Mississippi Employment Security Commission v. Florence Ann Culbertson

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-CC-01033-SCT

MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION
v.

FLORENCE ANN CULBERTSON, BONNIE JONES,
JOANNE McMINN, KAY ANN STAPLES AND
ALWILDA SAVELL

ON MOTION FOR REHEARING

DATE OF JUDGMENT: 6/14/2000
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: ALLAN P. BENNETT
PEYTON S. IRBY
RICKEY T. MOORE
GEOFFREY MORGAN
ATTORNEYS FOR APPELLEES: LISA B. MILNER
JAY MAX KILPATRICK
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART -12/12/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

McRAE, PRESIDING JUSTICE, FOR THE COURT:

¶1. The motion for rehearing is granted. The original opinions are withdrawn, and this opinion is

substituted therefor.

¶2. Florence Ann Culbertson ("Culbertson"), Bonnie Jones ("Jones"), Joanne McMinn ("McMinn"),

Kay Ann Staples ("Staples"), and Alwilda Savell ("Savell") (the employees) were longtime employees of
the Mississippi Employment Security Commission ("MESC"). After years of experiencing a variety of

problems in the workplace, the employees filed complaints with the Employee Appeals Board (EAB).

They filed notices of appeal with the EAB in the fall of 1996. On April 8, 1999, the EAB issued orders

to each of the employees awarding them promotions, back pay, and attorneys' fees. The MESC appealed

this decision to a full board of the EAB, which affirmed the orders of the Hearing Officer on July 28, 1999.

The MESC next petitioned the Circuit Court of Hinds County for a writ of certiorari, which was granted,

and the circuit court affirmed the orders of the EAB and of the full board on June 6, 2000. Aggrieved, the

MESC has appealed the circuit court's decision. Finding no reversible error only in the award of attorney

fees', we affirm the rulings of the circuit court and of the EAB in all other issues, but reverse and remand

for further proceedings regarding attorneys' fees.

FACTS

¶3. The EAB and the full board issued separate orders for each of the five employees, granting

essentially identical relief to each. The employees brought four main issues on appeal to the EAB, only two

of which are relevant to this Court's review, which are: (1) whether the employees were denied promotional

opportunities because of the MESC's failure to follow proper policies and procedures; and (2) whether

the employees were entitled to awards of attorneys' fees. The EAB and the full board found that the

MESC did not follow proper policies and procedures in making promotions, and the employees were

awarded attorneys' fees, as well as back pay for three years prior to the filing of their grievances on

September 30, 1996.

¶4. The EAB's ruling stated that (1) testimony revealed many instances when the announcement of a

2
vacancy was posted, yet the position was already filled; (2) the only people who were aware of the

promotions were relatives or friends of management or special employees; (3) the MESC appears to have

disregarded the register in state service promotions and the procedure in regards to non-state service

promotions; (4) the MESC failed to follow the procedures required for review of the certificate of eligibles;

(5) failure to follow proper procedure leads to the filling of vacancies with the employer's favorite

employees; and (6) failure to follow the rules and regulations denied the employees the opportunity for

promotion. The full board's orders affirmed these findings and stated in all its orders, "that the Hearing

Officer was correct in his finding that the Appellee (MESC) failed to follow the rules and regulations of the

Mississippi State Personnel Board related to promotions, and that this failure resulted in the Appellant being

denied job promotions."

¶5. The MESC raises several issues on appeal, however, this Court's review is limited to our oft-cited

"arbitrary and capricious" standard. We must review the record and the issues raised in relation to the

EAB's findings; and therefore, the MESC's issues have been summarized and the relevant issues discussed

as they relate to these findings. The following issues will be addressed: (1) whether the EAB had

jurisdiction over the case; (2) whether the MESC failed to follow the MSPB's policies and procedures for

promoting employees; (3) whether the MESC failed to follow the proper MSPB policies and procedures

for promotions by allowing promotions to be made on the basis of favoritism and/or bias; (4) whether the

EAB properly awarded back pay to the employees; and (5) whether the EAB properly awarded attorneys'

fees to the employees. Finding reversible error only in the award of attorneys' fees, we affirm the ruling of

circuit court and of the EAB in all other issues, but reverse and remand for further proceedings regarding

attorneys' fees.

