Weeks Complaint MEC

8/20/2019 Weeks Complaint MEC

1/29

CIVIL SERVICE COMMISSION

BILOXI, MISSISSIPPI

RONALD WEEKS

APPELLANT

VERSUS

CITY OF BILOXI

APPELLEE

FINDINGS OF FACT AND CONCLUSIONS OF L W

Before the Biloxi Civil Service Commission (hereinafter the Commission ) is the appeal

o Ronald Weeks (hereinafter WEEKS ) appealing his termination from employment with the City

o

Biloxi (hereinafter the COB ). The appeal hearing before the Commission began on March

27

2013, and upon agreement o the parties and due

to

the unavailability

o

witnesses,

was

continued

and reconvened on June 24,2013, June 25, 2013, and June 26, 2013. Commissioners Handler,

Moss, Ryan, and Smith heard the appeal. Upon the conclusion o evidence on June 26,2013, the

Commission requested that the parties submit proposed Findings ofFaet and Conclusions o Law

and the hearing was held open pending the announcement

o

this decision.

Now

having considered

the evidence and testimony presented by the parties, the Commission finds that the termination

o

WEEKS should be upheld and issues the following Findings o Fact and Conclusions o Law.

FINDINGS OF FACT

1. WEEKS was employed as a police officer by the COB from Apri129, 1991, until hewas

terminated on October 19,2007, effective October 31,2007. (COB Exhibit 0104). At the time o

his termination, WEEKS was a Patrol Officer working patrol on the 3:00 p.m. - 11 :00 p.m. shift.

2. On June 6,2007, WEEKS reported

to

work at the Biloxi Departmento Police. WEEKS

testified that immediately after shift briefing, at or about 3:00 p.m., he requested permission from

his supervisors,

Lt.

Andrew Balius and Sgt. Michael Brumley, to go to Biloxi Regional Medical

Case: 24CI2:13-cv-00125 Document #: 1-1 Filed: 10/02/2013 Page 1 of 29


2/29

8.

Center (hereinafter BRMC ) to check on a friend, Cheryl Rodolfich,

who

apparently had attempted

suicide. (WEEKS Test.).

WEEKS was

given permission to

go to

BRMC by Sgt. Brumley

and

he

went

to

check on Mrs. Rodolfich. (Brumley Test.). t bears noting, that

at

the time Mrs. Rodolfich

was married to a Biloxi Firefighter and was the subjecto an ongoing criminal investigation into her

alleged stabbing o her husband. The Commission further notes that there is no evidence o any

intimate relationship between WEEKS and Mrs. Rodolfich, and it appears from the evidence before

the Commission hat their relationship was a platonic friendship.

3.

Sgt. Brumley testified that it was his understanding that WEEKS would be at BRMC for

just a short while

and

then he would get 10_8

1n

or back in service. ( Q.). Sgt Brumley specifically

testified that WEEKS did not have permission to stay at BRMC as long as he wanted. (kl.). As the

afternoon progressed a number

o

calls were coming in to WEEKS assigned patrol area and WEEKS

was needed back in service.


3/29

5. Once back at the station, Sgt. Brumley met with

WEEKS

in the Sergeants' office to

discuss the length

o

time WEEKS had been at BRMC and

to

determine

i

WEEKS

was

emotionally

able to go back in service for the remainder o his shift or ifhe needed to go home for the day. Id.).

Sgt. Brumley testified that during this meeting, he observed WEEKS go through what Sgt. Brumley

described as various mood swings. (Id.). Sgt. Brumley testified that at times during the conversation

WEEKS was aggressive and defiant both in body posture

an

tone, and that at other times he was

emotional Le., crying) and apologetic. (14.). Sgt. Brumley

also

testified that WEEKS

went on

an

"emotional tirade" regarding another officer's characterization of Mrs. Rudolfich as "the crazy lady

on Howard Avenue," and according to Sgt. Brumley, WEEKS even blamed the police deparbnent

and

one o the investigations specifically for pushing Mrs. Rodolfich

to

commit suicide. 14.

and

COB

Exhibit 0003-0005). Sgt. Brumley testified that WEEKS' emotional state during the meeting

in the Sergeants' office was significant to him because police officers are trained to keep their

emotions under control. (Brumley Test.). Sgt. Brumley stated that he had never experienced the

emotional swings displayed by

WEEKS

with

any

other officer

and

felt that the situation had rendered

WEEKS emotionally compromised

and

unable

to

finish his shift. (Id.).

6. On the basis o the encounterin the Sergeants' office, Sgt. Brumley testified that he asked

WEEKS i he needed to take the rest o the day off. ag. and

COB

Exhibit 0003-005). WEEKS

agreed that due to his emotional state

at

the time it was best ifhe took the rest o the day off,

and

told

Sgt. Brumley that he would put ill for leave time. 14.).

7. Before ending the conversation with Sgt. Brumley and leaving to go home

for the day,

WEEKS made a comment to

Sgt.

Brumley about he and his brother having "white knight syndrome"

and

always wanted to help people.

COB

Exhibit 0003-0005). Sgt. Brumley then sent

WEEKS

3



4/29

home for the day and cautioned him against returning to BRMC in unifonn. (Id.). Sgt. Brumley

then briefed

Lt

Balius on the encounter with WEEKS in the ergeanfs office, and

Lt.

Balius

reported the incident up the chain

of

command to Major Britt. (Brumley Test. and COB Exhibit

0003-005). Sgt. Brumley then wrote a narrative

of

the incident at BRMC and his encounter with

WEEKS in the Sergeant's office. (COB Exhibit 0003-0005). Sgt. Brumley testified that the

narrative was necessary to document what he considered "abnormal behavior

by

an officer

n

displayed

by

WEEKS. (Brumley Test.).

8. WEEKS admitted that

he

was emotional regarding the incident with Mrs. Rodolfich and

agreed that

t

was best that he not return to duty that day. (WEEKS Test.). WEEKS further admitted

that he had no legal right or duty to discuss Mrs. Rodlfich's medical or psychological health and/or

treatment with the medical staff at BRMC.

ag. .

9.

Assistant Chief

of

Police Rodney McGilvary testified that WEEKS behavior at BRMC

and during his meeting with Sgt. Brumley in the Sergeants' office was brought to his attention on

the afternoon

of

June 6, 2007,

by

Major Charles Britt. (McGilvary Test.). Asst. ChiefMcGilvary

testified that he considered the matter serious and found it concerning that an officer would be

discussing the mental health

of

a patient to whom he was not related, while on duty and in uniform.

ag. .

Asst. Chief McGilvary further testified that

he

was personally familiar with WEEKS'

employment history, and McGilvary was concerned that WEEKS was again involving himselfin a

situation as a police officer that he had no business involving himself in,

in

other words, displaying

poor judgment. (Id.).

