                           IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2001-CA-00250-SCT



DANNY COWART
v.
SIMPSON COUNTY SCHOOL BOARD



DATE OF JUDGMENT:                                1/12/2001
TRIAL JUDGE:                                     HON. J. LARRY BUFFINGTON
COURT FROM WHICH APPEALED:                       SIMPSON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                         JOHN L. MAXEY, II

                                                 SHARON MARIE GARNER
ATTORNEY FOR APPELLEE:                           DOUGLAS M. MAGEE
NATURE OF THE CASE:                              CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                     VACATED AND REMANDED - 06/06/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                  6/27/2002



     BEFORE SMITH, P.J.,WALLER AND COBB, JJ.

     COBB, JUSTICE, FOR THE COURT:




¶1. Danny Cowart was employed as a teacher and coach at Magee High School in Simpson County,
Mississippi. Five days after an altercation between Cowart and the Magee High School principal, Cowart
was notified by the Simpson County Superintendent of Education, Jack McAlpin, that he had
recommended Cowart's termination. At Cowart's request, a hearing was held before the Simpson County
School Board (the Board) on June 28, 1998, and the Board terminated Cowart's contract. Cowart
appealed to the Simpson County Chancery Court pursuant to Miss. Code Ann. § 37-9-113 (2001).

¶2. By order dated August 19, 1998, following a hearing on Cowart's motion for stay pending appeal, the
chancellor granted the stay, finding that the hearing before the Board did not conform with due process
requirements. He remanded the case to the Board for a rehearing, to be conducted in compliance with the
statutory and constitutional laws of the State of Mississippi and the United States of America, and ordered
that a hearing officer be appointed as provided by statute. Pursuant to the chancellor's ruling, the Board
reinstated Cowart's pay and benefits, but relieved him of duties pending a proper hearing, and appointed a
hearing officer who conducted the rehearing on December 21, 1998. Once again, the Board terminated
Cowart's contract.

¶3. Cowart did not appeal the Board's final decision to the chancery court. Instead, on February 19, 1999,
he filed a motion for contempt against the Board, alleging it had violated the chancery court's August 19
order on motion to stay. The Board responded, saying that that the chancery court lacked jurisdiction
because Cowart had not appealed the Board's final decision within twenty days as mandated by Miss.
Code Ann. § 37-9-113. Following a motion hearing, conducted on April 12, 1999, the chancery court
found that the Board was not in contempt, but ordered the Board to pay Cowart's salary for January and
February of 1999. The Board appealed that order to this Court, Cowart moved to dismiss the appeal, and
on May 4, 2000, we granted his motion to dismiss.(1)

¶4. On January 12, 2001, the chancery court entered a final judgment upholding Cowart's termination.
Aggrieved, Cowart appeals, raising two assignments of error, which have been edited for clarity:

     I. DID THE BOARD PROVIDE A FAIR AND IMPARTIAL HEARING?

     II. DID COWART'S ACTIONS JUSTIFY TERMINATION FOR "OTHER GOOD
     CAUSE "?

¶5. The Simpson County School Board cross appeals raising four assignments of error, similarly edited:

     III. DID COWART FAIL TO TIMELY APPEAL THE DECEMBER 21, 1998 FINAL
     DECISION OF THE SCHOOL BOARD?

     IV. DID THE CHANCERY COURT HAVE JURISDICTION TO HEAR COWART'S
     MOTION FOR CONTEMPT?

     V. WAS THE CHANCELLOR'S FINAL JUDGMENT MANIFESTLY WRONG?

     VI. WAS THE CHANCELLOR MANIFESTLY WRONG IN ESTABLISHING
     COWART'S DISMISSAL DATE AS MARCH 1999?

¶6. We conclude that because Cowart did not appeal within 20 days following the Board's December 21,
1998, final decision dismissing him from employment as of that date, the chancery court had no jurisdiction
after January 10, 1999. Because this issue is dispositive, we do not address the others.

