        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-SA-00972-COA

SAMMY WILLIAM RAY                                                         APPELLANT

v.

MISSISSIPPI DEPARTMENT OF PUBLIC                                            APPELLEE
SAFETY

DATE OF JUDGMENT:                         05/23/2013
TRIAL JUDGE:                              HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JEFFERY P. REYNOLDS
ATTORNEY FOR APPELLEE:                    TIMOTHY DAVIS SMITH
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION:                  AFFIRMED TERMINATION
DISPOSITION:                              REVERSED AND REMANDED - 10/21/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       BARNES, J., FOR THE COURT:

¶1.    Trooper First Class Sammy Ray joined the Mississippi Highway Safety Patrol (a

component of the Department of Public Safety and hereafter referred to as the “Highway

Patrol” or the “Department”) in 2003. During the summer of 2009, Ray issued tickets to four

motorists, which formed the basis of charges leading to his dismissal from the Highway

Patrol for falsifying documents. Ray appealed the dismissal to the Employee Appeals Board

(EAB), where the hearing officer upheld the termination. Ray appealed to the full EAB,

which also affirmed his termination. Ray next appealed to the Hinds County Circuit Court,

which likewise affirmed the EAB’s decision.
¶2.    Ray now appeals to this Court, claiming wrongful termination and seeking

reinstatement. Ray raises four issues on appeal:

       1.     A Mississippi Department of Employment Security ruling that Ray had
              not committed misconduct collaterally estopped the Department of
              Public Safety from finding that Ray falsified records.

       2.     The hearing officer erroneously considered evidence other than the four
              tickets with which Ray was charged and upheld the termination on the
              basis of the uncharged conduct.

       3.     The termination was based on the wrong legal standard, which removed
              the intent-to-defraud element.

       4.     The EAB ruling was not supported by substantial evidence.

              A.     There was no record support for the four specific violations.

              B.     Ray’s conduct was distinguishable from other cases involving
                     termination.

Upon review, we agree that Ray was terminated for conduct other than that with which he

was charged and that his due-process rights were violated. The Department has conceded

that it has no other proof of the specific charged offenses, and we further find there is no

substantial evidence to support the EAB’s ruling. See LaCour v. Claiborne Cnty. Sch. Dist.,

119 So. 3d 1128, 1132 (¶20) (Miss. Ct. App. 2013) (An administrative agency’s decision will

not be disturbed “unless the order . . . is not supported by substantial evidence[.]”).

Accordingly, we reverse the circuit court’s decision, upholding Ray’s termination, and

remand for further proceedings consistent with this opinion.

                                         FACTS

¶3.    The charges against Ray were limited to his encounters with four specific motorists:




                                             2
Kacie Patterson, Joshua Ulmer, William Thomas, and Sandra Carpenter.1 Ray was charged,

on these four specific occasions, with falsification of records by using personal information

from the motorists he stopped and ticketed, to write additional “ghost tickets.”            The

Performance Review Board, which terminated Ray, made no findings of fact, other than that

the charges were “founded.”

¶4.    Between his termination in January 2010, and his hearing before the EAB hearing

officer in January 2011, Ray had a hearing before the Mississippi Department of

Employment Security (MDES). Ray was awarded unemployment benefits. The Highway

Patrol appealed, and an administrative law judge found that the Highway Patrol had failed

to prove by clear and convincing evidence that Ray had engaged in misconduct and affirmed

the award of unemployment compensation to Ray.2

¶5.    Ray received a de novo trial before an EAB hearing officer, where the following facts

were developed. Although there is no regulation defining “ghost tickets,” testimony at Ray’s

hearing established that it was generally understood to mean a trooper’s writing of tickets for

offenses that never occurred.3 There are no regulations forbidding writing ghost tickets, but

the parties agree that writing tickets for fictitious offenses is falsification of records and is



       1
         Although the motorists were not named in the “narrative Statement of Charges”
served on Ray, the Department’s witnesses testified that the charges against Ray were
limited to these four named motorists.
       2
        Ray was thereafter hired as a police officer by the Petal Police Department, having
denied falsifying tickets and passing a polygraph examination that questioned him on the
reasons for his termination from the Highway Patrol.
       3
         In Highway Patrol lore, it apparently began with troopers visiting a cemetery and
getting names for tickets from tombstones.

                                               3
a terminable offense. Throughout these proceedings, Ray has denied doing this.

¶6.    During Ray’s termination proceedings, the Department identified four prior instances

of troopers writing ghost tickets, which led to their terminations. Ronald Wilburn was

terminated in 1996, for writing tickets for offenses that had not occurred to motorists after

they left traffic stops, which he would then attempt to dismiss after they were turned in to the

court. This resulted in motorists having charges lodged against them of which they had no

notice. Wilburn’s termination was upheld in Wilburn v. Mississippi Highway Safety Patrol,

795 So. 2d 575, 578 (¶11) (Miss. Ct. App. 2001). William Berry was terminated in 1999, for

issuing numerous tickets to individuals who were unaware that they were being given a

ticket. An audit of Berry’s tickets for a five-month period revealed that 212 out of 345

citations fell into this category. Berry would turn the tickets in to the court, and the motorists

would have to pay fines for offenses of which they were unaware. John Butcher was

terminated in 2002, for turning in reports to his supervisors claiming 537 tickets written

while only filing four tickets with the court. Jerry Merrill was terminated in 2009, for

fondling a female motorist’s breast during a traffic stop, not turning over seized drugs, and

writing tickets days after a motorist had been stopped that were not for legitimate offenses.

¶7.    The Department contended that Ray also had written “ghost tickets” for which there

was no valid offense, in an attempt to “pad” or increase his ticket numbers. Ray was accused

of violating Department of Public Safety General Order 23/01, III, B., 3, d.4 The offense

outlined in this section is the: “falsification of records, such as, but not limited to, vouchers,



       4
        The investigation began after a review was conducted of the ticket-writing practices
for Ray’s Troop, Troop J, which followed the termination of Trooper Jerry Merrill.

