        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CC-01116-COA

PUSH PHILLIPS                                                              APPELLANT

v.

HANCOCK COUNTY SHERIFF’S                                                   APPELLEES
DEPARTMENT AND ITS HANCOCK COUNTY
CIVIL SERVICE COMMISSION

DATE OF JUDGMENT:                         06/25/2015
TRIAL JUDGE:                              HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:                HANCOCK COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  ANDREW AUSTIN CLARK
                                          RUSSELL S. GILL
ATTORNEYS FOR APPELLEES:                  WYNN E. CLARK
                                          ALBERT LIONEL NECAISE
NATURE OF THE CASE:                       CIVIL - OTHER
TRIAL COURT DISPOSITION:                  AFFIRMED DECISION OF THE HANCOCK
                                          COUNTY CIVIL SERVICE COMMISSION
DISPOSITION:                              AFFIRMED - 09/06/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.

       WILSON, J., FOR THE COURT:

¶1.    Push Phillips was terminated from his position as a deputy sheriff with the Hancock

County Sheriff’s Department because he left the state for approximately thirty-six to forty-

eight hours after Hurricane Katrina made landfall in Hancock County in August 2005. The

Civil Service Commission for the Hancock County Sheriff’s Department affirmed Sheriff

Steve Garber’s decision to terminate Phillips, and the Hancock County Circuit Court

affirmed the commission’s decision. On appeal, Phillips argues that the commission’s
decision was not supported by substantial evidence and was arbitrary and capricious. Phillips

contends that his termination was not in good faith and for cause. He further alleges that he

was fired in retaliation for his prior civil service complaints. Like the circuit court, we

conclude that the commission’s decision, which rejected these claims, was supported by

substantial evidence and was not arbitrary or capricious. Accordingly, we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    In 1990, the Legislature enacted a local and private law establishing a three-member

Civil Service Commission for the Hancock County Sheriff’s Department. The law authorizes

the commission to promulgate rules and regulations regarding all personnel administration

matters within the department, such as hiring, promotions, and disciplinary actions. 1990

Gen. Laws. ch. 802, § 4. The law and its implementing regulations provide that a civil

service employee may be terminated only “for cause” and “not for political or religious

reasons.” Id. § 11. An employee who is terminated by the department has a right to a

hearing before the commission, and if the commission “find[s] that the disciplinary action

was made for political or religious reasons, or was not made in good faith for cause,” it “shall

order the immediate . . . reemployment of such person.” Id.

¶3.    The commission’s rules and regulations provide a non-exclusive list of grounds for

disciplinary action, including the “[w]illful violation of any lawful and reasonable . . . order

or direction made or given by a superior where such violation has amounted to

insubordination or serious breach of proper discipline.”          Hancock County Sheriff’s

Department General Order 3-01 provides that “leaving the work site without permission



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where there exists a threat to life or human safety” is a “Group III offense.” Group III

offenses are considered “most serious” and may result in a reprimand, suspension, demotion,

or termination.

¶4.    Phillips was hired by the Hancock County Sheriff’s Department as a deputy sheriff

in July 2000. Between 2003 and 2005, Phillips made a handful of complaints related to civil

service rules. In 2003, he complained that he had been required to sign an acknowledgment

that he was an at-will employee who could be fired for any reason, which conflicted with his

rights as a civil service employee. In 2004, he complained that, despite his repeated requests,

the department and commission would not provide him with a copy of a current version of

the civil service rules. And in 2005, he alleged that the department allowed another officer

to test for a promotion even though the officer was ineligible for the promotion.

¶5.    On Friday, August 26, 2005, Phillips was on mandatory “comp time leave” because

he had accrued excess compensatory time. However, Major Bobby Underwood, the

department’s chief of patrol, called Phillips that evening and instructed him to report for duty

the next night under the immediate supervision of Lieutenant Chris Russell, a patrol

supervisor. Phillips worked the night shift on patrol under Russell’s supervision on August

27 and 28, 2005, as Hurricane Katrina approached the Gulf Coast.

¶6.    On Sunday night, August 28, 2005, Phillips and the rest of his patrol shift sought

shelter at Russell’s apartment, which was north of Highway 90 in Bay St. Louis. Hurricane

Katrina made landfall in Hancock County early in the morning on Monday, August 29, 2005.

The rising water at Russell’s apartment eventually forced the officers to move to a second



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story apartment. That afternoon, the water began to recede, and Russell and Phillips decided

to try to walk to the sheriff’s office. On the way, they met Major Underwood and another

officer, who were in a van. Underwood gave Russell and Phillips a ride to the sheriff’s

office. Captain Joe Herrin, the department’s captain of patrol, told the officers who were

able to reach the office to wait there for further instructions.

¶7.    On Tuesday, August 30, 2005, Phillips and Russell joined other officers who were

using a school bus to transport stranded citizens and deliver supplies to shelters and hospitals.

Later that day, Phillips asked Captain Herrin for permission to retrieve his truck, which he

thought could be of use, from a friend’s house in the northern part of the county. Captain

Herrin gave Phillips permission to retrieve the truck. When Phillips and Russell returned in

Phillips’s truck, they asked Captain Herrin for permission to check on Phillips’s wife, who

was working at a local nursing home, and to check on Russell’s family in Biloxi. Again,

Captain Herrin granted permission.