3
 DISCUSSION

I. WHETHER THE EAB HAD PROPER JURISDICTION
OVER THE CASE.

¶6. As an appellate court, a judgment may not be substituted for that of the properly designated

administrative board. United Cement Co. v. Safe Air for the Env't, Inc., 558 So. 2d 840, 842

(Miss. 1990).

¶7. The MESC claims that the EAB did not have jurisdiction over this case because the employees

failed to exhaust their administrative remedies before filing these claims. However, the employees' failure

to exhaust their administrative remedies in the face of substantial evidence that the MESC did not follow

the MSPB rules, will not destroy the jurisdiction of the EAB or an appellate court.

¶8. Substantial evidence was presented that employees were discouraged from filing grievances. In

addition, the EAB appears not to have disregarded the rules for utilizing administrative remedies prior to

filing a lawsuit as it recognized these remedies, such as the requirement that the incident must have occurred

within seven (7) days of the filing of a grievance for it to be grievable, in addressing other issues, such as

race and sex discrimination.

¶9. The EAB properly found that it had jurisdiction over the case.

II. WHETHER THE MESC FAILED TO FOLLOW THE
MSPB'S POLICIES AND PROCEDURES FOR
PROMOTING EMPLOYEES.

¶10. The Mississippi State Personnel Board ("MSPB") is an administrative agency with the responsibility

for oversight of the State's personnel system. The MSPB has a manual of policies, procedures, and rules

to be followed by state agencies in their personnel decisions and operation. The EAB found in its orders

4
that the MESC had disregarded the register in state service promotions and the procedure for non-state

service promotions. The MESC argues that the EAB ignored testimony explaining a detailed process for

hiring and promoting employees presented by the EAB. It does not appear from the record that the EAB

ignored this testimony, but that it found substantial evidence that, despite this detailed process being

established, it was not being followed. This is the heart of the EAB's review.

¶11. Charles Downs, the MESC Human Resources Director, testified on May 27, 1998, about the

proper procedure for promoting employees within the MESC. The proper procedure to become eligible

for a promotion was for an employee to put his or her name on a register for a particular job. Counsel for

the MESC explained that the register is "a living computer document that contains the names of every

employee ...with the State Personnel Board. And has satisfied the minimum qualification [sic] the position.

There is a separate register for every job class specification."

¶12. Downs testified that a person was on the register because he or she had been qualified to be on

it by the State Personnel Board. Downs further explained that if an employee received a high enough

score with the MSPB, then his or her name was placed on the in-house register, which was used to

promote employees from within the commission. The employee's name would appear on all the registers

for positions for which the employee had applied, if he or she was qualified for the position. Once an

employee's name was on a register, the MSPB evaluated several factors to determine a performance rating

for that employee, which was placed in their personnel file. Downs stated that before an employee was

"graded" by the MSPB, the Board was supposed to have considered such factors as training, experience,

length of service, and other factors. Therefore, the performance of an employee entered into the

certification process.

5
¶13. Downs also testified that when there was a vacancy in a division, a member of management would

make a determination as to whether they wanted to fill the vacancy. If so, a request was made from the

division director to the executive director, that instructed the personnel department to create a "certificate

of eligibles." Downs testified that once the request for a certificate of eligibles was received, the personnel

department was required to give a five-day announcement that the position was open. At the end of these

five days and after all the applications for the position were received, the department issued "the certificate

of the top ten" people with the highest scores. Downs explained that sometimes ten (10) people were not

listed, if 10 employees did not qualify for a position.

¶14. This five-day requirement appears to have come from the language of MSPB rule § 3.20, which

states, "all recruitment announcements shall be advertised for not less than five working days prior to the

closing date."

¶15. In addition, MSPB Rule § 3.30 states,

All announcements of recruitment or promotional opportunities shall contain either (1) the
State Personnel Board class specification of the vacancy, or (2) the equivalent of a
Mississippi Employment Security Commission job announcement, including the following:
title of the position, summary of education and experience requirements, statement of
indefinite recruitment or of the recruitment closing date, any examination requirements,
salary, geographic location, the phrase, "An Equal Opportunity Employer," and the
information on where further information can be obtained.

