MISSISSIPPI SUPREME COURT
MISSISSIPPI COURT OF APPEALS
NO. 20rz)-00619-
CQA-,
APPELLANT
STACY OLIVER HESTER
VS.
LOWNDES COUNTY SCHOOL DISTRICT
APPELLEE
APPEAL FROM THE CHANCERY COURT OF LOWNDES COUNTY, MISSISSIPPI
BRIEF OF APPELLANT
ORAL ARGUMENT REQUESTED
JIM WAIDE, MS BAR ~
WAIDE & ASSOCIATES, P.A.
332 NORTH SPRING STREET
TUPELO, MS 38804-3955
POST OFFICE BOX 1357
TUPELO, MS 38802-1357
(662) 842-7324 / TELEPHONE
(662) 842-8056/ FACSIMILE
EMAIL: [email protected]
ATTORNEYS FOR APPELLANT
30868.1
CERTIFICATE OF INTERESTED PARTIES
The undersigned counsel of record certifies that the following listed persons have an interest
in the outcome of this case. These representations are made in order that the Justices of the Supreme
Court and/or Judges of the Court of Appeals may evaluate possible disqualification or recusal.
I.
Stacy Hester, Appellant;
2.
Jim Waide, Attorney for Appellant;
3.
Waide & Associates, P .A., Attorneys for Appellant;
4.
Lowndes County School District, Appellee;
5.
Jeffrey C. Smith, Attorney for Appellee; and
6.
Sims and Sims, Attorney for Appellee.
THIS, the
-h day of December, 2012.
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JIM¥l
30868.1
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES ....................................... i
TABLE OF CONTENTS ...................................................... , ii
TABLE OF AUTHORITIES .................................................. iii-iv
STATEMENT OF THE ISSUES .................................................. v
STATEMENT OF THE CASE ................................................... 1
STANDARD OF REVIEW ...................................................... 6
SUMMARY OF THE ARGUMENT .............................................. 7
ARGUMENT ................................................................. 8
THE SUPERINTENDENT DID NOT PROVE "GOOD CAUSE" TO FIRE STACY
HESTER FROM HIS EMPLOYMENT CONTRACT AS AN ELEMENTARY
SCHOOL TEACHER.
CONCLUSION .............................................................. 13
CERTIFICATE OF SERVICE .................................................. 15
CERTIFICATE OF FILING .................................................... 16
30868.1
ii
TABLE OF AUTHORITIES
CASES:
Board of Trustees of the Jackson Public School District v. Knox, 688 So.2d 778
(Miss. 1997) .............................................................. 12-13
Byrdv. Greene County School Dist., 633 So.2d 1018 (Miss. 1994) ....................... 9
Connally v. General Construction Co., 269 U.S. 385 (1926) ........................... 10
Everett v. Board of Trustees of the Meridian Municipal Separate School Dist.,
492 So.2d 277 (Miss. 1986) ..................................................... 12
Harrison v. McMillan, 828 So.2d 756 (Miss. 2002) ................................... 9
Lowndes County School District vs. Joseph Lynn Wright,
Mississippi Court of Appeals, Cause No. 2012-TS-00852 .............................. 1
Madison County Board of Education v. Miles, 173 So. 2d 425 (1965) ................... 7-8
McGory v. AlistateIns. Co., 527 So.2d 632 (Miss. 1988) ............................... 9
McGowan v. Mississippi State Oil & Gas Bd., 604 So.2d 312 (Miss. 1992) ............... 12
Merchant v. Board of Trustees ofPearl Municipal Separate School District,
492 So. 2d 959 (Miss. 1986) .................................................... 13
Mississippi Employment Sec. Com 'n v. Philadelphia Mun. Separate School Dist.,
437 So.2d 388 (Miss. 1983) ................................................... 9-10
Noxubee County Bd. of Educ. v. Givens, 481 So. 2d 816 (Miss. 1985) ..................... 7
Sims v. Board of Trustees, Holly Springs Municipal Separate School District,
414 SO.2d 431 (Miss. 1982) ..................................................... 10
Singley v. Smith, 844 So.2d 448 (Miss. 2003) ....................................... 11
Spradlin v. Bd. of Trustees of Pascagoula Municipal Separate School Dist.,
515 So. 2d 893 (Miss. 1987) ..................................................... 6
Universal Camera Corp. v. NL.R.B., 340 U.S. 474 (1951) ............................. 7
30868.1
iii
Youth Tennis Foundation of Utah v. Tax Commission of the State of Utah,
554 P.2d 220 (Utah 1976) ...................................................... 10
OTHER AUTHORITIES:
"Exemption of Charitable or Educational Organization from Sales or Use Tax, "
69 A.L.R. 5th 477 ............................................................ 10
"Mark J Cowan, Non Profits and the Sales and Use Tax, " 9 FLTXR 1077
(Florida Tax Review 2010) ..................................................... 10
Miss. Code Ann. § 27-65-103
Miss. Code Ann. § 27-65-105
Miss. Code Ann. § 37-9-24 ...................................................... 6
Miss. Code Ann. § 37-9-25 ...................................................... 6
Miss. Code Ann. § 37-9-59 .................................................... 6, 8
Miss. Code Ann. § 37-9-111 ................................................... 6, 9
Miss. Code Ann. § 37-9-113 ..................................................... 6
Miss. R. Evid. 201 ............................................................. 5
30868.1
IV
STATEMENT OF THE ISSUES
1.
