The opinion of the court was delivered by: Bridges, C. J.
DATE OF JUDGMENT: SEPTEMBER 19, 1996
TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION: CIRCUIT COURT AFFIRMED THE TERMINATION DECISION OF THE BILOXI CIVIL SERVICE COMMISSION.
¶1. Kevin Ladnier appeals from a ruling of the Circuit Court of Harrison County, Mississippi which affirmed a decision by the Civil Service Commission of the City of Biloxi that he was fired for cause. For the reasons set forth in this opinion, we affirm.
¶2. Kevin Ladnier was the chief criminal investigator of the Biloxi, Mississippi, Police Department. On February 3, 1993, Ladnier sought to swear out a warrant for the arrest of Samuel Taggert on a charge of false pretenses. Late that morning, Ladnier contacted Justice Court Judge Dewey Lawrence and informed Judge Lawrence of the grounds for Taggert's arrest. As was their custom in such matters, Judge Lawrence asked for a bond amount recommendation from Ladnier, who suggested that Taggert be required to post a $5,000 bond. After agreeing to the bond, Judge Lawrence signed and issued the warrant. Copies of the warrant were given to Frances Gily, the deputy Justice court clerk and office manager. Ladnier retained the original warrant and placed it in his office file, but he did not check the document at that time to confirm that Judge Lawrence had written in the recommended bond amount on the warrant. In fact, Judge Lawrence set the bond at $1,000 instead.
¶3. Ladnier, who was ill with a high fever, went home at approximately 4:30 p.m. on that day after the warrant was issued. Later, the Long Beach Police Department officials contacted Investigator Nathan LeBlanc and informed him that Samuel Taggert was in their custody. After looking for the arrest warrant, LeBlanc called Ladnier at home. Shortly thereafter, Ladnier arrived at the station to hand over the Taggert arrest warrant. Ladnier informed LeBlanc that the bond was $5,000. However, when LeBlanc reviewed arrest warrant, he observed that the bond amount was $1,000 and brought the inconsistency to Ladnier's attention. Ladnier explained that Judge Lawrence had made an erroneous bond entry on the document and proceeded to use "white-out" correction fluid to alter the number "1" to the number "5", thereby changing the bond amount on the arrest warrant to $5,000. When LeBlanc asked Ladnier what he was doing, Ladnier answered that he was correcting the bond amount and that he would contact Judge Lawrence the next morning about the change.
¶4. LeBlanc formally arrested Samuel Taggert and advised him of the bond amount. Taggert telephoned a family friend, Judge Mary Foretich, and she spoke to LeBlanc about the bond. Seeking to obtain a recognizance bond on behalf of Taggert, Judge Foretich contacted Judge Lawrence. However, Judge Lawrence refused to discuss the matter that evening and indicated that he would do so the next day.
¶5. The following morning, LeBlanc asked Ladnier if he had contacted Judge Lawrence. Ladnier said he had not done so and instructed LeBlanc to take the paper work over to Judge Lawrence and "take care of it." Instead, LeBlanc took the warrant to the circuit clerk's office and explained to Ms. Gily that Ladnier had altered the amount of the bond on the warrant. Ms. Gily informed LeBlanc that Taggert, after spending the night in jail, had been released earlier that morning on a recognizance bond by Judge Lawrence. LeBlanc called Ladnier and requested that he come over to the clerk's office.
¶6. At some point that morning, Ladnier called Ms. Gily and requested that she dispose of the Taggert warrant which she had been given because he was going to replace it with another copy reflecting the correct bond amount. Although she told Ladnier "okay," Ms. Gily did not discard the warrant because she believed that to do so would constitute a felony. When she asked Ladnier why he had raised the bond amount, he responded that Taggert was an "a-- -----." Ladnier later admitted making this statement to Ms. Gily and, in hindsight, stated that it was not an appropriate remark as he had never met Samuel Taggert. Investigator LeBlanc confirmed that Ladnier never had any contact with Samuel Taggert, and to his knowledge, Ladnier did not know Taggert.