                                                4
reports, leave records, employment applications, or other official state documents.” The

penalties for a group III offense include termination.5

¶8.     All witnesses testified that there is no “quota system” requiring troopers to write a

certain number of tickets. The testimony at the hearing made it abundantly clear, however,

that troopers felt pressure from their supervisors to “keep their numbers up.” Department

witnesses testified that this simply meant “do your job” and that there were plenty of offenses

on the roads justifying tickets for diligent troopers. A former trooper testified that troopers

could be punished for not keeping their number up by being put on “directed patrol” or “line

patrol.” 6

¶9.     There are four copies of each sequentially numbered ticket written. One copy goes

to the Commissioner of the Highway Patrol; one copy goes to the justice court; one copy is

the officer’s copy which goes to his master sergeant along with the trooper’s ticket-control

sheet; and the final copy is for the motorist. The ticket-control sheet lists all tickets, whether

they are voided or not.

¶10.    Ray testified that, on occasion, he would write “warning” tickets, and that for these

warning tickets, Ray would write “void” on the justice court and Commissioner’s copies and

not write “void” on the motorist copy or the copy turned in to the master sergeant. Since his

tickets to the justice court were “voided,” no adverse consequences were possible for the



        5
         Ray was also charged with insubordination for showing up to work an accident out
of uniform. Although Ray admitted this infraction, it was not a terminable offense and is not
at issue in this appeal.
        6
        This required the trooper to be at designated places during his shift and to report his
location throughout his shift.

                                                5
motorists. Ray would shred the undelivered motorist’s copy of his voided tickets. Ray and

other witnesses testified that it is a common practice, when giving out warning tickets, not

to hand the ticket physically to the motorist because it causes confusion about whether the

motorist had to respond to the ticket. Ray did not conceal that he was writing “void” tickets.

Although he failed to write “void” on the tickets he turned in to his master sergeant, he did

indicate that the tickets were voided on his ticket-control sheets that accompanied the actual

copies of the tickets. Ray presented the testimony of several former troopers, some in

supervisory positions, that it was a generally accepted practice to write warning tickets and

then “void” the ticket when it was turned in to the justice court so that the motorist faced no

penalties. Witnesses testified that this was done as a good-will “community relations” tool.

Ray, and other witnesses, testified that they also did this on occasion when they were not

“100% sure” that an offense had been committed (e.g., thinking that a motorist was not

wearing a seat belt, but upon stopping, the motorist had the seat belt on and told the trooper

that he or she had been wearing it).

¶11.   Retired Colonel Michael Berthay testified that warning tickets were not issued by

troopers, but every other witness testified that it was a common practice. An email dated

October 19, 2009, from Major Rusty Brill to “all Captains” discusses the practice of writing

warning tickets and states that it will no longer be done while troopers are on “call back.” 7

Thus, the discontinuance of the practice of writing and voiding warning tickets was discussed

in October 2009, indicating it was not forbidden during the time Ray wrote the tickets that



       7
           “Call backs” are when troopers work overtime shifts, and they involve federal
funding.

                                              6
led to his charges.8 Colonel Berthay testified that even a warning ticket should never be

written if an officer is not certain an offense took place, but he also testified that, if a ticket

had been written that an officer was not sure of, then it should be “voided.”

¶12.   Ray’s former coworkers and supervisor testified that he was a very competent and

professional trooper. Don Berry, lieutenant colonel and deputy director of the Uniform

Division of the Highway Patrol, testified that Ray’s personnel file indicated that he had been

promoted, had received a commendation and an award, and had received complimentary

letters from citizens concerning his professionalism.

¶13.   Ray testified that he did not recall the four sets of tickets at issue, and the Department

put on no proof that the tickets Ray voided for Patterson, Ulmer, Thomas, and Carpenter

were “ghost tickets” for offenses Ray did not observe. Instead, the Department relied on

statements Ray made to the investigator about other tickets he had written over his six-year

career. In his October 26, 2009 written statement, Ray stated:

       During this interview I have admitted to the writing of 20-25 tickets that were
       seat belt tickets and some of the tickets that I issued were not valid tickets (seat
       belt tickets). These tickets were turned in to the [j]ustice [c]ourt and turned in
       along with my weekly reports. All seat belt tickets were voided when they
       were turned in to [j]ustice [c]ourt.

A transcript of the October 26 recorded interview, played at the hearing, shows:

       Q:      Okay, so, just to make sure that what we are talking about it – you
               make a – you make a good actual stop for say speeding and the
               individual has their seat belt on and you just write a no seat belt



       8
          The email reads: “No warning tickets issued on Call Backs period. If you want to
warn someone then give them a verbal warning. I think that this will be a good policy for
all tickets, no warnings or voided tickets issued either write them or let them go with a verbal
warning.”

                                                7
                violation and void it?

         RAY: Yeah.

         ...

         Q.     And you count those on your activity sheet?

         RAY: Yeah.

¶14.     In his November 13, 2009 written statement, Ray stated: “During the time I have been

employed with the [Department], I have written 20-25 tickets that may or may not be factual

tickets. These tickets were seat belt violations. This was done to increase my ticket

activity.” A transcript of the November 13th recorded interview, played at the hearing,

shows:

         Q.     [W]hat were those violations for? Where the tickets were made up or
                just added tickets on to someone – using someone’s information just
                writing another ticket even though the violation didn’t occur?

         RAY: Once I had that person stopped possibly for speeding or whatever
              violation may [sic] occurred, I wrote a seat belt ticket for that also.

         ...

         Q.     [W]hat transpired [sic] you to just add extra tickets?

         RAY: I was just trying to get my numbers up.

When asked why he would do this, Ray replied: “Poor judgment.”

¶15.     Ray testified that he did remember the twenty to twenty-five instances he spoke of and

that the four motorists for which he was charged were not in that number. The investigator

for the Department also testified that the four charged incidents were not in the twenty to

twenty-five instances that Ray admitted.



