FAIR, J., FOR THE COURT
DATE OF JUDGMENT: 06/16/2017 TRIAL JUDGE: HON. JON MARK WEATHERS COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DAVID C. FRAZIER ATTORNEYS FOR APPELLEE: JAMES W. GLADDEN JR. MORAN M. POPE III NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED: 11/20/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND WILSON, JJ. FAIR, J., FOR THE COURT: ¶1. This appeal stems from Clint Breland's termination of employment as a police officer by the City of Hattiesburg (City), which was upheld by the Hattiesburg Civil Service Commission (HCSC). The Forrest County Circuit Court affirmed the termination. Breland now appeals the Forrest County Circuit Court's ruling. For the following reasons, we affirm.
FACTS
¶2. In 2011, 34-year-old Breland made a traffic stop on 16-year-old Christan Damiens. Breland did not give Damiens a ticket for the moving violation but instead gave her a Hattiesburg Police Department was terminated on February 3, 2015. Breland appealed to the HCSC. The HCSC held a hearing on December 14, 2015, and February 22, 2016, in which it considered all issues and violations associated with the termination of Breland's employment with the City Police Department. ¶7. In its March 7, 2016 decision, the HCSC upheld the City's decision to terminate Breland's employment and specifically found "the testimony of Miss[]Christan Damiens to be credible and uncontroverted after considering all of the testimony and evidence we have found that Officer Breland's conduct and behavior violated . . . section[s] of the AOM." The HCSC did not find the termination was for political or religious reasons and "that the level of punishment imposed was for cause and imposed in good faith." ¶8. Aggrieved, Breland perfected his appeal to the Forrest County Circuit Court, which upheld the decision of the HCSC. Breland now appeals to this Court.
DISCUSSION
¶9. According to Mississippi Code Annotated section 21-31-9 (Rev. 2015), the HCSC has the duty:
[T]o make suitable rules and regulations not inconsistent with the provisions of
Sections 21-31-1 through 21-31-27. Such rules and regulations shall provide in detail the manner of conducting examinations, appointments, promotions, transfers, reinstatements, demotions, suspensions and discharges, and may also provide for any other matter connected with the general subject of personnel administration, and which may be considered desirable to further carry out the general purposes of
Sections 21-31-1 through 21-31-27. It shall have the power to conduct investigations, and make reports on all matters touching the enforcement and effect of the provisions of
Sections 21-31-1 through 21-31-27, and the rules and regulations prescribed hereunder. The
commission shall have the power to investigate all complaints which must be reduced to writing, subpoena witnesses, administer oaths, and conduct hearings.
"A discharged police officer may appeal his or her termination to a civil service commission, which shall determine whether the decision to terminate the officer was or was not made for political or religious reasons and was or was not made in good faith for cause."
Phillips v.
Hancock Cty.
Sherriff's Dep't, 203 So. 3d 622, 626 (¶20) (Miss. Ct. App. 2016). The HCSC, as a duly authorized administrative body, is charged with the duty of being the fact finder in this case.
See Ladnier v.
City of Biloxi, 749 So. 2d 139, 154 (¶61) (Miss. 1999). ¶10. Further, this Court is not called upon to determine issues of fact regarding whether an employee actually committed the alleged misconduct that led to his or her termination.
Renfro v.
City of Moss Point, 156 So. 3d 913, 917 (¶19) (Miss. Ct. App. 2014). The burden to show that the HCSC acted in bad faith or without cause is upon Breland.
Ladnier, 749 So. 2d at 155 (¶64) (citing
Stegall v.
City of Meridian, 92 So. 2d 331, 332 (Miss. 1957)).
1. Substantial Evidence ¶11. Breland first contends that the record is devoid of proof of his misconduct and that there was not substantial evidence to support the City's termination. This Court, like the circuit court, applies the same familiar standard of review for decisions of administrative agencies—"the criterion is whether or not from an examination of the record there exists credible evidence substantiating the action taken by the city. It is upon this basis that the court determines whether or not the decision was in good faith for cause." City of Jackson his home and was using methamphetamine. ¶21. Although Breland makes much of the administration of the polygraph test on himself and Damiens, the HCSC considered all the facts and considered Damiens's testimony to be a major factor in its decision-making process. As such, we agree with the circuit court that there was substantial evidence independent of the test for the HCSC to confirm Breland's termination.
