IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI BRIEF OF APPELLANT JACKSON COUNTY, MISSISSIPPI

E-Filed Document Jun 11 2015 15:58:25 2014-CC-00928 Pages: 23 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI JACKSON COUNTY, MISSISSIPPI VERSUS MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLANT CAUSE NO. 2014-CC-00928 APPELLEES BRIEF OF APPELLANT JACKSON COUNTY, MISSISSIPPI ORAL ARGUMENT NOT REQUESTED Ryan A. Frederic (MSB No. 102612) Office of the Board Attorney P.O. Box 998 Pascagoula, MS 39568-0998 (228) 769-3371-Telephone (228) 769-3119-Facsirnile Attorney for Appellant

TABLE OF CONTENTS Table of Contents.... Table of Authorities........................................................... ii Statement of the Issue... 1 Statement of the Case... 2 I. Nature of the Case, Proceedings and Disposition... 2 II. Statement of Facts... 3 1) Collect necessary fines and fees from Drug Court participants... 3 2) Track/log interviews of Drug Court participants... 4 3) Keep Judge Krebs informed about Drug Court participants... 4 4) Perform drug tests of participants in accordance with policy of Drug Court... 5 5) Obtain permission from Judge Krebs before attending events of Drug Courts overseen by judges other than Judge Krebs... 5 Summary of the Argument... 7 Argument... 8 I. Standard of Review... 8 II. Substantial Evidence Existed that Chapman's Continuous Failure to Comply with Directives to Drug Court Employees Regarding Work Performance Equates to Misconduct As a Matter of Law... 9 A. Insubordination............................................ 10 III. The Decision of AJ McGee, and the Actions of the Board of Review and Circuit Court Judge Affirming the Decision, were Arbitrary and Capricious... 15 Conclusion... 17 Certificate of Service... 19

TABLE OF AUTHORITIES STATUTES Miss. Code Ann. 71-5-513(A)(1)(b)... 9 Miss. Code Ann. 71-5-531... 8 MISSISSIPPI SUPREME COURT Allen v. Miss. Emp. Sec. Comm'n, 639 So. 2d 904 (Miss. 1994)... 8 Brown v. Miss. Dept. o/emp. Sec., 29 So. 3d 766 (Miss. 2010)... 8 City o/clarksdale v. Miss. Emp. Sec. Comm 'n, 699 So. 2d 578 (Miss. 1997)... 8,9 Gore v. Miss. Emp. Sec. Comm 'n, 592 So. 2d 1008 (Miss. 1992)... 7, 10 Halbert v. City o/columbus, 722 So. 2d 522 (Miss. 1998)... 8 Miss. Comm 'n on Envtl. Quality v. Chickasaw Cnty. Bd o/supervisors, 621 So. 2d 1211 (Miss. 1993)... 8,9 Pannell v. Tombigbee River Valley Water Mgt. Dist., 909 So. 2d 1115 (Miss. 2005)... 13 Pub. Employees Ret. Sys. v. Marquez, 774 So. 2d 421 (Miss.2000)... 15 Sims v. Bd o/trustees, Holly Springs Mun. Sep. Sch. Dist., 414 So. 2d 431 (Miss. 1982).. 7, 10 Wheeler v. Arriola, 408 So. 2d 1381 (Miss. 1982)... 9, 10 Young v. Miss. Emp. Sec. Comm 'n, 754 So. 2d 464 (Miss. 1999)... 10 MISSISSIPPI COURT OF APPEALS Gilbreath v. Miss. Emp. Sec. Comm 'n, 910 So. 2d 682 (Miss. Ct. App. 2005)... 9 Hospital Housekeeping Systems, Inc. v. Townsend, 993 So. 2d 418 (Miss. Ct. App. 2008)... 9 Magee v. Miss. Dept. o/emp. Sec., 77 So. 3d 1159 (Miss. Ct. App. 2012)... 15 Maskv. Miss. Dept. ofemp. Sec., 80 So. 3d 845 (Miss. Ct. App. 2012)... 12 McGee v. Miss. Emp. Sec. Comm 'n, 876 So. 2d 425 (Miss. Ct. App. 2004)... 8 11