30868.1
Was there good cause to terminate Stacy Hester's employment contract to
work as an elementary school teacher?
v
STATEMENT OF THE CASE
On May 17, 2010, Defendant!Appellee Lowndes County School District Superintendent
Mike Halford 1 delivered a letter of employment termination to Plaintiff/Appellant Stacy Hester
(hereinafter "Hester"). While Halford fired Hester during his contract term as a New Hope
Elementary school teacher, the firing did not relate to his contract as an elementary school teacher.
Superintendent Halford testified:
Q:
A:
Q:
A:
And Mr. York (elementary principal) recommended Mr. Hester back this
year, didn't he?
Yes, sir.
SO he must have been satisfied with his performance as a PE teacher at his
school, correct?
Stacy Hester was as good of an employee, as far as classroom, that I've ever
worked for.
[R: 9 8; Halford testimony1
Rather than basing the firing on anything related to Hester's contract as an elementary
teacher, Halford fired Hester based on an occurrence in 2007, when Hester was the baseball coach
at New Hope High School.
On May 17,2010, Superintendent Halford wrote Hester that he was being fired from his
elementary teacher's position because of:
1.
2.
Violation of district policy and state law. The district was
utilized to obtain items of personal property. The property
was obtained without following procedure. The district's tax
exempt status was used in a fraudulent manner.
You have therefore been insubordinate and failed to follow
policy and law and acted without regard to the standards of
conduct and procedures this District has attempted to make all
staff and certified personnel follow.
1 Halford has now been replaced as Superintendent of Education by Lynn Wright, the high school
principal whom Halford also fired. Wright's firing is the subject of a pending appeal in this court, Lowndes
County School District vs. Joseph Lynn Wright, Cause No. 20l2-TS-008S2.
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Letter of Termination dated May 17,2010. [R: 56).
Upon receiving the letter of termination, Hester requested a hearing before the school board.
[R: 48-49). The school board appointed a hearing officer, Perry Sansing, to conduct the hearing.
At the hearing,' Halford testified that he initiated Hester's firing based upon information he had
received from Michael Gibson, the president of a baseball booster club formed after Coach Hester
had been removed as New Hope baseball coach. Gibson told Halford that a finance company, Wells
Fargo, had financed the lease ofa mower to Hesterand/or the old booster club for the use of the New
Hope baseball team. Wells Fargo had told the new booster club that a payment was due on the
mower. Superintendent Halford then called an unidentified Wells Fargo representative, who told
Halford that the school district was "who they held responsible ... for the money" due under the lease
contract. [R:85). Regarding whether or not the school district actually had any liability on the lease,
Halford testified as follows:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
And you would agree with me, wouldn't you, that if I enter into a contract
with the school district that I'm on legal notice that the board of trustees has
to approve that contract, wouldn't you?
Yes, sir.
SO Wells Fargo and whoever else may have entered into a contract signed by
Stacy Hester would have been on notice that that contract was good only
insofar as it was approved by the board of trustees, correct?
I would certainly hope they would, yes, sir.
SO if the board of trustees didn't approve the contract, it was not a contract
for the school district; is that correct?
That has been debated many times by many lawyers, and I can get four
different answers every time I'll talk to someone. I'll talk to you (Attorney
McAfferty) when this is over and maybe I'll get a fifth one.
