                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 91-CC-00523-SCT

                                     CONSOLIDATED WITH

                                         92-CC-00931-SCT
LAVERNE JOHNSON
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS

DATE OF JUDGMENT:                              8/27/92
TRIAL JUDGE:                                   HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED:                     HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        P.J. TOWNSEND, JR.
ATTORNEY FOR APPELLEE:                         JAMES M. NORRIS
NATURE OF THE CASE:                            CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                   AFFIRMED - 10/3/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                10/24/96




     EN BANC.


     SMITH, JUSTICE, FOR THE COURT:


¶1. This case comes to this Court on appeal from an order of the Circuit Court of Hinds County,
Mississippi, which reversed the decision of the Employee Appeals Board (EAB) which purportedly
found that Laverne Johnson in fact committed the offense charged, but that the punishment imposed
by the hearing officer was excessive. The circuit judge reinstated the decision of the hearing officer.
We find that there was sufficient evidence in the record to support the decision of the hearing officer.
This Court agrees with the circuit judge and therefore affirms.

                                               FACTS

¶2. Laverne Johnson had been employed for sixteen years as a secretary by the Mississippi
Department of Corrections (MDOC) in Parchman, Mississippi. On October 20, 1989, Johnson
received a package at the Parchman post office bearing an Alabama return address. Johnson's office
was located approximately a hundred feet from the Parchman post office. In fact, the package had
been mailed from the post office in Tunica, Mississippi.
¶3. Johnson claimed that she believed the package contained clothing she was expecting to be sent to
her from a relative in Alabama. However, upon opening the package Johnson discovered that it
contained items normally sent to inmates. Johnson then placed the package in her vehicle and did not
report or turn in the package to security or internal affairs as required by MDOC policy. The only
action taken by Johnson was the notification of, Frank Meeks, a MDOC co-worker, about her receipt
of the package.

¶4. Johnson argues that she intended to turn the package in when she has an opportunity to do so.
Johnson claimed that she was unable to leave that day because she was the only secretary in the office
and her supervisor, Eddie Lucas, was out.

¶5. However, Frank Meeks testified that Johnson asked him to pick up the package in question and
deliver it to Unit 25, a housing unit for inmates at Parchman.

¶6. Johnson was stopped in her vehicle late that afternoon and a search of the package revealed
marijuana. Johnson was then was terminated by MDOC for violation of a Class Three Offense, to-
wit:

     acts of conduct occurring on or off the job 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.

¶7. Johnson appealed her termination to the EAB in accordance with the provisions of Miss. Code
Ann. § 25-9-131 (1972) and the Rules of the State Personnel Board (SPB). The hearing officer
affirmed her termination.

¶8. Upon review by the EAB, the hearing officer's findings were unanimously accepted. However, the
EAB found that the penalty recommended by the hearing officer was too severe and therefore
reduced the termination to a thirty-day suspension after which Johnson should be reinstated with
back pay.

¶9. The MDOC sought a review by writ of certiorari to the Circuit Court of Hinds County. The
circuit judge concluded that the EAB could not accept the findings of fact made by the hearing
officer and substitute its own judgment regarding the penalty when the decision of the hearing officer
was in accordance with the rules of the State Personnel Board (SPB).

¶10. Aggrieved, Johnson, appeals to this Court claiming that the final order of the EAB may not
appealed by a state agency. Johnson also argues that the lower court erred in holding that the
authority of the EAB is controlled by Rule 20(b) of the Employee Appeal Board Administrative
Rules, in lieu of Miss. Code Ann. § 25-9-131 (1972) as amended.

                                      DISCUSSION OF LAW

¶11. Johnson argues that a final decision by the EAB is not appealable by a state agency to circuit
court, either by statute or by writ of certiorari. This issue was presented to and resolved by this Court
in Gill v. Mississippi Department of Wildlife Conservation, 574 So. 2d 586 (Miss. 1991). Johnson,
although well aware of this Court's ruling in Gill, nevertheless, requests that we revisit the issue. In
Gill, this Court held that an administrative agency has a right to judicial review of a final decision of
the EAB by writ of certiorari. Id. at 590. Gill is correct, therefore we decline Johnson's invitation to
revisit the issue.

