DATE OF JUDGMENT: 05/23/2013.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JEFF WEILL SR.
FOR APPELLANT: JEFFERY P. REYNOLDS.
FOR APPELLEE: TIMOTHY DAVIS SMITH.
BARNES, J., FOR THE COURT: GRIFFIS, P.J., AND MAXWELL, J., JOIN THIS OPINION.
[¶1] Trooper First Class Sammy Ray joined the Mississippi Highway Safety Patrol (a component of the Department of Public Safety and hereafter referred to as the " Highway Patrol" or the " Department" ) in 2003. During the summer of 2009, Ray issued tickets to four motorists, which formed the basis of charges leading to his dismissal from the Highway Patrol for falsifying documents. Ray appealed the dismissal to the Employee Appeals Board (EAB), where the hearing officer upheld the termination. Ray appealed to the full EAB, which also affirmed his termination. Ray next appealed to the Hinds County Circuit Court, which likewise affirmed the EAB's decision.
[¶2] Ray now appeals to this Court, claiming wrongful termination and seeking reinstatement. Ray raises four issues on appeal:
1. A Mississippi Department of Employment Security ruling that Ray had not committed misconduct collaterally estopped the Department of Public Safety from finding that Ray falsified records.
2. The hearing officer erroneously considered evidence other than the four tickets with which Ray was charged and upheld the termination on the basis of the uncharged conduct.
3. The termination was based on the wrong legal standard, which removed the intent-to-defraud element.
4. The EAB ruling was not supported by substantial evidence.
A. There was no record support for the four specific violations.
B. Ray's conduct was distinguishable from other cases involving termination.
Upon review, we agree that Ray was terminated for conduct other than that with which he was charged and that his due-process rights were violated. The Department has conceded that it has no other proof of the specific charged offenses, and we further find there is no substantial evidence to support the EAB's ruling. See LaCour v. Claiborne Cnty. Sch. Dist., 119 So.3d 1128, 1132 (¶ 20) (Miss. Ct.App. 2013) (An administrative agency's decision will not be disturbed " unless the order . . . is not supported by substantial evidence[.]" ). Accordingly, we reverse the circuit court's decision, upholding Ray's termination, and remand for further proceedings consistent with this opinion.
[¶3] The charges against Ray were limited to his encounters with four specific motorists: Kacie Patterson, Joshua Ulmer, William Thomas, and Sandra Carpenter. Ray was charged, on these four specific occasions, with falsification of records by using personal information from the motorists he stopped and ticketed, to write additional " ghost tickets." The Performance Review Board, which terminated Ray, made no findings of fact, other than that the charges were " founded."
[¶4] Between his termination in January 2010, and his hearing before the EAB hearing officer in January 2011, Ray had a hearing before the Mississippi Department of Employment Security (MDES). Ray was awarded unemployment benefits. The Highway Patrol appealed, and an administrative law judge found that the Highway Patrol had failed to prove by clear and convincing evidence that Ray had engaged in misconduct and affirmed the award of unemployment compensation to Ray.
[¶5] Ray received a de novo trial before an EAB hearing officer, where the following facts were developed. Although there is no regulation defining " ghost tickets," testimony at Ray's hearing established that it was generally understood to mean a trooper's writing of tickets for offenses that never occurred. There are no regulations forbidding writing ghost tickets, but the parties agree that writing tickets for fictitious offenses is falsification of records and is a terminable offense. Throughout these proceedings, Ray has denied doing this.
[¶6] During Ray's termination proceedings, the Department identified four prior instances of troopers writing ghost tickets, which led to their terminations. Ronald Wilburn was terminated in 1996, for writing tickets for offenses that had not occurred to motorists after they left traffic stops, which he would then attempt to dismiss after they were turned in to the court. This resulted in motorists having charges lodged against them of which they had no notice. Wilburn's termination was upheld in Wilburn v. Mississippi Highway Safety Patrol, 795 So.2d 575, 578 (¶ 11) (Miss. Ct.App. 2001). William Berry was terminated in 1999, for issuing numerous tickets to individuals who were unaware that they were being given a ticket. An audit of Berry's tickets for a five-month period revealed that 212 out of 345 citations fell into this category. Berry would turn the tickets in to the court, and the motorists would have to pay fines for offenses of which they were unaware. John Butcher was terminated in 2002, for turning in reports to his supervisors claiming 537 tickets written while only filing four tickets with the court. Jerry Merrill was terminated in 2009, for fondling a female motorist's breast during a traffic stop, not turning over seized drugs, and writing tickets days after a motorist had been stopped that were not for legitimate offenses.
