IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CC-00492-COA LOUIS EDWARD BOURGEOIS APPELLANT

v. CITY OF BAY ST. LOUIS CIVIL SERVICE COMMISSION APPELLEE

DATE OF JUDGMENT: 03/03/2017 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: W I LLIAM ALEX BRADY II MICHELLE ELIZABETH LUBER ATTORNEY FOR APPELLEE: JENNIFER HUGHES SCOTT NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED: 10/02/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ. FAIR, J., FOR THE COURT: ¶1. The C ity of Bay St. L ouis f ired Louis Bourgeois af

ter he asked a police of

f i cer to run

a license plate num

ber f o r him

. B ourgeois said a vehicle had been f ollowing him , and he f eared it related to h is job as a f ire inspector. But it turned out that the m an who o wned the vehicle was dating Bourgeois’s f orm er girlf

riend, and the City

concluded that Bourgeois’s story about being f

ollowed was a pr e t e x t t o p ursue a p ersonal vendetta. T he C ity ’s civil service com m ission af

f irm ed Bourgeois’s f

iring, and the circuit court af f i rm ed the

com m ission. W e af

f irm as well. DISCUSSION¶2. Bourgeois presents thirteen issues f or our review, which we have reorganized and consolidated f

or clarity and econom y . 1. Controlling Law ¶3. Bourgeois and the City d isagree as to whethe r h i s t e r m ination was governed by the Mississippi Code or b y a city o r dinance. Bourgeois contends that the general civil service statute, Mississippi C ode Annotat e d s e c t i o n s 2 1

- 3 1

- 1 t h r o u g h 21-31-75 (Rev. 2015) controls, and the City f

ai l ed to com

p l y with its requirem e n ts. The City , however, points out that the
statute only applies to certain categories of m u nicipalities, listed in section 2 1-31-1 (2), and Bay St. Louis d o es not f

it into any of them

. The City contends t hat it is instead governed by

a local a nd private law, House Bill 1367 of t h e 1 9 8 9 legislative session, and by the City ordinance im

plem enting a civil service sy stem as perm itted by

the af orem entioned law. ¶4. In Laurel v
. S

a m u e l s , 4 6 9 So. 2d 530, 531 (Miss. 1985), the Mississippi Suprem e Court observed that cities n ot listed in section 21-31-1(2) are not required to f ollow the civil service statutes. The court stated that “[ f ]rom a reading of a ll o f t he c ode section establishing that c ivil service sy s tem , it becom es apparent that it was intended only to cover e m ploy ees of the f ire and/or police departm e nts of the m unicipalities com ing within its purview.” Id

. Section 21-31-1(2) lists o f e i g h t t y p e s of m unicipality that are m andated to create a civil service com m ission, s o long as the m unicipality has a f

ully paid f

ire and police departm ent. Bay St. Louis does not f

it into any of the eight classif

ications. ¶5. W e encountered the sam e i ssue i n the recent case of Necaise v. City of W aveland , 170

2So. 3d 616, 618-19 (¶10) ( Miss. Ct. App. 2015), w here W aveland’s civil service c o m m ission

was also authorized by

a local and private law. W e held:
F i r s t and f

o r em ost, it is n ecessary to n ote that this case does not t urn on a n y application of Mississippi statutory law. M ississippi Code Annotated section 21- 3 1-1 ( Rev. 2007) m andates that certain m unicipalities m

ust have a civil service com m ission. Sim ilarly , Mississippi Code Annotated section 21-31-3 (Rev. 2007) gives qualif

ied m unicipalities the authority to adopt a civil service com m ission. The W aveland Civil Service Com m ission is unique i n that it is n o t a c reature of either s tatute. Instead, the Com m ission is the p rodu c t o f Wa v e l a n d City Ordinance 251 ( “the ordinance”), which was authorized by House Bill 1770 of the 1 994 Mississippi l egislative session. C o n s e quently , neither the provisions nor the procedures set f orth in the statutes that pertain to c ivi l s e r v i ce com m issions a pply to this case. Section 10 o f the ordinance states that it “shall not be construed to invoke the provisions of sections 21-31- 1 t hrough 21-31-75, which deal with civil service, n or to invoke the law of any court decisions m ade pursuant thereto.” Id. (quoting Prendergast v. City of W aveland , 146 So. 3d 1021, 1022 (¶¶1-2) (Miss. Ct. App. 2014)). Obviously , W aveland’s situation was not so unique as we suggested—section 10(2) of H ouse Bill 1367 (authorizing Bay St. Louis t o create a civil service s y stem ) also provides that it “shall not be construed t o invoke the provisions o f [ s ]ections 21-31-1 through 21-31- 75,