Well, let's put it this way: There's been no legal determination by any court
of law that that contract was binding under the Lowndes County School
District, has it?
No, sir.
2 A detailed summary of the evidence at the hearing and "uncontested facts" is found in the hearing
officer's report, [R: 18-37], and is found in the Record Excerpts, Tab 2.
30868.1
2
Q:
A:
When I said, "that contract," I'm referring to the lease agreement - the master
lease agreement that's in evidence.
Yes, sir.
[R: 99-100].
At the hearing, Halford also testified that he had been told by Paula Gregory, an officer of
the old booster club, that the mower had been used for maintaining the New Hope baseball field, but
the mower was actually owned by Hester, who intended to take the mower with him when he
completed his duties as baseball coach, and Hester also intended to "continue to make the lease
payments on his own." [R: 47, 101-103]. A letter, which then-booster club treasurer Gregory wrote
Halford shortly before the end of Hester' s baseball coach's contract in 2007, was introduced as an
exhibit. This letter reads:
To Whom It May Concern,
The mower that has been used by Coach Stacy Hester for grooming of the New Hope
baseball field is leased to him by Wells Fargo Financial. This mower is owned
wholly and fully by Stacy Hester and is registered in his name alone. This mower is
on a lease by use basis and while the Diamond Club once in the part reimbursed
Coach Hester for its use on March 6, 2009 during that time it was solely being used
for the maintenance of the Trojans baseball field and not being used on any other
projects. Once Coach Hester's contract is up on June 30, 2009, let it be known that
the mower will be going with Coach Hester and he will continue to make the lease
payments on his own. If you have any other questions in regards to the mower then
please do not hesitate to ask.
Thank you,
Paula Gregory
[R: 47].
Gibson, the president of the newly-formed booster club, testified that, "We was told that the
mower was leased to the ex -booster club, which was at that time was the New Hope Diamond Club.
The mower was owned by Stacy Hester, and we just leased the mower from him." [R: 72].
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According to Gibson, the mower was "received back to the school, and was transferred back over
to the booster club," and the booster club then "made our first payment through the club name." [R:
74].
Actually, the call from the newly-formed booster club was not Halford's first knowledge of
Hester's obtaining a mower for the use of the New Hope baseball team. Hester had actually
discussed the matter with Halford, around the time of the lease in 2007:
Q:
A:
So you had some inkling about this back in 2007?
I was at the -- at New Hope High School, and I don't know the time frame of
all that. I know baseball had not started. And Coach Hester walked into the
commons area. And when he walked in, it just hit me. And I asked, I said,
"Coach can I ask you a question real quick?" I said, "Can you tell me
anything about a mower?"
And he said, "Yeah. The booster club is buying a mower." I said, "No
money through the school?" And he said, "No." And I left it there because
I did not feel if it was booster club money that I had the obligation to worry
about it.
[R: 101].
Halford knew that in the past, the New Hope booster club and Hester had made purchases
for the baseball team without using school district money. Halford knew the purchases had been
made "through baseball and the school did not pay it," and that "Coach Hester took care of
[purchases] some kind of way." [R: 90].
Hester's attorney asked Superintendent Halford to provide him any specific "policies" that
the purchase of the lawnmower had violated. [R: 108, 110]. Halford stipulated that he never
provided any such policies, [R: 11 0-111, and none were introduced at the hearing.
The notice of termination alleges that Hester had "fraudulently" listed the school's federal
tax exempt number on the lease contract. [R:134, Notice of Charge]. However, there was no
testimony as to who listed the school's federal tax exempt identification number on the lease
30868.1
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contract. Halford testified that "one of two gentlemen" was responsible for listing the tax exempt
number on the contract, [R: 88-89], but never identified who these "gentlemen" were. There was
no testimony as to how putting the federal tax exempt identification number on the lease contract
for a mower for use of the school baseball team was "fraudulent." Certainly, neither of the two
booster club members who testified at the hearing gave any specific evidence about any misconduct
by Hester. Upon questioning by the District's attorney, new booster club member Gibson testified:
Q:
A:
As concerns what you received since April in the way of documentation on
this lease agreement and the purchase of the lawnmower, do you know of
anything personally Mr. Hester or may not have done wrong?
No.
[R: 76].