10. Asst. Chief McGilvary infonned Bruce Dunagan, the then Director of the Biloxi

Department

of

Police,

of

the situation involving WEEKS, and both Director Dunagan and Asst.

4



5/29

Chief McGilvary met with Sgt. Brumley on the evening of June 6, 2007 to discuss the matter.

(McGilvary Test. and Dunagan Test.). Asst. Chief McGilvary testified that as a result

of

that

meeting, he directed

Lt.

Balius to contact WEEKS and advised him not to return to work on the

following Monday, the next day ofhis work schedule, without a note from his doctor saying that he

could return to work. (McGilvaryTest.). Asst. Chief McGilvary further testified that the request for

a doctor's note was not an order for a medical examination or fitness for duty evaluation, and that

he routinely made such a request ofofficers

CIsD

11. On June

7,

2007, Asst. ChiefMcGilvary and Director Dunagan reviewed Sgt. Brumely's

narrative report (COB Exhibit 0003-0005)

of

the June 6, 2007 incident at BRMC and in the

Sergeant's office. (McGilvary Test. and Dunagan Test.). Director Dunagan testified that he

considered WEEKS' behavior, particularly the behaivior displayed

n

Sgt. Brumely's office, toward

a superior officer, to be unusual, a cause for concern, and made

he

and Asst. Chief McGilvary

question whether a fitness for duty exam may

e

necessary. (Dunagan Test.). Asst. Chief

McGilvary and Director Dunagan then did what they both testified is standard procedure when

reason to consider a fitness for duty exam arises, which is to review the entire personnel file of the

officer. (McGilvary Test. and Dunagan Test.). Their review

of

WEEKS , personnel file revealed

multiple prior incidents in which WEEKS displayed a pattern

of

poor judgment as a police officer,

specifically with regards to relationships with female civilians

ag.).

WEEKS personnel file included

documentation of the following incidents:

1) A November 1996 incident in which WEEKS, while off duty, administered an

intoxilizer to Ms. Lauren Schwemley, who

he

had been socializing with at a local

bar. As a result of that incident WEEKS received verbal counseling from the

department. (COB Exhibit 0084-93);

5



6/29

2) A December 1996 incident in which WEEKS was accused of calling and harassing

Ms. Rachel Jordan, who he had met while on the job, about dating her after she had

explained

to

him that she was not interested. As a result of that incident WEEKS

was issued a

no

contact order by the department.

COB

Exhibit 0080-83);

3)

A February

1998

incident in which

WEEKS was

accused

of

making

an

inappropriate

comment ("do I need to put

you

over

my

knee

and

spank you")

to

Ms. Rachel

Carson

when responding

to

a trafiic accident. As a result of that incident,

WEEKS was

suspended

for

five

5)

days, a disciplinary action upheld by this Commission

COB

Exhibit 0043-64);

4) n April

1998

incident in which WEEKS was accused ofdenying an arrestee, Ms.

Belinda Balius,

an OR

(recognizance) bond after arresting her

for

driving

on

a

suspended license, even though she met the qualifications for the bond. WEEKS

was

further accused ofdriving

by Ms.

Balius' home the following

day an

inquiring ofher

feelings toward

him. As

a result of that incident,

WEEKS

received a

no contact

order

from

Director Moffett and was demoted

from

Sergeant to Patrol, a disciplinary

action which was again upheld by this Commission.

COB

Exhibits

0022-42 and

0074-79);

and most recently

5)

An

April 2007 incident in which

WEEKS

was again accused

of

inappropriate

conduct relating to his pursuit of a relationship with a woman, Ms. Julie Parker,

whom he met when responding

to

a call that Ms. Parker's wallet had been stolen at

a local grocery store. As a result of that incident, WEEKS

was

for the third time

issued no contact order.

COB

Exhibit 006-0021).

12. Further, a review of

WEEKS

' personnel file revealed a prior

fitness for

duty evaluation

report by a psychologist, Dr. Thomas

Yamel1

of The Counseling Center ofBiloxi, that stated

that

WEEKS had moved from a low risk for employment problems at his hiring

to

a moderate risk and

that without psychological intervention, it

was

predicted, by

Dr.

Yamell, that

WEEKS would

become a high risk. (McGilvary Test., Dunagan Test., and COB Exhibit 0094-95). Both Director

Dunagan

and

Asst. Chief McGilvary testified that

WEEKS

behavior on June

6,

2007, coupled with

his prior history ofpoor judgment relating

to

women while on

duty, and

the potential liability

the

City could

face

for allowing an officer with WEEKS' history

to

continue his employment with

the

6



7/29

department without first being cleared for duty by appropriately qualified medical personnel,

was

at

best unwise, and

thus

the situation constituted reasonable grounds to send

WEEKS for

a

fitness

for

duty

exam

pursuant

t

Civil Service Rule

and

Regulation Section 5.l2(b) (hereinafter "Section

5.12(b )"). (McGilvaryTest. and Dunagan Test.). Further, both

Asst.

ChiefMcGilvaryand Director

Dunagan testified that the decision

to

request a fitness for duty evaluation had nothing

to

do

with

WEEKS' use of the tenn "white knight syndrome."

@. .

13.

Once Director Dunagan determined that a fitness

for

duty evaluation for

WEEKS should

be requested,

he

instructed

Asst.

Chief McGilvary to contact Jill Pol in Human Resource

to

apprise

her

of

the situation

and

to

find

out how

to

have a fitness for duty evaluation authorized.

ag. .

Mrs.

Pol advised Asst. Chief McGilvary that only Mayor Holloway could authorize a fitness

for

duty

evaluationof an employee pursuant

to

Section 5. 12 b). (Dunagan Test. and Pol Test.).

14. Both Director Dunagan and Jill Pol testified that they met with Mayor Holloway within

days of

J1 me 6,

2007

and

reviewed the situation

and

WEEKS' entire personnel file with

Mayor

Holloway.

@.).

Both Director Dunagan

and

Jill Pol testified that Mayor Holloway authorized a

fitness for

duty

evaluation of WEEKS, pursuant

to

Section 5.12(b), and delegated the responsibility

to

arrange the fitness for duty exam

to

Mrs.

Pol

and

to

advise WEEKS

to

Director Dunagan. 04.).

Mrs. Pol

then

located a psychologist, Julie

D.

Teter, Psy.D.,

to

perform the

exam.

(Pol Test.).

Mrs.

Pol testified that she used

Dr.

Teter because

Dr.

Teter had been used in the past

for

fitness

for duty

exams. QQ } Mayor Holloway testified that it was not unusual for him

to

give an order approving

personnel action

and

then

to

delegate the authority

to

implement the order to the Human Resources

or

to

one of his department directors. (Holloway Test.).