Miss. Emp. Sec. Comm 'n v. Claiborne, 872 So. 2d 698 (Miss. Ct. App. 2004)... 10 Miss. Dept. ofemp. Sec. v. Kent, 135 So. 3d 230 (Miss. Ct. App. 2014)... 8,13 Miss. Dept. ofemp. Sec. v. Trent L. Howell, PLLC, 46 So. 3d 827 (Miss. Ct. App. 2010)... 8,9 Miss. Emp. Sec. Comm 'n v. Berry, 811 So. 2d 298 (Miss. Ct. App. 2001)... 8 Miss. Emp. Sec. Comm 'n v. Jones, 755 So. 2d 1259 (Miss. Ct. App. 2001)... 9 Pendleton v. Miss. Dept. Emp. Sec., 86 So. 3d 284 (Miss. Ct. App. 2012)... 10 Reeves v. Miss. Emp. Sec. Comm 'n, 806 So. 2d 1178 (Miss. Ct. App. 2002)... 13 Scott Colson's Shop, Inc. v. Harris, 67 So. 3d 841 (Miss. Ct. App. 2011)... 9 Shavers v. Miss. Dept. of Emp. Sec., 80 So. 3d 845 (Miss. Ct. App. 2000)... 13 Weathersbyv. Miss. Dept. ofemp. Sec., 114 So. 3d 809 (Miss. Ct. App. 2013)... 10,11,12,16 Wright v. Pub. Employees Ret. Sys., 24 So. 3d 382 (Miss. Ct. App. 2009)... 15 111

STATEMENT OF THE ISSUE The Appellant, Jackson County, Mississippi (hereinafter "Jackson County"), submits the following Statement of the Issue on Appeal: 1. Whether or not the Decision of the Jackson County Circuit Court, affirming the decision of Administrative Law Judge Timothy McGee and the Mississippi Department of Employment Security Board of Review, should be Reversed disqualifying the Claimant, Margaret Chapman, from eligibility for unemployment compensation because her actions constituted misconduct as a matter of law. 1

STATEMENT OF THE CASE I. Nature of the Case, Proceedings, and Disposition The incident at issue arises from the termination of Margaret Chapman's (hereinafter "Chapman") employment with Jackson County. On November 25, 2013, Chapman was terminated from her position as Case Manager for the Jackson County Drug Court (hereinafter "Drug Court"). (R. Transcript, pp. 71, 98)(hereinafter "R.T."). On December 8, 2013, Chapman filed a claim for unemployment benefits with the Mississippi Department of Employment Security (hereinafter "MDES"). (R.T., pp. 7-9). On December 20,2013, the MDES issued its initial decision granting unemployment benefits to Chapman, which was appealed by Jackson County on December 27,2013. (R.T., pp. 10-11, 12). On January 23, 2014, a telephonic hearing was conducted regarding Jackson County's appeal before Administrative Law Judge Timothy McGee (hereinafter "AJ McGee"). All testimony and documents entered into evidence occurred during this hearing. (R.T., pp. 21-130). On February 7, 2014, AJ McGee issued his decision affirming the initial MDES decision granting unemployment benefits to Chapman. (R.T., pp. 132-35). On February 10, 2014, Jackson County appealed the decision of AJ McGee. (R.T., pp. 136, 138). On March 13,2014 the Board of Review, in one sentence, affirmed the decision of Judge McGee. (R.T., p. 146). On April 2, 2014, Jackson County filed a Notice of Appeal in the Circuit Court of Jackson County, Mississippi. (Vol. Amend. Clrk. Papers 0000003-4)(hereinafter "A.M. C."). On April 25, 2014, the Mississippi Supreme Court appointed the Honorable Richard W. McKenzie to preside over the appeal to circuit court. (A.M.C. 0000007-8). On June 9, 2014, without requiring briefs from the parties, Judge McKenzie issued his Opinion affirming the decision of AJ McGee and the Board of 2

