Appeal from the Chancery Court for Madison County, No. 64109, Allen W. Wallace, Judge.
This appeal involves the termination of a sheriff's department employee. The employee was terminated and appealed the termination to the county civil service commission. The termination was upheld by the commission, based solely on expert testimony. The employee then sought judicial review. The motion for summary judgment filed by the employer sheriff's department was granted, and the employee's petition was dismissed. The employee now appeals. We find that the expert testimony on which the commission relied is incongruent with the undisputed facts in the record. Therefore, we conclude that the commission's decision is not supported by substantial and material evidence and is arbitrary and capricious. We reverse the grant of summary judgment in favor of the employer and remand for entry of judgment in favor of the employee.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded
The opinion of the court was delivered by: Holly M. Kirby, Judge
HOLLY M. KIRBY, J, delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.
FACTS AND PROCEEDINGS BELOW
After serving as a police officer in Dallas, Texas and Memphis, Tennessee, Petitioner/Appellant William Mitchell ("Mitchell") joined the Respondent/Appellee Madison County Sheriff's Department ("Sheriff's Department") in 1985. Mitchell received numerous promotions over his nearly twenty-year career with the Sheriff's Department. At the time of his termination, Mitchell was an Assistant Chief, serving as the Director of Jail Operations, and was fourth in command of the Sheriff's Department, serving under Madison County Sheriff David L. Woolfork ("Sheriff Woolfork").
In June 2005, Sheriff Woolfork attended the National Sheriff's Association conference in Louisville, Kentucky. Also attending the conference were Assistant Chief Dan Parr ("Assistant Chief Parr" or "Parr"), Sergeant Lisa Balderrama ("Sergeant Balderrama" or "Balderrama"), Sergeant Annette Martin ("Sergeant Martin"), Chief Tommy Cunningham ("Chief Cunningham"), and Chief Cunningham's wife.
When Sheriff Woolfork returned home from the Louisville, Kentucky conference on June 29, 2005, he retrieved the mail at his house and discovered a postcard addressed to his wife. The postcard was postmarked in the last week of June 2005*fn1 in Louisville, Kentucky and was purportedly from Sergeant Balderrama. The handwritten note on the postcard insinuated that Sergeant Balderrama had traveled to Kentucky with Sheriff Woolfork as part of an ongoing extramarital affair.*fn2
Alarmed by the postcard, Sheriff Woolfork immediately showed it to Sergeant Balderrama, who told Sheriff Woolfork that the handwriting on the postcard was not hers. Sheriff Woolfork contacted Assistant Chief Parr. Sheriff Woolfork and Assistant Chief Parr compared the signature on the postcard with a specimen of Sergeant Balderrama's signature and observed that the signatures looked similar. Sheriff Woolfork, however, did not believe that Sergeant Balderrama had any motive to send such a note.
Assistant Chief Parr then offered to contact a questioned document examiner in Canton, Ohio, with whom he was acquainted, Michael Robertson ("Robertson"), to ask him to examine the handwriting on the postcard. Prior to joining the Madison County Sheriff's Department, Assistant Chief Parr had owned and operated a security guard provider business in Ohio. Robertson operates his own private investigation business in Canton, Ohio. Assistant Chief Parr met Robertson in the course of operating his Ohio security guard business and had maintained contact with him. Sheriff Woolfork agreed with Assistant Chief Parr's suggestion and told him to contact Robertson.
As directed, Assistant Chief Parr contacted Robertson. Robertson agreed to examine the postcard. On July 2, 2005, Assistant Chief Parr faxed copies of the postcard, as well as exemplars of Sergeant Balderrama's handwriting, to Robertson. After examining these, Robertson told Assistant Chief Parr that, in his opinion, the handwriting on the postcard was not done by Sergeant Balderrama.
