Session April 07, 2015
Appeal from the Circuit Court for Montgomery County No. MCCHCVDT10005 Michael R. Jones, Judge
Peter M. Napolitano, Clarksville, Tennessee, for the appellant, Jimmy Dill.
W. Timothy Harvey and Rebecca J. Garman, Clarksville, Tennessee, for the appellees, The City of Clarksville and Mayor Johnny Piper, and Alonzo Ansley, Chief of Police.
Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.
ARNOLD B. GOLDIN, JUDGE
This is the second appeal of this matter in this Court. The relevant background facts giving rise to the current appeal are not disputed. Plaintiff/Appellant Jimmy Dill ("Officer Dill") was employed by the City of Clarksville ("the City") as a police officer for twenty-three years until the City terminated his employment in August 2010.
On August 4, 2010, Officer Dill was advised by memorandum that he had been charged with violating certain general orders and provisions of the City Code ("the Code") in a July 2010 incident. He was advised that a "pre-decision discussion" with Chief of Police Alonzo Ansley ("Chief Ansley") was scheduled for August 9 and that he would have the opportunity to present statements, witnesses, and other relevant information at the August 9 meeting. In the course of the August 9 meeting, Officer Dill was presented with a notice of discipline terminating his employment effective that day. The notice also advised Officer Dill of the right to appeal the action. Officer Dill appealed the decision to terminate his employment to Clarksville Mayor John Piper ("Mayor Piper"), asserting that the decision was not supported by substantial and material evidence. Officer Dill also asserted that the procedure by which he was terminated violated his due process rights under the Code. The Mayor affirmed the decision, and Officer Dill filed a petition for a writ of common law certiorari in the Chancery Court for Montgomery County. Dill v City of Clarksville, No. M2012–00356–COA–R3–CV, 2012 WL 5431694, at *1 (Tenn. Ct. App. Nov. 6, 2012) ("Dill I").
In his petition for review, Officer Dill named the City, Mayor Piper, and Chief Ansley as Defendants. Officer Dill alleged that the decision to terminate his employment was arbitrary and capricious and was made in violation of his due process rights. He asserted that Section 1-1316 of the Code established the applicable disciplinary procedures and that the City had failed to follow those procedures. He prayed for the court to issue a writ of certiorari; for reversal of the termination of his employment; for reinstatement; for an award of back pay and benefits; and for an award of attorney's fees.
In December 2010, the City filed a motion to dismiss Mayor Piper and Chief Ansley and certain claims against the City. The City asserted in its motion that the only purpose of the common law writ of certiorari prayed for by Officer Dill is to review the record to determine whether the decision was illegal, arbitrary, fraudulent, or beyond the agency's jurisdiction. By order entered March 1, 2011, the trial court granted the City's motion to dismiss Mayor Piper and Chief Ansley. It also dismissed all claims against the City other than Officer Dill's request for a writ of certiorari review under Tennessee Code Annotated § 27-28-101.
The trial court heard the matter on August 4, 2011. By opinion entered August 15, 2011, the trial court determined that audio and video recordings established the infractions alleged by the police department "beyond any doubt." It further determined that Officer Dill received notice of the charges against him and was afforded the opportunity to respond and present information, statements, and witnesses. It also found that "the record established a thorough investigation and documentation of the investigation." The trial court concluded that "due process requirements were met[, ]" but that the City had failed to follow the procedures set-forth in Section 1-1316(f)(1)(b) of the Code, which provided:
b. Except as provided in subsection (f)(1)c., allegations of employee misconduct which could warrant reduction in pay, suspension without pay, demotion, or termination, will be thoroughly investigated and documented at the department level. Prior to the decision on any discipline by the department head, the employee will be afforded due process as set forth in subsection (C). Upon completion of the investigation and application of due process, the department head will decide whether to impose discipline, and what discipline to impose. If the department head decides to impose discipline of reduction in pay, suspension without pay, demotion, or termination, the department head will first forward the results of his or her investigation and decision, with all supporting documentation or materials, to the human resources department head. The human resources department head will verify that the employee was afforded due process, and that the discipline is appropriate and generally consistent. Upon such finding, the human resources department head will so notify the appropriate department head of the employee. The department head will then inform the employee in writing of the discipline decision, and will advise the employee of his or her right to appeal. The employee will have ten (10) calendar days to appeal the decision by notifying the human resources department head in writing. If the employee does not appeal the discipline decision, or does not appeal in a timely manner, the discipline shall become final.
The trial court determined that the matter was not referred to the head of human resources for review after the pre-decision hearing and before termination of Officer Dill as required by the section. The trial court ruled:
It is the opinion of this court that the failure to follow the rules set forth by Sec. 1–1316(f)(1)(b) demands that the court send this matter back to the City of Clarksville for that determination. The termination of the Petitioner meets the requirements of due process and is effective as of August 9, 2011, subject to human resources reviews.
In September 2011, the City filed a motion for entry of a final order or, in the alternative, for a relief from judgment pursuant to Tennessee Rule of Civil Procedure 60. In its motion, the City averred that the termination date recited by the court was in error, and that the correct termination date was August 9, 2010. Officer Dill filed a motion for clarification on October 5, 2011. In his motion, Officer Dill asked the court, inter alia, to clarify "what is to happen procedurally after the termination matter is sent back to the City and subjected to Human Resource[s] Director for a
'determination.'" Officer Dill additionally queried:
Respectfully, how does the Appellant and his counsel learn of and evaluate the City's Human Resource Director's review to determine if discipline was "equally applied and to the extent possible, was consistent and progressive in nature" pursuant to City Code §1-1316(b).
Respectfully, if the City Human Resources Director determines that the termination was not equally applied, or consistent or progressive to Support termination, would that change the Court's opinion that the Petitioner was afforded due process as required? In any event, does the Human Resources Director's determination either way trigger a new appeal to the Mayor?
Respectfully, the court's Opinion in the last paragraph is contradictory in that on the one hand, the Court finds:
"the failure (of the city) to follow the rules set forth by Sec. 1-1316(f)(1)(b) demands that the court send this matter back to the City of Clarksville for that determination."
However, the last sentence states the "termination of the Petitioner meets the requirements of due process and is effective as of August 9, 2011, subject to Human Resources Review".
Respectfully, since the review by the Human Resources Director is part of the due process procedures and rights of Petitioner, and the court found this process was not followed, how then can the termination be upheld by the Court absent compliance with due process?
The City filed a response to Officer Dill's motion on October 17. In its response, the City stated that it had forwarded the trial court's August 15 opinion to the appropriate representatives for completion of the court's mandate. The City attached to its response correspondence from W. Timothy Harvey ("Mr. Harvey"), the City's attorney of record, to Will Wyatt ("Mr. Wyatt"), head of the City's human resources department, dated September 6, 2011, in which Mr. Harvey wrote:
Would you please prepare to review the department head's determination of discipline along with the results of the investigation as the Human Resource Department head to determine if the employee was afforded due process and that the discipline is appropriate and generally consistent in context of Section 1-1316 (b)? Will you please reduce to writing the review you undertake and include that record in the employee file, sending a copy to me? Will you please sign and date the document you prepare in that regard?
The City also attached an unaddressed, one-paragraph writing from Mr. Wyatt dated September 19, 2011, that stated:
I have reviewed the supporting documentation provided by Chief Ansley in the termination of former Police Officer, Jimmy Dill. I have established that Officer Dill was afforded due process, and that the discipline ...