IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI

RONALD WEEKS

APPELLANT

VERSUS

CAUSE No. A2402-13-125

CITY OF BILOXI AND

BILOXI CIVIL SERVICE COMMISSION

APPELLEES

BRIEF OF APPELLEES
CITY OF BILOXI AND
BILOXI CIVIL SERVICE COMMISSION

On appeal from
the Biloxi Civil Service Commission

TERE R. STEEL
PAGE, MANNINO, PERESICH
& MCDERMOTT, P.L.L.C.
Attorneys at Law
Post Office Drawer 289
Biloxi, Mississippi 39533
Telephone: (228) 374-2100
Facsimile: (228) 432-5539
Email: tere.steel@pmp.org
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Table of Contents
I.

Introduction .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

Statement of the Case .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A.

Nature of the Case and Course of Proceedings Below. . . . . . . . . . . . . . . . . . . . . . 1

B.

Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.

Weeks Termination. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2.

Appeal to the Biloxi CSC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III.

Statement of the Issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

IV.

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

V.

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A.

The CSC utilized the Correct Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . 18

B.

The CSC correctly found that the COB had reasonable grounds to question Weeks
fitness for duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.

Weeks Conduct on June 6, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2.

Review of the Personnel File.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

3.

Prior Fitness for Duty Evaluation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

C.

CSC Regulation Section 5.12(b) does not require the CSC to make an Independent
finding of Weeks fitness for duty.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

D.

Weeks failed to provide a sufficient mental evaluation. . . .. . . . . . . . . . . . . . . . . 38

E.

The CSCs decision that the COB acted in good faith in providing Weeks with due
process is supported by substantial evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

F.

The CSC did not act in bad faith in the admission of evidence . . . . . . . . . . . . . . 46

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

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Table of Authorities
CASES:

Page

Banks v. City of Greenwood, 404 So. 2d 1038 (Miss. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Burleson v. Hancock County Sheriff's Department Civil Service Commission,
872 So. 2d 43 (Miss. Ct. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
City of Hattiesburg v. Jackson, 108 So. 2d 596 (Miss. 1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
City of Jackson v. Froshour, 530 So. 2d 1348 (Miss. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
City of Jackson v. Moore, 97 So. 3d 1238 (Miss. Ct. App. 2012) . . . . . . . . . . . . 20, 21, 28, 32, 47
City of Jackson Police Dept. v. Ruddick, 243 So. 2d 566 (Miss. 1971). . . . . . . . . . . . . . . . . 18, 19
City of Meridian v. Davidson, 53 So. 2d 48 (Miss. 1951).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
City of Meridian v. Hill, 447 So. 2d 641 (Miss. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
City of Meridian v. Johnson, 593 So. 2d 35 (Miss. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Davis v. Lynbrook Police Department, 224 F.Supp. 2d 463, 479 (E.D. N.Y. 2002) . . . . . . . . . . 18
Grant v. City of Columbus, 812 So. 2d 976, 978 (Miss. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Koshinski v. Decatur Foundry, Inc., 177 F.3d 599 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . 41
Ladnier v. City of Biloxi, 749 So. 2d 139 (Miss. 1999). . . . . . . . . . . . . . . . . . . . . . . 19, 30, 31, 46
Nelson v. Mississippi State Board of Veterinary Medicine,
662 So. 2d 1058, 1062-63 (Miss. 1995) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Pepper v. City of Jackson, 88 So. 3d 806, 809 (Miss. Ct. App. 2012) . . . . . . . . . . . . . . . . . . . . . 39
Riddle v. Mississippi State Board of Pharmacy, 592 So. 2d 37 (Miss. 1991) . . . . . . . . . . . . . . . 46
State Oil & Gas Board v. Mississippi & Royalty Owners Association,
258 So. 2d 767(Miss. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Tepper Bros. v. Buttross, 174 So. 556, 556 (Miss. 1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Theiss v. City of Sturgeon Bay, 2006 U.S. Dist. LEXIS 57955 (E.D. Wis. 2006)... . . . . 30, 31, 32
Thompson v. Jones County Community Hospital, 352 So. 2d 795 (Miss. 1977). . . . . . . . . . . . . 32
Watson v. City of Miami Beach, 177 F. 3d 932 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 30, 33
COURT RULES:
Rule 31(b) of the Mississippi Rules of Appellate Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rule 5.06 of the Uniform Circuit and County Court Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATUTES:
Mississippi Code Annotated 21-31-23 (1972) .. . . . . . . . . . . . . . . . . . . . . 18, 19, 20, 43, 44, 46
REGULATIONS:
Biloxi Civil Service Rules and Regulations 5.12(b).. . . . . . . . . . 8, 12, 22, 29. 34. 38, 39, 42, 45
Biloxi Civil Service Rules and Regulations 10.05(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 46
Biloxi Civil Service Rules and Regulations 11.02(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Biloxi Civil Service Rules and Regulations, Appendix C.III.A. . . . . . . . . . . . . . . . . . . . . . . 19, 21

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I.

Introduction.
Appellant Ronald Weeks was terminated from the City of Biloxis Department of Police after

he was found psychologically unfit for duty as a police officer.

The Biloxi Civil Service

Commission found that there was substantial evidence supporting the City of Biloxis termination
of Weeks and that the Citys decision was made in good faith.

The record supports the

Commissions decision, and as a result, Weeks appeal to this Court should be denied.
II.

Statement of the Case.

A.

Nature of the Case and Course of Proceedings Below.

On October 19, 2007, Appellant Ronald Weeks (Weeks) was terminated from his position
as a Patrol Officer I with the City of Biloxi Department of Police (BPD); his termination by Mayor
Holloway of the City of Biloxi (COB) was effective on October 31, 2007. (R. 10 at 189).1 On
October 25, 2007, Weeks appealed his termination to the City of Biloxi Civil Service Commission
(CSC). (R. 11 at 42-45). Weeks civil service appeal was scheduled for hearing on seven different
dates. (R. 6 at 53, 57, 61, 64, 91-92, 97, 108). After four postponements by Weeks, the CSC appeal
hearing convened on March 26, 2009. (R. 7 at 188). Upon convening, however, an agreement was
reached to stay the appeal so that Weeks could use his best efforts to obtain medical disability
retirement benefits through the Public Employees Retirement System of Mississippi (PERS). (R.
6 at 121; R. 7 at 188-90). On August 9, 2012, when Weeks finally requested a rescheduling of his
appeal hearing pursuant to his October 25, 2007 Notice of Appeal, (R. 6 at 123; R. 8 at 137), the

On November 1, 2013, the City of Biloxi Civil Service Commission filed its record in this matter
in this Court. The Commissions record is designated on this Courts Docket as Document Nos. 4 - 17. All
references to the Commissions record herein are R.__ at ___ which citation refers to a specific document
and the Courts pagination system for that document. As a further note, R.E. refers to the City of Biloxis
Record Excerpts which are filed contemporaneously with this Brief.

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COB filed a motion to dismiss the appeal due to Weeks failure to use his best efforts to obtain
PERS benefits. (R. 6 at 126; R. 8 at 107-98). This motion was denied by the CSC. (R. 6 at 127).
The appeal hearing of Weeks commenced again on March 27, 2013. (R. 11 at 159). The hearing
was reconvened on June 24, 2013, and continued through June 26, 2013. (R. 13 at 111; R. 14 at 153;
R. 16 at 14). On September 12, 2013, the CSC affirmed Weeks termination and issued its Findings
of Fact and Conclusions of Law. (R.E. 1; R. 6 at 161-89).
On October 2, 2013, Weeks filed his Notice of Appeal in this Court against the COB and the
CSC. (R. 1). On November 1, 2013, the CSC filed the transcript of the appeal hearing and all
records on file in its office affecting or relating to the CSCs judgment. (R. 3). Under Rule 5.06 of
the Uniform Circuit and County Court Rules and Rule 31(b) of the Mississippi Rules of Appellate
Procedure, Weeks was required to serve and file his appellate brief on or before December 11, 2013,
40 days after the date on which the CSC record was filed. Weeks failed to timely file his brief, and
he did not request additional time to do so until January 9, 2014, after the time allowed by the Rules
for response had expired. As a result, the COB objected to his motion, (R. 18, 20), and on March
11, 2014, the COB and the CSC filed a Motion to Dismiss Appeal, which remains pending, as the
result of Weeks failure to comply with the applicable rule. (R. 19). Weeks did not file his brief until
March 16, 2014. (R. 21). On April 24, 2014, the Court granted an oral motion to allow the COB
and the CSC to file their brief on or before May 30, 2014. (R. 22).
B.

Statement of the Facts.

On June 6, 2007, Weeks was on duty with the BPD as a patrol officer. (R. 14 at 192-94).
After shift briefing, at approximately 3:00 p.m., Weeks informed his supervisors, Lt. Andrew Balius
and Sgt. Michael Brumley, that he was going to Biloxi Regional Medical Center (BRMC) to check
on a friend, Cheryl Rodolfich, who had attempted suicide. (R. 12 at 171; R. 14 at 194). Rodolfich,

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was under criminal investigation for her alleged stabbing of her husband, a Biloxi fire fighter. (R.
14 at 200 - R. 15 at 1; R. 15 at 59). Sgt. Brumley testified that he understood that Weeks would be
at BRMC for only a short period of time to check on Rodolfich, and then he would return to work.
(R. 14 at 194). Weeks did not have Sgt. Brumleys permission to stay at BRMC for as long as he
wanted. (Id.; R. 15 at 50). As the afternoon progressed, a number of calls were received for Weeks
assigned patrol area, and Weeks was needed in service. (R. 14 at 194-95). Further, Lt. Balius had
been to BRMC and had observed Weeks highly emotional state. (R. 15 at 1-2; R. 12 at 172). When
Weeks failed to report to duty by 4:30 p.m., Sgt. Brumley radioed Weeks and asked him when he
would be back in service. (R. 14 at 195-96). Weeks responded that he would be return to service
shortly. (R. 14 at 196). At or about 5:00 p.m., Major Charles Britt asked Sgt. Brumley whether
Weeks had returned to service. (R. 14 at 196). Additionally, Lt. Balius directed Sgt. Brumley to get
Weeks back from BRMC and in service to help answer calls. (R. 12 at 171). After learning that
Weeks had not returned, Sgt. Brumley drove to BRMC where he found Weeks in the common area
talking with medical staff about Rodolfichs medical condition and whether she should be committed
to a psychiatric institution. (R. 14 at 196-97). Sgt. Brumley ordered Weeks to immediately report
to the police station. (R. 14 at 197).
At the police station, Sgt. Brumley met with Weeks to discuss the length of time that he had
been at BRMC and to determine whether Weeks was emotionally able to go back in service for the
remainder of his shift. (R. 14 at 197-98). Weeks justified the length of time he was at BRMC by
admitting to Sgt. Brumley that he was discussing with Rodolfichs doctors whether she should be
committed. (R. 14 at 200). This was so even though Weeks was not a family member and BPD
officers were trained that a persons medical condition is confidential and should not be discussed
without authority. (Id.). In accordance with Sgt. Brumleys testimony, the CSC found that at times

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Weeks was aggressive and defiant both in body posture and tone, and that at other times he was
apologetic and emotional. (R. 6 at 163; R. 10 at 97-99; R. 15 at 2-3, 5). Sgt. Brumley characterized
Weeks actions and conduct in their meeting as an emotional tirade. (R. 15 at 4-5). In the
meeting, Weeks blamed the doctors for their bi-polar diagnosis of Rodolfich and the police
department and its investigator for allegedly causing Rodolfich to attempt suicide. (R. 15 at 5-6, 8).
Weeks defended Rodolfichs actions in stabbing her husband and stated that Rodolfich had lost her
job and had been cleaning Weeks house to earn money. (R. 15 at 6-7). Weeks stated that he
intended for Rodolfich to move in with him in his home. (R. 15 at 7). Further, Weeks claimed that
he had white knight syndrome, a characteristic that Weeks defined as wanting to help people. (R.
15 at 40; R. 10 at 98).
Weeks emotional mood swings were significant to Sgt. Brumley because police officers are
trained to keep their emotions under control, and because Sgt. Brumley had never seen any other
officer display similar emotional swings to a supervisor. (R. 15 at 10-11, 46). Further, Sgt. Brumley
felt that the situation had rendered Weeks emotionally compromised and unable to complete his
shift. (R. 15 at 8-10). Concerned with Weeks heightened emotional and mental state and his ability
to carry out his duties, Sgt. Brumley sent Weeks home, instructing him not to return to BRMC in
police uniform. (R. 10 at 98; R. 15 at 10). Sgt. Brumley then briefed Lt. Balius on the incident; and
Lt. Balius reported the incident up the chain of command to Major Britt. (R. 10 at 99). Sgt. Brumley
then documented the June 6, 2007 events and his meeting with Weeks in a detailed narrative. (R.E.
3; R. 10 at 97-99; R. 14 at 198-99). Sgt. Brumley testified that the narrative was necessary to
document what he considered to be abnormal behavior by Weeks. (R. 14 at 198-99; R. 15 at 48).
At the appeal hearing, Weeks admitted that he was emotional and crying during the meeting with
Sgt. Brumley, and that he had no legal right or duty to discuss Rodolfichs mental health or treatment

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with the BRMC medical staff. (R. 14 at 58).