Review. (A.M.C.0000012). On July 7,2014, Jackson County filed its Notice of Appeal. (A.M.C. 0000014-15). II. Statement of Facts From August 29,2005 until her termination, Chapman served as a Case Manager for the Drug Court under Judge Robert P. Krebs. (R.T., pp. 31, 97-98). Her duties and responsibilities included, but were not limited, to: maintaining contact with Drug Court participants for various interviews and programs; preparing and processing forms and reports; and compiling data for monthly reporting. (R.T., pp. 99-101). On November 25, 2013, Chapman was terminated for insubordination. (R.T., pp. 30, 71-72, 98). During the January 23, 2014 telephonic hearing before AJ McGee, the reasons causing Chapman's termination for insubordination were provided via testimony of Chapman and Drug Court Coordinator, Joanne Byrd (hereinafter "Byrd"), as well as documentary evidence submitted by Jackson County. (R.T., pp. 21-130). The reasons can be summarized as Chapman's continuous failure to: 1) collect necessary fines and fees from Drug Court participants; 2) track/log interviews of Drug Court participants; 3) keep Judge Krebs informed about Drug Court participants; 4) perform drug tests of participants in accordance with Drug Court directives; and 5) obtain permission from Judge Krebs before attending events of Drug Courts overseen by judges other than Krebs. 1) Collect necessary fines and fees from Drug Court participants. One of, if not the most important, duties as a Drug Court Case Manager is collection of fines and fees from Drug Court participants. (R.T., pp. 32-33). It is important because the Drug Court's budget is determined by the amount of fines and fees collected. (R.T., pp. 33, 84-85). In fact, Chapman testified that "fines and fees, that was always on our mind because our drug court budget had been drastically cut over 3

the past year and it's planning to be cut again. Um... so fines and fees was definitely a top priority." (RT., p. 85). However, according to Byrd, Chapman's collections were considerably lower even though she had a number of active participants that should have been paying and had some active participants that had not paid in five or six months. (R.T., pp. 52, 129-30). 2) Track/log interviews of Drug Court participants. Chapman, as a Case Manager, was required to track the number of interviews of Drug Court participants she conducted per week. (RT., pp. 34-35). The weekly reports were requested by Judge Krebs because the interviews are conducted to determine if a candidate qualifies for Drug Court based on venue. Id. However, for the year 2012 - beginning in May through the end of the year - Chapman submitted only twentythree (23) weekly reports and for 2013, Chapman submitted only fifteen (15) weekly reports; although, according to Byrd, based on holidays, two weeks for state and national conferences and time that Chapman may have been on vacation, Chapman should have submitted around forty-four (44) weekly reports. (R.T., pp. 34-35, 64-67, 115-28). 3) Keep Judge Krebs informed about Drug Court participants. Chapman was asked to provide Judge Krebs with information (whether good or bad) regarding Drug Court participant( s) beforetheparticipant(s) was to appear before Krebs in Drug Court. (R.T., pp. 41-43, 56-58, 77-80). Chapman was notified to keep Judge Krebs informed prior to September 2013. (R. T., p. 80). Again in September 2013, Chapman was informed by Judge Krebs and Byrd that she needed to keep Krebs better informed and Chapman developed a form to aide her efforts in that regard. (RT., pp. 77-80, 86,91-92). However, according to Byrd, Chapman did not keep Judge Krebs better informed after developing the form. (RT., pp. 42-43). 4

4) Perform drug tests oj participants in accordance with policy oj Drug Court. On at least two (2) occasions, Chapman and another Drug Court case manager were caught by Byrd drug testing Drug Court participants in a manner not authorized by the Drug Court. (RT., pp. 35-39). According to Byrd, even though Chapman and the other case manager were counseled by her after being caught the first time, Byrd observed Chapman and the case manager still conducting drug testing of participants in an unauthorized manner. Id. 5) Obtain permission from Judge Krebs before attending events of Drug Courts overseen by judges other than Judge Krebs. There are three (3) other Drug Courts in Jackson County run by different judges and each has events throughout the year for participants, including but not limited to, barbeques, graduations, holiday parties and sporting activities. (R.T., pp. 40, 72-73). According to Byrd, sometime in 2013, Judge Krebs expressed to her his frustration about Chapman attending other judges' Drug Court events during work hours without asking Krebs' permission. (RT., pp. 41,54-55). Chapman testified there were times when she attended other Drug Court events where she "did not ask [Krebs] permission to go, I just let him know that I was goin." (RT., p. 73). However, according to Chapman, it appears that in the last three (3) months of her employment, she began clearing with Judge Krebs whether or not she could attend the other Drug Court events. (R.T., pp. 86-89). Lastly, according to both Chapman and Byrd, on several occasions in the last three (3) months of her employment, Chapman was informed that her job was injeopardy if her performance did not improve. (R.T., pp. 43-44, 87). In affirming the initial MDES decision granting unemployment benefits to Chapman, in his Reasoning and Conclusion, AJ McGee found, in pertinent part, that: 5