[¶7] The Department contended that Ray also had written " ghost tickets" for which there was no valid offense, in an
attempt to " pad" or increase his ticket numbers. Ray was accused of violating Department of Public Safety General Order 23/01, III, B., 3, d. The offense outlined in this section is the: " falsification of records, such as, but not limited to, vouchers, reports, leave records, employment applications, or other official state documents." The penalties for a group III offense include termination.
[¶8] All witnesses testified that there is no " quota system" requiring troopers to write a certain number of tickets. The testimony at the hearing made it abundantly clear, however, that troopers felt pressure from their supervisors to " keep their numbers up." Department witnesses testified that this simply meant " do your job" and that there were plenty of offenses on the roads justifying tickets for diligent troopers. A former trooper testified that troopers could be punished for not keeping their number up by being put on " directed patrol" or " line patrol." 
[¶9] There are four copies of each sequentially numbered ticket written. One copy goes to the Commissioner of the Highway Patrol; one copy goes to the justice court; one copy is the officer's copy which goes to his master sergeant along with the trooper's ticket-control sheet; and the final copy is for the motorist. The ticket-control sheet lists all tickets, whether they are voided or not.
[¶10] Ray testified that, on occasion, he would write " warning" tickets, and that for these warning tickets, Ray would write " void" on the justice court and Commissioner's copies and not write " void" on the motorist copy or the copy turned in to the master sergeant. Since his tickets to the justice court were " voided," no adverse consequences were possible for the motorists. Ray would shred the undelivered motorist's copy of his voided tickets. Ray and other witnesses testified that it is a common practice, when giving out warning tickets, not to hand the ticket physically to the motorist because it causes confusion about whether the motorist had to respond to the ticket. Ray did not conceal that he was writing " void" tickets. Although he failed to write " void" on the tickets he turned in to his master sergeant, he did indicate that the tickets were voided on his ticket-control sheets that accompanied the actual copies of the tickets. Ray presented the testimony of several former troopers, some in supervisory positions, that it was a generally accepted practice to write warning tickets and then " void" the ticket when it was turned in to the justice court so that the motorist faced no penalties. Witnesses testified that this was done as a good-will " community relations" tool. Ray, and other witnesses, testified that they also did this on occasion when they were not " 100% sure" that an offense had been committed (e.g., thinking that a motorist was not wearing a seat belt, but upon stopping, the motorist had the seat belt on and told the trooper that he or she had been wearing it).
[¶11] Retired Colonel Michael Berthay testified that warning tickets were not issued by troopers, but every other witness testified that it was a common practice. An email dated October 19, 2009, from
Major Rusty Brill to " all Captains" discusses the practice of writing warning tickets and states that it will no longer be done while troopers are on " call back."  Thus, the discontinuance of the practice of writing and voiding warning tickets was discussed in October 2009, indicating it was not forbidden during the time Ray wrote the tickets that led to his charges. Colonel Berthay testified that even a warning ticket should never be written if an officer is not certain an offense took place, but he also testified that, if a ticket had been written that an officer was not sure of, then it should be " voided."
[¶12] Ray's former coworkers and supervisor testified that he was a very competent and professional trooper. Don Berry, lieutenant colonel and deputy director of the Uniform Division of the Highway Patrol, testified that Ray's personnel file indicated that he had been promoted, had received a commendation and an award, and had received complimentary letters from citizens concerning his professionalism.
[¶13] Ray testified that he did not recall the four sets of tickets at issue, and the Department put on no proof that the tickets Ray voided for Patterson, Ulmer, Thomas, and Carpenter were " ghost tickets" for offenses Ray did not observe. Instead, the Department relied on statements Ray made to the investigator about other tickets he had written over his six-year career. In his October 26, 2009 written statement, Ray stated:
During this interview I have admitted to the writing of 20-25 tickets that were seat belt tickets and some of the tickets that I issued were not valid tickets (seat belt tickets). These tickets were turned in to the [j]ustice [c]ourt and turned in along with my weekly reports. All seat belt tickets were voided when they were turned in to [j]ustice [c]ourt.
A transcript of the October 26 recorded interview, played at the hearing, shows:
Q: Okay, so, just to make sure that what we are talking about it - you make a - you make a good actual stop for say speeding and the individual has their seat belt on and you just write a no seat belt violation and void it?