On the afternoon of June 6, 2007, Major Britt informed Biloxis Assistant Chief of Police,
Rodney McGilvary, of Weeks behavior at BRMC and in the meeting with Sgt. Brumley. (R. 13 at
42). Asst. Chief McGilvary testified that he considered the matter serious and found it of grave
concern that an officer on duty and in uniform would discuss the mental health of a patient to whom
he was not related.2

(R. 13 at 42-43). Asst. Chief McGilvary testified that he was familiar with

Weeks employment history, and he was concerned that Weeks was again displaying poor judgment
by involving himself in a situation as a police officer that he should not be involved in. (R. 13 at 50).
Asst. Chief McGilvary informed the Director of the Biloxi Department of Police, Bruce Dunagan,
of the June 6, 2007 incidents involving Weeks, and he and Director Dunagan met with Sgt. Brumley
on the evening of June 6, 2007, to discuss the matter. (R. 15 at 58-59, 61). As a result of their
meeting, Asst. Chief McGilvary directed Lt. Balius to contact Weeks and advise him not to return
to work on the following Monday, the next day of his work schedule, without a doctors note
allowing his return. (R. 13 at 44-45). Asst. Chief McGilvary testified that this was not an order for
a fitness for duty evaluation; rather, McGilvary routinely made such a request of officers when a
health issue was involved. ( R. 13 at 46-47, 94).
On June 7, 2007, the concerns of Asst. Chief McGilvary and Director Dunagan heightened
when they reviewed Sgt. Brumleys narrative report of the June 6 incidents and Weeks personnel
file. (R.13 at 41, 47, 48, 52; R. 15 at 62, 64; R.E. 3; R. 10 at 97-99). Director Dunagan testified that
the incident at BRMC, and Weeks demeanor in Sgt. Brumleys office, including his mood swings,

McGilvary testified that Weeks should not have been at Biloxi Regional for as long as he was, in
uniform and speaking to Rodolfichs medical personnel. (R. 13 at 42-43, 50). McGilvary stated that Weeks
was outside the scope of his duties in talking to the medical personnel about Ms. Rodolfich. (Id.).

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crying, and casting blame on the Department of Police, were unusual and a cause for alarm, and that
these incidents made he and Asst. Chief McGilvary question whether a fitness for duty exam was
needed. (R. 15 at 70-71). Further, Asst. Chief McGilvary and Director Dunagan reviewed the
personnel file of Weeks.3 (R. 13 at 47, 48, 52, 106-08; R. 15 at 64). Weeks personnel file displayed
a pattern of poor judgment as a police officer, specifically with regard to women. (R. 13 at 47, 7172, 79-80; R. 15 at 64-65, ). To Director Dunagan, the incidents in the personnel file raised concerns
causing him believe that the Department needed to go into this much further to determine whether
Weeks was fit for duty as a Biloxi police officer. (R. 15 at 66). Weeks personnel file contained
documentation of the following incidents that had occurred during Weeks employment with the
COB: (1) an incident in April, 2007 involving Julie Parker whose wallet had been stolen, and Weeks
responded to the call. Almost immediately thereafter, Weeks began seeing Ms. Parker on a personal
level. Ms. Parker later voiced a complaint to Off. Miller and Sgt. Brumley of the BPD when Weeks
challenged Parkers request that Weeks stop calling and going by her house. This culminated with
an Order directing Weeks not to have contact with Ms. Parker. (R. 13 at 81-82; R. 15 at 71-72; R.
10 at 100-15); (2) in November, 1996, while off-duty, Weeks had administered an intoxilyzer test
at the police department on a woman, Lauren Schwemle, with whom he had been socializing in a
bar. This culminated in a verbal counseling to Weeks. (R. 13 at 86-87; R. 15 at 72-73; R. 10 at 17071); (3) the BPD received a complaint from Rachel Jordan, whom Weeks had met while working
the Edgewater Mall detail in Biloxi, that Weeks was bothering her at work despite the fact that she
told him that she was not romantically interested in him. This resulted in an Order directing Weeks

Asst. Chief McGilvary testified that anytime a disciplinary or other issue arises with an employee
requiring action by the Department, the employees personnel file is reviewed to determine what led up to
the issue at hand and whether similar incidents had occurred. (R. 13 at 106-08).

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not to have contact with Ms. Jordan. (R. 13 at 87-88; R. 15 at 73-74; R. 10 at 166-67); (4) an
inappropriate comment was made by Weeks to Rachael Carson - do I need to put you over my knee
and spank you - during Weeks response to a motor vehicle accident that involved Ms. Carson.
This comment resulted in a five day suspension to Weeks which was upheld by CSC. (R. 13 at 8384; R. 15 at 74-75; R. 10 at 135-61);4 and (5) Weeks arrested Belinda Balius for driving with a
suspended license. Weeks denied her a recognizance bond even though she met the qualifications,
and then he went by her house the following day and inquired about her personal feelings toward
him. This incident resulted in Weeks demotion which was previously upheld by the CSC as well
as an order directing Weeks not to have further contact with Ms. Balius. (R. 13 at 84-86; R. 15 at
75-76; R. 10 at 116-345, 162-66).6
Finally, Director Dunagan and Asst. Chief McGilvary reviewed a prior fitness for duty
evaluation report by a psychologist, Dr. Thomas Yarnell of The Counseling Center in Biloxi, that
was in Weeks personnel file. (R. 13 at 88; R. 15 at 65). The report stated that Weeks had moved
from a low risk for employment problems at his hiring to a moderate risk and that without
psychological intervention, Dr. Yarnell predicted that Weeks would become a high risk. (R. 15 at

The record cite, R. 10 at 135-71 concerns the Rachel Carson incident. However, pages designated
as COB 0043, COB 0061, COB 0072, and COB 0073 are missing from the Court record. (See R. 10 at 13435, 151-52, 161-62). However, the entire documentary record of the Rachel Carson incident, including the
missing pages, is also contained at another location within the Courts record. (See R. 7 at 38-161). The
missing pages are found at R. 7 at 38, 56, 67, and 68.
5

The record cite, R. 10 at 116-34 concerns the Belinda Balius incident. However, pages designated
as COB 0030 and COB 0033 are missing from the Court record. (See R. 10 at 123-24, 125-26). However,
the entire document cited, including the missing pages, is also contained at another location within the
Courts record. (See R. 7 at 17-37). The missing pages are found at R. 7 at 25 and 28.
6

The record cite, R. 10 at 162-66 concerns the Belinda Balius incident. However, pages designated
as COB 0078 and COB 0079 are missing from the Court record. (See R. 10 at 165-66). However, the entire
document cited, including the missing pages, is also contained at another location within the Courts record.
(See R. 7 at 69-74). The missing pages are found at R. 7 at 73 and 74.

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65; R. 10 at 179-80).
Based on the events of June 6, 2007, on Weeks prior instances of poor judgment regarding
women while on duty, the results of the prior fitness for duty evaluation, and the potential liability
to the COB7 for allowing an officer with Weeks history to continue his employment with the BPD
without first being cleared for duty by qualified medical personnel, Asst. Chief McGilvary and
Director Dunagan agreed that there were reasonable grounds to have Weeks submit to a fitness for
duty examination pursuant to CSC Rule and Regulation 5.12(b). (R.E. 2; R. 13 at 78-80; R. 15 at
77-81). Both Asst. Chief McGilvary and Director Dunagan testified that their decision to request
a mental fitness for duty evaluation was not based on Weeks use of the phrase white knight
syndrome. (R. 13 at 51-52, 90-91; R. 15 at 82).
After deciding that Weeks should submit to a fitness for duty evaluation, Asst. Chief
McGilvary contacted the COBs Human Resources Manager, Jill Pol, to determine the procedure
for this. (R. 13 at 47, 89-90; R. 15 at 66). Ms. Pol advised that pursuant to CSC Rule and
Regulation 5.12(b), only Mayor Holloway, as the Appointing Authority, could authorize a fitness
for duty evaluation of a COB employee. (R. 15 at 66, 166). Within days of the June 6, 2007
incident, Director Dunagan and Ms. Pol met with Mayor Holloway and discussed Weeks behavior
at BRMC; Weeks emotional state and conduct in his meeting with Sgt. Brumley; the prior
documented incidents of complaints from female citizens and discipline to Weeks; and the previous
fitness for duty evaluation. (R. 15 at 66-67, 167-68). Director Dunagan, Asst. Chief McGilvary, and

Director Dunagan testified that he had received training from the FBI National Academy and
the International Chiefs of Police dictating that he had a responsibility under the law to be cognizant of
the mental well-being of Biloxis police officers. He testified that he could be subject to a claim for
negligent retention in federal court as a consequence of retaining a Biloxi police officer with known
mental problems. (R. 15 at 79-81).

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Jill Pol testified that Mayor Holloway authorized a fitness for duty evaluation of Weeks and
delegated the responsibility to accomplish it to Ms. Pol who located the psychologist to conduct it
and to Director Dunagan who advised Weeks of it. (R. 15 at 66-67; R. 15 at 165, 168-70; R. 13 at
48). Ms. Pol then engaged Dr. Julie D. Teater, a psychologist practicing with Consulting
Psychological Resources, LLC, in Biloxi to perform the evaluation. (R. 15 at 182-83). In a June 11,
2007 memorandum, Director Dunagan directed Weeks to report for a fitness for duty examination
on June 12, 2007, with Dr. Teater. (R. 10 at 181). The CSC found that Mayor Holloway, the
Appointing Authority, authorized the fitness for duty evaluation prior to Director Dunagans memo
of June 11. (R.E. 1 at 8; R. 6 at 168). There was no evidence presented to the contrary.
After a clinical interview and psychological testing of Weeks on June 12, 2007, Dr. Teater
issued her report, (R.10 at 193-96), in which she found:
The recent incident in April [of 2007] suggests that he has not changed his behavior
toward women that was noted in previous complaints. His actions in June also raise
concerns that he violated a hospital patients privacy regarding the status of her
health. Both of the incidents suggest the abuse of his position of power as a police
officer . . . . Mr. Weeks does appear to have a continuing problem with his judgment.
It is reasonable that this problem will continue to lead to his inability to perform his
essential job functions. Based on his long history of poor judgment (particularly
involving women), it is felt that Mr. Weeks is NOT FIT FOR Duty. Due to the
lengthy history of repeated poor judgment it is felt that further efforts to correct his
problem are likely to be ineffective.
(R. 10 at 195).
On June 19, 2007, Director Dunagan informed Weeks of Dr. Teaters conclusions, that he
was being placed on administrative leave, and that he was given thirty days, until July 12, 2007, in
which to submit any psychiatric or psychological records he wanted considered regarding his fitness
for duty. (R. 10 at 182; R. 15 at 83-84). On July 10, 2007, Weeks submitted a letter to Director
Dunagan and Ms. Pol from Dr. W.R. Fellows, an internist, stating only that Weeks had been under

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Dr. Fellows care for medical problems, and that he had noted nothing in the health of Officer
Weeks that would prevent his fulfilling his duties as a Biloxi Police Officer. (R. 10 at 197; R. 15
at 85). After reviewing Dr. Fellows letter and the medical records provided by him, Dr. Teater
issued an Addendum to her report in which she stated that there were no changes to her previous
opinion. (R. 10 at 198).
Based on Dr. Fellows letter and Dr. Teaters fitness for duty evaluation, Mayor Holloway
sought a second opinion on the fitness of Weeks. (R. 15 at 173-76; R. 10 at 185). On August 8,
2007, Mayor Holloway directed Weeks to report to Dr. Mark Webb, a psychiatrist practicing with
Mississippi Neuropsychiatric Clinic in Ridgeland, Mississippi, on August 16, 2007, for a second
fitness for duty examination.