Robertson then agreed to examine exemplars of the handwriting of other Sheriff's Department employees to determine whether any of them may have written the postcard. Robertson asked Assistant Chief Parr to provide him with handwriting samples from employees who either attended the conference in Kentucky or had access to the Sheriff's Department personnel files.*fn3 As per the request, on July 4, 2005, Assistant Chief Parr faxed Robertson handwriting specimens from the following persons: Sergeant Martin, who had attended the conference in Kentucky; Amy Crowder, a former Sheriff's Department employee and a known associate of Sergeant Balderrama; Jon Broc, a former Sheriff's Department employee who had been terminated; Mitchell, and Parr himself, both of whom had had access at some point to Sheriff's Department personnel files.*fn4
The next day, on July 5, 2005, after reviewing the specimens provided via facsimile, Robertson tentatively identified Mitchell as the person whose handwriting was on the postcard. To verify this tentative identification, Robertson asked Assistant Chief Parr to provide him with original documents containing Mitchell's handwriting. Consequently, on July 7, 2005, Assistant Chief Parr drove to Ohio to deliver the postcard and documents to Robertson. Robertson photographed them and gave them back to Assistant Chief Parr, who returned to Tennessee three days later.*fn5
On July 13, 2005, Sheriff Woolfork told Assistant Chief Parr that he had learned that Sergeant Neina Murphy ("Sergeant Murphy") received a similar postcard on June 28, 2005.*fn6 Like the first postcard, the second postcard was postmarked in the last week of June 2005*fn7 in Louisville, Kentucky and was purportedly from Sergeant Balderrama. It read: "Wish you were here! My man and I are partying down! this place is nice!" Assistant Chief Parr faxed a copy of the second postcard to Robertson and mailed the original to him. The record does not reflect any steps that were taken in the internal investigation beyond having Robertson examine the postcards and selected handwriting exemplars.
After examining the photographs of the original documents delivered by Assistant Chief Parr as well as the second postcard, Robertson wrote a preliminary report concluding that Mitchell wrote both postcards. On July 19, 2005, Assistant Chief Parr received Robertson's written report, and forwarded the report to Chief Cunningham.
After receiving Robertson's report on the postcards, Chief Cunningham apparently concluded that no further investigation was necessary. At that point, he delivered and read to Mitchell a Statement of Charges ("Statement"), notifying Mitchell that he was being charged with violating the Sheriff's Department Operating Procedures. The statement said:
Notice is hereby given that you are charged with violation(s) of policy as shown below:
Madison County Sheriff's Dept. Operating Procedures:
Section III, General Rules and Regulations:
C. Professional Conduct and Responsibilities
1. Standard of Conduct: Members shall not engage in any conduct which constitutes conduct unbecoming an officer or neglect of duty.
2. Loyalty: Members shall maintain a loyalty to the Department and their associates as is consistent with the law and Departmental rules and regulations.
11. Criticism: Members shall not publicly criticize or ridicule the department, its policies or other employees by talking, writing, or expressing in any other manner where such talking, writing, or other expression tends to impair operation of the Department by interfering with its efficiency; interfering with the ability of supervisors to maintain discipline: or having been made with reckless disregard for truth or falsity.
Date of complaint: July 20, 2005
The finding of the above investigation indicates that you wrote a post card that was addressed to and mailed to the home of [Sheriff Woolfork's wife] and another post card that was addressed to and mailed to the home of Sgt. Neina Murphy, forging the signature of Sgt. Lisa Balderrama on both cards.
The Statement also advised Mitchell that he had a right to a hearing, to be assisted by counsel, to have a person of his choosing as a witness, and to present evidence on his own behalf.
Mitchell had been unaware of either the postcards or the investigation until Chief Cunningham read the Statement to him. Mitchell vehemently denied the allegations in the Statement and repeatedly offered to take a polygraph test to prove his innocence. He told Chief Cunningham to "get the polygraph ready" and that he "wouldn't take a polygraph for anything but, something like this."*fn8 Chief Cunningham simply acknowledged Mitchell's request to take a polygraph and advised Mitchell that he was suspended without pay pending the outcome of the internal investigation. Mitchell was given no further information on the underlying facts or allegations; he was not shown the postcards and was not informed that the Sheriff's Department had consulted with a questioned document examiner. At the conclusion of his meeting with Chief Cunningham, Mitchell's desk was emptied and he was escorted to his car.