(R.T., pp. 132-35). The claimant was warned in September 2013, to improve her collections and to provide more information to the judge about drug court participants. The claimant heeded the warning and improved her performance in these areas. Improvement in these areas show the claimant is following instructions as opposed to being insubordinate. The claimant advised the judge she was leaving for fun events and had his permission to do so. The claimant did fail to inform the judge of all the participants. However, this occurred in 2012, and nothing was presented to show it was a problem in 2013. This also shows improvement and adherence to instructions. Insufficient evidence was presented by the employer to prove the claimant was insubordinate or that her performance on the job constituted work connected misconduct. In affirming the decision of AJ McGee, the Board of Review simply opined that "[o]n 03/06/2014, after careful review and consideration of all the evidence, the Board of Review adopts the Findings of Fact and Opinion of the Administrative Law Judge and hereby affirms the decision." (R.T., p. 146). On appeal to circuit court, Judge McKenzie, without discussing the facts or applicable law on the matter or requiring briefs from the parties, held "[t]he Court having reviewed and maturely considered all pleadings filed herein FINDS that the Decision of the Administrative Law Judge and of the Board of Review should be, and the same hereby is AFFIRMED." (A.M.C. 0000012). 6

SUMMARY OF THE ARGUMENT Jackson County seeks reversal of AJ McGee's February 7,2014 decision that Chapman was not terminated for "misconduct", as contemplated under Miss. Code Ann. 71-5 -513(A)( 1 )(b) and as that term has been interpreted by case law. On several occasions during her employment with Jackson County as a Drug Court Case Manager, Chapman was counseled regarding her failure to perform the following tasks in a satisfactory manner: collecting fines and fees from Drug Court Participants, tracking/logging interviews of Drug Court participants, keeping Judge Krebs informed about Drug Court participants, performing drug tests of participants in accordance with Drug Court directives, and obtaining permission from Judge Krebs before attending events of Drug Courts overseen by judges other than Krebs. Nevertheless, Chapman failed to consistently complete these tasks up until November 25, 2013; at which point, she was terminated for insubordination. As this Court is well aware, insubordination is a form of misconduct for purposes of unemployment, exhibited by "a constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority." Gore v. Miss. Emp. Sec. Comm 'n, 592 So. 2d 1008, 1010 (Miss. 1992)( quoting Sims v. Bd. oj Trustees, Holly Springs Mun. Separate Sch. Dist., 414 So. 2d 431, 435 (Miss. 1982)). As such, these actions - or failures of Chapman - constitute "misconduct" as a matter of law and she should be disqualified from receiving unemployment benefits. Therefore, the decision of AJ McGee, as affirmed by the Board of Review and Circuit Court Judge McKenzie, is not supported by substantial evidence, is arbitrary and capricious, and should be reversed. 7

ARGUMENT I. Standard of Review The standard of review regarding the decision of a trial court to affirm or deny the findings and decision of the MDES Board of Review is abuse of discretion. McGee v. Miss. Emp. Sec. Comm 'n, 876 So. 2d 425, 427 (Miss. Ct. App. 2004). Pursuant to Miss. Code Ann. 71-5-531, the MDES Board of Review's findings of fact are conclusive if supported by substantial evidence and in absence of fraud. As such, judicial review is limited to questions of law, reviewed de novo by an appellate court. Brown v. Miss. Dept. of Emp. Sec., 29 So. 3d 766, 769 (Miss. 2010). Whether certain facts found to be true constitute misconduct is a legal question subject to review de novo. Halbert v. City o/columbus, 722 So. 2d 522, 527 (Miss. 1998). This Court is to "review the record to determine whether there is substantial evidence to support the Board of Review's findings of fact, and further, whether, as a matter of law, the employee's actions constituted misconduct disqualifying him from eligibility for unemployment compensation." Miss. Emp. Sec. Comm 'n v. Berry, 811 So. 2d 298,301 (Miss. Ct. App. 2001)( citing City oj Clarksdale v. Miss. Emp. Sec. Comm 'n, 699 So. 2d 578,580 (Miss. 1997)). There is "[a] rebuttable presumption [that] exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise." Miss. Dept. oj Emp. Sec. v. Trent L. Howell, PLLC, 46 So. 3d 827,830 (Miss. ct. App. 2010)(quoting Allen v. Miss. Emp. Sec. Comm'n, 639 So. 2d 904,906 (Miss. 1994)). A denial of benefits may only be disturbed if: (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to an agency, or (4) if an employee's constitutional rights are violated. Miss. Dept. oj Emp. Sec. v. Kent, 135 So. 3d 230, 232 (Miss. Ct. App. 2014)(citing Miss. Comm 'n on Envtl. Quality v. Chickasaw Cnty. Bd of 8

