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City of Laurel6/21/2005
Brewer claims that the City intentionally delayed the criminal proceeding for an entire year and that the delay deprived him of the pay that he would have otherwise received.
. Mississippi Code Section 21-31-23 (Rev. 2001) provides that "reinstatement shall, if the commission so provides in its discretion, be retroactive, and entitle such person to pay or compensation from the time of such disciplinary action." In the case sub judice, the commission ordered Brewer to be reinstated immediately, but it did not order Brewer to be reinstated retroactively.
. The civil service commission has discretion to deny back pay just as it has discretion to modify a city's order of discipline. Beasley v. City of Gulfport, 724 So. 2d 883, 887-88 ( ) (Miss. 1998). Therefore, the civil service commission's award or denial of back pay should be affirmed if it is supported by substantial evidence. In Beasley, the civil service commission reinstated Beasley but denied Beasley's back pay. The commission found that there was substantial evidence of misconduct on the part of Beasley, but the misconduct was not sufficient to terminate him. Based on this evidence, the supreme court affirmed the commission's decision to reinstate without back pay. Id. at 888-89 ( ). Similarly, in the case sub judice, the evidence supports a finding that Brewer engaged in misconduct that was not serious enough to warrant termination.
. The evidence shows that the delay in the adjudication of the civil service hearing was caused by the actions of Brewer himself. Brewer insisted on delaying the civil service hearing until after the criminal matter was resolved, and Brewer requested continuances of the criminal matter itself. When the city judge and prosecutor recused themselves from Brewer's criminal matter, the City quickly appointed a temporary judge and prosecutor, in an order dated June 7, 2001. Brewer's criminal matter was initially set for February 5, 2002. Brewer's counsel requested that the matter concerning Breland be consolidated with Brewer's case. This request was granted, and the matter was reset for March 26, 2002, and then postponed again until May 21, 2002. When an employee is entitled to back pay, he has a duty to mitigate his damages. Eidt v. City of Natchez, 382 So. 2d 1093, 1095 (Miss. 1980).
. The civil service commission's denial of Brewer's back pay was supported by substantial evidence. On this issue, we affirm the civil service commission and reverse and render the decision of the circuit court.
. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. THE JUDGMENT OF THE CIVIL SERVICE COMMISSION FOR THE CITY OF LAUREL IS REINSTATED IN TOTO. COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS BETWEEN THE APPELLANT AND THE APPELLEE.
BRIDGES AND LEE, P.JJ., MYERS, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.
IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J.
IRVING, J., DISSENTING:
. I cannot agree with the majority decision affirming the judgment of the Circuit Court of Jones County which affirms the order of the Civil Service Commission of the City of Laurel (Commission). The Commission reversed the decision of the City of Laurel (City) terminating police officer Mark Brewer because of his exercise of excessive force in assisting a fellow officer execute the arrest of a citizen.
. There are two reasons why I cannot join my colleagues in the majority. First, I think the Commission either exceeded its jurisdictional powers or employed an improper standard. Second, I think our responsibility of adherence to precedence requires that this cas
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