7



8/29

15. On June 11,2007, Director Dunagan had a memo hand delivered to WEEKS informing

him to report to a fitness for duty examination with Julie D. Teter, Psy.D. on June 12,2007. (COB

Exhibit 0096). The Commission finds that Mayor Holloway authorized the fitness for duty

evaluation prior to Director Dunagan's memo of June 11, 2007. There was no evidence presented

to the contrary, and no evidence that such authorization is required to be in writing per the Civil

Service Commission Rules and Regulations.

16. On June 12,2007, WEEKS was evaluated

by

Dr. Julie Teater, Psy.D., a psychologist

practicing with Consulting Psychological Resources in Biloxi, Mississippi. (COB Exhibit 0109

112). Dr. Teater conducted a clinical interview and administered psychological tests to WEEKS.

Dr. Teater's findings include the following:

The recent incident in April 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 patient's privacy regarding the status

of

her

health. Both of the incidents suggest the abuse ofhis position

of

power as a police

officer Mr. Weeks does appear to have a continuing problem with his judgment.

t

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

OR

Duty. Due to the

lengthy historyof repeated poor judgment, it is felt that further efforts to correct his

problem are likely to be ineffective.

(COB Exhibit 0109-112 at p. 0111 emphasis in original)).

17.

On

June 19, 2007, WEEKS was advised via a second memo from Director Dunagan that

Dr. Teter found him unfit for duty. (COB Exhibit 0097). The memo further advised WEEKS to

provide

ny

relevant psychological andlor psychiatric records that he would like considered to Dr.

Teter by July 12,2007.

ag. .

8



9/29

18.

On

July 10,2007,

WEEKS

submitted to Director Dunagan

and

Jill Pol a letter from

Dr.

W.R.

Fellows, M.D., an internist, stating that WEEKS had been under his care for medical problems,

and that "I have noted nothing in the health o Officer Weeks that would prevent his fulfilling his

duties

as

a Biloxi Police Officer." COB Exhibit 0113).

19.

OnJuly 17, 2007, Dr. Teater issued

an

Addendum to her Report

in

which she concluded

that,

in

light

o Dr.

Fellows' letter, there were no changes

to

her previous opinion. COB Exhibit

0114).

20.

However, because

o

the apparent differing opinions

o

Dr. Teater and

Dr.

Fellows,

Mayor Holloway decided

to

get another opinion

on

the fitness

for

duty

o

WEEKS.

(pol Test.

and

COB Exhibit 0100). n a letter dated August

8,

2007, Mayor Holloway directed

WEEKS to

report

on August 16,2007,

to

Dr. Mark Webb, a psychiatrist practicing at Mississippi Neuropsychiatric

Clinic in Jackson, Mississippi, for a second fitness for duty examination.

COB

Exhibit 0100).

21. On August 16,2007, Dr. Webb conducted a psychiatric evaluation o WEEKS. Based

on that evaluation, Dr. Webb produced a report in which he concluded that WEEKS suffered

from

Dysthymia

and

Dependent Personality Traits, and that he was ultimately not

fit for duty.

Specifically, Dr. Webb opined:

n looking at the long history

in

his personnel file and in talldng 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

o

power.

As

a police officer,

Mr.

Weeks encounters many

women.

A person o power

who

has dependent traits

is quite dangerous. The most glaring example is

in

April o 2007, in which he

responded to a call o a distressed school teacher and within a

week,

he was having

a sexual relationship with her With Mr. Weeks' Dysthymia and Dependent

Personality Traits,

he is

not Fit For Duty. These illnesses in a person

o

significant

power are a very lethal combination which has been borne out n multiple incidences

9



10/29

during

Mr.

Weeks' career

as

a police officer.

(COB Exhibit

1 1 5 ~ 1 9

at p. 0118-19).

22. Director Dunagan testified that once he obtained Dr. Webb's report and opinion that

WEEKS was

unfit for duty, he felt that he had

no

choice but

to

recommend

to

Mayor Holloway that

WEEKS be tenninated. (Dunagan Test.). Director Dunagan testified that his decision to recommend

termination was based solely upon the fact that both a psychiatrist (Dr. Teter) and a psychologist (Dr.

Webb) had provided the opinion that WEEKS was unfit for duty.

ag. .

Further, WEEKS' continued

employment thereafter would place the City and Department o Police at

too

great

o

a risk

o

liability for any potential lawsuit filed as the result

o

WEEKS' future actions. ad.). Director

Dunagan testified that white knight syndrome played no role in his decision to recommend the

termination o WEEKS.

ag. .

Further, while WEEKS has argued that Asst. ChiefMcGilvary and

Sgt. Brumley had political motivations to terminate

him,

WEEKS made no argument and presented

no

evidence that Director Dunagan had any political motivations in recommending termination.

Moreover, the Commission finds that Director Dunagan made the recommendation for termination

to Mayor Holloway, not Asst. Chief McGilvary or Sgt. Brumley, and there has been no credible

evidence presented that Director Dtmagan's motivations for recommending WEEKS' termination

were other than those reasons he testified to, namely the fact that both a psychiatrist

and

a

psychologist had provided the opinion that WEEKS was unfit for duty, and WEEKS' continued

employment thereafter would place the City and Department o Police at too great o a risk o

liability for any potentia11awsuit filed

as

the result

o

WEEKS ' future actions. ad.).

23. On September 11,2007, Director Dunagan had a letter hand-delivered

to

WEEKS in

which he advised WEEKS that based upon the opinions

o

both Dr. Teter and

Dr.

Webb, that

10



11/29

WEEKS was unfit for duty, and pursuant to Section 5.12(b), Director Dunagan would be

recommending termination to Mayor Holloway. (COB Exhibit 0098). The letter further advised

WEEKS that the ultimate decision would be made by Mayor Holloway, and WEEKS could respond

to the reasons given for his recommended termination, both orally and in writing, to Mayor

Holloway in a meeting between WEEKS and Mayor Holloway scheduled for September 19,2007.

ag. .

Further, the letter advised WEEKS that if Mayor Holloway confirmed Director Dunagan s

recommendation for termination, that WEEKS could appeal the termination to the Commission

within ten (10) days

of

the date

of

the letter, pursuantto Miss. Code Ann. § 2 1 ~ 3 1 2 3 . ag.).

24. WEEKS testified that he met with Mayor Holloway on September 25, 2007, and that he

wrote a letter to Mayor Holloway responding to the reasons for the recommended termination, which

was h a n d ~ d e 1 i v e r e d to Mayor Holloway by WEEKS at their meeting. (WEEKS Test. and COB

Exhibit 0153 -154). At the September 25, 2007 meeting, WEEKS requested that Mayor Holloway

delay his decision on the termination so that WEEKS could have additional time to obtain a report

on his fitness for continued duty. (WEEKS Test.). Mayor Holloway agreed, and gave WEEKS until

October 15,2007, to provide any documentation that he wanted considered. (COB Exhibit 0102).