Supervisors, 621 So. 2d 1211, 1215 (Miss. 1993)). Jackson County submits that two grounds - substantial evidence, and arbitrary and capricious - exist in the present matter and urges this Court to reverse the rulings of AJ McGee, Board of Review and Judge McKenzie and deny Chapman eligibility for unemployment benefits. II. Substantial Evidence Existed that Chapman's Continuous Failure to Comply with Directives to Drug Court Employees Regarding Work Performance Equates to Misconduct As a Matter of Law Miss. Code Ann. 71-5-513(A)(1)(b) provides, in relevant part, that "[a]n individual shall be disqualified for benefits [...] [f]or the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work..." The burden is placed on an employer to show by "substantial, clear and convincing evidence" that the conduct of the former employee warrants disqualification of eligibility for unemployment benefits. Miss. Emp. Sec. Common v. Jones, 755 So. 2d 1259, 1262 (Miss. Ct. App. 2000)(citing City oj Clarksdale, 699 So. 2d at 580). "'Substantial evidence'" is that evidence "which is relevant and capable of supporting a reasonable conclusion, or more than a mere scintilla of evidence." Trent L. Howell, PLLC, 46 So. 3d at 830 (citing Gilbreath v. Miss. Emp. Sec. Comm 'n, 910 So. 2d 682,686 (Miss. Ct. App. 2005)). Substantial evidence has also been described as "'that which provides an adequate basis of fact from which the fact in issue can be reasonably inferred. '" Scott Colson's Shop, Inc. v. Harris, 67 So. 3d 841 (Miss. Ct. App. 2011)(quoting Hospital Housekeeping Systems, Inc. v. Townsend, 993 So. 2d 418,425 (Miss. Ct. App. 2008)). In Wheeler v. Arriola, this Court defined "misconduct," when used in the unemployment compensations statute, as: 9

[C]onduct evmcmg such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer's interest or of the employee's duties and obligations to his employer, [come] within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered 'misconduct' within the meaning of the statute. Pendleton v. Miss. Dept. Emp. Sec., 86 So. 3d 284,285 (Miss. Ct. App. 2012)(quoting Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982)). A. Insubordination Insubordination is a form of misconduct for purposes of unemployment benefits. Young v. Miss. Emp. Sec. Comm 'n, 754 So. 2d 464,466-67 (Miss. 1999). It has been defined by this Court as "a constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority." Gore, 592 So. 2d at 1010 (quoting Sims, 414 So. 2d at 435). Further, the Court of Appeals has found that: [P]rolonged and persistent failure to perform routine duties that the employee is capable of performing properly, especially when the employee is given repeated warnings of those failures but apparently refuses to heed those warnings, may rise to the level of disqualifying misconduct as that term has been defined by statutory enactment and subsequent judicial interpretation. Miss. Emp. Sec. Comm 'n v. Claiborne, 872 So. 2d 698, 700 (Miss. Ct. App. 2004). In Weathersby v. Miss. Dept. oj Emp. Sec., if the teacher assistant/employee failed to complete bi-annual meetings with students' parents, the organization/employer (Friends of Children of Mississippi) could lose necessary federal grant money. 114 So. 3d 809, 810 (Miss. Ct. App. 10

