                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 97-CP-00643-SCT
NORRIS HOLLY
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS

DATE OF JUDGMENT:                              04/02/97
TRIAL JUDGE:                                   HON. GRAY EVANS
COURT FROM WHICH APPEALED:                     SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: JOSEPH A. GOFF
NATURE OF THE CASE:                            CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                   AFFIRMED - 10/22/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                11/12/98




     BEFORE SULLIVAN, P.J., MILLS AND WALLER, JJ.


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:


¶1. This appeal arises from the termination of Norris Holly from his position as a Correctional
Officer, CO-I, at Unit 29 of the Mississippi Department of Corrections (hereinafter MDOC) at
Parchman. On April 21, 1995, CO-I Albert Robinson approached Holly in his car as he neared the
front gate of Parchman at the end of his shift. Robinson had followed Holly to the front gate after
observing Holly speeding and driving recklessly. Holly cursed Robinson and refused to identify
himself, so Robinson called Captain Charles Cole, the Institutional Watch Commander. Holly cursed
Captain Cole and refused to give him his ID. After Holly refused to move his car, Captain Cole
attempted to retrieve Holly's car keys, but Holly shoved and threatened Captain Cole. Upon Major
Gene Crocker's request, Holly moved his car, and a search of the vehicle was conducted, revealing a
pistol under the driver's seat. The officers working in and around the front gate testified that Holly
failed to check his weapon in at the front gate that day, but the weapons log from the front gate was
missing the page from April 21 by the time of Holly's hearing before Employee Appeals Board
Hearing Officer Falton O. Mason, Jr.. Witnesses for Holly testified that they did not hear Holly use
any profanity, nor did they see Holly shove Captain Cole. One witness also stated that she saw an
officer at the front gate hand Holly an object before Robinson arrived. Holly testified that the officers
were lying and implied that there was a conspiracy against him to have him fired. Deputy Sheriff
Aaron Trotter arrived on the scene and took custody of Holly, who was charged with public
profanity, reckless driving, simple assault, and possession of a weapon.

¶2. Superintendent Edward M. Hargett notified Holly of his termination by a letter dated June 19,
1995. The grounds for termination as set out in the notification were:

     Group III, Number 11--Acts of conduct occurring on or off the job which are plainly related to
     job performance and are of such nature that to continue the employee in the assigned position
     could constitute negligence in regard to the agency's duties, to the public or to other state
     employees;

     Group III, Number 9--Threatening or coercing employees, supervisors, or business invitees of a
     state agency or office, including stalking;

     Group III, Number 8--Unauthorized possession or use of firearms, dangerous weapons or
     explosives;

     Group II, Number 1--Insubordination, including, but not limited to, resisting management
     directives through actions and/or verbal exchange, and/or failure or refusal to follow
     supervisor's instructions, perform assigned work, or otherwise comply with applicable
     established written policy;

     Group I, Number 3--obscene or abusive language.

¶3. Holly appealed his termination to the Employee Appeals Board (hereinafter EAB), and on
October 3, 1995, Hearing Officer Mason conducted the hearing on Holly's appeal. Officer Mason
sustained Holly's termination by the MDOC, dismissing Holly's appeal with prejudice, in an October
1, 1995, order. Holly requested a review of Officer Mason's decision by the Full Board. The EAB
affirmed Officer Mason's order based upon a review of the record before it on March 29, 1996. In its
order, the EAB noted that Holly failed to file a brief or a hearing transcript.

¶4. Holly next appealed to the Circuit Court of Sunflower County. Circuit Court Judge Gray Evans
affirmed the decision of the EAB in an order dated March 17, 1997, based upon the limited record
before the circuit court, since Holly failed to have a transcript of the EAB hearing prepared for his
appeal. On March 24, 1997, Holly filed a request for a time extension due to his financial problems
and the murder of his attorney, Cleve McDowell. Holly also filed a motion requesting the circuit
court to reconsider its decision, asserting that he had new evidence in the form of his acquittal in the
criminal charges filed against him in justice court. Judge Evans denied Holly's motion for
reconsideration in an April 2, 1997, order. Holly appeals to this Court, assigning as error the denial of
his request for a time extension, the refusal of the circuit court to consider new evidence, and
application of an improper legal standard in the hearing officer's review of his termination.

                                   STATEMENT OF THE LAW

                                                   I.