Q. And you count those on your activity sheet?
[¶14] In his November 13, 2009 written statement, Ray stated: " During the time I have been employed with the [Department], I have written 20-25 tickets that may or may not be factual tickets. These tickets were seat belt violations. This was done to increase my ticket activity." A transcript of the November 13th recorded interview, played at the hearing, shows:
Q. [W]hat were those violations for? Where the tickets were made up or just added tickets on to someone - using someone's information just writing another ticket even though the violation didn't occur?
RAY: Once I had that person stopped possibly for speeding or whatever violation may [sic] occurred, I wrote a seat belt ticket for that also.
Q. [W]hat transpired [sic] you to just add extra tickets?
RAY: I was just trying to get my numbers up.
When asked why he would do this, Ray replied: " Poor judgment. "
[¶15] Ray testified that he did remember the twenty to twenty-five instances he spoke of and that the four motorists for which he was charged were not in that number. The investigator for the Department also testified that the four charged incidents were not in the twenty to twenty-five instances that Ray admitted.
[¶16] Following the de novo hearing, the hearing officer made no findings of fact about the tickets issued to the four named motorists. Rather, the hearing officer found generally that Ray would stop motorists and issue a ticket, and that he would write additional tickets, which he recorded on his ticket-control sheets but did not give to the motorists. The order noted that, on two occasions, Ray admitted to the investigator that he had written twenty to twenty-five seat belt violation tickets that were not " valid," or were " not factual." As to the four motorists Ray was charged with, the order reflected only:
Joshua Ulmer, William Thomas, and Sandra Carpenter gave statements, and eventually sworn affidavits, acknowledging that they had been stopped by Ray, but had not received copies of all of the tickets that Ray had turned in and voided on his ticket control sheet. Kaci [sic][Patterson] also gave a statement to Investigator Mansell.
There was no finding that Ray falsified any of the tickets issued to these four motorists. The order concluded:
With regard to the allegation of falsification of records the evidence supports a finding that the reasons given for the Agency=s decision were in fact true. There is ample evidence that Ray wrote tickets that were not for actual violations and that were not intended to be prosecuted, but were used only to increase the number of tickets that he was credited with writing.
[¶17] In its order affirming the hearing officer, the full EAB ruled:
The facts of this case clearly show that Ray issued tickets to motorists for violations that did not exist or that he was " unsure" existed, namely seat belt violations. Ray argued that these were " warning" or " voided" tickets and that he did not try to hide writing the tickets. However, the fact that he wrote tickets, whether it be one, four, or twenty, and was either unsure of the violation or made up the violation is an act of falsifying information on an official state document. That he voided the tickets and allegedly did not try to hide his actions is irrelevant as the act of knowingly writing a false ticket was committed. Further, Ray admitted that he wrote the tickets to increase the number of tickets he was credited with writing. These acts by Ray clearly constitute a Falsification of an Official State Document[,] which is a Group Three Offense subject to discipline by termination.
[¶18] The circuit court's order affirming the termination found that Ray falsified an official state document " by knowingly writing tickets when he was unsure if a violation had occurred and by creating false violations." Like the hearing officer and the full EAB before it, the circuit court made no finding that Ray falsified any of the tickets he issued to Patterson, Ulmer, Thomas, or Carpenter.
STANDARD OF REVIEW
[¶19] State employees have a statutory right to appeal terminations to the EAB. See Miss. Code Ann. § 25-9-131(1) (Rev.
2010). There, they bear the burden of proof to show that the reasons given for termination are not true or that they do not justify termination. Bynum v. Miss. Dep't of Educ., 906 So.2d 81, 90 (¶ ¶ 13-14) (Miss. Ct.App. 2004). Mississippi Code Annotated section 25-9-127(1) (Rev. 2010) provides that on appeal, an employee who receives a notice of dismissal is " required to furnish evidence that the reasons stated in the notice of dismissal . . . are not true or are not sufficient grounds for the action taken." Rule XXI B of the Employee Appeals Board Administrative Rules (2010) provides:
The appealing party shall have the burden of proving that the action taken against the employee is arbitrary or capricious, not supported by any substantial evidence or in violation of some statutory or constitutional right and merits the relief requested.
Rule XXI C provides:
An appealing party who is a permanent State Service employee and who has by written notice been dismissed or otherwise adversely affected as to his or her compensation or employment status shall be required to furnish evidence that the reasons stated in the notice of such ...