2013). Although the employee was instructed/counseled on several occasions during her employment over some thirty-two (32) months, the employee never completed the required meetings. Id. The employee was terminated for insubordination and filed for unemployment. ld. The MDES claims examiner, administrative law judge, board of review and circuit court all agreed the employee was ineligible for unemployment benefits. ld. The Court of Appeals found that the employee "repeatedly failed to complete tasks vital to [employer's] federal funding and necessary to properly run the preschool" and held that "[employer] had a right to expect that such duties would be completed by [employee]. Thus, [employee's] inaction unquestionably constitutes misconduct under the law." ld. at 811. As such, the Weathersby court affirmed the denial of unemployment benefits. In the present matter, as noted supra, one of, if not the most important duties Chapman had as a Drug Court Case Manager was collection of fines and fees from Drug Court participants because the Drug Court's budget is determined by the amount collected. (R.T., pp. 32-33, 84-85). The potential loss of funding to the Drug Court (a.k.a. budget cuts) is similar to the potential loss of funding in Weathersby. And just like the employee in Weathersby, Chapman was well aware of the importance of collecting fines and fees from Drug Court participants, as she testified: ALJ: Did Ms. Byrd ever talk with you about any problems with this 'cause based on the sheets... she's prepared and the so on, has she... CHAPMAN: Oh, most definitely, Judge. Fines and fees is a big topic of conversation because that is how drug court is funded. **** ALJ: Had you been issued any warnings, ah... for the ah... about fee collection... in the last 18 months? CHAPMAN:... I would have to say for verbally, fines and fees, that was always on our mind because our drug court budget had been drastically cut over 11

the past year and it's planning to be cut again. Urn... so fines and fees was definitely a top priority. (R.T., pp. 84-85) However, according to Byrd, Chapman's collections were considerably lower even though she had a number of active participants that should have been paying and Chapman even had some active participants that had not paid in five or six months. (R.T., pp. 52, 129-30). Similar to Weathersby, Chapman was clearly aware of the importance of increasing her collection of fines and fees and that if she failed to do so, the Drug Court would suffer additional loss of funding. This evidence alone is sufficient grounds for this Court to find that Chapman's failure to collect fines and fees of Drug Court participants as directed is misconduct as a matter of law for purposes of unemployment benefits and declare her ineligible for said benefits. As such, the rulings of AJ McGee, the Board of Review and Judge McKenzie should be reversed. Additionally, in Mask v. Miss. Dept. of Emp. Sec., although the employee was capable of properly sewing pieces of fabric onto furniture, after receiving several warnings from her employer, the employee continued to incorrectly sew the pieces of fabric onto the furniture. 80 So. 3d 845 (Miss. Ct. App. 2012). The court found there was evidence that employee's failure to perform this job function cost the employer time, money and resources and as such, affirmed the denial of unemployment benefits to the employee. Id. at 848. Just like the employee in Mask, Chapman was capable of completing the tasks oftrackingllogging interviews of Drug Court participants, keeping Judge Krebs informed about Drug Court participants, performing drug tests of participants in accordance with Drug Court directives, and obtaining permission from Judge Krebs before attending events of Drug Courts overseen by judges other than Krebs. (R.T., pp. 21-130). However, despite 12

being counseled on more than one occasion to improve her performance as to each task, Chapman continued to fail to perform each in a satisfactory manner. Id. Each failure of Chapman equates to substantial evidence providing that her actions constitute misconduct as a matter oflaw for purposes of unemployment benefits and declare her ineligible for such benefits; thus, reversing the rulings of AJ McGee, the Board of Review and Judge McKenzie. See also Kent, 135 So. 3d 230 (Miss. Ct. App. 2014)(employee's substandard work after warnings from employer was misconduct connected with work); Pannell v. Tombigbee River Valley Water Mgt. Dist., 909 So. 2d 1115 (Miss. 2005)(employee's improper conduct regarding operation of machinery after being warned several times equated to misconduct for unemployment purposes); Reeves v. Miss. Emp. Sec. Comm 'n, 806 So. 2d 1178 (Miss. Ct. App. 2002)(fifteen year employee terminated for failure to clean up parts five days after being instructed by supervisor, found to be insubordination for unemployment purposes); and Shavers v. Miss. Dept. ofemp. Sec., 80 So. 3d 845 (Miss. Ct. App. 2000)( employee, after being reprimanded five times for failing to properly perform work task, denied unemployment benefits because taken as a whole, the failures of employee constituted misconduct). part, that: Additionally, as noted supra, AJ McGee found in his Reasoning and Conclusion, in pertinent The claimant was warned in September 2013, to improve her collections and to provide more information to the judge about drug court participants. The claimant heeded the warning and improved her performance in these areas. Improvement in these areas show the claimant is following instructions as opposed to being insubordinate. The claimant advised the judge she was leaving for fun events and had his permission to do so. The claimant did fail to inform the judge of all the participants. However, this occurred in 2012, and nothing was presented to 13