Similarly, new booster club vice president Brian Hollis, [R:77], testified:
Q:
A:
Do you have any personal knowledge of any wrongdoing Mr. Hester mayor
may not have been involved in concerning the purchase of the Fairway
mower?
No. I wasn't. No.
[R: 80].
The only persons who had any actual knowledge about the circumstances of the lease were
Hester and then-Principal Lynn Wright. [R: 36]. Neither of them testified at the hearing.'
4
3 While Mr. Wright did not testifY, his affidavit, as well as a letter he wrote concerning the
circumstances of the lease of the mower, were received into evidence at his termination hearing. See
Lowndes County School District vs. Joseph Lynn Wright, Cause No. 2012-TS-00852, now on appeal before
this Court. The letter is contained at [R:238-239] in the record ofthat appeal, and the affidavit is contained
at [R: 166-170]. Wright's letter states that Hester told him that the district could not purchase the mower for
several reasons, including that it was "not budgeted." Accordingly, the mower was not purchased by the
school. It was leased by New Hope Baseball/Stacy Hester. [R:238, Cause No. 20l2-TS-00852].
This Court is hereby requested to take judicial notice of Mr. Wright's affidavit and letter received into
evidence at Wright's school board hearing, which is contained in the record in Cause No. 2012-TS-00852.
The Court may appropriately take judicial notice of this affidavit and letter, pursuant to Miss. R. Evid. 201,
since the record in another case before this Court is a document "whose accuracy cannot reasonably be
30868.1
5
Based on the evidence received at the hearing before Hearing Officer Sansing, which was
entirely hearsay, the school board followed Halford's recommendation to fire Hester, [R: 137, 149150), and the Lowndes County Chancery Court affirmed. [R: 204-210). A notice of appeal was
timely filed. [R: 3-4).
STANDARD OF REVIEW
Mississippi law provides that principals and other licensed employees are employed by
school districts for a specified term of up to three (3) years. Miss. Code Ann. § § 37-9-24; 37-9-25.
During this contract term of employment, employees can be dismissed only "for incompetence,
neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause."
Miss. Code Ann. § 37-9-59. Upon being so dismissed, the "employee shall be notified of the charges
against him and he shaH be advised that he is entitled to a public hearing upon said charges." Id
The hearing is held either "before the [school) board or before a hearing officer appointed for such
purpose." Miss. Code Ann. § 37-9-111(1).
If an employee is "aggrieved by the final decision by the school board," he is entitled to
"judicial review," Miss. Code Ann. § 37-9-113(1), by the chancery court, Miss. Code Ann. § 37-9113(2), which determines whether the termination decision is "not supported by any substantial
evidence" or is "arbitrary or capricious." Miss. Code Ann. § 37-9-113(3).
According to Spradlin v. Ed a/Trustees a/Pascagoula Municipal Separate School Dist., 515
So.2d 893 (Miss. 1987), the Supreme Court must review the entire record "to determine if the
decision was unlawful because it was not supported by any substantial evidence or was arbitrary or
questioned." Miss. R. Evid. 201(b)(2).
4 Hester appeared before the Board and made a statement. [R: 137). However, this statement is not
contained in the record.
30868.1
6
capricious." The hearing officer who heard the evidence did not make the termination decision: thus,
the deference accorded when a hearing officer has "observed the witnesses" is not appropriate. See
Universal Camera Corp. v. NL.R.B., 340 U.S. 474,496 (1951).
SUMMARY OF THE ARGUMENT
This case is much like Noxubee County Bd. ofEduc. v. Givens, 481 So. 2d 816 (Miss. 1985),
where this Court reversed a decision of a superintendent and school board to terminate a long-term
teacher as being "arbitrary and capricious" and "without substantial evidence." The Court stated:
While we frequently give great deference to the decisions of school administrators
in matters such as this, they do not have carte blanche authority to do as they please.
Where, as here, a school board has acted in a manner which is arbitrary and
capricious and where its actions are not supported by substantial evidence, the
chancery court and ultimately this Court have the responsibility to intervene.
Madison County Board ofEducation v. Miles, 252 Miss. 711, 173 So. 2d 425 (1965).
