December 22, 2009 10:36:00 AM
Kristin Mamrack -
The attorney of a Columbus Fire Department employee terminated by the Columbus City Council, for violation of the city''s zero-tolerance substance abuse policy, has filed an appeal on the firing. But the city, which claims the appeal was not filed in a timely manner to the Civil Service Commission, has moved to dismiss the appeal.
The council, on Dec. 7, voted to fire Mitchell Banks, who served as a CFD fireman for about 18 months, after Banks reportedly missed part of a training session at the Mississippi Fire Academy in Jackson, was roused by the academy director and found to be intoxicated.
CFD Fire Chief Ken Moore had suspended Banks for the violation, and the council voted to terminate him.
Columbus'' Civil Service Commission rules state, "Any person so removed, suspended, demoted or discharged or combination thereof may, within 10 days from the time of such disciplinary action, file with the commission a written demand for an investigation, whereas the commission shall conduct such investigation."
According to the commission rules, which originate from the Mississippi Code and 1940 legislation to enact the Civil Service Commission, Banks had until Dec. 17 to appeal the termination to the Civil Service Commission, said Commission Chairman Al Hatcher.
"It does say clearly within 10 days from the time of his removal," Hatcher said, after reading aloud the section of code pertaining to the deadline, noting the Commission met Dec. 17, but no appeal had been filed with any of the three members of the commission. Glenn Jefferson and Thomas Moore Jr. also serve on the commission.
Attorney Rod Ray, who was retained by Banks on Dec. 16, said he mailed a notice to Columbus Mayor Robert Smith and City Attorney Jeff Turnage, indicating his intent to appeal the council''s ruling on Banks.
"He hired me and, within minutes, I filed notice (with Turnage and Smith)," he explained, noting he filed an appeal with the city, because the city was the governing body who terminated Banks.
"If the court rules against you, you appeal with them," he said. "Down the road, I''d file an appeal with the Civil Service Commission. Now, (the city is) filing a motion for dismissal based on the appeal wasn''t filed in a timely manner, which it was."
"It appears that he mailed the notice of appeal to the physical address of the city and it still hasn''t been received (by the mayor)," Turnage said Monday. "The appeal was supposed to be filed on Thursday and the rules say it should be filed with the Civil Service Commission. This is an important deadline. Once you''ve let a deadline for appeal run, the commission doesn''t have the jurisdiction to decide (the matter)."
Velma Woodard, secretary to Smith, confirmed by late Monday afternoon, a notice of appeal still had not been received by the mayor.
"My opinion is the guy works for the city and is covered by the Civil Service Commission," Ray said. "All they can do is make sure he was terminated properly. If they''re so confident they did the right thing, let it be heard by the Civil Service Commission.
"Where''s the equity in that?" he asked. "I don''t know why you don''t let a guy (be heard). All they''re going to do is decide if he was treated unfairly. It''s not his fault he hired me on the day before they''re saying the appeal was due. Why punish him?"
The Civil Service Commission meets monthly; the commission could call a special meeting to consider the matter, but two of the three commission members will be out of town for the holiday season, Hatcher said.