(R. 10 at 185). On August 16, 2007, Dr. Webb conducted a

psychiatric evaluation of Weeks and concluded that he suffered from Dysthymia (depression lasting
many years) and Dependent Personality Traits and was not fit for duty. (R. 10 at 199-00 and R. 11
at 1-3). Dr. Webb reported:
In looking at the long history in his Personnel File and in talking to Mr. Weeks, it is
obvious that he has difficulty with women. He has trouble with boundaries with
women in general and seems to be quite persistent in interacting with women. . . .
While dependency personality traits are very common in the population, it is very
worrisome when it is in someone who has a position of power. As a police officer,
Mr. Weeks encounters many women. A person of power who has dependent traits
is quite dangerous. The most glaring example is in April of 2007, in which he
responded to a call of a distressed school teacher and within the week, he was having
a sexual relationship with her. . . . With Mr. Weekss Dysthymia and Dependent
Personality Traits, he is not Fit For Duty. These illnesses in a person of significant
power are a very lethal combination which has been borne out in multiple incidences
during Mr. Weekss career as a police officer.
(R. 11 at 2-3).
Based on the conclusions by a psychiatrist and a psychologist that Weeks was unfit for duty,
Director Dunagan recommended to Mayor Holloway that Weeks should be terminated from his

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employment.8 (R. 15 at 88-89; R. 10 at 183). Director Dunagans recommendation of termination

was contained in a letter to Weeks informing him that he could respond orally and in writing to
Mayor Holloway who would be making the final employment decision; that a meeting had been prearranged for him to meet with Mayor Holloway on September 19; and that if Mayor Holloway
approved the termination, Weeks could appeal the termination to the CSC within ten days. (R. 15
at 90-92; R. 10 at 183). Weeks testified that he met with Mayor Holloway on September 25, 2007,
and that he hand-delivered a letter to Mayor Holloway responding to the reasons for the
recommended termination. (R. 6 at 171; R. 10 at 189, R. 11 at 33-34). During his meeting with
Mayor Holloway on September 25, 2007, Weeks requested that Mayor Holloway delay his decision
on the termination so that he could have additional time to obtain a report on his fitness for continued
duty. Mayor Holloway agreed, giving Weeks until October 15, 2007, to provide any documentation
that he wanted considered. (R. 10 at 187). Further, Mayor Holloway allowed Weeks to remain on
administrative leave with pay, which was Weeks employment status since June 19, 2007. (R. 10
at 187).
On September 17, 2007, Weeks requested a copy of the reports of Drs. Teater and Webb
from Ms. Pol. (R. 11 at 78). In an October 8, 2007 letter, Mayor Holloway agreed to allow Weeks
to read and review the doctors reports on October 9, 2007 at 3:00 p.m. in Director Dunagans office,
which Weeks did. (R. 10 at 187). Weeks testified that he was only allowed fifteen minutes to
review the reports because Director Dunagan had another appointment. (R. 13 at 199). However,
Director Dunagan testified that he had cleared his calendar to allow Weeks to review the reports

Director Dunagan testified that he did not base his decision to recommend termination on the
previous incidents that were documented in Weeks personnel file; those documents were considered
only in determining the need for a fitness for duty evaluation. (R. 15 at 90; R. 10 at 183).

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pursuant to the Mayors directive, and that Weeks was allowed as long as he wanted to review the
reports. Director Dunagan testified that Weeks spent approximately forty-five minutes reading the
reports and taking notes. (R. 15 at 96-97).
On October 11, 2007, Weeks again asked Mayor Holloway to delay his decision and to give
Weeks even more time to obtain an evaluation from a mental health professional. (R. 11 at 83).
Mayor Holloway denied this request, finding that Weeks had been given adequate time, since June
19, 2007 for a total of four months, to obtain a fitness for duty evaluation from a mental health
professional of his choice. (R. 10 at 189, 182). Weeks presented nothing further to the COB, and
on October 19, 2007, Mayor Holloway terminated Weeks, effective October 31, 2007. (R. 10 at 189).
The termination was pursuant to CSC Regulation Section 5.12(b), and it was based on opinions by
Drs. Teater and Webb that Weeks was unfit for duty as a police officer. (Id.). The evidence
submitted by the COB was that Mayor Holloway made the final decision regarding whether Weeks
should be terminated. (R. 15 at 90-91; R. 15 at 181). Mayor Holloways October 19, 2007 letter
also advised Weeks that he had ten days to appeal the decision of the CSC, pursuant to CSC Rule
and Regulation 11.02(a). (R.E. 6; R. 10 at 189). Weeks timely appealed his termination to the CSC
on October 25, 2007. (R. 11 at 42).
2.

Appeal to the Biloxi CSC.

In support of his appeal to the CSC, Weeks hired Dr. William Gasparrini, Ph.D., a
psychologist practicing with Applied Psychology Center in Biloxi, Mississippi, who performed a
clinical interview and conducted psychological tests on Weeks four months after his termination, on
February 20, 2008. (R. 11 at 15, 19, 24, 28). Dr. Gasparrini prepared two nine-page reports

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containing his evaluation of Weeks. (R. 11 at 15-22, 24-32).9 Both reports were typed on Applied
Psychology Center letterhead, signed by Dr. Gasparrini and dated February 20, 2008. (R. 11 at 15,
24). The content of the two reports was identical except for the final pages of the reports. The final
page of the report referred to as Gasparrini-2 at the appeal hearing, (R. 11 at 32), contained the
following language that was not found on the final page of the second report referred to at the appeal
hearing as Gasparrini-1, (R. 11 at 22):
Confusing the power dynamics of his role as a uniformed police officer on duty with
his dating relationships has repeatedly led to difficulties for [Weeks] in his career.
These should be addressed through further counseling before he tries to resume
work as a police officer or in a similar position.
. . . He may be capable of working successfully as a police officer if he carefully
separates his work roles from his social life.
(R. 11 at 32)(emphasis added)).
An appeal hearing had been scheduled for July 29, 2008, and the parties had been given a
deadline of July 22, 2008, to submit their exhibits for the hearing to the CSC. (R. 6 at 173). The
report referred to as Gasparrini-2, (R. 11 at 24-32), was labeled as Weeks Exhibit N, and it was
submitted to the CSC on July 22, 2008, by Weeks attorney as one of Weeks exhibits. (R. 5 at 6;
R. 5 at 53-61). When the appeal hearing was continued at Weeks request to October 20, 2008, the
parties were given another deadline of October 13, 2008, to submit any additional exhibits they
wanted the CSC to consider. (R. 6 at 91-92, 173). In response to the October deadline, Weeks
attorney removed the report known as Gasparrini-2, (R. 11 at 24-32), from his exhibits and replaced
it with the report known as Gasparrini-1. (R. 11 at 15-22). When the hearing was continued to

Page 6 of Dr. Gasparrinis report known as Gasparrini-1 is missing from the Court record. (R. 11
at 19-20). However, the entire Gasparrini-1, including page 6, is also contained at another location within
the Courts record. See R. 7 at 127-35, 132.

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October 20, 2008, the COB included the Gasparrini-2 report as one of its exhibits. (R. 11 at 24-32).
Weeks counsel argued to the CSC that the Gasparrini-2 report was a draft report inadvertently
filed with the CSC. However, he presented no testimony or other proof to substantiate that claim.
The CSC found that the Gasparrini-2 report did not bear a draft stamp or otherwise identify itself
as a draft or preliminary report; it was typed on letterhead; it was signed by Dr. Gasparrini; and it
was filed by Weeks with the CSC. (R. 11 at 24-32; R. 5 at 53-61). The CSC considered both
reports, finding that they were both relevant to the case. (R. 6 at 173, 174; R. 12 at 112; R. 16 at 5051).
According to both Gasparrini-1 and Gasparrini-2, it was only the psychological test results
that did not indicate Weeks unfitness for duty. (R. 11 at 21, 31). In the remainder of both reports,
Dr. Gasparrini concluded that dating women he met through work was evidence of Weeks poor
judgment, and that Weeks needed assistance through therapy in developing stronger boundaries,
better judgment and improved self control. (R. 11 at 20, 30). Dr. Gasparrini found that Weeks
actions in confusing the power dynamics of his role as a uniformed police officer on duty with his
dating relationships had repeatedly led to difficulties for him in his career. (R. 11 at 32). Dr.
Gasparrini advised that Weeks needed to maintain a strict separation between his social life and his
professional career. (R. 11 at 22, 32). Significantly, Dr. Gasparrini concluded that confusing the
boundaries between his role as a uniformed police officer on duty with his personal life was such a
problem for Weeks that counseling had to be obtained before Weeks could resume work as a police
officer. (R. 11 at 32). Dr. Gasparrini repeatedly emphasized that even though Weeks was in need
of psychotherapy, Weeks had only participated in outpatient psychotherapy occasionally in prior

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years. (R. 11 at 15, 16, 18, 20, 21, 24, 25, 27, 29, 30, 31, 32).10 Dr. Gasparrini was uncertain as to
whether Weeks was capable of working successfully as a police officer, but stressed that it would
only be possible if Weeks carefully separated his work from his social life. (R. 11 at 32).
Dr. Gasparrini died prior to the appeal hearing, and as a result, Weeks was allowed to obtain
another expert to provide testimony at the hearing. Counsel for Weeks assured the CSC that the
additional experts opinion would be limited to those generally set forth by Dr. Gasparrini. (R. 6 at
144). Weeks retained Dr. Stefan Massong, a clinical and forensic psychologist at Applied
Psychology Center in Ocean Springs, Mississippi, as his expert witness. (R. 6 at 175). Dr. Massong
interviewed Weeks on October 9, 2012, and January 30, 2013, and produced a report. (R. 6 at 175;
R. 12 at 83).
Dr. Massong testified that Weeks had no psychological problems on October 9, 2012, or on
January 30, 2013. (R. 12 at 67). While he agreed that Weeks had suffered low or mild to moderate
recurrent depression, Dr. Massong opined that he saw no evidence suggesting that Weeks was unfit
for duty in 2007. (R.12 at 67-68, 75-77). However, Dr. Massong acknowledged that the passage of
time could change a persons circumstances, memory and perception of events. (R. 12 at 86-87).
Dr. Massong admitted that he could not state to a psychological certainty that the responses Weeks
gave to him in 2012 and 2013 were the same responses that Weeks would have given in 2007 when
the employment decision was made by Mayor Holloway. (Id.). While Dr. Massong testified that
he relied on the findings and conclusions of Dr. Gasparrini, he testified that he had never been
provided with the Gasparrini-2 report. (R. 12 at 87; R. 6 at 176). While Dr. Massong was critical

10

Weeks testified that he had only seen a psychologist six times between 1998 and 2007, and that he
was not receiving counseling in 2007 when he was evaluated by Dr. Webb or in 2008 when he was evaluated
by Dr. Gasparrini. (R. 14 at 92-94).

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of Drs. Teater and Webb for not giving Weeks a formal mental disorder diagnosis, he admitted that
a person could be unfit to serve as a police officer for reasons other than having a formal mental
disorder. (R. 12 at 96-97). Dr. Massong agreed with Dr. Gasparrini that Weeks needed to develop
boundaries between his professional life and his personal life, although he testified that [i]ts a close
call for me. (R. 12 at 102-03). Dr. Massong would not say whether he agreed with Dr. Gasparrini
that Weeks needed counseling to develop better judgment. (Id.). It was significant to the CSC that
Dr. Massong could not state with any certainty that his evaluation of Weeks would have been the
same had it occurred in 2007, as opposed to more than five years later. Thus, the CSC stated it had
little choice but to give less weight to the opinions of Dr. Massong. (R. 6 at 176).
At the appeal hearing, Dr. Webb confirmed the findings and opinions in his report that
Weeks had continuing behavioral problems, a history of depression and a long history of poor
judgment and dependency problems with women. (R. 16 at 28-30, 32-37; R. 10 at 199-00 and R.
11 at 1-3).

