A Mississippi state appeals court closed the door on the former head football coach at Alcorn State University (ASU), affirming a lower court’s decision not to take up his claim that he was unjustly terminated from his position by the university.
Ernest T. Jones entered into an employment contract with ASU on August 11, 2008. The contract read, in pertinent part:
“The Employee is hereby employed as Head Football Coach and Instructor . . . at ASU . . . for the period beginning January 2, 2008, and ending on December 31, 2011, at and for the sum of $140,000, payable in 12 monthly installments starting at the close of the months of January 2008 through December 2011, inclusive.
“This employment contract is subject to the following terms and conditions:
The laws of the State of Mississippi and policies and by-laws of the Board. …
The Board shall have the authority to terminate this contract at any time for the following reasons: Financial exigencies declared by the Board;
Termination or reduction of programs, or academic or administration units as approved by the Board;
Malfeasance, inefficiency, or contumacious conduct;
For cause.”
One of the additional clauses of the employment contract “provided that in the event that the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi (Board) decides to terminate this contract on the basis of the employee’s malfeasance, inefficiency, contumacious conduct, or for cause, both the coaching and instructional positions of the employee are terminable at any time, subsequent to written notice of the reasons for termination and a pre-termination hearing,” according to the court.
Darren J. Hamilton, ASU’s athletic director, gave written notice to Jones that ASU was considering terminating Jones’s employment as head football coach. In the letter, Hamilton cited inefficiency and malfeasance and identified the following reasons for recommending Jones’s termination:
“Opening ‘the Run-N-Gun’ bank account in your name and depositing fundraising monies for ASU’s football program without proper authority to do so and without following the proper procedures,
“Improperly purchasing and receiving footwear on behalf of ASU with a non-approved Nike vender when ASU has an exclusive footwear contract with Nike,
“Inefficiency in resolving the $11,000 goods order from Russell Athletics without authority to do so and without following proper procedures, and
“Contractually binding ASU for rooms reserved at the Marriott Hotel in Jackson, Mississippi, during the Capital City Classic without authority to do so and without following proper procedures.”
The letter also informed Jones of his rights, pursuant to the board’s policy, to have a due process hearing and to have an attorney present at the hearing. Specifically, the letter stated that if Jones chose to bring an attorney to the hearing, the attorney could “act only as an advisor and would not be allowed to present evidence or cross-examine witnesses,” but that Jones could himself present evidence, invite witnesses to speak on his behalf, and question witnesses.
Jones wrote a letter to Hamilton stating that he “expected and demanded” a due process hearing. Keyla McCullum, special assistant attorney general, wrote to Jones’s attorney and informed him that she would be acting as legal counsel for the ASU Grievance Committee (Committee), which consisted of three full-time employees of ASU. Her letter also informed him of the hearing procedures.
On January 16, 2009, the Committee held Jones’s due process hearing. After the hearing, the Committee recommended to ASU’s president, that Jones be terminated on the grounds of malfeasance and contumacious conduct and included their findings on each accusation. On January 26, 2009, President Ross wrote a letter to Jones informing him that he concurred with the Committee’s recommendation and that Jones was terminated as head football coach, effective January 28, 2009. Jones filed his petition for a writ of certiorari in circuit court, which dismissed the petition on the grounds that Jones did not meet his burden of proof regarding the Committee’s decision.
On appeal, the court looked at whether Jones was denied procedural due process and whether the circuit court failed to address this issue in its order.
“As Jones was a public employee with a contract with definite terms, he was entitled to due-process protections,” wrote the court. “Hamilton’s letter to Jones cited malfeasance and inefficiency as grounds for recommending his termination. The letter also included specific allegations against Jones and informed him of his right to a hearing. Therefore, Jones received adequate notice as required by procedural due process. Also, ASU granted Jones a hearing that gave him a fair opportunity to be heard and to rebut the allegations being made against him. Jones argues that the hearing was unfair, as his attorney was not allowed to cross-examine witnesses or present evidence, and that McCullum acted as if she were a judge presiding over the hearing. However, Hamilton explained in his letter to Jones that Jones’s attorney would only serve as an advisor and could neither present evidence nor cross-examine witnesses. Also, it is clear in the transcript that McCullum effectively ran the hearing based on proper protocol and procedure. Accordingly, ASU did not violate Jones’s due-process rights. This issue is without merit.”
Next, the court considered Jones’ argument that ASU “possessed no reason or judgment” in the decision to terminate him and that the termination of his contract was arbitrary and capricious.
Relying on case law, the appeals court held that it could not find that the Committee’s findings “were without reason or implied a lack of understanding. The evidence throughout the record and transcript supports the Committee’s findings. Jones opened the Run-N-Gun account as a separate account for fundraising monies for ASU-football radio and television shows. Jones was the only person who had control over the account. When told to close the account because he did not have approval to open the account, Jones wrote a $7,674.67 check to the ASU Foundation out of the account, leaving $2,506 unaccounted for, which Jones claims was used to pay for concessions for one of the fundraisers. Hamilton stated that he knew of and approved these fundraisers, but did not know that the money that was raised was going into a separate personal account instead of the Foundation’s account. The Committee found that there was no administrative oversight on how the Run-N-Gun account was operated, how cash and check receipts were processed, or how withdrawals were made.
“With regard to the purchase of footwear on behalf of ASU from a non-approved Nike vendor, the Committee found that Jones had previously been allowed to purchase goods from vendors of his choice without prior approval. The Committee further found that Jones had no knowledge of ASU’s exclusive Nike contract. As for the inefficiency in resolving the issue of an $11,000-goods order that was made without authority, the Committee found that Jones himself did not initiate the order. However, the Committee also found that Jones was uncooperative in assisting ASU’s athletic department in resolving the problem. Further, Jones made no effort to confirm the meeting date or attend the meeting scheduled for the purpose of addressing the outstanding bill.
“Finally, regarding the allegation that Jones did not follow the proper procedure or obtain authority to bind ASU for rooms at the Marriott Hotel in Jackson, Mississippi, for the Capital City Classic, the Committee found that ‘Jones’s self-interest had taken precedence over the university’s interests.’ The Committee also found that Jones contractually bound ASU without initiating a requisition or obtaining the purchase order. Even though ASU was able to recoup expenses for some of the unused hotel reservations, ASU still incurred additional expenses for the remaining unused hotel reservations.
“The Committee considered the testimony and exhibits from the hearing and made recommendations that were neither arbitrary nor capricious. The Committee supported its recommendation with the evidence and testimony presented at the hearing, indicating that there was no lack of reasoning or understanding, or disregard for the surrounding facts and settled controlling principles. Thus, the Committee’s decision was not arbitrary and capricious, and the circuit court did not err in dismissing Jones’s petition for a writ of certiorari.”
Ernest T. Jones v. Alcorn State University et al.; Ct. App. Miss.; NO. 2011-SA-01004-COA, 2013 Miss. App. LEXIS 534; 8/27/13
Attorneys of Record: (for appellant) Wayne E. Ferrell Jr., Paul Anderson Koerber. (for appellees) Alan M. Purdie.
