IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2025-SA-01312-COA
MISSISSIPPI DEPARTMENT OF PUBLIC APPELLANT SAFETY
v.
RICHARD TODD COX APPELLEE
DATE OF JUDGMENT: 10/07/2025
TRIAL JUDGE: HON. JAMES D. BELL
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: BETHANY BRANTLEY JOHNSON
ATTORNEY FOR APPELLEE: DENNIS L. HORN
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: REVERSED AND REMANDED - 10/20/2026 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., WEDDLE AND LASSITTER ST. PÉ, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. The Mississippi Department of Public Safety (DPS) terminated Richard Todd Cox’s
employment with the Mississippi Highway Safety Patrol. He appealed his termination to the
Employee Appeals Board (EAB). The EAB reversed his termination and reinstated his
employment. DPS petitioned the circuit court for certiorari review, which affirmed the
EAB’s decision to reinstate Cox. Finding that the EAB’s decision was arbitrary and lacked
necessary findings, we reverse and remand for further proceedings consistent with this
opinion.
FACTS
¶2. Richard Todd Cox was employed as a state trooper with the Mississippi Highway Safety Patrol. In June 2018, DPS provided Cox a “Narrative Statement of Charges.” The
statement outlined three instances that DPS thought merited disciplinary proceedings.
¶3. DPS alleged that Cox violated Group II and Group III of the Mississippi State
Personnel Board Offenses and DPS Policies. Termination is authorized discipline for Group
III offenses. Specifically, DPS charged Cox with counts of Group II offenses:
Insubordination, including but not limited to, resisting management directives
through actions and/or verbal exchange, and/or failure or refusal to follow
supervisor’s instruction, perform assigned work, or otherwise comply with
applicable established written policy.
Cox was also charged with counts of Group III offenses:
An act or acts of conduct occurring on or off the job which are plainly related
to job performance and are of such nature that to continue the employee in the
assigned position could constitute negligence in regard to the agency’s duties
to the public or other State employees.
I. 2010 Incident with Kevin Burns
¶4. The first Group III incident occurred in 2010 when Cox went to Kevin Burns’s
residence and accused Burns of having an affair with Cox’s wife thirteen years prior. DPS
alleged that Cox “pushed his way into the home and brutally assaulted him causing
substantial facial injuries. When Mr. Burns told Cpl. Cox he was going to call the law, Cpl.
Cox said[,] ‘Mother ****** I am the law.’” Cox later testified,
I said, Man, I can’t believe you. And when I did, he grabbed my arm. We
went down to the ground, kind of simultaneously put each other in a headlock
and was wrestling around and pretty much did that until at a stalemate . . . .
There was never a punch thrown by him. There was never a punch thrown by
me.
Cox stated that he was “verbally counseled,” and therefore disciplined, for this incident. Cox
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did not remember signing a Narrative Statement of Charges.
II. 2017 Incident with Kelsey Adams
¶5. The second Group III incident occurred in May 2017 after DPS found that Cox
violated DPS General Orders and committed a Group III violation for “having an
inappropriate relationship with a fellow trooper’s wife.” As a result, Cox was transferred to
a different troop and removed from the SWAT team. At a later hearing, Will Adams, the
fellow trooper, testified that his wife at the time, Kelsey, and Cox had a physical affair. Cox
and Kelsey, on the other hand, testified that the affair was emotional and non-sexual. Cox
testified, though, that he told other troopers about the sexual nature of his relationship with
Kelsey. When Cox was asked if he was admitting to behavior that violated a DPS order, he
responded, “Admitted it from day one.”
III. 2018 Incident with Christi Cox
¶6. Finally, another Group III incident arose in May 2018. The Rankin County Chancery
Court granted a temporary restraining order (TRO) against Cox based on his being
“physically and verbally abusive towards his wife” and his stalking her. Cox’s wife, Christi,
testified at the TRO hearing that after they discussed divorce, Cox “grabbed [her] by the
throat and choked [her] and said, ‘I will f***ing kill you if you break this family up and
divorce me.’” In the TRO proceeding, Christi further stated that Cox followed her to her
attorney’s office and told her he would follow her all day. After being served with the
complaint for divorce, Cox told Christi that “the only way this would end is by [Cox] putting
a bullet in [Christi’s] head.” When Christi stated that she was going to call 911, Cox told her
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that officers would not arrive fast enough. Cox further told Christi that he would kill her
lawyer and his family as well. Christi’s testimony from the TRO proceedings was submitted
by DPS as evidence in the EAB appeal hearing.
¶7. Regarding these allegations, Cox stated to the EAB that Christi was “influenced to lie
under oath and rescinded the restraining order two days after it was granted due to evidence
proving she had lied.”1
*****
¶8. DPS asserted that Cox “displayed a total disregard for established MSPB and
departmental policy” and “displayed an unacceptable and troubling pattern of behavior that
is unbecoming of a law enforcement officer.” DPS held a disciplinary hearing before a
hearing officer. The hearing officer “determined a founded basis” for the violations and
offenses and terminated Cox’s employment with DPS.
