Watts v. Civil Service Bd. for Columbia

• Citation: 606 S.W.2d 274
• Parties: Frank WATTS, Plaintiff-Applicant, v. CIVIL SERVICE BOARD FOR COLUMBIA, Defendant-Respondent.
• Decision Date: 08 September 1980
• Court: Tennessee Supreme Court

Page 274

606 S.W.2d 274

Frank WATTS, Plaintiff-Applicant, v. CIVIL SERVICE BOARD FOR COLUMBIA, Defendant-Respondent.

Supreme Court of Tennessee.

Sept. 8, 1980.

Jack B. Henry, Henry & Henry, Pulaski, for plaintiff-applicant.

Courtney, Fleming & Gray, Columbia, for defendant-respondent.

OPINION

BROOKS McLEMORE, Special Justice.

The Civil Service Board for the City of Columbia found city policeman Frank Watts, the plaintiff-applicant (hereinafter called the plaintiff) guilty of "disobeying a written directive of the Chief of Police and conduct unbecoming an officer, both violations of the Standard Operating Procedure Manual of the Columbia Police Department." The Board's action thus affirmed the action of the City Manager in suspending indefinitely the plaintiff from the Columbia Police Department. At the behest of plaintiff, writ of certiorari was issued by the Circuit Court of Maury County to review the action of the Board. After a hearing, the Circuit Court entered a judgment, containing findings of fact, which sustained the action of the Civil Service Board. Upon appeal, the Court of Appeals affirmed the judgment of the Circuit Court. This court granted plaintiff's application to appeal to review that action.

We have duly considered the facts set forth in the plaintiff's motion under Rule 14 for consideration of post-judgment facts.

The issues stated in the plaintiff's brief before the Court of Appeals and in this court, though not identically worded, may be treated as being the same. When the issues are narrowed, the plaintiff contends that a "heated discussion" with the District Attorney General was nothing more than the exercise of his First Amendment rights of free speech as made applicable to the states and its instrumentalities by the Fourteenth Amendment. Secondly, he contends that no one may prevent him from presenting evidence to a grand jury and that he may not be disciplined for this act even though he failed to follow procedures expressly directed to him by his superiors. Finally, the plaintiff contends that the action of a majority of the Civil Service Board was arbitrary because of bias or prejudgment. The Board's position is that the plaintiff was terminated simply and solely because of his lack of cooperation with his superiors by disregarding the proper procedures of the police department when given direct orders and for conduct unbecoming an officer in an oral confrontation with the District Attorney General.

The facts which the Civil Service Board heard and the Circuit Court reviewed were fully set forth in the record certified to the Circuit Court. In addition to the evidence heard before the Civil Service Board, the Circuit Court alone heard evidence with respect to whether or not the Board acted illegally, arbitrarily or capriciously toward the plaintiff.

The parties concede, and we hold, that the scope of court review of the action by the Civil Service Board is that afforded by the common law writ of certiorari. T.C.A. § 27-914.

The scope of this review is properly set forth in the Court of Appeals' opinion as follows:

"In such actions the reviewing court is limited to inquiry as to whether the administrative agency acted fraudulently, illegally or arbitrarily. Hoover Motor Express Company v. Railroad and Public Utilities Commission, 195 Tenn. 593, 261 S.W.2d 233 (1953).

Under the common law writ of certiorari, questions of law only will be reviewed by the courts. An action of an administrative agency which is not supported by any evidence is arbitrary and void and may be quashed on common law writ of certiorari. Whether or not there is any material evidence to support the action of the agency is a question of law to be decided by the reviewing court upon an examination of the evidence introduced before the agency. Any additional evidence offered to the reviewing court is limited to the question of whether the agency exceeded its jurisdiction or acted fraudulently, illegally or arbitrarily. Hoover Motor Express Co., Inc. v. Railroad & Public Utilities Commission, 195 Tenn. 593, 261 S.W.2d 233 (1953). People's Bank of Van Leer v. Bryan, 55 Tenn.App. 166, 397 S.W.2d 400 (401); Bayside Warehouse Co. v. Memphis, 63 Tenn.App. 268, 470 S.W.2d 375; Brown v. Tenn. Real Estate Comm., Tenn.App. 1972, 494 S.W.2d 506, cert. den. 414 U.S. 877, 94 S.Ct. 54, 38 L.Ed.2d 122."

