        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CC-00658-COA

CLAY NECAISE                                                                APPELLANT

v.

CITY OF WAVELAND, MISSISSIPPI                                                 APPELLEE


DATE OF JUDGMENT:                          04/30/2014
TRIAL JUDGE:                               HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                 HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    BENJAMIN U. BOWDEN
ATTORNEYS FOR APPELLEE:                    J. CHADWICK MASK
                                           GARY MCKAY YARBOROUGH JR.
                                           CLIFTON MICHAEL DECKER
NATURE OF THE CASE:                        CIVIL - TORTS - OTHER THAN PERSONAL
                                           INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION:                   AFFIRMED APPELLANT’S TERMINATION
DISPOSITION:                               AFFIRMED - 07/21/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND CARLTON, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Clay Necaise appeals the Hancock County Circuit Court’s judgment affirming his

termination from the police department of the City of Waveland, Mississippi. On appeal,

Necaise argues that the circuit court erred because the record lacked substantial evidence to

show that he was terminated in good faith for cause. Finding no error, we affirm.

                                          FACTS

¶2.    From 2008 until October 29, 2010, Necaise worked for the Waveland Police

Department. On October 15, 2010, Necaise’s fellow officer, Joshua Poyadou, filed a formal
complaint against Necaise. Officer Poyadou’s complaint alleged that, while on patrol duty

on July 22, 2010, Necaise abandoned his responsibilities and had sex with Officer Poyadou’s

fiancée, Christy Spence.

¶3.    As a result of Officer Poyadou’s complaint, Police Chief James Varnell investigated

the allegations against Necaise. Chief Varnell obtained Necaise’s time sheet and computer-

aided dispatch report (CAD sheets) for the night in question. The CAD sheets detailed

Necaise’s on-duty activity on July 22, 2010, and showed that Necaise had a period of

inactivity at the end of his shift for about an hour and a half. Chief Varnell assigned Officer

John Saltarelli to take Spence’s statement regarding the alleged incident on July 22, 2010.

Spence stated that she had sex with Necaise that night, and the time frame she gave for the

incident coincided with the period of inactivity recorded by Necaise’s CAD sheets.

¶4.    During the course of the investigation, Chief Varnell reviewed text messages between

Necaise and Spence. He also reviewed a videotape provided by Officer Poyadou when he

filed his complaint. The videotape captured a discussion between Officer Poyadou and

Spence on October 15, 2010, while the couple sat inside Officer Poyadou’s patrol vehicle.

During the conversation, Spence admitted to Officer Poyadou that she had sex with Necaise

on July 22, 2010, while Necaise was on duty.

¶5.    After reviewing the evidence and completing his investigation, Chief Varnell met with

Waveland’s mayor, the city attorney, and the city clerk on October 29, 2010. Chief Varnell

then met with Necaise later that day and informed Necaise of the allegations against him.

At the end of the meeting, Chief Varnell gave Necaise a letter notifying Necaise of his



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termination. The letter set forth the allegations against Necaise and explained the steps

Necaise could take to appeal his termination.

¶6.    Following his termination, Necaise filed a grievance and exercised his right to an

administrative hearing with Waveland’s mayor. Two administrative hearings were held on

Necaise’s grievance. After the second hearing, David Garcia, Waveland’s newly elected

mayor, issued a letter upholding Necaise’s termination. Mayor Garcia found that sufficient

evidence existed to support Chief Varnell’s conclusion that Necaise engaged in the activity

for which he was terminated. Mayor Garcia also found that Chief Varnell’s decision “was

supported by substantial evidence and was for just cause.”

¶7.    Necaise next appealed Mayor Garcia’s decision to the Waveland Civil Service

Commission (the Commission). The Commission held public hearings on Necaise’s appeal

on June 30, 2011, and July 26, 2011. Pursuant to Waveland City Ordinance 251 (the

ordinance), the Commission found its review was limited to whether Necaise was terminated

in good faith for cause. After considering the parties’ evidence and testimony, the

Commission upheld Necaise’s termination by a 3-2 vote. The Commission found that

Necaise was, in fact, terminated in good faith for cause. The Commission further found the

termination was not arbitrary or capricious and was supported by the evidence.

¶8.    Aggrieved by the Commission’s decision, Necaise filed a notice of appeal to the

circuit court on October 4, 2011. In his April 30, 2014 order affirming the Commission’s

decision, the circuit court judge stated that the question before him was not whether he would

have made a different decision regarding Necaise’s termination but whether the Commission



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acted in accordance with the ordinance. After considering the matter, the circuit court judge

concluded that the evidence supported the Commission’s decision. He also found that

Necaise was terminated in good faith for cause. As a result, the circuit court judge affirmed

the Commission’s decision to uphold Necaise’s termination. Aggrieved by the circuit court’s

judgment, Necaise now appeals to this Court.

                                STANDARD OF REVIEW

¶9.    When dealing with an appeal from a civil service commission’s decision, the appellate

court’s standard of review is as follows:

       [T]he question before the appellate court is whether or not the action of the
       Civil Service Commission was in good faith for cause. Intertwined with this
       question is whether or not there was substantial evidence before the Civil
       Service Commission to support its order and whether [the decision] is
       arbitrary, unreasonable, confiscatory, and capricious.