¶12. Next, Johnson argues that the circuit judge erred in holding that the authority of the EAB is
controlled by Rule 20(b) of the Employee Appeal Board Administrative Rules, in light of the explicit
powers accorded to the EAB in Miss. Code Ann. § 25-9-131.

¶13. Rule 20(b) as promulgated by the SPB states in pertinent part:

     If the responding agency has acted in accordance with the published policies, rules and
     regulations of the SPB and if the personnel action taken by the responding agency is allowed
     under said policies, rules and regulations, the EAB shall not alter the action taken by the
     Agency.

¶14. Rule 17(b) of the Rules of the Mississippi Employees Board states:

     The appealing party shall have the burden of proving that an alleged grieveable action was
     taken, was in error, and merits the relief requested.

¶15. The pertinent parts of Miss. Code Ann. § 25-9-131 state:

     (1) . . . The employee appeals board may modify the action of the department, agency or
     institution but may not increase the severity of such action on the employee. Such appointing
     authority shall promptly comply with the order issued as a result of the appeal to the employee
     appeals board.

     (2) Any employee aggrieved by a final decision of the employee appeals board shall be entitled
     to judicial review thereof in the manner provided by law.

¶16. It is true that the statute explicitly states that the EAB may modify the decision of a state
agency. However, as the circuit court correctly noted, the statute does not provide any guidance as
to under what circumstances the EAB may modify an action. Miss. Code Ann. § 25-9-115 gives the
SPB the authority to make rules and regulations. Our review here does not find the SPB's rules to be
in contradiction to the statutes.

¶17. The rules, statutes and procedures were properly adhered to in this case by the Mississippi
Department of Corrections. The factual findings of the hearing officer support termination of Laverne
Johnson from her position of employment at MDOC. A brief review of the pertinent facts is indeed
helpful.

¶18. Laverne Johnson received an insured package from the penitentiary post office, which was
located "not very far at all . . . maybe a hundred feet," from her employment work station at the
MDOC classifications office. The package contained marijuana, which was ultimately discovered
during a search of her vehicle at the end of that day. Johnson knew that the package was not hers, but
failed to turn it in to her superiors. She apparently only mentioned the package to Frank Meeks.
However, more significantly, Johnson, in fact, asked Meeks to pick up the package and deliver it
to Unit 25.
¶19. Johnson admittedly knew the contents of the package were those usually received by inmates,
yet she did not report the package to superiors which was in violation of the MDOC policy. Johnson
testified that she had received training on con games devised by inmates, including a section
regarding inmate packages. By virtue of her training, Johnson had been instructed not to take
packages to inmates. The record reveals she had numerous opportunities to turn in the package but
did not do so. Nor did she report receipt of the package to her own supervisor, Lawrence Henderson,
whose office was a mere fifteen feet away from her own. She also failed to report the incident to her
supervisor Eddie Lucas and changed her statement concerning the incident to investigators. Neither
statement by Johnson mentioned her conversation with Meeks. When told about Johnson situation,
the fellow employees, Marilyn Greganti and Patricia Roach, stated, "What did she lie about this time,
" and that she should "quit lying." Johnson also admitted that she had spent the night of May 28,
1989, with ex-inmate Belinda Criddle.

¶20. The ultimate question is whether Johnson's actions were reasonable under the circumstances.
The hearing officer determined that her actions were not reasonable. The EAB reinstated her
employment. After which the circuit judge reversed the Board and reinstated the hearing officer's
decision to terminate Johnson.