In the trial court, under the common law writ, reversal or modification of the action of the Civil Service Board may be had only when the trial court finds that the Board has acted in violation of constitutional or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure or been guilty of arbitrary or capricious action; or has acted without material evidence to support its decision. The trial court does not weigh the evidence. The scope of review by the appellate courts is no broader or more comprehensive than that of the trial court with respect to evidence presented before the Board.

The trial court and the Court of Appeals both were of the opinion that there was material evidence to support the action of the Board. The trial court found that the Board did not act illegally, arbitrarily or capriciously and the Court of Appeals found that the evidence did not preponderate otherwise.

We affirm the judgment of the Court of Appeals.

The plaintiff, a patrolman with twelve years' experience, was requested by one Monty Luna in the latter part of 1975 to find out what had happened to his Luger hand gun that had been confiscated as stolen property by Officers Allen and Duncan of the Columbia Police Department. The plaintiff took this complaint in his capacity as an officer. Luna later testified that this hand gun had been purchased by him from Ernie Anglin for two hundred and fifty dollars. The plaintiff made an investigation and, subsequently, orally reported to the Chief of Police at his home on December 31, 1975. The Chief of Police then made an investigation which included an internal investigation of procedures followed by another officer with respect to possession of the hand gun. Neither an official file nor a report of the results of the investigation was ever made by the plaintiff about his investigation for the records of the Columbia Police Department.

On June 4, 1976, the plaintiff, apparently without the knowledge of his superiors in the police department, testified before the Grand Jury of Maury County in his capacity as a police officer ¹ and gave testimony concerning Ernie Anglin. The grand jury returned an indictment against Anglin for the offense of concealing stolen property.

When the accused appeared for trial in January, 1977, the Assistant District Attorney General was of the opinion that the indictment was defective; and he was permitted to enter a nolle prosequi with the stated intention of seeking another indictment against the accused.

Later, the plaintiff learned through rumor or "the grapevine" that the District Attorney General was not going to seek indictment. On February 10, 1977, the plaintiff made an appointment with the District Attorney General for the circuit at his office in Lawrenceburg, Tennessee, where a "heated discussion" occurred when the District Attorney General advised the plaintiff, after stating his reasons, that he did not intend to re-submit the Anglin case to the Grand Jury. It is an undisputed fact that the speech in question was uttered completely within the context of plaintiff's employment relationship. The testimony, in part, of General Gay is as follows:

"Q. When Mr. Watts came to your office on the 10th of February, I believe you stated that as he, well he had left, he raised his voice. Was he hollering at you or what?

A. Yes, sir, he raised his voice and could be heard well down on the street. And I, of course, in the first I couldn't appreciate it because the dialogue that we had and as a result of him raising his voice perhaps I raised my voice when I asked him, 'not to shout at me or to raise his voice toward me.' Yes, sir, this occurred in my office."

"Q. Now, Mr. Gay, you said you could hear Mr. Watts' voice well down on the street?

A. Oh, I'm sure you could, yes, sir.

Q. And as he left your office, would you state again to the Board what he said to you--

A. He threatened, he threatened in the first place, 'there is going to be further investigation.' He said, first, 'no two-bit politician is going to tell him what to do.' And then he said, 'there'll be a further investigation on this and you may be involved too.' This was as he went down my stairs. My office is on the second floor and I couldn't appreciate a threat ...."

"Q. And it was after all of this that he raised his voice where he could be heard down on the street and said you were a two-bit politician? And --

A. Well I don't know, I'm not going to accuse Mr. Watts of saying that I was. The only thing he made reference to is, 'that no two-bit politician was going to tell him.' And then of course when he left and talked about investigations I considered it a threat, and that's the reason that I came and reported the incident to Chief Holton who in turn, by the way, called Mr. Barrett Jones into the office while I was making the statement."

"Q. Were you offended by the statements that he made?

A. Yes I was. I would not have reported it if I had not been. Yes, sir."

"MR. RALPH: He didn't use any profane or ---

THE WITNESS: No, sir, I couldn't say that Officer Watts used any profanity."

Plaintiff's account contained the following testimony:

"Q. And this was a very heated discussion between the two of you?

A. Yes, sir, very heated.

Q. And his statement that it could be heard all the way down on the street I assume that's probably right, then, if you're talking pretty loud --

A. I wouldn't doubt if they didn't hear it at the Courthouse.

Q. And you don't deny that you shouted at him?

A. And he shouted at me, yes, sir."

On February 21, 1977, plaintiff...