    CIRCUIT COURT'S DENIAL OF HOLLY'S REQUEST FOR A TIME EXTENSION
¶5. Holly contends that the circuit court should have granted his request for additional time to file a
brief after his attorney was found murdered and due to financial strain. Holly also argues that the
circuit court's denial of his petition, based upon a limited record, was in error, because he cannot
afford to pay for his hearing transcript. Cleve McDowell, Holly's attorney, was killed on March 13,
1997. 1997 Miss. Laws, Senate Concurrent Resolution 642. Judge Evans entered his order affirming
the EAB's decision on March 17, 1997. Holly filed his motion for a time extension on March 24,
1997, one week after Judge Evans entered his order.

¶6. Appeals from EAB decisions must be made by filing a petition in circuit court and filing a bond to
cover the cost of preparing a transcript of the EAB hearing. Miss. Code Ann. § 25-9-132 (1991). The
petition and bond must be filed within thirty days of receipt of the EAB's final decision. Id. The
EAB's final decision in this case was entered on March 29, 1996. The rules governing the filing of
briefs in the Supreme Court apply to appeals on the record in circuit court. URCCC 5.06. Failure by
the appellant to timely file his brief can result in dismissal of the appeal. M.R.A.P. 31(d). Suspension
of briefing may be ordered when not opposed by either party or "in response to a filing or other
action which affects the record or the briefing process. . . ." M.R.A.P. 31(e). "To the degree that a
trial judge's decision to grant or deny a motion for an extension of time is based upon precept of law,
the standard for this Court's review shall be 'plenary'; otherwise, this Court shall simply apply the
abuse-of-discretion standard." In re Estate of Ware v. Capers, 573 So.2d 773, 776 (Miss. 1990). We
find that the circuit court's refusal to allow Holly an extension of time after final judgment was
entered in the case was not an abuse of discretion.

¶7. Holly maintains that the EAB and circuit court erred in issuing their rulings on his appeal without
the benefit of a transcript of his hearing, which he blames on the inaction of his attorney and his own
lack of finances. However, the burden of providing that transcript is placed upon Holly, as the
appellant in this case. Miss. Code Ann. § 25-9-132 (1991). We have not recognized any right to an
attorney or funds to appeal a decision from the EAB to circuit court or to this Court. The United
States Supreme Court has held that as a general rule, "fee requirements ordinarily are examined only
for rationality. M.L.B. v. S.L.J., 519 U.S. 102, 567 (1996). "The State's need for revenue to offset
costs, in the mine run of cases, satisfies the rationality requirement, see Ortwein, 410 U.S., at 660, 93
S.Ct., at 1174-1175; States are not forced by the Constitution to adjust all tolls to account for
'disparity in material circumstances.'" Id. (quoting Griffin v. Illinois, 351 U.S., 23, (Frankfurter, J.,
concurring in judgment)). The three recognized exceptions to that general rule are fees that prevent
participation in the political process as voters and candidates, fees limiting access to the judicial
process in criminal or quasi-criminal cases, and fees in cases affecting termination of parental rights.
Id. at 568. Even if there were a recognized exception allowing in forma pauperis appeals from
termination proceedings by the EAB, Holly has presented no evidence in the record to prove his IFP
status. With no recognized right to an attorney or funds in his appeal, and no proof of Holly's IFP
status, we find Holly's complaints regarding the loss of his attorney and his economic status
unpersuasive.

                                                   II.

                                          NEW EVIDENCE

¶8. Holly asserts that the circuit court should have remanded his case back to the EAB for
presentation of newly discovered evidence in his case. Specifically, he claims that he has new
evidence in the form of his acquittal of the criminal charges filed against him in justice court. Holly
also attached to his brief a statement from Vera Willis in which she claims that Officers Daisy Neal
and Sandra Seals were threatened with termination by Captain Cole to change their incident reports
to conform with his testimony. Included with Willis's statement is an unsigned and undated statement
allegedly from Seals confirming Willis's allegations.

¶9. In reviewing an appeal from the EAB, the circuit court has authority to remand the cause for a
rehearing "in the event that there is a finding of prejudicial error in the proceedings. . . ." Miss. Code
Ann. § 25-9-132(3) (1991). Rule 60(b) of the Mississippi Rules of Civil Procedure provides relief
from a final judgment or order upon motion of a party showing "newly discovered evidence which by
due diligence could not have been discovered in time to move for a new trial under Rule 59(b)."
Miss. R. Civ. P. 60(b)(3).