. . . which deal with c ivil service, nor to i nvoke the law of any court d ecisions m ade pursuant thereto.” ¶6. The City is correct that it is governed by House Bill 1367 and i ts own ordinance and not by t he general civil service statutes of the Mississippi Code. 2. Motion to Recuse All Com m issioners ¶7. Prior to the civil service com m ission hearing, Bour g e o i s mo v ed to recuse all three

com m issioners. There were argum ents f rom both sides, and two exhibi t s e n t e r ed into
3evidence on the m otion. Ultim ately , all three c om m issione r s declined to disqualif y them selves. Bourgeois raised this issue bef ore the circuit court, but it declined to review it based on dictum in this Court’s decision in City o f Vicksburg v. Cooper , 909 So. 2d 126, 130 (¶15) ( M i s s . C t

. App. 2005). There, we suggested that the issue o f recusal, which was procedurally barred in that case, “would probably still have been p r o c e d urally im proper pursuant to the lim ited s c ope of review established under Missi s s i p p i C ode Annotated [ s ection] 21-31-23 (Rev. 2 001).” Id. The statute lim its review “to the d eterm i n a t i o n o f whether the judgm e nt or order of rem oval . . . was or was not m ade in good f aith f or cause and no appeal to [ the c ircuit] court shall be taken except upon such ground or grounds.” Id. ¶8. As we held in the prior issue, the statute does n ot control because House Bill 1367, which authorized Bay

St. Louis’s civil service com m ission, expressly provides that it does
not. F or the City o f Ba y St. Louis, House B i ll 1367 requires t hat an a ppeal to the circuit
court “shall be conf

i ned to the determ ination of whether the com m ission acted in a ccordance with this act and the ordinance.” Although the ordinance and House B ill 1367 do not address recusal of com m issioners, w e d o not see this as p recluding our review o f whether due process required the com m i ssioners to disqualif y them selves. ¶9. Still, Bourgeois a dvocates f or a s trict e r s t a n d a r d f

o r r e c u s a l t h a n was actually required. He argues that the standard should b e t h e s am e a s it i s f o r judicial recusal—whether th e com m issioner’s im partiality m ight be q

uestioned by a r easonable
person knowing all the c ircum stances. See, e .g. , W est v. State , 131 So. 3 d 583, 586-87 (¶10)

4(Miss. Ct. App. 2013). But the standard is actually m uch m ore l enient. In United Cement Company v. S

afe Air for the Environment Inc. , 558 So. 2d 840, 8 42 ( M i s s. 1990), our suprem e court explained that a d m i n istrative hearings “are n ot t rials and they are not governed by the sam e rules which a pply in courts of law.” “ [ T]here is a presum ption that the of

f icers conducting the hearing and the m em bers o f the [ c om m ission] behave honestly and f airly in the conduct of

the hearings and in the decision-m a k ing process[ ,]” a n d that presum ption is
not overcom e “[ a]bsent som e showing of personal o r f i n a ncial interest

. . . or evidence of misconduct

. . . .” Id. ; see also Byrd v. Greene Cty. S ch. Dist ., 633 So. 2d 1018, 1022-23 (Miss. 1994). ¶10. The only concerns raised by Bourgeois were that the com m i ssioners were appointed by the m ay or who d ecided to t erm ina t e h i m, and that each of the three com m issioners had

a close relative who was an em ploy ee of the city

. As t o the f irst concern, the c o m m issioners

were appointed lawf

ully a ccording to House Bill 1 367 an d the city ordinance, and appointm e nt by the m ay or presents no actionable concern s b e c a use it is not evidence of a personal o r f

inancial i nterest or evidence of mi s c o n d u c t

. S ee Byrd , 633 So. 2d at 1022. Likewise, t h e f

act that each of the com m i ssioners had f am ily m em

b ers who were also city

em ploy e es, without m ore, f ails to m eet the test. See id. W e can f i n d no error in the

com m issioners’ ref

usal to disqualif

y them selves. 3. Preterm i nation Procedure ¶11. W e next a ddress several issues raised b y Bourgeois c oncerning the procedural aspects

5of

his initial term ination by the f i re chief , which we consolidate. ¶12. Most of Bourgeois’s contentions here share a com m on def ect: they are prem ised on general civil service s tatutes of the Mississippi Code. As we held in the prior issue, the City is governed by House Bill 1367 o f 1989 and its own ordinance. House Bill 1367 s pecif ically provides that it “shall not be construed to invoke the provisions of [ s]ections 21-31-1 through 21-31-75,