show it was a problem in 2013. This also shows improvement and adherence to instructions. (R.T., pp. 132-35). However, AJ McGee's recollection of the evidence presented at the January 23, 2014 hearing appears a little blurry. For starters, AJ McGee entirely failedto address the evidence that on more than one occasion - and after being counseled by Byrd - Chapman continued to drug test Drug Court participants in a manner not authorized by the Drug Court. (R.T., pp. 35-39). There is no substantial evidence that Chapman increased her collection efforts. (R.T., pp. 52, 129-30). There is no evidence that Chapman had Judge Krebs' "permission" to attend "fun events" conducted by drug courts run by other judges. Rather, Chapman testified that she "did not ask [Krebs] permission to go, I just let him knowthatlwasgoin.'" (R.T.,p. 73). Regarding AJ McGee's finding that Chapman "provide[d] more information to the judge about drug court participants" and that Chapman "did fail to inform the judge of all the participants. However, this occurred in 2012, and nothing was presented to show it was a problem in 2013." (R.T., p. 134). As to the first finding, it would appear that AJ McGee was addressing whether or not Chapman kept Judge Krebs informed about Drug Court participants; however, there does not appear to be substantial evidence that Chapman complied with Krebs to keep him better informed. (R.T., pp. 41-43, 56-58, 77-80, 86, 91-92). As for the second finding, AJ McGee appears mistaken on whether or not Chapman tracked/logged interviews of Drug Court participants - especially in 2013, as Byrd testified that based on holidays, two weeks for state and national conferences and time that Chapman may have been on vacation, Chapman should have submitted around forty-four (44) weekly reports in 2013. (R.T., pp. 34-35, 64-67, 115-28). In turn, based on the foregoing, 14

substantial evidence did exist clearly showing that Chapman was ineligible for unemployment benefits, not eligible as found by AJ McGee. III. The Decision of AJ McGee, and the Actions of the Board of Review and Circuit Court Judge Affirming the Decision, were Arbitrary and Capricious This Court has held that a decision of an administrative agency not based on substantial evidence is arbitrary and capricious. Magee v. Miss. Dept. ofemp. Sec., 77 So. 3d 1159, 1163 (Miss. Ct. App. 2012)(citing Pub. Employees Ret. Sys. v. Marquez, 774 So. 2d 421,430 (Miss. 2000)). As provided herein, substantial evidence existed that Chapman was terminated from Jackson County for insubordination. In turn, that alone should make Chapman ineligible for unemployment benefits. However, as provided below, the February 7, 2014, ruling of AJ McGee was also arbitrary and capricious. An act is arbitrary when the action is '''not done in accord[ ance] to reason or judgment but depending on the will alone.'" Wright v. Pub. Employees Ret. Sys., 24 So. 3d 382, 388 (Miss. Ct. App. 2009)(quoting Marquez, 774 So. 2d at 429)(emphasis added). An act is capricious if"'done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles. '" Id. (Emphasis added). On several occasions during AJ McGee's questioning of both Chapman and Byrd at the January 23,2014 telephonic hearing, McGee appeared to target and/or focus on what Chapman did or not do in the last eighteen (18) months of her employment with Jackson County - while entirely disregarding all other acts giving rise to her termination - not falling within that time period. For example, regarding whether or not Judge Krebs had disciplined Chapman prior to her termination: ALJ:... Alright, so within the last year and six months prior to her termination, it was what you testified at the beginning, correct? 15

