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King v. Mississippi Military Department

Supreme Court of Mississippi

June 7, 2018

CINDY W. KING
v.
MISSISSIPPI MILITARY DEPARTMENT

          DATE OF JUDGMENT: 05/16/2017

          FORREST COUNTY CIRCUIT COURT HON. JON MARK WEATHERS

          TRIAL COURT ATTORNEYS: PAUL MANION ANDERSON WILLIAM H. JONES EMERSON BARNEY ROBINSON, III LELAND S. SMITH, III MICHAEL MARK MAJORS SAMUEL STEVEN McHARD

          ATTORNEYS FOR APPELLANT: PAUL MANION ANDERSON SAMUEL STEVEN McHARD WILLIAM H. JONES

          ATTORNEYS FOR APPELLEE: EMERSON BARNEY ROBINSON, III LELAND S. SMITH, III MICHAEL MARK MAJORS

          BEFORE KITCHENS, P.J., COLEMAN AND MAXWELL, JJ.

          COLEMAN, JUSTICE.

         ¶1. On February 11, 2016, the Adjutant General of the Mississippi Military Department (Department) terminated Cindy King's employment with the Department after conducting an investigation into some of King's activities. Aggrieved, King appealed her termination to the Mississippi Employee Appeals Board (Board); however, the Department challenged the Board's jurisdiction to hear King's appeal. The chief hearing officer assigned to King's appeal agreed with the Department and dismissed King's appeal. King then appealed for full Board review, and the Board affirmed the chief hearing officer's determination. Next, King appealed to the Forrest County Circuit Court. The circuit court heard arguments and issued an opinion and judgment affirming the Board. Finally, King filed the present appeal. We hold that, while King may be considered a state service employee as defined by the Legislature, the Adjutant General, by virtue of three statutory provisions, is not subject to review by the Board.

         FACTS AND PROCEDURAL HISTORY

         ¶2. King began working for the Department approximately twenty years ago, and her role was that of a supervisor in the Environmental Office at Camp Shelby. However, in late 2015, Colonel Charles Scott was appointed as an investigating officer to determine whether King "utilized information garnered through her position as the Camp Shelby Environmental Officer to front run the Army Compatible Use Buffer Program for personal gain" by purchasing a specific piece of property located near Camp Shelby. King denied the claim against her, but after concluding the investigation, the Adjutant General terminated King's employment with the Department. The February 2016 letter explained that the investigation "determined that [King] willfully and knowingly violated [Mississippi Code Section] 25-4-105 . . . . This investigation revealed that you used your position for personal gain." The letter concluded that King's "employment with the Mississippi Military Department Environmental Office is terminated for cause, effective immediately pursuant to [Mississippi Code section] 33-3-11(a) . . . ."

         ¶3. Upon receiving the letter, King appealed her termination from the Department to the Board, and Chief Hearing Officer Michael Watts heard King's and the Department's arguments. The Department's response to King's appeal was to argue that the Board does not have jurisdiction to hear the appeal because King was not a state-service employee and was an at-will employee of the Adjutant General subject to removal at his discretion. Watts concluded that Mississippi Code Section 33-3-11 states that the Adjutant General shall appoint the employees of his department and "remove any of them at his discretion." Watts explained that the determination that King was subject to removal at the Adjutant General's discretion was supported by a 1994 opinion from the Attorney General that said Department employees were nonstate-service employees and held no property rights in their employment. Finally, Watts stated that, since the Legislature used the term "employee" in Section 33-3-11, but not in other statutes, for example Mississippi Code Section 25-9-107(c)(viii), where "officers" or "members" are used, then "the legislature intended to use the term 'employee' in [Section] 33-3-11 to allow the . . . Adjutant General to terminate an employee at his sole discretion. By doing so, [Department] employees are non-state service employees and this tribunal [(the Board)] lacks jurisdiction to consider Ms. King's appeal."

         ¶4. King appealed to have the full Board review Watts's order. The Board affirmed Watts's findings and conclusion. The Board noted that Section 33-3-11(a) is not ambiguous and "specifically authorizes the removal of employees employed by the Adjutant General, at his discretion." (Emphasis in original.)

         ¶5. Next, King filed a notice of appeal and petition for judicial review in the Forrest County Circuit Court. After conducting a hearing, the circuit court issued its opinion affirming the Board's decision. In its opinion, the circuit court explained Section 33-3-11, and other statutes located in Title 33 "unambiguously provide[ that] employees of the . . . Department are at-will employees and have no property interest regarding their employment." The circuit court further explained that it was not persuaded by King's argument that Mississippi Code Section 25-9-129, the Board's jurisdictional statute, applies in the instant case, and "to the extent that [Section] 25-9-129, and other applicable provisions of Title 25, create an ambiguity with [Section] 33-3-11, section 33-3-11 is more specific in that it defines the employment of the . . . [D]epartment employees, and ...


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