481 So. 2dat819 -20.
The Givens court noted that the only evidence against Givens was the superintendent's
testimony about what he had been told about plaintiffs performance, and this hearsay evidence was
not "substantial evidence." Here, the record is similar. The superintendent's notice claims "fraud"
in connection with the listing of the school's federal tax exempt identification number on the lease
contract to obtain a mower for the use of the New Hope baseball team. There is no evidence,
however, as to who was responsible for the number being on the lease contract. There is also no
evidence as to how putting the District's federal tax exempt identification number on a lease for a
mower being obtained for the benefit of the District's New Hope baseball team was fraud.
The only other allegation is that purchase procedures were"improper." However, there is no
specific warning of what was "improper" about a booster club or a coach purchasing a mower for
the use of the baseball team. The evidence was overwhelming that Halford knew that in the past,
30868.1
7
the booster club and coach had made purchases for the benefit of the baseball team and there had
never been any warning that such purchases are inappropriate.
ARGUMENT
THE SUPERINTENDENT DID NOT PROVE "GOOD CAUSE" TO FIRE
STACY HESTER FROM HIS EMPLOYMENT CONTRACT AS AN
ELEMENTARY SCHOOL TEACHER.
"Stacy Hester was as good an employee, as/ar as classroom, that I've ever worked/or."
[R:98, Testimony of Superintendent Mike Halford].
Miss. Code Ann. § 37-9-59 demonstrates that serious misdeeds are necessary to warrant
firing a public school employee during the term of his employment: "For incompetence, neglect of
duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause the
superintendent of schools may dismiss or suspend any licensed employee in any school district."
Miss. Code Ann. § 37-9-59.
Here, there is no claim that Hester committed any of the specific termination offenses listed
in Miss. Code Ann. § 37-9-59. Rather, this firing is based on the claim of "other good cause." The
term "other good cause," however, does not mean any ground that a superintendent should wish to
use, nor does it refer to a simple act of negligence. Rather, the term "other good cause" means
conduct of such a serious nature as to be equivalent to the specific causes (incompetence, neglect of
duty, immoral conduct, intemperance, brutal treatment of a pupil), that are specifically listed in the
statute. Madison County Bd. oiEd. v. Miles, 173 So.2d 425, 427 (Miss. 1965).
The legislature intends that employees who have an existing contract to teach in the public
schools for a term can be removed only for "serious causes," such that they have a sense of job
security. Miles, 173 So.2d at 427. The burden to prove such serious cause exists is upon the
superintendent, Mississippi Employment Sec. Com'n v. Philadelphia Mun. Separate School Dist.,
30868.1
8
437 So.2d 388, 393 (Miss. 1983). The superintendent must demonstrate "wrongdoing." Byrd v.
Greene County School Dist., 633 So.2d 1018, 1023 (Miss. 1994). This wrongdoing must be based
upon either a "valid educational reason or noncompliance with school district personnel policies."
Miss. Code Ann. § 37-9-111(5).
Moreover, "hearsay evidence, ... shall not be the sole basis for the determination offacts by
the board or hearing officer." Miss. Code Ann. § 37-9-111(6).
The termination notice claims that the "district's tax exempt status was used in a fraudulent
manner." [R: 56]. The record, however, contains no evidence, not even hearsay, as to who put the
federal tax exempt number on the lease contract [R: 89]. Halford testified that "one of two people"
were responsible for the federal tax exempt number being on the lease contract. [R: 88-89]. He
never identified who these two persons were. He never claimed that Hester put the federal tax
exempt identification number on the lease contract.
The notice of charge claims that putting the District's tax exempt identification number on
a lease of equipment obtained for the District's benefit is "fraudulent." [R: 134]. A charge of
fraudulent conduct requires proof by "clear and convincing evidence." McGary v. Allstate Ins. Co.,
527 So.2d 632, 635 (Miss. 1988). Fraud is never presumed and must always be proved by "clear and
convincing" evidence. Harrison v. McMillan, 828 So.2d 756, 767 (Miss. 2002).
Indeed, it is impossible to even imagine how the use of a school district's federal tax exempt
identification number on a lease of equipment for the benefit of the school could possibly defraud
anyone. The transaction involved here was not any transaction that would be subject to federal
income tax. Celtainly, neither the school district, Hester, nor the booster club would owe any
30868.1
9
income tax simply because they leased a mower. S
Besides the factually baseless claim that putting the District's federal tax exempt
identification number on the lease contract for the benefit of the District's New Hope school was
fraudulent, the notice also claims that "property was obtained without following proper procedure."