Rule § 3.30 clearly states that it also applies to promotions.

¶16. In summary, when a job or a position became available, the department heads were required to

request a certificate of eligibles from the MSPB, which listed the people with the top ten highest scores who

were on the register for that particular job. There may have been more than ten employees listed because

some may have had tie scores with other employees. The department head or other hiring official was not

6
required to pick the employee with the highest score on the list, as they were allowed to decide who was

best for the position.

¶17. However, if more than one qualified person was on a register for a particular job, it was the duty

of the department head or other hiring official to compare the people who appeared on the certificate of

eligibles prior to making a decision as to who would be granted a promotion. Thomas Lord, executive

director of the MESC, testified that a failure to compare the persons who appeared as qualified for a

promotion on a certificate of eligibles and promoting employees without considering this list would be a

violation of the MSPB's policies and procedures regarding promotions.

¶18. Sonny Scholl was Assistant UI (unemployment insurance) Director, who supervised all departments

at the MESC, with the exception of UI Technical Services. Scholl testified that it was the responsibility of

the department head or someone under him, i.e., the unit head, to look at the register, make a determination

of names eligible, and compare these employees prior to recommending an individual for a promotion.

Lord testified that the department head was supposed to receive a list of the top ten persons eligible for a

promotion and compare the persons on the list. Charlie Ballard, UI Director, also concurred in the above,

testifying that the register and the certificate of eligibles should have been consulted before recommending

someone for a promotion.

¶19. From the record, it appears that this process was inconsistently applied and that MESC officials

were confused as to the elements and steps of this procedure. Dale Smith, a department head and

Culbertson's supervisor, testified that he thought his only responsibility regarding promotions was to

recommend a person for a promotion and that someone above him would do the rest of the analysis as to

who actually received the promotion. This testimony is in contradiction with the testimony of Scholl and

7
Ballard, above, who placed this responsibility on the department heads. Lord further testified that it would

not be proper procedure for a department head to make a recommendation of a person to be promoted

and then to rely on somebody else to request a list of eligibles afterwards, as Smith appears to have done.

¶20. Smith also could not recall looking at the register or comparing the names on a certificate of

eligibles when recommending the promotion of employees Karen Watson, Louis Gipson, or Nakita

Booker. Another MESC department head, Brenda Kuriger, also admitted making promotions without

following proper procedure, such as not comparing the individuals on the certificate of eligibles prior to

making promotions.

¶21. The MESC alleges that the employees did not state any specific promotions that they should have

received over others. However, Florence Culbertson testified that she could have been promoted to the

positions of Accountant Auditor III, Program Specialist, Program Specialist Senior, and ES Chief Technical

Services. Culbertson further testified that she did not have any derogatory remarks in her personnel file.

She had been employed in her department for eighteen years, and her score with the State Personnel Board

was a 100. Culbertson stated Angie Nero received a promotion to ES Program Specialist that she

(Culbertson) should have received. Nero had a college education, while Culbertson had a degree from

a junior college and eighteen years of experience in the fiscal department.1 Culbertson testified to at least

five other promotions she was qualified for and did not receive.

¶22. Bonnie Jones testified to specific promotions she thought she was qualified for and should have

1
Bonnie Jones testified that six years of experience could compensate for not having a college degree for
the position of ES Program Specialist.

8
received. Jones testified that she trained a younger employee, Jim Martin, who was then promoted over

her. JoAnn McMinn also testified that she lost promotions to other less qualified employees, such as the

position of Claims Specialist to Cheryl Johnson, the same position to Patricia Ainsworth in 1992 or 1993,

and the same position to Johnny Moore. Not only does McMinn believe she should have received a

promotion, but she did not even know these promotions were available until after other employees had

been promoted to these positions.

¶23. The MESC argues that some of the promotions complained of above were non-status positions

given to non-status employees, who usually were the first employees to be let go if cutbacks were

necessary. Promotions to non-status positions did not require a review of the register or a certificate of

eligibles. The MESC further asserts that the EAB did not properly adhere to the distinction between status

and non-status employees and that, therefore, the EAB's findings are arbitrary and capricious.