City of Vicksburg v. Lane, 11 So. 3d 162, 165 (¶10) (Miss. Ct. App. 2009) (quoting City of

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

                                        DISCUSSION

¶10.   In Prendergast v. City of Waveland, 146 So. 3d 1021, 1022 (¶¶1-2) (Miss. Ct. App.

2014), this Court decided an appeal that was controlled by the same ordinance applicable to

Necaise’s appeal. In discussing the Prendergast appeal, this Court acknowledged the

following:

               First and foremost, it is necessary to note that this case does not turn on
       any application of Mississippi statutory law. Mississippi Code Annotated
       section 21-31-1 (Rev. 2007) mandates that certain municipalities must have a
       civil service commission. Similarly, Mississippi Code Annotated section 21-
       31-3 (Rev. 2007) gives qualified municipalities the authority to adopt a civil
       service commission. The [Waveland Civil Service] Commission is unique in


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       that it is not a creature of either statute. Instead, the Commission is the product
       of Waveland City Ordinance 251 (“the ordinance”), which was authorized by
       House Bill 1770 of the 1994 Mississippi legislative session. Consequently,
       neither the provisions nor the procedures set forth in the statutes that pertain
       to civil service commissions apply to this case. . . . [S]ection 10 of the
       ordinance states that it “shall not be construed to invoke the provisions of
       [s]ections 21-31-1 through 21-31-75, which deal with civil service, nor to
       invoke the law of any court decisions made pursuant thereto.

Prendergast, 146 So. 3d at 1024 (¶12).

¶11.   Section 4(1)(a) of the ordinance establishes that a termination constitutes a “covered

job action” subject to appeal by a “covered employee.” The record reflects that Necaise was

a covered employee and was subjected to a covered job action. Therefore, following his

termination, Necaise possessed the right pursuant to the ordinance to seek “an administrative

hearing before the mayor, who shall determine the reasonableness of the job action and either

affirm, modify, or overturn the job action.” Waveland City Ordinance 251 § 9(2).

¶12.   Because he disagreed with the mayor’s decision to affirm his termination, Necaise

possessed ten days to appeal the mayor’s decision to the Commission, which “shall then hold

a hearing confined to the question of whether such action was taken for good cause and in

good faith[.]” Id. at § 9(4). The ordinance authorizes the Commission to affirm the covered

job action if it finds the action was for cause; was not arbitrary and capricious; and was not

based on certain prohibited reasons. Id. Furthermore, the ordinance directs that “[t]he

[C]ommission shall affirm actions [that] are supported by facts, analysis[,] and findings of

the responsible official, even if such action is fairly debatable.” Id. Where an employee or

the City appeals the Commission’s decision to the circuit court, the circuit court’s hearing

“shall be confined to the determination of whether the [C]ommission acted in accordance

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with this [A]ct and the ordinance.” Id. at § 9(5).

¶13.   On appeal to this Court, Necaise argues the record fails to contain any evidence to

show that he was terminated in good faith for cause. Instead, Necaise asserts that all the

evidence establishes that his termination was without cause and not in good faith. Despite

Necaise’s assertions, however, the record contains substantial evidence to support his

termination and to show that the termination was in good faith for cause in accordance with

Waveland’s ordinance.

¶14.   The record reflects that, before terminating Necaise, Chief Varnell investigated

Officer Poyadou’s allegations against Necaise. In addition to filing a formal complaint

asserting that Necaise had sex with Spence while Necaise was on duty on July 22, 2010,

Officer Poyadou provided a videotaped conversation to corroborate his allegations. The

recording revealed a conversation between Officer Poyadou and Spence in which Spence

admitted that she met and had sex with Necaise on July 22, 2010, while Necaise was on duty.

¶15.   After reviewing Officer Poyadou’s complaint and the videotape recording, Chief

Varnell pulled Necaise’s time sheet and CAD sheets for the date in question. Upon looking

at these documents, Chief Varnell discovered that a gap of almost an hour and a half existed

in which Necaise’s whereabouts were unknown, and Necaise’s paperwork failed to document

any activity.

¶16.   Chief Varnell next assigned Officer Saltarelli to take a statement from Spence

regarding the events of July 22, 2010. According to Spence’s statement, she met and had sex

with Necaise around 10:30 p.m. on July 22, 2010. Spence stated that Necaise was still on



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duty at the time and was driving his patrol car and wearing his police uniform when the two

met. After reviewing Spence’s statement, Chief Varnell discovered that her timeline of

events matched the period of inactivity reflected by Necaise’s July 22, 2010 time sheet and

CAD sheets.

¶17.   Based upon the evidence gathered during his investigation, Chief Varnell terminated

Necaise. When Necaise appealed his termination to the Commission, the Commission held

a hearing and reviewed the evidence and testimony presented by the parties. After

considering all the evidence, the Commission upheld Necaise’s termination. Upon review,

we find that the Commission’s decision was made in good faith for cause and that substantial

evidence supports the Commission’s decision. Accordingly, we find that Necaise’s argument

on appeal lacks merit, and we affirm the circuit court’s judgment affirming the Commission’s

decision.

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

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, FAIR
AND JAMES, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.




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