                                                  FACTS

¶7. Danny Cowart's tenure as both coach and athletic director at Magee High School was quite successful.
His 1997-1998 football team had a record of 14-1 and won the Mississippi AAA State Championship. He
had just signed a new contract for the 1998-1999 scholastic year approximately a week before the
altercation that led to his termination.

¶8. According to Cowart, there was a single angry confrontation between Cowart and his principal, Sidney
Lee, which took place within the office of the principal when no one else was present, after the last school
session had ended and at a time in Cowart's life when he was under a good deal of stress. The exchange
lasted about five minutes. Cowart admitted that he called Lee a son of a bitch and that he should not have
done so. He also admitted that he was irritated but not angry, and that he shook his finger at Lee, but did
not recall touching Lee's nose.

¶9. Lee's description of the encounter differed. He stated that Cowart was out of control when he came
into Lee's office in an angry and agitated manner, and that when Cowart shook his finger in Lee's face, he
struck Lee on the nose with his finger. Lee reported the incident to Superintendent McAlpin, and Lee's
secretary, who was in the office adjoining Lee's, corroborated Lee's report. McAlpin did not talk to
Cowart, but rather decided to make his recommendation to terminate Coward based on the descriptions of
the incident given to him by Lee and his secretary, saying he believed Cowart's behavior to be totally
unacceptable.

¶10. At the first hearing conducted by the Board, Superintendent McAlpin participated as, in the words of
the chancellor, a major "prosecution witness" to support the firing of Cowart. Following the close of the
public hearing, when the Board members went into executive session, McAlpin and Board attorney Doug
Magee were present, but Cowart was not. McAlpin participated in those deliberations, and a majority of
the Board members voted to uphold McAlpin's recommendation to terminate Cowart's employment.
Cowart claimed that the presence and participation of McAlpin during the Board's deliberations in executive
session tainted the impartiality of the proceedings and denied him his statutory and constitutional right to due
process.

¶11. On appeal, the chancellor agreed, stating: "This clearly is in violation of the due process rights of
Coach Cowart in that [sic] by Mr. McAlpin being present and able to address questions and make
statements to the Hearing Board without Coach Cowart having the right to cross-examine or to present
additional testimony to rebut anything Mr. McAlpin said. In effect, the Board let the fox in the hen house."
The chancellor remanded the case to the Board for a rehearing, to be conducted by a hearing officer, in
conformity with due process requirements.

¶12. Nancy Maddox was appointed to be the hearing officer and she conducted the second hearing before
the Board. In her "Report and Recommendation of the Hearing Officer," she referred primarily to Principal
Lee's testimony describing the incident. Maddox also noted that Lee's secretary generally corroborated
most of Lee's version of the events that transpired that day, and noted McAlpin's testimony regarding what
Lee and his secretary told him. Finally, Maddox compared Cowart's version of the events to the version
described by the others, and after finding that Cowart's language was "abusive and inappropriate, and
touching Mr. Lee while shaking his finger at him is an assault", Maddox concluded that the decision to
terminate Cowart's employment was a proper decision. The Board agreed and in its Final Decision, by a
unanimous vote, dismissed Cowart effective December 21, 1998, for good cause. As previously noted,
Cowart did not appeal this decision by the Board, but instead, after two months had passed, he filed a
collateral attack, a motion for contempt against the Board, which was subsequently denied by the chancery
court.

¶13. Eventually the chancellor handed down his Final Judgment on January 12, 2001, concluding that he
had no alternative but to affirm the decision of the Board, even though he felt the matter could have been
handled in a far less critical manner, i.e., suspension or reprimand.