¶24. The MESC points out in its brief that,"there was no evidence that the Appellees ever applied for

a non-status position...." If none of the employees applied for non-status positions, then the fact that a

review of the certificate of eligibles was not required for non-status positions becomes irrelevant. Reviews

of the certificates of eligibles were required for the promotions the employees hoped to acquire. The

employees made it clear that they did not want to lose their benefits as status employees.

¶25. While some of the specific promotions cited by the employees above were given to non-status

employees, such as Angela Nero, this does not diminish the employees' complaints that they should have

been allowed to compete for these positions along with other qualified employees. The employees make

the argument that these were positions they were qualified for and that were given to other employees.

Whether these employees were classified as non-status or as status is irrelevant to the review of whether

9
the MESC followed proper policies and procedures for promoting the employees.

¶26. Hiring officials would often select a person for a promotion arbitrarily and then require that person

to comply with the procedures, such as getting his or her name on a register. The EAB and the full board

found that this retroactive application of the promotions process was not in compliance with MSPB rules

and regulations.

¶27. The record reflects substantial evidence that proper procedures and policies were not followed in

making promotions at the MESC. The evidence provided by the MESC illustrates that management was

aware of the proper procedures as set forth in the MSPB Manual. However, lower level management,

such as department heads, did not follow these procedures, and upper management was not aware of these

inconsistencies. Promotions were given without following the proper procedures, and this opened the door

for unfair promotions that disregarded other employees' qualifications for the same position.

¶28. The MESC complains that a year prior to these grievances, it was found to have been in

compliance with the MSPB's rules, after an audit performed by the State Personnel Board. However, the

Hearing Officer had the opportunity to hear the testimony of employees and make a judgment based upon

their grievances and the current state of affairs at the MESC.

¶29. In addition, the MESC argues that the EAB erred by concluding that the employees should have

been promoted, because there were listings of deficiencies in the employees' work performances such as

lack of attendance by taking too much vacation time, slacking off at work, and lack of managerial skills.

However, this argument does not relieve the MESC of its obligation to follow the proper procedures for

promotions, which was the heart of the EAB review. The EAB apparently found the violations of the rules

concerning promotions was an issue to be weighed more heavily than the defenses the MESC offered as

10
to why the employees were not promoted.

¶30. This Court's review of the matter is not to reweigh the facts of the case, but to assess whether the

EAB had substantial evidence upon which to base its findings. Since the record provides many instances

where the proper policies and procedure were not followed, the EAB's findings were not arbitrary or

capricious. The circuit court is affirmed as to this issue.

III. WHETHER THE MESC FAILED TO FOLLOW THE PROPER
MSPB POLICIES AND PROCEDURES FOR PROMOTIONS BY
ALLOWING PROMOTIONS TO BE MADE ON THE BASIS OF
FAVORITISM AND/OR BIAS.

¶31. The EAB found in its order that (1) there were many instances in the record where the

announcement of a vacancy was not posted; and (2) the only people who were aware of promotions were

"relatives, friends, or special employees." The record provides substantial evidence for each of these

findings; and therefore, the EAB did not act arbitrarily or capriciously in making its decision.

¶32. Several of the employees and also former employees testified that they had witnessed favoritism

at the MESC in terms of who received promotions and who received additional training that would qualify

them for such promotions.

¶33. Karen Watson had been employed for about ten and a half years with the MESC when she testified

in February of 1998 that, if an employee was "friends with the boss," an employee could get almost

whatever was requested. Watson testified that she witnessed favoritism in the MESC concerning

opportunities for seminars and additional training and named two employees whom she felt had received

special or preferential treatment. Delores Martin, a retired employee of the MESC, testified that employee

Tonya Faler received additional computer training due to preferential treatment, even though Martin was

11
her superior; and Martin testified that Sue Weaver received a promotion as a result of favoritism. Martin

even stated that Culbertson should have received this promotion instead of Weaver. Culbertson testified

in detail as to why she thought Angela Nero and Sue Weaver had received promotions due to favoritism.

Culbertson testified that Nero had no professional training when she was hired. Culbertson further stated

that Weaver lacked the proper qualifications at the time she (Weaver) was instructed to get on the register

for her promotion. Weaver lacked "educational, work experience, and lack of supervision" qualities at the

time that she applied for her promotion, and Culbertson knew of a "deep personal relationship" between

Weaver and Smith, the department head who hired her, from the time the two attended high school

together.