                                               8
¶16.   Following the de novo hearing, the hearing officer made no findings of fact about the

tickets issued to the four named motorists. Rather, the hearing officer found generally that

Ray would stop motorists and issue a ticket, and that he would write additional tickets, which

he recorded on his ticket-control sheets but did not give to the motorists. The order noted

that, on two occasions, Ray admitted to the investigator that he had written twenty to twenty-

five seat belt violation tickets that were not “valid,” or were “not factual.” As to the four

motorists Ray was charged with, the order reflected only:

       Joshua Ulmer, William Thomas, and Sandra Carpenter gave statements, and
       eventually sworn affidavits, acknowledging that they had been stopped by
       Ray, but had not received copies of all of the tickets that Ray had turned in and
       voided on his ticket control sheet. Kaci [sic][Patterson] also gave a statement
       to Investigator Mansell.

There was no finding that Ray falsified any of the tickets issued to these four motorists. The

order concluded:

       With regard to the allegation of falsification of records the evidence supports
       a finding that the reasons given for the Agency’s decision were in fact true.
       There is ample evidence that Ray wrote tickets that were not for actual
       violations and that were not intended to be prosecuted, but were used only to
       increase the number of tickets that he was credited with writing.

¶17.   In its order affirming the hearing officer, the full EAB ruled:

       The facts of this case clearly show that Ray issued tickets to motorists for
       violations that did not exist or that he was “unsure” existed, namely seat belt
       violations. Ray argued that these were “warning” or “voided” tickets and that
       he did not try to hide writing the tickets. However, the fact that he wrote
       tickets, whether it be one, four, or twenty, and was either unsure of the
       violation or made up the violation is an act of falsifying information on an
       official state document. That he voided the tickets and allegedly did not try to
       hide his actions is irrelevant as the act of knowingly writing a false ticket was
       committed. Further, Ray admitted that he wrote the tickets to increase the
       number of tickets he was credited with writing. These acts by Ray clearly
       constitute a Falsification of an Official State Document[,] which is a Group


                                              9
       Three Offense subject to discipline by termination.

¶18.   The circuit court’s order affirming the termination found that Ray falsified an official

state document “by knowingly writing tickets when he was unsure if a violation had occurred

and by creating false violations.” Like the hearing officer and the full EAB before it, the

circuit court made no finding that Ray falsified any of the tickets he issued to Patterson,

Ulmer, Thomas, or Carpenter.

                                STANDARD OF REVIEW

¶19.   State employees have a statutory right to appeal terminations to the EAB. See Miss.

Code Ann. § 25-9-131(1) (Rev. 2010). There, they bear the burden of proof to show that the

reasons given for termination are not true or that they do not justify termination. Bynum v.

Miss. Dep’t of Educ., 906 So. 2d 81, 90 (¶¶13-14) (Miss. Ct. App. 2004). Mississippi Code

Annotated section 25-9-127(1) (Rev. 2010) provides that on appeal, an employee who

receives a notice of dismissal is “required to furnish evidence that the reasons stated in the

notice of dismissal . . . are not true or are not sufficient grounds for the action taken.” Rule

XXI B of the Employee Appeals Board Administrative Rules (2010) provides:

       The appealing party shall have the burden of proving that the action taken
       against the employee is arbitrary or capricious, not supported by any
       substantial evidence or in violation of some statutory or constitutional right
       and merits the relief requested.

Rule XXI C provides:

       An appealing party who is a permanent State Service employee and who has
       by written notice been dismissed or otherwise adversely affected as to his or
       her compensation or employment status shall be required to furnish evidence
       that the reasons stated in the notice of such action are not true or are not
       sufficient grounds for the action taken.



                                              10
¶20.     Appeals of EAB decisions may be taken to the circuit court. Bynum, 906 So. 2d at

90 (¶¶13-14). The standard of review for appeals of EAB decisions to the circuit court, and

from there, to the court of appeals, is set by statute. Miss. Code Ann. § 25-9-132 (Rev.

2010).

         The standard of review of this Court is identical to that of the circuit court. .
         . . We must affirm the agency decision if that decision was (1) supported by
         substantial evidence; (2) not arbitrary or capricious; (3) within the scope or
         power of the agency; and (4) not in violation of a party’s constitutional or
         statutory rights.

Bynum, 906 So. 2d at 90 (¶16) (citations omitted). “[W]here an administrative agency errs

as a matter of law, courts of competent jurisdiction should not hesitate to intervene.” Miss.

Dep’t of Human Servs. v. McNeel, 10 So. 3d 444, 451 n.6 (Miss. 2009).

                                         DISCUSSION

         I.     Collateral Estoppel

¶21.     In May 2010, the MDES affirmed an award of unemployment compensation to Ray,

finding that “the employer has failed to show with clear and convincing evidence that the

claimant’s actions arose to the level of misconduct.”           Citing Bertucci v. Mississippi

Department of Corrections, 597 So. 2d 643 (Miss. 1992), Ray argues that the MDES’s ruling

that he did not commit misconduct collaterally estops the EAB from upholding his

termination.9

¶22.     In Bertucci, the Mississippi Department of Corrections (MDOC) fired an employee



         9
         The Department failed to address this argument in its brief. This omission
constitutes grounds to rule against the Department on this point. See Turner v. State, 383
So. 2d 489, 491 (Miss. 1980) (trial court reversed where appellee failed to address arguments
of appellant).

                                                11
for falsifying records. Id. at 644. She was awarded unemployment compensation after a

hearing in which the sole issue was whether she had falsified records. She was indicted in

Harrison County for falsifying records, but the circuit court dismissed the indictment on the

ground of collateral estoppel because the key factual issue had already been determined by

an administrative agency in favor of Bertucci. Id. Bertucci appealed her termination, and

the full EAB ruled that “MDOC was collaterally estopped from relying on its claim of

document falsification as grounds for job termination because that fact issue had been

determined by a competent state agency.” Id. at 645. After MDOC appealed to circuit court,

the circuit court ruled that collateral estoppel did not apply because the burden of proof is on

the employer in employment security hearings, but is on the employee in EAB proceedings.