Mitchell's pre-termination Loudermill hearing was held on July 27, 2005. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). Present at the hearing were Mitchell, Chief Cunningham, Mitchell's attorney, and the attorney for the Sheriff's Department. At the hearing, Mitchell was again read the charges in the Statement; he again denied them. During the hearing, for the first time, the Sheriff's Department provided Mitchell copies of both postcards. Mitchell was not informed of any other evidence supporting the charges, including Robertson's report identifying him as the person whose handwriting was on the postcards. Reviewing the postcards, Mitchell stated that he had never been to Louisville, Kentucky and had no family or friends in Louisville. Mitchell repeated his offer to take a polygraph test.
The next day, Mitchell's attorney sent the Sheriff's Department a letter expressing concern that the Loudermill hearing did not satisfy due process or basic notions of fairness. Mitchell's attorney noted that Mitchell was never questioned during the investigation and that he was shown the postcards for the first time at the Loudermill hearing. The attorney recommended that a handwriting expert be retained to review exemplars and to express an opinion on whether the handwriting on the postcards was Mitchell's handwriting.
After Mitchell's Loudermill hearing, Chief Cunningham recommended to Sheriff Woolfork that Mitchell be terminated. After reviewing Mitchell's personnel file*fn9 and the investigation report, Sheriff Woolfork concurred in Chief Cunningham's recommendation. Accordingly, on August 1, 2005, Sheriff Woolfork sent Mitchell a letter by certified mail informing him that his employment with the Sheriff's Department was terminated effective immediately. The letter advised Mitchell that he had the right to appeal the termination to the Respondent/Appellee The Madison County Civil Service Commission for Madison County Sheriff's Department ("Commission"). Mitchell filed his appeal.
In preparation for the post-termination hearing before the Commission, Mitchell hired a forensic document examiner, Thomas Vastrick ("Vastrick"), to review the postcards. Mitchell also sought discovery, arguing that his appeal proceedings were governed by the contested case provisions of the Uniform Administrative Procedures Act ("UAPA"), and thus that he should be permitted to conduct discovery in accordance with the Tennessee Rules of Civil Procedure.*fn10
Pursuant to this argument, Mitchell filed a motion to depose Sheriff Woolfork, and also sent the Sheriff's Department a request for production of numerous documents. His request included the County's investigative file; the factual basis of the allegations; the Sheriff's Department policies; Department files pertaining to Mitchell, Chief Cunningham, Sergeant Murphy, and Sergeant Balderrama; records reflecting the whereabouts and activities of Sheriff Woolfork, Chief Cunningham, Sergeant Balderrama, and Mitchell for the months of June and July 2005; cell phone records pertaining to Sheriff Woolfork, Sergeant Balderrama, Chief Cunningham and Mitchell for the months of June and July of 2005; and records reflecting travel expenditures by Sheriff Woolfork, Chief Cunningham, Sergeant Balderrama, and Sergeant Murphy in June and July of 2005.
The Sheriff's Department asserted that Mitchell's appeal proceedings were governed by the provisions of the Private Act establishing the Commission, which limited discovery, rather than the contested case provisions of the UAPA.*fn11 Consequently, the Sheriff's Department opposed the motion to depose Sheriff Woolfork and refused to produce the requested documents.
Mitchell then requested the same documents pursuant to the Tennessee Open Records Act.*fn12
The Sheriff's Department did not produce the documents in response to the Open Records Act request. Mitchell also filed a motion with the Commission to compel discovery.
In considering Mitchell's discovery requests, the Commission agreed with the position of the Sheriff's Department and held that Mitchell's ability to conduct discovery was limited. Consequently, the Commission found that it was authorized only to order the production of documents, and not authorized to compel depositions. The Commission ordered the Sheriff's Department to produce the County's investigative file; information in the County's possession relating to the factual basis of the allegations; the Sheriff's Department policies; and documents the County intended to introduce at the hearing. Mitchell's other document requests were rejected.
The Commission hearing on Mitchell's appeal was held on June 14, 2006. The Commission heard testimony from Sheriff Woolfork, Assistant Chief Parr, Mitchell, Sergeant Balderrama, Sergeant Murphy, and the expert witnesses, Robertson and Vastrick. Seven exhibits were entered into evidence, including both postcards, the internal investigation report, apparently including Robertson's report, and Vastrick's report.
