Case v. Shelby County Civil Serv. Merit Bd.

• Decision Date: 19 July 2002
• Citation: Case v. Shelby County Civil Serv. Merit Bd., 98 S.W.3d 167 (Tenn. App. 2002)
• Parties: Steven CASE v. SHELBY COUNTY CIVIL SERVICE MERIT BOARD, et al.
• Court: Tennessee Court of Appeals

98 S.W.3d 167

Steven CASE v. SHELBY COUNTY CIVIL SERVICE MERIT BOARD, et al.

Court of Appeals of Tennessee, at Jackson.

May 22, 2002 Session.

July 19, 2002.

Application for Permission to Appeal Denied By Supreme Court December 9, 2002.

COPYRIGHT MATERIAL OMITTED

Mark Allen, Memphis, Tennessee, for the appellant, Steven Case.

Martin Zummach, Germantown, Tennessee, for the appellee, Shelby County Civil Service Merit Board and Shelby County Government.

DAVID R. FARMER, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY K. LILLARD, J., joined.

OPINION

Petitioner was a classified Shelby County employee who was terminated following a hearing before the County's Civil Service Merit Board. Petitioner appealed the Board's decision to chancery court, which found that Petitioner's own statements at his pretermination hearing constituted sufficient evidence to sustain the Board's action. The chancellor accordingly affirmed the decision of the Board. Petitioner appeals the chancellor's ruling, alleging he was deprived of due process and that there was no substantial evidence to support the Board's determination. We affirm.

Mr. Case was employed as an electrical inspector for the Memphis and Shelby County Office of Construction Code Enforcement (the County), a position he had held for 16 years. As a classified county employee, his terms of employment were governed by the Civil Service Merit Act, 1971 Tenn. Priv. Acts ch. 110 ("the Merit Act"). The Merit Act governs, inter alia, disciplinary procedures for classified county employees, and provides that employees governed by the Act are not employees at will, but may be terminated only for just cause.

On September 7, 1999, Mr. Peter Schultz, Administrator Construction Code Enforcement, notified Mr. Case by letter of the possibility that disciplinary action would be taken against him as a result of charges of willful disregard of lawful orders, misconduct while on duty, unsatisfactory work, gross negligence, and failure to carry out instructions. The charge of misconduct was largely based on an August incident of alleged aggressive behavior toward a supervisor, Mr. Joe Hales, in connection with a disciplinary report prepared by Mr. Hales against Mr. Case. These charges were based on complaints made by Mr. Hales and two other supervisors, Michael Crossnine and Mike Grogan. Mr. Schultz's letter included a description of the charges and the disciplinary actions being considered. It provided Mr. Case with an opportunity to refute the charges at a pretermination meeting and notified him that a representative could accompany him to the meeting.

A pretermination meeting, known as a Loudermill hearing, was held in late September.¹ The hearing was attended by Ms. Doris Alston, Deputy Administrator of Code Enforcement, and Mr. Lou Albonetti, Chief Electrical Inspector, in addition to Mr. Case and Mr. Schultz. Mr. Case's representative at the hearing was Mr. Jerry Smith, who was permitted to observe and take notes, but not to otherwise participate. Mr. Case was advised that the purpose of the hearing was to provide him with an opportunity to respond to the accusations against him. The Loudermill hearing lasted approximately 90 minutes. Mr. Case presented his account of the incident giving rise to accusations of aggressive behavior toward a supervisor, as well as explanations concerning allegations of unsatisfactory work, disregard of orders and failure to carry out instructions. In short, Mr. Case was afforded the opportunity to fully present "his side of the story," although he was not permitted to confront his supervisors directly.

Shortly after the Loudermill hearing, Mr. Case was notified by Mr. Schultz by letter that his employment was being terminated based on the findings of the Loudermill committee regarding willful disregard of lawful orders, acts of misconduct while on duty, unsatisfactory work, and intentional failure to carry out instructions. Mr. Schultz also advised Mr. Case that he had a right to appeal his termination to the Shelby County Civil Service Merit Board (the Board) within seven days.²