¶9. Cox appealed his termination to the EAB. During a hearing before the EAB, DPS
introduced a polygraph examination report wherein an examiner asked Cox, (1) “Did you tell
Christi you would shoot her?”; (2) “Did you ever physically harm Christi?”; and (3) “Did you
make any threats about Christi’s attorney?” Cox answered “no” to each question. The report
indicated that “Cox was not being truthful[.]” The EAB found that because the examiner was
not called to testify and was not subject to cross-examination by Cox, and because
“Mississippi Code [Annotated section] 73-29-47 disallows polygraph examinations to be
introduced or admitted as evidence in a court of law[,]” it could not consider the polygraph
1
This language was included in Cox’s statement of facts in his notice of appeal to the EAB, not in his sworn testimony at the hearing.
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report or its findings.2
¶10. The EAB held that Cox “met his burden to establish that DPS’s discipline was
unjustified.” The EAB reversed the decision of DPS and reinstated Cox as a state trooper.
¶11. DPS petitioned the Hinds County Circuit Court for certiorari review, which the court
granted.3 Finding that the decision was based upon substantial evidence and was not
arbitrary or capricious, the circuit court affirmed the judgment of the EAB. DPS then
appealed to the supreme court, which assigned the appeal to this Court.4
STANDARD OF REVIEW
¶12. Mississippi Code Annotated section 25-9-131(1) (Rev. 2024) states, “Any employee
2
We note that “the rules of practice, procedure and evidence, formally observed in courts of law, are relaxed in proceedings before administrative agencies.” McGowan v. Miss. State Oil & Gas Bd., 604 So. 2d 312, 317-18 (Miss. 1992).
In Evans v. DeRidder Mun. Fire, 815 So. 2d 61, 68 (La. 2002), the Louisiana Supreme Court held, after first finding no reason for barring their admission, that results of a polygraph test were admissible in an administrative proceeding as competent evidence. Here, it was permissible for the EAB to consider the polygraph examination report due to the relaxed rules in administrative proceedings. However, the hearing officer had discretion to exclude the evidence as set forth in Rule 9.17 of the employee handbook.
Since we reverse on other grounds, we decline to further address whether there was an abuse of discretion in excluding the polygraph examination report.
3
“[N]o statute allows an employer to appeal a decision of the EAB[.]” Miss. Div. of Medicaid v. Alliance Health Ctr., 174 So. 3d 254, 263 (¶24) (Miss. 2015). However, “[c]ertiorari is available for judicial review of EAB decisions” pursuant to Mississippi Code Annotated section 11-51-93 (Rev. 2019). Bertucci v. Miss. Dep’t of Corr., 597 So. 2d 643, 646 (Miss. 1992). Additionally, “certiorari review under Section 11-51-95 is discretionary with the circuit court. To secure certiorari review, one must petition the circuit court and make a showing of good cause.” Alliance Health Ctr., 174 So. 3d at 263 (¶25).
4
In its appellate brief, DPS references an additional Group III incident that allegedly occurred between Cox and his current wife. However, our supreme court “has long held that [we] cannot consider that which is not in the record.” Stone v. State, 94 So. 3d 1078, 1082 (¶11) (Miss. 2012).
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in the state service may appeal his dismissal or other action adversely affecting his
employment status to the employee appeals board created herein. The proceedings before
the employee appeals board shall be de novo[.]” Miss. Code Ann. § 25-9-131(1).
Mississippi Code Annotated section 25-9-132(2) (Rev. 2024) then provides that “[a]ny
employee aggrieved by a final decision of the employee appeals board shall be entitled to
judicial review[.]” Further,
(2) The scope of review of the circuit court . . . shall be limited to a review of
the record made before the employee appeals board or hearing officer to
determine if the action of the employee appeals board is unlawful for the
reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the
employee.
Miss. Code Ann. § 25-9-132(2).
¶13. Similarly, this Court “must affirm the agency decision if the decision was (1)
supported by substantial evidence; (2) not arbitrary or capricious; (3) within the scope or
power of the agency; and (4) not a violation of the aggrieved party’s constitutional or
statutory rights.” Ray v. Miss. Dep’t of Pub. Safety, 172 So. 3d 182, 187 (¶15) (Miss. 2015).
“We need to find substantial evidence underlying the [EAB’s] decision to reinstate the
employee, even if there was also substantial evidence to support the earlier termination.”
Miss. Dep’t of Corr. v. Smith, 883 So. 2d 124, 129 (¶15) (Miss. Ct. App. 2004). A reviewing
court does not reweigh the evidence or substitute its judgment for that of the EAB. Ray, 172
So. 3d at 187-88 (¶¶15, 17).