¶10. The order of the Sunflower County Circuit Court finding Holly "not guilty" in Cause No. 95-
0203 is dated November 7, 1996. Since the circuit court did not enter its final order in Holly's appeal
from the EAB decision until March 17, 1997, Holly's acquittal in the criminal case is not new
evidence of the type contemplated by Rule 60(b)(3). Furthermore, despite Holly's assertion to the
contrary, the fact that he was acquitted in the criminal case does not mean that his employment
termination based upon the same events was improper. Criminal judgments carry a higher burden of
proof than civil judgments. In re Estate of Mask v. Elrod, 703 So.2d 852, 858 n.2 (Miss. 1997);
Young et al. v. Davis, 174 Miss. 435, 164 So. 586, 586 (1935). As a result, it is possible that the
evidence was sufficient to support Holly's termination while being insufficient to support a criminal
conviction. We hold that the circuit court did not err in refusing to reconsider its decision based upon
the "new evidence" of Holly's acquittal.

¶11. In addition to newly discovered evidence, the circuit court may also reopen a case after final
judgment to consider evidence of "fraud, misrepresentation, or other misconduct of an adverse
party." Miss. R. Civ. P. 60(b)(1). However, the record contains no motion filed by Holly for
reconsideration of the circuit court's decision based upon Vera Willis's statement that witnesses Daisy
Neal and Sandra Seals were threatened by Captain Cole. We have held "that it may not act upon or
consider matters which do not appear in the record and must confine itself to what actually does
appear in the record." American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss. 1995).
"[T]his Court has also consistently held that errors raised for the first time on appeal will not be
considered. . . ." Ellis v. Ellis, 651 So.2d 1068, 1073 (Miss. 1995). Additionally, the fact that the
attached alleged statement of Officer Seals has not been signed or dated makes it unreliable for
purposes of this appeal. As a result, we do hold the trial court in error on this point.

                                                   III.

                                      STANDARD OF REVIEW

¶12. Holly complains that Hearing Officer Mason erred in his ruling, because he applied an improper
standard of review. In his order dismissing Holly's appeal, Hearing Officer Mason stated:

     The Appealing Party has the burden of proving that the action taken by the agency is without
     merit, in error or is arbitrary or capricious. it [sic] is the opinion of the Hearing Officer that the
     Appealing Party has failed to sustain this burden. Further if the agency has acted in accordance
     with the published policies, rule [sic] and regulations of the State Personnel Board, and if the
     personnel action taken by the agency is allowed under the said policies, rules and regulations,
     the Employee Appeals Board shall not alter the action taken.

Section 25-9-127, governing appeals to the EAB, requires the appealing party "to furnish evidence
that the reasons stated in the notice of dismissal or action adversely affecting his compensation or
employment status are not true or are not sufficient grounds for the action taken." Miss. Code Ann. §
25-9-127(1) (1994).

     No employee of any state agency may be dismissed unless there is good cause and after written
     notice and hearing. Miss. Code Ann. § 25-9-127 (Supp.1990). Employees affected by adverse
     decisions may appeal to the Employee Appeals Board (EAB) for de novo hearing, then to
     circuit court for judicial review on the record, and finally to this Court. Miss. Code Ann. §§ 25-
     9-131 and 25-9-132 (Supp.1990). Review by the circuit court is limited to determinations of
     whether the EAB's actions are supported by substantial evidence, are arbitrary or capricious, or
     are in violation of some statutory or constitutional right of the employee. Miss. Code Ann.
     § 25-9-131 (Supp.1990).

Hood v. Miss. Dep't of Wildlife Conservation, 571 So.2d 263, 267 (Miss. 1990).

¶13. As the MDOC points out in its brief, the standard of review applied by Hearing Officer Mason is
synonymous with that set out in § 25-9-127(1). Black's Law Dictionary defines the term "arbitrary
and capricious" as "[c]haracterization of a decision or action taken by an administrative agency or
inferior court meaning willful and unreasonable action without consideration or in disregard of facts
or law or without determining principle." Black's Law Dictionary 105 (6th ed. 1990). "Merits" is
defined as ". . .[t]he substance, elements, or grounds of a cause of action or defense." Id. at 989-90.
Common sense tells us that the term "in error" has the same meaning as "not true." The standard
applied by Hearing Officer Mason, therefore, is synonymous with the statutory standard of review
requiring Holly to prove that the MDOC's reasons for terminating him were not true or insufficient
grounds for termination. We find no merit in this assignment of error.

                                           CONCLUSION

¶14. Holly has presented no claims in his appeal to this Court requiring reversal of his termination of
employment by the MDOC. Throughout the proceedings before the EAB and the circuit court, Holly
was afforded due process of law in this case. Based upon the limited record before the Full Board,
the circuit court, and this Court, we find that sufficient evidence was presented to support the
decision of the MDOC to fire Holly. We therefore affirm the decision of the circuit court.

¶15. AFFIRMED.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE, ROBERTS, SMITH, MILLS AND
WALLER, JJ., CONCUR.