Further, Mayor Holloway allowed WEEKS to remain on administrative leave, with pay, WEEKS

employment status since June 19,2007. (COB Exhibit 0102).

25. On September 17, 2007, WEEKS requested a copyof the reports ofboth Dr. Tater and

Dr. Webb from Jill Pol. (Weeks Exhibit at p. 028). Mayor Holloway, for unknown reasons,

decided not to provide WEEKS with hard copies of the reports, however, he instructed Pol and

Director Dunagan to allow WEEKS the opportunity to read and review the reports and make any

notes he wanted to make. (Po] Test. and Dunagan Test.). On the afternoon

of

October 9,2007,

11



12/29

Director Dunagan made the reports available to WEEKS in Director Dunagan s office. (Dunagan

Test.). WEEKS testified that he was only allowed fifteen (15) minutes to review the reports because

Director Dunagan had another appointment. (WEEKS Test.). However, Director Dunagan testified

that he cleared his calendar in order to allow WEEKS the opportunity to review the reports, pursuant

to the Mayor s directive, and that WEEKS was allowed

as

long

as

he wanted to review the reports.

(Dunagan Test.). Director Dunagan testified that WEEKS spent approximately forty-five 45)

minutes reading the reports and taking notes. @. .

26. On October 11,2007, WEEKS again requested that Mayor Holloway delay his decision

regarding WEEKS employment, and WEEKS requested more time

to

obtain and submit additional

documentation. (COB Exhibit 0104). Mayor Holloway denied WEEKS request, explaining that

WEEKS had been given adequate time, since June 19,2007, to obtain a fitness for duty evaluation

from a mental health professional his choosing. (COB Exhibit 0097 and 0104). n a letter dated

October 19, 2007, Mayor Holloway advised WEEKS that he was terminated, pursuant to Section

5.12(b), based on the fmdings both a psychologist and psychiatrist that WEEKS was unfit for

duty. (COB Exhibit 0104). The1etter further advised that the effective date WEEKS termination

was October 31, 2007.

@.).

Mayor Holloway, Director Dunagan, and

Jill

Pol all testified that

Mayor Holloway made the ultimate decision to terminate WEEKS. (Holloway Test. , DunaganTest.,

and Pol

Test.).

27. The October

19,

20071etter from Mayor Holloway to WEEKS advising ofthe Mayor s

decision

to

terminate WEEKS employment with the City also advised WEEKS that he had ten

10)

days to appeal the decision to the Commission, pursuant

to

Civil Service Rules and Regulation

11.02(a). COB Exhibit 0104). WEEKS timely appealed his termination to the Commission

on

or

about October 25,2007. (Weeks Exhibit A at 001-08).

12



13/29

28. WEEKS then engaged the services

of

Dr. William Gasparrini, Ph.D., a clinical

psychologist practicing with Applied Psychology Center in Biloxi, Mississippi. (WEEKS Test.).

Dr. Gasparrini evaluated WEEKS on February 20, 2008, y clinical interview and the administration

of

various psychological tests. (COB Exhibit 0133-141 and WEEKS Exhibit N). Dr. Gasparrini

produced two

i n e ~ p g e

reports containing his evaluation

of

WEEKS. (COB Exhibits 0133-41 and

0144-52). The parties had been given a deadline

of

Juiy 22, 2008, to submit to the Commission the

exhibits that would be used in the appeal hearing then scheduled for July 29, 2008. The report

referred to as Gasaprrini-2, COB Exhibit 0144-52, was labeled as WEEKS Exhibit N, and it was

submitted to the Commission on July 22,2008,

y

WEEKS' attorney as one

of

WEEKS' exhibits.

When the appeal hearing was continued, at WEEKS request, to October 20, 2008, the parties were

gi ven a deadline ofOctober 13, 2008, to submit any additional exhibits they wanted the Commission

to consider. In response to that October deadline, WEEKS' attorney removed the report known

as

Gasparrini-2, COB Exhibit 0144-53, from his exhibits and replaced it with the report known as

Gasparrini-1, COB Exhibit 0133-41.

29. Although WEEKS claimed that the report numbered COB Exhibit 0144-52 was a draft

report inadvertently placed y WEEKS' attorney into WEEKS' exhibit book filed with the

Commission, the Commission notes that both reports were typed on Applied Psychology Center

letterhead and signed y Dr. Gasparrini. Further, the report numbered COB Exhibit 0144-52 does

not bear a draft stamp or otherwise identify itself as a draft version, and was signed

y

Dr.

Gasparrini and

filed

y counsel for WEEKS with the Commission. The Commission finds that

Counsel for the COB did not act improperly in obtaining the information contained in COB Exhibit

0144-52, and was free to refer

to

the evidence submitted by WEEKS at the hearing of this cause.

13



14/29

Because both

COB

Exhibits

0133-41

and 0144-52

were

submitted

by

counsel for

WEEKS,

inadvertently although

it

may have been, this Commission will consider both reports.

30.

The content

o

the two (2)

Dr.

Gasparrini reports

are

identical until the final

page.

The

final page o the report known

as

Gasparrini-2, COB Exhibit 0144-52 at

p.

0152, contained the

following language that was not contained in the report known

as

Gasparrini-1, COB Exhibit 0133

41:

Confusing the power dynamics

o

his role s a unifonned police officer

on

duty with

his

dating relationships has repeatedly led

to

difficulties

for

him

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.

At present Mr. Weeks is highly motivated to return

to

work for the police

department. He is hopeful that the can win

his

case in court and regain his job. He

may be capable

o

working successfully

as

a police officer i he carefully separates

his work roles from his social life.

(COB

Exhibit 0145-152 at

p.

0152).

31. According

to Dr.

Gasparrini s report(s), there was nothing

in

the psychological test

results suggesting that WEEKS

was

unfit

for

duty s a police officer. (COB Exhibits 0133-0141 at

p. 0140 and 0144-0152 at p. 0151). However, Dr. Gasparrini concluded that dating

women

he met

through work was evidence

o WEEKS

poor judgment, and that

WEEKS

needed assistance

through

therapy in developing strong boundaries

in

this regards, better judgment

and

improved self

control.

(COB

Exhibits

0133-0141

at

p. 0139

and 0144-0152 at

p. 0150).

Dr. Gasparrini found

that

confusing

the

power dynamics

o

WEEKS role

as

a unifonned police officer on duty with his

dating

relationships had repeatedly led

to

difficulties

in

his career, and that

WEEKS

needed

to

maintain a

strict separation between his social life

and

his professional career. (COB Exhibits 0133-0141 atp.

0141

and 0144-0152 at

p.

0152).

Dr.

