McFadgon v. City of Memphis
| Decision Date | 18 February 1986 |
| Citation | 731 S.W.2d 530 |
| Parties | Karl McFADGON, Petitioner-Appellee, v. CITY OF MEMPHIS; Memphis Police Department; John D. Holt, Director of Police; and City of Memphis Civil Service Commission, Defendants-Appellants. 731 S.W.2d 530 |
| Court | Tennessee Court of Appeals |
Clifford D. Pierce, Jr., City Atty. and Charles V. Holmes, Sr. Asst. City Atty., for defendants-appellants.
Thomas B. Hansom, Memphis, for petitioner-appellee.
This lawsuit involves the dismissal of the plaintiff from his employment as an officer with the Memphis Police Department. The department dismissed the plaintiff on March 7, 1983, for reasons growing out of an incident which occurred on February 21, 1983. The plaintiff appealed to the Memphis Civil Service Commission, which body upheld his termination by dismissing his appeal on July 23, 1984. The plaintiff filed his Petition for Writ of Certiorari in the Circuit Court, which court reversed the commission's order and remanded the cause back to the commission for a hearing. The city appeals the order of remand to this court.
The plaintiff-policeman, while on duty, investigated an automobile collision in the City of Memphis. As result, he took a young woman who was at the scene of the accident to his brother's home where he and the young lady engaged in sexual conduct. At that time the plaintiff reported falsely by radio to the department of his whereabouts, and was absent from his assigned duties for about one and one-half hours. As result, the department brought charges against the plaintiff, one charge being that the plaintiff had violated a department regulation concerning neglect of duty. An administrative hearing was held on March 7, 1983, which resulted in the termination of plaintiff's employment as of that date.
The plaintiff appealed to the civil service commission, but a hearing on that appeal was delayed, at the request of the plaintiff, until the final disposition of criminal charges brought against the plaintiff growing out of the same incident.
The Shelby County Grand Jury indicted the plaintiff for, among other things, the following:
Karl McFadgon ... during a period between February 21, 1983, and February 23, 1983 ... did unlawfully and willfully neglect to perform his duty, in that he, the said Karl McFadgon, did knowingly give false information, by oral communication, to the Memphis Police Department in connection with a duty assignment, at a time when the said Karl McFadgon was on duty as a commissioned police officer of the municipality of Memphis, Tennessee, in violation of Section 39-5-402 of the Tennessee Code Annotated. (R. 38)
The plaintiff was convicted of this charge by a jury on February 29, 1984. This conviction has become final.
Thereafter, the City of Memphis by letter to the civil service commission raised a preliminary issue concerning the plaintiff's appeal to the commission. The city argued that because the plaintiff-officer was convicted of the foregoing charge his termination is mandatory as directed by state statute, and that he is thereby barred from being an officer in the future. The statute the plaintiff was found guilty of violating is Section 39-5-402, Tennessee Code Annotated, which provides:
T.C.A. Sec. 39-5-402. Neglect of Duty-Misdemeanor-It shall be a misdemeanor for any public officer or person holding any public trust or employment, willfully to neglect to perform his duty, where no special provision has been made for the punishment of such delinquency.
As a basis for its argument that the plaintiff is now disqualified to be an officer, the city cites Section 39-5-401, T.C.A., which reads as follows:
39-5-401. Removal from Office and Disqualification as additional penalty for misdemeanor in office--If any judicial, ministerial, or executive officer is prosecuted for a misdemeanor in office under the provisions of this code, and duly convicted, he shall, in addition to the punishment prescribed for such offense, be removed from his office, and shall forever thereafter be disqualified from holding office under the laws and constitution of this state.
A hearing on the plaintiff's appeal to the civil service commission was set for July 20, 1984. On that date the city and the plaintiff appeared with counsel. The record of plaintiff's conviction was produced, and the commission dismissed the plaintiff's appeal without further proof. The commission...
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