¶34. Employees also witnessed occasions when other employees were promised a promotion or a

position and then were subsequently told to get on the register for that job in order to secure it and to be

eligible for it. These practices led the EAB to conclude that the employees "associated this with the

employee being told they would be promoted." This was unfair to the other employees who never had

notice that this particular position was available, and therefore, were not allowed the opportunity to get on

the register and apply for the job. Essentially, the MESC was picking and choosing specific employees

for specific promotions without considering other qualified employees for the position, which is a blatant

disregard for the MSPB policies and procedures. Promoting employees in this fashion also provides

grounds to support the favoritism testified to by the employees because no consistent procedure appears

to have been followed.

¶35. The MESC argues that "encouraging employees to become eligible for promotions is not illegal."

However, encouraging employees to get on the register when it was predetermined that they would receive

12
a position and when they had not been compared with any other employees is not appropriate and violates

the MSPB rules, as stated above.

¶36. Several employees testified that they found out about a promotion after the person had received

it. Joan Collins, a former MESC employee, testified in February 1998 regarding notice of promotional

opportunities that,"there was no advanced notice. I would hear by mouth, by word of mouth, and

whenever I approached my supervisor the position would be already filled, and about a week later a notice

would sometimes come around, circulate that the position was open, but it had already been filled ....The

notice would not state it had been filled, but it would have already been filled." Alwilda Savell testified that

"all" promotions made at the MESC were made as the result of favoritism. Savell further testified that

usually, one would not find out about a promotional opportunity until months after the position had been

apparently offered to someone and filled, and by that time, it was too late to apply for the position. Dale

Smith, an MESC department head when he testified in September 1997, stated that he was aware of a

relative of management who received a promotion within the MESC.

¶37. Once again, the MESC attempts to discredit the credibility of these witnesses by stating either that

they could only testify "generally" or that Collins used the term "whenever" in her description of when she

would approach her supervisor about a position or that one of the witnesses could not name a specific

occasion when this occurred. However, the credibility of the witnesses is not an issue for this Court to

decide. Rather the Hearing Officer was in a better position to judge the credibility of the witnesses, and

it is not the duty or obligation of this Court, under the proper standard of review, to reweigh the facts in

question. If an attack to the credibility of the witnesses on this matter is the only criticism the MESC offers

against the employees on this issue, the employees presented substantial evidence that, often times, people

13
would get on a register only after obtaining knowledge that they would receive the position or promotion.

¶38. The record provides substantial evidence that promotions were often based on favoritism or bias

and not upon the qualifications of the individuals. Because the EAB's ruling was based upon substantial

evidence, we will not disturb it on appeal. The circuit court is affirmed as to this issue.

IV. WHETHER THE EAB PROPERLY AWARDED BACK PAY
TO THE EMPLOYEES.

¶39. The MESC raises several reasons why the employees should not have been awarded promotions

retroactively for three years prior to the filing of their grievances and should not have been awarded back

pay, pursuant to the salary of these promotions, for the past three years. The MESC asserts that these

promotions and back pay should not have been awarded because Jones was promoted to a position she

held as of November 1, 1996, a few months after her appeal was filed with the EAB; because Staples and

McMinn had falsified information on their applications; and because McMinn was promoted to a position,

the title of which did not exist; among other complaints.

¶40. Under section 10, "Grievances and Appeals," of the MSPB rules, rule 10.40.21(A), "Relief to be

Granted," states,

The Employee Appeals Board may reinstate a prevailing party into employment with his
or her responding agency and restore all his or her employee rights and benefits including
back pay, medical leave and personal leave. The Board may also restore retirement
benefits provided the integrity of such benefits remains uncompromised in accordance with
all applicable laws, policies, rules and regulations.