¶21. Johnson argues that the EAB has not made an accurate analysis of the facts or that the evidence
does not show that the offense was committed. The alleged offense requires a determination that the
employee's conduct was of such a nature that continued employment of that person would constitute
negligence on the part of the agency. Very strong evidence was presented in this case which suggests
that Laverne Johnson is not suited to be an employee for the Mississippi Department of Corrections.
One could conclude that Johnson has shown a propensity to wilfully smuggle packages to criminals
and thus is "unfit" to work for the MDOC. This conclusion is affirmed when one considers
statements made by Greganti and Roach, Johnson's fellow employees.

¶22. There are currently no cases that address the right of a state agency's right to dismiss a person
when it appears that retention would be negligent. However, this situation is analogous to those
where employers have been held liable to third parties for negligently retaining the employee. In
Eagle Motor Lines v. Mitchell, 239 Miss. 398, 78 So. 2d 482 (1955), this Court stated:

     Retaining in employment a servant who is, or should be, known to be incompetent, habitually
     negligent, or otherwise unfit, is such negligence on the part of the master as will render him
     liable for injuries to third persons resulting from the acts of the incompetent servant, whether
     the master's knowledge of the servant's incompetency was actual, or direct, or constructive; the
     master is chargeable with knowledge of the competency of the servant if by the exercise of due
     or reasonable care or diligence he could have ascertained such incompetence.

Mitchell, 239 Miss. at 412.

¶23. While there was no evidence that Johnson was incompetent or habitually negligent, abundance
of credible evidence exists suggesting that Johnson is "otherwise unfit," due to her apparent
propensity to smuggle packages to criminals. We must agree with the circuit judge and his analysis of
the situation. Johnson is "otherwise unfit" to work for MDOC.

¶24. This Court must afford deference to the fact finding role of the administrative agency and the
hearing officer's findings. There is strong evidence here, that Johnson knew exactly what she was
doing, smuggling drugs to an inmate. Why would she have asked Meeks to deliver a package to Unit
25, which she knew was not hers, and of the type received by inmates? Her claim that she was being
conned by a "con" appears but a ruse. In light of these facts, it is readily apparent Johnson should not
be working with inmates at MDOC.

¶25. Miss. Code Ann. §§ 25-9-127 and 25-9-131 in conjunction with State Personnel Board Rule
20(b) allow termination for Group III misconduct. Johnson's was charged with a Group III offence.
Discharge under § 25-9-127 must be for negligence, inefficiency or other good cause. Moreover, the
burden of proof was on Johnson.

¶26. How in good conscience could the EAB, having accepted the hearing officer's findings of fact,
set aside Johnson's termination on the ground that such action was too severe? The hearing officer's
termination of Johnson was appropriate and consistent with treatment equally applied to all
employees for the same violations. Moreover, this same authority also prevents the EAB from
reaching a decision not supported by their factual findings. Rule 20(b) mandates that the EAB shall
not alter the action taken by the agency, if the agency has acted in accordance with the published rule
and if the personnel action taken by the agency is allowed under the guidelines. That is exactly what
happened here. MDOC acted within the rules under which termination was allowed. There is no
finding to the contrary. Johnson, having the burden of proof, failed to establish that good cause did
not exist for her termination.

¶27. Miss. Code Ann. § 25-9-132(2) (a)(b)(c), (1972) allows review of the EAB decisions to
determine whether they are supported by substantial evidence, are not arbitrary or capricious, or not
in violation of a statutory or constitutional right. The EAB adopted the facts of the hearing officer,
but nevertheless, found that the "termination was too severe a penalty under the circumstances."
Judge Graves' perusal of the record resulted in his adoption of the facts of the hearing officer. He
therefore reversed the EAB, because he found their action to be "arbitrary and capricious." There
was substantial evidence in the record to support the decision of the hearing officer who found good
cause for termination. Judge Graves' action in reinstating the decision of the hearing officer was
imminently correct. A review of these facts from the record as set out above mandates that this Court
should affirm the circuit court. This issue is without merit.