Gasparrini expressed uncertainty

as

to

whether

WEEKS would

14



15/29

be capable

of

working successfully as a police officer

but he stressed that it would be possible only

if

WEEKS carefully separated his work roles from his socia11ife. (COB Exhibit 0144-0152 at p.

0152). The Commission notes that Dr. Gasparrini evaluated WEEKS

in

February

of

2008,

approximately four (4) months after his temlination. Further; Dr. Gasparrini's report(s) and

opinion(s) were not available

t

Mayor Holloway when making his decision to tenninate WEEKS,

and any finding by the Commission that Dr. Gasparrini's opinion(s) would have altered Mayor

Holloway's decision to tenninate WEEKS would be

pure speculation on the partofthe Commission,

particularly in light of the fact that both parties failed to ask Mayor Holloway this simple question

during the hearing.

32. Unfortunately, Dr. Gasparrini passed away prior to the hearing in this matter, and as a

result, WEEKS was allowed an opportunity to consult another expert to provide testimony at the

hearing. Cmllsel for WEEKS advised the Commission that the additional expert's opinion would

be limited to those generally set forth by Dr. Gasparrini, however, the new expert would be required

to provide his own professional opinions. WEEKS then obtained Stefan Massong, Ph.D

a clinical

and forensic psychologist at Applied Psychology Center in Ocean Springs, Mississippi, to serve as

his expert witness.

33. Dr. Massong conducted two interviews with WEEKS, the first on October 9, 2012, and

the second on January 30, 2013, and produced a report which was entered into evidence at the appeal

hearing. (Massong est and WEEKS Exhibit S). Dr. Massong testified that WEEKS had no

psychological problems

on

October 9, 2012, or on January 30, 2013. Dr. Massong agreed that

WEEKS suffered low or mild t moderate recurrent depression, usually under situational stress.

(Mas song Test.). Dr. Massong opined that he saw no evidence suggesting that WEEKS was unfit

15



16/29

for duty in 2007. ad.). However, Dr. Massong acknowledged that the passage oftime could change

a person s circumstances, memoryand perception

o

events, and

he

could not state to a psychological

certainty that the responses given

to

him by WEEKS in

2012

and 2013 were the same responses that

WEEKS would have given in 2007 when

the

employment decision

was

made by Mayor Holloway.

ag.).

Dr.

Massong stated that he relied

on

the findings

and

conclusions o

Dr.

Gasparrini, although

he

had

never been provided with the report known as Gasparrini-2. ad.). While

Dr.

Massong was

critical

o

Dr. Teater and

Dr. Webb

for not giving a fonnal 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. rd.).

34.

The Commission again notes that Dr. Massong s report

and

opinion

was

not available

to Mayor Holloway when making his decision to terminate

WEEKS,

and any finding by the

Commission that

Dr.

Gasparrini s opinion would

have

altered Mayor Holloway s decision to

terminate WEEKS would be pure speculation on the part o the Commission, particularly in light

o the

fact

that both parties failed to ask Mayor Holloway this simple question during the

hearing.

Further, Dr. Massong himself could not state with

any

certainty that his evaluationo WEEKS

would

have been the same had it occurred in 2007, as opposed to more than five 5) years later. Thus,

the

Commission

has

no choice but

to

give little weight to the opinions

o Dr.

Massong.

35.

Dr. Webb confirmed the opinions that were contained in his report, when he testified

that WEEKS

had

continued behavioral problems, a history

o

depression, and a long history of

poor

judgment and dependency problems with women. Webb Test.).

Dr.

Webb testified that

WEEKS

had

poor boundaries between his professional responsibilities as a police officer and hispersonal life,

especially with women. 14.). Dr. Webb found that those psychological problems

posed

special

16



17/29

dangers in a person like

WEEKS

who was

in

a position

o

power and authority. QQ.. . Dr. Webb

further testified that

WEEKS was

mentally unfit

to

perform the duties

o

the position o a police

officer as well

as

positions in all other phases o police work, including but not limited

to

a desk,

dispatch, records, or clerk position.

@.).

36. Dr.

Webb based his opinion on a personnel

file full

o incidences where

WEEKS had

interacted inappropriately with

women on

the job and instilled

fear

in them all

o

which

showed

poor

judgment and a lack

o

control,

as

well

as

WEEKS' refusal

to

acknowledge and

get

treatment

to

remedy his problems. @.).

Dr.

Webb testified that WEEKS' problems had grown more severe as

the result

o

his failure

to

obtain treatment in the

form

o

counseling.

ag.).

Dr.

Webb

recommended

that

WEEKS

undergo long-term psychotherapy

@. and COB

Exhibit 0115-19

at p. 0119).

Importantly,

Dr.

Webb pointed out that while

Dr.

Gasparrini

found WEEKS

fit

for

duty according

to the psychological test results,

Dr.

Gasparrini did not release WEEKS

to

work

as

a police officer.

(Webb Test.).

37.

Finally,

we

address the length

o

time required

to

resolve this matter. WEEKS'

appeal

was

scheduled for hearing on seven (7) different dates. After

four

(4) continuances requested

by

WEEKS, the appeal hearing initially convened on March

26, 2009.

However, on that

date,

an

agreement was reached between the parties, and again at the request o

WEEKS, to

stay the appeal

so that WEEKS could use his best efforts

to

obtain medical disability retirement benefits through

Public Employees' Retirement

System o

Mississippi

Q1ereinafter

PERS ). Not until August

9,

2012, was the Commission notified by

WEEKS

that his request for PERS disability benefits had

been denied, and that

he

requested a rescheduling of his appeal hearing, pursuant

to

his October

5,

2007

Notice

o

Appeal. The COB then filed a motion

to

dismiss the appeal, arguing that

WEEKS

17



18/29

failed

to

use his best efforts

to

obtain PERS benefits and was unreasonably delaying his hearing. The

motion was denied, and the hearing was rescheduled.

38.

WEEKS' appeal hearing finally convened

on

March

27,

2013. Due

to

the unavailability

of witnesses, the parties agreed

to

recess until June 24, 2013, at which time the hearing was

reconvened and continued through June

26, 2013.

The parties were then requested

to

submit

proposed findings offacts

and

conclusions oflaw,

and the

appeal hearing has been held open

by

the

Commission pending this decision.

CONCLUSIONS

OF

L W

1.

The controlling Civil Service Rule

and

Regulation

is

Section

5.12

which

is

entitled

"Medical Requirements,"

and

it recognizes that those

who

work for the COB must be

fit to

perform

the position that they hold.

Civ. Servo R.R.

Sec.

5.12 b»).

Further, Section 5.12(b)

allows the

Appointing Authority

to

"require any member

to

meet

the

same requirements

[as

a candidate] when

there are reasonable grounds to question said employee regarding the [employee's] mental or

physical suitability

for

continued employment." (rd.).