Dr. Webb testified that Weeks had poor boundaries between his professional

responsibilities as a police officer and his personal life, especially with women. Dr. Webb found that
those psychological problems posed special dangers in a person like Weeks who was in a position
of power and authority. (R. 16 at 33-34). Dr. Webb testified that Weeks was mentally unfit to
perform the duties of the position of a police officer as well as positions in all other phases of police
work, including but not limited to a desk, dispatch, records, or clerk positions. (R. 16 at 42-43, 123).
Dr. Webb based his opinions on a personnel file full of incidences where Weeks interacted
inappropriately with women on the job and instilled fear in them, which demonstrated poor judgment
and a lack of control, as well as Weeks refusal to acknowledge and obtain treatment. (R. 16 at 3233, 47-48). Dr. Webb testified that Weeks problems had grown more severe as the result of his
failure to obtain counseling and that Weeks should undergo long-term psychotherapy. (R. 16 at 35,

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122-23; R. 11 at 3). Dr. Webb clarified that while Dr. Gasparrini found Weeks fit for duty on the
basis of his test results alone, Dr. Gasparrini did not release Weeks to work. (R. 16 at 54). Dr.
Webb testified that his opinions and the opinions of Drs. Teater and Gasparrini were consistent and
in lockstep that Weeks was unfit for duty until he had further counseling. (R. 16 at 52-55).11
At the appeal hearing, Weeks testified that he was terminated in retaliation for his
involvement in signing a petition and sending a vote of no confidence in Director Dunagans
leadership of the Department to Mayor Holloway. (R. 14 at 40-41). Weeks claimed that he attended
City Council meetings where pay raises for police officers were discussed. However, both Director
Dunagan and Mayor Holloway testified to their lack of knowledge of Weeks alleged conduct. (R.
14 at 173; R. 15 at 140-41).
On September 12, 2013, the CSC issued its Findings of Fact and Conclusions of Law. After
hearing the testimony and considering the evidence presented in a four-day hearing, the CSC
concluded that Weeks termination was made in good faith for cause by the COB. (R.E. 1; R. 6 at
161-89).
III.

Statement of the Issues

The sole issue before the Court is whether the CSC had substantial evidence on which to

conclude that the COB terminated Weeks in good faith for cause.
IV. Summary of the Argument
The CSCs findings and conclusions upholding Weeks termination for unfitness of duty are
supported by substantial evidence and were made in good faith for cause. This is not the type of
case where there is a lack of evidentiary support for an officers discharge. Rather, there is ample

11

Specifically, Dr. Webb testified that Dr. Gasparrini, in either report you choose, four to five times
beats the drum, Mr. Weeks needs counseling. Mr. Weeks needs counseling. . . . (R. 16 at 54).

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evidence to support the COBs decisions as to Weeks termination, and no evidence exists to
demonstrate bad faith by the COB in terminating Weeks. In turn, the CSC had more than enough
evidence to support its factual findings and legal conclusions and there is no support for a finding
that the CSC acted arbitrarily and capriciously in upholding Weeks termination. Indeed, the CSC
spent four days listening to the testimony and receiving evidence. Its twenty-nine page Order evinces
a thoughtful and a thorough consideration of all of the evidence and testimony.
V. Argument
A. The CSC utilized the Correct Standard of Review.
On review, this Courts examination of the CSCs findings and decisions is limited to the
issue of whether the CSCs decision was made in good faith for cause. Miss. Code Ann. 21-3123. Section 23-31-23 specifically provides that on appeal, circuit courts are confined to the
determination of whether the judgment . . . made by the commission, was or was not made in good
faith for cause, and no appeal to such court shall be taken except upon such ground or grounds. Id.
The scope of this Courts appellate review of the civil service commission is limited, and
the criterion is whether or not, from an examination of the record, there exists credible evidence
substantiating the commissions action. It is upon this basis that the Court determines whether the
decision was in good faith for cause. Grant v. City of Columbus, 812 So. 2d 976, 978 (Miss.
2002); City of Meridian v. Johnson, 593 So. 2d 35, 38 (Miss. 1992); City of Jackson v. Froshour,
530 So. 2d 1348, 1354-55 (Miss. 1988); City of Meridian v. Hill, 447 So. 2d 641, 643-44 (Miss.
1984); City of Jackson Police Dept. v. Ruddick, 243 So. 2d 566, 567 (Miss. 1971); City of
Hattiesburg v. Jackson, 108 So. 2d 596, 599 (Miss. 1959); City of Meridian v. Davidson, 53 So. 2d
48, 52-54, 60 (Miss. 1951). It is only when the record makes it clear that there is no substantial
evidence supporting the Commissions decision, that this Court can act.... City of Jackson v.

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Froshour, 530 So.2d at 1355. Moreover, [s]ince the Commission upheld the discharge, the
evidence supporting that action must be taken most favorably to that order. Jackson Police Dep't
v. Ruddick, 243 So. 2d at 567.
Substantial evidence in the context of this Courts review of the CSCs findings, is
such evidence as a reasonable mind might accept as adequate to support a
conclusion. Substantial evidence means evidence which is substantial, that is,
affording a substantial basis of fact from which the fact in issue can be reasonably
inferred.
Ladnier v. City of Biloxi,749 So. 2d 139, 147-48 (Miss. 1999) (quoting State Oil & Gas Bd. v.
Mississippi Mineral & Royalty Owners Assoc., 258 So. 2d 767, 779 (Miss. 1971)). It is the
employees burden to show that the CSC acted without substantial evidence. Ladnier, 749 So. 2d at
154. The COB and the CSC submit that Weeks failed to meet this burden.
Weeks argues, however, that it was reversible error for the CSC to rely on its Appendix
C(III)(A) to evaluate the actions of the COB in making its decision. Appendix C is part of the Biloxi
CSCs rules and regulations, and it contains the rules of procedure governing appeals to the CSC.
Appendix C(III)(A) provides that [i]n the hearing of a members appeal from any action taken by
any department, it is not the function nor the role of the Biloxi CSC to substitute its judgment for
that of the department in the day-to-day administration and discipline of the work force. (R.E. 4).
The COB and CSC submit that the CSCs reliance on Appendix C(III)(A) was proper as it was not
the CSCs role to substitute its opinions for the COBs day-to-day decisions in the administration
of its business, including decisions concerning COB employees mental and physical suitability for
work.
Section 21-31-23 of Mississippi Code Annotated sets out the CSCs role of limited review
in evaluating termination decisions. Section 21-31-23 provides that [t]he investigation shall be

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confined to the determination of the question of whether such disciplinary action was or was
not made for political or religious reasons and was or was not made in good faith for cause.
Miss. Code Ann. 21-31-23 (emphasis added). The Mississippi Supreme Court has held that a civil
service commission is a body of limited authority having only the powers that are granted to it by
the Mississippi Legislature. Banks v. City of Greenwood, 404 So.2d 1038, 1040 (Miss. 1981).
"[W]here a statute enumerates the powers given, it must be held that it names all the powers dealt
with therein, and that there is nothing implied." Id. (citing Tepper Bros. v. Buttross, 174 So. 556,
556 (Miss. 1937)). Therefore, as Miss. Code Ann. 21-31-23 provides, the CSC was limited to a
determination of whether the COBs termination of Weeks was made for political or religious
reasons or was in good faith for cause. Whether the CSC agreed or disagreed with Weeks
termination or even with the reasons for the termination was not the issue. If Weeks failed to
demonstrate through the testimony and evidence that the COB terminated him for political reasons,
bad faith or for insufficient reasons, then the CSC, within its limited scope of review, was required
to affirm the COBs decision to terminate him.
In City of Jackson v. Moore, 97 So. 3d 1238 (Miss. Ct. App. 2012), the Court of Appeals
held that the Jackson Civil Service Commission (JCSC) could not reverse a termination decision and
impose its own opinion, in the absence of finding political motivations or bad faith by the City in
the termination. Id. at 1241. The Jackson Chief of Police testified that the basis for the termination
was the officers history of using excessive force in making arrests, particularly in his arrest of
Calcote who had sued the City of Jackson, and prevailed, for the use of excessive force in his arrest.
Id. at 1240. On review of the termination, the JCSC reinstated the police officer, after concluding
that because the City . . . admitted that Officer Moores actions were within the scope of his
employment and, thus, not malicious, Officer Moores termination was . . . not supported by the

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evidence. Id. at 1241. After the Circuit Court affirmed the JCSC, the City appealed. Id. at 1239.
The Court of Appeals reversed finding that the JCSC lacked the authority to look behind the Citys
reasons for the termination except to determine whether the termination was for political or religious
reasons, or was made in bad faith and without cause. Id. at 1240. Because the Court of Appeals
found nothing in the record suggesting that the City of Jackson had acted in bad faith or that its
decision was religiously or politically motivated, it reversed the JCSCs reinstatement of the officer
and the Circuit Courts judgment affirming the JCSCs order. Id.
Like the JCSC in the Moore case, Biloxis CSC was not authorized to look behind or secondguess the Citys decision to terminate Weeks other than to determine whether substantial evidence
existed to support the termination decision and whether the City terminated Weeks in good faith for
cause and without political or religious motivation. The Courts holding in Moore is consistent with
and echos the intent of Appendix C(III)(A) that prohibits the CSC from substituting its own decision
regarding termination in lieu of the COBs decision where there is substantial evidence supporting
the COBs decision. Consequently, even if the CSC were to disagree with the COBs decision to
terminate Weeks, as long as there was substantial evidence to support the COBs actions, the CSC
could not reverse the termination decision. Appendix C(III)(A) is consistent with the substantial
evidence/good faith for cause standard that the CSC, by statute, is obligated to use. As a result, the
CSCs citation to Appendix C(III)(A) was not error.
B.

The CSC correctly found that the COB had reasonable grounds to question
Weeks fitness for duty.

Weeks contends that the CSC was unreasonable in finding that the COB had reasonable
grounds to send Weeks for a fitness for duty evaluation. The CSC and the COB submit, however,
that they did not act in bad faith, and that there is substantial evidence supporting the COBs inquiry

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into Weeks mental suitability for continued employment as a police officer.

The testimony before the CSC established that the reason Asst. Chief McGilvary and Director
Dunagan felt that a fitness for duty evaluation of Weeks was needed was because of (1) the June 6,
2007 incident at BRMC (where Weeks exercised poor judgment by spending two hours there when
he should have been working and by injecting himself into health discussions with medical personnel
concerning Rodolfich who was unrelated to Weeks, (R. 10 at 97-99, 195; R. 13 at 42-43, 50; R. 14
at 196-97; R. 15 at 70-71; R. 16 at 63-68); (2) Weeks conduct in Sgt. Brumleys office (where he
lost control of his temper and emotions and behaved erratically), (R. 10 at 97-99; R. 13 at 41, 47, 48,
52; R. 14 at R. 15 at 62, 64, 70-71); (3) the previous incidents that were documented in Weeks
personnel file showing a history of Weeks poor judgment in performing his police duties, (R. 13
at 47, 71-72, 79-80; R. 15 at 64-65, 66); and (4) a previous fitness for duty evaluation by Dr. Yarnell
predicting that Weeks would become a high risk law enforcement employee without psychotherapy.
(R. 13 at 88; R. 15 at 65). These things raised concerns to Asst. Chief McGilvary and Director
Dunagan as to Weeks mental condition and prompted Director Dunagans request to Mayor
Holloway to authorize a fitness for duty evaluation of Weeks. (R. 13 at 78-80; R. 15 at 65-66, 69,
70-81).

Significantly, Dr. Webb confirmed that these considerations justified the COB in

questioning Weeks mental fitness for duty. (R. 16 at 63-68).

As a result, the CSC correctly

concluded that the evidence presented at the hearing of this matter was sufficient to establish
reasonable grounds under Section 5.12(b) on the part of Director Dunagan and Mayor Holloway to
recommend and authorize, respectively, a fitness for duty exam of Weeks. (R.E. 1 at 20; R. 6 at
181 8).
1. Weeks Conduct on June 6, 2007.
Regarding Weeks conduct at BRMC, the CSC had before it the written narrative and the

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testimony of Sgt. Brumley. (R.E. 3; R. 10 at 97-99; R. 14 at 191 - R. 15 at 57). The CSC also heard
the testimony of Lt. Balius. (R. 12 at 169 - R. 13 at 24). This testimony as well as Sgt. Brumleys
narrative established that Weeks obtained the permission of both Lt. Balius and Sgt. Brumley to go
to BRMC to check on Rodolfich. (R.E. 3; R. 10 at 97; R. 14 at 194; R. 15 at 1, 58-59). However,
neither one of them gave Weeks permission to stay at BRMC for as long as he wanted. (R. 14 at
194; R. 15 at 50). Indeed, Sgt. Brumley testified that he understood that Weeks would be at BRMC
for only a short period of time, and then he would return to work. (R. 14 at 194). Similarly, Lt.
Balius testimony did not confirm Weeks argument that Lt. Balius had given him permission to stay
as long as wanted. In fact, Lt. Balius testified before the CSC that later in the day when things
became busy for patrol, Balius directed Sgt. Brumley to get Weeks back in service to answer
calls. (R. 12 at 171). In response to that directive from Lt. Balius as well as an inquiry from Major
Britt as to whether Weeks had ever come back to work, (R. 12 at 171; R. 14 at 196), Sgt. Brumley
drove to BRMC and, after finding him in the common area of BRMC in his police uniform
discussing with her doctors Rodolfichs medical condition and whether she should be committed to
a mental facility, (R. 14 at 196-97), he ordered Weeks to go to the station. (R. 14 at 197). Contrary
to Weeks unsuppported argument, the testimony established that Weeks stayed at BRMC for at least
two hours while all of his supervisors - Sgt. Brumley, Lt. Balius and Major Britt - were questioning
why he was not at work. There was no testimony establishing that anyone in Weeks chain of
command had given him permission to remain at BRMC for the length of time he was gone.12 Both
12

The veracity of Weeks argument is further called into question by the fact that at no time during
Weeks meeting with Brumley, the purpose of which was to discuss why Weeks was at BRMC for so long,
did Weeks justify his absence by informing Sgt. Brumley that Balius had allegedly given him permission to
stay at BRMC as long as he wanted. (R. 15 at 1). Instead, as pointed out above, Weeks justified the length
of his stay at BRMC by telling Sgt. Brumley that he was discussing Rodolfichs treatment and condition with
her doctors. (R. 14 at 200).

