JAN 08 2018 BEFORE THE MISSISSIPPI EMPLOYEE APPEALS BGMELDVOE APPRRLS@BARD: RICHARD TODD COX APPELLANT ‘VERSUS DOCKET NO. 18-054P MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY RESPONDENT ORDER This cause came on for hearing on December 6 and 7, 2018 in Jackson, Mississippi The Appellant Richard Todd Cox (Cox) was represented by Attomey Dennis Hom. The Mississippi ‘Department of Public Safety (DPS) was represented by Attomey Eric Brown. ‘This case is known as the “termination case.” A separate case was filed by Cox in 2017, known as the “transfer case” and bears case number 17-015. The wibunal will issue another order with respect to that case. For the reasons ‘stated herein, this tribunal reverses the decision of DPS to terminate Cox. ‘1 FACTUAL FINDINGS, Cox was employed by DPS as a Trooper assigned to Troop M. Cox was recently transferred from Troop C to Troop M by DPS related to alleged misconduct with another trooper’s wife (17-015, the transfer case). ‘While stationed in Troop M, Cox is alleged to have ‘had an incident with his own wife. On June 12, 2018, DPS notified Cox that charges were filed against him. In the NARRATIVE STATEMENT OF CHARGES, DPS outlines three incidences that they contend justifies Cox’s termination. The first (in time), occurred on December 13, 2010 when Cox isalleged to have asssled his rend over an alleged aff is tend ad with Christy, Cox's wife, The allegation is that Cox arrived at IIINIEIillresidence, he pushed his ‘way into the home and brutally assaulted him causing substantial facial injuries. Cox denies brutally assaulting [I] Cox testified he did not hit J He explained that IB eye was injured when the two fell tothe ground. | was not called to testify about the events.Second (in time), on May 31, 2017, Cox was found to have violated DPS General Order 3.03.03 and 3.03.06(c) one Group Three (I) violation for having an inappropriate relationship with a fellow trooper’s wife. Although this is the subject of the transfer case 17-015, Cox and (ER 10 Cox), both testified that this was an emotional, non-sexual affair. ‘The tribunal heerd testimony from land Cox about this incident. The tribunal also heard the testimony of Is ex-husband, FN ‘The third incident involves the factual basis behind « May 7, 2018 temporary restraining order obtained by Christy Cox in the Renkin County Chancery Cour related tothe divorce proceeding. The swom testimony in that proceeding of Christy Cox was that Cox grabbed her throat on a few occasions, threatened to kill her, and was stalking her. It is alleged that Cox also threatened to kill her attorney. Before this tribunal, while under oath, Cox denied these allegations. Christy Cox was not called to testify and did not appear before this tribunal. Cox explained the circumstances behind Christy Cox's testimony. DPS introduced the transcript of ‘the temporary restraining order hearing and the temporary restraining order dated May 7, 2018. In rebuttal, Cox denied the allegations that he grabbed Christy’s throat, threatened to kill her or ‘her attorney or that he stalked her, He testified that the two had calm conversations about the divorce proceedings and in fact, attended a party together and were sitting next to each other. Cox called his cousin, who attended the party, to confirm this. Cox also introduced the agreed temporary order dated May 15, 2018 which specifically provides that the previous temporary order is dissolved, DPS introduced a polygraph examination report dated May 18, 2018 which demonstrates “deception indicated” regarding allegations that Cox harmed or threatened to harm Christy or her attomey. However, the Polygraph Examiner was not called to testify about the ‘examination. Cox, therefore was denied an opportunity to cross-examine this individual aboutthe testing and the results. More importantly, Mississippi Code Ann. §73-29-47 disallows ‘polygraph examinations to be introduced or admitted as evidence in a court of law. Therefore, this tribunal must disregard this document and its findings. For these three offenses, Cox was found to have violated Group Two (II) and Group ‘Three (Ill) as follows: Group It 1. Insubordination, including but not limited to, resisting management directives through actions and/or verbal exchange, and/or failure or refusal to follow supervisor's instruction, perform assigned work, or otherwise comply with applicable established written policy;(3 Counts General (Order 3.03) Group 111 14, Anact or acts of conduct occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negli gence in regard to the agency’s duties to the public or other State employees’ (2 Counts). ITL_ANALYSIS ‘On his EAB appeal, on factual issues Cox must prove (1) that the allegations upon which this termination was based are either untrue, or (2) if true, that the punishment he received for the ‘conduct for which he engaged in was too severe. See, Mississippi State Personnel Board Policy and Procedures Manual, effective date 1/18/18, Chapter 10, Section 20.B. In addressing an employee's burden of proof, the Mississippi Supreme Court stated in Richmond v. Mississippi Department of Human Services, 745 So, 2d 254 (Miss. 1999), the following: ‘The statute and administrative regulations clearly place the burden of persuasion on the aggrieved employee to demonstrate that the reasons given are not true. Rule 17, Administrative Rules of the Mississippi Employee Appeals Board; Miss. Code Ann. § 25-9- 127 (1972). .» This is not mere semantics. Under our scheme, in a 3