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Morgan v. Tennessee Civil Service Commission

Court of Appeals of Tennessee, Nashville

February 28, 2017

CHARLES VAN MORGAN
v.
THE TENNESSEE CIVIL SERVICE COMMISSION, ET AL.

          October 10, 2016 Session

         Appeal from the Chancery Court for Davidson County No. 14785II Carol L. McCoy, Chancellor

         Judicial review of a decision of the Tennessee Board of Appeals upholding the termination of a trooper with the Tennessee Highway Patrol for his conduct during a traffic pursuit. The trial court upheld the trooper's termination. On appeal, the trooper asserts that the administrative judge who heard the case erred in disregarding expert testimony and, as a consequence, the Board's decision is unsupported by substantial and material evidence. Discerning no error, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Brock Parks, Nashville, Tennessee, for the appellant, Charles "Van" Morgan.

          Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Eugenie B. Whitesell, Senior Counsel, for the appellee, Tennessee Civil Service Commission/Board of Appeals and Tennessee Department of Safety and Homeland Security.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural Background

         This appeal arises from the termination of Officer Charles Morgan, formerly a trooper with the Tennessee Highway Patrol. The salient facts surrounding the circumstances leading to his termination are contained in the Initial Order entered by the administrative judge assigned to hear Mr. Morgan's appeal and are incorporated below:

1. The Grievant was first employed in 2002 by the Department of Safety in Commercial Vehicle Enforcement, and in 2004, began his service as a Trooper in the Tennessee Highway Patrol, the law enforcement agency within the Tennessee Department of Safety. During his tenure with the Highway Patrol, he received multiple commendations for arresting a large number of DUI offenders.
2. During the early morning hours of November 26, 2011, the Grievant was assigned to perform over-night traffic duty in Knox County, Tennessee. At about 3:30 that morning, he saw a silver car traveling toward him in excess of the posted speed limit [79 MPH in a 40 MPH zone].
3. When the car passed the Grievant's patrol car, the Grievant activated his emergency equipment, turned around, and attempted to stop the car. When it failed to stop, the Grievant initiated a pursuit, following the car onto Anderson Pike, a mostly rural road in Knox County. Although the silver car was some distance ahead of the Grievant's car, he was able to follow by watching the car's tail lights. During the pursuit, the Grievant's car reached speeds in excess of 80 MPH.
4. When the pursued car drove over a small rise in the road, the Grievant lost sight of him. While out of the Grievant's sight, the driver apparently lost control of the silver car, failed to negotiate a slight left curve, and crashed his car into a tree less than fifteen (15) feet to right of the roadway, killing the driver on impact.
5. Moments later, the Grievant arrived at the crash scene. As he topped the rise in the road and was following the curve to the left, the Grievant's headlights illuminated the crash scene. The Grievant's in-car video recorder captured the silver car, crashed against the tree, its hood sprung open, and its tail light glowing.3 As he passed the crash site, the Grievant slowed his car [from 51 MPH to 45 MPH, then to 21 MPH], but he did not stop.
6. The Grievant then sped up, and radioed dispatch that he had lost sight of the pursued vehicle, and was terminating the pursuit. Less than a half-mile down the road, he pulled over at the side of the road, where he waited until he heard a radio dispatch message that a crash with injuries was reported at the location that he had just passed.
7. The Grievant then returned to the crash site, and parked with his headlights illuminating the scene. The silver car, crashed against the tree, was fully engulfed in flames, with the driver inside. The Grievant left his car with his fire extinguisher, and stood some distance from the burning vehicle, waving the fire extinguisher around and discharging it toward the tops of the flames.4 [He later admitted to two of his supervisors (Lt. Thomas and Sgt. Heatherly) that "I got out and got a fire extinguisher just to make it look good. . . I knew he was dead. .. But you know, you got to do that for the media and everybody else. I was just trying to put on a show. . ."]
8. After returning to his car, he telephoned his wife, and asked her to look up the phone number for the Police Benevolent Association (the organization that arranges for legal representation of officers accused of wrongdoing).
3 Although it is difficult to definitively discern from the in-car video recording, it is possible that the car was already on fire and smoking when the Grievant passed it. [Video recording: Hearing Exhibit #16]
4 The Department teaches Troopers to aim fire extinguishers at the base of flames, at their source.

         On December 14, 2011, Trooper Morgan was interviewed by representatives of the Internal Investigations Unit of the Department of Safety and Homeland Security ("DSHS") regarding the events that transpired on the night of the accident. On January 30, 2012, in accordance with the procedures for minimum due process in disciplinary actions contained at Department of Human Resources ("DHR") Rule 1120-10-.02, Mr. Morgan received a letter from Colonel Tracy Trott of the Highway Patrol informing him that Colonel Trott was recommending to the Commissioner of DSHS, Bill Gibbons, that Morgan's employment be terminated for violations of DHR Rule 1120-10-.05 (3), (11), and (27)[1] and Tennessee Department of Safety ("TDOS") General Order 216-1, Paragraphs II, IX, A (1, 2), B (4, 5, and 19).[2] Pursuant to the minimum due process procedures, Mr. Morgan was offered a discussion, which was conducted by Captain Steven Hazard on February 9, 2012. Captain Hazard concurred with Colonel Trott's recommendation and on February 10, Commissioner Gibbons issued Trooper Morgan a letter terminating his employment effective February 20, 2012.

         Mr. Morgan appealed his termination to the Tennessee Civil Service Commission[3]and a hearing was held on June 26, 2013, before Administrative Judge Randall LaFevor, who issued an Initial Order on March 17, 2014 dismissing the appeal; in accordance with Tennessee Code Annotated section 4-5-314(b), the Initial Order became the Final Order of the Board on April 1. Mr. Morgan timely filed a Petition for Review in Davidson County Chancery Court, alleging that the Board's decision "violates the standards set forth in T.C.A. § 4-5-322(h)."

         The court entered a Memorandum and Order on December 1, 2015, affirming the Board's decision. Mr. Morgan appeals, contending that the administrative judge erred in failing to consider the testimony of two expert witnesses; he also asserts generally that the evidence does not support his termination.

         II. Standard of Review

         Judicial review of agency decisions are conducted in the chancery court in accordance with the Uniform Administrative Procedures Act ("UAPA"), codified at Chapter 5 of Title 4 of the Tennessee Code, specifically, Tennessee Code Annotated section 4-5-322(b)(1)(A); the decision of the chancery court may then be appealed to this Court pursuant to Tennessee Code Annotated section 4-3-323.

         Review under the UAPA is narrow, rather than under the broad standard of review used in other civil appeals. Wayne County v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App. 1988). Specifically, Tennessee Code Annotated section 4-5-322(h) provides that:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(5)(A) Unsupported by evidence that is both substantial and material in the light ...

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