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Looper v. City of Algood

Court of Appeals of Tennessee, Nashville

May 16, 2018

DANA LOOPER
v.
CITY OF ALGOOD

          Session March 27, 2018

          Appeal from the Chancery Court for Putnam County No. 2015-232 Larry B. Stanley, Jr., Judge

         Former police officer appeals the denial of her petition for a writ of certiorari and the denial of her motion for relief from a final judgment related to the termination of her employment. Here, the evidence was undisputed that the former police officer neglected her duties, failed to follow the directive of a "superior" and was repeatedly informed about various instances of misconduct. As such, the city administrator's decision to uphold Appellant's dismissal was supported by material evidence and was neither arbitrary, illegal, nor capricious.

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

          Kenneth S. Williams, and Cynthia A. Wilson, Cookeville, Tennessee, for the appellant, Dana Looper.

          Daniel H. Rader, IV, Cookeville, Tennessee, for the appellee, City of Algood.

          J. Steven Stafford, J., delivered the opinion of the court, in which Arnold B. Goldin, and Kenny Armstrong, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         Appellant Dana Looper ("Appellant") was hired as a police officer in 2008 for Defendant/Appellee the City of Algood ("the City"). In 2015, Appellant served in the rank of Sergeant, specifically as the City Police Department's Public Information Officer. An incident occurred on October 5, 2015, in which Appellant failed to perform tasks assigned by the City Administrator, Keith Morrison ("City Administrator"). The City Administrator immediately placed Appellant on administrative leave with pay. Following this incident, on October 12, 2015, the Chief of the Algood Police Department, Gary Harris ("Police Chief") placed a letter in Appellant's personnel file detailing several infractions allegedly committed by Appellant in 2015. The letter recommended that Appellant be terminated due to these infractions. The police chief later admitted that the infractions contained in the letter were not documented in accordance with the Personnel Rules and Regulations of the City of Algood ("Personnel Handbook"). Prior to the October 2015 letter, Appellant had no documented disciplinary incidents.

         On October 14, 2015, the Police Chief provided Appellant with written notice of the termination of her employment. The letter noted that the reason for her suspension was insubordination and "failure to follow the directives of your department head." With regard to dismissal, however, the letter stated that the reasons "include, but may not be limited to, inefficiency in the performance of your duties, violating or disregarding directives given to you by your supervisor(s) and insubordination." The letter finally advised Appellant that she was entitled to review of the dismissal decision in accordance with the Personnel Handbook.

         Appellant indeed chose to appeal her dismissal to the City Administrator as provided by the Personnel Handbook. An evidentiary hearing occurred on November 13, 2015. The Police Chief was the only witness. According to the Police Chief, Appellant had previously been orally reprimanded on several occasions due to failing to wear her bulletproof vest, failing to keep up with Tennessee Incident Based Reporting System (TIBRS") reports, and other misconduct as detailed in the October 12, 2015 letter placed in Appellant's file. The Police Chief explained that it was generally his practice to speak with his officers concerning infractions, hopeful that the oral reprimands alone would be sufficient to correct the behavior. The Police Chief admitted that he did not contemporaneously memorialize the oral reprimands by placing memos regarding the reprimands in Appellant's file at the time of the misconduct.

         With regard to the incident on October 5, 2012, the Police Chief testified that Appellant had been directed by her Superior Officer to go with other officers to another city to pick up police cars. Upon arriving at work, the City Administrator informed Appellant that she would need to stay behind to catch up on TIBRS reports, which are required by law to be completed. See Tenn. Code Ann. § 38-10-102(a) ("All state, county, and municipal law enforcement and correctional agencies, and courts, shall submit to the director of the Tennessee bureau of investigation reports setting forth their activities in connection with law enforcement and criminal justice, including uniform crime reports and reports of law enforcement-related deaths."); Tenn. Code Ann. § 38-10-105 ("Any officer or official mentioned in this chapter who shall have been notified and refuses to make any report or do any act required by any provision of this chapter shall be deemed guilty of nonfeasance of office and subject to removal therefrom.").

          According to the Police Chief, Appellant's position as Public Information Officer included the duty to complete the reports; Appellant, however, had become approximately eighty reports behind on the day of the incident and had previously been orally informed that she needed to catch up on the reports. The City Administrator therefore directed Appellant to complete the reports rather than travel to another city. Because of her position as the Public Information Officer, the Police Chief testified that Appellant often worked with the City Administrator and had never before expressed confusion or concern whether she was required to follow his directives. In this instance, however, Appellant responded that she would "respectfully decline" the City Administrator's directive. According to the Police Chief, Appellant's direct superior officer heard the initial exchange, but he did not intervene in the incident.

         Eventually, the City Administrator issued a ruling affirming Appellant's dismissal. According to the City Administrator,

The pattern of behavior you exhibited as a Sergeant in the Algood Police Department was not acceptable conduct for an officer in this department. Based on the fact that you were insubordinate with a supervisor on multiple occasions and neglected your duties to complete TIBRS as required by law, your termination is upheld[.]

