581).

¶8. The testimony reveals that Sergeant Collins, Wallace's supervisor, covered the camera with a towel on
the first occasion and a blanket on the second occasion. Two inmates' attorneys complained that Sergeant
Collins had covered these cameras for the purpose of hiding sexual acts with the inmates. After this
allegation was confirmed, Wallace was eventually terminated for failing to detect or report that the
equipment had been altered or covered and failing to report her superior officer's misconduct. Sheriff
Thompson was of the opinion that Wallace's conduct constituted violations of department policies
prohibiting insubordination, neglect of duty, abuse of department equipment and withholding evidence.

¶9. The Mississippi Employment Security Commission's Administrative Manual Part V, Paragraph 1720,
states:

     An employee shall not be found guilty of misconduct for the violation of a rule unless: (1) the
     employee knew or should have known of the rule; (2) the rule was lawful and reasonable related to
     the job environment and job performance; and (3) the rule is fairly and consistently enforced.

(emphasis added).
¶10. Wallace contends the Coahoma County Sheriff's Department did not fairly and consistently enforce its
rule regarding monitoring the jail cameras. On cross-examination, Sheriff Thompson admitted that Wallace
had not been informed that her failure to monitor the cameras, or failure to detect such an incident, would
result in immediate termination for a first offense. Sheriff Thompson further testified that the only other
control operator on duty during the incidents was a park control operator, but the park control and main
control operators do not interact. It was also the duty of the jail administrator to review the tapes after the
shifts but sometimes he might not review them daily or he might not have reviewed them at all. The Sheriff
testified that the tapes were supposed to be reviewed the next day. Disciplinary actions were not taken
against the jail administrator.

¶11. When Sheriff Thompson was asked if Wallace's failure to report the obstructions of the cameras was
insubordination as outlined in the policy and procedures for the department he answered,"Well,...sometime
you have to go up and beyond and I think it would fit in." He also stated there were allegations that Wallace
was asleep during these incidents, but admitted that she denied this allegation, and she was not charged with
sleeping on duty. In regard to her neglecting her duty, Sheriff Thompson stated for the record that her
alleged failure to report a superior officer's obstruction of the camera fits into this policy of neglect of duty.
Wallace testified that she could not report what she did not detect. The monitors are constantly changing
and recording and during the incidents in question she could have been in the bathroom or on break.
Wallace's supervisor, Sergeant Collins, was the designated person to relieve her when she needed to leave
the area, and when requested to do so by Sergeant Collins, Wallace could ask officer Whitehead to relieve
her. She understood the monitors were to be attended at all times, and she was to report all unusual or
suspicious activity. Nevertheless, she would have to go to the bathroom 2 or 3 times in a day, and if she
was not relieved she had to leave her area unattended. Wallace testified that she would call for relief and
her sergeant would never show up and sometime another officer would relieve her but mostly she would
have to leave the area unattended. Wallace has returned from a break to find the cameras unattended
because Sergeant Collins would be downstairs or officer Whitehead would be in the bathroom.

¶12. In Wheeler v. Arriola, 408 So. 2d 1381 (Miss. 1982), this Court stated that "[t]he conduct may be
harmful to employer's interests and justify the employee's discharge; nevertheless, it evokes the
disqualification for unemployment insurance benefits only if it is wilful, wanton, or equally culpable." Id. at
1383 (quoting Jacobs v. California Unemployment Ins. Appeals Bd., 25 Cal. App. 3d 1035, 1037,
102 Cal. Rptr. 364, 366 (Cal. Ct. App. 1972)). The record reveals that in the past when Wallace has
observed an incident that she deems is an infraction against the rules and regulations she has made an
incident report. Wallace also asserts she has reported the lack of cooperation in getting assistance to take
the necessary breaks as well as other prohibited activities by Sergeant Collins to the jail
administrator/department head who has stated that he could not believe that Sergeant Collins was doing
these things. To her knowledge the jail administrator did not act upon these reports.

¶13. The Board of Review agreed with the Findings of Fact as stated by the Appeals Referee:

      The claimant admitted that there were times when the surveillance cameras were not monitored when
      she went on breaks or to the bathroom. These circumstances, however, were known by supervisory
      authorities and had been the common practice over a period of time. The evidence indicates that the
      rule that the cameras had to be constantly monitored at all time and never left unattended had not
      been consistently enforced by the employer and the claimant had not been warned or reprimanded
      about any violation of such rule. The Board is of the opinion that the claimant did not willfully and
      deliberately violate any rule of the employer and that she performed her work to the best of her ability.
      The actions which caused her discharge did not rise to the level of misconduct connected with the
      work within the meaning of that term as it is used in the law and disqualification for benefits is not
      warranted.

¶14. The employer bears the burden of proving misconduct by clear and convincing evidence. Miss. Code
Ann. § 71-5-513A (1)(c)(Supp. 1999). We hold that the findings of the Board of Review are supported
by evidence in the record. It is true as pointed out by the Coahoma County Sheriff's Department pursuant
to Miss. Code Ann. § 71-5-523 (1995) that the Board of Review may on its own motion modify, affirm, or
set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case.
However, the county is incorrect to assert that the evidence previously submitted, which is to be considered
by the Board, was insufficient for the Board to base its reversal of the Appeals Referee's decision. We thus
hold that Coahoma County did not meet its burden of proving misconduct pursuant to the law. We also find
that there was evidence within the record that the monitoring rule was not fair and consistently enforced by
the Sheriff's department. The jail administrator was clearly not subjected to disciplinary action. Additionally,
Sheriff Thompson admitted that Wallace had not been informed that failure to detect an incident such as this
would result in immediate termination for such first offense. These reasons were cited by the Board of
Review and stated by the Appeals Referee.

                                              CONCLUSION

¶15. In summary, the principle is well settled that an order of the Board of Review of the Employment
Security Commission on the facts is conclusive upon the lower court, if supported by substantial evidence
and in the absence of fraud, and the scope of review requires the determination of the sufficiency of the
evidentiary basis of the decision. Wheeler, 408 So. 2d at 1384.

¶16. We are of the opinion that the findings and order of the Board of Review of the Mississippi
Employment Security Commission are supported by substantial evidence and that Wallace's conduct does
not rise to the level of misconduct. The judgment of the Coahoma County Circuit Court affirming the
decision of the Board of Review of the Mississippi Employment Security Commission is affirmed, thus
allowing unemployment compensation benefits for Wallace.

¶17. AFFIRMED.

      PRATHER, C.J., PITTMAN AND BANKS, P.JJ., McRAE, MILLS, WALLER, AND
      COBB, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