¶7. Judge Lawrence first learned of the problem with the warrant when Ms. Gily came into his office as he was meeting with the county prosecutor, Bob Payne. At the time of this incident, Judge Lawrence was recovering from open heart surgery and later stated that he discussed the bond amount with Ladnier, but he could not recall the bond amount that Ladnier recommended. Having worked with Ladnier in the past, Judge Lawrence indicated that he normally would have written down the bond amount that Ladnier suggested. Although the Judge stated that it was his decision to determine the bond amount on arrest warrants, he nevertheless testified that he did not believe Ladnier did anything wrong. Judge Lawrence remembered speaking to Ladnier in a telephone conversation and in person on the morning of February 4, 1993, but he could not recall whether he and Ladnier had spoken more than one time on that morning. In his later testimony, Judge Lawrence commented that had Ladnier asked him to raise the bond to $5,000, he would have approved the change.
¶8. Ladnier later testified that he spoke to Judge Lawrence twice on the morning after the warrant had been issued. In his first conversation, the Judge informed him that Taggert would be released on a recognizance bond. Ladnier had no objections and informed the Judge had he would be over at his office later that morning to talk to him about another matter.
¶9. This incident occurred during Ocean Springs Mayor Pete Halat's term of office. D.D. Cvitanovich was the chief of police under Mayor Halat. Cvitanovich explained that Ladnier reported the incident to him on the morning of February 4, 1993 (the day after the warrant was issued by Judge Lawrence) and that he spoke with County Prosecutor Bob Payne about Ladnier's actions. Cvitanovich stated that he was instructed by Payne to investigate the matter, report to him, and to keep the matter confidential. Although Payne denied making such a statement, Cvitanovich stated that Payne indicated to him that the district attorney disliked Ladnier and that Payne wanted to prevent the incident from "snowballing." Cvitanovich stated that he complied with Payne's request and, on February 16, 1993, forwarded a letter in which he stated:
"I realize Chief Ladnier made a serious mistake by changing the amount of bond without permission and I am enclosing a copy of his explanation to for your review. His reasons for the change were ample, but he should have followed proper procedure. However, the bond did not cause [Taggert] any extra time in jail, nor did it reflect any monetary loss to him. Citing these reasons, plus the fact that Chief Ladnier's action was motivated by the need to do a proper investigation, I agree with your suggestion that this matter be handled internally, and I stand ready to discuss with you whatever recommendation you may have before I finalize what disciplinary action is to be taken."
Payne initially denied receiving Cvitanovich's letter and testified that he did not hear from Cvitanovich regarding the incident. Therefore, Payne stated that he turned over the information regarding Ladnier's actions to the district attorney for prosecution. Later in his testimony, Payne admitted to having received a letter from Cvitanovich with some of the same statements as mentioned above, but Payne said he could not be sure that the letter in evidence was identical to the one he received.
¶10. On March 10, 1993, after a meeting that included Cvitanovich, Mayor Halat, and Windy Sweatman, the director of public safety, Ladnier was transferred from his position as chief of investigations to a desk job as an assistant to Director Sweatman. While Ladnier lost his rank in the transfer, he did not receive a decrease in pay. According to Cvitanovich, the transfer was part of an overall reorganization in the Department of Public Safety, which included the police and fire departments of the City of Biloxi. However, no notations regarding disciplinary actions against Ladnier were included in Ladnier's personnel file. His file did show that he had been transferred.
¶11. On July 5, 1993, A. J. Holloway replaced Halat as mayor. Chief of Police D.D. Cvitanovich resigned from office, and the new mayor appointed Frank Duggan to serve as the interim chief. Thereafter, Mayor Holloway instructed Duggan to internally investigate the matter involving Ladnier, primarily because Ladnier had been indicted on July 30, 1993, for altering a court document in the Taggert matter. After his investigation, Duggan concluded that Ladnier had violated departmental rules and regulations and placed Ladnier on administrative leave with pay until the criminal charges filed against him were concluded. Prior to this action, Ladnier had suffered a heart attack and was already on medical leave.