                                           CONCLUSION

¶28. There is no merit to either of Johnson's claims. There was substantial evidence in this record to
support the decision of the hearing officer. We agree with the circuit judge's reversal of the EAB
decision. Johnson is "otherwise unfit" to work for the MDOC. For all of the reasons heretofore cited,
we affirm the lower court.

¶29. JUDGMENT AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, ROBERTS AND MILLS, JJ., CONCUR. BANKS,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J., AND
MCRAE, J.

     BANKS, JUSTICE, DISSENTING:
¶30. I have no quarrel with the suggestion by the majority that there was sufficient evidence before
the Employee Appeals Board to have decided to terminate Laverne Johnson under the charge lodged.
My problem with our disposition is that the fact finder here, the Employee Appeals Board, failed to
make that call. The majority reverts to the findings of the hearing officer, which were adopted by the
EAB but which fail to express the ultimate conclusion that Johnson had not shown that she should
not be dismissed for the offense charged. The EAB, inferentially, made a contrary ultimate finding,
concluding that Laverne Johnson engaged in the conduct alleged but that the punishment was
excessive. Because of the peculiar nature of the regulatory offense charged, conduct for which it
would be negligent to retain the employee, such a ruling appears contradictory. It is not our province
to decide these cases in the first instance, however. I would remand to the Employee Appeals Board
for reconsideration.

                                                   I.

¶31. Laverne Johnson held the title of Secretary Principal at the Mississippi Department of
Corrections (DOC) in Parchman, Mississippi, and had been employed by the DOC for sixteen years.
On October 20, 1989, Johnson received a package at the post office that had a return address in
Alabama. In fact, the package was postmarked from Tunica, Mississippi. The post office is
approximately 100 feet from Johnson's office.

¶32. The package contained items that were generally sent to inmates. Johnson claims that she was
expecting clothes from a relative in Alabama and thought that is what the package contained.
Johnson put the package in her vehicle and did nothing to turn the package in to security or internal
affairs. Johnson testified that she only notified Frank Meeks about the package. She also claims she
was the only secretary in the office and that she could not leave the office without permission because
her supervisor was out. Johnson also claims that she had planned to turn the package in when she had
the opportunity.

¶33. Eddie Lucas, Johnson's supervisor, testified that it had been an extremely busy day and he
expected everyone to get his/her work out that day. Johnson says that she did see her supervisor at
lunch but felt it inappropriate to discuss the matter there. Frank Meeks testified that Johnson asked
him to pick up the package and deliver it to a unit housing inmates.

¶34. Johnson was arrested later that evening. A search of the package revealed marijuana. Johnson
was terminated for a Class Three Offense, which according to the Mississippi State Personnel Board
Policy and Procedure Manual are:

     acts of conduct occurring on or off the job 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.

                                                  II.

¶35. Johnson appealed the decision to the EAB in accordance with the provisions of Miss. Code Ann.
§ 25-9-131 and the rules of the State Personnel Board (SPB). A hearing officer affirmed the
termination. The hearing officer's affirmation was based on the following findings of fact:

     The incident which led to the employment termination of the Appellant occurred October 20,
     1989. The Appellant received a package at the post office that had a return address of D.S.
     1759, Kelly Loop Road, Mt. Olive, Alabama 35117. However, the post mark on the package
     indicated that the package in fact had been mailed from Tunica, Mississippi. The Appellant
     received the package at approximately 10:00 A.M.; the post office is approximately 100 feet
     from Appellant's office. The Appellant opened the package, realized it was not for her and that
     it was probably an inmate's package, in that the contents are those that are sent to inmates. The
     Appellant took the package and put it in her car. The Appellant was arrested at approximately
     5:15 P.M., after a search of the package revealed marijuana. During the course of the day, the
     Appellant made no attempt whatsoever, to contact the security department or the internal
     affairs department.

