BEFORE HAWKINS, P.J., ANDERSON AND GRIFFIN, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
The City of Jackson has appealed the judgment of the circuit court of the First Judicial District of Hinds County reversing the order of the Civil Service Commission of Jackson affirming the City's discharge of Dennis Froshour, and directing that he be reinstated as an employee of the Jackson Police Department.
We find that the order of the Civil Service Commission was based upon substantial evidence, was made in good faith for cause, and therefore reverse the judgment of the circuit court and reinstate the order of the Commission.
The seed from which this case eventually developed grew from a domestic dispute between Kenneth Fike (Fike) and his estranged wife Connie. The Fikes' marriage had lasted approximately four and one-half years, during which there were many separations during which divorce was contemplated. The last separation occurred in July of 1985 when Connie moved out taking the Fikes' three and one-half-year-old son. On the night of October 29, 1975, Fike followed Connie to her friend's house and threatened Connie with a shotgun as she was getting out of her car. Fike pointed the gun at Connie's head and asked if she was ready to die. Observing neighbors called the police, and one neighbor forced Fike to leave. Later that night he checked himself into the Veterans Administration Hospital (the VA) in Jackson. Fike spent four days at the VA, where he was given mild sedatives and was monitored by hospital personnel.
Because Connie could not get the police in the appropriate precinct to allow her to file charges against Fike, she consulted Police Sergeant Burton, who worked in another precinct, to take an offense report. Sergeant Burton was assisted on that day by Officer Froshour.
After Fike's four days' stay in the VA Hospital, through counseling by Hinds County Deputy Sheriff Hal Morris, a personal friend of Fike's, Fike requested to be released from the VA. Fike was told by the doctor that because he was still upset and nervous he should not be released. Fike was, however, eventually released after the doctor told Fike that he would have to be released into custody of the Jackson Police Department. Because Froshour had accompanied Sergeant Burton in the investigation, when the arrest warrant was issued, it went to Froshour to make the arrest. Froshour then traveled to the security captain's office in the VA to arrest Fike. Upon arrival, Froshour frisked Fike and placed him in handcuffs behind his back. Froshour then escorted Fike through the emergency room and out in the parking lot to Froshour's car. Fike then complained to Froshour about the handcuffs being too tight. From this point forward Fike's and Froshour's stories, although somewhat similar, become different.
Fike stated that Froshour then tightened the handcuffs even tighter. Froshour opened the back door of the police car and shoved Fike into it. Then as Froshour cranked the car, he began telling Fike how he was going to beat him up
and show him what it was like to point a gun at a woman's head. Froshour drove "wild" , running yellow lights and cursing Fike. Froshour stopped on the way to the police station at the police garage where Froshour cursed the mechanic, stating that he needed to fix the car. Froshour then jumped back into the car and drove to the city jail. Froshour pulled the car into the back of the parking garage. He got out of the car, opened the back door and grabbed Fike by the handcuffs. He jerked Fike out of the car by his left arm and told him to stand by a certain door. Fike saw Froshour pull some black gloves out of his jacket and put them on. Fike then tried to turn a door knob on the door where he was standing, but it was apparently locked. Froshour approached Fike cursing and began hitting and kicking Fike, knocking Fike to the ground. Froshour then continued stomping and kicking Fike. At this point Froshour pulled out his pistol from his holster and struck Fike on the side of the head about five or six times. Fike was then escorted by Froshour to a small room where Fike was unhandcuffed and again kicked against the wall by Froshour. Fike further testified that Froshour stated, "You want my name and you want my badge number? *fn1 Nobody would believe this. You just come off a nut ward. Nobody is going to believe nothing you say or anything."
Fike went on to testify that he just sat in the cell with his ribs and back hurting. Someone came in to sweep and Fike told him that he had just been beaten up by a police officer and needed help, which Fike said was ignored. Later, after Froshour had left, another detective brought in a prisoner and Fike once again repeated that he had been beaten up by a police officer and needed help. The officer told Fike that because of police policy the arresting officer would have to take him back to the hospital. Fike, believing that he would be beaten up worse, declined to be taken back to the hospital by Froshour. Once Fike was taken upstairs, he requested to phone Deputy Sheriff Morris. Shortly thereafter Deputy Morris arrived and was allowed to transport Fike back to the VA. There Fike was examined, x-rayed and given aspirin. Fike then was returned to the city jail. The VA medical record notes that the physical examination of Fike following his arrest showed multiple contusions. There was some bruising, or petechiae, noted on his trunk, right and left lower chest, and left flank. His lower lip was cut and bruised.
Around the second day of Fike's incarceration, investigators from Internal Affairs talked with him and took pictures. Connie's charges against Fike had been dropped as part of the divorce proceedings which became effective that
day or the day before. Fike, however, remained in jail for violation of his three-year probation of a Florida conviction for arson. Once the Florida officials found that Fike's arrest stemmed from a domestic problem, Fike was released.