         On December 2, 2015, Appellant filed a timely and proper petition for a writ of certiorari, which was later amended by agreement of the parties. The trial court issued the writ on December 2, 2015, and the record from the prior hearing was thereafter filed with the trial court. The original trial judge that was assigned this matter entered an order of recusal on April 7, 2016, and the Honorable Judge Larry B. Stanley was designated by the Tennessee Supreme Court to hear this case. On August 5, 2016, the trial court ruled that the termination of Appellant's employment was supported by material evidence and that the decision was not arbitrary, illegal, or capricious. Appellant thereafter appealed to this Court.

         While this appeal was pending, upon motion of Appellant, this Court remanded to the trial court to allow Appellant to pursue relief under Rule 60.02 of the Tennessee Rules of Civil Procedure. Appellant's Rule 60.02 motion was filed in the trial court on July 13, 2017. In support of relief under Rule 60.02, Appellant sought to admit a videotape, audiotapes, pictures, and an affidavit of a former police officer that she argued supported her assertion that the dismissal was based upon ulterior motives of the Police Chief. Appellant asserted that this evidence was unknown to her or her counsel at the time of the initial hearing in the trial court. Ultimately, the trial court denied the motion, ruling that "[n]o fraud, previously undiscoverable evidence, nor any other reason has been shown by [Appellant] that would warrant this [c]ourt granting her request." The parties were thereafter permitted to file supplemental briefs concerning the Rule 60.02 motion.

         Issues Presented

         Appellant raises two issues in this case, which are generally taken from her brief:

1. Whether the trial court erred finding and holding that the termination decision was not arbitrary, capricious or illegal, did not constitute an abuse of discretion, was based upon an actual and factual basis, and was supported by material evidence.
2. Whether the trial court abused its discretion when it denied Appellant's Rule 60.02 motion for relief from final judgment.

         Standard of Review

         A court's review of decisions made by administrative bodies is obtained by filing a petition for a common law writ of certiorari. See Tenn. Code Ann. § 27-8-101; see also Harding Acad. v. The Metro. Gov't of Nashville and Davidson Cty., 222 S.W.3d 359, 363 (Tenn. 2007) (citing McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990)). "It is well-settled that the scope of judicial review under a common law writ of certiorari is 'quite limited.'" Dill v. City of Clarksville, 511 S.W.3d 1, 9 (Tenn. Ct. App. 2015) perm. app. denied (Oct. 15, 2015) (quoting Heyne v. Metro. Nashville Bd. of Educ., 380 S.W.3d 715, 728 (Tenn. 2012)). As such, judicial review is limited in determining "whether the . . . board exceeded its jurisdiction; followed an unlawful procedure; acted illegally, arbitrarily, or fraudulently; or acted without material evidence to support its decision." Lafferty v. City of Winchester, 46 S.W.3d 752, 759 (Tenn. Ct. App. 2000) (citations omitted).

         When the sufficiency of evidence of the board's decision is challenged using a common law writ of certiorari, "the sufficiency of the evidence is a question of law" that the court must review de novo with no presumption of correctness as to the board's finding. Id. (citing Wilson Cty. Youth Emergency Shelter, Inc. v. Wilson Cty., 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999)). Under the limited certiorari standard, "courts may not (1) inquire into the intrinsic correctness of the lower tribunal's decision, (2) reweigh the evidence, or (3) substitute their judgment for that of the lower tribunal." State ex rel. Moore & Assocs. v. West, 246 S.W.3d 569, 574 (Tenn. Ct. App. 2005) (internal citations omitted). The common law writ of certiorari is therefore "not a vehicle which allows the courts to consider the intrinsic correctness of the conclusions of the administrative decision maker." Id. (citing Powell v. Parole Eligibility Rev. Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1997); Yokley v. State, 632 S.W.2d 123, 126 (Tenn. Ct. App. 1987)).

         This standard "envisions that the court will review the record independently to determine whether it contains 'such relevant evidence that a reasonable mind might accept as adequate to support a rational conclusion." Lafferty, 46 S.W.3d at 759 (quoting Hedgepath v. Norton, 839 S.W.2d 416, 421 (Tenn. Ct. App. 1992)). Said another way, "'the reviewing court is limited to asking whether there was in the record before the fact-finding body any evidence of a material or substantial nature from which that body could have, by reasoning from that evidence, arrived at the conclusion of fact which is being reviewed.'" Massey v. Shelby Cty. Retirement Bd., 813 S.W.2d 462, 465 (Tenn. Ct. App. 1991) (quoting Ben Cantrell, Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Mem. St. U. L. Rev. 19, 29-30 (1973) (emphasis in original)). If there is such evidence present in the record, the court must affirm the administrative body's decision. Id.

         Discussion

         I.

         Appellant first asserts that the trial court erred in finding that the termination decision was supported by material evidence and not arbitrary, capricious, or illegal. Pursuant to the Algood ...


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