Id. Following an appeal by Bertucci, the Mississippi Supreme Court dismissed the appeal

because MDOC lacked statutory authority to appeal. Id. at 647. The supreme court,

therefore, never addressed the merits of this argument. The dismissal of the appeal left the

EAB’s ruling applying collateral estoppel intact.

¶23.   We first note that this issue was raised by Ray at every stage of these proceedings, but

was not ruled on by the EAB or by the circuit court. We further note that different statutory

schemes cover the MDES and the EAB. Compare Miss. Code Ann. §71-5-1 (Rev. 2011),

et. seq. (MDES), with Miss. Code Ann. § 25-9-120 (Rev. 2010), et. seq. (EAB). Each has

a different mission and a different burden of proof. In MDES cases, the burden is on the




                                              12
employer,10 whereas in EAB cases, the burden is on the employee.11 Although the

Department did not brief this issue, the Department’s counsel pointed out in oral argument

that applying collateral estoppel in cases where there had first been a denial of benefits by

the MDES would deprive employees of their statutory right to contest their dismissal with

their employing agency. Given the difference in statutory schemes, and with no supreme

court authority on point, we decline to rule on the basis of collateral estoppel, despite the

Department’s failure to address the issue in its brief.

         II.      Due Process

¶24.     Ray argues that the hearing officer, the full EAB, and the circuit court all violated his

statutory and constitutional rights to due process by considering and relying upon evidence

outside of the charges for which he was terminated.12 Over Ray’s repeated objections, the

hearing officer considered evidence not specifically limited to the tickets issued to the four

motorists for whom Ray was charged.13 Most damning to Ray’s defense were his admissions

to writing twenty to twenty-five tickets that “may or may not” have been “valid,” or

“factual.” These admissions were relied on by the hearing officer in her order.

¶25.     Due process requires that an accused be informed of the charges and that any


         10
        See Jackson Cnty. Bd. of Sup’rs v. Miss. Emp’t Sec. Comm’n, 129 So. 3d 178, 183
(¶12) (Miss. 2013).
         11
              See Miss. Forestry Comm’n v. Oglesby, 105 So. 3d 375, 380 (¶11) (Miss. Ct. App.
2012).
         12
         The Department also failed to address this argument in its brief. Rather than
consider the issue forfeited, we exercise our discretion and consider the issue on its merits.
         13
         Ray’s counsel argues that he was “blind sided” at the hearing, having come
prepared only to defend against the tickets related to the four specific motorists.

                                                13
disciplinary action be based on violations related to the specific charges levied against the

employee. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (employees

have due process rights prior to termination, which include “notice and opportunity for

hearing.”); In re Ruffalo, 390 U.S. 544, 550-51 (1968) (where attorney in disbarment

proceedings had no notice that employment of certain person would be considered a

disbarment offense until after both he and that person had testified, absence of fair notice as

to reach of grievance procedure and precise nature of charges deprived attorney of procedural

due process).

¶26.   Section 25-9-127(1) of the Mississippi Code Annotated, provides: “No employee .

. . may be dismissed . . . except for . . . good cause, and after written notice and hearing . . .

as shall be specified in the rules and regulations of the State Personnel Board complying with

due process of law . . . .” Mississippi Code Annotated section 25-9-129 (Rev. 2010) creates

the EAB process. Discharged employees are statutorily entitled to due process in their

appeals to the EAB. Under Mississippi Code Annotated section 25-9-131 (Rev. 2010),

employees “shall be afforded all applicable safeguards of procedural due process.” The

applicable rule in this case is EAB Administrative Rule XVIII (D), which provides: “The

Presiding Hearing Officer shall hear or receive evidence only on those reasons and

allegations contained in the responding agency’s final disciplinary notice to the employee

of such action.” (Emphasis added).

¶27.   During the investigation, Ray was never questioned regarding the stops involving

Thomas or Carpenter. When asked about the Ulmer stop, all Ray could remember was that

it possibly involved a seat belt or speeding violation. Ray had no memory of the Patterson


                                               14
stop. Since Ray did not admit to writing false tickets for the four motorists, we have

examined the record to determine if the actual tickets, and the witnesses’ statements

concerning these four motorists, prove that any of the tickets were fictitious “ghost tickets.”

¶28.   Ray wrote two tickets to Patterson on June 3, 2009: one for speeding, and one for a

seat belt violation. The ticket-control sheet indicated that both were voided. Patterson told

the investigator that she was, in fact, speeding and given a warning for that. She stated that

she was wearing her seat belt. The Department does not explain why, if Ray was only

attempting to “pad his numbers,” he voided the ticket for the admitted speeding violation.

These facts do not support the conclusion that Ray wrote and voided a ticket for an offense

he did not observe.

¶29.   Ray wrote two tickets for Ulmer on June 22, 2009: one was for speeding, and one was

for a seat belt violation. The ticket-control sheet indicated that both were voided. Ulmer

initially told the investigator that he got a ticket for not wearing his seat belt, but not a

speeding ticket. In a subsequent affidavit admitted into evidence, Ulmer said that, in addition

to the seat belt violation, he was possibly speeding and got a warning for it. These facts do

not support the conclusion that Ray wrote and voided a ticket for an offense he did not

observe.

¶30.   Ray wrote three tickets for Thomas on June 27, 2009. speeding, a seat belt violation,

and an inspection-sticker violation. The ticket-control sheet indicated all three were voided.

Thomas told the investigator that he did not receive any tickets. In a subsequent affidavit

admitted into evidence, Thomas said he was pulled over for speeding, and he may also have

received a warning for a seat belt violation. These facts do not support the conclusion that


                                              15
Ray wrote and voided a ticket for an offense he did not observe.

¶31.   Ray wrote Carpenter two tickets on July 15, 2009: one was for a seat belt violation,

and one was for an inspection-sticker violation. The ticket-control sheet indicated that the

seat belt ticket was voided. Carpenter told the investigator she got an inspection-sticker

ticket, but not a seat belt ticket. In a subsequent affidavit admitted into evidence, Carpenter

stated that she may have removed her seat belt when the officer approached. These facts do

not support the conclusion that Ray wrote and voided a ticket for an offense he did not

observe.

