IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CC-00658-COA
CLAY NECAISE APPELLANT
v.
CITY OF WAVELAND, MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/30/2014
TRIAL JUDGE: HON. ROGER T. CLARK
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: BENJAMIN U. BOWDEN
ATTORNEYS FOR APPELLEE: J. CHADWICK MASK
GARY MCKAY YARBOROUGH JR.
CLIFTON MICHAEL DECKER
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL
INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION: AFFIRMED APPELLANT’S TERMINATION
DISPOSITION: AFFIRMED - 07/21/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ISHEE AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1. Clay Necaise appeals the Hancock County Circuit Court’s judgment affirming his
termination from the police department of the City of Waveland, Mississippi. On appeal,
Necaise argues that the circuit court erred because the record lacked substantial evidence to
show that he was terminated in good faith for cause. Finding no error, we affirm.
FACTS
¶2. From 2008 until October 29, 2010, Necaise worked for the Waveland Police
Department. On October 15, 2010, Necaise’s fellow officer, Joshua Poyadou, filed a formal
complaint against Necaise. Officer Poyadou’s complaint alleged that, while on patrol duty
on July 22, 2010, Necaise abandoned his responsibilities and had sex with Officer Poyadou’s
fiancée, Christy Spence.
¶3. As a result of Officer Poyadou’s complaint, Police Chief James Varnell investigated
the allegations against Necaise. Chief Varnell obtained Necaise’s time sheet and computer-
aided dispatch report (CAD sheets) for the night in question. The CAD sheets detailed
Necaise’s on-duty activity on July 22, 2010, and showed that Necaise had a period of
inactivity at the end of his shift for about an hour and a half. Chief Varnell assigned Officer
John Saltarelli to take Spence’s statement regarding the alleged incident on July 22, 2010.
Spence stated that she had sex with Necaise that night, and the time frame she gave for the
incident coincided with the period of inactivity recorded by Necaise’s CAD sheets.
¶4. During the course of the investigation, Chief Varnell reviewed text messages between
Necaise and Spence. He also reviewed a videotape provided by Officer Poyadou when he
filed his complaint. The videotape captured a discussion between Officer Poyadou and
Spence on October 15, 2010, while the couple sat inside Officer Poyadou’s patrol vehicle.
During the conversation, Spence admitted to Officer Poyadou that she had sex with Necaise
on July 22, 2010, while Necaise was on duty.
¶5. After reviewing the evidence and completing his investigation, Chief Varnell met with
Waveland’s mayor, the city attorney, and the city clerk on October 29, 2010. Chief Varnell
then met with Necaise later that day and informed Necaise of the allegations against him.
At the end of the meeting, Chief Varnell gave Necaise a letter notifying Necaise of his
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termination. The letter set forth the allegations against Necaise and explained the steps
Necaise could take to appeal his termination.
¶6. Following his termination, Necaise filed a grievance and exercised his right to an
administrative hearing with Waveland’s mayor. Two administrative hearings were held on
Necaise’s grievance. After the second hearing, David Garcia, Waveland’s newly elected
mayor, issued a letter upholding Necaise’s termination. Mayor Garcia found that sufficient
evidence existed to support Chief Varnell’s conclusion that Necaise engaged in the activity
for which he was terminated. Mayor Garcia also found that Chief Varnell’s decision “was
supported by substantial evidence and was for just cause.”
¶7. Necaise next appealed Mayor Garcia’s decision to the Waveland Civil Service
Commission (the Commission). The Commission held public hearings on Necaise’s appeal
on June 30, 2011, and July 26, 2011. Pursuant to Waveland City Ordinance 251 (the
ordinance), the Commission found its review was limited to whether Necaise was terminated
in good faith for cause. After considering the parties’ evidence and testimony, the
Commission upheld Necaise’s termination by a 3-2 vote. The Commission found that
Necaise was, in fact, terminated in good faith for cause. The Commission further found the
termination was not arbitrary or capricious and was supported by the evidence.
¶8. Aggrieved by the Commission’s decision, Necaise filed a notice of appeal to the
circuit court on October 4, 2011. In his April 30, 2014 order affirming the Commission’s
decision, the circuit court judge stated that the question before him was not whether he would
have made a different decision regarding Necaise’s termination but whether the Commission
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acted in accordance with the ordinance. After considering the matter, the circuit court judge
concluded that the evidence supported the Commission’s decision. He also found that
Necaise was terminated in good faith for cause. As a result, the circuit court judge affirmed
the Commission’s decision to uphold Necaise’s termination. Aggrieved by the circuit court’s
judgment, Necaise now appeals to this Court.
STANDARD OF REVIEW
¶9. When dealing with an appeal from a civil service commission’s decision, the appellate
court’s standard of review is as follows:
[T]he question before the appellate court is whether or not the action of the
Civil Service Commission was in good faith for cause. Intertwined with this
question is whether or not there was substantial evidence before the Civil
Service Commission to support its order and whether [the decision] is
arbitrary, unreasonable, confiscatory, and capricious.