¶8.    Phillips testified that by Tuesday evening, his “wife was going through a lot of mental

duress” and was “actually freaking out,” so he felt like he should take her to stay with her

mother in Florida, which is where their children were staying. On Wednesday, August 31,

2005, Phillips asked Russell for permission to take his wife to Florida, promising to be gone

no more than thirty-six hours. Russell and Phillips both testified that Russell gave Phillips

permission to take his wife to Florida.

¶9.    Phillips took his wife to Florida on Wednesday and returned to Hancock County on

Thursday, September 1, 2005. When he returned, Phillips contacted Russell for instructions,



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but Russell told him to report to Investigator Andre Fizer. Fizer told Phillips to report back

to work the next day.

¶10.   On Friday, September 2, 2005, Phillips and Fizer went to Walmart to pick up portable

radios and other supplies. In the Walmart parking lot, Sheriff Garber pulled Phillips aside

and fired him on the spot for leaving the county during a state of emergency. Phillips

testified that he tried to explain to Garber that Russell had given him permission to leave, but

Garber responded, “You have been a thorn in my side with all of these Civil Service

complaints that you have made, and now that it is a state of emergency, I can hire and fire

at will. Turn in your s— and get the f— out. You’re fired.”

¶11.   Sheriff Garber denied making any such statements to Phillips. Garber testified that

he simply told Phillips that he was terminated because he left the county during an

emergency. Garber testified that Phillips was “a good officer” and that he had “nothing

personal against him,” but he violated a “policy” that “was clear.”

¶12.   On September 14, 2005, Phillips’s attorney wrote to counsel for the commission and

requested Phillips’s immediate reinstatement on the ground that his termination by Sheriff

Garber violated due process and the commission’s rules. On November 21, 2005, Phillips

filed a formal notice of appeal and demand for investigation and reinstatement with the

commission. On January 3, 2006, Sheriff Garber provided Phillips with a memorandum

informing him of the reason for his termination. The memorandum stated in part: “[Y]ou

violated . . . General Order 3-01 III Group III Offense 3.(M.) Leaving the work site without

permission where there exists a threat to life or human safety. In other words you left your



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post when this County was in the middle of the wors[t] cris[i]s in [its] history.”

¶13.   On January 13, 2006, Phillips filed an appeal in circuit court. Phillips argued that he

was entitled to bypass the commission because, in the aftermath of Hurricane Katrina, a

quorum of the commission could not be located to hold a hearing. Apparently, there was

little or no action in the case for more than five years. In 2011, Phillips and the commission

filed a joint motion to remand the case to the commission for a hearing, which the circuit

court granted on May 9, 2011.

¶14.   On October 1, 2013, the commission held a hearing on Phillips’s termination. At the

time of the hearing, Phillips was a lieutenant and patrol commander for the Bay St. Louis

Police Department. He began working for the Bay St. Louis Police Department in November

2006 after being unemployed for approximately thirteen months. Phillips asked the

commission to overturn his termination and reinstate him to his former position. He also

requested backpay as compensation for approximately nine months of his unemployment.

¶15.   At the hearing, Garber testified that at the time he terminated Phillips he did not know

that Russell had given Phillips permission to leave Hancock County. In fact, until the

hearing, Garber believed that Phillips had not been on duty at any time between Hurricane

Katrina’s landfall and Friday, September 2, 2005.

¶16.   Russell and Phillips both testified that they believed that Russell had the authority, as

Phillips’s immediate supervisor, to give Phillips permission to leave the county. However,

Sheriff Garber denied that Russell had such authority. Garber testified that only Major

Underwood, as chief of patrol, or Captain Herrin, as captain of patrol, could have given



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Phillips permission to leave. Garber testified that he would have terminated Phillips even

if he had known all of the facts that were brought out at the hearing. In Garber’s view,

leaving the county without proper authorization (from himself, Major Underwood, or Captain

Herrin) during a state of emergency was an offense that required termination.

¶17.   In November 2013, the commission denied Phillips’s request for reinstatement by a

2–1 vote. In its order, the commission found that Phillips violated General Order 3-01 and

that he was terminated in good faith for cause, not for political reasons.

¶18.   Phillips appealed the commission’s decision to the circuit court, arguing that there was

not substantial evidence that his termination was made in good faith and for cause and that

the commission’s decision was arbitrary and capricious. On June 26, 2015, the circuit court

affirmed the commission’s decision. The court concluded that there was substantial evidence

to support the commission’s finding that Phillips violated General Order 3-01 by leaving his

post without obtaining permission from an appropriate person and that Phillips’s termination

was in good faith for cause, not for political reasons. Phillips filed a timely notice of appeal

from the final judgment of the circuit court.

