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Holly v. Mississippi Department of Corrections

October 22, 1998

NORRIS HOLLY
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS



Before Sullivan, P.j., Mills And Waller, JJ.

The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court

DATE OF JUDGMENT: 04/02/97

TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

¶1. This appeal arises from the termination of Norris Holly from his position as a Correctional Officer, CO-I, at Unit 29 of the Mississippi Department of Corrections (hereinafter MDOC) at Parchman. On April 21, 1995, CO-I Albert Robinson approached Holly in his car as he neared the front gate of Parchman at the end of his shift. Robinson had followed Holly to the front gate after observing Holly speeding and driving recklessly. Holly cursed Robinson and refused to identify himself, so Robinson called Captain Charles Cole, the Institutional Watch Commander. Holly cursed Captain Cole and refused to give him his ID. After Holly refused to move his car, Captain Cole attempted to retrieve Holly's car keys, but Holly shoved and threatened Captain Cole. Upon Major Gene Crocker's request, Holly moved his car, and a search of the vehicle was conducted, revealing a pistol under the driver's seat. The officers working in and around the front gate testified that Holly failed to check his weapon in at the front gate that day, but the weapons log from the front gate was missing the page from April 21 by the time of Holly's hearing before Employee Appeals Board Hearing Officer Falton O. Mason, Jr.. Witnesses for Holly testified that they did not hear Holly use any profanity, nor did they see Holly shove Captain Cole. One witness also stated that she saw an officer at the front gate hand Holly an object before Robinson arrived. Holly testified that the officers were lying and implied that there was a conspiracy against him to have him fired. Deputy Sheriff Aaron Trotter arrived on the scene and took custody of Holly, who was charged with public profanity, reckless driving, simple assault, and possession of a weapon.

¶2. Superintendent Edward M. Hargett notified Holly of his termination by a letter dated June 19, 1995. The grounds for termination as set out in the notification were:

"Group III, Number 11--Acts of conduct occurring on or off the job which are plainly 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; Group III, Number 9--Threatening or coercing employees, supervisors, or business invitees of a state agency or office, including stalking; Group III, Number 8--Unauthorized possession or use of firearms, dangerous weapons or explosives; Group II, Number 1--Insubordination, including, but not limited to, resisting management directives through actions and/or verbal exchange, and/or failure or refusal to follow supervisor's instructions, perform assigned work, or otherwise comply with applicable established written policy; Group I, Number 3--obscene or abusive language."

¶3. Holly appealed his termination to the Employee Appeals Board (hereinafter EAB), and on October 3, 1995, Hearing Officer Mason conducted the hearing on Holly's appeal. Officer Mason sustained Holly's termination by the MDOC, dismissing Holly's appeal with prejudice, in an October 1, 1995, order. Holly requested a review of Officer Mason's decision by the Full Board. The EAB affirmed Officer Mason's order based upon a review of the record before it on March 29, 1996. In its order, the EAB noted that Holly failed to file a brief or a hearing transcript.

¶4. Holly next appealed to the Circuit Court of Sunflower County. Circuit Court Judge Gray Evans affirmed the decision of the EAB in an order dated March 17, 1997, based upon the limited record before the circuit court, since Holly failed to have a transcript of the EAB hearing prepared for his appeal. On March 24, 1997, Holly filed a request for a time extension due to his financial problems and the murder of his attorney, Cleve McDowell. Holly also filed a motion requesting the circuit court to reconsider its decision, asserting that he had new evidence in the form of his acquittal in the criminal charges filed against him in Justice court. Judge Evans denied Holly's motion for reconsideration in an April 2, 1997, order. Holly appeals to this Court, assigning as error the denial of his request for a time extension, the refusal of the circuit court to consider new evidence, and application of an improper legal standard in the hearing officer's review of his termination.

STATEMENT OF THE LAW

I.

CIRCUIT COURT'S DENIAL OF HOLLY'S REQUEST FOR A TIME EXTENSION

ΒΆ5. Holly contends that the circuit court should have granted his request for additional time to file a brief after his attorney was found murdered and due to financial strain. Holly also argues that the circuit court's denial of his petition, based upon a limited record, was in error, because he cannot afford to pay for his hearing transcript. Cleve McDowell, Holly's attorney, was killed on March 13, 1997. 1997 Miss. Laws, Senate Concurrent Resolution 642. Judge Evans entered his order affirming the EAB's ...


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