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Asst. Chief McGilvary and Director Dunagan found it alarming that an officer on duty and in
uniform would discuss the mental health of a patient to whom he was not related. (R. 13 at 42-43,
50; R. 15 at 70-71). Asst. Chief McGilvary testified that he was familiar with Weeks employment
history, and he was concerned that Weeks was again displaying poor judgment by improperly
involving himself in a situation as a police officer. (R. 13 at 50).
Regarding Weeks conduct in the meeting with Sgt. Brumley, the CSC had before it the
testimony and written narrative of Sgt. Brumley. (R.E. 3; R. 10 at 97-99; R. 14 at 191 - R. 15 at 57).
The CSC also heard the testimony of Weeks. Significantly, the CSC heard Sgt. Brumleys testimony
that Weeks had justified the length of his stay at BRMC by telling Brumley that he was there
discussing Rodolfichs mental health condition with her doctors. (R. 14 at 200). Further, the CSC
heard that when Sgt. Brumley questioned Weeks about the propriety of his conduct, Weeks went on
an emotional tirade, at time being aggressive and defiant both in body posture and tone, and then
at other times being apologetic and emotional. (R. 6 at 163; R. 10 at 97-99; R. 15 at 2-5). Weeks
emotional roller coaster included Weeks casting blame on both the doctors for their bi-polar
diagnosis of Rodolfich and the police department and its investigator for allegedly causing Rodolfich
to attempt suicide. (R. 15 at 5-6, 8). Sgt. Brumley explained that Weeks even defended Rodolfichs
actions in stabbing her husband and stated that he intended for her to move in with him. (R. 15 at
6-7). The CSC heard Sgt. Brumley explain that Weeks emotional mood swings were significant
because police officers are trained to keep their emotions under control, and despite being a
supervisor since 2003, Sgt. Brumley had never seen any other officer display similar emotional
swings to a supervisor. (R. 15 at 10-11, 46).
Concerned with Weeks heightened emotional and mental state and his ability to carry out
his duties, Sgt. Brumley sent Weeks home, instructing him not to return to BRMC in uniform. (R.

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10 at 98; R. 15 at 8-10). The incident was of such significance that Sgt. Brumley briefed his
supervisor, Lt. Balius, on the incident; and Lt. Balius reported the incident up the chain of command
to his supervisor, Major Britt, (R. 10 at 99), who reported it up the chain of command to Asst. Chief
McGilvary. (R. 13 at 42). Additionally, Sgt. Brumley felt Weeks conduct so unusual that he needed
to document it in a narrative. (R.E. 3; R. 10 at 97-99; R. 14 at 198-99; R. 15 at 48). While Weeks
contends that Brumleys narrative statement was unnecessary and unsolicited, Sgt. Brumley testified
that he felt it important to document Weeks abnormal behavior. (R. 14 at 198-99). At the appeal
hearing, Weeks admitted that he was emotional and crying during his meeting with Sgt. Brumley;
that he discussed Rodolfichs mental health or treatment with the BRMC medical staff; and that he
had no authorization from Rodolfich to do so. (R. 14 at 58). Director Dunagan testified that he
considered Weeks demeanor in Sgt. Brumleys office, including his mood swings, crying, and
casting blame on the BPD, unusual and cause for alarm and made he and Asst. Chief McGilvary
question whether a fitness for duty exam should be requested. (R. 15 at 70-71).
Weeks attempted to impugn Sgt. Brumleys testimony and narrative by claiming that
Brumley was motivated by a grudge against Weeks as the result of Weeks allegedly dating
Brumleys sister and/or sister-in-law. (R. 16 at 176). However, Sgt. Brumley was unaware that any
relationship existed between Weeks and Brumleys sister or sister-in-law. (R. 15 at 28). In fact,
Brumley testified that he confirmed this with his sister, and her response was that Weeks thought
anyone who talked to him was dating him. (Id.). As a result, Weeks claims of biases, slants and
grudges are only supported by his own self-serving testimony. Such testimony can hardly be deemed
credible when it is weighed against the testimony of Sgt. Brumley, especially when Weeks testified
that he based the grudge allegation on reasonable speculation and the fact that Sgt. Brumley gave
him a sideways look. (R. 14 at 63-64). Brumley, however, unequivocally testified that he had no

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negative bias toward Weeks.13 (R. 15 at 33). The COB and CSC submit that deference is given to
an administrative agency as trier of the facts as well as the judge of witnesses credibility. Nelson
v. Mississippi State Bd. of Veterinary Medicine, 662 So. 2d 1058, 1062-63 (Miss. 1995). Sgt.
Brumley testified before the CSC, and the CSC members observed his demeanor in answering
questions about his written statement and his version of the events of June 6, 2007. The CSC
members were in the best position to determine whether Sgt. Brumley possessed any biases or
predetermined opinions about Weeks. As the CSC did not find evidence of any bias or prejudices
of Sgt. Brumley against Weeks, Weeks argument should be rejected.
Finally, in a further effort to establish that Sgt. Brumleys narrative was slanted and biased,
Weeks counsel has asserted that Brumley failed to provide Lt. Balius with the narrative even though
Balius was in Brumleys chain of command. While Weeks counsel cites Lt. Balius testimony to
support this argument, a review of the cited testimony reveals the opposite. The question and
response was as follows:
Q. By this time, June the 8th, had you seen the write-up from Sergeant Brumley,
which we looked at earlier?
A. Im going to say yes, and only because Sergeant Brumley worked for me, and so
the natural progression through the chain of command would have been for that to
go through me. Thats not to say that it wasnt cced at the same time, that it went
through the rest of the chain of command. That could have happened.
(R. 12 at 187). There is no evidence that Lt. Balius was not provided with a copy of Sgt. Brumleys
narrative or that if he did not receive it, that it was the result of bias or slant.
2. Review of the Personnel File.
In conjunction with their review and assessment of the events occurring on June 6, 2007,

13

Weeks counsel states that Sgt. Brumley colluded with Asst. Chief McGilvary who was
out for Weeks job. (R. 21 at p. 20). The COB and CSC submit that this allegation should be
disregarded by the Court as it lacks any evidentiary support.

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Director Dunagan and Asst. Chief McGilvary reviewed Weeks personnel file maintained by the
BPD. The CSC heard the testimony of Director Dunagan and Asst. Chief McGilvary that employee
personnel files are routinely reviewed when an issue arises with an employee to determine the scope
of the problem and the level of corrective action that should be taken. (R. 13 at 47, 48, 52, 106-08;
R. 15 at 64). In the personnel file, Director Dunnagan and Asst. Chief McGilvary found
documentation that an order of no contact was issued to Weeks when he challenged Julie Parkers
request that Weeks should stop calling and coming by her house; significantly, he met Ms. Parker
while on duty, (R. 10 at 105-15); that Weeks had begun calling and bothering a woman whom
Weeks had met while on duty despite the fact that she told him she was not romantically interested
in him, (R. 10 at 166-67); that Weeks had used the BPDs intoxilyzer on a woman with whom he
had been socializing in an off-duty capacity, (R. 10 at 170-71); that while responding to a motor
vehicle accident, Weeks made inappropriate comments about putting the woman who was involved
in the car accident over his knee and spanking her, (R. 10 at 143-158); and that Weeks had refused
to give a recognizance bond to a woman who met the qualifications for one, and that Weeks had
gone by her house the following day and asked about her personal feelings toward him. (R. 10 at
116-34, 162-66). These infractions had resulted in verbal reprimands, (R. 10 at 115, 166-67, 17071), a demotion in one case, (R. 10 at 134), and a five-day suspension in another case. (R. 10 at 13537).14

The CSC heard the testimony of Asst. Chief McGilvary and Director Dunagan that the

incidents that were documented in Weeks personnel file showed a history and pattern of Weeks
poor judgment in performing his Department of Police duties. (R. 13 at 47, 71-72, 79-80; R. 15
at 64-65, 66).

14

The demotion and five-day suspension were challenged by Weeks before the CSC and in both
matters, the CSC upheld the COBs discipline. (R. 10 at 159-161; 162-165).

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Weeks claims that the incidents in his personnel file were too old to support a fitness for duty
evaluation in 2007, and that the CSC and the COB had ignored almost ten years of good behavior
by Weeks. As set forth above, the information contained in the personnel file was considered along
with the events of June 6, 2007, in deciding whether a fitness for duty evaluation was warranted.
(R. 15 at 64-65, 66). The incidents contained in the personnel file were evidence of a pattern that
the BPD could not ignore, a pattern that raised red flags and alerted Director Dunagan and Asst.
Chief McGilvary to the need to delve further into whether Weeks was fit for duty. (R. 15 at 64-65,
66). Director Dunagan emphasized that Weeks was not terminated because of the incidents in his
personnel file; those documents were considered only in determining the need for a fitness for duty
evaluation.

(R. 15 at 90; R. 10 at 183). Further, the testimony established that documented

incidents of conduct remain in an employees personnel file as a record of that employees

employment history with the COB. Both Director Dunagan and Asst. Chief McGilvary testified that
personnel files are routinely reviewed when an issue arises with an employee to determine the scope
of the problem and the level of corrective action that is warranted. (R. 13 at 47, 48, 52, 106-08; R.
15 at 64). The COB and CSC submit that personnel files are typically used as a source of
information to make informed decisions about an employee. See City of Jackson v. Moore, 97 So.
3d at 1241 (Court acknowledged that the Jackson Chief of Police terminated Moore because of his
history of using excessive force in making arrests [as shown by a review of his personnel file] and
that continuing his employment as a police officer with the City would continue to expose it to
liability.). Further, no CSC rules or regulations were violated in reviewing and considering the
documents in Weeks personnel file for the sole purpose of deciding whether a fitness for duty
evaluation was needed.

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3. Prior Fitness for Duty Evaluation.

Director Dunagan and Asst. Chief McGilvary also considered a prior fitness for duty
evaluation in Weeks personnel file that was performed by Dr. Yarnell. (R. 10 at 179; R. 13 at 88;
R. 15 at 65). Dr. Yarnell opined that Weeks had moved from a low risk for employment problems
at his hiring in 1991 to a moderate risk in 1998 and that without psychological intervention, Weeks
would become a high risk employee. (R. 10 at 179-80; R. 15at 65-66). Weeks has not contested the
COBs consideration of Dr. Yarnells report.
As a result of the testimony and evidence from Sgt. Brumley about the BRMC incident and
Weeks emotional tirade in their meeting; from Asst. Chief McGilvarys knowledge of Weeks prior
misjudgements and his concern over Weeks actions and conduct; from Asst. Chief McGilvary and
Director Dunagans review of Weeks personnel file with the documented evidence of Weeks prior
infractions and poor judgment; and the prior fitness for duty examination, the COB had more than
reasonable grounds and cause to require Weeks to submit to a fitness for duty evaluation. It follows
then that the CSCs determination that the COB had reasonable grounds to submit Weeks for a
fitness for duty evaluation is supported by substantial evidence and was not made arbitrarily or
capriciously. The CSC correctly noted that CSC Rule Section 5.12 requires COB employees to be
fit to perform the position that they hold. (R.E. 1 at p. 18; R. 6 at 178; R. 10 at 95-96). Section
5.12(b) allows the Mayor to require a COB employee to meet the same requirements as a candidate
being hired to submit to a health examination, when there are reasonable grounds to question said
employee regarding his/her mental or physical suitability for continued employment. (Id.). The
CSC found that the evidence presented at the hearing of this matter was sufficient to establish
reasonable grounds under Section 5.12(b) on the part of Director Dunagan and Mayor Holloway to
recommend and authorize, respectively, a fitness for duty exam of Weeks. (R.E. 1 at p. 21; R. 6

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at 181). The evidence presented would permit reasonable minds to accept as adequate to support
[the] conclusions that the COB had sufficient cause to order Weeks to submit to a fitness for duty
examination. Ladnier v. City of Biloxi, 749 So. 2d at 147-48.