                                       DISCUSSION

¶19.   On appeal, Phillips argues that the commission’s decision was arbitrary and capricious

and was not supported by substantial evidence. He argues that Garber did not terminate him

in “good faith for cause” because Russell gave him permission to leave the county. He also

argues that “Garber could have reprimanded or suspended [him] rather than terminating

him.” Finally, he argues that Garber fired him for “political reasons,” i.e., his prior civil



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service complaints.1

¶20.   “A discharged police officer may appeal his or her termination to a civil service

commission, which shall determine whether the decision to terminate the officer ‘was or was

not made for political or religious reasons and was or was not made in good faith for cause.’”

Renfro v. City of Moss Point, 156 So. 3d 913, 917 (¶18) (Miss. Ct. App. 2014) (quoting Miss.

Code Ann. § 21-31-23 (Rev. 2007)). Thereafter, the officer may appeal the commission’s

decision to the circuit court. City of Vicksburg v. Lane, 11 So. 3d 162, 164 (¶10) (Miss. Ct.

App. 2009). “The circuit court is prohibited from making credibility determinations of the

evidence or testimony that was presented to the civil service commission.” City of Laurel

v. Brewer, 919 So. 2d 217, 221 (¶15) (Miss. Ct. App. 2005). A reviewing court “is limited

to determining whether the act of the commission was or was not made in good faith for

cause.” City of Vicksburg, 11 So. 3d at 164 (¶10).

¶21.   “This Court follows the same standard of review as the circuit court and evaluates

whether the commission’s ruling is supported by substantial evidence.” Patterson v. City of

Biloxi, 965 So. 2d 765, 766 (¶6) (Miss. Ct. App. 2007). “This Court is not to determine

issues of fact regarding whether an employee was guilty of the charge or not, but should only

determine whether the commission acted in good faith based on the evidence before it.” City

of Laurel, 919 So. 2d at 222 (¶15). Therefore, we will uphold the commission’s decision



       1
        In his initial demand for reinstatement and appeal to the circuit court, Phillips also
argued that his verbal termination without a written statement of reasons or a pre-termination
hearing violated due process and the commission’s rules. However, after the circuit court
granted the parties’ joint motion to remand the case to the commission for a hearing, Phillips
challenged only the substance of the department’s decision to terminate him.

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unless it is not supported by substantial evidence or is arbitrary or capricious. See, e.g., City

of Jackson v. Froshour, 530 So. 2d 1348, 1355 (Miss. 1988).

¶22.   In the present case, the commission’s decision upholding Phillips’s termination was

supported by substantial evidence and was not arbitrary or capricious. Phillips admitted that

he left his post—indeed, left the State—in the aftermath of Hurricane Katrina. Katrina is

recognized as the most destructive hurricane in the history of this State, and Hancock County

suffered some of the most severe damage. Devastation was widespread in Hancock County

in the hurricane’s aftermath, with some communities essentially destroyed and large areas

covered by water. Phillips’s departure under these circumstances was a violation of General

Order 3-01, which provides that an employee may be terminated for “leaving the work site

without permission where there exists a threat to life or human safety.” Such a violation is

cause for termination under the rules and regulations of the department and the commission.

¶23.   Phillips argues that he did not violate General Order 3-01 because Lieutenant Russell

gave him permission to leave the state, and both Phillips and Russell testified that Russell

had authority to allow Phillips to leave. However, Sheriff Garber testified that only Captain

Herrin and Major Underwood had authority to permit an officer to leave the county in the

aftermath of Katrina. Moreover, parts of Phillips’s own testimony tended to support Sheriff

Garber’s position. As noted above, Phillips testified that on two prior occasions he had asked

Captain Herrin for permission to leave his post—once to get his truck and once to check on

his wife at her place of work. Phillips did so even though Russell was present on both

occasions. A reviewing court does not reweigh the evidence presented to the commission.



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City of Laurel, 919 So. 2d at 221 (¶15). Nor are we “empowered to supervise the

intelligence, wisdom or fairness” of the decision to terminate Phillips rather than reprimand

or suspend him. City of Jackson, 530 So. 2d at 1355. Rather, we ask only whether “there

exists credible evidence” to support that decision. Id. There was credible evidence that

Phillips left the State in the midst of an emergency situation without first obtaining

permission from an appropriate person. Under the rules of the department and commission,

this offense subjected him to termination. Accordingly, the circuit court properly affirmed

the commission’s decision.

¶24.   Phillips also argues that Sheriff Garber fired him for “political reasons,” i.e., in

retaliation for his prior civil service complaints. However, Sheriff Garber denied that he

terminated Phillips for that reason or made the statements that Phillips attributed to him.

Sheriff Garber testified that he fired Phillips solely because he abandoned his post without

proper permission in the aftermath of Hurricane Katrina. It was up to the commission to

determine whose testimony was more credible. See City of Laurel, 919 So. 2d at 221 (¶15).

Accordingly, the circuit court properly affirmed the commission’s determination that Phillips

was not fired for political reasons.

                                       CONCLUSION

¶25.   The commission’s decision affirming Phillips’s termination and denying his request

for reinstatement was supported by substantial evidence and was not arbitrary or capricious.

Therefore, we affirm the judgment of the circuit court upholding the commission’s decision.

¶26. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE

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APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND GREENLEE, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.




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