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CITY OF PICAYUNE, PICAYUNE POLICE DEPARTMENT, a Mississippi Municipal Corporation v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and LYNDA M. RAPER

MAY 25, 1988

CITY OF PICAYUNE, PICAYUNE POLICE DEPARTMENT, a Mississippi Municipal Corporation
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and LYNDA M. RAPER



BEFORE ROY NOBLE LEE, C.J., ANDERSON and GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This is an appeal from an Order of the Pearl River County Circuit Court, affirming the Board of Review of the Mississippi Employment Security Commission (hereinafter" MESC "). The Board held that appellee, Lynda M. Raper, was not guilty of misconduct connected with her work so as to be disqualified from receiving unemployment benefits.

The City of Picayune and the Picayune Police Department appeal, urging that the decision of the Board of Review is erroneous as a matter of law and is unsupported by substantial evidence.

 I.

 Lynda M. Raper worked for approximately six (6) years for the City of Picayune Police Department, Picayune, Pearl River County, Mississippi, as a dispatcher. Her employment came to an end on September 25, 1985, at which time she was discharged for misconduct. Raper filed a claim with the MESC, which it denied based on her misconduct in violation of 71-5-513 (2).

 A hearing was held before the Referee, at which time several witnesses testified for the City of Picayune Police Department, and various exhibits were entered into evidence on its behalf.

 One such exhibit, a letter from Lt. Charles Stockstill, Interim Chief of Police, to the City of Picayune Police Personnel Department, stated that Raper's discharge stemmed from her receipt of over $700 worth of personal long distance collect telephone calls from her son, Dale Raper, who was incarcerated at the time of the calls in the State Prison at Parchman, Mississippi.

 During the period of January to August, 1985, there were approximately 141 collect calls made and accepted by claimant which amounted to over $700. In the beginning, Mrs. Raper accepted a very limited number of calls. As time passed, the practice increased. In July and August she was accepting four to five calls daily.

 Raper alleged that she had been authorized to accept these calls by Chief Lorance Lumpkin, formerly of the Picayune Police Department, conditioned on her offer to reimburse the department. The record supports a finding that

 Lumpkin authorized acceptance of a limited number, two or three. Other testimony by Stockstill, Tony Gibson and Nancy Durham (all employed by the Picayune Police Department) established that no such authorization had been given, or at least a very limited permission was granted, and that no offer of reimbursement had been made by Raper.

 At the close of the hearing, the Referee found that Raper was discharged for misconduct in violation of 71-5-513 (2) and held her ineligible for benefits as per the decision of the MESC. Raper appealed to the Board of Review, who reversed. The circuit court affirmed and subsequently the City of Picayune Police Department has appealed.

 The Board of Review reversed the Referee but made no finding that Mrs. Raper did not violate any" rule or policy of the employer ", but that the violation was not willful and further that" the evidence shows, however, that claimant had been given permission to accept such calls and that it had been a common practice among other employees to make or accept such calls. "It would hardly be good law to allow one to engage in misconduct because others did, even if the record supported such a finding (which it does not).

 Numerous directives had been published to all employees of the police department prohibiting the activities in which Mrs. Raper engaged, among them is one which reads as follows:

 1. It has come to my attention that a large number of long distance telephone calls are being made and ...


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