                                        STANDARD OF REVIEW

¶14. Our scope of review of employment decisions made by a school district is quite limited. "We accept
our duty of deference to the hearing officials and this is no different when those officials are the ultimate legal
authority for the school district." Hoffman v. Board of Trustees, 567 So.2d 838, 842 (Miss. 1990). "We
look to see whether the decision of the Board is supported by substantial evidence, was arbitrary or
capricious, was beyond the power of the Board to make, or violated some statutory or constitutional right
of the complaining party." Id. "Most assuredly, by way of contrast, the test is not what we would have
decided had we been the trier of the issues in dispute." Id.

                                                DISCUSSION

¶15. The Board argues that because Cowart did not perfect an appeal from the final decision of the Board
after the second hearing, within twenty days as required by Miss. Code Ann. § 37-9-113, the chancery
court was without jurisdiction to entertain any future motions and thus all subsequent orders issued by the
chancellor are null and void. In response, Cowart argues that the chancery court "maintained jurisdiction"
over this cause pursuant to his July 6, 1998, appeal and the subsequent order on motion for stay.

¶15. The chancery court's final judgment of January 12, 2001, states:

      For the purposes of background it should be noted that the order on the motion for stay was granted
      pending a final disposition. The Court subsequently in the same order remanded to the school board
      said case for the purposes of conducting a hearing as set forth in that order. That the order [sic] nor
      did this Court at any time dismiss the appeal filed therein by Danny Cowart and, in fact, only
      remanded until such time as the Court could have a final hearing on this matter.

      That subsequent thereto there was a motion to compel, as well as various motions filed by the school
      board concerning the hearing that was conducted as a result of the remand in which there was a
      question as to whether Mr. Cowart had failed to timely file a notice of appeal as to the remand
      hearing. Of course, this matter was only remanded to the school board for a hearing thereon
      and was to be returned to this Court for a final hearing on the merits at the conclusion of
      that hearing. This order is a result of that prior order issued by the Court on August 19, 1998
      remanding the case and done in compliance with the statutes provided for hearings or appeals of the
      actions of the Simpson County School Board in this cause.

(emphasis added). However, a careful reading of the August 19, 1998, order on motion for stay(2), to
which the chancellor is referring, reveals no mention of retaining jurisdiction, or the case being returned to
the chancery court for a final hearing on the merits, or anything remotely related. Although it is possible that
this intent or expectation was verbalized, there is nothing in the record to so indicate. Be that as it may, it
makes no difference. Pursuant to the statute, the chancellor has no authority to retain jurisdiction over a
matter he has remanded for a rehearing before the school board, nor does he cite any authority for doing
so.

¶16. Grounds and procedures to be followed for dismissal or suspension of licensed employees such as
Coach Cowart, are found in Miss Code Ann. § 37-9-59 (2001) and provide for hearings before the board
or a hearing officer. That same section sets forth procedures to be followed by a licensed employee
aggrieved of the decision made at the hearing, as follows:

      . . . From the decision made at said hearing, any licensed employee shall be allowed an appeal to the
      chancery court in the same manner as appeals are authorized in Section 37-9-113.(3) Any party
      aggrieved by action of the chancery court may appeal to the Mississippi Supreme Court as provided
      by law.

Miss. Code Ann. § 37-9-59 (2001) (emphasis added.)

¶17. In Bowman v. Ferrell, 627 So.2d 335 (Miss. 1993), a school teacher who was terminated by the
school board appealed that decision claiming she was denied due process. The chancery court agreed,
reversed the ruling of the school and ordered reinstatement of the school teacher. Id. at 336. On appeal to
this Court, we reversed and remanded the judgment of the chancery court, concluding it was error to
reinstate the teacher for a finding of prejudicial error during her proceedings. We went on to say that the
statutorily mandated remedy is to remand the case for a new hearing before the school board, relying on
Miss. Code Ann. § 37-9-113.

¶18. In the case sub judice, on December 21, 1998, the Board handed down its final decision after the
second hearing. Instead of appealing that final decision to the chancery court within twenty days, as is
required by the statute, Cowart waited almost two months, and then filed a motion for contempt. That
motion was procedurally barred because the chancery court lacked jurisdiction to entertain that, or any
other, motion.