¶32.   During oral argument before this Court, the Department could point to nothing

connected to the four stops showing that they involved ghost tickets, and conceded that it had

no evidence of false tickets other than Ray’s statements.         In its appellee’s brief, the

Department states that “[i]t was suspected, but never proven, that Ray executed far more

falsified tickets than [he was] charged with.” Therein lies the problem. Ray’s statements

provide the only evidence of falsified tickets, and those statements do not relate to the four

charged instances. The Department’s suspicion comes from Ray’s statements concerning

uncharged conduct. There is no proof as to the four charged instances.

¶33.   The dissent relies primarily on two arguments. First, the dissent points out that Ray

turned in seat belt violation tickets and speeding tickets, which he did not hand to Patterson,

Thomas, Carpenter, and Ulmer. In the light of testimony that troopers sometimes refrain

from handing warning tickets to motorists to avoid confusing them, this does not establish

that these tickets were fraudulent.

¶34.   Second, the dissent states:


                                              16
       The tickets for the seat belt violations that Ray wrote for Patterson, Thomas,
       and Carpenter had to be included in the twenty to twenty-five tickets for seat
       belt violations that he wrote, as the evidence is clear that Ray wrote only
       twenty to twenty-five fraudulent tickets for seat belt violations in his entire
       career. And since both the hearing officer and the full Board found that Ray
       wrote false tickets for seat belt violations, how can it be said that the hearing
       officer and the full Board did not find that Ray falsified tickets for these four
       individuals?

Neither the hearing officer nor the full EAB made any findings of fact about the tickets

issued to the specific four motorists at issue. The investigating officer testified that the

tickets issued to the four named motorists were not included in the twenty to twenty-five

instances to which Ray admitted. Ray never admitted that he falsified tickets to these four

motorists. Close examination of the statements from the four motorists fails to show that Ray

issued them tickets for offenses he did not observe.

¶35.   In Bynum, 906 So. 2d at 105 (¶85), this Court noted that an employing agency may

not rely on conduct that was not the subject of the termination notice to justify a termination.

“Because [the Mississippi Department of Education] failed to afford Bynum proper notice,

[it] could not rely upon this conduct as a ground for terminating Bynum.” Id. Ray’s

termination has been upheld at each stage of this proceeding on the basis of his apparent

admission to writing tickets for non-offenses. This admission was not specific to the four

actual charged offenses, however, and there was no other direct proof that any of these

tickets were fraudulent.

¶36.   Accordingly, we find the denial of Ray’s statutory due-process rights mandates

reversal of the agency’s actions. McNeel, 10 So. 3d at 451 n.6 (“Where an administrative

agency errs as a matter of law, courts of competent jurisdiction should not hesitate to



                                              17
intervene.” (citing Grant Ctr. Hosp. Inc. v. Health Grp. of Jackson Inc., 528 So. 2d 804, 808

(Miss. 1988))). Determining that Ray is entitled to reinstatement with the Highway Patrol

and to an award of full back pay and benefits, we reverse and remand to the circuit court for

further proceedings consistent with this opinion. See Hamilton v. Pulaski Cnty. Special Sch.

Dist., 900 S.W.2d 205, 209 (Ark. 1995) (reversing circuit court’s order and “remanding with

instructions that an order be entered reinstating [plaintiff] to his coaching position with

appropriate back pay”); Ritter v. Woonsocket Sch. Dist., 504 N.W.2d 572, 577 (S.D. 1993)

(reversing and remanding to circuit court “to order reinstatement [of plaintiff as head

basketball coach] and to determine the amount of back pay”); Kirkwood v. City of Corsicana,

871 S.W.2d 544, 547-48 (Tex. Ct. App. 1994) (remanding to trial court for reinstatement of

the plaintiff to his position as police captain and “an award of back pay”). All remaining

issues are rendered moot by our holding.

¶37. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.

     LEE, C.J., ISHEE, ROBERTS AND FAIR, JJ., CONCUR. CARLTON, J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
JAMES, J. CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
GRIFFIS, P.J., AND MAXWELL, J.

       IRVING, P.J., DISSENTING:

¶38.   The majority finds that the Department terminated Ray’s employment for conduct

other than that for which he was charged and, therefore, violated his due-process rights.

More specifically, the majority finds that neither the hearing officer nor the full EAB or the



                                             18
circuit court found that Ray falsified any of the tickets he issued for Patterson, Ulmer,

Thomas, or Carpenter. In my opinion, the majority’s finding—that neither the hearing

officer nor the full EAB found that Ray falsified any of the tickets he issued for Patterson,

Ulmer, Thomas, or Carpenter—represents an unjustified and excessively narrow reading of

the orders of the hearing officer and the full EAB that is not supported by the record. It is

clear to me that both the hearing officer and the full EAB found that Ray wrote twenty to

twenty-five fraudulent tickets that included the fraudulent tickets that he wrote for Patterson,

Ulmer, Thomas, and Carpenter. Therefore, I dissent. I would affirm the judgment of the

Circuit Court of Hinds County, which affirmed the order of the full EAB, terminating Ray’s

employment.

¶39.   It is important to establish what Ray was charged with. To do so, I quote verbatim

from the statement of charges filed by Captain Richard Watkins, Commander Troop J of the

Southern Enforcement District:

       TFC Sammy Ray, a sworn officer, did violate DPS [(Department of Public
       Safety)] General Order 23/01, III. B. 2., a. (Group Two Offense) in view of
       General Order 05/02 and B. 3., d., (Group Three Offense), to wit:

              a.      insubordination, including but not limited to resisting
                      management directives through actions and/or verbal
                      exchange, and/or failure to follow supervisor’s
                      instructions, perform assigned work, or otherwise
                      comply with applicable established written policy;

                      and,

              d.      falsification of records, such as, but not limited to, vouchers,
                      reports, time records, leave records, employment applications,




                                              19
                     or other official state documents.14

                                          FACTS

       On September 21, 2009[,] the Internal Affairs Division of the MHP was
       advised to conduct an investigation regarding an allegation of conduct on TFC
       Sammy Ray. The allegation was that TFC Ray may have been falsifying state
       documents on his Ticket Control Sheets.