Froshour's account of what happened after Fike complained about the tight handcuffs was that most arrestees complain about the handcuffs. Froshour went on to testify that he checked the chains and could slip the cuffs up and down on Fike's wrist, and were not too tight. As Froshour and Fike approached the vehicle, Fike questioned Froshour concerning the warrants. Froshour stated that because of the people watching, he would discuss it with him only in the car. Froshour then opened the door to the car and asked Fike to sit down. Fike would not, and he then reached behind Fike's head and put his knee in Fike's stomach and bent him down into the seat of the car. Once both individuals were inside the car, Fike started cursing Froshour, and saying he would get even with him. Fike continued cursing and accusing Froshour of having a personal vendetta toward him. Froshour stated that he did stop at the garage to pick up his paperwork which was in his usual patrol car which was being repaired, but proceeded to the city jail. Finding no parking place, he parked in a place belonging to one of the deputy chiefs. He opened the door to let Fike get out. Because Fike would not exit the car, Froshour reached in, grabbed Fike's leg and turned him, at which point Fike kicked at Froshour. Froshour then grabbed Fike by the hair of the head and pulled him out of the car. Then he told Fike to stand still while he got the paperwork out of the car. Fike, however, began walking away around the front of the car. After Froshour got his paperwork out of the car, he walked down to retrieve Fike from near the corner of the garage. Froshour maintained that he and Fike could be seen by anyone coming into the garage at any time. Froshour grabbed Fike, turned him around, "jacked" the handcuffs up to immobilize Fike, and started bringing him back. When Fike tried to spit on him, Froshour popped him with his open hand "with papers in it" to Fike's mouth area. Froshour further stated that Fike stomped his foot on which he had recently had minor surgery.
Froshour was interviewed several times by the City's Internal Affairs Division. The first interview was the day after Fike's arrest and was conducted by Sergeant J. L. Covington. When asked by Covington if he had struck Fike, Froshour denied it. In his testimony Froshour explained this
answer by stating that he thought Covington meant had he hit Fike with his fist or a club, and his slapping Fike with his open hand (holding papers) did not register with him. A second interview was conducted on November 6, 1985, at approximately 8:24 a.m. by Sergeant Covington, primarily to inform Froshour that he might need to submit to a polygraph examination. A polygraph examination was subsequently conducted by William B. Inman, Jr., around 11:00 that morning. On the afternoon of the next day, Froshour was interviewed by Chief of Police L. C. Smith concerning discrepancies between the initial interview with Sergeant Covington and statements made to the polygraph examiner. Froshour was then immediately sent to Sergeant Covington to explain the discrepancies. During this interview when asked if he had lied on the polygraph, Froshour refused to answer. Subsequently the chief of police was called to order an answer from Froshour. Based on Froshour's continued refusal, the chief suspended him.
Froshour was later sent a letter of intent to dismiss and offered a pre-termination hearing. On November 25, 1985, Froshour was terminated and given notice that he had a right to appeal to the Commission within ten days. Froshour did appeal to the Commission which held a hearing on January 30, 1986, before Gene A. Wilkinson, chairman, William K. Dease and Jacqueline Povall. At the conclusion of the hearing, the Commission took the matter under advisement. An opinion was subsequently rendered on February 13, 1986.
The Commission's order first noted that Froshour's termination letter notified him that: the police department had found his and Fike's statements conflicted and that his answers were evasive; both parties submitted to a polygraph examination; and that Froshour had admitted to "lying to the polygraph examiner, but refused to answer which questions" he had "lied about," and even after he received an order of the chief of police to answer the question. This constituted insubordination. Froshour was also notified that he was not truthful when he told Internal Affairs that he did not strike Fike; that he in fact kneed and struck Fike more than once. The letter went on to note that Froshour's file contained more complaints than any other officer of the police department, and of nineteen complaints against him, eleven had been for brutality.
The letter further noted that Froshour had admitted to "popping" Fike more than once, pulling his hair, and kneeing him, all while he was handcuffed. The letter concluded that Froshour's insubordination, refusal to cooperate in the investigation, brutality and dishonesty would no longer be tolerated.
The Commission order further found that Froshour physically assaulted Fike when the latter was handcuffed, that bruises had been noted on Fike's wrists, trunk, abdomen and back, and that Fike had a swollen lower lip with a cut on the inside.
The order further noted that while Froshour at the hearing had denied striking Fike other than with the back of his hand, he had admitted to the polygraph examination that he had struck Fike in the stomach with his knee, and "rabbit punched" him several times in the back and stomach. The order then contained the following sentence:
Moreover, given the circumstances immediately leading up to his arrest, there is no indication of any motivation for Mr. Fike to lodge an unfounded complaint against Officer Froshour or resist arrest.
The order found that the police department's decision to discharge Froshour was supported by the facts.
The Commission rejected Froshour's contention that the police department's requirement that he submit to a polygraph violated his constitution rights, but found in any event that his admission to the polygraph examiner was made prior to the examination.
The Commission did not rule on Froshour's contention that his Fourteenth Amendment rights had been violated by the police department's using the polygraph results in terminating his employment, because the Commission found there was no evidence the department had used the examination's results in deciding to terminate him. The Commission found, moreover, that there was substantial evidence supporting the department's decision regardless of the polygraph results.
IT IS THEREFORE, the opinion of this Commission that the City of Jackson has convincing evidence to support the dismissal of Officer Froshour and that he was not dismissed for political or religious reasons. The Commission therefore affirms the findings of the appointing authority of the City of Jackson.
Froshour appealed to the circuit court of the First Judicial District of ...