City of Vicksburg v. Lane, 11 So. 3d 162, 165 (¶10) (Miss. Ct. App. 2009) (quoting City of
Jackson v. Froshour, 530 So. 2d 1348, 1355 (Miss. 1988)).
DISCUSSION
¶10. In Prendergast v. City of Waveland, 146 So. 3d 1021, 1022 (¶¶1-2) (Miss. Ct. App.
2014), this Court decided an appeal that was controlled by the same ordinance applicable to
Necaise’s appeal. In discussing the Prendergast appeal, this Court acknowledged the
following:
First and foremost, it is necessary to note that this case does not turn on
any application of Mississippi statutory law. Mississippi Code Annotated
section 21-31-1 (Rev. 2007) mandates that certain municipalities must have a
civil service commission. Similarly, Mississippi Code Annotated section 21-
31-3 (Rev. 2007) gives qualified municipalities the authority to adopt a civil
service commission. The [Waveland Civil Service] Commission is unique in
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that it is not a creature of either statute. Instead, the Commission is the product
of Waveland City Ordinance 251 (“the ordinance”), which was authorized by
House Bill 1770 of the 1994 Mississippi legislative session. Consequently,
neither the provisions nor the procedures set forth in the statutes that pertain
to civil service commissions apply to this case. . . . [S]ection 10 of the
ordinance states that it “shall not be construed to invoke the provisions of
[s]ections 21-31-1 through 21-31-75, which deal with civil service, nor to
invoke the law of any court decisions made pursuant thereto.
Prendergast, 146 So. 3d at 1024 (¶12).
¶11. Section 4(1)(a) of the ordinance establishes that a termination constitutes a “covered
job action” subject to appeal by a “covered employee.” The record reflects that Necaise was
a covered employee and was subjected to a covered job action. Therefore, following his
termination, Necaise possessed the right pursuant to the ordinance to seek “an administrative
hearing before the mayor, who shall determine the reasonableness of the job action and either
affirm, modify, or overturn the job action.” Waveland City Ordinance 251 § 9(2).
¶12. Because he disagreed with the mayor’s decision to affirm his termination, Necaise
possessed ten days to appeal the mayor’s decision to the Commission, which “shall then hold
a hearing confined to the question of whether such action was taken for good cause and in
good faith[.]” Id. at § 9(4). The ordinance authorizes the Commission to affirm the covered
job action if it finds the action was for cause; was not arbitrary and capricious; and was not
based on certain prohibited reasons. Id. Furthermore, the ordinance directs that “[t]he
[C]ommission shall affirm actions [that] are supported by facts, analysis[,] and findings of
the responsible official, even if such action is fairly debatable.” Id. Where an employee or
the City appeals the Commission’s decision to the circuit court, the circuit court’s hearing
“shall be confined to the determination of whether the [C]ommission acted in accordance
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with this [A]ct and the ordinance.” Id. at § 9(5).
¶13. On appeal to this Court, Necaise argues the record fails to contain any evidence to
show that he was terminated in good faith for cause. Instead, Necaise asserts that all the
evidence establishes that his termination was without cause and not in good faith. Despite
Necaise’s assertions, however, the record contains substantial evidence to support his
termination and to show that the termination was in good faith for cause in accordance with
Waveland’s ordinance.
¶14. The record reflects that, before terminating Necaise, Chief Varnell investigated
Officer Poyadou’s allegations against Necaise. In addition to filing a formal complaint
asserting that Necaise had sex with Spence while Necaise was on duty on July 22, 2010,
Officer Poyadou provided a videotaped conversation to corroborate his allegations. The
recording revealed a conversation between Officer Poyadou and Spence in which Spence
admitted that she met and had sex with Necaise on July 22, 2010, while Necaise was on duty.
¶15. After reviewing Officer Poyadou’s complaint and the videotape recording, Chief
Varnell pulled Necaise’s time sheet and CAD sheets for the date in question. Upon looking
at these documents, Chief Varnell discovered that a gap of almost an hour and a half existed
in which Necaise’s whereabouts were unknown, and Necaise’s paperwork failed to document
any activity.
¶16. Chief Varnell next assigned Officer Saltarelli to take a statement from Spence
regarding the events of July 22, 2010. According to Spence’s statement, she met and had sex
with Necaise around 10:30 p.m. on July 22, 2010. Spence stated that Necaise was still on
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duty at the time and was driving his patrol car and wearing his police uniform when the two
met. After reviewing Spence’s statement, Chief Varnell discovered that her timeline of
events matched the period of inactivity reflected by Necaise’s July 22, 2010 time sheet and
CAD sheets.
¶17. Based upon the evidence gathered during his investigation, Chief Varnell terminated
Necaise. When Necaise appealed his termination to the Commission, the Commission held
a hearing and reviewed the evidence and testimony presented by the parties. After
considering all the evidence, the Commission upheld Necaise’s termination. Upon review,
we find that the Commission’s decision was made in good faith for cause and that substantial
evidence supports the Commission’s decision. Accordingly, we find that Necaise’s argument
on appeal lacks merit, and we affirm the circuit court’s judgment affirming the Commission’s
decision.
¶18. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, FAIR
AND JAMES, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.
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