[R: 56]. However, the record does not disclose what "proper procedure" was not followed. Halford
refused Hester's counsel's request to provide a copy of the procedures that were allegedly violated.
[R: 48-49,108,110]. Without some proof of what specific policies were violated, any claim that
Hester's firing was justified by a violation of "policies" is fundamentally unfair. Any procedure
"which forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the first essential of
due process oflaw." Connally v. General Construction Co., 269 U.S. 385, 391 (1926). Because
Halford would not specify what procedures were violated, and yet fired Hester for violating
procedures, the firing was fundamentally unfair.
The notice of termination also charges insubordination. Insubordination means:
A "constant or continuing: intentional refusal to obey a direct or implied order,
reasonable in nature, and given by and with proper authority."
Sims v. Board a/Trustees, Holly Springs Municipal Separate School District, 414 So.2d 431, 435
S The only tax that could be applicable in this case would not be income tax, but state sales tax.
School districts are not subject to state sales tax. Miss. Code Ann. § 27-65-105(a). This exemption applies
whenever a sale of property is "used for the ordinary operation of a school." Miss. Code Ann. § 27-65-103.
Whether or not a school's baseball coach and the school booster club can purchase a mower for the use of
a school district's baseball team without paying sales tax, is not addressed by any Mississippi case. For
authority from other jurisdictions as to whether a non-profit booster club is entitled to the sales tax exemption
authorized for public schools, see Youth Tennis Foundation a/Utah v. Tax Commission o/the State a/Utah,
554 P.2d 220 (Utah 1976) (Youth Tennis Foundation teaching tennis to students was exempt from sales tax
under Utah law because of its charitable nature.); Annot., "Exemption 0/ Charitable or Educational
OrganizationJrom Sales or Use Tax," 69 A.L.R. 5th 477; "MarkJ. Cowan, Non Profits and the Sales and
Use Tax," 9 FLTXR 1077 (Florida Tax Review 2010).
30868.1
10
(Miss. 1982) (emphasis added). A single improper lease cannot be "insubordination."
While the notice of charge does not so state, [R: 134], the school board minutes indicate that
Halford fired Hester because he had decided 'he did not want booster clubs nor coaches to purchase
property for the use of the baseball team. If this is the reason for the firing, it is not developed in the
record. Also, such a school board policy, ifit exists, conflicts with the reasoning of Singley v. Smith,
844 So.2d 448 (Miss. 2003). In Singley, the Mississippi Court of Appeals granted tort immunity to
a coach, who was carrying out fund-raising activities on behalf of a private booster club, when the
coach allegedly negligently injured the plaintiff. In holding the coach was immune from damages
when he was working for a private school booster club, the Court of Appeals pointedly observed that
the, "whole function of [booster clubs] was in support of the school," 844 So.2d at 454. The Court
of Appeals thus disapproved of any procedure which might "result in a dramatic curtailment or halt
to many extracurricular activities within our public schools." 844 So.2d at 455.
Similarly, this Court should not approve any firing which penalizes a coach for putting his
own money at risk, in order to purchase a lawnmower through the school booster club, for the use
of the school in maintaining the school's athletic field. Vague evidence concerning whether booster
clubs should be making purchases for the benefit of public schools should not suffice to justifY the
firing of a person who is only making an honest effort to assist the school baseball team through its
booster club.
This is particularly unfair, since Halford knew that such purchases were being made. Halford
testified that he had known about previous purchases for the baseball team which Hester "took care
of some kind of way." [R: 90]. Indeed, when Halford discussed this particular lease with Hester in
2007, he told Hester that it was not his "obligation" to worry about it, since the money was not
coming from school funds. [R:IOO-IOI].
30868.1
11
At the hearing, Halford admitted that he knew the district was not out any money because
of the mower, [R: 94-95]; admitted the district never made any payments on the mower, [R: 94-95];
admitted that credible witnesses had told him that the mower was being used for maintaining school
grounds, [R:97]; and admitted that the mower had been used to cut the grass on the athletic field
beginning in 2008. [R: 98]. Punishing Hester for providing such a benefit, and thereby rendering
a benefit to the taxpayers, is arbitrary and capricious, since it is "not done according to reason."
McGowan v. Mississippi State Oil & Gas Bd, 604 So.2d 312, 322 (Miss. 1992).