2. In

at arriving at a decision in this appeal, the Commission must first determine

if

the

COB

had

reasonable grounds

to

question WEEKS' mental suitability

for

continued employment.

WEEKS

makes two 2)

arguments against such reasonable grounds:

1)

that the incidents at

BRMC

and in

Sgt.

Brumley's office on June 6, 2007 were not sufficiently abnormal behavior for an officer

to

give rise

to

a fitness

for

duty exam,

and

only suggest that

WEEKS was

temporarily emotionally

compromised

from

preforming his job duties

on

that particular

day;

and 2)

that WEEKS' prior conduct

and the

incident reports contained

in

his personnel file should not have been considered.

18



19/29

3. Director Dunagan testified that he considered WEEKS behavior, particularl y the behavior

displayed in Sgt. Brumely s office,

to

be unusual, a cause for concern,

and

made he

and

Asst. Chief

McGilvary question whether a fitness for duty exam may be necessary. (Dunagan Test.). Assl

ChiefMcGilvary

and

Director Dunagan then

did

what they both testified

is

standard procedure when

reason

to

consider a fitness

for

duty

exam

arises,

which is to

review the entire personnel

file o the

officer. (McGilvary Test. and Dunagan Test.). Director Dunagan and Asst. ChiefMcGilvary

then

reviewed WEEKS personnel

file and

found documentation o multiple prior incidents

in

which

WEEKS displayed a pattern o poor judgment as a police officer, specifically with regards to

relationships with female civilians. @.).Further, a review

o

WEEKS

, personnel file revealed a

prior fitness for duty evaluation report by a psychologist,

Dr. Thomas Yarnell o The Counseling

Center o Biloxi, that stated that WEEKS had moved

from

a low risk

for

employment problems

at

his

hiring

to

a moderate risk

and

that without psychological intervention, it

was

predicted

by

Dr.

Yarnell, thatWEEKS would become ahighrisk. (McGilvaryTest.,Dunagan Test., and COB Exhibit

0094-95).

4.

Both Director Dunagan

and Asst.

Chief McGilvary testified that WEEKS behavior

on

June 6 2007, coupled with his prior history o poor judgment relating to women while on

duty

and

the potential liability the City could face

for

allowing an officer with WEEKS history to continue

his employment with

the

department without first being cleared

for duty

by appropriately qualified

medical personnel,

was

at best unwise and constituted reasonable grounds to send

WEEKS

for a

fitness

for

duty exam pursuant

to

Section 5.12(b). (McGilvaryTest.

and

Dunagan Test.). Director

Dunagan then presented the information discussed above to Mayor Holloway, who the testimony

establishes authorized the fitness for duty evaluation o

WEEKS.

(Holloway Test., Dunagan Test.,

and

Pol Test.).

9



20/29

5.

Because of the

facts

as set

forth

in the preceding paragraph and earlier in

this decision,

WEEKS

arguments as to the alleged lack of reasonable grounds for sending him for a fitness for duty

exam cannot be separated. The decision of Director Dunagan

to

recommend a fitness for duty

exam

and

Mayor

Holloway'S decision to authorize one were clearly established by their testimony to be

a combination ofboth the incidents of June 6, 2007 and the prior incidents involving WEEKS' poor

judgment relating to women while on duty. (Dunagan Test. and Holloway Test.). The decision to

send an officer for a fitness for duty exam is, and always will be, a judgment

call

on the part of the

Director of Police and

the

Mayor. Pursuant

to

Civil Service Rule and Regulation Appendix

C II1) A),

"

it

is not the function nor the role

of

the Biloxi

Civi1

Service Commission

to

substitute

its judgment for that of

a department

in

the day-to-day administration

and

disciple of

the work

force."

Civ.

Servo R.R. Appx. C(III)(A).). Therefore, except in the most extreme circumstances

where there is a clear lack ofevidence of the need for a fitness for duty exam, which we stress

is

not

present

in

this

case, the

Commission must abide by Civil Service Rule and Regulation

Appendix

C(III)(A), and decline to substitute its judgment for that ofDirector Dunagan and Mayor Holloway.

To do

so

would be to play Monday morning quarterback,

and

essentially strip the Director and

Mayor of their ability

to use

sound judgment in making such decision, and it is the very ability

to

make such decisions which has allowed both Director Dunagan and Mayor Holloway to attain the

positions which they now hold or

held

at the pertinent time.

6. Further, the Commission

finds

the following case law persuasive: In Watson v. City of

Miami Beach,

177

F 3d 932,

935

11

th

Cir. 1999), the Court addressed a similar situation

and

held

that "[i]n 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

20



21/29

business necessity. Further, in Theiss v. City

of

Sturgeon Bay, 2006 WL 2375518 (B.D. Wis.

2006), supervisors noticed changes in the plaintiff's behavior and became concerned over his

psychological fitness to perfonn his duties as a police officer. The Court held that the fact that his

supervisors were concerned about Theiss ' mental health provided a reasonable basis for the officer

to undergo a psychological evaluation. Id. at *1, *4.

7. Further, this Commission finds 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.

WEEKS' argument that

he

has been subjected to Double Jeopardy is also without merit,

as

the

legal theory ofdoublej eopardy applies only

in

criminal cases to prohibit a criminal defendant from

being tried twice for the same crime, and has no application to a civil matter such as an employment

termination decision. A termination

of

employment and a civil service hearing are not essentially

criminal matters, and therefore, the double jeopardy clause does not apply. Ladnier v. City ofBiloxi,

749 So.2d. 139, 156 (Miss. 1999). Thus, the Commission finds that no rules or laws were violated

by the consideration ofWEEKS personnel file in making the decision to send im for a fitness for

duty exam.

8. Thus, this Commission finds that the evidence presented at the hearing ofthis matter was

sufficient to establish reasonable grounds under Section 5 12(b) on the part ofDirector Dunagan and

Mayor Holloway to recommend and authorize, respectively, a fitness for duty exam of WEEKS.

9. Next, this Commission must detennine

if

the COB followed the correct procedure

in

sending WEEKS for a fitness for duty exam and ultimately tenninating his employment. WEEKS

argues the following:

1)

that the incidents

of

June 6 2007 should have been addressed through the

21



22/29

use

of

disciplinary action pursuant to Civil Service Rule and Regulation Article

10

and not Section

5.12(b), and the failure to do so constitutes a violation

of

his due process rights; 2) that only the

appointing authority, Mayor Holloway, can authorize a fitness for duty exam and there is no written

evidence that he did

so;

and

3)

that the evaluations, reports, and opinions

ofDr.

Teter and

Dr. Webb

were not sufficient

to

support tennination pursuant to Section 5.12(b).

10.

WEEKS' claim

of

a due process violation based on the COB's alleged failure to initiate

disciplinary action pursuant to Civil Service Rule and Regulation Article 1 (hereinafter "Article

10"),

is again a question

of

judgment on the part of the Department of Police chain

of

command.