Sheriff Woolfork testified at the outset of the Commission proceedings. He said that he found the first postcard in his mailbox at his home as soon as he returned from the conference in Louisville, Kentucky, and that he gave the postcard to Assistant Chief Parr. After doing so, Sheriff Woolfork said, he had "no direct involvement" in the investigation beyond "some minor conversations" with Robertson after Assistant Chief Parr contacted Robertson. Sheriff Woolfork conceded that the investigation into the postcards was "a little different than the normal investigation" because he was the complainant.*fn13 He stated that, ordinarily, Lieutenant Blackwell conducted such internal investigations. In this case, however, Sheriff Woolfork decided to assign the investigation to Assistant Chief Parr because Parr knew expert Robertson.
Sheriff Woolfork testified that it was his decision to terminate Mitchell's employment. He said that Robertson's report, in which he concluded that the handwriting on the postcards was Mitchell's handwriting, was the "major part" of the decision to terminate. Sheriff Woolfork said that he did not have "any idea" what Mitchell's motive would be for sending the postcards. Sheriff Woolfork conceded that he did not attend Mitchell's pre-termination Loudermill hearing.
On cross-examination, Mitchell's attorney began asking Sheriff Woolfork whether he had traveled to other conferences with Sergeant Balderrama, why he would choose to have a lower-level employee such as Sergeant Balderrama attend a conference instead of a more highly-ranked employee, and other questions apparently designed to determine whether Sheriff Woolfork had in fact been involved in an inappropriate relationship with Sergeant Balderrama. The attorney for the Sheriff's Department immediately objected on relevancy grounds. Although Mitchell's attorney explained that the questions were designed to show that employees other than Mitchell had reason to send such postcards, the Commission sustained the objection and would not permit the line of questioning. Mitchell's attorney then stated for the record that, had he been permitted to continue, he could have shown an inappropriate relationship between Sheriff Woolfork and Sergeant Balderrama. Likewise, Mitchell's attorney sought to place into evidence an audit by the State Comptroller finding expressly that the use of Sheriff's Department credit cards and expense accounts for Sergeant Balderrama to attend the Louisville, Kentucky conference had been found by the auditors to be contrary to policy, because she attended the conference for "personal reasons" and had no business there. The Sheriff's Department attorney again objected, and the Commission excluded the evidence, finding that it was not relevant.
Assistant Chief Parr testified next. He said that, even though Lieutenant Blackwell normally conducted internal investigations, Sheriff Woolfork contacted him when he received the first postcard. Assistant Chief Parr immediately mentioned to Sheriff Woolfork that he knew expert Robertson, and Sheriff Woolfork told him to contact Robertson and obtain an opinion from him on whether the handwriting on the postcard was by Sergeant Balderrama. When Robertson concluded that Sergeant Balderrama did not write the postcard, Parr said, he discussed the circumstances surrounding the first postcard with Robertson. After that, Parr said, Robertson began "leading the investigation," telling Parr to send him handwriting samples from persons who had attended the Kentucky conference and persons with access to personnel files. Parr was questioned at length about the depth of his investigation:
Q: All right. I think you also testified that he [Robertson] suggested anybody . . . that might have had access to personnel files; is that right?
Q: In fact, the personnel files are kept in your office, aren't they?
Q: And, in fact, Chief Mitchell has not been around the personnel files in well over a year; is that right?
Q: Did it ever occur to you to go outside of Mr. Robertson in investigating these charges, I mean, to look to other factors besides simply the handwriting expert?
A: . . . [T]o answer your question, no.
Q: . . . [T]he sheriff had made some suggestion that Mr. Robertson was the one that . . . set out the scope of the investigation, but your testimony is that you were in charge; is that right?
A: Well, I'd go with Mr. Robertson. I mean, this just hap - - - unfolded as it came along.
Q: You never interviewed Chief Mitchell, did you?
Q: Did you ever check any attendance records to see where Chief Mitchell was in ...