¶12. As stated, a Harrison County Grand Jury indicted Ladnier on July 30, 1993, on the charge of alteration of a court document in violation of section 97-11-1 of the Mississippi Code, as amended. At the time that the criminal action was initiated, Ladnier was recuperating from heart surgery and his attorney, Dale Robinson, recommended that Ladnier enter a diversion program which would have prevented him from having to go to trial on the charges. Under the terms of the proposed diversion program agreement, Ladnier's participation would not have been deemed an admission of guilt. *fn1
¶13. In October 1993, Mayor Holloway appointed Tommy Moffett as the City's chief of police. Moffett reviewed Ladnier's case and discovered that Ladnier's file failed to show that any disciplinary action had been taken against Ladnier by Cvitanovich in regard to the Taggert warrant incident. Thereafter, Moffett recommended Ladnier's termination based upon inconsistencies in the reasons given by Ladnier for making the bond change. He notified Ladnier of his Conclusions, and Ladnier subsequently requested a board of inquiry hearing. *fn2
¶14. Robert McGilvary, patrol commander for the City of Biloxi, was appointed by Moffett to chair the board of inquiry. Others were appointed to the board of inquiry by Moffett, and a Corporal Hobson was selected by Ladnier to serve on the board. On May 6, 1994, the board of inquiry held a hearing on the Ladnier matter and unanimously decided that Ladnier had violated departmental rules and regulations regarding the arrest warrant.
¶15. After the board of inquiry's decision, Moffett recommended to Mayor Holloway that Ladnier be terminated. The mayor agreed and formally terminated Ladnier on May 24, 1994. Holloway later testified that his reasons for firing Ladnier were not politically motivated and that he did so based upon his review of (1) Ladnier's personnel file; (2) the Taggert arrest record; (3) the internal investigation report; and (4) the report of the board of inquiry. Holloway pointed out that Ladnier admitted to altering the court document and that Judge Lawrence testified before the board of inquiry that he had not given Ladnier permission to do so. Based on these facts, Holloway decided that Ladnier should be terminated.
¶16. On day of his termination, Ladnier requested an investigation and hearing before Biloxi's Civil Service Commission. At a regular Commission meeting on June 9, 1994, a motion was made to grant Ladnier a hearing regarding his termination. With six commissioners present and one absent, the motion failed by a three-to-three vote. However, at a later Commission meeting on June 30, 1994, the Commission agreed to allow Ladnier a full hearing. Notwithstanding the Commission's ultimate decision to give him a hearing, Ladnier sought a decision from the Biloxi City Council to have several of the Civil Service Commissioners removed for cause from hearing his case. Ladnier also filed a motion for injunctive relief with the Harrison County Circuit Court and requested that the court prohibit the Civil Service Commission from hearing his case until the Biloxi City Council had the opportunity to rule on Ladnier's request to remove certain commissioners from his case. On December 12,1994, the circuit court ruled that injunctive relief was inappropriate until Ladnier first requested that the commissioners in question recuse themselves voluntarily.
¶17. On December 9, 1994, Ladnier filed a motion with the Civil Service Commission requesting the recusal of Commissioners Ethel Clay, Emry McNeil, and Merry Hancock, on the grounds that (1) they attempted to deny Ladnier his constitutional right to a hearing regarding his termination from the police force and (2) that such acts created an appearance of bias and impropriety. Without notifying Ladnier of the meeting, the Commission convened to consider Ladnier's motion. Commissioner Clay recused herself from participation in the proceedings, but McNeil and Hancock refused to do so. Subsequently, McNeil presided as Chairman of the Commission during Ladnier's hearing which was held on December 20 and 21, 1994, and six of the seven members of the Civil Service Commission participated in the hearing. Ladnier, apparently, did not seek an injunction in the Harrison County Circuit Court.