             (Group Three Offense - Four Counts - Falsification of Records)

       Through investigation into the allegations against Ray it was discovered that
       on four (4) separate occasions he had written false tickets, otherwise known
       as “ghost tickets” on people that he had encountered on the road. Ray would
       issue a citation to an individual and obtain the personal information. He may
       issue a lone citation and then with the individual’s personnel information write
       an additional charge that would be entered on his ticket control sheet to make
       it appear as though he was writing more tickets than he actually was at the
       time. In doing so, Ray was falsifying official state documents, which is a
       Group Three Offense. He did this on four (4) occasions resulting in four (4)
       separate Group Three charges for falsification of records.

                   (Group Two Offense - One Count - Insubordination)

       During the course of the investigation into allegations of falsifying documents
       against Ray it was discovered that on August 8, 2009, TFC Ray was
       dispatched to a wreck on Interstate 59. Ray was not wearing his Class A
       uniform. Instead, Ray was wearing a MHP t-shirt, MHP hat, shorts and
       sandals. While investigating the accident, Ray made an arrest for DUI and
       transported the individual to the Jones County Detention Center. This is a
       direct violation of General Order 05/02 which in turn makes Ray guilty of
       insubordination, which is a Group Two Offense.

       Based upon the above, it is evident that the actions alleged herein are in
       violation of departmental rules and regulations, being DPS General Order
       23/01, III, B. 3., d. (Group Three Offense - Four Counts), and B. 2., a. (Group
       Two Offense - One Count). Therefore, it is my belief that TFC Sammy Ray,
       J-23, a sworn officer of the Mississippi Highway Safety Patrol, should be
       subjected to a Performance Review Board Hearing pursuant to the provisions
       of DPS General, Order 24/05, with the allegations contained herein heard as

       14
       This appeal involves the charge of falsification of records, or other official state
documents. The insubordination charge was dismissed by the hearing officer.

                                             20
       One Group Two Offense and Four Group Three Offenses therein.

¶40.   As noted, Ray was charged with falsification of records, or other official state

documents. Therefore, it is critical that there be a clear understanding of exactly what Ray

did and how the Department classifies that action. The charging statement did not set forth

the specifics of the falsification. The specifics were derived from the witnesses who testified

on behalf of the Department, the first of whom being Lieutenant Colonel Don L. Berry.

¶41.   Prior to Lieutenant Colonel Berry’s testimony, counsel for the Department explained

that the charge of falsification of records involved writing false tickets and that in the

vernacular of the Highway Patrol, those are called “ghost tickets.” He further explained what

the Department considers a false or ghost ticket:

       Basically what happens and what has happened in this case as well as past
       cases is the law enforcement officer will pull somebody over for a lawful
       purpose, such as speeding. At that point, [the officer] get[s] the individual’s
       driver’s information, their driver’s license number, name, address, the
       information used on a ticket. [The officer] may write that person [a ticket] for
       the actual infraction . . . . At that point, the . . . trooper would write additional
       tickets such as seat belt violation or such as inspection sticker violation that
       did not take place. . . . The officer would then place these tickets, these
       fraudulent tickets[,] in addition to the actual ticket on [his] [t]icket [c]ontrol
       [s]heet. The [t]icket [c]ontrol [s]heet is, in a lot of ways, a reference as to how
       many tickets the [t]rooper is writing. The [t]rooper know[s] that these tickets
       do not make it to the Justice Court or through [the] in-process [at] the Justice
       Court. [The trooper] will then void [the] tickets that are fraudulent tickets.
       When [the] trooper’s [supervisor] looks at the ticket control sheet, it makes it
       appear as though [the trooper] is writing more tickets than he is.

¶42.   Lieutenant Colonel Berry testified that he was Deputy Director of the Uniform

Division of the Highway Patrol and that he had been employed with the Mississippi Highway

Patrol a little over thirty years. He testified that writing a fraudulent ticket is a group-three

offense, the most severe offense, and that one group-three offense could lead to termination.


                                                21
He affirmed that it was not normal practice for officers to get the personal information of a

motorist and write a ticket for offenses that did not occur.

¶43.   The next witness to testify was Master Sergeant Creede Mansell. Sergeant Mansell

confirmed that Ray was charged with writing fraudulent tickets to only four individuals:

Patterson, Thomas, Ulmer, and Carpenter. Sergeant Mansell identified a statement given by

Patterson, which recited what occurred when she was pulled over by Ray. In the statement,

Patterson said that she was wearing her seat belt when she was pulled over for speeding. She

admitted to Ray that she had been speeding and apologized. Patterson said that Ray took her

driver’s license and returned a short time later. Ray did not give Patterson a ticket for

anything but told her to slow down. However, Trooper Ray turned in two tickets written for

Patterson, one for speeding and one for not wearing a seat belt. Neither ticket had the word

“warning” written on it.

¶44.   Sergeant Mansell also testified regarding the tickets that Ray issued to Thomas,

Ulmer, and Carpenter. As to Thomas, Ray issued tickets for an expired inspection sticker,

speeding, and a seat belt violation. Thomas gave a statement to Sergeant Mansell wherein

he stated that he did not remember ever getting the speeding or expired-inspection-sticker

ticket and that he was sure he never received a ticket for a seat belt violation.

¶45.   According to Sergeant Mansell, Ray wrote two tickets for Ulmer: one for speeding

and one for a seat belt violation. However, Ulmer gave a statement to Sergeant Mansell

wherein he stated that Ray gave him a ticket for the seat belt violation but did not give him

one for speeding and never mentioned anything about speeding to him.

¶46.   Finally, Sergeant Mansell testified about the tickets that Ray issued to Carpenter.


