Public safety chief criticizes civil service protections, but data show state workers rarely win appeals

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Rogelio V. Solis, AP

Marshall Fisher, Mississippi Department of Public Safety commissioner

Public Safety Commissioner Marshall Fisher has said law enforcement officers under his supervision have used their civil service protections guaranteed in state law to escape termination even when committing such offenses as reporting to work under the influence or threatening to kill a spouse.

Still, statistics obtained by Mississippi Today reveal that seldom do state employees succeed through the civil service process in overturning the discipline meted out by agency administrators.

Earlier this legislative session, Fisher alleged that in many instances the Employee Appeals Board, which is a key component in providing the civil service protection, is a “kangaroo court.” Fisher said he wants the Legislature to prevent his employees — Highway Patrol troopers, Bureau of Narcotics agents and others — from being able to go to the appeals board to challenge the action taken against them by him and his administrative staff.

Through the years other agency directors also have complained about the difficulty of having their disciplinary action upheld by the Employee Appeals Board.

But according to information compiled by state officials at the request of Mississippi Today, during the past three fiscal years there have been 121 instances where state employees have challenged to the Employee Appeals Board actions taken against them by their employer and in 14 of those cases the action of the agency was reversed or the employee prevailed.

The statistics compiled by the state Personnel Board further reveal that fewer employees are appealing actions against them to the Employees Appeals Board. During the past six fiscal years, the appeals have averaged 59 each year. In contrast, in 1998, there were 234 appeals.

Brenda Scott, executive director of the Mississippi Alliance of State Employees, said in the past employees have been reluctant to appeal disciplinary action taken against them to the Employees Appeals Board because of the costs — $100 fee, plus in many cases workers believe they need an attorney to be successful.

“I know one DOC (Corrections) employee who hocked everything, including his house, and he still lost,” she said.

Still, Scott said it is important for the state to maintain the civil service protection for state employees. Currently, about 17,500 state employee have civil service protection. An employee must have been employed for a year to receive the protection. Some state employees, especially those in administrative positions, do not have the civil service protections.

“It eliminates intra-agency politics,” Scott said of the civil service protection. “That is why we fight so hard to keep it in place. Workers should have some type of appeals process.”

While statistics bear out that the state wins most of the cases when employees appeal their discipline, Fisher’s Department of Public Safety has lost its share — at least five during the past two years.

Whether the outcome of those public-safety department cases was just might depend on a person’s perspective. Fisher definitely does not believe the Employees Appeals Board reached the right decisions.

The cases the public-safety department lost include an instance where James Richards, a trooper, was fired for being under the influence of drugs while undergoing weapons testing at the public-safety department’s training center. This particular case might have generated the most interest and controversy.

Testimony claimed Richards was slurring his speech, sweating profusely and moving unsteadily, yet, he passed testing on three different weapons. A drug test after the testing revealed that the medication in Richards’ system had been prescribed to deal with the aftermath of an automobile accident.

The Employee Appeals Board found a key distinction that led to his reinstatement was that he was terminated for the “unlawful use of a prescribed” substance — not for reporting to work under the influence of a controlled substance, which in this instance was legally prescribed.

The Department of Public Safety argued that the distinction was technical and should not be a factor in whether to reinstate Richards. The Appeals Board disagreed and said its decision was based on court rulings and that there was no evidence Richards acted illegally as the public-safety department claimed.

In another instance, where the public-safety department lost, Capt. Tammy Reynolds, head of the Tupelo district office of the Bureau of Narcotics, was alleged to have tested positive for methamphetamines during what was labeled by the public-safety department officials as a random drug test. Before the test, Reynolds revealed she had a prescription for pseudoephedrine, which apparently could lead to the positive test for meth. Research revealed to the public-safety department that Reynolds was being truthful about the prescription.

Issues surrounding the drug test were resolved and dropped, but not before an investigation that led to Reynolds being reprimanded, including a substantial drop in pay, for taking two packets of Biofreeze, an over the counter product, from the office. Public safety officials said Reynolds had not been truthful about her actions. The Appeals Board said there was no evidence she had been intentionally untruthful and ruled the punishment was too severe for the offense of taking two packs of Biofreeze.

Then, there was the case of Joyce Grant, a criminal records technician, who was terminated for refusing to sign an affidavit saying she had read a document that the agency had not provided to her to read.

“They’re a supervisor’s nightmare,” Fisher told legislators earlier this year of the Employee Appeals Board. He said the testimony of public-safety department staff is often ignored in the hearings and that the hearing officer does not take into account all of the evidence.

In all cases, the action of the Employees Appeals Board can be appealed to circuit court.

Fisher also alluded to a case of Trooper Richard Todd Cox who was accused of assaulting and physically threatening his ex-wife and her attorney and of being violent in past instances. The Employee Appeals Board essentially said the Department of Public Safety could not prove those allegations and re-instated him to the force.

Despite Fisher’s concern about being able to discipline his employees, he said that 99 percent or more of his employees are doing a good job. If the civil service was removed, Fisher said he still would ensure that employees were fired or disciplined only for good reason.

“I am not looking to fire a lot of people,” said Fisher, adding a certain level of discipline is needed to operate a law enforcement agency. He said it was bad for morale for law enforcement officers to know certain other officers were violating obvious rules, such as working under the influence, and not facing consequences.

Both current Gov. Phil Bryant and past Gov. Haley Barbour have made efforts to remove state employees from under the state Personnel Board. The Employee Appeals Board is located within the Personnel Board. But the three hearing officers on the Employee Appeals Board, attorneys hired by the Personnel Board, work independently to hear cases where state agencies challenge the disciplinary action of state agency heads.

The legislative leadership in the past, including Lt. Gov. Tate Reeves and Speaker Philip Gunn, have supported efforts to remove civil service protections.

In the past, agencies have been exempted from Personnel Board regulations (civil service protection) for a limited period of time.

By removing those regulations, Gunn once said agencies were “providing better services at lower costs. That is a good thing.”

Efforts to remove civil service protection normally would begin in the House or Senate appropriations committees. Senate Appropriations Chair Buck Clarke, R-Hollandale, said no decision had been made on whether to try to remove the Department of Public Safety from the Personnel Board this session.