¶18. After a full hearing on the matter, the Commission entered its order on January 5, 1995, and ratified Mayor Holloway's decision to terminate Ladnier. Among other things, they ruled: (1) that the city administration serving under former Mayor Halat had not disciplined Ladnier for the incident involving the altered warrant; (2) that the City discharged Ladnier for good cause; (3) that the City's decision to terminate Ladnier was not politically motivated; and (4) that the City's decision to terminate Ladnier's employment was justified. On February 1, 1995, Ladnier filed a motion with the Commission requesting a reconsideration of its ruling. Attached to the motion was an affidavit executed by former Mayor Pete Halat. In his affidavit, Halat stated that after a meeting between himself, Sweatman, and Cvitanovich, it was decided with his approval and direction that Ladnier would be disciplined by transferring him from his position as chief criminal investigator for the police department into a position as an assistant to the Director of Public Safety. Once again, without notifying Ladnier of the planned meeting, the Commission assembled and voted to deny Ladnier's motion for reconsideration on February 9, 1995. At this meeting which occurred on February 8, 1995, Commission also decided to strike Ladnier's motion for reconsideration from its record.
¶19. Ladnier filed an appeal to the Harrison County Circuit Court on February 3, 1995, pursuant to section 21-31-23 of the Mississippi Code, as amended. After filing the appeal but before the circuit court had heard arguments of counsel, Ladnier filed a motion for leave to request a new hearing before the Civil Service Commission based on new evidence. He had since been acquitted of the criminal charges for which he was under indictment, *fn3 and Ladnier argued to the circuit court that testimony regarding the criminal charges against him was inappropriately interjected into the proceedings before the Civil Service Commission. He contended that he was entitled to have the Commission reconsider its ruling in light of his acquittal. The Harrison County Circuit Court denied Ladnier's motion, ruling that the criminal proceedings were irrelevant to the hearing before the Commission.
¶20. Before the circuit court considered Ladnier's appeal on its merits, he also filed a motion asking the court to compel the Commission to include in the record his post-hearing motion asking the Commission to reconsider its final ruling including the affidavit of Mayor Halat. The circuit court agreed with Ladnier on this motion and issued an order compelling the Commission to supplement the record to include Ladnier's motion for reconsideration with its attachments. *fn4 The grounds for Ladnier's motion for reconsideration were essentially that the City failed to refute the testimony of Cvitanovich that Ladnier was in fact disciplined during the previous administration under former Mayor Pete Halat. In support of his assertion, Ladnier attached to his motion the affidavit of Mayor Halat substantiating his claim that he had been previously disciplined for his conduct involving the Taggert warrant.
¶21. In its decision in the case sub judice, the circuit court affirmed Ladnier's termination and ruled that sufficient evidence existed upon which the Commission could base its decision. The court also ruled that Ladnier's claim of double jeopardy/double punishment was a "legitimate issue of fact for the commission to consider in its hearing and such fact issue was so decided and this court cannot find that such finding had no substantial evidence to support the finding." From the circuit court's judgment, Ladnier filed his appeal to this Court.
¶22. The City of Biloxi filed a cross-appeal and contested the decision of the circuit court requiring the Commission to include in the record on appeal Ladnier's motion for reconsideration with its attachment of the Halat affidavit.
¶23. On appeal, Ladnier raises the following issues which are taken verbatim from his brief:
"1. THE CIRCUIT COURT ERRED IN AFFIRMING THE TERMINATION OF APPELLANT'S EMPLOYMENT AS SAID DECISION BY BOTH THE CITY AND THE BILOXI CIVIL SERVICE COMMISSION WAS: (a) ARBITRARY AND CAPRICIOUS; (b) NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; (c) POLITICALLY MOTIVATED; AND (d) NOT MADE IN GOOD FAITH FOR CAUSE."
"2. WAS THE DOUBLE PUNISHMENT OF APPELLANT A VIOLATION OF DUE PROCESS AND THUS BARRED BY THE 5TH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE III, ...