Relying On Uncharged Offenses Violates Due Process

Since many of the public safety employees in Mississippi have “at-will” status with no job protections, it is a rare event for a Mississippi court to address due process issues. But that rare event just occurred in the case of Trooper First Class Sammy Ray of the Mississippi Highway Safety Patrol.

The charges against Ray were limited to his encounters with four specific motorists: Kacie Patterson, Joshua Ulmer, William Thomas, and Sandra Carpenter. Ray was charged with “falsification of records” by using personal information from the motorists he stopped and ticketed to write additional “ghost tickets,” a phrase meaning writing tickets for fictitious offenses. The Department contended that Ray also had written “ghost tickets” in an attempt to “pad” or increase his ticket numbers.

Ray testified that, on occasion, he would write warning tickets and would write “void” on the justice court and Commissioner’s copies and not write “void” on the motorist copy or the copy turned in to the master sergeant. Since his tickets to the justice court were “voided,” no adverse consequences were possible for the motorists. Ray would shred the undelivered motorist’s copy of his voided tickets. Although Ray failed to write “void” on the tickets he turned in to his master sergeant, he did indicate that the tickets were voided on his ticket-control sheets that accompanied the actual copies of the tickets. Ray presented the testimony of several former troopers, some in supervisory positions, that it was a generally accepted practice to write warning tickets and then “void” the ticket when it was turned in to the justice court so that the motorist faced no penalties. Witnesses testified that this was done as a good-will “community relations” tool.

Ray testified that he did not recall the four sets of tickets at issue, and the Department put on no proof that the tickets Ray voided for Patterson, Ulmer, Thomas, and Carpenter were “ghost tickets” for offenses Ray did not observe. Instead, the Department relied on statements Ray made to the investigator about other tickets he had written over his six-year career. When Mississippi’s Employee Appeals Board upheld Ray’s termination, he challenged the decision in the Mississippi Court of Appeals.

The Court found that Ray’s termination violated his due process rights. The Court began with the proposition that “due process requires that an accused be informed of the charges and that any disciplinary action be based on violations related to the specific charges levied against the employee. A Mississippi statute provides that no employee may be dismissed except for good cause, and after written notice and hearing as shall be specified in the rules and regulations of the State Personnel Board complying with due process of law. A rule of the Employee Appeals Board states that the Presiding Hearing Officer shall hear or receive evidence only on those reasons and allegations contained in the responding agency’s final disciplinary notice to the employee of such action.

“During oral argument before this Court, the Department could point to nothing connected to the four stops showing that they involved ghost tickets, and conceded that it had no evidence of false tickets other than Ray’s statements. In its brief, the Department states that ‘it was suspected, but never proven, that Ray executed far more falsified tickets than he was charged with.’

“Therein lies the problem. Ray’s statements provide the only evidence of falsified tickets, and those statements do not relate to the four charged instances. The Department’s suspicion comes from Ray’s statements concerning uncharged conduct. There is no proof as to the four charged instances. Neither the hearing officer nor the full EAB made any findings of fact about the tickets issued to the specific four motorists at issue.

“We have held that an employing agency may not rely on conduct that was not the subject of the termination notice to justify a termination. Ray’s termination has been upheld at each stage of this proceeding on the basis of his apparent admission to writing tickets for non-offenses. This admission was not specific to the four actual charged offenses, however, and there was no other direct proof that any of these tickets were fraudulent.

“Accordingly, we find the denial of Ray’s due process rights mandates reversal of the agency’s actions. Ray is entitled to reinstatement with the Highway Patrol and to an award of full back pay and benefits.”

Ray v. Mississippi Department of Public Safety, 2014 WL 5334783 (Miss. App. 2014).