     The Respondent contends that the Appellant was a vendor or conspirator to deliver marijuana
     to an inmate, which was contained in the package. The Appellant on the other hand contends
     that she was "set up" by another inmate. It makes no difference. The Appellant was in
     possession of the package which contained the marijuana, she did nothing to alert the security
     forces at the penitentiary, nor did she immediately return said package to the post office, which
     was approximately 100 feet away from the Appellant's office. The burden of proof is on the
     Appellant, and the Appellant has failed to meet that burden of proof. Furthermore, the
     Respondent has acted in good faith and with good cause.

¶36. On review, the full board unanimously accepted these findings, but reduced the penalty to a
thirty day suspension and ordered that Johnson be reinstated with back pay. There were no further
findings by the hearing officer or the full board. The DOC sought review by writ of certiorari. On
appeal, the Circuit Court of Hinds County concluded that the EAB could not alter an agency's
decision when such decision is in accord with the rules of the SPB. From this Johnson appeals.

                                                  III.

                                                   A.

¶37. Johnson first contends that a final decision by the EAB is not appealable by an employer, by
statute or writ of certiorari. Johnson is aware of Gill v. Mississippi Department of Wildlife
Conservation, 574 So. 2d 586 (Miss. 1991), wherein this Court held that an administrative agency
has the right to judicial review by writ of certiorari of a final decision of the EAB. Johnson requests
that this Court revisit the issue. I agree with the majority that we should decline to do so.B.

¶38. Johnson next contends that the circuit court erred in holding that the EAB's authority is
controlled by Rule 20(b) of the Employee Appeal Board Administrative Rules, in light of the explicit
powers accorded the EAB in Miss. Code Ann. § 25-9-131.

¶39. Rule 20(b), as promulgated by the SPB, states in pertinent part: "If the responding agency has
acted in accordance with the published policies, rule and regulations of the SPB and if the personnel
action taken by the responding agency is allowed under said policies, rules, and regulations, the EAB
shall not alter the action taken by the Agency."
¶40. The pertinent parts of Miss. Code Ann. § 25-9-131 state:

     (1) ...The employee appeals board may modify the action of the department, agency or
     institution but may not increase the severity of such action on the employee. Such appointing
     authority shall promptly comply with the order issued as a result of the appeal to the employee
     appeals board.

     (2) Any employee aggrieved by a final decision of the employee appeals board shall be entitled
     to judicial review thereof in the manner provided by law.

     It is the intent of Sections 25-9-127 and 25-9-131 to supercede and replace any existing
     statutory procedure conflicting in whole or in part which provides for the discharge of state
     employees in any state agency.

¶41. The statute explicitly states that the EAB may modify the decision of an agency. There is no
procedure given for a modification, but there is authority. There is no language that implies that the
power of modification may be limited. While Miss. Code Ann. § 25-9-115 does give the SPB
authority to make rules and regulations, it is not authorized to make rules and regulations in
contradiction to §§ 25-9-127 and 25-9-131.

¶42. The well settled rule is that an agency's rule making power does not extend to the adoption of
regulations which are inconsistent with actual statutes. Pittman v. Mississippi Pub. Serv., 538 So.
2d 367, 373 (Miss. 1989); Buse v. Mississippi Emp. Sec. Com'n, 377 So. 2d 600, 602 (Miss. 1979);
Mississippi State Tax Comm'n v. Reynolds, 351 So. 2d 326, 327 (Miss. 1977). Rule 20(b) should
not be read so broadly as to run afoul of this principle.

¶43. The circuit court stated that the statute does not provide any guidance as to when the EAB may
modify an action. While this is so, that fact does not warrant a blanket restriction on the exercise of
that power. It follows from what has been said, with respect to judicial power of review by certiorari,
that EAB modifications of remedies are subject to review on the arbitrary or capricious standard.