Moreover, the evidence and

testimony failed to demonstrate any bad faith by the COB in ordering Weeks to submit to a fitness
for duty examination or by the CSC in failing to find bad faith by the COB.
In further support of its decision, the CSC relied on the holdings in Watson v. City of Miami
Beach, 177 F. 3d 932, 935 (11th Cir. 1999), and Theiss v. City of Sturgeon Bay, 2006 U.S. Dist.
LEXIS 57955 (E.D. Wis. 2006). Both cases are indeed persuasive. In Watson, a police officers
supervisor became concerned about the officers behavior and ordered the officer to submit to a
fitness for duty medical examination. Watson v. City of Miami Beach, 177 F. 3d at 935. The officer
claimed a violation of the Americans with Disability Act (ADA) when his supervisor ordered him
to complete a fitness for duty examination. Id. Addressing the issue, the Court stated:
In any case where a police department reasonably perceives an officer to be even
mildly paranoid, hostile, or oppositional, a fitness for duty examination is job related
and consistent with business necessity. Police departments place armed officers in
positions where they can do tremendous harm if they act irrationally. . . .
Watson, 177 F. 3d at 935.
The Theiss case also supports the propriety of the COBs decision to require Weeks to
undergo a fitness for duty examination. There, the police chief was concerned over an officers
mental and emotional health and his fitness for office. Theiss v. City of Sturgeon Bay, 2006 U.S.
Dist. LEXIS 57955, at *3-4. Several other officers had expressed concern over the officers
psychological condition and his ability to safely perform his duties as a police officer. Id. The police
chief ordered the offer to undo psychological testing. Id. at *4-5. After the officer refused to be
tested and was terminated, he filed suit and asserted that the psychological fitness for duty evaluation

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was unlawful. The Court was not convinced and stated that [e]nsuring that a police officer is
mentally fit for duty is a legitimate concern in any police department. Id. at *13.
Applying Watson and Theiss here, the COB certainly had a legitimate concern over Weeks
mental fitness to perform his police duties. Weeks was in a special position and had the potential
to cause great harm if he acted irrationally on the job. The evidence and testimony demonstrated that
the COB had good cause for concern as to whether Weeks was mentally fit to be a police officer.
Armed with the knowledge of Weeks conduct on June 6, 2007, and the information contained in
Weeks personnel file, the COB would have been remiss in its duties and responsibilities to the
public if it had not registered concern over Weeks mental fitness for duty and acted upon it by
obtaining a fitness for duty evaluation.
Weeks also argues that the COBs consideration of past misconduct in determining his
continued employment with the Department amounted to double jeopardy. The CSC found no merit
to this argument, finding and holding that Weeks double jeopardy argument was utterly without
merit. (R.E. 1 at 21; R. 6 at 181). Relying on Ladnier v. City of Biloxi, 749 So. 2d. 139, 156
(Miss. 1999), the CSC correctly noted that civil serving hearings are not quasi-criminal, and that the
constitutional principles of double jeopardy do not apply. (R.E. 1 at p. 21; R. 6 at 181). That said,
the Court in Ladnier also agreed that civil service employees cannot be disciplined twice for the
same conduct. Ladnier, 749 So. 2d at 153. However, Weeks termination was not discipline for
misconduct, but rather, was based on a finding of unfitness for duty. Regardless, Weeks prior
discipline and incidences of misconduct set out in his personnel file were properly considered by the
Department and the Mayor only in deciding that a fitness for duty examination was needed. (R. 15
at 90). Even further, Mayor Holloways termination letter does not mention Weeks past misconduct
with the BPD and, thus, evinces the fact that Weeks termination was based on his unfitness for duty.

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(R. 10 at 189). Mayor Holloways termination letter provides that Weeks could not continue to be
an officer with the Department in the face of opinions by both a psychologist and a psychiatrist of
your unfitness for duty. Id. Weeks was terminated because of two reports of mental unfitness for
duty and not because of past events for which he had been disciplined and counseled. The COBs
consideration of Weeks employment history in ordering an evaluation involved no double jeopardy.
Weeks also claims that it was unreasonable for the CSC to allow the COB to consider its
potential future liability as a reason to justify a fitness for duty evaluation. Weeks claims that the
CSCs acceptance of that justification is unreasonable, arbitrary, and capricious. The COB and the
CSC submit that, as a matter of law, Weeks argument is without merit. It is fundamental that
[e]nsuring that a police officer is mentally fit for duty is a legitimate concern in any police
department. . . . Theiss, 2006 U.S. Dist. LEXIS 57955, at *12. Closer to home, in City of Jackson
v. Moore, 97 So. 3d at 1239-40, the Mississippi Court of Appeals acknowledged that the Jackson
Chief of Police terminated Moore because of his history of using excessive force in making arrests
and that continuing his employment as a police officer with the City would continue to expose it to
liability. Id. As such, potential future liability to a municipality is not a novel consideration for a
municipality like the COB when making an employment related decision.
Other courts have also recognized the importance of making sure its officers are
psychologically fit. In Redmond v. City of Overland Park, 672 F.Supp. 473 (D. Kan. 1987), the
Court held that a municipality and its police chief had a clear interest in determining whether its
employee was psychologically fit for the position for which she was hired, because the municipality
had an obligation to the public to ensure the psychological well being of its officers. Id. at 487. The
COB has an ongoing obligation under law to monitor is officers and employees, investigate
complaints and other matters of which it has notice that call into question and officers fitness for

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duty.15 Even more, the COB has an obligation to take appropriate actions and measures to protect
the public when it has notice that an officer may be unfit for duty. See, e.g., Watson, 177 F.3d at
935 (city cannot forgo a fitness for duty exam to wait until a perceived threat is realized or until
questionable behavior results in injuries); Bonsignore v. City of New York, 683 F.2d 635, 637 (2d
Cir. 1982) (city liable for failing to ensure that police officers were mentally fit to carry guns without
endangering themselves or the public); Davis v. Lynbrook Police Dept, 224 F.Supp. 2d 463, 479
(E.D. N.Y. 2002) (city sued for failure to supervise its police officers); Thompson v. City of
Arlington, 838 F.Supp. 1137, 1147-48 (N.D. Tex. 1993) (city was required to ensure that officer was
mentally capable of exercising safely the awesome and dangerous power of an armed police officer
as the city has an overriding interest in assuring that its police force is staffed only by those
particularly suited for the job).
Consistent with the Departments obligations to the public and its officers, Director Dunagan
testified that part of his management of the officers within the BPD is to take action based on any
awareness of their mental, emotional and physical well-being. ( R. 15 at 80-81). He testified that
through training he has learned that claims can be made against municipalities for negligent retention
of an officer who has issues or problems. (Id.); See note 7 supra.. Asst. Chief McGilvary and
Director Dunagan both attested to the fact that COB could be held liable for allowing an officer with
Weeks history to continue his employment with the Department without first being cleared for duty

15

Asst. Chief McGilvary testified that the Department is governed by:

rules and regulations. We're governed by the civil service regulations to ensure that our
officers and employees are fully fit to carry out their duties -- and in this case, we're talking
about a sworn officer -- to ensure that they're fully fit to carry out their duties to enforce the
laws of the City of Biloxi.
(R. 13 at 94).

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by appropriately qualified medical personnel. Weeks complaint lacks merit.

C.

The CSC Regulation Section 5.12(b) does not require the CSC to make an independent
finding of Weeks fitness for duty.
Weeks contends that the CSC erred in failing to independently weigh the competing

opinions of the experts to decide whether Weeks was fit or unfit for duty. (R. 21 at 32-33). The
COB and CSC submit that Weeks has incorrectly interpreted the requirements of Section 5.12(b) and
that there is no merit to his argument.
CSC Section 5.12(b) allows Mayor Holloway as the Appointing Authority to require a COB
employee to meet the same requirements as a candidate being hired and to submit to a health
examination, when there are reasonable grounds to question said employee regarding his/her mental
or physical suitability for continued employment. (Id.). Section 5.12(b) further provides that [a]ll
such examination reports are subject to review by the Commission. (R. 10 at 96) (emphasis
added)). Section 5.12(b) could not be clearer in providing that the fitness for duty evaluation reports
can be reviewed by the CSC; but there is no requirement or mandate in Section 5.12(b) requiring the
CSC to do so and there is certainly no provision of Section 5.12(b) dictating the CSCs independent
review of the reports obtained by the COB. The language of Section 5.12(b) simply gives the CSC
authority to review medical and mental evaluations and it does not impart on the CSC any separate
duty or standard as to weighing medical opinions offered by the parties and making findings. Simply
stated, Weeks argument must fail because there is no Civil Service Rule or state law imposing such
an obligation on the CSC.

Additionally, Weeks arguments overlooks the fact that the CSC

reviewed every report submitted concerning Weeks fitness for duty.

In making this argument, Weeks intentionally misleads the Court with his insinuation that
the CSC dismissed the opinions of Dr. Massong only because they were unavailable to Mayor

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Holloway when making his termination decision. (R. 21 at 32-33). Although it is true that the CSC
acknowledged that Mayor Holloway did not have Dr. Massongs opinions at the time he terminated
Weeks, (R. 6 at 185-86), the CSCs conclusion that it was required to give little weight to Dr.
Massongs opinions was not because of that, but instead, because Dr. Massong testified that the
passage of time could change a persons perception of events, circumstances, memory of events, and
ideas and circumstances, and that Dr. Massong could not state to any degree of psychological
certainty that the responses Weeks gave to him in 2012 and 2013 were the same responses that
Weeks gave in 2007 and 2008 to Dr. Gasparrini. (R. 6 at 186; R. 12 at 86-87). The CSC considered
this significant because, as it correctly pointed out, the applicable and relevant point in time for the
inquiry into whether a public employee is capable, qualified or fit for duty is the time that the
termination decision was made. (R. 6 at 186).
In making his argument, Weeks again asserts that the COB allegedly prevented him from
obtaining his own pre-termination fitness for duty evaluation, (R. 21 at 32), and again, there is no
evidence to support this argument. Weeks was initially given notice by Director Dunagan on June
19, 2007, that he had the opportunity to present a report from his doctor addressing the issue of his
fitness for duty. (R. 10 at 182). At Weeks request, on October 8, 2007, Mayor Holloway gave
Weeks additional time, until October 15, 2007, to submit any documentation that Weeks wanted the
COB to consider prior to making the employment decision. (R. 10 at 187). The evidence
demonstrated that Weeks had four months to procure any medical report he wanted considered by
the Mayor in making an employment decision. (R. 10 at 182, 187, 189). The fact that he did not do
so cannot be attributed to the COB. The evidence, through the testimony of Jill Pol, established that
Dr. Teater performed the initial fitness for duty evaluation without the benefit of having any other
fitness for duty reports and with only a copy of Weeks personnel file. (R. 15 at 179). Ms. Pol

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testified that nothing prevented Weeks from obtaining a copy of his personnel file from the COB and
submitting that personnel file to a psychologist or psychiatrist of his choice for purposes of obtaining
a fitness for duty evaluation. (R. 15 at 179-80). Significantly, Weeks presented no evidence that he
requested a fitness for duty examination from any medical professional who ultimately turned him
down on the basis that he lacked Drs. Teater and Webbs reports. Moreover, Weeks position was
refuted at the appeal hearing by Dr. Webbs testimony where he testified that due to confidentiality
laws, most mental fitness evaluations are done cold without access to prior mental health records,
and that it was unnecessary for Weeks to have the reports of Drs. Teater and Webb in order to get
a competent fitness for duty evaluation. ( R. 16 at 68-69, 103-04). Dr. Webb acknowledged that Dr.
Teaters ability to produce a fitness for duty evaluation was a case in point. (R. 16 at 69, 104). As
a result, Weeks position on his inability to obtain a mental evaluation is meritless.16
Weeks also argues that he should have been allowed to retain a new expert following Dr.
Gasparrinis death. (R. 21 at 28). Weeks overlooks the obvious; the CSC permitted Weeks to retain
and utilize a new expert, Dr. Stefan Massong, and that Dr. Massong evaluated Weeks, produced a
report that was put into evidence at the hearing, and was allowed by the CSC to present his findings
and conclusions concerning both Dr. Gasparrinis report, and his opinions as to whether Weeks was
presently fit for duty at the time of Massongs meetings with him in 2012 and 2013. (R. 12 at 6768). Further, prior to the appeal hearing, the COB filed a Motion to Compel Compliance and to
Limit Proof asking the CSC to restrict the witnesses and the evidence produced at the hearing to that
proof already disclosed at the time of the previously convened CSC appeal hearing on March 26,

16

It should not be overlooked that on October 9, 2007, Weeks was given the opportunity to

review the reports of Drs. Teater and Webb. (R. 10 at 187; R. 15 at 96-97).