Director Dunagan testified that Article

I 0

was not used because the employment action involving

WEEKS

was

not disciplinary in nature, but rather, was medical under Section 5.12(b). (Dunagan

Test.). The Civil Service Rules and Regulations allow the chain ofcommand to initiate disciplinary

action, or when reasonable grounds exist, send an officer for a fitness for duty exam. In fact, there

is no prohibition against doing both. Thus, it is up to an officer's chain of command to determine

which route is appropriate, and from their follow the required procedure

as

set forth in the Civil

Service Rules and Regulations. ll1erefore, absent clear error, the Commission must again abide by

Civil Service Rule and Regulation Appendix C TIJ) A), and decline to substitute its judgment

for

that

of

WEEKS' chain ofcommand in determining the appropriate route to follow. To arrive at any other

decision, would essentially result in a complete eradication

of

the availability of Section 5.12 b)

when an officer's mental health is called into question. Accordingly, the Commission finds no error

in the decision

of

Director Dunagan and Mayor Holloway to proceeded under Section 5 12(b).

II Even ifthis employment action was considered disciplinary in nature, Miss. CodeAnn.

§

21-31-23 governs the disciplinary process and outlines the due process that must be accorded to

22



23/29

an employee being disciplined. Miss. Code Ann. § 21-31-23; Burleson v. Hancock County

Sheriffs

l2 mb, 872 So.2d 43 (Miss. 2003), rehearing and cert. denied, 873 So.2d 1032, cert. denied,

125

S

Ct. 809 (2004). The Commission fmds that even

if

the requirements ofSection 21-31-23 areappIied

to this case, the COB met all the due process requirements afforded a disciplinary action.

12.

The

first element of due process that Section 21-31-23 requires is written notice

ofthe

intended termination, stating the reasons for it, and informing the employee that he has the right to

respond in writing to the reasons given for the termination within a reasonable time, and that

he

can

respond orallybeforethe official charged with the responsibility

of

making the termination decision.

Miss. Code Ann.

§

21-31-23. The Commission finds that this requirement was

met

as WEEKS was

notified on September 11, 2007, by letter of Director Dunagan that his tennination was being

recommended and

the

letter specified the reason - because

both

a psychologist and psychiatrist had

found WEEKS mentally unfit for duty as a police officer. (COB Exhibit 0098-99). Further, the

letter advised WEEKS 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 fmal decision, and to facilitate this,

meeting with Mayor Holloway was prearranged for September 19, 2007. @. . The testimony

established that WEEKS responded to the reasons given for his termination in writing. (COB

Exhibit 0153-54), and that

he

met with Mayor Holloway prior to his termination,

on

September 25,

2007. (WEEKS Test.; COB Exhibits 0104-05 and 0153-54).

l3. The second element

of

due process required

by

Miss. Code Ann.

§

21-31-23. is that the

official charged with making the 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 l t e r ~ on October 19, 2007, Mayor

23



24/29

Holloway advised WEEKS in writing

of

his decision. (COB Exhibit 0104-05). The Commission

finds that this second requirement ofdue process was met.

14.

Third, due process under Miss. Code Ann. § 21-31-23 requires that the disciplined

employee be allowed to file an appeal with the Commission within ten (10) days after the

disciplinary action. Miss. Code Ann. 21-31-23. WEEKS was advised in both Director Dunagan s

September 11, 2007 letter, (COB Exhibit 0098-99), and in Mayor Holloway S October 19,2007

letter, (COB Exhibit 0104-05), that

h had ten (10) days from the date

ofth

Mayor s decision to

request an investigation by the Commission. In this case, WEEKS filed a Notice ofAppeal

to

the

Commission

on

October 25,2007. (WEEKS Exhibit A at p. 001). The Commission finds that this

final element

of

due process was also met.

15. As for WEEKS argument that only the Appointing Authority, i.e., Mayor Holloway, can

authorize a fitness for duty exam pursuant to Section 5.12(b), and there was no written evidence that

he did so, we again find this argument without merit. The only evidence presented during the

hearing of this matter was the consistent testimony ofboth Director Dunagan and Jill Po] that Mayor

Holloway did, in fact, authorize the fitness for duty exam

of

WEEKS, in their meeting which took

place within days

of

June 6 2007, and prior to June 11, 2007. (Dunagan Test. and Pol Test.).

Director Dunagan, Jill Po], and Mayor Holloway all testified that Mayor Holloway often gives verbal

orders authorizing Human Resources or department directors such as Director Dunagan to carry out

those orders, which is what was done in this case. (Holloway Test., Dunagan Test., and Pol Test.)

WEEKS presented no credible evidence to the contrary. Thus, the Commission finds that the

Appointing Authority, Mayor Holloway, authorized the fitness for duty exam of WEEKS in

Compliance with Section 5.12(b).

24



25/29

16. Finally, WEEKS argues that the evaluations, reports,

and

opinions o

Dr.

Teter

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.

(COB

Exhibit 0109-12). Dr. Mark Webb, a psychiatrist, evaluated

WEEKS

on August

16,

2007, an also found him unfit for duty. (COB Exhibit 0115-19). These were the only medical

opinions available to Mayor Holloway at the time he made his decision to tenninate WEEKS, despite

the fact that

WEEKS had

been given approximately four

(4)

months to obtain his own psychological

report regarding his fitness for duty.

17.

Further, while one might question the apparent extrapolation

o

WEEKS behavior by

Dr.

Teter and

Dr.

Webb to its most harmful extreme, one cannot dispute that the potential dangers

outlined by Dr. Teter

and

Dr. Webb are real

and

could happen. Even WEEKS' own expert.,

Dr.

Gasparrini, confirmed the opinions

o Dr.

Teater and

Dr.

Webb following his evaluation

o WEEKS

on February 20, 2008, when he opined that [c]onfusing the power dynamics o his role as a

uniformed police officer on duty with his dating relationships has repeatedly led to difficulties

for

him in his career. These should be addressed through further cOlUlseling before he tries to resume

work as a police officer orin a similar position. (COB Exhibit 0143-52 atp. 0152). 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.

@.).

18.

The Commission is aware

o

Dr. Stefan Massong's opinion that WEEKS was fit

for

duty

at

the time

o

Dr. Gasparrini' s evaluation. However, the Commission finds that

Dr.

Massong's

report

and

opinion was not available to

Mayor

Holloway

when

making

his

decision

to

terminate

25



26/29

WEEKS, and any finding by this Commission that Dr. Gasparrini's opinion or Dr. Massong's

opinion would have altered Mayor Holloway's decision to terminate WEEKS would be pure

speculation on the part ofthe Commission, particularly in light ofthe fact that both parties failed to

ask Mayor Holloway this simple question during the hearing. Further, Dr. Massong himself could

not state with any certainty that his evaluation ofWEEKS would have been the same had it occurred

in 2007, as opposed to more than (5) five years later. (Massong Test.). The Commission finds this

significant since 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.