                                              22
Mansell stated that Ray wrote two tickets for Carpenter: one for an expired inspection sticker

and one for a seat belt violation. Carpenter gave a statement affirming that Ray gave her a

ticket for an expired inspection sticker. However, she stated that Ray did not give her a

ticket for the seat belt violation.

¶47.   Ray gave four statements: two in his handwriting and two in the form of a question-

and-answer interview. In the first one, given on October 26, 2009, in interview form to

Sergeant Mansell, Ray stated the following:

       Q.      Okay. Earlier we went over some of these citations, [Ray], where you
               had made traffic stops on individuals and then voided all tickets out and
               some of these actual citations were in fact true stops, is that correct?

       A.      Yes.

       Q.      Okay, and then on some of the -- some of the particular stops there may
               have been instances where there was a good violation, such as speeding
               or careless driving, something to that nature, and -- and then a seat belt
               violation would follow. In some of these situations, were the actual
               seat belt violations good violations or were they just tickets that were --
               that you marked seat belt violations on there just -- just to -- just to
               mark it, is that kind of what you told me earlier?

       A.      Yes.

       Q.      Okay, and on how many situations would you say that occurred? That,
               you know that you can recall or—before you answer that, is it
               something that you did a couple of times, several times, or just
               throughout the course of each work schedule?

       A.      Several times.

       Q.      Okay. And if you had to put a number on it how many would you say?

       A.      I don’t know a percentage or a number.

       Q.      Well, let me ask you this, would you -- would it be something that you
               would do, if you -- how many tickets do you write a month?


                                               23
A.   70-75.

Q.   About 70 tickets, okay, so that’s probably anywhere from 25 stops to
     30 stops?

A.   Yeah.

Q.   Maybe. Out of those 30 stops in a month how many times would you
     say that it occurs?

A.   I don’t know. Maybe three or four, I guess. I don’t know.

Q.   So, three or four -- three or four times a month, so that would be --
     would that be like every month?

A.   I guess 20 to 25 times a month, to put a number on it. I don’t know.

Q.   Okay. So, and just -- just to make sure that what we are talking about
     it -- you make a -- you make a good actual stop for say speeding and
     the individual has their seat belt on and you just write a no[-]seat belt
     violation and void it?

A.   Yeah.

Q.   So, the ticket is actually voided?

A.   Yes.

Q.   Okay, it never goes to Justice Court or anything like that?

A.   No.

Q.   Okay. And you [--]

A.   It goes to Justice Court, I turn it in, but I turn it in as I voided the ticket.

Q.   Okay. And you count those on your activity sheet?

A.   Yeah.

Q.   Okay. Have you ever done that with any other charge other than a seat
     belt violation? I mean[.]


                                       24
       A.     No.

       Q.     Nothing other than a seat belt, so we know no inspection stickers or
              what about insurance?

       A.     No.

                                            ****

       Q.     Okay. But, it’s only the seat belt violation that you -- that you charge
              or actual[ly] not charge them with that[;] you mark it on the citation
              then void it, right?

       A.     Yes.

       Q.     Okay. And you said you’ve done that probably about 25 times.

       A.     Probably.

Following the interview, Ray wrote the following statement and gave it to Sergeant Mansell:

       During this interview[,] I have admitted to the writing of 20-25 tickets that
       were seat belt tickets and some of the tickets that I issued were not valid tickets
       (seat belt tickets). These tickets were turned into [sic] the Justice Court and
       turned in along with my weekly reports. All seat belt tickets were voided
       when they were turned into [sic] the Justice Court.

¶48.   In the next statement that Ray gave to Sergeant Mansell, in interview form, Ray stated

the following:

       Q.     Alright. The -- the first time that I interviewed you -- can I just call you
              Sammy?

       A.     Yeah.

       Q.     Alright. The first time I conducted an interview with you was on, I
              believe October, I think it was the 22nd if I’m not mistaken, 26th,
              October 26th and during that interview we discussed the citations that
              you had written and particularly four that you had written where you
              made a traffic stop and for whatever violation and then at the end of the
              traffic stop you had added a -- a ticket even though that violation didn’t


                                               25
     occur. And I believe the names were Sandra Carpenter, Josh Ulmer,
     William Thomas, and Kasey [sic] Patterson. Do you recall me showing
     you those citations during the last interview?

A.   Yes.

Q.   Okay, and after we went over those citations, I believe I asked you
     about how many times that you had done that in addition to the ones
     that we discussed and you said roughly 20 to 25 times. Do you recall
     saying that?

A.   Yes.

Q.   Okay. Would that be a fair estimate of the number of times that you --
     that you did that?

A.   Yes.

Q.   Okay. And what -- what were those violations for? Where the tickets
     were made up or just added ticket on to someone -- using someone’s
     information just writing another ticket even though the violation didn’t
     occur?

A.   Once I had that person stopped possibly for speeding or whatever
     violation may [have] occurred, I wrote a seat belt ticket for that also.

Q.   Okay. So all of them were seat belt violations to the best that you can
     remember?

A.   Yeah.

Q.   Okay. Do you remember these two citations right here, that was Josh
     Ulmer, that was one for a seat belt violation and then a speeding?

A.   Yes.

Q.   Do you remember that citation?

A.   Somewhat.

Q.   Okay. And do you remember that one being one that you wrote a seat
     belt violation to or the speeding violation?



                                    26
A.   Yeah, possibly.

Q.   And when -- when was the first time that -- that you recall writing the
     first citations?

A.   A month.

Q.   A month ago?

A.   No, no, I mean like a certain month or [--]

Q.   I mean, how long do you think that this has been going on is what I’m
     -- I’m asking?

A.   Over my career? I’d say within the last couple of months.

Q.   Okay. And what -- what brought that on. I mean what -- what
     transpired [sic] you to just add extra tickets?

A.   I was just trying to get my numbers up.

                                   ****

Q.   Well, let me ask you this, who -- who do you remember stopping and --
     for a violation and then writing them a seat belt violation when they had
     it on or you just went back to the car and just wrote one just -- just to
     write it? Do you recall anybody?

