4-4-96

IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-CC-00143-SCT

MISSISSIPPI EMPLOYMENT SECURITY COMMISSION

AND OCEAN SPRINGS SCHOOL DISTRICT

v.

JAMES F. HARRIS

McRAE, JUSTICE, DISSENTING:

Because Harris' showing of the film, Silence of the Lambs, does not rise to the level of "misconduct" as contemplated by Miss. Code Ann. 71-5-513 (A)(1)(b) and the case law interpreting the statute, the circuit court correctly found that Harris was entitled to unemployment benefits. His conduct was neither wilful nor indicative of either a wrongful intent or evil design so as to warrant the denial of benefits. Accordingly, I dissent from the majority's decision to reverse the circuit court and reinstate the Employment Security Commission's decision.

Harris' decision to show the "R" rated movie requested by his students, some of whom were under the age of seventeen, evinces poor judgment, or perhaps, ordinary negligence.We note that the "R" movie rating requires that a child under the age of seventeen be accompanied by a parent. At school, the teacher stands in loco parentis. The burden is on the employer to show by "substantial, clear, and convincing evidence" that the former employee's conduct warrants disqualification from eligibility for benefits. Foster v. Mississippi Employment Security Comm'n, 632 So. 2d 926, 927 (Miss. 1994); Westbrook v. Greenville Council of Aging, 599 So. 2d 948, 949 (Miss. 1992); Mississippi Employment Security Comm'n v. Flanagan, 585 So. 2d 783, 785 (Miss. 1991). The Ocean Springs School Board has failed to show that Harris' conduct was "wilful and wanton" or of such a degree "as to manifest culpability, wrongful intent or evil design . . ." See Wheeler v. Arriola, 406 So. 2d 1381, 1383 (Miss. 1982). At best, the Board, which characterized Harris' actions as not using good judgment, has shown merely an isolated incident of ordinary negligence or a good faith error in judgment or discretion, neither of which warrant a finding of misconduct by the Commission. Wheeler, 406 So. 2d at 1383. Thus, the Commission's findings were not supported by substantial evidence and its decision properly was reversed by the circuit court.