¶41. From the rules, the EAB clearly had the authority to award the employees back pay. The errors

mentioned above do not amount to significant error sufficient to overturn the EAB's and circuit court's

decisions. For example, the fact that Jones was "promoted" by the EAB to the position she acquired a few

14
months after her grievance was filed does not make the EAB's ruling arbitrary or capricious. It is important

to note, however, that the EAB awarded Jones back pay equal to this position for three years prior to the

filing of her EAB appeal, which would be an award of back pay for this position starting in 1993. The fact

that Jones did in fact receive this position in November of 1996 hardly matters. The MESC does not

indicate, and the record does not reflect, that Jones's award of back pay was duplicative of pay she had

already received. The MESC just argues that the EAB misunderstood the facts by awarding Jones a

position she already had. As stated above, Jones was awarded back pay retroactively for this promotion

for three previous years. This was harmless error by the EAB.

¶42. Brenda Kuriger testified that she had reprimanded Staples and McMinn because they were given

opportunities to correct their applications, concerning their educational background and did not do so.

McMinn stated that she did not receive the original information to correct her application. Staples and

McMinn both refused to sign the reprimands. Staples testified that she was not sure about the number of

college credits she had received and ventured a guess on her application. She also testified that she later

submitted a transcript to correct the error. From the record, it does not appear that this "falsification" is

significant enough to require reversing the EAB's orders.

¶43. The EAB's granting of a promotion to McMinn that did not exist also appears to be harmless error.

In light of the MSPB rule § 10.40.21(A), the EAB clearly had the authority to award promotions and back

pay. The fact that the position of "claims specialist" did not exist, as the EAB has similar titles dealing with

"claims,"was harmless error on the part of the EAB, and a simple clarification of the order could have been

made. This error is not significant enough to warrant reversal of the EAB's order.

¶44. The MESC further asserts that the employees should not be awarded back pay because of Miss.

15
Const. art. 4, § 96, which states,

The legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent,
servant, or contractor, after service rendered or contract made, nor authorize payment, or part
payment, of any claim under any contract not authorized by law; but appropriations may be made
for expenditures in repelling invasion, preventing or suppressing insurrections.

Miss. Const. art. 4, § 96.

¶45. The MESC supports this assertion by relying on the case of Brame v. Wyatt, 197 Miss. 679,

690, 20 So. 2d 667, 668 (1945), which held that a law which allowed for an increase in compensation for

tax collectors could not be applied retroactively, or it would violate Section 96. However, in a situation

closer to the present one, the Attorney General issued an opinion which stated that "Section 96 of the

Mississippi Constitution of 1890 strictly forbids payment of 'retroactive raises' to any public employee

unless such payment is clearly shown to be 'back pay' previously due, but unpaid because of

administrative error." Miss. Atty. Gen. Op., No. 1997-0580 (Cofer). The EAB's award of back pay can

easily be considered payment in lieu of an administrative error on behalf of the MESC, as the EAB found

that the employees should have been awarded these promotions and payments.

¶46. Alternatively, it appears that the awarding of back pay in this case was not in violation of section

96, as the pay was not for services rendered. On the contrary, this back pay was to be the equivalent pay

for the promotions given to the employees, which were also retroactively awarded. Therefore, this back

pay was not for services previously rendered, but for promotions granted by the EAB. Article 4, section

96 does not apply, and the EAB clearly had the authority to grant the award pursuant to MSPB rule 21.

The award of back pay is affirmed.

V. WHETHER THE EAB HAD JURISDICTION OR AUTHORITY TO
AWARD ATTORNEYS' FEES.

16
¶47. Each employee was awarded an amount of attorneys' fees by the EAB, which was affirmed by the

full board and the circuit court. Each employee received $17,500.00 in attorneys' fees, plus an additional

$50.00 for reimbursement of their filing fee. The MESC argues that the award of attorneys' fees to the

appellees in this case was improper because the EAB lacked the authority and jurisdiction to award the

fees. We agree. The EAB is a creature of statute, and nowhere in the statutory scheme is the EAB

empowered to award attorneys' fees. In this case, the EAB held that the Litigation Accountability Act of

1988, Miss. Code Ann. §§ 11-55-1 to -15 (2002), allows it to award attorneys' fees. However, that

Act allows only a court, not an administrative board, to award attorneys' fees:

Except as otherwise provided in this chapter, in any civil action commenced or
appealed in any court of record in this state, the court shall award as part of
its judgment . . . reasonable attorney's fees and costs . .