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2009. (R. 9 at 184-200 and R. 10 at 1- 5). Weeks responded to the COBs motion. (R. 6 at 144).
The CSC heard the COBs motion on December 13, 2012. (R. 6 at 141). The CSC did not have
to issue a ruling on the COBs motion because counsel for both the COB and Weeks reached an
agreement. (R. 6 at 144). The COB agreed to allow Weeks to present the testimony of Dr. Massong
at the appeal hearing. However, Weeks counsel made an affirmative representation that Dr.
Massongs would testify consistently with Dr. Gasparrinis report and he agreed that Dr. Massongs
testimony would not substantially deviate from Dr. Gasparrinis opinions. (R. 6 at 144). The COB
and the CSC submit that Weeks has waived the right to object to any other procedure.
Next, Weeks again exhorts with futility that CSC erred by allowing both an alleged draft and
final report of Dr. Gasparrini into evidence. (R. 21 at 28). Weeks believes this error was beyond
unreasonable. (Id.). In total, Weeks asserts five times on appeal to this Court that the Gasparrini-2
report was a draft report. (R. 21 at 17, 32, 33). Saying it, however, does not make it so. President
John Adams is known for writing: Facts are stubborn things; and whatever may be our wishes, our
inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.
Adams, John, Argument in Defense of the Soldiers in the Boston Massacre Trials, (December
1770). No matter how many times Weeks states, argues, contends, avers, etc., that the Gasparrini-2
report was a draft report, the allegation is just that, an unsupported allegation. Weeks offered no
testimony or evidence to corroborate this naked assertion. The CSC found that the Gasparrini-2
report did not bear a draft stamp or otherwise identify itself as a draft or preliminary report; it was
typed on letterhead; it was signed by Dr. Gasparrini; and it was filed by Weeks with the CSC. (R.
6 at 173; R. 11 at 24-32; R. 5 at 53-61). The CSC considered both reports as they were relevant to
the case. (R. 6 at 174; R. 12 at 112; R. 16 at 50-51). Weeks objected to the use of the Gasparrini-2
report several times in the course of the appeal hearing. (R. 12 at 112; R. 16 at 50-51).

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His

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objection was outright rejected by the CSC each time based on the absence of any proof that it was
indeed a draft. (Id.). Argument is not evidence, and the CSC correctly decided to consider both
Gasparrini reports in the resolution of the appeal hearing.
D.

Weeks failed to provide a sufficient mental evaluation.

Weeks complains that the CSC erred in finding that the only medical opinions available to

Mayor Holloway when he was terminated were the opinions of Drs. Teater and Webb, because the
Mayor also had the opinion of Dr. Fellows. (R. 21 at 25). Weeks, however, takes the CSCs
statement out of context. When the CSC found that the Mayor only had the medical opinions of Drs.
Webb and Teater to consider, the CSC was clearly referring to psychological evaluations, not
simply a general health-type of examination. The CSC found:
WEEKS argues that the evaluations, reports, and opinions of Dr. Teater and Dr.
Webb were not sufficient to support termination pursuant to Section 5.12(b). Dr.
Julie Teater, a psychologist, evaluated Weeks on June 12, 2007, and found WEEKS
unfit for duty as a police officer. . . . Dr. Mark Webb, a psychiatrist, evaluated
WEEKS on August 16, 2007, and also found him unfit for duty. . . . These were the
only medical opinions available to Mayor Holloway at the time he made his decision
to terminate WEEKS, despite the fact that WEEKS had been given approximately
four (4) months to obtain his own psychological report regarding his fitness for
duty.
R.E. 1 at 25; R. 6 at 185. (emphasis added). From the start, Weeks mental fitness for duty was the
issue, not a lack of physical fitness or poor health that would have caused him to be unfit for duty.
Looking at Dr. Fellows letter, notably absent is any statement that he performed any type of mental
or psychological examination or offered any opinion as to Weeks mental health. (R. 11 at 72).
Weeks counsel is well aware of the fallacy of his argument that Dr. Fellows letter was not
considered. The testimony before the CSC was that the Mayor considered Dr. Fellows letter as
conflicting with the report of Dr. Teaters fitness for duty evaluation, and it was because of that
apparent conflict that Mayor Holloway sent Weeks for a second fitness for duty evaluation to Dr.

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Webb. (R. 10 at 185; R. 13 at 64; R. 15 at 85-87, 175-76). In fact, when notifying Weeks of the
second fitness for duty evaluation, Mayor Holloway stated, I received a letter from Dr. William R.
Fellows stating your fitness to return to work.... However, Dr. Julie Teater has opined that you did
not appear fit for duty.... In light of these conflicting opinions and in an effort to further investigate
this matter so that a fair decision can be reached..., you are scheduled for a fitness for duty
examination... with Dr. Mark Webb.... (R. 10 at 185). It is undisputed that Mayor Holloway had
before him, and also considered, Dr. Fellows letter. Further, Mayor Holloway afforded Dr. Fellows
letter great deference because, in reality, the letter of Dr. Fellows was devoid of opinions regarding
Weeks physical or mental health. The letter offered nothing more than a statement of Dr. Fellows
knowledge that he knew of nothing to indicate that Weeks was unfit for duty. (R. 11 at 72). By any
reasonable definition, that is not a medical opinion sufficient to establish mental fitness for duty.
(R. 15 at 85-87).
If, in fact, that Weeks actually believed that the COB did not consider Dr. Fellows letter,
then he was required to raise that issue before the CSC to preserve the matter for appeal to this
Court. [I]ssues not raised before the CSC are deemed waived and may not be heard for the first time
on appeal. Pepper v. City of Jackson, 88 So. 3d 806, 809 (Miss. Ct. App. 2012). Having failed to
offer any testimony of Dr. Fellows or any other evidence of the value and weight of Dr. Fellows
opinion before the CSC, this issue is not ripe for appeal to this Court.
Weeks argues that CSC Rule Section 5.12(b) only required him to receive a satisfactory
health examination report, which he claims Dr. Fellows report provided. This argument, again,
ignores the requirements of Section 5.12 that a COB employee be fit for duty, which includes mental
and psychological fitness for duty. (R.E. 2; R. 10 at 95). Weeks again claims that he was prevented
from obtaining his own rebuttal report to comply with Section 5.12(b) because the COB refused to

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give him copies of Drs. Teater and Webbs reports. This argument is completely without merit as
previously briefed at pages 35-36 supra of Appellees Brief. As there was no testimony or evidence
demonstrating that Weeks was unable to obtain a fitness for duty examination without the reports
of Drs. Teater and Webb, Weeks argument is reduced to mere speculation and conjecture. Weeks
disregards the fact that the COB asked him to provide any relevant psychological and/or psychiatric
records that Weeks wanted Dr. Teater to consider. (R. 10 at 182). It was in response to this that
Weeks submitted Dr. Fellows letter. (R. 11 at 72). Instead of obtaining a fitness for duty report,
Weeks opted to submit the two sentence letter of his internist, Dr. Fellows, to support his claim that
he was fit for duty. (R. 11 at 72). The COB and the CSC submit that he is bound by that decision.
Weeks next argues that the CSCs statements and conclusions regarding Dr. Massongs
testimony demonstrate an unreasonable determination that Weeks failed to provide a sufficient
mental evaluation that he was fit for duty. The CSC found that Dr. Massongs diagnosis of Weeks
was not available to the Mayor in 2007, noting Dr. Massongs testimony that he could not state with
any certainty that his evaluations of Weeks would have been the same had he evaluated Weeks in
2007 instead of five years later in 2013. (R. 1 at 25-26 ;R. 6 at 185-86; R. 12 at 86-87). Based on this
testimony, the CSC concluded it had to give less weight to the opinions of Dr. Massong. (R. 6 at
176). As this conclusion is supported by Dr. Massongs testimony, there is substantial evidence to
support the CSCs decision and no bad faith by the CSC exists in this regard.
Weeks urges that Dr. Massongs testimony and report validated the findings of Dr. Gasparrini
that Weeks was fit for duty at the time of termination and that the CSC missed the point of Dr.
Massongs testimony. Frankly, it is Weeks who fails to see the point. First, neither Dr. Gasparrini
nor Dr. Massongs opinions were available to the Mayor when he made the termination decision.
As pointed out by the CSC, the relevant point in time for inquiry into whether a public employee is

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capable, qualified or fit for duty is the time that the termination decision was made. (R.E. 1 at 26;
R. 6 at 186); Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 601 (7th Cir. 1999). It would be
inherently unjust and nonsensical to adjudge the COBs conduct based on evidence not available to
it at the time it made its termination decision. As such, the CSCs reliance on the reports available
to the Mayor at the time of Weeks termination was in good faith and proper.
Weeks also argues that the CSC unreasonably disregards the purpose of Massongs report
and testimony, which he contends was to validate Dr. Gasparrinis finding of Weeks fitness for
duty. While it was Dr. Massongs opinion was that Weeks was fit for duty at the time of Dr.
Gasparrinis evaluation (R. 12 at 187), his opinion cannot be viewed in a vacuum in light of the fact
that his opinions were based on evaluations of Weeks in October 19, 2012 and January 30, 2013, five
years after the incidents that caused the COB to question Weeks mental stability, and that he had
not even reviewed the report known as Gasparrini-2. There was also evidence that Dr. Massong had
no prior experience in evaluating psychological fitness for duty examinations, while Dr. Webb, by
contrast, had performed more than twenty such evaluations. (R.E. 1 at 25-26; R. 6 at 185-186; R. 12
at 81). As Dr. Massong testified that the passage of time could change a persons perception of
events, circumstances, and memory, (R. 12 at 86-87), that his opinions were based on responses that
Weeks gave in 2012 and 2013 (Id.), and that he could not state with any degree of certainty that the
responses given in 2012 and 2013 were the same responses that Weeks would have given in 2007
and 2008 (Id.), the CSC certainly had reasonable grounds to accord less weight to Dr. Massongs
than Drs. Teater and Webb who testified regarding their opinions which were provided to the COB
prior to Weeks termination. (R.E. 1 at 25-26; R. 6 at 185-86). There is no evidence that the CSC
ignored Dr. Massongs opinions. Rather, the testimony and evidence presented supports the CSCs
conclusions and its decision on the credibility of the Dr. Massongs testimony and opinions.

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E.

The CSCs decision that the COB acted in good faith in providing Weeks with due
process is supported by substantial evidence.
Weeks contends that the COB intentionally used CSC Rule Section 5.12(b) as a mechanism

to strip him of due process protections that he claims are required in disciplinary actions under
Article 10 of the Civil Service Rules. The COB and the CSC submit that Weeks argument is
without merit.
Weeks was not terminated because of a rules violation or other misconduct that would be the
subject of a disciplinary action, but because a psychologist and a psychiatrist evaluated his mental
state and found him mentally unfit for duty as a police officer. The letter of Director Dunagan
recommending Weeks termination as well as Mayor Holloways letter terminating Weeks confirm
this. (R. 10 at 183, 189).

Further, Director Dunagan testified that the employment action

concerning Weeks was not disciplinary in nature but was a medical matter under CSC Section
5.12(b). (R. 15 at 92-93).17 The CSC found that it was up to the judgment of the COB to decide
whether to pursue an employment action under discipline or under fitness for duty, because CSC
Rules and Regulations allowed the COB to initiate disciplinary action when there is cause to do so
and to send an officer for a fitness for duty exam when reasonable grounds exist. (R.E. 1 at p. 22;
R. 6 at 182). Weeks presented no testimony or evidence to support a finding that the COB chose the
fitness for duty route because it intentionally sought to deny him due process.

17

Dunagan testified:
we weren't dealing with 12-1 in the Biloxi Police Department Rules and Regulations on
disciplinary action because this is not disciplinary action. It was fitness for duty. so, there's
no notification of intent [to initiate disciplinary action because to do that, you're going to -looking at disciplining him. And I wasn't disciplining Ron. I like Ron. You know, if we
didn't have the issue of the two doctors saying he was unfit for duty, Ron would be still
working there and hopefully would've retired from there.
(R. 15 at 92-93).

