                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1998-SA-01742-SCT
HENRI TILLMON
v.
MISSISSIPPI STATE DEPARTMENT OF HEALTH

DATE OF JUDGMENT:                                 11/02/1998
TRIAL JUDGE:                                      HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                        WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           WILLIE GRIFFIN
ATTORNEYS FOR APPELLEE:                           ONETTA WHITLEY
                                                  BENJAMIN MACK MITCHELL
NATURE OF THE CASE:                               CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                      REVERSED AND REMANDED - 11/18/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   12/09/99



      BEFORE SULLIVAN, P.J., SMITH AND COBB, JJ.
      SMITH, JUSTICE, FOR THE COURT:
¶1. This case comes to this Court on appeal of Henri Tillmon from an order of the Circuit Court of
Washington County, Mississippi, which affirmed the decision of the State Employee Appeals Board (EAB)
which found that it lacked jurisdiction to declare a vacancy and to award monetary compensation as
damages. The EAB, however, did award attorney and filing fees.

¶2. After careful review, we disagree. The state did not cross-appeal on the issue of attorney's fees and
filing fees. Therefore, we do not address that this issue. However, as to the lack of jurisdiction to declare a
vacancy, we reverse and remand for proceedings consistent with this opinion.

                                        STATEMENT OF FACTS

¶3. In January 1996, the position of Branch Director II, a state service position, with the Mississippi
Department of Health (hereinafter Department of Health) became vacant due to promotion of the
incumbent, Clara Davis. Clara Davis notified her division director, Craig Thompson, and other staff of her
promotion. Mark Colomb, a time-limited employee in the same division, informed Clara Davis that he
would replace her. This statement was made before the agency advertised the position. Russell Cantrell and
Karen Underwood, employees assigned to the Department of Health during this time, also informed Clara
Davis that according to Thompson, Colomb would be promoted to replace her as Branch Director II.
Henri Tillmon, employed with the Department of Health since June, 1980, presently works in the Greenville
office. Tillmon submitted an application to be considered for the Branch Director position to the State
Personnel Board (SPB) on February 20, 1996.

¶4. Initially , Thompson treated the position as an intra-agency promotion in order for employees in the
Department of Health to be considered, particularly Colomb. The position was advertised, on or about
March 18, 1996, only in the Central Office. A request for a Certificate of Eligibles for the intra-agency
position was made on April 22, 1996. Interviews were conducted, and Colomb was selected to fill the
Branch Director II position.

¶5. In May 1996, Thompson submitted a Request for Job Action form to hire Colomb for the position.
After review of this form, Thompson was told by Katie Frazier, employee in the personnel department at
the Department of Health, that Colomb could not be promoted to the position of Branch Director II
because (1) Colomb did not have a current performance appraisal rating, and (2) Colomb was in a non-
state service status. As a time-limited employee, Colomb could not be employed into a permanent state
service position through the intra-agency process. The promotion could only be filled using a Certificate of
Eligibles.

¶6. Thompson and Colomb went to Frazier's office to get clarification on the process. Frazier thought this
was quite unusual because the selection process is supposed to be fair and open, and Thompson's bringing
Colomb to the personnel office was blatant evidence of preselection. During the office visit, Thompson
asked what he needed to do to get Colomb promoted to the position. Pat Klar, personnel director for the
Department of Health, also testified that it was improper for the person handling the promotion and the
applicant for the position to come to the personnel office together and asked how the applicant could be
employed or placed on a list of eligibles. According to Klar, Thompson's inquiry was a violation of SPB
rules.

¶7. Thompson returned a day or two later with Colomb's application attached to the Request for a
Certificate of Eligibles which meant the certificate would not print until Colomb's name had been placed on
the certificate. The request for the Certificate of Eligibles was processed to SPB in May, 1996. When the
list of eligibles was received, Henri Tillmon's name was on the certificate. The intra-agency policy of the
Department of Health required the person hiring an employee to contact each applicant on the certificate of
eligibles and offer an interview. Thompson violated that policy because Tillmon was not notified and
interviewed.