Koshinski v. Decatur Found!):, Inc., 177 F.3d 599,

601

7th

Cir. 1999). Thus, the Commission has

no choice but to give little weight to the opinions

of

Dr. Massong.

19. A municipality like the CityofBiloxi has

an

obligation under the law to monitor its

police officers, investigate complaints and other matters ofwhich has notice that call into question

an officer's fitness for duty, and to take appropriate action to ensure the public's rights are protected.

Watson v. CityofMiami Beach, 177 F.3d 932, 935 11 til Cir. 1999) (City cannot forgo a fitness for

duty exam to wait until a perceived threat becomes real or until questionable behavior results in

injuries.); Bonsignore v. City

of

New York, 683 F.2d 635-37 (2d Cir. 1982) (City was liable for

failing to ensure that its police officers were mentally fit to carry guns without endangering

themselves or the public); Davis v. Lynbrook Police Dept., 224 F.Supp. 2d463 479 (RD.NY. 2002)

(City sued for failure to supervise its police officers); Thompson v. CityofArlington, 838 F.Supp.

1137,1147-48

N.D.

Tex.1993) (City was required to ensure that plaintiff was mentally capable

of

exercising safely the awesome and dangerous power of

an

armed police officer; it has

an

overriding

interest in making sure that its police force is staffed only by those who are particularly suited for

26



27/29

the job). In Theiss v. Cityo Sturgeon Bay, 2006 WL 2375518 B.D. Wis. 2006), the Court held that

ensuring that a police officer is mentally

fit

for

duty

is

a legitimate concerning any police

department. rd. at

*4.

Similarly, in Redmond

v.

City

o

Overland Park,

672

F.Supp.

473 (D.

Kan.

1987), the municipality

and

its police chiefhad a clear interest in determining whether

an employee

was psychologically

fit

for the position for which she

was

hired and

an

obligation

to

the public

to

ensure

the

psychological well being ifits offices.

Id.

at 487.

20.

The testimony established that

WEEKS

was tenninated by Mayor Holloway because

Dr.

Teater

and Dr.

Webb had

found

him unfit for

duty.

(Dunagan Test. and

COB

Exhibits

0098

and

0104-05). The Commission

finds

that the

COB

had good cause

to

terminate WEEKS' employment.

21.

Lastly, this Commission must determine that WEEKS' fitness for duty

was the only

reason he

was

tenninated, and that it was not a pretext for some other politically motivated

reason.

WEEKS testified that he was terminated in retaliation for his involvement in signing a petition and

sending a "vote

o no

confidence" in Director Dunagan's leadership o the Department fPolice

to

Mayor Holloway.

WEEKS

Test.). WEEKS further testified that he was terminated

for

his role in

lobbying

for

pay raises

for

police officers.

(N.).

However,

WEEKS

presented

no

documentary

evidence in support

o

his contention,

and

failed

to

call even one witness

to

support

his

claim.

The

only evidence WEEKS presented on this issue was his own self-serving testimony.

22. To

the contrary, Director Dunagan testified that a letter

was

sent

to

Mayor Holloway that

contained a list o demands and was critical o Director Dlmagan's leadership for things like failing

to

equip the officers with tasers. (Dunagan Test.). Director Dunagan testified that he

was

unaware

o

WEEKS' involvement in sending that letter or signing the petition.

(N.). WEEKS

admitted that

he

was

only one o approximately fifty-one percent 51 %)

o

the officers on the police force who

27



28/29

signed the petition, and

he

had no proofthat other officers who signed the petition were singled out

for special treatment or terminated for being unfit for duty. (WEEKS Test.). Further, the

Commission has already found that Mayor Holloway, and not Director Dunagan, made the decision

to terminate WEEKS.

22. WEEKS further testified that

he

attended Biloxi City Council meetings where pay raises

for police officers were requested, and that his name appeared in newspaper articles in the Sun

Herald on August 28th and 29th, 2007, in connection with the pay raise requested by members of

the Department ofPolice. @. . WEEKS testified that his termination was in retaliation for being

involved in the pay raises, because "his situation came up" so close

in

time to his name appearing

in the newspaper articles.

@. .

However, neither Director Dunagan nor Mayor Holloway testified

to having any knowledge ofWEEKS involvement in the pay raises. (Dunagan Test. and Holloway

Test.).

23. What is more, WEEKS does not claim that either Director Dunagan or Mayor Holloway

had political motivations in terminating WEEKS, but rather claims that it was Sgt. Brumley and

Asst. Chief McGilvary who had such political motivations. (WEEKS Test.) Again, the only

evidence presented by WEEKS on this issue was his own self-serving testimony. Both Asst. Chief

McGilvary and Sgt. Brumley testified that they had no wish or desire to see WEEKS terminated, and

no documentary evidence

or

supporting witness was presented by WEEKS to the contrary.

(McGilvary Test. and Brumley Test.). Further, the Commission finds it unlikely that fellow officers

who stood to benefit from

p y

raises would have objections to WEEKS' participation in that matter.

Further, Asst. ChiefMcGilvary 's and Sgt. Brumley's opinions ofDirector Dunagan's leadership at

the time,

or

even their own participation in the vote

of

no confidence, are unknown to the

28



29/29

Commission. as the parties failed to make inquires on this issue with those witnesses. Moreover,

neither Sgt. Brumley nor Asst. Chief McGilvary had any involvement in the Mayor s ultimate

decision

t

tenninate WEEKS, and neither were present in any meeting with the Mayor to discuss

that decision. (Holloway Test., Dunagan Test., Pol Test., McGilvaryTest. and Brumley Test.). Thus,

this Commission finds that there was no credible evidence that WEEKS was sent for a fitness for

duty evaluation because

of

politics, or that his termination was motivated by politics.

24. Based

on

the foregoing, he Commission hereby affirms the decision of the City

of

Biloxi

by

majority vote

of

the Commission present at the appeal hearing.

Findings and Conclusions issued this the ~ day

of

September, 2013.

BY:

COMMISSION

Prepared by:

Counsel for the Commission

Ian

L

Baker, Esq.

Baker Brewer, PLLC

1891 Pass Road

Biloxi, MS 39531

Tel. 228-388-0053

Fax 228-388-7041

ibaker@baker brewerlaw.com

By:/ rb/)

COMMISSIONER SMITH

ATTESTED:

~ ~ ~ ~ \ J i ~

C

MISSION SECRETARY

(SEAL)
http:///reader/full/brewerlaw.comhttp:///reader/full/brewerlaw.com

Weeks Complaint MEC

Documents

Transcript of Weeks Complaint MEC