. . . which deal w ith civ i l s e r v i c e , n or to invoke the law of any court decisions

m ade pursuant thereto.” Most of the code sections cited by Bourgeois do not appear to have direct a nalogues in either House Bill 1367 or the B ay St. L o uis ordinance. Thus, Bourgeois’s
argum ents based on the Mississippi Code are without m e rit. ¶13. Bourgeois does m ake several contentions along the sam e line that are d irected to the City ordinance or to departm ental policy

. He alleges h e was suspended and then f ired by the f ire chief without being g i v e n a “ written n otif ication of the intended job a ction bef ore it b e c o mes ef

f e ctive,” w hich the city ordinance requires “in the absence o f critical circum stances”; B ourgeois received written notice when he was f ired, three day s later. He also c ontends that a f

i re departm ent policy required the disciplinary p roceedings be initiated by the deputy f

ire chief , and that a pre-disciplinary c onsultation w i t h the city hum an

resources director was required “if warranted.” So f a r as the record reveals, t he deputy f ire

c h i e f h a d no involvem ent w ith Bourgeois’s term ination, and the hum an resources director

was only consulted a f

t e r B ourgeois’s suspension by the f ire chief ( but prior to his
term ination).

6¶14. Even if we were to concede these points, Bourgeois ignores the provision of the City ’s

civil service o rdinance, which provides that “inadvertent a n d m inor deviations f rom established procedures which do n ot substantively im pair an em

ploy ee’s rights shall not be the b asis f or overturning a j ob action.” Bourgeois’s com p laints are, at b est, concerning m inor procedural aspects that do not speak to the u nderly i ng m erits of his f iring. And the deviation f rom the procedure outlined, e ven if accepted as true, did not substantially im pact its overall f airness. There c an be no question that Bourgeois was m ade aware of t he allegations against h i m w e l l i n a dvance of the adm inistrative hearing bef ore the m a y o r and the evidentiar y hearing bef

o re the com m ission. W e can f i nd no reversible error here. 4. Crim inal Records of Other Em ploy ees ¶15. T h e c o mmission ref u s ed to allow Bourgeois to elicit testim ony c o n c e r n i n g t h e crim inal backgrounds of other individuals working at the f ire depar t me n t o n the basis that it was i rrelevant. B ourgeois did not prof f er the particulars, b ut he suggested that at least one individual working f

or the f ire departm ent had a prior f elony conviction. Bourgeois contends that t his evidence would h a v e s h o w n that lesser punishm ents were appropriate and, essentially , that the City was willing to em ploy p eople who had done worse than what it f ired him f or. ¶16. Bourgeois o f

f ers no authority in support o f t his argum ent, and as a result i t is deem ed abandoned. See, e.g., Duncan v. St a t e , 9 3 9 S o . 2 d 772, 779 (¶25) n.3 (Miss. 2006). But, notwithstanding the procedural bar, we see no reversible error.

7¶17. “It is well settled that adm i nistrative bodies h ave the discretionary authority to apply

procedural and evidentiary r u les in a f lexible m anner so as to m ost e f f iciently carry out their responsibilities.” Miss. Dept. of Human Servs. v. McDonald , 2 4 S o. 3d 378, 381 (¶9) (Miss. Ct. App. 2009) (citing McGowan v. Miss. State Oil & Gas Bd. , 604 So. 2d 312, 318 (Miss. 1992)). It is equally well settled that, even in court proceedings, error i n a d m itting or excludi n g e v i dence will not am ount to reversible error unless a substantial r ight of a party is af f ected. See, e.g. , M.R.E. 103. ¶18. Bourgeois did n o t p r o f f e r a n y o f this evidence, but even assum ing that the f ire departm ent em

ploy e d som e one w ith a prior f elony conviction, whether or not som eone with

a c r im i nal record works at the f ire departm ent h as little to no bearing on whether Bourgeois’s
term ination was in good f

aith f or cause. Bourgeois suggests on appeal that crim inal of f enses

m ay have been c om m itted while the individuals were em ploy ed by the City , but he m ade no such s uggestion when h e of f ered the e vidence to the com m ission. And Bourgeois does not

even suggest that the of

f enses com m itted by other em ploy ees related t o or were com m itted during the course of their em ploy m ent with the city . This issue is procedurally barred and without m erit.
5. Fact-Finding and Merits of the Term ination ¶19. Finally , we address the num er o u s i s s u e s B o u r g e o i s h a s r a i s e d r e g a rding the

com m ission’s f

indings of f

act and the underly i ng m erits of his term ination. At the outset we
note that our review is “ c o n f ined to the d eterm ination of whether t he com m ission acted in