¶8. In late May, Tillmon heard rumors that Colomb had been appointed to the position. On May 30, 1996,
Tillmon wrote Dr. F. E. Thompson, Director of the Department of Health, advising him that he had not
received an interview nor had the position been advertised in the county office. Tillmon was afforded an
interview on June 6, 1996, even though Colomb had been selected. On July 1, 1996, Colomb was
promoted to Branch Director. Tillmon was not aware of the promotion until October, 1996. Tillmon then
initiated this grievance procedure. There was evidence he requested assistance from the agency in filing the
grievance pursuant to the Department of Health's handbook, but he was not provided any assistance. The
compliance officer for the Department of Health discovered numerous violations of SPB rules and
regulations including an arbitrary appraisal score of 4.25 given to Colomb by Craig Thompson. The
compliance officer stated, "if an applicant is recommended for promotion to an open competitive position
before all applicants are interviewed, it would constitute a violation of SPB rules."

¶9. Subsequent to this EAB hearing, the hearing officer found "(1) the appellant requested, but did not
receive, assistance from the agency in filing his grievance, (2) the individual selected for the promotion was
in fact pre-selected, and (3) the attempt to follow selection procedures outlined was a sham, a mere
formality because the attempt was made to proceed within the rules only after the selection was made." He
continued by stating:

      There being no vacancy, the EAB lacked jurisdiction to declare a vacancy, however it can advise the
      Mississippi State Department of Health to exercise extreme care in all subsequent promotions and to
      follow all published rules and regulations of the State Personnel Board to the letter. The Employee
      Appeals Board lacks the jurisdiction to pay the Appealing Party any monetary compensation as
      damages, if however, it had the jurisdiction, this is an instance when it would exercise that jurisdiction.
      The Appealing Party also alleged age discrimination, however there was no evidence of any such
      evidence of any such discrimination, both the appellant and the individual selected for promotion being
      of the same sex and race.

¶10. The hearing officer concluded noting "the grievance had merit and the Mississippi State Department of
Health failed to follow the published rules and regulation in this instance having acted arbitrarily and
capriciously." It was ordered that Tillmon recover the $560 filing fee and because of the arbitrary and
capricious acts of the Department of Health, the sum of $4,500 was awarded as attorney's fees.

¶11. Tillmon appealed this order to the full board of the EAB citing as error the failure of the hearing officer
to declare a vacancy in the position of Branch Director II , to put him in the vacancy, to give him back pay
and other monetary damages, and to award all expenses of the appeal. On review, the EAB affirmed the
decision of the hearing officer.

¶12. On July 13, 1998, Tillmon filed a Request for Judicial Review of the Order of the EAB. On
September 18, 1998, after a review of the hearing transcripts, Circuit Court Judge W. Ashley Hines
concluded the decision of the EAB was supported by substantial evidence, was not arbitrary or capricious,
and the determination of the Board En Banc was conclusive.

¶13. Aggrieved by the circuit court's denial of his requested relief , Tillmon appeals to this Court and assigns
the following issue as error:

      I. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE DECISION OF
      THE MISSISSIPPI EMPLOYEE APPEALS BOARD IN HOLDING THAT THE
      EMPLOYEES APPEALS BOARD LACKS JURISDICTION TO DECLARE A VACANCY,
      TO AWARD BACK PAY AND SENIORITY AND OTHER MONETARY RELIEF.

¶14. We note additionally that the Department also argues that the award of attorney's fees to Tillmon was
in error, but the State did not cross-appeal on this issue. The Department is not entitled to raise new issues
on appeal without filing a cross-appeal. Lindsey v. Lindsey, 612 So.2d 376, 378 (Miss. 1992). Thus, this
late issue of whether Tillmon should have been granted attorney's fees and filing fees is procedurally barred
and will not be addressed.

                                        STANDARD OF REVIEW

¶15. 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. See also Mississippi Comm'n on Envtl. Quality v. Chickasaw County Bd. of
Supervisors, 621 So.2d

1211, 1215 (Miss. 1993).

                                           ANALYSIS OF LAW

¶16. The position in question is a state service position of the Department of Health and is subject to the
rules and regulations of the SPB promulgated pursuant to Miss. Code Ann. §§ 25-9-101 to 155 (1999).
The primary issue for this Court to determine is whether the Employee Appeals Board lacks jurisdiction to
declare a vacancy.