¶19. The statute only allows the chancery court to review whether the final decision of the Board was
supported by substantial evidence, was arbitrary or capricious, or violated a constitutional or statutory right.
Further, the statute does not authorize the chancery court to retain jurisdiction over a matter while it sends
the matter back to a school board for rehearing. The Board's decision after the second hearing was a "final
decision," not an advisory opinion. The statute provides that an employee aggrieved by "final decision" of a
school board may appeal that decision within twenty days to the chancery court. Cowart could have done
so, but he did not. Therefore, the Board's final decision of December 21, 1998, is final, and all subsequent
orders issued by chancery court subsequent to that final decision are a nullity.

                                              CONCLUSION

¶20. Cowart's failure to perfect his appeal from the Board's final termination decision of December 21,
1998, within the statutorily mandated twenty-day period means that all of his subsequent motions and
appeals are procedurally barred. Therefore, we vacate the judgment and all orders entered by the chancery
court subsequent to that final decision and remand to the chancery court with instructions to dismiss with
prejudice Cowart's motion for contempt of February 19, 1999, and all other motions filed subsequent to
December 21, 1998, for lack of jurisdiction.

¶21. VACATED AND REMANDED.

      PITTMAN, C.J., SMITH, P.J., WALLER, DIAZ, CARLSON AND GRAVES, JJ.,
      CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
      McRAE, P.J., NOT PARTICIPATING.

1. However, we did not rule on whether the chancellor continued to have jurisdiction over this matter,
stating:

      The panel finds that the order from which the Simpson County School Board appeals is interlocutory
      in nature and is not a final appealable order. However, the panel makes no finding on the issue of
      whether the chancellor continued to have jurisdiction over this matter after Cowart failed to file a new
      notice of appeal after the second school board hearing. If necessary, that issue may be addressed by
      the Court upon a proper final appeal.

2. The chancellor apparently not only ruled on the motion for stay, but also, after finding that Cowart was
entitled to a proper hearing by the Board, went on to state "that it would be in the best interest of all parties
to go ahead and remand to the School Board for purposes of conducting a hearing allowing Mr. Cowart all
of his statutory and constitutional rights." The chancellor "[r]ecognizes that a final hearing on this matter has
not been had, however by the Board's own admission Mr. McAlpin and Mr. Magee were present and this
Court feels that in the interest of time, justice and expense that it would be better to remand at the present
time rather than wait until a final hearing on the matter is held." He goes on to say that "the prejudicial
procedural defects cannot be overlooked", and "should be addressed now so that the tax dollars being
spent . . . . can be kept to a minimum..." No objection was made to this expedited procedure.

3. Miss. Code Ann. § 37-9-113 (2001) provides for judicial review of any decision adverse to any school
employee, licensed or otherwise, as follows:

      (1) Any employee aggrieved by a final decision of the school board is entitled to judicial review
      thereof, as hereinafter provided.

      (2) An appeal may be taken by such employee to the chancery court of the judicial district in which
      the school district is located, by filing a petition . . . within twenty (20) days of the receipt of the
      final decision of the board.

      (3) The scope of review of the chancery court in such cases shall be limited to a review of the record
      made before the school board or hearing officer to determine if the action of the school board is
      unlawful for the reason that it was:

      (a) Not supported by any substantial evidence;

      (b) Arbitrary and capricious; or

      (c) In violation of some statutory or constitutional right of the employee.

      (4) No relief shall be granted based upon a court's finding of harmless error by the board in complying
      with the procedural requirements of Section 37-9-101 through 37-9-113. However, in the event
      that there is a finding of prejudicial error in the proceedings, the cause shall be remanded
      for a rehearing consistent with the findings of the court.

      (5) Any party aggrieved by action of the chancery court may appeal to the Supreme Court in the
      manner provided by law.