A.   No really, I -- I just know that I’ve done it that many times, you know,
     about that many times.

                                   ****

A.   What’s going to happen next?

Q.   I don’t -- this is the only thing I do -- I do right here just the interview.
     But just for -- just for the record that and you -- you tell me if I am
     right or wrong but according to the last interview that we did, it was 20
     to 25 tickets that you -- that you said that you know without a shadow
     of a doubt that you wrote where the violation was not there. You just
     wrote an additional seat belt violation to the actual violation on that
     stop to increase your activity on your ticket control sheet?



                                      27
       A.     Yeah.

Following the above interview, Ray wrote the following statement and gave it to Sergeant

Mansell: “During the time I have been employed with the MDPS, I have written 20-25

tickets that may or may not be factual tickets. These tickets were seat belt violations. This

was done to increase my ticket activity.”

¶49.   As to the charges brought against Ray, the Performance Review Board unanimously

determined: “Group Three Offense (Four Counts)—(falsification of records, such as , but not

limited to, vouchers reports, time records, leave records, employment applications or other

official state documents) is founded.” On appeal to the EAB, the hearing officer found the

Department had sufficient grounds for terminating Ray. In arriving at this ultimate finding,

the hearing officer also found:

       One of the methods of evaluating highway patrol officers is by the number of
       tickets they write.

       When Ray wrote the tickets at issue he would write “void” on the motorist
       copy and the court copy; he would then turn in the clean copy of the tickets to
       the master sergeant and shred the fourth copy.

       During the investigation into Ray’s activities, he admitted to Internal Affairs
       Investigator, Creed Mansell, that on 20-25 occasions he had written tickets for
       seat belt violations which were not valid.

                                            * * **

       After his pre-termination hearing before the Performance Review Board of the
       Mississippi Highway Safety Patrol, “the board determined that four counts of
       Group Three Offense (falsification of record[s], such as but not limited to,
       vouchers, reports, time records, leave records. Employment applications[;] or
       other official state documents) is founded.”

On appeal, to the full EAB, the full EAB found:



                                             28
       Pursuant to Mississippi Code Annotated section 63-9-21, a ticket written by
       a Mississippi highway patrol officer is an official state documents in which the
       officer swears that the information therein is correct. The facts of this case
       clearly show that Ray issued tickets to motorists for violations that did not
       exist or that he was “unsure” existed, namely seat belt violations. Ray argued
       that these were “warning” or “voided” tickets and that he did not try to hide
       writing the tickets. However, the fact that he wrote the tickets, whether it be
       one, four or twenty, and was either unsure of the violation or made up the
       violation is an act of falsifying information on an official state document. That
       he voided the tickets and allegedly did not try to hide his actions is irrelevant
       as the act of knowingly writing a false ticket was committed. Further, Ray
       admitted that he wrote the tickets to increase the number of tickets he was
       credited with writing. These acts by Ray clearly constitute a falsification of
       an official state document[,] which is a Group Three Offense, subject to
       discipline by termination.

¶50.   Based on the plethora of evidence that Ray turned in false tickets for four individuals

who were identified at the beginning of the hearing, it is not clear to me why the majority

finds that neither the hearing officer nor the full EAB found that Ray falsified any of the

tickets he issued to those four individuals, namely: Patterson, Ulmer, Thomas, and Carpenter.

I assume the majority bases its finding on its narrow reading of those orders. Regardless, in

my judgment, the majority’s finding is not borne out by this record. It is clear that Ray

admitted to writing twenty to twenty-five fraudulent tickets for seat belt violations that did

not occur. He also admitted that he had not written, in his entire career, more than that

number for seat belt violations that had not occurred.

¶51.   The evidence is uncontradicted that Ray was the officer who wrote and turned in seat-

belt-violation tickets for Patterson, Thomas, and Carpenter. He also wrote and turned in a

speeding ticket for Ulmer that he did not give to Ulmer. The evidence is also uncontradicted

that Patterson, Thomas, and Carpenter were not given a citation for a seat belt violation by

Ray when he stopped them. Also, Ulmer stated that Ray did not give him a ticket for


                                              29
speeding and never mentioned speeding to him; yet Ray wrote and turned in a speeding ticket

for Ulmer. The tickets for the seat belt violations that Ray wrote for Patterson, Thomas, and

Carpenter had to be included in the twenty to twenty-five tickets for seat belt violations that

he wrote, as the evidence is clear that Ray wrote only twenty to twenty-five fraudulent tickets

for seat belt violations in his entire career. And since both the hearing officer and the full

EAB found that Ray wrote false tickets for seat beat violations, how can it be said that the

hearing officer and full EAB did not find that Ray falsified the tickets for these four

individuals? I should note the majority states that neither the hearing officer nor the full

EAB found that the tickets Ray gave to Patterson, Thomas, Carpenter, and Ulmer were

falsified. If the majority’s finding and holding are based on the lack of findings with respect

to falsification of tickets given to the four individuals, then the majority has failed to grasp

the breadth of the charges leveled against Ray. The falsification involved tickets that were

written by Ray and turned in to his superiors for violations that never occurred, not the

tickets that were written for real violations and given to the violators.

¶52.   Finally, in my judgment, while the orders of the hearing officer and the full EAB do

not make a specific finding that Ray wrote fraudulent tickets for any named individual, it is

clear that the findings made in the orders refer to Ray’s ticket-writing conduct with respect

to Patterson, Thomas, Ulmer and Carpenter, as well as to his conduct generally with respect

to fraudulent ticket writing involving other unnamed individuals. To find that the hearing

officer and the full EAB did not find that, on four occasions, Ray falsified an official state

document, a traffic ticket, by turning in false tickets for seat belt violations for Patterson,

Thomas, Carpenter and Ulmer is to ignore the undisputed facts in this record and to read the


                                              30
orders in a vacuum. I cannot do so. Therefore, I dissent. I would affirm the judgment of the

Hinds County Circuit Court affirming the order of the full EAB terminating Ray from the

Department.

       GRIFFIS, P.J., AND MAXWELL, J., JOIN THIS OPINION.




                                            31