¶17. The circuit court's decision is contrary to the very purpose for which the Employee Appeals Board
was created. Miss. Code Ann. § 25-9-129 (1999) states that the EAB was created:

      . . . for the purpose of holding hearings, compiling evidence and rendering decisions on appeals of
      state agency action adversely affecting the employment status or compensation of any employee in the
      state service. . . .

Miss. Code Ann. § 25-9-129 (1999). Furthermore, Miss. Code Ann. § 25-9-101 (1999) states that the
legislative purpose is to establish a system of personnel administration in Mississippi:

      based on sound methods of personnel administration governing the establishment of employment
      positions, classification of positions and the employment conduct, movement and separation of state
      employees; to build a career service in government which will attract, select and retain the best
      persons, with incentives in the form of equal opportunities for initial appointment and promotions in the
      state service; and to establish a system of personnel management that will ensure the effective and
      efficient use of employees in the state service.

Miss. Code Ann. § 25-9-101 (1999). The ruling by the EAB in the case sub judice has significantly
reduced the effectiveness of the state system of personnel administration. Although noting that § 25-9-131
has been applied to wrongful termination cases, the circuit court nevertheless opined that the case at bar is
distinguished because this promotion issue involves only preselection. Regardless, we note that the agencies'
procedures were not followed, and those qualified for employment were not given an equal opportunity to
be promoted to the position in question. Such blatant disregard for policies and procedures cannot possibly
help the state ". . . attract, select and retain the best persons . . ." for state service.

¶18. Policy 10.10.3(B) of the Mississippi State Personnel Board Policy and Procedures Manual states that
an action is grievable if it involves "application of personnel policies, procedures, rules, regulations,
ordinances, and statutes. . ." Mississippi State Personnel Board Policy and Procedures Manual, Policy
10.10.3(B). The appointment of Colomb was the result of the Department's failure to apply personnel
policies, rules and regulations. Tillmon's grievance is also allowable under Policy 10.10.4(E) which states
that an issue is non-grievable if it involves:

      the selection of an individual by the appointing authority, department head, or designee to fill a
      position through promotion, transfer, demotion, or appointment unless it is alleged that selection is
      in violation of a written agency policy or of a State Personnel Board rule on filling
      vacancies. . .

Mississippi State Personnel Board Policy and Procedures Manual, Policy 10.10.4(E)

¶19. There can be no argument that the action by the Department of Health adversely affected Tillmon's
employment, as well as all other candidates placed on the Certificate of Eligibles qualified to fill the position
in question. Nor can there be any argument that this is a grievable action. Colomb was appointed to the
position in question in direct violation of established procedures. Tillmon was not given the opportunity to
even interview for the job until he questioned the Department's handling of the matter. The interview that
Tillmon was granted was nothing more than a "pretext" and "sham" to comply with procedures, as was
noted by the Hearing Officer.

¶20. 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.

¶21. This Court has noted that Rule 20(b) of the EAB's own operating rules provides that the EAB may
modify an agency decision if there is a violation of published policies, rules and regulations of the SPB.
Johnson v. Mississippi Dep't of Corrections, 682 So.2d 367, 370 (Miss. 1996). The Department of
Health's compliance officer found numerous violations of SPB rules. The Hearing Officer stated:

      There was testimony from Clara Davis, that prior to her leaving the position, the individual who was
      selected for the promotion, told her that he would get her position when she left. There was also the
      testimony of Russell Cantrell, that he heard who would be promoted as early as May 7, 1996. Karen
      Arrowood testified that early in May, 1996, it was known in the Central Office who was to be
      selected for the promotion.

      There was evidence that the Appealing Party requested assistance from the Agency in the filing of his
      grievance, the evidence reflects that he was not provided any assistance by the Agency. From the
      record, it is clear that the Appealing Party requested assistance in filing the grievance, and it is clear
      that the Agency did not render the requested assistance.

      The testimony and evidence clearly indicates that the individual selected for the promotion was in fact
      pre-selected, and that the attempt to follow the selection procedure outlined was a sham, a
      mere formality. This action having been condoned and approved by all levels of
      management of the Mississippi State Department of Health is an affront to the hard
      working and loyal state service employees.