¶14. “Substantial evidence exists so long as there is evidence that a reasonable mind might
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accept as sufficient to support a conclusion.” Id. “The reviewing court is not authorized to
substitute its judgment for that of the agency where there is substantial (that is, more than a
scintilla of) evidence to support the finding.” Id. (quotation marks omitted) (quoting Miss.
Pub. Serv. Comm’n v. Merchants Truck Line Inc., 598 So. 2d 778, 782 (Miss. 1992)).
“Moreover, there is a rebuttable presumption in favor of the agency decision[,] and the
burden of proof is on the party challenging that decision.” Id. (quotation marks omitted)
(quoting Montalvo v. Miss. State Bd. of Med. Licensure, 671 So. 2d 53, 56 (Miss. 1996)).
DISCUSSION
¶15. On appeal, DPS argues that the EAB (1) ignored substantial evidence that DPS relied
upon when making the decision to terminate Cox and gave improper weight to Cox’s
testimony and (2) erred in holding that the polygraph examination report had to be
disregarded. We find the first assignment of error dispositive, and therefore, we decline to
rule on DPS’s assignment of error pertaining to the exclusion of the polygraph examination
results.
¶16. DPS asserts that “the administrative judge refused to take into consideration any
documentary evidence presented by DPS” and that the “opinion is based primarily upon
testimony by Cox of his personal belief.” DPS further contends that the EAB “reweighed
the evidence and failed to give sufficient deference to the agency’s findings.”
¶17. “The EAB is the trier of fact as well as the judge of the witnesses’ credibility.” Ray,
172 So. 3d at 188 (¶20) (quotation marks omitted) (quoting Bynum v. Miss. Dep’t of Educ.,
906 So. 2d 81, 90 (¶14) (Miss. Ct. App. 2004)). Before the EAB, Cox had “the burden of
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proving that the reasons stated in the notice of the agency’s formal disciplinary action (i)
[were] not true or (ii) [were] not sufficient grounds for the action taken” under Rule 9.18(B)
of the employee handbook.
¶18. Cox testified at the hearing before the EAB and denied assaulting Burns or Christi.
On the other hand, neither Burns nor Christi testified. Rather than call Christi as a witness,
DPS submitted the transcript of Christi’s testimony from the TRO hearing. DPS sought to
introduce the polygraph examination report but did not call the examiner to testify.
¶19. Ultimately, the EAB found that “Cox’s testimony [was] believable” and “that he did
not brutally assault Burns as DPS alleges.” DPS pointed to this incident in an attempt to
demonstrate that Cox “displayed an unacceptable and troubling pattern of behavior[,]” but
the EAB noted in its order that “[t]he time gap from 2010 to 2018 hardly fits into a troubling
pattern.” Additionally, the EAB determined that Cox “rebutted allegations that he was
physically or verbally abusive towards his wife Christ[i], that he stalked her or that he
threatened her attorney.” As a result, the EAB held that Cox “rebutted the agency
presumption and established that his termination was not justified.”
¶20. The EAB’s determination that Cox was a credible witness and that he did not assault
Burns or abuse Christi falls squarely within its role as fact-finder. There is substantial
evidence in the record before us to support these express findings by the EAB.
¶21. However, the EAB’s analysis fails to address Cox’s 2017 affair with Kelsey, the
fellow trooper’s wife. Importantly, in Cox’s testimony before the EAB, he admitted to his
relationship with Kelsey and to his discussing the sexual nature of the relationship with
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fellow officers. The EAB heard testimony from Cox, Kelsey, and fellow trooper Adams
regarding the incident. The EAB did not determine that the charge was untrue and did not
consider whether Cox’s conduct constituted a sufficient basis for discipline. This behavior,
if true, would constitute a Group III offense, authorizing termination as discipline.
¶22. As noted, Cox admitted to the conduct arising from the second charge, the 2017 affair
with Kelsey. Thus, in accordance with Rule 9.18(B) of the employee handbook, the EAB
was required to address whether Cox’s actions constituted a sufficient reason to support
DPS’s termination of his employment. The EAB failed to perform this analysis. This
admitted Group III violation was an independent reason that qualified for termination.
Because of the EAB’s lack of findings regarding this incident, we are unable to determine
whether the EAB’s decision is supported by substantial evidence. We therefore find that the
order of the EAB is arbitrary, and we reverse and remand the case to the EAB for further
findings and analysis consistent with this opinion.
CONCLUSION
¶23. As set forth above, Cox admitted to behavior that constituted a Group III offense, an
independent reason for his termination. The EAB, however, failed to address whether this
conduct constituted a sufficient reason to support DPS’s termination of Cox’s employment.
We find the EAB’s decision is arbitrary and, therefore, reverse it and the circuit court’s order
affirming the EAB’s decision and remand to the EAB for further proceedings consistent with
this opinion.
¶24. REVERSED AND REMANDED.
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BARNES, C.J., WILSON, P.J., McDONALD, LAWRENCE, EMFINGER,
WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR. McCARTY, J., CONCURS IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
WESTBROOKS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
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