8accordance with” House Bill 1367 of the 1989 legislative session and the City ’s ordinance establishing a civil service com m ission. W aveland , 170 S o. 3d at 618-19 ( ¶10). In so doing,

we apply the f

am iliar standard of r eview f or decisions o f adm inistrative agencies—“whether

or not [ the] d ecision i s supported by s ubstantial e vidence or is arbitrary o r c apricious, etc. or in o ther words w hether or not it was m ade in good f aith f or cause . ” C i t

y o f J a c k son v. Froshour , 530 So. 2d 1348, 1355 (1988) (quoting City of Meridian v. Davidson , 211 Miss. 683, 695, 53 So. 2d 48, 53 (1951)). ¶20. “So long as s ubstantial e vidence exists, a n agency ’s f inding m u st be allowed to stand

even though there m ight be room f or disagreem ent on that i ssue.” M iss. Pub. S

erv. Comm’n

v
. M e r c h a n t s Truck Line, Inc. , 598 So. 2d 778, 782 (Miss. 1992) (internal q uotation m a r k

om itted). “Substantial evidence” m eans som ething m o re than a “m ere s cintilla” or s uspicion

. Pub. Empls.’ Ret. Sys. v. Marquez , 774 So. 2d 421, 425 (¶13) (Miss. 2000). ¶21. Af ter t h e h earing, the com m ission rendered a written opinion detailing its f indings. On a ppeal, Bourgeois challenges several specif ic f indings, i ncludi n g w h e t her he was f ollowed by the vehicle, a point on which he o f f ered corroborating testim ony . As to whether he was f ollowed, Bourgeois seem s to m i sapprehend the actual f inding o f the c om m ission.
It did not f

ind that he was never f

ollowed; rather, it f

oun d t h a t B o u r g e ois k

new he had a personal disp u te with the o w ner and had f alsely led a police of

f icer t o believe it could be

w o rk-related. There is m ore than substantial evidence in the record in support on t h i s point—Bourgeois asked that the tag b e run while he was of f -du t y ; h e h ad n ever reported

9being f

ollowed t o his supervisors; he adm itted he knew the vehicle was connected to his exgirlf riend because he had seen it a t her house. And Bourgeois o m itted those details when he requested the t a g b e r un, then a short tim e later he conf ronted his ex-girlf

riend with the inf orm ation he had obtained. ¶22. Bourgeo i s c h a l l e n g e s s e v e r al other f indings. He contends that there was no City policy specif ically prohibiting what he did nor a ny evidence he knew of such a policy . He also disputes that t

he “running of the plate” actually involved the National Crim e Inf orm ation Center (NCIC) database, that it was a violation of N CIC policies and f ederal l aw, and that his actions p otentially e xposed the City to liability

. Although the com m i ssion did m ake all of these f

indings, the central allegation a n d the central f inding supporting B ourgeois’ s
term inati o n w a s t h a t he m isused his City em ploy m ent f o r personal advantage. As we explained above, that f

i nding w as supported by substantial evidence and is, in and of itself , a suf f i cient basis to support the decision to term inate Bourgeois’s em p loy m ent. ¶23. Bourgeois also takes issue with t he com m ission’s observations that his com m ents to
t h e public and the local newspaper had harm ed the City , because the reports ref er e n c e d i n the opinion were not introduced at the hearing. W e f i nd any error o n t h i s p o i n t to be harm less given the clear support in the record f or Bourgeois’s term ination. ¶24. Finally , B ourgeois claim s h i s t e r m i n a t i o n had an u lterior m otive. In support of his theory , Bourgeois of

f ered a voice recording of a m eeting between him and the Fire Chief into evidence. In the recording, the Fire Chief is heard say i ng that if a local restaurant were shut

1 0down, “there would be hell to pay .” Bourgeois urges this encounter was the r eal reason he

was f ired, but i t was a p oint of f a ct f or the com m ission, not this Court, to decide. W e cannot retry f actual disputes on appeal. W e em phasize again t hat “[ s]o long as substantial evidence exists, an agency ’s f

act f inding m ust be allowed to stand even though there m ight be room f or disagreem ent on that issue.” Merchants Truck Line , 598 So. 2d at 782. ¶25. The com m ission’s decision was sup p o r t e d b y s u b s t a n t i a l e v idence and m ust be af f irm ed on appeal. ¶26. AFFIRMED. LEE, C .J., I RVING AND GRIFFIS, P.JJ., B A R N E S , CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

1 1