      It is clear to the Hearing Officer, that pre-selection occurred in this promotion. Then an attempt was
      made to proceed within the rules, only after the selection was made. It is the opinion of the Hearing
      Officer that the written rules for this Agency-Only Competitive Promotion, were not properly
      followed.
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.

¶22. The United States Supreme Court has stated that:

      To have a property interest in a benefit, a person clearly must have more than an abstract need or
      desire for it. He must have more than a unilateral expectation of it. He must, instead, have a
      legitimate claim of entitlement to it.

Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)(emphasis
added). Colomb has no legitimate claim of entitlement as Branch Director II. He obtained the position
through inappropriate, if not illegal, preselection measures. To remove him from this position will not deprive
him of any property interest.

¶23. Selection procedures are instituted to avoid "playing favorites," as happened here. In Gill v.
Mississippi Dep't of Wildlife Conservation, 574 So.2d 586 (Miss. 1990), a terminated conservation
officer appealed his discharge by the Department of Wildlife Conservation. Upon review by the EAB, Gill
was reinstated with full backpay. Id. at 589. The EAB found that Gill had been

      fired for partisan political and personal reasons and that he was not treated with the fairness, justice
      and respect as is demanded by the laws of the State of Mississippi. . . .

Id. at 589-90. This Court upheld the EAB stating that:

      [t]he law protects a politically inactive and unconnected employee the same as one who has positive
      political opinions and affiliations. . . Gill lost his job because he lacked politically powerful affiliations.

Id. at 594.

¶24. Miss. Code Ann. § 25-9-115 (1999) gives the SPB authority to make rules and regulations, but not in
contradiction to §§ 25-9-127 and 25-9-131. Johnson, 682 So. 2d at 369. It is a well settled rule that an
agency's rule-making power does not extend to the adoption of regulations which are inconsistent with
actual statutes. State ex rel. v. Mississippi Public Serv. Comm'n, 538 So. 2d 367, 373 (Miss. 1989),
rather the SPB has the broad responsibility of developing policies which promote a fair employment system.
Id. This authority should not be exercised in derogation of the rights of others. If so, the action is clearly
acting arbitrary and capricious.
¶25. While Tillmon was not terminated from a position, the same reasoning applies to Tillmon. The fact
remains that Tillmon apparently did not have insider contacts as powerful as Colomb's. From the moment it
was known that the position in question would be open, Colomb, as well as everyone else involved, knew
that Colomb would be taking the position. Apparently, Colomb was a friend of the division director, Craig
Thompson. In fact, Craig Thompson did everything in his power to have his friend placed in the open
position. Everything in his power included violating policies and procedures of the state personnel system.
The fact that the agency apparently subsequently attempted to retract and follow procedure as outlined by
SPB does nothing to alter the initial decision of preselection of Colomb over all other possible applicants.
Craig Thompson's responsibility is to follow the laws of the State of Mississippi, not to do whatever it takes
to circumvent those laws to promote his personal interests.

¶26. 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.

                                              CONCLUSION

¶27. The hearing officer found that the State Personnel Board (SPB) procedures were not properly
adhered to in this case by the Department of Health. Preselection of one person for a position of
employment to the detriment of all other applicants in violation of applicable rules is clearly arbitrary and
capricious. We cannot allow this preselection action of the Department of Health to stand. The remedy is to
declare a vacancy, and to order proper compliance with rules, regulations and our statutes in filling that
vacancy. We reverse the judgment of the Washington County Circuit Court and judgment of the Employee
Appeals Board to the extent that it ruled that it lacked jurisdiction to declare a vacancy in the Branch
Director II position at issue, and we remand this case to the Employee Appeals Board with directions that it
enter a judgment declaring the Branch Director II position vacant, and no later than 30 days after that
declaration the Department of Health shall promptly fill the vacancy in the manner prescribed by law. The
Employee Appeals Board may conduct any other necessary proceedings consistent with this opinion.

¶28. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION.

     PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE,
     MILLS, WALLER AND COBB, JJ., CONCUR.
