King v. Miss. Military Dep't

• Decision Date: 07 June 2018
• Docket Number: NO. 2017–CC–00784–SCT,2017–CC–00784–SCT
• Citation: King v. Miss. Military Dep't, 245 So.3d 404 (Miss. 2018)
• Parties: Cindy W. KING v. MISSISSIPPI MILITARY DEPARTMENT
• Court: Mississippi Supreme Court

245 So.3d 404

Cindy W. KING

v.MISSISSIPPI MILITARY DEPARTMENT

NO. 2017–CC–00784–SCT

Supreme Court of Mississippi.

June 7, 2018

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, FOR THE COURT:

¶ 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 therefore controls." Additionally, the circuit court did not find the employee handbook provided by King to be persuasive either, because the handbook covered appellate procedures within the Department, not with the Board.

¶ 6. Aggrieved by the decisions, King filed the present appeal, and her sole issue is as follows:

Whether the lower court erred by finding that [King] was not a state service employee, despite extensive evidence indicating that [King] was a state service employee, and affirming the Mississippi Employee Appeals Board's decision to dismiss her appeal from an adverse employment action due to lack of jurisdiction.

STANDARD OF REVIEW

¶ 7. On appeal, the Court reviews the decision of an administrative agency to determine whether the decision was supported by substantial evidence, was arbitrary or capricious, was beyond the agency's power to adopt, or was violative of a constitutional or statutory provision. Watkins Dev., LLC v. Hosemann , 214 So.3d 1050, 1053 (¶ 15) (Miss. 2017).

¶ 8. We pause here, however, to consider closely our standard for reviewing an agency interpretation of statutes. We have stated that the Court's review of an "agency's interpretation of a rule or statute governing the agency's operation is a matter of law that is reviewed de novo , but with great deference to the agency's interpretation." Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid , 21 So.3d 600, 606 (¶ 15) (Miss. 2009). The Court has explained that [t]his "duty of deference derives from our realization that the everyday experience of the administrative agency gives it familiarity with the particularities and nuances of the problems committed to its care which no court can hope to replicate." Id. A caveat being that the agency's interpretation will not be upheld "if it is so plainly erroneous or so inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Id. (citing Buelow v. Glidewell , 757 So.2d 216, 219 (Miss. 2000) ).

¶ 9. However, our pronouncements on the deference due the agency have not been consistent and, especially in recent years, we have backed away from showing "great deference" to agency interpretations of statutes. Because only statutes are at issue in the case sub judice , we today address the standard of review only as it applies to agency interpretations of statutes. In Mississippi Department of Corrections v. Cook , 210 So.3d 965 (Miss. 2017), for example, we wrote that no deference will be accorded an agency interpretation that contradicts "the unambiguous terms or best reading of a statute." Id. at 967 (¶ 6) (quoting Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid , 21 So.3d 600, 606 (¶ 15) (Miss. 2009) ). Elsewhere we wrote that we do not " ‘yield judgment or opinion’ to an agency's statutory interpretation," because "the ultimate authority and responsibility to interpret the law, including statutes, rests with this Court." Miss. State and School Emp. Life and Health Plan v. KCC, Inc. , 108 So.3d 932, 939 (¶ 20) (Miss. 2013). In addition to the contradiction inherent in de novo but deferential review, writing on the one hand that we give great deference to agency interpretations of statutes and, then, with the next strike of the computer keyboard, writing that no deference will be given if the agency's interpretation contradicts the best reading of the statute, creates a confusing and vague standard. The same can be said of claiming to give deference while simultaneously claiming that the Court bears the ultimate responsibility to interpret statutes.

¶ 10. Deferential review of executive-branch statutory interpretations gives rise to another problem under Mississippi's strict constitutional separation of powers. Article 1, Section 1 of the Mississippi Constitution of 1890 divides the power of state government into three branches and assigns legislative powers to the legislative branch, judicial powers to the judicial branch, and executive power to the executive branch. While writing and passing statutes is the function of the Legislature, see Article 4, Section 59 (1890); see also Palermo v. LifeLink Found., Inc. , 152 So.3d 1099, 1105 (¶ 13) (Miss. 2014), interpreting statutes once enacted is the role of the judicial branch. KCC, Inc. , 108 So.3d at 939 (¶ 20).

¶ 11. If Article 1, Section 1, were not enough to establish the strict separation of powers under Mississippi's Constitution, then Article 1, Section 2, leaves no doubt. It provides as follows:

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so

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