Mr. Case appealed to the Board, which held a hearing on June 29, 2000. The County's evidence at the Board hearing consisted of a transcript and summary of the Loudermill hearing, documentary evidence, and testimony of Ms. Alston and Mr. Albonetti. Mr. Case objected to the admission of the Loudermill transcript and portions of Ms. Alston's testimony on the grounds of hearsay. Mr. Case argued that to admit the transcript and Ms. Alston's testimony without providing him the opportunity to confront the primary accusers constituted a denial of due process. Mr. Case did not cross-examine Ms. Alston. Mr. Case was permitted to subpoena witnesses and defense testimony was offered by five witnesses, in addition to Mr. Case. Neither Mr. Hales not Mr. Schultz testified before the board. Mr. Hales had suffered an incapacitating head injury and was unable to testify, and Mr. Schultz was in Alaska at the time of the hearing. Mr Crossnine and Mr. Grogan, supervisors who were eyewitnesses to the August incident giving rise to the charge of aggressive behavior, also did not testify and apparently were not subpoenaed by either party. The Board sustained all charges.

Mr. Case filed a writ of certiorari in Shelby County Chancery Court appealing the Board's decision.³ In his petition for certiorari, Mr. Case contended that he was "denied the right to cross-examine any of the charging witnesses against him" and that "[t]he Civil Service Merit Board's denial of [his] right to confront the witnesses against him constituted a violation of the due process provision of the Fourteenth Amendment of the United States Constitution." He submitted that the Board's decision was therefore "arbitrary, without basis in law in fact, in excess of the statutory authority of the Agency, as an abuse of discretion in violation of the due process and equal protection provisions of the United States Constitution and in violation of the law of the land provision of the Constitution of Tennessee."

The trial court heard the matter on June 19, 2001. In making his determination, the chancellor correctly noted that his review was limited to whether the decision of the board was supported by any substantial and material evidence, regardless of whether the court would have reached the same conclusion. The chancellor did not address Mr. Case's due process argument, finding that even if the due process concerns regarding the post-termination review by the Board were resolved in Mr. Case's favor, Mr. Case's own testimony at the Loudermill hearing was sufficient evidence to support a finding of just cause for dismissal by the Board. The chancellor accordingly affirmed the decision of the Board. Mr. Case now appeals to this Court, arguing that the Board's decision was arbitrary, unsupported by substantial and material evidence, made upon unlawful procedure, and made in violation of due process.

Issues

The dispositive issues in this case, as we perceive them, are:

(1) Whether the appellant has a due process right under the Fourteen Amendment to the United States Constitution to confront and cross-examine adverse witnesses in an employment termination hearing.

(2) Whether the appellant was denied the opportunity to confront and crossexamine adverse witnesses.

(3) Whether the decision of the Civil Service Merit Board was arbitrary, illegal, or unsupported by substantial and material evidence.

Standard of Review

This is an appeal from the trial court's dismissal of a common law writ of certiorari. Such a writ is available from administrative decisions where an administrative board or agency is acting in a judicial or quasi-judicial capacity. Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983). The Tennessee code provides:

The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the plain judgment of the court, there is no other plain, speedy, or adequate remedy.

Tenn.Code Ann. § 27-8-101 (2000).

Review under such a writ is limited to whether the inferior board or tribunal exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently. McCallen v. City of Memphis, 786 S.W.2d 633, 640 (Tenn.1990). The reviewing court does not weigh the evidence, but must uphold the board's decision if the board acted within its jurisdiction, did not act illegally or arbitrarily or fraudulently, and if there is any material evidence to support the board's findings. Watts v. Civil Serv. Bd. of Columbia, 606 S.W.2d 274, 276-77 (Tenn.1980); Davison, 659 S.W.2d at 363. These determinations are issue of law. Watts, 606 S.W.2d at 277. Our review of the trial court's conclusions on matters of law is de novo with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Tenn. R. App P. 13(d).

Due Process

We turn first to Mr. Case's contention that his due process rights were violated because he was not afforded an opportunity to confront the witnesses against him. This issue requires a two-part examination. First, we must address whether due process in an employment termination hearing requires an opportunity to confront and examine witness. Second, if due process demands such an opportunity, we must examine the record to determine whether that opportunity has been denied.

It is undisputed that Mr. Case was a classified employee in the Shelby County civil service whose terms of employment were governed by the Shelby County Civil Service Merit Act as enacted by 1971 Tenn. Priv. Act ch. 110. The Merit Act stipulates that classified county employees may be terminated only for just cause. 1971 Tenn. Priv. Acts ch. 110 § 21. Such employees possess a property interest in their continued employment...