¶44. That is not to say that Rule 20(b), appropriately interpreted, is not a valid exercise of regulatory
authority. The SPB has the broad responsibility of developing policies which promote a fair, merit
employment system. It is difficult to imagine an adverse employment action which at once comports
with those policies and is, nevertheless, amenable to alteration on a basis other than one which is
arbitrary or capricious. Put simply, the rule prohibits the EAB from simply substituting its judgment
for that of the appointing authority without an articulable basis grounded in the announced policies of
the SPB, the statutory goals of our employment system or the due process and fundamental fairness
rights of the individual employee. There may be circumstances in a particular case where factors in
mitigation or otherwise are so clearly shown and so compelling that the EAB would be warranted in
taking a different path despite the fact that technically speaking the agency action is permissible under
published rules and regulations.

¶45. In the instant case, however, as will be shown below, no findings were made which could give
comfort to the reviewing authorities that the EAB action was not an arbitrary and capricious
substitution of its judgment for that of the DOC. Clearly, when it appears that agency actions
comport with the rules and regulations announced by the SPB, the EAB is bound to articulate a
reason grounded in written policy, statutory law or the constitution for altering those actions. See
Young v. Mississippi State Tax Comm'n, 635 So. 2d 869 (Miss. 1994). There is no such articulation
here.

                                                  C.

¶46. Johnson appealed to the EAB from the DOC's finding that she had committed a Class Three
Offense. Johnson was found to have violated Rules 10(C), and 11 of the Mississippi State Personnel
Board Policy and Procedure Manual. Rule 11 reads:

     [A]cts of conduct occurring on or off the job 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.

¶47. The problem here is twofold. First, the EAB has not made an analysis of the facts that the
evidence shows that the offense was committed. The offense calls for a determination that the
conduct shown was of such a nature that continuing the employment could constitute negligence on
the part of the agency. The hearing officer failed to make such a determination. There was no
reference whatsoever as to how retaining Johnson could be considered negligent. We have not
previously discussed a dismissal under this rule. In Eagle Motor Lines v. Mitchell, 223 Miss. 398,
412, 78 So. 2d 482, 487 (1955), this Court quoted the following language from 57 C.J.S. Master
and Servant § 559, at 271 (1948):

     Retaining in employment a servant who is, or should be, known to be incompetent, habitually
     negligent, or otherwise unfit, is such negligence on the part of the master as will render him
     liable for injuries to third persons resulting from the acts of the incompetent servant, whether
     the master's knowledge of the servant's incompetency was actual, or direct, or constructive; the
     master is chargeable with knowledge of the competency of the servant if by the exercise of due
     or reasonable care or diligence he could have ascertained such incompetence.

¶48. There was no evidence that Johnson was incompetent or habitually negligent. However, there is
strong evidence that Johnson is "otherwise unfit." It would not be a stretch to say that this is not an
isolated incident of negligence or failure of judgment. One could conclude that Johnson has shown a
propensity to wilfully smuggle packages to criminals and thus is "unfit" to work for the DOC.
However, this determination needs to be made by the EAB. While the hearing officer concluded that
Johnson engaged in certain conduct, neither the hearing officer nor the EAB followed through to the
next step and determined that the conduct was such that it could not say that the agency would not
be negligent to retain Johnson in its employment. The EAB accepted that incomplete finding without
modification.

¶49. The second problem with the EAB's decision is that the full board reduced the action to a thirty
day suspension. If the EAB felt that it was negligent to continue her employment, it could not with
consistency order the DOC to continue her employment. On the other hand, a thirty day suspension is
a permissible action only for a Class Three Offense. The only charge made against Johnson was a
violation under Rule 11. Therefore, it appears that the full board is agreeing that Johnson has
committed only the Class Three Offense charged. The findings and the actions of the EAB cannot be
reconciled.
¶50. Out of an abundance of caution and out of deference to the fact-finding role of the
administrative agency, however, it is my view that the better course in these circumstances is to
remand this matter to the EAB to either vacate its order altering the discipline given Johnson or
articulate a rationale basis for altering the action which comports with the law. Mississippi Emp.
Sec. Com'n v. Collins, 629 So. 2d 576, 582 (Miss. 1993).

SULLIVAN, P.J., AND McRAE, J., JOIN THIS OPINION.