Miss. Code Ann. § 11-55-5(1) (emphasis added). The only actual authority for awarding attorneys' fees

is set out by Miss. Code Ann § 11-55-5(1).

¶48. The case at bar was appealed to the circuit court. However, the circuit court dealt

summarily with the attorneys' fees issue, in one short paragraph, merely inserting the determination of the

EAB almost verbatim (except for seven minor words) into the court’s Memorandum Opinion and Order,

as follows:

The record further indicates that with regard to the award of Attorneys fees, the Board decided
that the Appellees had to retain counsel to vindicate their rights in regards to the denial of
promotions for failure to follow the rules. Extensive pre-trial discovery, numerous motions and
numerous witnesses were called at trial that lasted nearly three weeks. The Litigation
Accountability Act allows the award where the prevailing party encountered unnecessary expenses
in order to vindicate a state protected right. The Appellees had the right to expect that the
promotion process would be fair and equal and that all appointments would be done according to
the rules and regulations of the Mississippi State Personnel Board Policy and Procedure Manual.

17
¶49. The circuit court did not question the Board’s authority to award the fees, nor did it make any

independent analysis as required under the Litigation Accountability Act. Thus, we reverse and remand as

to this issue only, in order for the circuit court to review the record according to the mandatory

requirements of the Act, which reads in pertinent part as follows:

When granting an award of costs and attorney’s fees, the court shall
specifically set forth the reasons for such award and shall consider
the following factors, among others, in determining whether to assess
attorney’s fees and costs and the amount to be assessed:

(a) The extent to which any effort was made to determine the validity of any
action, claim or defense before it was asserted, and the time remaining within
which the claim or defense could be filed;
(b) The extent of any effort made after the commencement of an action to reduce
the number of claims being asserted or to dismiss claims that have been found not
to be valid;
(c) The availability of facts to assist in determining the validity of an action, claim
or defense;
(d) Whether or not the action was prosecuted or defended, in whole or in part, in
bad faith or for improper purpose;
(e) Whether or not issues of fact, determinative of the validity of a party's claim or
defense, were reasonably in conflict;
(f) The extent to which the party prevailed with respect to the amount of and
number of claims or defenses in controversy;
(g) The extent to which any action, claim or defense was asserted by an attorney
or party in a good faith attempt to establish a new theory of law in the state, which
purpose was made known to the court at the time of filing;
(h) The amount or conditions of any offer of judgment or settlement in relation to
the amount or conditions of the ultimate relief granted by the court;
(i) The extent to which a reasonable effort was made to determine prior to the time
of filing of an action or claim that all parties sued or joined were proper parties
owing a legally defined duty to any party or parties asserting the claim or action;
(j) The extent of any effort made after the commencement of a n action to reduce
the number of parties in the action; and
(k) The period of time available to the attorney for the party asserting any defense
before such defense was interposed.

Miss. Code Ann. § 11-55-7(emphasis added).

18
¶50. The MESC correctly states that the EAB has only limited authority under Miss. Code Ann. § 25-9-

131 (1999), and that the awarding of attorneys' fees is not one of its enumerated powers.

¶51. Mississippi has no cases on point that answer whether the EAB has the authority or jurisdiction to

award attorneys' fees. This issue was brought to this Court in a 1999 case, but it was not decided because

the State failed to cross-appeal the award of attorneys' fees. Tillmon v. Miss. Dep't of Health, 749

So. 2d 1017, 1018 (Miss. 1999). However, the award of attorneys' fees by the EAB in Tillmon was

allowed to stand because of a procedural bar. That bar does not exist in the present case, thus the

employees’ reliance on it is misplaced. Simply put, there is no authority for the EAB to award attorneys'

fees; however, on appeal the litigants may claim the accountability act that is delegated to the Court.

CONCLUSION

¶52. The findings of the circuit court and of the EAB, on all issues except attorneys’ fees, were based

upon substantial evidence and are not arbitrary or capricious. Therefore, those judgments of the circuit

court and the EAB are affirmed. As to the judgment awarding attorneys' fees, we reverse and remand to

the circuit court for further proceedings consistent with this opinion.

¶53. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ, CARLSON, AND
GRAVES, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND IN RESULT.

19