29 U.S.C. § 2006(a) (2012). --------
2. Due Process ¶22. In addition to Breland's issues with the polygraph examination that we have already discussed and determined was not in violation of the AOM, Breland argues that he was precluded from viewing Damiens's entire video and written statements taken at the initial interview. ¶23. Lieutenant Traxler explained that both the video and the statement had to be redacted because they included other individuals that were involved in the internal investigation. Breland believes that denial of this "crucial" information prevented Breland from being able to fully and effectively cross examine Damiens. Breland points to his fundamental right to "face one's accuser(s) through the rigors of cross examination with all the pertinent facts provided to the accused." Breland admits that he received procedural due process in that he had a hearing pursuant to Mississippi Code Annotated section 21-31-23 (Rev. 2015). ¶24. Breland points to Reyes v. North Texas Tollway Authority, 861 F. 3d 558 (5th Cir. 2017), to support his claim that he was deprived of due process. In Reyes, the Fifth Circuit explained that to prove substantive due process, an employee must show that the government's action was "so egregious, so outrageous, that it may fairly be said to shock the conscience." Id. at 562 (quoting Conroe Creosoting Co. v. Montgomery Cty., 249 F.3d 337, 341 (5th Cir. 2001)); see also Hall v. Board of Tr. of State Inst. of Higher Learning, 712 So. 2d 312, 319 (¶25) (Miss. 1998) (explaining substantive due process). ¶25. The record is clear that the City conducted a broader internal investigation. The City followed procedures outlined in the AOM. In addition, Lieutenant Traxler's reasons for the redacted items and their availability rebutted Breland's assertions that the information was being withheld. Nothing in the record "shocks the conscience" with regard to substantive due process. Furthermore, it is evident that Breland was afforded an evidentiary hearing, was represented by counsel, and was permitted to call witnesses on his behalf and had an opportunity to be heard. Breland had time to conduct a thorough examination of Damiens prior to the hearing and cross examine her at the hearing. We do not find that Breland was deprived of due process, and from the whole record, we are of the opinion the HCSC was justified in finding that his discharge was for cause and imposed in good faith.
3. Collateral estoppel ¶26. In Breland's final argument, he argues that the HCSC is precluded from determining factual issues in the case at bar, because the same issues have been decided by an Administrative Law Judge (AJ) in Breland's unemployment compensation hearing.
[T]he doctrine of collateral estoppel must never be seen as anything other than an unusual exception to the general rule that all fact questions should be
litigated fully in each case.
The several predicates to application of the preclusive effect of the doctrine . . . are designed to promote substantial judicial and litigant interests. They are also designed to assure substantial reliability in the facts found in the first proceedings. Where there is room for suspicion regarding the reliability of those first fact findings, collateral estoppel should never be applied.
City of Ocean Springs v.
Homebuilders Ass'n of Miss.
Inc.,
932 So. 2d 44, 59 (Miss. 2006) (citing
Miss.
Emp't Sec.
Comm'n v.
Philadelphia Mun.
Separate Sch.
Dist.
of Neshoba Cty.,
437 So. 2d 388, 396 (Miss. 1983)). ¶27. The AJ was not a fact finder of the issue at hand, namely whether Breland's termination was supported by substantial evidence. The AJ was specifically charged with determining whether the City met its burden to establish misconduct such that it would warrant the claimant, Breland, a disqualification for benefits. While the AJ held that Breland was entitled to benefits, it noted that it "does not question the employer's right to terminate an employee." This issue falls squarely within the HCSC's purview to determine the underlying validity of the termination. ¶28. Furthermore, we note that the telephonic hearing conducted with the AJ did not allow for testimony or cross examination of witnesses, which is a right Breland and the City exercised during the HCSC hearing and the HCSC specifically relied on Damiens's testimony. The HCSC had a duty "as trier of the facts, to determine what the real facts were in connection with the discharge. They saw and heard the witnesses, and observed their demeanor."
Hill v.
City of Hattiesburg, 223 Miss. 163, 166,
77 So. 2d 827, 828 (Miss. 1955).
We find that not all the factual issues and the specific questions raised at the HCSC hearing were litigated fully at the unemployment compensation hearing and therefore the doctrine of collateral estoppel does not apply. ¶29. For the foregoing reasons, we affirm the HCSC's findings upholding Breland's termination. ¶30.
AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.