In any event, the lease, which occurred when Hester was a New Hope High School baseball
coach, was unrelated to Hester's subsequent contract of employment as an elementary teacher, which
is the position from which he was terminated. Everett v. Board of Trustees of the Meridian
Municipal Separate School Dist., 492 So.2d 277, 282 (Miss. 1986) establishes that a licensed
Mississippi employee cannot be fired from an existing contract because of something he did under
a previous contract. In Everett, a school principal was fired because of misconduct which had
occurred both under a previous contract and under an existing contract. This Court noted that, "the
chancery court recognized that there was a problem with the introduction of evidence outside the
time period of the contract," but upheld the firing because there was "substantial evidence within the
time period of the contract to justify Dr. Everett's dismissal." 492 So.2d at 282. Since Everett
upheld the firing, based only upon wrongdoing which had occurred within the term of the relevant
contract, a firing should not be upheld where it is based only on conduct under a previous contract.
Where this Court has upheld firings oflicensed school employees during the term of their
contracts, there has always been proof of repeated wrongdoing, and the employees have been duly
warned that their conduct was inappropriate. For example, Board a/Trustees ofthe Jackson Public
School District v. Knox, 688 So.2d 778 (Miss. 1997) involved a principal who, on four different
30868.1
12
occasions, had been warned about engaging in a religious practice, which could subject the school
district to a lawsuit, and had disregarded those warnings .. This Court emphasized that in Knox, the
principal's conduct was likely to result in "funds spent by a school district in responding to legal
challenges" when the money "could be spent much more productively in the education of students."
688 So.2d at 781. Knox again indicates the impropriety of this discharge, since Hester was acquiring
a lawnmower to benefit the school district, thus saving the district money which could be spent
"more productively in the education of students." 688 So.2d at 781.
Merchant v. Board of Trustees ofPearl Municipal Separate School District, 492 So. 2d 959
(Miss. 1986) involved an employee who, on "at least eleven occasions" had "failed to follow the
published purchasing policy and procedure of the district." After being issued a written reprimand,
the employee had again engaged in four additional unauthorized purchases. In the face of repeated
refusals to follow school policy and repeated warnings, this Court upheld a holding of dismissal on
grounds of insubordination.
Here, the evidence discloses that Superintendent Halford knew about Hester and the booster
club's practice of making purchases for the school district, but he had never given any warnings
against the practice, and apparently was content to have the school benefit from purchases the
booster club made, until he needed an excuse to fire Hester. This case is an unfortunate example of
the old adage that, "No good deed goes unpunished."
CONCLUSION
.,
Hester's firing as an elementary teacher was not based upon substantial evidence, and is
arbitrary and capricious.
30868.1
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RESPECTFULLY SUBMITTED, this the 6th day of December, 2012.
Respectfully submitted,
WAIDE AND ASSOCIATES, P.A.
BY:
30868.1
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IIII 11&:">.,1
WAID",
~
'SSISSIPPI BAR NUMBE~
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71
WAIDE AND ASSOCIATES, P.A.
ATTORNEYS AT LAW
POST OFFICE BOX 1357
TUPELO, MISSISSIPPI 38802
TELEPHONE: 662-842-7324
FACSIMILE: 662-842-8056
EMAIL: [email protected]
Attorneys for Appellant
CERTIFICATE OF SERVICE
I, Jim Waide, attorney for Appellant, do hereby certify that I have this day served via United
States mail, postage prepaid, a true and correct copy ofthe above and foregoing to the following:
Jeffrey C. Smith, Esq.
Sims & Sims
P.O. Box 648
Columbus, MS 39703-0648
Honorable Dorothy W. Colom
Lowndes County Chancery Court
POBox 708
Columbus, MS 39703-0708
THIS the 6th day of December, 2012.
~oJ
30868.1
15
CERTIFICATE OF FILING
This will certify that undersigned counsel for Appellant, pursuant to Miss. R. App. P. 2S(a)
and 32(m), has this day filed the Brief of Appellant by mailing the original and three (3) copies of
said document, along with an electronically formatted copy thereof in Adobe Portable Document
Format (PDF) on CD-ROM, via prepaid Federal Express next-day delivery, to the following:
Kathy Gillis, Clerk
Court of Appeals of the State of Mississippi
450 High Street
Jackson,MS 39201
THIS, the 6th day of December, 2012.
nMW~~
30868.1
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