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Nonetheless, the procedure by which Weeks was terminated afforded him even more due
process than that required by a disciplinary action. Section 21-31-23 of Mississippi Code
Annotated governs the disciplinary process and the due process that must be given to an employee
being disciplined. Miss. Code Ann. 21-31-23; Burleson v. Hancock County Sheriffs Dept., 872
So. 2d 43 (Miss. 2003), rehearing and cert. denied, 873 So.2d 1032, cert. denied, 125 S.Ct. 809
(2004). A written notice is the first element of due process that Mississippi Code 21-31-23
requires. The written notice must state the reasons for the intended termination, state that the
employee has the right to respond in writing to the reasons given for the termination within a
reasonable time and that the employee can respond orally before the official charged with the
responsibility of making the termination decision. Miss. Code Ann. 21-31-23. The CSC found
that this first requirement was met with Weeks. (R.E. 1 at p. 23; R. 6 at 183). On September 11,
2007, Director Dunagan gave Weeks a written notice that he was recommending Weeks termination
because two doctors had found Weeks mentally unfit for duty as a police officer, that he had the right
to respond to the reasons given for his termination both orally and in writing to the Mayor who
would be making the final decision. (R. 10 at 183; R. 15 at 90-92). Further, the proof at the appeal
hearing established that Weeks responded to the reasons given for his termination in writing to
Mayor Holloway, (R. 11 at 33-34), and orally when he met with Mayor Holloway on September 25,
2007. (R. 10 at 189).
To the extent that Weeks argues that due process was violated because he did not receive a
Board of Inquiry hearing, he is confused. A Board of Inquiry is a hearing before a group of police
officers holding varying ranks that is offered under the rules and regulations of the BPD to its employees
when they have been accused of violating the rules and regulations of the BPD. The Board of Inquiry
hearing is separate and independent from the Civil Service CSC procedures for handing a disciplinary action.

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Having a Board hearing is optional to the employee being disciplined and the findings of the Board of
Inquiry, which only determine whether there was a BPD rules violation, are advisory only and are not
binding on the Director of Police. A Board of Inquiry hearing is not required by due process. See Miss.
Code Ann. 21-31-23; CSC Regulation 10.05(a), (R.E. 5). Rather, Miss. Code Ann. 21-31-23
requires only that an employee being disciplined has the right to respond in writing ... and respond
orally before the official charged with the responsibility of making the termination decision. Id.
(Emphasis added). While a pre-termination hearing where witnesses are examined can be provided by
the official charged with making the termination decision, whether to afford such a hearing is
discretionary with that official. Miss. Code Ann. 21-31-23. A pre-termination hearing was not
required, and it was not offered Weeks by Mayor Holloway.
The second element of due process required by Miss. Code Ann. 21-31-23 is that the
official charged with making the employment decision must notify the employee of his decision in
writing at the earliest practical date. Miss. Code Ann. 21-31-23. In this case, Mayor Holloway met
with Weeks on September 25, 2007, and less than one month later, on October 19, 2007, Mayor
Holloway advised Weeks in writing of his decision. (R. 10 at 189). The CSC found that the second
requirement was met. (R.E. 1 at p. 23-24; R. 6 at 183-84).
The third element of due process under Miss. Code Ann. 21-31-23 is that the employee
must be given notice that can file an appeal with the CSC within ten days after the disciplinary action
is imposed. Miss. Code Ann. 21-31-23. Weeks was advised in both Director Dunagans
September 11, 2007 letter, (R. 10 at 183), and again in Mayor Holloways October 19, 2007 letter,
(R. 10 at 187), that once the final employment decision was made by Mayor Holloway, Weeks would
have ten days from the date of the Mayors decision to request an investigation by the CSC. (R. 10
at 183, 187). Weeks filed his Notice of Appeal to the CSC on October 25, 2007.

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The CSC found that the final element of due process was met. (R.E. 1 at p. 24; R. 6 at 184).
Weeks also argues that he was not afforded due process under CSC Rule Section 5.12(b)
because the COB did not provide him with his personnel file and the other doctors reports.
Regarding his personnel file, there is no evidence that Weeks requested a copy of his personnel file.
In addition, the testimony demonstrated that Weeks always had access to his personnel file by simply
requesting it through a public records request. (R. 15 at 179-80). As to Weeks claim that he did
not receive a copy of the reports of Drs. Teater and Webb, the proof demonstrated that Weeks
requested a copy of the reports on September 17, 2007. (R. 11 at 78). In response, on October 9,
2013, Mayor Holloway notified Weeks that he could review reports in Director Dunagans office,
which Weeks did.

(R. 10 at 187).

Moreover, the testimony established that Weeks was not

prevented from obtaining a fitness evaluation report by a medical professional of his choosing as
any such medical professional did not need the reports of Drs. Teater and Webb to perform such an
evaluation. (See p. 35-36 of Appellees Brief supra).
In a prior appeal to the CSC involving a five day suspension, Weeks raised a similar issue.
In the Rachael Carson matter, Weeks argued that his due process rights had been violated because
he was not given a copy of the written statements of Rachael and Martha Carson until he appealed
the discipline he received to the CSC. (R. 4 at 74-76). The CSC ruled in that case that Weeks had
received all the process that was due to him when he received written notice of the charges against
him, a chance to respond to those charges orally and in writing, written notification of Mayor
Holloways decision on the charges, and notice of his right to appeal to the CSC. (Id). The CSC
held:
[i]n the final analysis, the commission finds and concludes that the statutory section
relied upon by Officer Weeks did not require the city to give him a copy of the
written statements of Rachael Carson and Martha Carson prior to making the

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decision to suspend. It bears noting that Officer Weeks was given the opportunity
to review the statements and, in fact, responded to them in his written response to the
accusation.
Id. at 76.
Like the Carson matter, Weeks received all the process he was due under Miss. Code Ann.
21-31-23 and CSC Rule 10.05(a), (R.E. 5), when he was informed of the reasons for his
termination, (R. 10 at 183), allowed to respond to those reasons orally and in writing before Mayor
Holloway, the official charged with making the termination decision, (R. 11 at 33-34), given written
notice of Mayor Holloways termination decision, (R. 10 at 189), and provided notice that he could
appeal an adverse decision to the CSC. (R. 10 at 183, 189). The COB was not required to give
Weeks a copy of the confidential reports of Drs. Teater and Webb prior to making its employment
decision on Weeks fitness for duty and termination; however, as in the Carson case, Weeks was
allowed to read and review the reports. (R. 13 at 199; R. 15 at 96-97). Because Weeks was afforded
all the due process to which he would have been entitled had his termination been processed under
the CSCs rules for disciplinary action, his argument that the COB denied him due process is
unfounded.
F.

The CSC did not act in bad faith in the admission of evidence.
Weeks claims that the CSC erred in admitting and relying on irrelevant or unreasonable

evidence and that permitting the COB to present evidence of Weeks past incidents of misconduct
with women constituted bad faith. The standard for the admission of testimony and evidence before
an administrative body is relaxed and such a body has the authority to admit or refuse evidence as
it reasonably sees fit. Ladnier, 749 So. 2d at 154-55; Riddle v. Mississippi State Bd. of Pharmacy,
592 So. 2d 37, 43 (Miss. 1991) (formalities of practice, procedure and evidence as in courtroom
proceedings are relaxed in all administrative proceedings). The COB and the CSC submit that

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Weeks argument is meritless.

The CSC rejected and gave short shrift to Weeks notion that the COB was not permitted to
consider the contents of an employees personnel file and employment history in making
employment related decisions. (R 6. at 181).18 Both Asst. Chief McGilvary and Director Dunagan
testified that whenever an issue with an officer is raised, he generally reviews the officers personnel
file to determine the scope of the problem and the level of corrective action that should be taken.
(R. 13 at 47, 48, 52, 106-08; R. 15 at 64). Moreover, the evidence was that Weeks prior misconduct
was only considered for purposes of deciding whether a fitness for duty examination was needed,
and that the termination was based on the opinions of Drs. Teater and Webb who found Weeks unfit
for duty. (R. 10 at 183, 189; R. 15 at 90). The COB and the CSC submit that personnel files are
typically used as a source of information to make informed decisions about an employee. See City
of Jackson v. Moore, 97 So.3d at 1241. As a result, the CSC was within its discretion in admitting
the evidence of Weeks prior misconduct.
Weeks argues again that CSC acted in bad faith by allowing Dr. Gasparinis draft report
into evidence. As has been adequately set out in pages 15-16 and 40 of this brief, there was no proof
that the Gasparrini-2 report was a draft. Rather, the evidence was that both Gasparrini reports were
typed on Applied Psychology Center letterhead, signed by Dr. Gasparrini and dated February 20, 2008.
(R. 11 at 15, 24). In addition, there is nothing on the Gasparrini-2 report that identified it as a draft.
(R.E. 1 at p. 13; R. 6 at 173; R. 11 at 15, 24). Even further, the fact that Dr. Gasparrini was not
18

The CSC stated:

WEEKS suggestion that an employer cannot consider the entire personnel file, including
past acts of misconduct, when making a decision on the employees' continued employment
to be utterly without merit and in need of little discussion.
(R.E. 1 at 21; R. 6 at 181).

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available to testify lends itself to the admission of all of his opinions. Consequently, the CSC did
not act in bad faith but acted reasonably in admitting both of the Gasparrini reports.
Finally, Weeks claims that the CSC erred in mischaracterizing Dr. Gasparrinis findings.
Weeks takes issues with the CSCs finding that Dr. Gasparrini believed at the time he wrote and
signed his report that Weeks was unfit to perform his job as a police officer or any similar job unless
and until he completed psychological counseling to develop boundaries between his personal and
professional life. (R. 6 at 185). Weeks argues that Dr. Gasparrini never stated that Weeks was unfit
for duty. Weeks obviously ignores Dr. Gasparinnis opinion, which the CSC noted, that Weeks
confused the power dynamics of his role as a uniformed police officer with his dating relationships
[that] repeatedly led to difficulties for him in his career. These should be addressed before he tries
to resume work as a police officer or in a similar position. (R.E. 1 at p. 14; R. 6 at 174; R. 11 at
32). By Dr. Gasparrinis own words, Weeks should address his issues with confusion between his
professional duties and his personal life before resuming work as a police officer. (R. 11 at 32). The
CSC did not misstate Dr. Gasparrinis opinion and was reasonable in concluding that even Dr.
Gasparrini viewed Weeks unfit for duty at the time of his 2008 report. The CSC did not misstate or
mischaracterize Dr. Gasparinis opinion.
Conclusion
This Courts review of the CSCs findings and conclusions is narrow in scope. To reverse,
the Court would have to determine that the actions of the COB which were affirmed by the CSC
lacked sufficient evidentiary support or were the product of political motivations and that Weeks
termination was not made in good faith. The decision of this Court is not what it would have done
had it stood in the CSCs stead, but whether the actions of the CSC were arbitrary or capricious or
unsupported by substantial evidence and not made in good faith for cause. Based on the testimony

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and evidence presented, and Weeks appeal should be denied.

THIS, the 30th day of May, 2014.
Respectfully submitted,
CITY OF BILOXI AND BILOXI
CIVIL SERVICE COMMISSION
BY: PAGE, MANNINO, PERESICH
& MCDERMOTT, P.L.L.C.
BY:

s/ Tere R. Steel
TERE R. STEEL (MSB#5332)

PAGE, MANNINO, PERESICH

& MCDERMOTT, P.L.L.C.
759 VIEUX MARCHE MALL
P.O. DRAWER 289
BILOXI, MS 39530
Telephone: (228) 374-2100
Facsimile: (228) 432-5539
Email: tere.steel@pmp.org

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CERTIFICATE
I, Tere R. Steel, of the law firm of Page, Mannino, Peresich & McDermott, P.L.L.C., do
hereby certify that, on this date, I electronically filed the foregoing APPELLEES BRIEF with the
Clerk of the Court using the MEC system which sent electronic notice of such filing to Russell S.
Gill, Esq. at his email address of rsgill@rsgill-lawfirm.com; and Austin Clark, Esq. at his email
address of aacgill@gmail.com.
THIS, the 30th day of May, 2014.
s/ Tere R. Steel
TERE R. STEEL (MSB#5332)
PAGE, MANNINO, PERESICH
& MCDERMOTT, P.L.L.C.
759 VIEUX MARCHE MALL
P.O. DRAWER 289
BILOXI, MS 39530
Telephone: (228) 374-2100
Facsimile: (228) 432-5539
Email: tere.steel@pmp.org

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