(R.T., p. 40). While Byrd was trying to answer AJ McGee questioning if Chapman was ever told her job was in jeopardy ALJ: 18 months. I'm not, we're not, I'm not even gonna get into what happened five years ago. Anything in the last 18 months? (R.T., p. 44). And again, as noted supra, AJ McGee questioned Chapman: ALJ: Had you been issued any warnings, ah... for the ah... about fee collection... in the last 18 months? (R.T., pp. 84-85) CHAPMAN:... I would have to say for verbally, fines and fees, that was always on our mind because our drug court budget had been drastically cut over the past year and it's planning to be cut again. Urn... so fines and fees was definitely a top priority. The undersigned is unaware of any current Mississippi unemployment jurisprudence - whether case law, regulation or statute - requiring any misconduct to occur within the last 18 months of an employee's employment or if not, the employee's acts resulting in termination cannot be deemed misconduct for unemployment purposes. AJ McGee's actions in this regard during the hearing suggests he lacked understanding of Mississippi unemployment law and/or appears to have acted on a whim in finding Chapman eligible for unemployment benefits. Furthermore, as discussed above, although AJ McGee appears to have mistakenly focused on what did or did not occur within the last eighteen (18) months of Chapman's employment, the employee/plaintiff in Weathersby - although warned more than once over a period ofthirty-two (32) months - never completed the required meetings to ensure her employer would not lose federal funding. 114 So. 3d at 810 (emphasis added). Using Weathersby as an illustration, AJ McGee's focus on the last 18 months of Chapman's employment appears to be done without reason or will 16

alone and should be classified as arbitrary or capricious. Therefore, the February 7, 2014, decision of AJ McGee affirming the initial MDES decision granting unemployment benefits to Chapman should be reversed. Moreover, it follows because the Board of Review and Judge McKenzie each affirmed the decision of AJ McGee - without making any findings offact and/or law but rather simply signing-off on the decision summarily in one sentence - that those decisions are also arbitrary and capricious and should be reversed, denying eligibility of unemployment benefits to Chapman. (R.T., 146, A.M.C. 0000012) CONCLUSION Based on the foregoing arguments and the record, Jackson County has carried its burden in showing by substantial evidence that Chapman's termination from employment was due to her own misconduct. Chapman was terminated for insubordination related to her continuous failure to perform the following tasks, although she was counseled regarding each on several occasions: collecting fines and fees from Drug Court Participants, tracking/logging interviews of Drug Court participants, keeping Judge Krebs informed about Drug Court participants, performing drug tests of participants in accordance with Drug Court directives, and obtaining permission from Judge Krebs before attending events of Drug Courts overseen by judges other than Krebs. Under current Mississippi law, these actions - or failures of Chapman - constitute "misconduct" as a matter oflaw and Chapman should be disqualified from receiving unemployment benefits. Therefore, the decision of AJ McGee, as affirmed by the Board of Review and Circuit Court Judge McKenzie, is not 17

supported by substantial evidence, is arbitrary and capricious, and should be reversed. THIS the 11th day of June, 2015. Respectfully submitted, JACKSON COUNTY, MISSISSIPPI BY::8tR~ Attorney for Appellant Ryan A. Frederic MS Bar #102612 Office of the Board Attorney of Jackson County, Mississippi Post Office Box 998 Pascagoula, MS 39568 Telephone: (228) 769-3371 Facsimile: (228) 769-3119

CERTIFICATE OF SERVICE I, RYAN A. FREDERIC, attorney for Jackson County, Mississippi, do hereby certify that I have this day electronically filed the foregoing Brief of the Appellant with the Clerk of Court using the MEC filing system which sent notification of such filing to the following persons: Albert B. White, Esq. Anna C. Clemmer, Esq. MDES Legal Department Post Office Box 1699 Jackson, Mississippi 39215-1699 Calvin Taylor, Esq. Taylor Law Firm P.O. Box 0006 Pascagoula, MS 39568-0006 Further, I hereby certify that I have mailed a copy of same by U.S. mail with postage prepaid to the following non-mec participant: Hon. Richard W. McKenzie Forrest County Circuit Court Judge, Ret. P.O. Box 1403 Hattiesburg, MS 39403 SO CERTIFIED, this the 11 fu day of June, 20~F~ Ryan A. Frederic MS Bar #102612 Office of the Board Attorney of Jackson County, Mississippi Post Office Box 998 Pascagoula, MS 39568 Telephone: (228) 769-3371 Facsimile: (228) 769-3119 19